author: FARR, J:

text:
    VASSOS v. STATE
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Nov. 4, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    661. INTOXICATING LIQUOR — 49. Affidavits.
    Not necessary, in affidavit charging violation of 6212-15 GC., to set out name of person to whom sale is made.
    Error to Common Pleas.
    Judgment affirmed.
    N. M. Kaufman, Youngstown, for Vassos.
    R. L. Thomas, Youngstown, for State.
    STATEMENT OF FACTS
    On the 10th day of May, 1927, an affidavit ' was filed in the Court of Common Pleas of this county, charging the plaintiff in error with the offense of selling intoxicating liquor contrary to provisions of 6212-15 GC. The cause came to be heard in the court below and the accused filpd a motion to quash the affidavit upon the ground that the name of the person to whom the intoxicating liquors were alleged" to have been sold was not set out in the affidavit. This motion was overruled, and. the cause went to trial and resulted in a finding and judgment of guilty. Error is prosecuted on the ground that the trial court erred in overruling the motion to quash.
   OPINION OP .COURT

The following is taken, verbatim, from the opinion.

FARR, J:

The one vital issue in this case is whether or not, in such an affidavit, it is necessary to set out the name of the person to whom the sale is made.

It becomes readily apparent, from Sec. 6212-15 GC., that the offense is a “sale” of intoxicating liquor, regardless of to whom made. As reflecting upon the issue involved here, the case of Schoenung v. State, 16 App., 65, is. of interest, where this precise question was before the court of appeals of Glermont County. In the first paragraph of the syllabus it is held that:

“It is not necessary for* an affidavit charging one with the unlawful sale of intoxicating liquors in violation of Sec. 6212-15 GC., to state the name of the person to whom •the liquor was sold.”

In this connection attention was called by counsel to the opinion of the Circuit Court of Appeals of. the Eighth District, reference to which is made in the United States Daily of Saturday, July 25, 1927, in the case of Jarl v. United States and Monroe v. United States, and one of the issues raised in that case was that the charge did not. state the name of the person to Whom the sale was made, and in discussing that issue the court says, in substance, that reason and common sense would suggest that the name be set out.

It should be observed, however, that this was not the issue upon which these cases turned and, so far as observed, that is the only expression of the court upon that issue, and it must be agreed that the statement is reasonable but by no means decisive of the issue herein.

For the reason given it follows that the judgment of the Court of Common Peas should be affirmed and it is so ordered.

(Pollock and Roberts, JJ., concur.)


source: Caselaw Access Project

author: CUSHING, J.

license: Public Domain

text:
    HATTENDORF et v. CHLOPEK et.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1859.
    Decided Jan. 12, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    787. MORTGAGES — 719. Liens.
    Where stock is placed as security for loan and loan is paid in full, lender not entitled to hold stock for any other purpose.
    Appeal from Common Pleas.
    Findings approved.
    Messrs. Fraser, Hiett, Wall' & Effler, Toledo, for Hattendorf.
    Silas E. Hurin, Toledo, for Chlopek.
   FULL TEXT

CUSHING, J.

The plaintiffs, ón and prior to March 12, 1924, owned the shares of stock in the Toledo Associates Company set forth in the petition opposite their respective names. On said date, they entered into an agreement with Clement F. Souder, by the terms of which they endorsed the stock and delivered it to him, to be by him used as collateral security in addition to a mortgage on certain real estate, for a loan made to him by Anthony J. Chlopek, in the sum of $2,500. When said indebtedness became due, it was not paid, and Chlopek filed an action in the Court of Common Pleas of Lucas County, Ohio, praying for judgment, the foreclosure of the mortgage, and the sale of the stock to satisfy said judgment.

On March 19, 1926, Souder paid Chlopek the $2,500 in question, the interest and the costs of the suit. The mortgage was released and the action dismissed. Chlopek refused to deliver the stock, claiming that he held it as security for $1,000 that he advanced to Souder February 1, 1923.

This action is prosecuted to determine the ownership of the 1794 shares of stock in the Toledo Associates Company; to enjoin Chlo-pek from selling it; to require the defendants to produce said stock in court, and turn it over «to the plaintiffs as the owners; to enjoin the Toledo Associates Company from • transferring- said stock on its books to the defendant Anna Chlopek; and for any and all other relief, to which in equity the plaintiffs may be entitled.

The court of common pleas entered judgment for the plaintiffs. This motion is here on appeal.

The facts are: In January, 1923, Souder wrote to Chlopek, stating that he was organizing a community garage. The last paragraph of this letter is:

"For each hundred dollars you put up I will give you two shares common full paid non-assessable stock that will carry with it the same number of shares of the holding company stock, also no par value full paid and non-assessable common stock. This will give you at the rate of $100.00 par per share $4,-000.00 for $1,000.00.

Chlopek advanced the $1,000.00 on February 1, 1923. At that time it was not claimed that it was a loan. When the loan of $2,500.00 was made, more than a year later, the note was given for the amount of that loan, and nothing was said about the $1,000.00. The mortgage did not contain any reference to the $1,000.00; nor does the record justify us in concluding that there 'was any understanding at the time the stock was delivered as security for the $2,500.00 loan, that it was to be security for said $1,000.00.

Elizabeth Hattendorf owned 575 shares of the stock; Ida M. Hattendorf owned 1,075 shares; Clement F. Souder, Jr., owned 135 shares; and Emma C. Souder was the owner of 7 shares.

The $2,500.00 in question was raised for the purpose of putting on a campaign to sell the stock of the Toledo Associates Company. The note was payable in ninety days.

After the $2,500.00 note was paid, the mortgage released, and the action dismissed, Chlopek, on March 25, 1926, was notified as to the ownership of the stock, and asked to return ii*, which he refuse# to do.

Our conclusion from the record is: The stock was pledged as security for the loan of $2,500.00; and, that having been paid, Chlopek is not entitled to hold' it for any other purpose.

An entry similar to the one entered in the court of common pleas will be entered here.

