author: By HORNBECK, J. By THE COURT.

text:
    McDEVITT, Plaintiff-Appellant, v. MORROW, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4376.
    Decided March 17, 1950.

      J. Paul McNamara, Donald S. McNamara, George L. Breithaupt, Columbus, for plaintiff-appellant.
    Robert R. Shaw, Mary Prentice, Columbus, for defendantappellee.
   OPINION

By HORNBECK, J.

The plaintiff, in his lifetime, instituted his action for the cancellation of a deed signed and executed by him to his daughter, Dorothy McDevitt Morrow, defendant, and praying that she be required to reconvey the property described in the petition to the plaintiff. The action was instituted on March 2, 1949. The plaintiff died April 9, 1949, and the cause was revived in the name of Mae E. McDevitt, his widow and heir at law. Upon trial had, judgment was entered for the defendant and the petition dismissed.

The appeal is on questions of law and fact which require that we determine the issues as though the cause had arisen in this Court.

James A. McDevitt, the original plaintiff, was the father of defendant and four other children, two sons and two daughters. During the lifetime of the. first Mrs. McDevitt, mother of the aforementioned children, James A. McDevitt and his wife acquired the real estate, the subject matter of this case, Mrs. McDevitt died on the fifth of March, 1945, at which time the defendant and a sister, Marguerite and her husband, Floyd W. Woodruff, were living at the McDevitt home. Later, defendant married and moved from the home but Marguerite and her husband remained with her father until his marriage to Mae Bowlby on October 25, 1948. Sarah McDevitt, the first wife, left a will disposing of her one half interest in the property involved jointly owned by her and her husband. Before this will was probated all of the children of the McDevitts joined in a quit-claim deed to their father transferring all of their right, title and interest in the property to him. This deed was executed on January 8, 1946. On January 24, 1946, James McDevitt executed the deed, the subject matter of this action, which deed recited a consideration of “one dollar and other good and valuable consideration.” The deed to the defendant was recorded by her on December 2, 1948. Plaintiff charged that “defendant procured and induced the plaintiff to execute and deliver the deed to the premises and that the plaintiff executed and delivered said instrument of conveyance without a knowledge or understanding of the contents of the instrument or its legal effect”; that “at the time said deed was executed and delivered, the defendant was represented by an attorney and the plaintiff was not represented by an attorney.” After trial had and before the judgment entry was spread upon the record, the Court permitted the plaintiff to delete from the petition those words which we have emphasized.

The defendant answering, after denying the averments of the petition, alleged that the deed in question was made after the children of the McDevitts had deeded their interest in the premises to their father, that the deed was made to the defendant upon specific authorization of Mr. McDevitt to Mary E. Prentice, an attorney, that he thoroughly understood the purpose of the deed, that its execution was his own voluntary act done with full knowledge of its legal effect, that the plaintiff understood that the deed should be executed and delivered, that it was left in the plaintiff’s safety deposit box with his full knowledge and consent from the timé of its execution and delivery until the time it was recorded.

At the time that the cause was submitted to the trial judge, there had been no proof, of substance, to establish the averments of the petition but the evidence did raise a substantial question as to the legal delivery of the deed. Counsel for defendant, many times attempted to restrict the introduction of the evidence to the issues drawn on the pleadings but without success and also moved for finding and judgment in her behalf at the conclusion of plaintiff’s case. This motion could well have been sustained. However, the cause comes into this Court upon a stipulation of the parties, that we are to try it upon the pleadings below and the evidence there taken which is in the form of a transcript.

At the outset we observe that it is seldom, if ever, a case has come to our attention wherein each party has done so much to weaken the essentials of proof in his behalf, nor wherein a completely satisfactory resolution of the evidence has been more baffling.

The plaintiff instituted his action and in his petition alleged three times that the deed in question had been executed and delivered. This was clearly an admission against interest, the effect of which was to tend to establish a delivery of the deed. These averments would have been admissible on behalf of the defendant even though they were eventually stricken from the petition. Annotation to Craig v. United Railroads Company of St. Louis (Mo.) 14 A. L. R. 65. Strangely enough the defendant did not proffer in evidence these admissions of the petition. There is, however, left in the petition, which may be considered, the statement, “At the time the said deed was executed and delivered the defendant was represented by an attorney,” etc. We are cognizant of the fact that this pleading was prepared by an attorney and that the client may not have fully understood the legal import of the admission of the delivery of the deed. However, it is also to be presumed that the petition was prepared by counsel after full opportunity to elicit the facts.

The defendant upon first impression weakens her case by certain of her testimony, stated and restated, to the effect that she did not undertake to exercise any control over the deed to the exclusion of her father, that she intended him to have access to it, that he had a right to tear the deed up if he wanted to, that the father could have gotten the deed at any time he wanted to and other answers to like effect. It thus becomes necessary to consider all the facts and circumstances preliminary to, attending and succeeding the execution of the deed to reconcile, if possible, the seeming inconsistency in the statements and acts of the parties.

We approach the determinative question here, namely, the legal delivery of the deed with an appreciation of the controlling principle that,

“To pass title to realty there must not only be a delivery of a deed by the grantor with intent to sever his rights to further control the instrument, but there must also be an acceptance of the deed with expressed or implied intent to take title as therein, conferred.” Mossbarger v. Oswald, 26 Abs 345.

That,

“the grantor must part with right of control and right of recall of the deed.” Goodhue v. Goodhue, 15 O. D. 635.

That,

“the grantor must intend to vest in the grantee the custody ■of the instrument no less than the estate.” Dukes v. Spangler, 55 Oh St 119.

It fairly appears from the evidence that the grantor had intended for some time prior to the execution of the deed to the defendant to make such transfer and had talked the matter over on several occasions and at considerable length with several of his children including the defendant, that he had proposed to make the deed to a son and the defendántjointly but that the son would not consent to accept it. It further appears that but a few weeks elapsed between the execution of the quit-claim deed from the children to the father and the execution of the deed in question to the •defendant and it is inferable that the effect of the execution of these instruments coexisted in the minds of the parties when the latter deed was made. It appears that the property was to be accepted by the defendant, as between her and her father, charged with the obligation to use the property, •or the proceeds therefrom, for the care and support of the father during his lifetime and at his death to divide it ■equally among his surviving children. Herein is found, in •our judgment, the explanation of the statements of the -defendant apparently contradictory of the theory of the delivery of the deed. There can be no doubt from her testimony that at all times she felt that the property was charged with the obligation of care and support for her father and to that end it could at any time have been appropriated for that purpose. To her this was ownership in him inasmuch as she did not intend to disturb his possession and use of the premises unless and until occasion arose according to the terms upon which the deed was made.

It should be noted that the test here is not whether the grantor had the opportunity to and could have taken the deed, destroyed it, or otherwise appropriated it, after its execution or indeed, whether the defendant would have interposed to prevent it but whether or not he had the right under the facts attending so to do.

At the time that the instrument was executed Miss Prentice, an attorney at law, with whom the ■ defendant had been employed and a long time friend of the father and the family, was called to come- to the home of the McDevitts. She was familiar, in part at least, with the subject of the family discussions relative to the deeds, had placed the quit-claim deed for record at the request of the father and, according to the defendant, had participated in some of the discussions between the father and his family relative to the warranty deed to the defendant. She had directed the preparation of the deed which was made succeeding the several conversations which we have heretofore mentioned. She took the deed to the home of the father and there were present besides the father and Miss Prentice, the defendant, her sister, Marguerite, and brother-in-law, Mr. Woodruff, who had remained at home upon the request of the father that he act as a witness to the deed. It is testified by Miss Prentice that the subject matter of the deed was fully explained to Mr. McDevitt, that it was duly executed and witnessed and then handed by Mr. McDevitt to the defendant. She does not recall what later was done with the deed. Mr. Woodruff also says that the last time he saw the deed “Dad handed it to Dorothy.”

The defendant, on cross-examination, was not definite to the effect that her father handed the deed to her but later, in chief, so stated. It then appears that the deed was turned over to the father who placed it in a drawer in which he kept his personal effects and that later the defendant and her father took the deed to a safe deposit box carried in their joint names, defendant being named as the principal, the father as the deputy, where it was placed and kept until it was recorded. It is thus well established that manual delivery of the deed was made from the grantor to the grantee. The decisive question is the intention of the grantor to have the instrument take effect as a deed then passing title.

It is further developed that the family relationship between the father and the children had been a very close and congenial association until about the time of the second marriage when difficulty arose by reason of the courtship and eventually the marriage.

The most logical reason for the formality attending the execution and delivery of the deed is that the father desired to transfer his property to his daughter in accordance with his purpose frequently expressed. Unless this was the intent no satisfactory explanation accounts for the transaction at the home of the father.

During the time that Mr. McDevitt and Mrs. Bowlby were associated and prior to the marriage he wrote to her in which letter he made statements to the effect that he owned and had a right to sell the real estate described in the deed to the defendant. In August, 1948, Mr. McDevitt renewed a loan, secured by the real estate conveyed in the deed, from the Central Ohio First Mortgage Company at which time the abstract was continued; he stated that he owned it and the property was shown to be in his name. When Mr. Mc-Devitt discovered that the deed to his daughter had been recorded he expressed surprise and later instituted the instant action. These acts, all occurring subsequent to the execution and delivery of the deed, do have probative effect as tending to show that the father did not intend to part with title to his property and must be considered together with all the other facts attending the transaction and as to some of these in the light of the changed relation between the father and his family succeeding his second marriage. -

It is urged by the plaintiff that because of the confidential relations existing between Mr. McDevitt and the defendant and because it does not clearly appear that there was valuable consideration for the transfer of the property, the act of the defendant in accepting and recording the deed should be scrutinized carefully and she should be required to show that there was no overreaching on her part. Peterson v. Mitchener, 79 Oh Ap 145. The good faith of the defendant in the transaction clearly appears in this record and that she was actuated by a purpose to assure that the property be used in accordance with the expressed desires of her father.