(Mills, J., concurs.)


author: ALLREAD, J.

text:
    ZIMANSKI v. CURRO & WHITTAKER CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8023.
    Decided January 16, 1928
    First Publication of this Opinion.
    (Ferneding, PJ., Kunkle and Allread, JJ., of the Second Dist., sitting.)
    Syllabus by Editorial Staff.
    829. NEGLIGENCE.
    Rule that defendant owes no duty to child who comes upon premises without invitation held not to apply to machinery left in public street.
    Error to Common Pleas.
    Judgment reversed.
    Messrs. Anderson and Lamb, Cleveland, for Zimanski.
    John H. McNeal, Cleveland, for The Curro & Whittaker Co.
    STATEMENT OF FACTS
    The defendant maintained a trench diggingmachine on East 200th • Street, a public thoroughfare. A watchman was employed and put out lanterns. Three small boys, including the plaintiff, ranging from nine to eleven years of age, were playing ■ around the machine and helped the watchman to put out the lanterns. The watchman then returned to the shanty, which was about one or two hundred yards distant. The machine had a gasoline tank located on rear part about.four feet high, with a faucet or pet cock which turned easily. The boys, in playing around the machine, found said gasoline tank, and turned the faucet or pet cock to obtain gasoline to wash their hands and then, with the aid of a bucket or buckets and a bottle, drew the gasoline and made a fire. One of the boys kicked the bucket and blew the fire upon the plaintiff, causing him to be burned.
    The negligence charged is, “that the defendant in this case was negligent in having this inflammatory and explosive liquid in this place on a public street where children played, and where they had a lawful right to be playing, and in their play they were attracted to this machine and turned out the gasoline, causing this accident. It is claimed that the Company was negligent in not having the machine properly guarded; that there was no watchman there at the time to keep children away; that they were negligent in that they had no sign or any warning upon the tank which contained gasoline; that -they were negligent in that they had no lock or device of any kind upon the stop cock, pet cock, or faucet.”
    The Couit, upon the agreed statement of facts, rendered a judgment in favor of the defendant.
   OPINION OF COURT

The following is taken, verbatim, from the opinion.

ALLREAD, J.

The defendant in error relies upon the case of Railway Co. v. Harvey, 77 OS. 235, which holds that a Railway Company is not liable for injury to a child of tender years who comes upon its premises without invitation and merely by sufferance.

This case is distinguished from the case of Harriman v. Railroad Company, 45 OS. 11, and must therefore be construed strictly.

In the instant case, the injury happened upon a public street, and it calls for a more liberal rule in favor of the child.

In the Harvey case, the child was a trespasser, or at most a mere licensee. In the instant case the child was lawfully upon the street, where it had a right to lie.

The case of Ziehm v. Vale, 98 OS. 306, holds that “the principle of non-liability, applied in the Harvey case, supra, does not apply where the static condition of the premises is made perilous by the active and negligent operation thereof by the owner.”

In the instant case the plaintiff is an infant of the age of eleven years, and the defendant used no care to prevent the children playing on and around the trench digger, or from, obtaining, from the gasoline tank, gasoline kept therein.- A watchman was employed and, with the boys, had placed the lanterns, and then had returned to the shanty some hundred or two hundred yards from the machine, leaving boys evidently playing with the machinery.

The watchman’s duty did not end with the placing of lanterns, duly lighted, around the machinery, but he might be chargeable with a duty to watch the machinery and guard same from use by the children.

We hold that the court erred in taking the case from the jury and deciding the case upon the statement of counsel.

(Ferneding, PJ., and Kunkle, J., concur.)


author: RICHARDS, J.

text:
    MATIS v. WOODRUFF
    Ohio Appeals, 6th Dist., Lucas Co.
    Decided January 16, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    301. contributory negligence.
    Failure of passenger to protest to driver of Automobile against driving into intersection in front of approaching car which passenger saw coming, some evidence of contributory negligence.
    118. AUTOMOBILES — 225. Charge of Court.
    General verdict will not be reversed for error in instructions relating exclusively to one issue, there being no error in other issues.
    Error to Common Pleas.
    Judgment affirmed.
    Messrs. Johnson, Johnson & Farber, Toledo, for Matis.
    Messrs. Doyle & Lewis and Milo J. Warner, Toledo, for Woodruff.
    STATEMENT OF FACTS
    This litigation arises out of an automobile accident. The collision oecured in the day time, and there were no intervening obstacles to prevent* the -occupants of each car seeing the other car as they approached the intersection.
    Elizabeth Mathis, who was plaintiff in the trial court, was a passenger in a Ford car being operated by one Fred Krivak, and was sitting, on the left side of the ear, in the rear seat. This car was proceeding in a southerly direction. The Woodruff car was being driven in a westerly direction, the owner being in the rear seat. The Ford car, as it approached the intersection, had stopped or nearly stopped when 15 or 20 feet therefrom. The Woodruff car was approaching the intersection at about 20 miles per hour, and the occupants of that car who testify say that they saw the Ford car and that it was not moving and was located about 15 feet north of the intersection. The evidence would justify the jury in finding that when the Woodruff car was within 50 or 60 feet of the intersection Krivak, who was operating the Ford car and had seen the line of cars approaching from his left side either started his car or increased its speed to ten or twenty miles an hour, in an attempt to cross the intersection in advance of the Woodruff car. Not only had Krivak seen the Woodruff car approaching, but the plaintiff, Elizabeth Matis, had also seen it while they were standing or slowly moving, just north of the intersection.
   OPINION OF COURT

The following is taken, verbatim, from the opinion.

RICHARDS, J.

Counsel for plaintiff asked the court to instruct the jury that there was no evidence tending to show contributory negligence on her part, and the refusal to give that instruction is assigned as error. Under the circumstances disclosed by evidence it was certainly a question for the jury whether Mrs. Matis was guilty of contributory negligence; whether she ought to have protested to the driver of the car against undertaking-to cross the intersection ahead of the approaching car. The jury may have believed, from the circumstances, that an exclamation or a word from her just before Krivak undertook' to cross, would have caused him to allow his car to remain standing, or to stop if slowly moving, and thus have prevented the collision.

The jury was properly instructed that any negligence of Krivak could not be imputed to her, but in any event her failure to protest against his driving into the intersection in front of the approaching car which she saw coming, was some evidence of contributory negligence to be considered by 'the jury.

We _ find no error to the prejudice of the plaintiff in the general charge of the court. Ten requests were submitted by counsel for plaintiff and asked to be given after the general charge. There were at least two issues in this case, namely: the alleged negligence of the defendants and the claimed contributory negligence of the plaintiff. The jury having-returned a general verdict in favor of the defendants, thereby, found all of the issues in the case against the plaintiff. A finding on either issue for the defendants would have justified a verdict for them, and under the circumstances, a general verdict for the defendants, and judgment thereon, will not be reversed for error in instructions of the court relating exclusively*to one of the issues, there being no error on the other issue.

McAllister v. Hartzell, 60 Ohio St. 69; Jones v. Erie R. R. Co., 106 Ohio St., 408.

We have examined all of the-alleged errors assigned and find none prejudicial to the rights of the plaintiff in error.

(Williams and Lloyd, JJ., concur.)


author: MIDDLETON, PJ.

text:
    SOMMER GUARD. v. WADE
    Ohio Appeals, 4th Dist., Scioto Co.
    Decided January 19, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    615.' HUSBAND AND WIFE — 997. Real Estate.
    1. Husband not entitled to have trust declared for his benefit in property deeded to wife, except on showing of contract to that effect.
    2. Law does not imply such contract or declare resulting trust as result of relationship.
    3. Presumption is that money of husband, going into such real estate, is intended as gift to wife.

      367. DEEDS.
    1. Law does not prescribe time when each part of deed must be written or completed.
    2. If complete when, delivered and alterations and additions made have been with knowledge and consent of grantors, even after deed is signed, but before delivered, deed is good.
    Appeal from Common Pleas.
    Decree for Plaintiff.
    Edgar G. .Miller, Portsmouth, for Sommer.
    Arhtur H. Bannon, Portsmouth, for Wade.
    STATEMENT OF FACTS
    This action is here on appeal and is a suit to quiet title. Lavina R. Wade is the wife of the defendant, Henry G. Wade. It appears that, some time prior to 1925, Lavina R. Wade held the title, in fee simple, to the property described in the petition and that such property appeared in her name on the real estate records of this county. In the latter part of the year naméd, a series of transactions began between the defendant and his wife and Frank E. Bryan and Bessie Bryan his wife. Bryan had married a daughter of Wade by a former wife. In these transactions the property in question was conveyed to Bryan and his wife and re-conveyed by them several times. In January, 1927, the Bryans made a conveyance of said porperty. to the defendant Henry C. Wade and his wife Lavina R. Wade, each to take an undivided one half interest therein. Prior, however, to that time and about August, 1926, the probate court of this county ordered a guardian appointed for the said Lavina R. Wade and three or four months later the plaintiff in this action was duly appointed and qualified.
   OPINION OF COURT

The following is taken, verbatim, from the opinion.

MIDDLETON, PJ.

It is the contention of Henry C. Wade that this property was accumulated by the joint efforts of himself and his wife and that, in the various transactions which oceured during their married life, he contributed some money to their enterprises, although at all times the title to all real estate which was involved in their business was taken and held in the name of Lavina R. Wade. He urges that the property described in the petition as a matter of fact belonged to both him and his wife and that he is entitled to have a trust declared in' that property for his benefit.

The evidence before us is not sufficient to establish the trust he claims. There is nothing to show any contract, between the defendant and Lavina R. Wade, whereby he was to have any interest in the real estate which was conveyed to her by various parties and because of their relation, namely, husband and wife, the law does not imply that such a contract was made, or does it declare a resulting trust. Upon the contrary, by reason of their relation, the presumption is that whatever of his money and means went into this property, he intended his wife to have as a gift. Creed v. Bank, 1 OS. 1; Bernhardt v. Bernhardt, 7 C. C. (N. S.) 517.

There has been some controversy over the deed made on the 21st day of June, 1926. It seems, from the evidence, that when this deed was signed and executed by Mr. Wade it did not contain a description of the lands sought to be conveyed. The testimony of Mr. Millar, who prepared the deed and took the acknowl-edgement, is to the effect that at the time Wade signed the deed it was understood that a description of the land should be procured and at the same time that'Wade should get a description of some other lands which were to be conveyed in another deed; that Wade procured such description of the lands last referred to and brought such description to Mr. Millar’s office, at which time Millar called his attention to the fact that he, Millar, had inserted a description of the lands to be convoyed by the first deed, and that Wade thereupon assented to -what had been done by Mil-lar. We do not regard that deed as having any bearing whatever upon the ultimate rights of the parties to this suit, but inasmuch as it is claimed that the deed is wholly void we have investigated the authorities and are of the opinion that the deed is not void for the reason that there was no delivery thereof until after it was completed. The law is that if a deed is signed, sealed and delivered and a change such as is involved here is made in the deed, nothing can pass by it. But that rule does not go so far as to prescribe the time when every part of a deed must be written or completed. If the defed, when delivered, is a complete deed and alterations and additions made therein have been with the knowledge of the grantors and with their consent, even after they have signed the deed and before it is delivered, it is a good deed.

. The finding must be in favor of the plaintiff and a decree may be entered in accordance with the finding.

'(Mauck, J., concurs. Thomas, J., not participating.)


author: JUSTICE, J:

text:
    KLASS v. KLASS
    Ohio Appeals, 3rd Dist., Putnam Co.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1265. WEIGHT OF EVIDENCE.
    Fact that Court of last resort, on questions of weight of evidence, reverses judgment and, upon second trial, no new testimony is offered, does not impose, on trial judge, duty to withdraw case from jury.
    42. ADVANCEMENTS — 225. Charge of Court.
    Where plaintiff who, as surety, has paid notes of defendant who was 'principle debtor and. defendant’s sole defense is that plaintiff voluntarily paid notes and released him, by way of advancement, from his obligation to repay, plaintiff’s possession or non-possession of notes not controlling of question that jury must determine.
    Error to Common Pleas.
    Judgment reversed.
    F. W. Durbin and A. A. Slaybaugh, Leipsic, for plaintiff in error.
    Otto W. Hess, Napoleon, for defendant in error.