The defendant testified that she recorded the deed when she did because of the second marriage, because she and her brothers and sisters were cut off from access to their father and to assure that he would be taken care of by the property. It is probable that but for the marriage the deed would not have been recorded unless and until an emergency arose requiring that it be used to support the father or until his death.

Decided April 14, 1950.

The record of a deed is prima facie evidence of its delivery. Lessee of Mitchell v. Ryan, 3 Oh St 377; Smith v. Ranck, 37 O. O. 235, 80 N. E. (2d) 631, which case may be rebutted by proof. There was no time succeeding the delivery of the deed, except the period during which the father had the deed in his home, that he had it in his exclusive possession and its possession by the defendant is consistent with the facts although the father had access to it.

Upon the whole record, we are of opinion that the most reasonable explanation of the transfer wherein the deed was executed and delivered to the defendant is that, at that time, the grantor intended to release control of the deed and to transfer the title to the property described therein to the defendant upon the terms stated by her. No doubt he could have withdrawn the deed from the deposit box not because he had the right to do so but because his daughter, the defendant, would not have interposed to prevent it. Indeed had he destroyed the deed, the daughter could have, notwithstanding, asserted her title because of the completed delivery to her. Dukes v. Spangler, supra; Scott v. Mofford, et al., 64 Oh Ap 457. A deed is not rendered inoperative because the grantor is to retain possession of the property during his lifetime. 26 C. J. S. 247. The father’s possession of the property, at all times, until his death, was consistent with the terms under which the deed was delivered. Mossbarger, et al., v. Oswald, et al., supra.

There is no doubt that there had been such a change in the relationship of the father toward the defendant and his family by reason of the second marriage as would account, in part at least, for his change in purpose respecting the transfer of the real estate described in the deed.

We cannot find that the plaintiff has sustained proof of the averments of the petition and the judgment accordingly will be for the defendant.

MILLER, PJ, and WISEMAN, J, concur.

ON MOTION FOR NEW TRIAL

No. 4376.

By THE COURT.

Submitted on motion for new trial, which will be overruled.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


source: Caselaw Access Project

author: By MATTHEWS. J.:

license: Public Domain

text:
    WILLIAMS, Trustee, Plaintiff-Appellee, v. LEDBETTER et, Defendant-Appellees, and BOYCE et, Defendant-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7194.
    Decided January 23, 1950.

      Ragland, Dixon & Murphy, Cincinnati, for plaintiff-Appellee.
    Carl L. Meier, William J. Walsh, Cincinnati, for defendantappellees.
    Kytle, Conlan & Heekin, John D. Boyce, Lucien Wulsin, Jr., Cincinnati, for defendant-appellants.
   OPINION

By MATTHEWS. J.:

This is an appeal on law and fact from a judgment construing the will of John Mackey, deceased, and determining the beneficiaries to whom the corpus of a trust fund thereby created should be distributed on the termination of the trust. The action was instituted by the trustee and certain claimants were made defendants. Whether all persons having an interest are parties depends upon the true interpretation of the will submitted for construction herein. The parties are agreed as to the data upon which our conclusion must be based. That conclusion can only be reached by determining the meaning and extent of the testamentary intent of John Mackey as disclosed by his will and the application of that intent to the existing situation.

John Mackey executed his will on the 8th day of April, 1907. He died on July 19th, 1908, and his will was duly admitted to probate by the Probate Court of Hamilton County, Ohio, on the 23rd day of July, 1908. On June 23rd, 1909, the plaintiff herein was appointed trustee and on December 29th, 1909, the executors paid to him $20,000.00 to be held and disposed of in accordance with the terms of said will.

John Mackey left surviving him as his next of kin the following persons: Ella B. Strong, a niece; Wm. N. Allen, a nephew; George R. Boyce, a nephew; Sarah Sullivan, a niece; Edward Buckley, a grand-nephew; and Lydia Richter, a grandniece.

In his will, he described his nieces and nephews as “his principal devisees.” He bequeathed to Ella B. Strong $25,000.00 absolutely; to William N. Allen $20,000.00 absolutely; to George R. Boyce $20,000.00 absolutely; and to Edward Buckley and Lydia Buckley $5,000.00 to share equally; and $10,000.00 to certain friends, and $4,000.00 to religious and charitable institutions. These specific bequests totaled $194,000.00, and he provided that if his estate exceeded that amount “such excess shall be equally divided between the four principal devisees, viz.: Ella B. Strong, William N. Allen, George R. Boyce and Sarah Sullivan.”

The estate did exceed $104,000.00, and that excess was paid by the executors to the legatees in accordance with the aforesaid provision.

While he described his niece Sarah Sullivan as one of his “principal devisees, the specific bequest to her was not given to her outright and unconditionally. That dispositive provision in her favor is found in the second paragraph on page 2 of the will, and is as follows:—

“I give and bequeath to my niece Sarah Sullivan, the daughter of, my beloved sister, Sarah Buckley, of Cincinnati, Ohio, the sum of twenty thousand ($20,000.00) Dollars, to be held in trust for her absolutely during her natural life and at her death her share shall remain in trust for the benefit of her daughter Marie who shall receive the income of the same during her natural life, and at the death of the said Marie, should she survive her mother, then the aforesaid share shall be equally divided between the remaining principal devisees.”

The person described in this provision as Marie, the daughter of Sarah Sullivan, is identified as Marie Rockwell Smith, also known as Marie Cranston.

By a latter provision of the will, the testator provided that if any beneficiary should “oppose the disposal of my estate as I have seen fit to divide the same, then any such beneficiary shall be cut off and debarred absolutely from any and all benefits named in this will, and the share or shares shall be equally divided among the four principal devisees.” And in the same paragraph, he also provided that: “I further

direct if one or more of the principal devisees should die, the same having one or more children, their share or shares shall be equally divided among their said children, not however until the youngest is of legal age, they to receive the income of the same. Should one or more of my principal devisees die without issue (children), then his or her share shall also be equally divided among the remaining principal devisees.”

Sarah Sullivan did not die without issue. Her daughter Marie survived her. There is a suggestion that she had other surviving children.

None of the “principal devisees” survived Marie Rockwell Smith, also known as Marie Cranston, who died on July 27th, 1947. Ella B. Strong died on August 3rd, 1933; Sarah Sullivan died on January 15th, 1937; George R. Boyce died on June 14th, 1938; and William N. Allen died on January 6th, 1940.

The present claimants to the corpus of this trust fund are— Irene A. Ledbetter and William N. Allen, Jr., children of William N. Allen, and Arthur Hewitt, surviving husband, and ■.Allen E. Hewitt, surviving son of Bessie Hewitt, deceased daughter of William N. Allen; William B. Strong, son of Ella B. Strong; and John Boyce and Grace Boyce, adopted children of George R. Boyce.

Neither the grand-niece nor grand-nephew, nor anyone claiming through them are parties to this action. No one representing that class was a party to the action.

(1) On October 24th, 1911, the trustee of Sarah Sullivan and Marie Rockwell Smith, filed an action in the Superior Court of Cincinnati against all the “principal devisees,” setting forth the creation of the trust, his appointment as trustee, and the payment of Twenty Thousand ($20,000.00) Dollars to him, to be held in trust for the use and purposes of the trust created in “paragraph 2 on page 2 of said last will and testament of John Mackey.” It was also alleged that divers questions had arisen and would arise and that the trustee had been advised and believed that it was necessary to the proper execution of the trust “under said paragraph of said last will” that he should receive the instructions of the court. He, therefore, prayed “judgment as to the meaning, correct interpretation, construction, and effect of the aforesaid paragraph --that this plaintiff may be instructed how and in what manner he is to apply the income received from said legacy - and to whom said income-is to be paid during the natural life of Sarah Sullivan and Marie Rockwell Smith and in what proportions; that this plaintiff may be advised - in what manner he is to apply the principal of said legacy” and that he may be instructed as to any other questions “which may arise in the administration and execution of the trust created in the paragraph of said will herein-before fully set forth.”

Paragraph 2 on page 2 of said will which was fully set forth in said petition was:

“I give and bequeath to my niece Sarah Sullivan, the daughter of my beloved sister, Sarah Buckley, of Cincinnati, Ohio, the sum of twenty-thousand ($20,000.00) Dollars, to be held in trust for her absolutely during her natural life and at her death her share shall remain in trust for the benefit of her daughter Marie who shall receive the income of the same during her natural life, and at the death of the said Marie, should she survive her mother, then the aforesaid share shall be equally divided between the remaining principal devisees.”

A full copy of the will was attached to and made a part of the petition.