      STATEMENT OF FACTS
    In 1920 and 1921 defendant below, who is plaintiff in error here, gSve two notes to the Bank of Leipsic. Plaintiff below, the defendant’s father, signed both notes as surety and later paid them. The action was brought to recover the amount of money he so paid.
    The defendant’s sole defense was that plaintiff had' voluntarily paid the notes and had re-laesed him, by way of advancement, from his obligation to repay the sum of money so expended.
    At the first trial, plaintiff obtained a judgment which was reversed on the sole ground that the verdict of the jury was against the weight of the evidence. On a retrial of the case the j-ury returned a verdict for plaintiff, which the trial court sustained by overruling a motion for a new trial and entering a' judgment.
    Reversal of this judgment is now sought on the grounds that the trial court erred in over-íuling the -motion for a directed verdict in favor of defendant at the close of al.l the evidence. Also that there was error in the charge.
   OPINION OF COURT

The following is taken, verbatim, from the opinion.

JUSTICE, J:

In support of the first contention, counsel for plaintiff in error invite our attention to the case of Insurance Company v. Whitaker, 9 O. C. C. (N. S.) 126. The second branch of the syllabi of this case reads as follows:

“Where a court of last resort on the question of the weight of the evidence, reverses a judgment because not supported by sufficient' evidence and remands the cause for retrial, the judgment of the reviewing court on the wieght of the evidence stands as the law of the case; and if upon second tiial no new testimony is offered, and the case is submitted on the record as made at the first trial, it is the duty of the trial judge to withdraw the case from the jury on his own motion and render judgment for the defendant.”

This case unquestionably sustains the contention of counsel for plaintiff in error, and if followed by us, is decisive of the question here. However, with all due respect to the judge who particiated in this case, we find ourselves unable to approve the íule of law enounced by them, and for- the reason that such a rule would nullify the doctrine of the right of trial by jury, which is secured and guaranteed to all the people of this state by the constitution, 88 OS. 34.

The contention of counsel for plaintiff in error for a directed verdict in his favor is therefore not well taken.

Turning now to the charge. The trial court, in part, instructed the jury as follows:

“If these notes were left in the possession of the father, the power was left in his'possession to repudiate his intention to make a gift at any time he chose, and if, afterwards, he did not choose to repudiate his intent to mike such a gift, if he did, and then exercised' that intention, so long as he had control of the property, that would amount to a repudiation of that intent. * * * .”

Also

“The evidence will be for you to determine what kind of instrument that was, if you Come to that point in your determination of what the testimony shows in this case. If Joseph Mass did not execute any instrument which would amount to a repudiation of his right or surrender of his right to collect these notes, then there would only be one way for him to finally make the advancement, which is claimed in this case, and that would be to submit the paper, which he held as evidence of indebtedness, to the son, in such manner that he would lose control of it, * * *”

Also -

“If a man attempts to make an advancement by a 'written instiument, or any other way, especially in the form of a promise, it must he such as to cause the parent who makes the advancement to lose control of the instrument that he is to give, and while, at any time he has control of it, if he chooses to repudiate any promise he may have made, he has the legal right to do so.”

These instructions, taken separately and collectively, are in our opinion, erroneous and pie judicial to the plaintiff in error.

Plaintiff’s possession or non-possession of the notes was therefore not controlling of the question that the jury had to determine.

It was not within the province of the trial court to thus so comment on the evidence, as by so doing, it invaded the province of the jury and, as we view it, to the prejudice of the plaintiff in error.

Holding these views, the judgment of the lower couit is hereby reversed and the cause remanded for further proceedings according to law.

Before Julges, Crow, Hughes and Justice.


author: FARR, J.

text:
    VECCHIARELLI v. YOUNGSTOWN MUNICIPAL RY. CO.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 7, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    966. PROXIMATE CAUSE.
    -“The proximate cause of a result is that which, in a natural and continued sequence, continues to produce the result and without which it would not have happened.” Held clepr and concise.
    Error to Common Pleas.
    Judgment affirmed.
    Jas. M. Modarelli and Vincent A. Buonpane, Youngstown, for Veechiarelli.
    Hairington, DeFord, Huxley & Smith, Youngstown, for Youngstown Municipal Ry. Go.
   FULL TEXT

FARR, J.

This cause is here on error. Upon the issues being joined in the court below a trial was had, which resulted in a judgment for the defendant and from which error is prosecuted in this court upon one ground only, and that is that the couit below failed to properly define proximate cause. At page 92 of the Record the trial court instructed the jury as follows:

‘'The proximate cause of a result is that which in a natural and continued sequence continues to produce the result and without which it would not have happened.!’

There was only one general exception to the foiegcing and to all of the charge, nor was there any request for a more explicit definition of proximate cause. The definition as .given is clear and concise, -though brief, and was sufficient under the particular circum.stances of this case, but even if not so, there was no request for a further instruction and for that reason alone the plaintiff in error can.not nor be heard to complain.

It follows, therefore, that the judgment must be affirmed and it is so ordered.

(Pollock and Roberts, JJ., concur.')


author: VICKERY, J.

text:
    TRASK v. CULL, Recr.
    Ohio Appeals, Eighth Dist., Cuyahoga Co.
    No. 8689.
    Decided January 16, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1002. RECEIVERS.
    Receiver may not, without order of court, hire expert .advisers and charge services against the estate. .
    Bulkley, Hauxhuist, Jameson & Sharp, Cleveland, for Trask.
    Day & Day, Cleveland, for Cull.
    Error to Municipal Court.
    Judgment affirmed.
   FULL TEXT

VICKERY, J.

This cause comes into this court on a petition in error to the Municipal Couit of the City of Cleveland.

In the court below Trask brought an action to recover the sum of a thousand dollars for so-called advice that he gave to a.Mr. Evers who was o-ne of three receivers of The Representative Realty Company, the other two being Edgar Thomas and William A. Green-lund.

It seems that a lot of property in certain conditions was owned by the Realty Company, when they went into receivership. I do not now recall how many receivers had been •appointed in these various cases, or how much litigation, or how many lawyers have been engaged in these cases,' but a good many, I know. It finally got -down so that ex-Judge Dan Cull became the sole receiver, and the action was brought by Trask to recover a judgment against him, he having refused to pay the claim.

The evidence shows, as already stated, that Evers, one of the receivers, employed Trask, .probably in good faith, and undoubtedly Trask gave advice. The agreed statement of facts shows that it was worth a thousand dollars. There is nothing in the record to show that any -one acted on his advice or that it resulted in any advantage to the estate. ■ The record does show, however, that he was not employed by the three receivers, nor was he employed with the authority of the court, and according to the evidence, so far as it appears, he did not do anything more than exercise the judgment which the receivers were called upon to exercise.