At the time the petition was filed in the Superior Court of Cincinnati, all the “principal devisees” were living, were parties to the action, and continued to live until long after the judgment in the case was entered. Each of them filed answers asserting that according to the provisions of the last will and testament of John Mackey, deceased, he or she, as the case might be, was entitled to a one-third of said legacy referred to in plaintiff’s petition, subject to the life estates of said Sarah Sullivan and Marie Rockwell Smith, and each prayed that the court in “construing said paragraph of said last will-may adjudge this defendant to be entitled to the said one-third subject to the life estates of said Sarah Sullivan and Marie Rockwell Smith and for such other and further relief” to which he or she might be entitled in equity.

No reply was filed and no issue was raised in the pleadings as to the correct construction to be placed upon this language of the will. Certainly, no issue was presented as to the contingency of Marie Rockwell Smith surviving her mother and all the “principal devisees.”

On these pleadings, a judgment was entered. The specific date of the entering of this judgment does not seem to appear in the record. However, it was manifestly entered shortly after the petition was filed, probably in 1911, and during the life of all the “principal devisees” and of Sarah Sullivan. If the specific date should be deemed material, it may be supplied, but as the Court sees it, the exact date is unimportant.

In this judgment, after reciting that this cause came on for hearing upon the pleadings, the evidence and the arguments of counsel, and, after making certain immaterial findings, found that “Paragraph 2 on page 2 of said last will and testament of John Mackey, deceased, provided as follows:” - Then followed the quotation of Paragraph 2 of said will.

Then, after finding that the parties to the action were those named in the will, the court proceeded to find that “diverse and important questions have arisen” as to the interpretation and effect “of paragraph 2 on page 2 of said last will and testament of John Mackey, deceased, which said paragraph of said will is hereinbefore set forth.”

Coming then to construe “the last will and testament of John Mackey, deceased, and of said paragraph 2 on page 2 thereof” the court found that its meaning and effect was “That the defendant Sarah .Sullivan be entitled to receive and shall receive the income only from said legacy of twenty thousand ($20,000.00) dollars referred to in plaintiff’s petition for and during her natural life after deducting from said income all such expenses, costs and fees as may be properly and legally charged against the same by said plaintiff in and about the administration and execution of said trust.”

“That the said defendant, Marie Rockwell Smith, a minor of the age of seventeen years be entitled to receive and shall receive for and during her natural life the income only from said legacy of twenty thousand ($20,000.00) dollars, referred to in plaintiff’s petition, from and after the death of her mother, Sarah Sullivan, after deducting from said income all such expenses, costs and fees as may be properly and legally charged against the same by said plaintiff in and about the administration and execution of his trust.”

“That the defendants George ,R. Boyce, William N. Allen and Ella B. Strong are entitled to receive and shall receive one-third each of said principal of said legacy of twenty thousand ($20,000.00) dollars remaining, upon the death of the said Sarah Sullivan and Marie Rockwell Smith; that the amount to be received by the said defendants, George R. Boyce, William N. Allen and Ella B. Strong shall be subject to the life estates of said Sarah Sullivan and Marie Rockwell Smith in the income derived from' said legacy and to the payment from said legacy of all such expenses, costs and fees as may be properly and legally incurred by the plaintiff herein in and about the administration and execution of his trust.”

It appears from the will of John Mackey and also from the agreed facts that in addition to his “principal devisees” he was survived by a grand-niece and grand-nephew, children of a deceased nephew, who were of his next of kin, but were not made parties to or mentioned in the Superior Court action. And they are not parties or represented in the present action.

It will be observed that nothing was adjudicated as to the effect of Marie Rockwell Smith surviving her mother and all of the other “principal devisees,” and it will also be observed that no mention was made as to the effect of a possible partial intestacy, resulting from such development and, yet, it is claimed that the judgment of the Superior Court of Cincinnati has decided this question, notwithstanding it was not mentioned at the time and did not in fact arise until the death of Sarah Sullivan on January 15th, 1937, and probably not until the death of Marie Rockwell Smith on July 27th, 1947. The judgment must be given first consideration, because if its effect is as claimed, it disposes of this case.

It strikes one at once that to hold that the Superior Court judgment is an adjudication of the rights of the children of the deceased nephew, and perhaps others, would violate the fundamental rule that only parties to an action are concluded thereby. And the fact that necessary parties to a complete determination of an issue were absent is very persuasive that there was no intention to pass upon that issue as to any of the parties and almost conclusive in the absence of direct and positive language to the contrary. There is no such language in the judgment. It is only by giving a specific meaning to general language can it be determined that the court intended to adjudicate this question.

The Supreme Court had the subject of res ad judicata and estoppel by judgment under consideration in Norwood v. McDonald, 142 Oh St, 299, and in its opinion covered almost every, if not every, phase of the subject. It reduces our problem to a determination of the class into which the case at bar falls. We believe the rules set forth in the sixth and eighth paragraphs of the syllabus govern this case. These paragraphs are:

“Where a judgment is relied on by way of evidence as. conclusive per se between the parties in a subsequent suit, it must appear by the record of the former suit that the particular controversy sought to be precluded was therein actually or necessarily tried and determined.”

“While all claims of right embraced in a single cause of action must be prosecuted simultaneously, a litigant cannot be required to prosecute simultaneously in a single action multiple causes of action, even though they relate to the same subject matter.”

In 30 Am. Jur., 943 (Sec. 206) it is said:

“However, where, after the rendition of a judgment, subsequent events occur, creating a new legal situation or altering the legal rights or relations of the litigants, the judgment may thereby be precluded from operating as an estoppel. In such case, the earlier adjudication is not permitted to bar a new action to vindicate rights subsequently acquired. In this connection, it has been declared that a judgment is not res judicata as to the rights which were not in existence at the time of the rendition of the judgment.”

The action in the Superior Court of Cincinnati was one for interpretation of the will and for instructions to the trustee as to his duties. It invoked the equity powers of the court over trusts and trustees. In doing so the plaintiff trustee subjected himself to the limitations upon the exercise of that power as determined by the usage and practice of that court. One of the time honored rules of chancery courts was that it would not give instruction or make a declaration unless there existed some present reason for so doing. It would not make a declaration of rights or instruct a trustee as to rights or duties under possible future circumstances that might never arise. In 16 Am. Jur., 292 and 293, it is said: “As a general rule, the courts will not render a declaratory judgment as to future rights, but just as in ordinary actions will wait until the event giving rise to the rights has happened, or, in other words, until the rights have become fixed under an existing state of facts.-Hence the courts will not ordinarily attempt to decide or declare the rights or status of parties upon a state of facts which is contingent or uncertain, or until the question as to which a declaration is sought has actually arisen. This rule is similar to the one observed where the guidance of an equity or probate court is sought under the practice which prevails independent of declaratory judgment statutes.”

Section 259 of Restatement of Law of Trusts (1 Restatement, p. 806) the fundamental rule is stated that a trustee who is reasonably in doubt as to his duties may apply to the court for instructions. Comment c. to that section is: “The court will not instruct the trustee as to questions which may never arise or may arise in the future but which have not yet arisen. Thus, the court will not instruct the trustee as to the distribution of the trust property before the time for distribution arrives.”

We do not mean to imply that it is our view that a declaration as to rights or status that are contingent or uncertain and would arise in the future, if at all, would be void. What we do mean to say is, that when we are construing this judgment we must consider that to construe it as claimed would require us to disregard the settled practice in such cases, which, when taken with the fact that there was an absence of necessary parties to make any such declaration effective and conclusive, has led us to conclude that the court made no declaration on the issue now before the court. The extent of the declared intention of the testator remains to be decided as an original question in this case.

(2) We have quoted the provision of the will creating this trust and also the only other provision that could have any tendency to indicate an intention on the part of the testator to direct the disposition of the corpus of this fund upon the termination of the trust under the circumstances that developed. We have considered these provisions with a consciousness of the rule against so construing a will as to create a partial intestacy, but, after giving full weight to that rule, we conclude that the testator never contemplated any such development, and, therefore, completely failed to make any provision for it. The court cannot interpolate a provision for the testator.

Much has been said about the distinction between vested ■and contingent estates, and the distinction between conditions precedent and conditions subsequent, which would be of more •or less importance if the testator had used language to which such rules could be applied. The absence of testamentary language makes it immaterial whether an estate would have vested or been defeated upon the death of Marie Rockwell Smith, had a “principal devisee” survived.

A reading of the quoted provisions shows that whether the “remaining principal devisees” had a vested or contingent future estate in the corpus of this trust fund, they could only come into enjoyment in the event that they survived the life beneficiaries. The “remaining principal devisees” were the only beneficiaries mentioned by the testator to take upon the termination of the trust. All four having died before Marie Rockwell Smith, the life beneficiary, there was no remaining beneficiary and no testamentary direction as to the disposition of the fund. The case, therefore, presents the situation of a testator failing to anticipate a development and, for that reason, failing to make provision for it.

As we construe this will, the life estates of Sarah Sullivan and Marie Rockwell Smith, and the provision for the “remaining principal devisees” did not exhaust the entire title of the testator in this trust fund. There remained a residuum undisposed of by the will. This residuum or reverter, resulting from the absence of “principal devisees,” was cast upon his next of kin at the time of his death, as determined by the statutes of descent, and now belongs to those persons who can trace title from them. The adopted children of George R. Boyce inherit his share of the trust fund. All such persons should be made parties to this action for the decree to be an effective shield to the trustee.

A decree may be presented in accordance with this opinion.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: Mr. JUSTICE FRANKFURTER Mr. JUSTICE REED,

text:
    HUGHES et al v. SUPERIOR COURT OF CALIFORNIA in and for COUNTY OF CONTRA COSTA.
    United States Supreme Court.
    No. 61.
    Decided May 8, 1950.

      Bertram Edises, Oakland, Cal., for petitioner.
    Frank S. Richards, San Francisco, Cal., for respondents.
   OPINION

Mr. JUSTICE FRANKFURTER

delivered the opinion of the ■Court.

Does the Fourteenth Amendment of the Constitution bar a State from use of the injunction to prohibit picketing of a place of business solely in order to secure compliance with a •demand that its employees be in proportion to the racial origin of its then customers? Such is the broad question of this case.

The petitioners, acting on behalf of a group calling them•selves Progressive Citizens of America, demanded of Lucky Stores, Inc., that it hire Negroes at its grocery store near the •Canal Housing Project in Richmond, California, as white •clerks quit or were transferred, until the proportion of Negro clerks to white clerks approximated the proportion of Negro to white customers. At the time in controversy about 50% of the customers of the Canal store were Negroes. Upon refusal of this demand and in order to compel compliance, the Canal •store was systematically patrolled by pickets carrying placards stating that Lucky refused to hire Negro clerks in proportion to Negro customers.

Suit was begun by Lucky to enjoin the picketing on appropriate allegations for equitable relief. The Superior Court of Contra Costa County issued a preliminary injunction restraining petitioners and others from picketing any of Lucky’s stores to compel “the selective hiring of negro clerks, such hiring to be based on the proportion of white and negro customers who patronize plaintiff’s stores.” In the face of this injunction, petitioners continued to picket the Canal store, •carrying placards reading: “Lucky Won’t Hire Negro Clerks in Proportion to Negro Trade — Don’t Patronize.” In conformity with State procedure, petitioners were found guilty of contempt for “wilfully disregarding” the injunction and were sentenced to imprisonment for two days and fined $20 •each. They defended their conduct by challenging the injunction as a deprivation of the liberty assured them by the Due Process Clause of the Fourteenth Amendment. The intermediate appellate court annulled the judgment of contempt, Cal. App., 186 P. 2d 756, but it was reinstated on review by the Supreme Court of California. That court held that the conceded purpose of the picketing in this case — to compel the hiring of Negroes in proportion to Negro customers — was unlawful even though pursued in a peaceful manner. Having violated a valid injunction petitioners were properly punishable for contempt. “The controlling points,” according to the decision of the Supreme Court of California, “are that the injunction is limited to prohibiting picketing for a specific unlawful purpose and that the evidence justified the trial court in finding that such narrow prohibition was deliberately violated.” 32 Cal. 2d 850, 856, 198 P. 2d 885, 888. We brought the case here to consider claims of infringement of the right of freedom of speech as guaranteed by the Due Process Clause of the Fourteenth Amendment. 336 U. S. 966, 69 S. Ct. 930.

First. Discrimination against Negroes in employment has brought a variety of legal issues before this Court in recent years. Graham v. Brotherhood' of Locomotive Firemen and Enginemen, 338 U. S. 232, 70 S. Ct. 14; Railway Mail Ass’n v. Corsi, 326 U. S. 88, 65 S. Ct. 1483, 89 L. Ed. 2072; Steele v. Louisville & N. R. Co., 323 U. S. 192, 65 S. Ct. 226, 89 L. Ed. 173; Tunstall v. Brotherhood of Locomotive Firemen and Enginemen, 323 U. S. 210, 65 S. Ct. 235, 89 L. Ed. 187; New Negro Alliance v. Sanitary Grocery Co., 303 U. S. 552, 304 U. S. 542, 58 S. Ct. 703, 82 L. Ed. 1012. See also Myrdal, An American Dilemma cc. 13-14 (1944). Such discrimination raises sociological problems which in some aspects and within limits have received legal solutions. California has been sensitive to these problems and decisions of its Supreme Court have been hostile to discrimination on the basis of color. James v. Marinship Corp., 25 Cal. 2d 721, 155 P. 2d 329, 160 A. L. R. 900; Williams v. International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers of America, 27 Cal. 2d 586, 165 P. 2d 903. This background of California’s legal policy is relevant to the conviction of its court that it would encourage discriminatory hiring to give constitutional protection to petitioners’ efforts to subject the opportunity of getting a job to a quota system. The view of that court is best expressed in its own words:

“It was just such a situation — an arbitrary discrimination upon the basis of race and color alone, rather than a choice based solely upon individual qualification for the work to be done — which we condemned in the Marinship case, supra, (25 Cal. 2d 721, 737, 745, 155 P. 2d 329). The fact that those seeking such discrimination do not demand that it be practiced as to all employes of a particular employer diminishes in no respect the unlawfulness of their purpose; they would, to the extent of the fixed proportion, make the right to work for Lucky dependent not on fitness for the work nor on an equal right of all, regardless of race, to compete in an open market, but rather, on membership in a particular race. If petitioners were upheld in their demand then other races, white, yellow, brown and red, would have equal rights to demand discriminatory hiring on a racial basis. Yet that is precisely the type of discrimination to which petitioners avowedly object.” 32 Cal. 2d at 856, 198 P. 2d at 889.

These considerations are most pertinent in regard to a population made up of so many diverse groups as ours. To deny to California the right to ban picketing in the circumstances of this case would mean that there could be no prohibition of the pressure of picketing to secure proportional employment on ancestral grounds of Hungarians in Cleveland, of Poles in Buffalo, of Germans in Milwaukee, of Portuguese in New Bedford, of Mexicans in San Antonio, of the numerous minority groups in New York, and so on through the whole gamut of racial and religious concentrations in various cities. States may well believe that such constitutional sheltering would inevitably encourage use of picketing to compel employment on the basis of racial discrimination. In disallowing such picketing States may act under the belief that otherwise community tensions and conflicts would be exacerbated. The differences in cultural traditions instead of adding flavor and variety to our common citizenry might well be hardened into hostilities by leave of law. The Constitution does not demand that the element of communication in picketing prevail over the mischief furthered by its use in these situations.

Second. “[T]he domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states,” Palko v. State of Connecticut, 302 U. S. 319, 327, 58 S. Ct. 149, 153, 82 L. Ed. 288, no doubt includes liberty of thought and appropriate means for expressing it. But while picketing is a mode of communication it is inseparably something more and different. Industrial picketing “is more than free speech, since it involves patrol of a particular locality and since the very presence of a picket line may induce action of one kind or another, quite irrespective of the nature of the ideas which are being disseminated.” Mr. Justice Douglas, joined by Black and Murphy, JJ., concurring in Bakery & Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U. S. 769, 775, 776, 62 S. Ct. 816, 819, 86 L. Ed. 1178. Publication in a newspaper, or by distribution of circulars, may convey the same information or make the same charge as do those patrolling a picket line. But the very purpose of a picket line is to exert influences, and it produces consequences, different from other modes of communication. The loyalties and responses evoked and exacted by picket lines are unlike those flowing from appeals by printed word. See Gregory, Labor and the Law 346-48 (rev. ed. 1949); Teller, Picketing and Free Speech, 56 Harv. L. Rev. 180, 200-02 (1942); Dodd, Picketing and Free Speech: A Dissent, 56 Harv. L. Rev. 513, 517 (1943); Hellerstein, Picketing Legislation and the Courts, 10 N. C. L. Rev. 158, 186-87, n. 135 (1932).

Third. A State may constitutionally permit picketing despite the ingredients in it that differentiate it from speech in its ordinary context. Senn v. Tile Layers Protective Union, 301 U. S. 468, 57 S. Ct. 857, 81 L. Ed. 1229. And we have found that because of its element of communication picketing under some circumstances finds sanction in the Fourteenth Amendment. Thornhill v. State of Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093; American Federation of Labor v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855; Bakery & Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, 315 U. S. 769, 62 S. Ct. 816, 86 L. Ed. 1178; Cafeteria Employees Union v. Angelos, 320 U. S. 293, 64 S. Ct. 126, 88 L. Ed. 58. However general or loose the language of opinions, the specific situations have controlled decision. It has been amply recognized that picketing, not being the equivalent of speech as a matter of fact, is not its inevitable legal equivalent. Picketing is not beyond the control of a State if the manner in which picketing is conducted or the purpose which it seeks to effectuate gives ground for its disallowance. See Dorchy v. State of Kansas, 272 U. S. 306, 47 S. Ct. 86, 71 L. Ed. 248; Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., 312 U. S. 287, 61 S. Ct. 552, 85 L. Ed. 836, 132 A. L. R. 1200; Hotel and Restaurant Employees’ International Alliance, Local No. 122 v. Wisconsin Employment Relations Board, 315 U. S. 437, 62 S. Ct. 706, 86 L. Ed. 946; Carpenters & Joiners Union of America, Local No. 213 v. Ritter’s Cafe, 315 U. S. 722, 62 S. Ct. 807, 86 L. Ed. 1143; Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 684. “A state .is not required to tolerate in all places and all circumstances even peaceful picketing by an individual.” Bakery & Pastry Drivers & Helpers Local 802 of International Brotherhood of Teamsters v. Wohl, supra, 315 U. S. at page 775, 62 S. Ct. at page 819, 86 L. Ed. 1178.