If they wanted to have the advice of somebody as to how fo perform their duties, as to just the best -way to sell a lot, or something of that kind, if they got the services of a person that were worth anything to them, it has reduced their liability to perform the same service. If anybody should be called upon to pay such a bill, iti should be the receivers who g'ot the expert’s advice as to how best to per-from their duties, especially when that expert advice was not ordered by the court.

■ As I understand this record,, the court appointed receivers, several of them, and lawyers to advise the receivers, several of them, and just where the authority comes to go outside and hire expert financiers to give advice as to how the receivers had best perform the (juties which the law casts upon them, I do not know. None has been shown us and I do not think any can be shown.

That being the condition of this record and the. condition of the law, the court was right in finding for the defendant and hence committed no error, and we think the judgment thereon ought to be affirmed.

(Sullivan, PJ., and Levine, J., concur.)


author: BY THE COURT:

text:
    COPELAND v. STATE
    Ohio Supreme Court
    No. 20829.
    Decided January 25, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial staff.
    295. CONTINUANCES — 1273. Witnesses.
    Circumstances of this case held to warrant Court in not granting postponement of trial to procure attendance of witnesses.
    Error to Montgomery Appeals.
    Petition dismissed.
    H. E. Kreitzer, Dayton, for Copeland.
    Ralph E. Hoshat, Pros. Atty., Dayton, and • Chas. V. Brennan, for State.
   FULL TEXT.

BY THE COURT:

Copeland was tried upon an indictment charging him with the crime of rape, and was found guilty. The judgment oí conviction was affirmed by the Court' of Appeals, that court finding “that .the trial of the case was free from prejudicial error, and that the verdict is fully sustained by the evidence.”

A petition in error was filed in this court upon the claim that plaintiff in error was deprived of constitutional rights in that he was not permitted “to meet the witness face to face and to have compulsory process to procure the attendance of witnesses in his behalf.”

It developed on the trial of the case that on December 22nd, the day the trial began, a precipe was filed by counsel for the defendant for a subpoena to issue for “Miss Green,' Juvenile Court,” ajid that the return of the deputy sheriff showed service by leaving at the place of residence, but it appeared that by a previSus arrangement made with that witness, subpoenas for her were left on her desk in the Juvenile Court building, which adjoins the sheriff’s office, and that the subpoena in question was on said day left upon her desk under that arrangement.

Mrs. Julia B. Green is an investigator connected with the juvenile court of that county and the subpoena was intended for her. It further appears that the subpoena was not actually received by her or brought to her attention, and that she went to Chicago on that day for a holiday visit. The end of the case was reached on the afternoon of December 24th. The record discloses the following:

“The Court: Any other witness? Anything else?
“Mr. Kreitzer; I am not going to rest without Mrs. Green.
“The Court; I telephoned her and she said she would not testify what you say she said.
“Mr. Kreitzer: I object to that remark.
“The Court: That is made in view of your statement ‘you won’t go ahead without Mrs. Green’ and I am telling you what she said, she would not testify to what you say she will.”

The record then discloses a further statement made by the court in a conversation with counsel, not in the presence of the jury, in which the tiial judge stated that he had reached Mrs. Green by telephone, who after stating that the subpoena had not come to her attention, and -then being informed as to what it had been stated she would testify were she present, replied that she could not have testified as to the general reputation of the prose, cuting witness for truth and veracity. The court stated that in view of previous continuances of the trial upon request of the defendant, he would not further postpone the hearing. The record then discloses that, “Thereupon the defendant rested his case.”

A hearing upon the motion for a new trial, which is part of the record, shows that the court was .warranted in not granting a postponement of the trial to procure the attendance of the witness, Green. The court particularly instructed the jury with reference to the matter in question, and directed that they must determine the guilt or innocence of the defendant from the evidence placed before them and that only the testimony before them could be considered.

The record presents no debatable constitutional question. The motion to dismiss is therefore sustained.

(Marshall, CJ., Day, Allen, Kinkade, Jones and Matthias, JJ., concur.)


text:
    STATE ex MIDWEST. FILM EXCH. v. CLIFTON DIR. of ED. and ex. OFF. CENSOR of FILMS. MANTELL v. DEPT. OF ED.
    No. 20886 and 20904.
    Decided January 25, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    794. MOTION PICTURES — 865. Office and Officers. Refusal of director of Education to accept film for censorship based upon “general knowledge” of film and title, and not upon examination, held unlawful and unreasonable.
    In Mandamus.
    Writ allowed.
    On petition for review,
    Order reversed and cause remanded.
    Stuart R. Bolin and Sheck, Stephens & Hargreaves, Columbus, for Midwestern Film Exchange.
    Matthew _L. Bigger, Max M. Matusoff and Edward T. Powell, Columbus, for Frank Mantel!, Plaintiff.
    Edward C. Turner, attorney general and C. F. Laylin, Columbus, for defendants.
   BY THE COURT:

These two cases were filed in this court and aie similar in character, both seeking the same ultimate relief. The former is styled an action in mandamus, the latter a petition for review under Sertion 871-53. General Code. In both cases an effort is made to review an order of the department of education refusing to censor a film, called the Dempsey vs. Tunney Boxing Exhibition held at Chicago, Illinois, September 22, 1927;” and in each case the director of education has filed an answer containing substantially similar defenses.

The .pleadings on file in the mandamus proceeding admit that due application for censorship were made, that no examination of the film was made, and that the director of education, as censor ex officio,, refused to accept the films for censoring, “basing his judgment and decision on the statutes applicable to this censoring of pictures.” It is alleged, and not disputed that the films submitted for censorsing were made in this state, as were the negatives therefrom; that these prints and negatives were never transported into this state by mail, express or common carrier, and that such films, or copies theieof, if approved, were for use solely within the state of Ohio. Substantially similar averments are contained in the petition for review filed by Mantell.