The constitutional boundary line between the competing interests of society involved in the use of picketing cannot be established by general phrases. Picketing when not in numbers that of themselves carry a threat of violence may be a lawful means to a lawful end. See American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 206-207, 42 S. Ct. 72, 77, 66 L. Ed. 189, 27 A. L. R. 360. The California Supreme Court suggested a distinction between picketing to promote discrimination, as here, and picketing against discrimination: “It may be assumed for the purposes of this decision, without deciding, that if such discrimination exists, picketing to protest it would not be for an unlawful objective.” 32 Cal. 2d at 855, 198 P. 2d at 888. We cannot construe the Due Process Clause as precluding California from securing respect for its policy against involuntary employment on racial lines by prohibiting systematic picketing that would subvert such policy. See Giboney v. Empire Storage & Ice Co., supra.

Fourth. The fact that California’s policy is expressed by the judicial organ of the State rather than by the legislature we have repeatedly ruled to be immaterial. Castillo v. McConnico, 168 U. S. 674, 684, 18 S. Ct. 229, 233, 42 L. Ed. 622; Herbert v. State of Louisiana, 272 U. S. 312, 316, 47 S. Ct. 103, 104, 71 L. Ed. 270, 48 A. L. R. 1102; Nashville, C. & St. L. R. Co. v. Browning, 310 U. S. 362, 369, 60 S. Ct. 968, 972, 84 L. Ed. 1254; Skiriotes v. State of Florida, 313 U. S. 69, 79, 61 S. Ct. 924, 930, 85 L. Ed. 1193; Snowden v. Hughes, 321 U. S. 1, 11, 64 S. Ct. 397, 402, 88 L. Ed. 497. For the Fourteenth Amendment leaves the States free to distribute the powers of government as they will between their legis lative and judicial branches. Dreyer v. People of State of Illinois, 187 U. S. 71, 83-84, 23 S. Ct. 28, 32, 47 L. Ed. 79; Soliah v. Heskin, 222 U. S. 522, 524, 32 S. Ct. 103, 56 L. Ed. 294; Erie R. Co. v. Board of Public Util. Com’rs, 254 U. S. 394, 413, 41 S. Ct. 169, 172, 65 L. Ed. 322; Prentis v. Atlantic Coast Line R. Co., 211 U. S. 210, 225, 29 S. Ct. 67, 69, 53 L. Ed. 150; Keller v. Potomac Elec. Power Co., 261 U. S. 428, 443, 43 S. Ct. 445, 448, 67 L. Ed. 731. “[R]ights under that amendment turn on the power of the state, no matter by what organ it acts.” State of Missouri v. Dockery, 191 U. S. 165, 170-171, 24 S. Ct. 53, 54, 48 L. Ed. 133, 63 L. R. A. 571.

It is not for this Court to deny to a State the rights, or even to question the desirability, of fitting its law “to a concrete situation through the authority given * * * to its courts.” Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc., supra, 312 U. S. at page 297, 61 S. Ct. at page 557, 85 L. Ed. 836, 132 A. L. R. 1200. It is particularly important to bear this in mind in regard to matters affecting industrial relations which, until recently, have “been left largely to judicial lawmaking and not to legislation.” Carpenters & Joiners Union of America, Local No. 213, v. Ritter’s Cafe, supra, 315 U. S. at page 724, 62 S. Ct. at page 808, 86 L. Ed. 1143. In charging its courts with evolving law instead of formulating policy by statute, California has availed itself of the variety of law-making sources, and has recognized that in our day as in Coke’s “the law hath provided several weapons of remedy.” Coke, The Compleat Copy-holder §9 in Three Law Tracts (1764). California chose to strike at the discrimination inherent in the quota system by means of the equitable remedy of injunction to protect against unwilling submission to such a system. It is not for this Court to deny to California that choice from among all “the various weapons in the armory of the law.” Tigner v. State of Texas, 310 U. S. 141, 148, 60 S. Ct. 879, 832, 84 L. Ed. 1124, 130 A. L. R. 1321.

The policy of a State may rely for the common good on the free play of conflicting interests and leave conduct unregulated. Contrariwise, a State may deem it wiser policy to regulate. Regulation may take the form of legislation, e. g., restraint of trade statutes, or be left to the ad hoc judicial process, e. g., common law mode of dealing with restraint of trade. Either method may outlaw an end not in the public interest or merely address itself to the obvious means toward such end. The' form the regulation should take and its scope are surely matters of policy and, as such, within a State’s choice. If because of the compulsive features inherent in picketing, beyond the aspect of mere communication as an appeal to reason, a State chooses to enjoin picketing to secure submission to a demand for employment proportional to the racial origin of the then customers of a business, it need not forbid the employer to adopt such a quota system of his own free will. A State is not required to exercise its intervention on the basis of abstract reasoning. The Constitution commands neither logical symmetry nor exhaustion of a principle. “The problems of government are practical ones and may justify, if they do not require, rough accommodations, — illogical, it may be, and unscientific.” Metropolis Theatre Co. v. Chicago, 228 U. S. 61, 69-70, 33 S. Ct. 441, 443, 57 L. Ed. 730. A State may “direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed.” Central Lumber Co. v. State of South Dakota, 226 U. S. 157, 160, 33 S. Ct. 66, 67, 57 L. Ed. 164. See also Lindsley v. National Carbonic Gas Co., 220 U. S. 61, 81, 31 S. Ct. 337, 341, 55 L. Ed. 369, Ann. Cas. 1916C, 160; Keokee Consolidated Coke Co. v. Taylor, 234 U. S. 224, 227, 34 S. Ct. 856, 58 L. Ed. 1288; Miller v. Wilson, 236 U. S. 373, 384, 35 S. Ct. 342, 344, 59 L. Ed. 628, L. R. A. 1915F, 829; Farmers & Merchants Bank of Monroe, N. C. v. Federal Reserve Bank, 262 U. S. 649, 661-662, 43 S. Ct. 651, 656, 67 L. Ed. 1157, 30 A. L. R. 635; James-Dickinson Farm Mortgage Co. v. Harry, 273 U. S. 119, 125, 47 S. Ct. 308, 310, 71 L. Ed. 569; National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, 46, 57 S. Ct. 615, 628, 81 L. Ed. 893, 108 A. L. R. 1352. Lawmaking is essentially empirical and tentative, and in adjudication as in legislation the Constitution does not forbid “cautious advance, step by step, and the distrust of generalities.” Carroll v. Greenwich Insurance Co., 199 U. S. 401, 411, 26 S. Ct. 66, 67, 50 L. Ed. 246.

The injunction' here was drawn to meet what California deemed the evil of picketing to bring about proportional hiring. We do not go beyond the circumstances of the case. Generalizations are treacherous in the application of large constitutional concepts. Affirmed.

Mr. JUSTICE BLACK and Mr. JUSTICE MINTON are of the opinion that this case is controlled by the principles announced in Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 684, and therefore concur in the Court’s judgment.

Mr. JUSTICE REED,

concurring.

I read the opinion of the Supreme Court of California to hold that the pickets sought from Lucky Stores, Inc., discrimination in favor of persons of the Negro race, a discrimination unlawful under California law. Such picketing may be barred by a State, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 684.

Mr. JUSTICE DOUGLAS took no part in the consideration, or decision of this case.

      . The range of policy in proscribing or permitting picketing for various ends is illustrated by a recent bill against picketing of courts passed by the New York State Legislature but vetoed by Governor Dewey. See N. Y. Times, Apr. 11, 1950, p. 21, Col. 1.


author: By WATTERS, J.

text:
    SCHMIDT et, Plaintiffs, v. WESTON et, Defendants.
    Common Pleas Court, Summit County.
    No. 170016.
    Decided April 19, 1950.
    Lody Huml, Cleveland, for plaintiffs.
    Buckingham, Doolittle & Burroughs, Akron, for defendants.
   OPINION

By WATTERS, J.

The plaintiffs, John Schmidt and Mary Schmidt, bring this action to reform a written real estate purchase contract made with the defendants, Henry C. Weston and Mary H. Weston, and dated October 14, 1946. Plaintiffs also ask damages for breach of the contract as reformed.

At the end of opening statements, the defendants moved for judgment on the theory that plaintiffs having prosecuted an action in this court against the same defendants for specific performance of said contract, through this court, the Court of Appeals of this District, on a trial de nova, and to final judgment in the Supreme Court, where no reformation was asked, and where judgment in all the courts was against the plaintiffs, they are now estopped to ask reformation and damages, they having elected to sue on the contract as it was, and the matter is res ad judicata.

Attention is called to the full decision of this previous case in 150 Oh St, 293, where the parties were identical.

There is no doubt in the court’s mind that the plaintiffs originally could have asked reformation and specific performance, or they could have sued for reformation and damages for the breach of said contract as reformed. The courts hold that if specific performance cannot be granted for some reason, the court can grant damages.

However they did not do so, but elected to sue for specific performance on the contract as it was. No reformation was asked even in the Court of Appeals, where the matter was tried de nova. Through all the courts the plaintiffs relied specifically and fully on the contract as it was, and sought no reformation thereof.

In my opinion they are now estopped to seek reformation and damages for breach of the contract as reformed, having elected to sue on the contract as it was for specific performance.

In Mitchell and Mitchell v. Aetna Insurance Company, 4 Ohio Nisi Prius, 386, the court discusses this problem and cites many cases supporting the court’s opinion. ■ There, however, the court held that where plaintiff sued on the policy as it was, and then the case was reversed in the Court of Appeals, and sent back to the trial court for retrial, it was not too late then for the plaintiff to amend before the second trial in the trial court, so as to ask reformation of the policy. The court clearly indicated that if the suit had gone through to final judgment on the contract as it was, plaintiff could not thereafter ask reformation, but the matter being reversed and sent back for trial, it was not final judgment and that plaintiff could amend to ask reformation of the policy.