In addition to the admissions made by the director of education, contained in his several answers, he alleges the following as a ground for refusing to accept said films for censorship, viz: that by reason of the title of such film and of his own general knowledge of the event portrayed “it was and is unnecessary for him to actually examine said film in order to exercise his judgment and discretion to determine whether or not such film was of a moral, educational or amusing and harmless character so as to entitle it” to his approval, and that, in his judgment, obtained from his . general knowledge, and evidence adduced, the film was neither moral, educational nor of an amusing and harmless character. We rest our decision upon the application of our own statutes to the duties and obligations of the board of censors with respect to the censorship of picture films tendered to it for approval.

By virtue of the provisions of Section 154-46, General Code, there have been conferred upon the Department of Education all the powers and duties theretofore vested in the Industrial Commission of Ohio and the Board of Censors of Motion Picture Films by Sections 871-48' to 871-53, General Code. By the provisions' of Section 154-47, General Code, there has been created an advisory board of film censorship, whose duties are specifically described therein. That section reads; “An advisory board of three members is hereby created in the department of education, to be known as the advisory board of film censorship. * * * Such board shall assist and advise the department of education in the examination and censorship of motion picture films.”

It is conceded that the director of education not only failed to procure the advice and assistance of this board, but predicated his refusal on the application for exhibition, not upon an examination of the film, but upon what he terms “his general knowledge” of its character. In so doing there was a noncompliance with the statute which inquires the approval or disapproval of the film to be based upon its examination.

Section 871-48, General Code, provides: “It shall be the duty of the board of censors to examine and censor as herein provided, all motion picture films to be publicly exhibited and displayed in the state of Ohio.”

The following section, Section 871-49, General Code, reads:

“Only such films as are in the judgment and discretion of the board of censors of a moral, educational or amusing and harmless character shall be passed and approved by the board. When a film has been censored by the board of censors a certificate showing the approval or rejection of such film shall be issued to the party submitting the film.”

It is manifest that these sections of the law, governing film censorship, were not complied with. While the court would not disturb the exercise of a sound discretion upon the part of the board, in its approval or disapproval of a film, yet the order of the director basing his disapproval upon what he terms his “general knowledge” of the film and its title, and not upon examination, was not made in compliance with the aforesaid sections of our law relating to film censorship.

It therefore follows that the order of the directorj made under such ciicumstances was unlawful and unreasonable, and the cause is accordingly remanded to the department of education for further proceedings conformable to the laws of the state.


author: DENISON, CJ.

text:
    PENNSYLVANIA RD. CO. v. STEGAMAN
    Circuit Court of Appeals, 6th Circuit.
    No. 4639.
    Decided Oct. 14, 1927.
    991. RAILROADS — 829. Negligence — 941. Practice and Procedure.
    Passenger not responsible for driver’s failure to look for coming train, at country crossing.

      Assuming negligence of railroad, failure of bus driver to observe statutory duty to ascertain whether train was coming, held not proximate cause of collision injuring passenger; such failure being no more than contributory negligence, for which passengers in bus were not responsible.
    2. Giving statutory warning signals imperative.
    Error in submitting issues where railroad was negligent in running trains at excessive speed, or in failing to give warning signals in addition to those required by statute, held to require reversal even though it was probable that the jury would, in any event have found that railroad was negligent in failing to give statutory signals.
    3. Speed of trains in country may be such as operators deem safe, where no legal regulation exists.
    Failure of general assembly to regulate speed of trains in the country, impliedly warrants railroads in running their trains in the country at such rate of speed as those in charge.may deem safe.
    4. Existence of fog — maintenance of ordinary speed over crossings, sufficient.
    Where crossing signals required by 8853 Ohio GC. are given, the 'maintenance of ordinary speed over crossings during fog gives no independent basis for a conclusion that railroad is negligent.
    5. Repeated signals not required.
    The mere existence of a fog, obscuring view of train approaching crossing and striking a bus and injuring a passenger therein, held insufficient to justify jury in finding that duty existed to repeat crossing signals, if given as required by 8853 Ohio GC.
    941, PRACTICE AND PROCEDURE.
    Submission of a special issue by the judge, sua sponte.
    The trial judge may often, on his own motion submit a' special issue, with benefit to the public interest.
    Error to U. S. District Court. N. D. 0. Killits, J.
    Geo. R. Effler, Toledo, and Wheeler & Bently, Lima, for Railroad.
    Geo. W. Ritter, Toledo, Hoke & Wright, Van Wert, and Ritter & Brumbach, Toledo, for Stegaman.
   DENISON, CJ.

Action by defendant Arthur Stegaman against The Penna. Railroad Go. on account of death of his minor son. Judgment for plaintiff reversed by this decision.

(Denison and Moorman, CJJ., and Hough, PJ.)

For full opinion, see 22 Fed. Rep. (2’d) 69.


author: MOORMAN, CJ.

text:
    WHITAKER-GLESSNER CO. v. OHIO SAV. BK. & TR. CO.
    Circuit Court of Appeals, 6th Dist.
    No. 4945.
    Decided Nov. 18, 1927.
    539. FIXTURES — 997. Real Estate — 787. Mortgages. 1. When chattel annexed to realty becomes — application of to use by, and intention of annexing party.
    Personalty becomes a fixture on the concurrence of its annexation to the realty or something appurtenant thereto, its application to the usa or purpose to which the realty is appiopriated, and an intention on the part of the party annexing it to make it a permanent accession to the freehold.
    2. Intention of annexing party to make it permanent, and to remove, how to be determined.
    Where a chattel may be removed' without injury to it or the realty, the.manner of its annexation and other circumsatnces and facts, including its possible uses, are to be considered in determining the intention of the party annexing it.
    3. Machinery bolted to floor, in canning factory, as between company and mortgagee, held a part of the
    Machinery bolted to the floors of a canning factory, both realty and machinery being owned and used by a canning company for the sole purposes of the business, though removable without injury to itself or the realty, held a fixture as between the company and a mortgagee.
    Appeal from U. S. Court. E. D. S. D. of Ohio-. Benson W. Hough, J.
    Geo. W. Ritter, Toledo, and John S. Brum-back, Toledo, for appellant.
    John F. Wilson, Columbus, and John E. Morley, Cleveland, for appellees.
   MOORMAN, CJ.

Suit in equity by the Ohio Saving Bank & Trust Company, Trustee, and others, against the Whitaker-Glessner Co. Decree for complainants, and defendant appeals. Affirmed.

(Denison and Moorman, JJ.)

For full opinion, see 22 Fed. Rep. (2’d) 733.


author: PER CURIAM

text:
    STURZINGER v. HART
    Circuit Court of Appeals, 6th Dist.
    No. 4819.
    Decided Dec. 12, 1927.
    1002. RECEIVERSHIP — 144. Bill of Sale.
    Claimant of goods under a bill of sale, who intervenes in receivership, held entitled to the goods stored for it in building occupied by company.
    In receivership of solvent company, inter-vener, which had advanced money to such company and in return' received bills of sale for goods of equal value stored in building occupied by company held entitled to such goods, in absence of fraud or bad faith, or showing of injury or detriment to company’s creditors or stockholders.
    Appeal! from U. S. Court. W. D. N. D. of Ohio. John M. Killits, J.
    J. F. Hertlein and H. L. Peeke, Sandusky, for appellant.
    King, Ramsey & Flynn, Sandusky, for ap-pellees.
   PER CURIAM

In re receivership of the Erie Food Products Company, in which Alfred L. Hart and others, a partnership, intervened. From a ruling sustaining the claim of interveners to certain - goods, Albert L. Sturzinger, receiver, appeals. Affirmed.'

(Denison, Moorman and Knappen, JJ.)

For full opinion, see 22 Fed. Rep. (2’d) 801.


author: KINKADE, J.

text:
    HILE v. CLEVELAND (CITY)
    Ohio Supreme Court
    No. 20630.
    Decided February 8, 1928.
    Error to Cuyahoga Appeals.
    Judgment Affirmed.
    233. CIVIL SERVICE — 865. Office and Officers — 801. Municipal Law — 291. Constitutional Law.
    1. Art. XV, Sec. 10, Ohio Const., does not prohibit promotion or appointment without examination.
    2. Sec. 96, Cleveland City Charter, in full accord with Art. XV, Sec. 10, Ohio Const.
   KINKADE, J.

1. Section 10, Article XV, of the Ohio Constitution, does not prohibit the promotion and appointment of public officials in the civil service of cities without competitive examination in cases wherein it is not practicable to effectively test the capacity of applicants for such promotion or appointment by a competitive examination.

2. Section 96 of the charter of the city of Cleveland, which provides that one seeking a promotion or appointment in the city civil service shall pass a competitive civil' service examination “unless he shall have served with fidelity for at least two years immediately preceding in a similar position under the city,” does not contravene Section 10, Article XV, of the Ohio Constitution but is in full accord therewith, and authorizes promotions and appointments of persons in the’ civil service of the city without civil service competitive examination, who have previously so served under the city.

(Marshall, CJ., Day, Allen, Robinson, Jones and Matthias, JJ., concur.)


author: ALLEN, J.

text:
    SYLVANIA BUSSES, Inc. v. TOLEDO
    Ohio Supreme Court
    No. 20759.
    Decided Feb. 15, 1928.
    Error to Lucas Appeals.
    Judgment affirmed.
    3J1. CONSTITUTIONAL LAW — 1104. Statutes — 874. Ordinances — 793a. Motor Transport.
    1. Secs. 614-84 and 614-86 GC. not unconstitutional.
    2. Ordinance of City of Toledo, prohibiting motor busses carrying passengers for hire between points in city, except, where no Community Traction Co. service, and requiring permit from city council by resolution; held valid.
   ALLEN, J.

„ 1. Sections 614-84 and 614-86,. General Code, as amended in 1925, are valid enactments, not in contravention of the state or' federal constitutions.

2. The city of Toledo enacted an ordinance providing in substance that it shall be unlawful for any one operating* an interurban motor bus over the streets within that city to carry a passenger for hire from one point within the city limits to another point within the city limits, except on such routes or parts of routes where there, is no Community Traction Company service, either by bus or street car, and that, before any such interurban motor bus may carry any passengers for hire from one point to another within the city in territory where no such municipal traction service is given, a permit must first he secured from city council by resolution duly adopted. The ordinance also provides penalties for its infraction. Held, such ordinance is valid.

Marshall, CJ., Day, Jones and Matthias, JJ., concur. Kinkade and Robinson, JJ., concur in judgment.


author: MATTHIAS, J.

text:
    STATE ex McDIARMID et v. EASTMAN et
    Ohio Supreme Court
    No. 20725.
    Decided Feb. 15, 1928.
    In Prohibition.
    Writ denied.
    681. JURISDICTION — 645a. Insolvency Court —93. Appropriation Proceedings — 63?. Injunction' — 941. Practice and Procedure.
    . 1. Secs. 1629 and 2976 and 2976-7 GC. confer jurisdiction upon Insolvency Court in appropriation proceedings.
    2. writ of prohibition will not lie to prevent exercise of that jurisdiction, where ample remedy is offered by injunction.
   MATTHIAS, J.

1. Judisdiction is conferred upon the court of insolvency in proceedings for the appropriation of property for park purposes by the provisions of Sections 1629 and 2976-7, General Code.

2. A writ of prohibition will not lie to prevent the exercise of that jurisdiction upon the ground that a board of park commissioners in making* such appropriation is exceeding the powers conferred upon it by law or that the law conferring the power it seeks to exercise contravenes some provision of the constitution. An ample remedy is afforded by injunction. -

(Marshall, CJ., Day, Allen, Kinkade, Robinson and Jones, JJ., concur.)


text:
    MALLE et v. HAYES et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Bernsteen & Bernsteen, Cleveland, for Malle et.
    Boyd, Cannon, Brooks & Wickham, Cleveland, for Hayes.
    1265. WEIGHT OF EVIDENCE — 295. Continuances —1*8. Bills of Exceptions.
    1. Evidence in will contest held to support verdict.
    2. Will contest, in Court of Appeals on petition in ■error, not continued, where no steps were taken until after 4 o’clock on day before reached in court.
    3. Court of Appeals will not issue writ of mandamus or grant motion for diminution of record to «compel Common Pleas to insert something where counsel does not deny that record showed all that took place.
    225. CHARGE OF COURT:
    In will contest, where court refused proper instructions requested by contestees and*later decided instruction should have been given, giving such instructions in absence of counsel for contestees who- stated he did not want to be present and counsel for contestants who could not be reached; held not misconduct subject to criticism.
   VICKERY, J.