See Washburn v. Great Western Insurance Co., 114 Mass. 175. Steinbeck v. Relief Association, 12 (Hun) N. Y. 640, or 19 Sup. Ct. Rep. N. Y. page-. (Same case)

These above cases are discussed in 4 Ohio Nisi Prius above.

See also 1 Oh Ap 384, Lee v. Thoma, and 10 O. C. C. (N. S.), 167, Zutterling v. Drake.

In this case the court said in the opinion — “Under the contract in this case plaintiff originally had two remedies for the enforcement of their rights against the defendant. One was an action on the contract for specific performance; the other was a suit at law for damages. -They could not assert both.” (Emphasis by the court.)

The first syllabus reads “An election between remedies can be made but once, and where a plaintiff has chosen to ask for specific performance he can not subsequently maintain a suit for damages.”

In the above case plaintiffs filed for specific performance, and later for damages. The specific performance suit was dismissed without prejudice while the damage suit was still pending. Later the specific performance suit was reinstated. The court held that was proper and plaintiff could maintain it as the real election was the filing of the original specific performance action.

In 1 Oh Ap, 384, Lee et al v. Thoma, the syllabus reads as follows:

“An action for specific performance is a bar to a subsequent action for damages alleged to have been sustained through failure of the defendant to carry out the contract which forms the basis of the first suit.”

This case cites with approval 10 C. C. (N. S.) 167 discussed above.

Steinbeck v. Insurance Company, 12 (Hun) N. Y. 640, was an action brought upon an insurance policy, apparently at law, which went to final judgment for the insurance company, defendant. Thereafter plaintiff filed suit to reform the policy in equity. The court said:

“Having sued upon the contract in its present form, and produced and proved the contract, as the contract between the parties, in a court of competent jurisdiction, by which a final judgment has been pronounced against his right ta recover, he is is debarred from showing in a new suit, in a court of equity, that the contract actually made between the parties was different from the written one sued upon and proved in the former action.”

To the same effect see Washburn v. The Great Western Insurance Company. This was a suit in equity to reform a. policy. The court held in substance that the former action tried and judgment at law against the plaintiff, who sued on the policy, was a bar to the suit in equity to reform, and that plaintiff had conclusively elected to consider the policy as expressing the true contract between the parties.

The court feels that plaintiff cannot now seek reformation and damages for breach after having elected to pursue their remedy for specific performance on the contract in its present-form through all the courts.

The motion will be sustained and judgment entry drawn, accordingly with exceptions to plaintiffs.


author: By ROSS, PJ.:

text:
    BURCHAM, Plaintiff-Appellant, v. CONEY ISLAND, INC., Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 7170.
    Decided November 21, 1949.

      John M. McCaslin, Jr., Cincinnati, for plaintiff-appellant.
    Rendigs & Fry, Robert M. Dennis, Cincinnati, for defendantappellee.
   OPINION

By ROSS, PJ.:

This is an appeal from a judgment of the Court of Common Pleas of Hamilton County, in which a judgment of the Municipal Court of Cincinnati for the plaintiff was reversed on the ground that such judgment of the Municipal Court of Cincinnati was against the manifest weight of the evidence.

The Court of Common Pleas in its judgment then proceeded to enter final judgment for the defendant.

This latter action of the Common Pleas Court can only be sustained if—

(1) No cause of action was alleged or shown to exist by some substantial evidence, or

(2) That the defendant sustained in this case the defense of contributory negligence by uncontroverted evidence.

If this latter action of the Court of Common Pleas can be sustained on either of these grounds, then its action upon the weight of the evidence need not be considered.

The case was tried to the court without a jury.

In the Bill of Particulars the plaintiff alleges that the defendant “operates an amusement park with a parking lot adjacent thereto” that “he delivered his motorcycle to defendant’s agents for the purpose of keeping it while plaintiff was abent in the amusement park,” that plaintiff paid a consideration of ten cents therefor, that upon his return to the parking lot he demanded his motorcycle and the defendant refused or failed to return it to him. Judgment is prayed for in the amount of $750.00.

By stipulation, the value of the motorcycle was agreed to be $650.00, and this was the amount of the judgment rendered against the defendant.

In effect, the defense was a general denial.

The evidence must be construed most favorably to plaintiff upon consideration of the right of the Court of Common Pleas to render final judgment.

Plaintiff, the only witness in his behalf, testified that he drove in the park, paid ten cents admission and ten cents for the motorcycle and “we were motioned down the fence,” that he drove the motorcycle down the fence and parked there “and as we were going by I asked the cop or the policeman if he would watch the motorcycles and he said yes, as he had a number of times before and we went on into the park and watched the fireworks and we came back and I couldn’t see my motorcycle, and I went up to the cop and asked where my motorcycle was, and he said two fellows rode out on the motorcycle before; and I asked him if he seen the motorcycle and if he got down close to look. He said no — he just noticed two motorcycles go out.”

It appears from the undisputed evidence that the “cop” is employed by the amusement company to preserve order in the amusement park, that he is stationed at a point constituting the entrance from the amusement park to the parking lot which is capable of accommodating one thousand automobiles and fifteen motorcycles, that a small area is set apart for the latter, that no ticket or receipt is given for any vehicle and no specific spot in the area is allotted to any vehicle, that owners of automobiles or motorcycles may lock their vehicles or not, as they choose, that plaintiff’s motorcycle could not be locked, because the ignition lock was broken, but he could have rendered it useless as a vehicle by removing a part of the mechanism, but that he took no precaution of any kind to protect it against theft other than to ask the “cop” to watch it.

The undisputed evidence further shows that no employe of the defendant was authorized in any way to assume responsibility for any vehicle and had no authority to do anything except to designate the. general areas in which motor vehicles could be parked by their owners.

The plaintiff testified that the park policemen had in the past several times agreed to “watch the plaintiff’s motorcycle as he did in the instant case.”

From the evidence it is clear that such policeman was in a different class from the regular parking lot attendants. He was dressed in a different manner, and, although stationed near the entrance from the amusement park to the parking lot, took no part in the parking except to indicate the general locality in which motorcycles were to be placed. The plaintiff stated that he knew where this area was located, having placed his motorcycle there on previous occasions, and that he chose the particular spot in which to park it.

The plaintiff stated “The lock was broke. I could have fixed it so it couldn’t run, but I didn’t have any idea it would be ■stolen out of the parking lot.”

In view of this statement, it is strange why he should have .asked the “cop” to watch it. The park policeman denies he was so requested. From the record, outside of a mere wave ■of the hand toward the area set aside for motor vehicles by .a park policeman as distinguished from a parking lot attend.ant, stationed at the entrance to the parking lot from the .amusement park, there is not the slightest indication that the policeman had anything to do with the parking of any .motorcycle. It must have been evident to any reasonable person that he had no connection with the parking lot. The .plaintiff put his motorcycle where he wanted to in the .general area, and he used no precaution of any nature to .prevent its theft. It was after he had so deposited the motorcycle and left the parking lot that he requested the amusement park policeman to “watch” it. It must be considered that under these circumstances that if he did request the park policeman to “watch” his motorcycle as ■distinguished from fifteen others, that the acquiescence of the policeman must be considered as a personal favor to the plaintiff and that there was not the slightest foundation, based upon the conduct of the defendant or its employes, justifying the conclusion that such agreement by the policeman was within the scope of his employment. All the ■evidence points to the contrary conclusion.

Certainly the plaintiff had no reasonable ground to suppose that the park policeman would devote his entire time in guarding the safety of the plaintiff’s motorcycle in total •disregard of his other obvious duties. Just what the plaintiff expected by the use of the word “watch” is not clear.

There is no evidence to indicate either a definite contract ■of bailment as alleged by plaintiff in his bill of particulars, or the existence of acts or conduct upon the part of the defendant or its employes justifying a reasonable person in believing that such an obligation of bailment was assumed.

When the owner of a motor vehicle drives it into a parking lot, he must be aware that more than one relationship between the operator and himself may be created. The owner may ■be merely interested in securing a place to leave his vehicle, or he may also wish to secure its safety. It is only reasonable to require the owner of the vehicle to use reasonable measures to insure the acceptance of responsibility by the operator of the parking lot if the added burden of bailment is desired ■by the owner.

In Ins. Co. v. Constantine, 144 Oh St, 275, it is stated in. the syllabus:

“Whether the relationship between a driver who offers, and a parking lot operator who accepts a motor vehicle for the purpose of parking, is that of bailor and bailee or of lessor and lessee, depends upon whether the parking lot operator assumes control over and custody of such vehicle, or simply grants permission to park the vehicle at a designated place upon the parking lot.”

The judgment of the Court of Common Pleas in rendering-final judgment for the Defendant is affirmed.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur in syllabus, opinion & judgment.


author: By HORNBECK, J: By THE COURT:

text:
    INDEPENDENT DIRECTORY CORPORATION, Plaintiff-Appellant, v. VANDENBROCK, Individually, d. b. a. General Engineering Service, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2049.
    Decided January 5, 1950.
    Shaman, Winer & Shulman, A. Paul Ziegler, of Counsel, Dayton, for plaintiff-appellant.
    Scharrer, Scharrer & Hanaghan, Ralph Hanaghan, of Counsel, Dayton, for defendant-appellee.
   OPINION

By HORNBECK, J:

The appeal is from a judgment of the Municipal Court of Dayton, which “finds for the defendant, and against the plaintiff, and finds that the allegations set forth in the Statement of Claim were not sustained by evidence, as provided by law” and dismissing the Statement of Claim.

Performance of the contract on the part of the plaintiff is established, signature of defendant is admitted, as is the refusal to pay the contract price for the advertising.

At the inception of the trial counsel for defendant dictated his answer in the record which consisted of three defenses: (1) A general denial; (2) No meetings of the minds of the parties to the contract; (3) The contract was obtained by means of trickery, artifice and fraud. The judgment is predicated on the establishment of the second defense.

Six errors are assigned to the judgment, the second, third and fifth of which are, without discussion, overruled. They are, (2) Errors in the admission of testimony; (3) Errors in reserving decision on certain objections made by counsel for plaintiff; (5) That “the court was influenced by a feeling of prejudice and bias which was instilled by a local business bureau.” The errors presented which we consider are that the judgment is not supported by and is contrary to the evidence.

Although the trial judge by his opinion finds that no fraud was practiced by the plaintiff, this finding is not carried into the journal entry. We, therefore, give some consideration to this question of fraud because the trial judge in his opinion concluded that there was artifice and deception practiced by the plaintiff although the court did not characterize it as fraud.

The defendant first states without qualification that he “did not read the form before signing and did not know that the form called for advertising.” Later he said,

“The form is almost a duplicate of the other copy form so I figured 1 was signing a copy, authorizing this advertisement for the paper that I had signed up for and I figured I was merely okaying this copy. I didn’t read the entire thing. I saw Industrial Directories, Chicago, Midwest and Central States and I just signed it, thinking I was okaying the copy that they had sent me. The reason I didn’t question it was that I had asked for ‘a copy of this to to be returned to me. I had received two of these and had okayed them and everything was fine. I received the third one and I thought it was just' another one and I signed the thing and then I get the fourth one and I immediately knew something was wrong but I had no copy of anything to check with.”

It appears that defendant had placed one ad each with Industry Directory Publishers, Philadelphia and Detroit, and Bell Publishers at New York. When the form of contract of plaintiff came to the defendant he had theretofore received two copies of his ad for okay from two of the publishers with which he had placed it. Which publishers had sent the ad to him does not appear. Neither does the form of the contract which defendant signed with the other publishers appear.

The plaintiff in its form had taken a copy of one of the ads of defendant from one of the other publications, pasted it on the form of contract tendered defendant and mailed it to him as a part of the solicitation for his business. That this procedure is commonly followed by many leading publishers is testified to and not denied. The contract under consideration was negotiated and consummated entirely by mail. All of its terms are written. Had the defendant read the contract which he signed, this is what he would have found, not in small type but in average size type, easily readable:

COPY AND AUTHORIZATION FORM

Must Be Signed By Firm Member or Authorized Agent

Attached copy appears in another publication and this form is not a renewal or proof but if signed and returned is an authorization to publish an advertisement in Our Directory. If further information is required, please write.

Cost for One Year_____________________Sixty Dollars

In Space of _________________ One Half Inch S. C.

Classification ________________________________ Tools

Then follows the copy of an ad which defendant published in three other directories.

SIGN AND RETURN THIS ORDER FORM

To Insert Representation In Next Issue’ of This Directory. Independent Directory Corp., Publishers

You are hereby authorized to insert representation for us, using wording or copy similar to attached adv. in the next annual issue of your Classified Industrial Directory distributed to 40,000 Manufacturers & Industrial Buyers in the Midwest & 'Central States and bill us for same on publication.

If there is artifice, trickery or fraud it must be found in the form of the contract. It is fair to say, that the one thing on the contract form which misled the defendant was the use of the copy of the advertisement which he had placed with the Directories other than the plaintiff. As to the use of this copy, the defendant, had he read the form, would have seen the purpose for which this ad was used as follows:

“Attached copy appears in another publication and this form is not a renewal or proof but if signed and returned is an authorization to publish an advertisement in Our Directory.” (Emphasis ours.)

The language is plain and simple as possible to make it. The defendant was told, if he had read what was placed before him, that the plaintiff also wanted to print an ad in form .and content just as was being printed and carried in other publications from one of which the ad had been clipped.

Much is said in the briefs about the use of the word “Industrial” throughout plaintiff’s contract, and that it was confusing because it was also a part of the title of two of the •companies with which defendant had placed his ad. The word “Industrial” in plaintiff’s contract was used as a part •of the general term “Classified Industrial Telephone Directories.” All four of the companies seeking the defendant’s business were publishers of such directories. How many more there are in the United States does not appear in this record. The name of the plaintiff company, boxed plainly, appears at the very top of the form and again with its full adress in Chicago in heavy type. The name is not strikingly similar to either of the names of the other companies with which defendant contracted.

It is manifest, and apparently plaintiff attempted to stress the fact, that it knew that the defendant was carrying his .ad in a competing publication but it can not be said, and there is no proof, that it knew that at the time he received the solicitation for the contract he was then expecting a proof of the ad from one of the firms with which he had contracted. This is the situation which caused the mistake conr ■cerning which defendant complains. It is non sequitur to ■contend that for anything that appears in this record the plaintiff could reasonably have anticipated that the situation which defendant says caused him to sign the contract would have occurred.

What was the obligation enjoined upon the defendant before he may say that he has a good defense to the action upon the executed contract which he signed? It is somewhat unusual that a court at this late day should have to repeat, that one who signs a contract without first making a reasonable effort to learn what is in it may not in the absence of fraud, or mutual mistake, avoid the effect of such contract. B. & O. Ry. Co. v. Bing, et al., 89 Oh St 92.

A succinct statement of the law is taken from Judge Davis’ opinion in McAdams v. McAdams, 80 Oh St 241, quoting from the language of Mr. Justice Hunt in Upton, Assignee v. Tribilcock, 91 U. S. 50:

“It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they are written. But such is not the law. A contractor must stand by the words of his contract; and, if he will not read what he signs, he alone is responsible for his omission

Business men, of all persons, should be the last to urge that this rule of law be relaxed for in it is embodied a principle which protects them in their contractual relations with their customers.

Upon a minute and searching examination we find nothing whatever about the composition, appearance or subject matter of the form upon which is found the contract signed by the defendant which would have a tendency to mislead any person of average intelligence, if he would read it.

Upon the test to be applied to determine when mistaken identity may be asserted to reform a written contract, 3 Pomeroy Equity Jurisprudence, 5th Ed., page 388, par. 870, has this to say:

“It is a rule that a contract will not be reformed for a unilateral mistake, nor does such mistake, of itself, render the transaction voidable. However, equitable relief by rescission may be given if the mistake relates to a material feature of the contract, if it is of such grave consequence that enforcement of the contract as made will be unconscionable, if it occurred notwithstanding the exercise of ordinary diligence by the party making the mistake and if the other party can be put in statu quo.”

The emphasized parts of the rule preclude the defense of mistaken identity here. The trial judge found no fraud proven. Neither can we. These two defenses failing, there is nothing left to support the judgment and as the plaintiff 'made full proof of its case, the finding and judgment should have been for the plaintiff as prayed.

We briefly consider some of the authorities cited by appellee and commented upon by the trial judge.

Toledo v. Schulters, 11 O. C. C. 528 (536) is cited for the proposition that the facts and inferences to be drawn from the testimony support a finding either of fraud or mistaken identity. The case presents neither element. It treats of a situation of mutual mistake in the description in a deed. The court found that both parties acted upon a plain misunderstanding. It does- not touch the principle that negligence on the part of. the mistaken party will prevent rescission for a unilateral mistake.

Ashland Towson Corp. v. Kaunic, 110 Pa. Sup. Ct. 496, 501, and Surochi v. Ball, 160 Pa. Sup. Ct. 349, 352, consider contracts, one of which was found to have been fraudulently prepared and the other described as “machinations of the designedly wicked.”

9 O. Jur. 275 is a general statement that “If by reason of mistake a party contracts with another person in the belief that he is contracting with another the contract may be avoided.” Patently,'this is a statement that is too broad. Supporting the text is cited School Sisters v. Kusnitt, L. R. A. 1916D, 801, and annotation. This authority has been questioned but there the defendant in placing the contract under consideration believed, and had good reason to believe, that it was dealing with another than the plaintiff “and that this belief was induced by the conduct of Dietrick, the agent of the appellant.” The inducement to the contract involved many oral misrepresentations by the agent of the plaintiff company. The facts are extended but the conclusion of the court is well supported.

In The Arthur Coal and Coke Company v. Pittsburg Coal Company, 17 O. C. C. N. S. 491, it was held that the contract did not come into existence for want of assent of the vendee by reason of mistake as to the identify of the vendor. The charge of the court states the facts upon which the judgment must have been predicated. The court charged, page 492 of the opinion:

“that notwithstanding the selling agent, * * *, may have been in fact acting for plaintiff’s assignor in making the contract, yet, if he did not so inform the defendant, and if the defendant in good faith supposed and believed it was contracting with a company with which it had previously dealt, and, which was indebted to it, the situation would be that the minds of the parties never met in respect to a material part of the contract.”

Decided January 27, 1950.

The emphasized parts of the charge mark some of the differences in the cited and instant case. Here, the plaintiff clearly in its proposal informed the defendant as to its identity and as to the subject matter of the contract. The court in the cited ease stressed the fact that the vendee’s right of set-off was involved as a material part of the contract. This ease in no sense relieves a person who is claiming the benefit of a mistake from exercising ordinary diligence to avoid the mistake which caused him to act to his disadvantage.

The trial judge was also of opinion that plaintiff may have misconceived its cause of action because in April, 1945, the contract having been signed in September, 1944, the 40,000 copies of the publication had not been placed in the mail. This development alone is insufficient to show that at the time the defendant undertook to rescind the contract the plaintiff had it in its power to reduce the cost of the publication to the defendant.

Judgment of the trial court reversed and cause remanded with instructions to enter judgment for the plaintiff on its petition, as prayed, with costs.

MILLER, PJ, and WISEMAN, J, concur.

ON APPLICATION FOR REHEARING

No. 2049.

By THE COURT:

We- have an application for rehearing, together with a letter from Mr. Vandenbrock presenting argument why we should reverse the conclusion reached in our opinion.

Our rules now make no provision for applications for rehearing and there is nothing in the application or the ietter which presents any question, of substance, which we did not fully consider in our former opinion.

The defense of the appellee was most capably presented both in the trial court and in this Court. Counsel urged and briefed every defense that could possibly have been interposed upon the facts adduced at the trial.

It is urged on the application that the trial court erred in not admitting testimony from other advertisers who had contracted with the plaintiff to the effect that they, too, had been misled by the form of the contract presented to and signed by them. We directed attention in our former opinion to the fact that the trial judge did not, as appeared by his written opinion, find any fraud of the plaintiff established. However, we discussed and analyzed the defense of fraud. Other similar acts are admissible in fraud cases if they have the effect of showing the intent with which the fraudulent act was committed. However, such similar acts are only admissible when and if there is basic proof of conduct or representation, which in itself may be found to be fraudulent. U. S. Life insurance Co. v. Wright, 33 Oh St 533. The first element of fraud is that there be a representation made as a statement of fact and that it was untrue. Until this is established another element, namely that the mis-statement was made with intent to deceive, is of no concern.

The trial judge was logical in refusing to admit the testimony proffered by other advertisers.

Although this question is not properly presented we have considered it. Sec. 12223-1 GC, Rule 7, Rules of Practice; 81 Oh Ap xliii.

In the letter, it is argued that there was collusion between one of the companies with which defendant had placed his ad and the plaintiff, in that the copy of the ad was a proof from one of the companies with which defendant had contracted. That there was collusion is purely conjectural, but that the copy was taken from another directory is testified by the secretary of plaintiff and by the defendant. The contract which defendant signed will bear no interpretation that any part of it was tendered to the defendant as a proof. On the contrary, it was stated that it was a copy which “appears in another publication and this form is not a renewal or proof but, if signed and returned, is an authorization to publish an advertisement in our directory.”

We have never doubted the claim of the defendant that he was misled by the form of the contract which he signed, but that fact is insufficient as a legal defense because he failed to exercise that degree of care and attention which was enjoined upon him before placing his name on the contract.

The application will be denied.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.


author: By THE COURT:

text:
    MAXFIELD, Plaintiff-Appellee, v. BRESSLER, Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7187.
    Decided December 12, 1949.
    Wm. J. Wise, L. W. Scott, Cincinnati, for plaintiff-appellee.
    Charles B. Terry, Fred L. Hoffman, Cincinnati, for defendant-appellant.
   OPINION

By THE COURT:

(1) This case originated in the Municipal Court of Cincinnati, from which it was appealed to the Court of Common Pleas of Hamilton County, Ohio. While it was pending in that court it was discovered that through inadvertence the bill of exceptions had been filed and stamped in the Court of Appeals, and given the number of a prior appeal of this case to this court. Upon discovery of the error, the defendant-appellant moved the Common Pleas Court for an order for leave to file the bill of exceptions in this case in the Common Pleas Court. The court granted this motion. It is urged in this court that the Common Pleas Court erred in this rqspect and that neither that court nor this court can consider any errors requiring a reference to the bill of exceptions.

The bill of exceptions having been duly filed, settled, and certified to by the trial judge, and notice of appeal to the Common Pleas Court having been duly filed, the time of filing the bill of exceptions in the Common Pleas Court on appeal rested within the sound discretion of that court. We find no ground for disturbing the action of that court in granting leave to file it and considering it on appeal. We will consider it as one of the original papers on this appeal of the case from the Common Pleas Court.

(2) At the first trial of this case the Municipal Court entered' judgment for the defendant on the ground that the contract was unenforceable under the laws of Kentucky, because the plaintiff had not been licensed by that state as an architect, and the action was to recover for preparation of plans for a building located in that state. On appeal to this court, this judgment was reversed on the ground that in our view the Kentucky statutes were inapplicable. Maxfield v. Bressler, 55 N. E. (2d.) 424, 38 Abs, 555. The defendant-appellant urges errors based on the applicability of the Kentucky statutes and cites the same cases as were under consideration on the first appeal. We adhere to our original conclusion and find the trial court committed no error in ruling on the second trial in conformity thereto.

(3) The next assignment of error is that the court erred in sustaining the plaintiff’s demurrer to the fourth defense, contained in the defendant’s fourth amended statement of defense. In that defense, the defendant alleged that the plaintiff made certain false representations as to his ability as an architect, but there was no allegation that the defendant relied on them in entering into the contract. The court, for that reason, was justified in sustaining the demurrer. The fact that the statement ended with a general denial did not prevent the sustaining of the demurrer, for the reason that after eliminating the fourth defense, there still remained four general denials in the fourth amended answer. Furthermore, the defendant filed a fifth amended statement of defense, in which were reiterated substantially all the allegations of this defense.

(4) The defendant-appellant contends that the plaintiffappellee was not a party to the contract sued upon and, therefore, cannot recover in this action, even though she may have a cause of action on a different contract. This contention arises from the fact that the plaintiff-appellee alleged in his bill of particulars that the contract was in writing and attached a copy. The signatures to this copy and the original which was introduced in evidence are the plaintiff-appellee’s and Woodrow Bressler’s, a son of the defendant-appellant. However, all the essential terms of the contract are alleged in the bill of particulars, and in the contract the contracting party other than the plaintiffappellee is described as the owner for whom the services were to be performed and it was the owner who agreed to pay the architect’s fee and perform all the other promises forming the consideration for the plaintiff-appellee’s promises.

There is no contention that the law required this contract to be evidenced by writing signed by the party to be charged. There was, therefore, no necessity to allege that it was in writing and the allegation may be disregarded as surplusage. Indeed, even where the law requires a contract to be evidenced by a written memorandum signed by the party to be charged, it is not necessary for the pleader to allege that the contract sued on was in writing. 9 O. Jur., 618.

And at the trial it was sufficient for the plaintiff-appellee to prove that the defendant-appellant had entered into a contract with him embodying the terms alleged. This proof could consist not only of oral testimony but also unsigned written memoranda or written memoranda signed by another, if proper foundation is laid.

Of course, the parol evidence rule excluding all prior and contemporaneous negotiations on the same subject only applies between parties who have integrated their contract into a writing, but that does not mean that an unsigned memorandum or one signed by another has no evidential value.

It seems clear that the defendant-appellant was the party with whom the plaintiff-appellee contracted. She was the owner of the land and she contracted for the erection of the building. The contracting party is described as the owner in the writing signed by plaintiff-appellee and Woodrow Bressler. A reading of the defendant-appellant’s testimony is sufficient to conclusively identify her as the contracting party and her testimony is corroborated by all the facts and circumstances. She was asked this question: “What if anything was said about who the' contract would be with?”, and she answered: “With me.”

(5) We are also of the opinion that there is sufficient circumstantial evidence that Woodrow Bressler was authorized to act for his mother in negotiating with the plaintiff-appellee, and that his mother adopted the contract as her own after it was entered into. Therefore, both by prior authorization and subsequent ratification, she became bound by it. We find no substantial error in admitting this evidence.

(6) Error is claimed in that the court unduly limited the defendant in the introduction of evidence and in the interrogation of witnesses. The extent of examination rests largely in the discretion of the trial court and we find no abuse of that discretion in this case.

(7) It is claimed that the court erred in giving certain special charges, mostly on the ground that they were abstract. Perhaps the court would have been justified in refusing to give them on that ground, but having given them, the question before this court is whether they are correct statement of law — and we find no substantial error in them. Nor do we find the other criticisms valid.

(8) We have examined the special charges requested by defendant-appellant. We find these charges inapplicable to the case as proven.

(9) Refusal to submit certain special interrogatories to the jury is assigned as error. From what we have already said our view of the essential nature of this case is manifest. When the non-essentials are cleared away, there is very little left beyond the proof of the entering into the contract by the defendant-appellant and its terms and substantial performance by the plaintiff-appellee. These interrogatories had no substantial evidence to support them or related to immaterial matters.

(10) We find no prejudicial error in the general charge. The reference to a possible “compromise” among the jurors on the amount is unusual and not to be recommended, but there is no suggestion of a “quotient” verdict and the court told the jury clearly that the verdict must be one “in which you all concur.”

We are of the opinion that substantial justice has been done in this case.

For these reasons, the judgment is affirmed.

ROSS, PJ, HILDEBRANT & MATTHEWS, JJ, concur.