1.Evidence in will contest case held to support jury’s verdict to effect that paper writing- in question was last will and testament of decedent.

2. Will contest case brought to Court of Appeals on petition in error could not be continued, where it had been properly listed for trial and been published two weeks under rule of courts in official organ of courts and no steps were taken towards having case continued until after 4 o’clock of day before it was reached in court.

3. Court of Appeals will not issue writ of mandamus or grant motion for diminution of record to compel common pleas court to insert something in bill of exceptions, where inquiries to counsel in argument of case seeking to efieit whether they claimed anything other than what appealed in bill of exceptions, brought only response that they would expect it to show certain things hut did not deny that record showed all that took place.

- 4. In will contest case where court refused proper instruction requested by contestees and after case had been submitted court decided that instruction should have been given and notified counsel for contestees, who stated that he did not want to be present, but court was unable to reach counsel for contestants, action of court in giving instruction in absence of counsel held not misconduct subject to criticism.

(Sullivan. PJ., and Levine, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: MAUCK, J.

text:
    BARRON v. McCANN et.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Cushing, J., of the 5th District sitting in place of Sayre, PJ.
    Corn & Jenkins, Ironton, for Barron.
    A. R. Johnson, Ironton, for Margaret Mc-Cann’s heirs.
    Irish & Riley, Ironton, for John McCann and others.
    1271. WILLS AND LEGACIES — 362a. Decedants’ Estates.
    1. Section 10542 GC. does not provide for forfeiture of vested interest, but prevents any estate from passing to negligent devisee.
    2. Where devisee of land under will was in possession and control of will for more than three years after death of testatrix, but neglected to offer same for probate, land described therein passed to heirs.
   MAUCK, J.

1. Section 10542 GC. providing that estate devised to devisee shall descend to heirs of testator, if devisee fails to probate will within three years after knowledge of its existence, does not provide for forfeiture of interest that has vested, but prevents any estate from passing- to negligent devisee.

2. Where devisee of land under will was in possession and control of will for more than three years after death of testatrix, but neglected to offer same for probate, as required by Section 10542 GC. such devisee took nothing under the will, and land described therein passed to heirs.

(Cushing and* Middleton, JJ., concur.)

For reference to full opinion, see Omnibus Index,’ last page, this issue.


author: SULLIVAN, PJ.

text:
    MARTIN BAKING CO. v. TOMPKINSON
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8036.
    Decided Dec. 5. 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    301. CONTRIBUTORY NEGLIGENCE.
    In suit to recover for injury caused by being struck by automobile, existence of any one of the following conditions, will prevent recovery:
    1. Failure to look before crossing street.
    2. Looking and failing 'to see automobile.
    3. Proceeding across street in front of app.roaching machine, after seeing it.
    396. DIRECTED VERDICT.
    Not error to instruct verdict for defendant owneiT of automobile, where it appears that injured party attempted to cross well lighted street, in front of ap-» proaching machine which was in full view, with lamps burning.
    225. CHARGE OF COURT.
    Error to refuse special charge containing language “contributed in the slightest degree.” Such language is correct statement of - law in Ohio.
    Error to Common Pleas.
    Judgment reverses..
    Dustin, MeKeehan,. Merrick, Arter & Stewart, Cleveland, for Baking' Co.
    S. M. Young, Cleveland, for Tompkinson.
    STATEMENT OF FACTS .
    Plaintiff, while attempting' to cíoss from the south side of Euclid Avenue to a safety zone, was struck by an automobile truck owned and operated1 by defendant.
    In the Cuyahoga Common Pleas, she recovered a judgment for $8000 for injuries growing out of such accident. Error is prosecuted to this court to reveise that judgment on the grounds that, under the record, plaintiff was guilty of contributory negligence as a matter of law, and that the court committed prejudicial error in refusing to chaige the jury as requested.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

SULLIVAN, PJ.

It appears unchallenged in the record that the plaintiff left the curb to cross Euclid Avenue to the safety, zone, at a time when the automobile truck was proceeding, in conformity to the traffic signal, toward her, in an easterly direction and but a veiy few feet from her.

If there were any conflict as to the evidence upon this essential point, it would he the duty of the court to submit to the judgment of the lower court and the verdict of the jury, because it would be a question of fact in conflict, and of which that tribunal would be the final judge, but inasmuch as it is not disputed, and that the plaintiff herein admits that while the truck was in sight she did not see it, this court is bound to follow not only its own view of the law under the record in this case, but the decisions of this very court upon a similar state of facts not only by the Appellate Court of this District, but by the Cii euit Court of Hamilton County, 'which immediately preceded the organization of the Court of Appeals under the Constitution of 1912. In the case of The MacDiarmid Candy Co. v. Schwartz, 11 Ohio App. 303, in an opinion by Lieghley, J., and concurred in by Grant and Carpenter, JJ., there was a reversal and a remanding of the cause, and the first paragraph of the syllabus reads as follows:

“One who alights from a street car, passes behind the same, and thence into the pathway of an approaching automobile, is, as a matter of _ law, guilty of contributory negligence, which prevents a recovery of damages, by failing to look before crossing the street, or by looking and failing to see the automobile, or by proceeding across the street in front of such appioaching- machine after seeing the same.”

It will be noticed that the court makes three divisions, either one of which determines what is contributory negligence in cases like the one at bar as a matter of lav/, and which would prevent a recovery:

1. “By failing to look before crossing the street.”

2. “By looking and failing to see the automobile.”

S. “By proceeding across the street in front of such appioaching machine after seeing the same.”

To affirm the judgment of the instant case would be in direct conflict with the law as laid down by the MacDiarmid case supra.

In the case of Schott, Admr. v. Akron, 17 C. C. (N. S.) 393, we find the same question arising, and the court, in the syllabus of the case, says as follows:

“It is not error to instruct a verdict for the defendant owner of 'an automobile, in an action for the death of a pedestrian, where it appears that the deceased" attempted to cross a well lighted street in front of the approaching machine, which was in full view with its lamps burning.”

Again, from the Schott case, appears the following on page 394:

“From the evidence, it seems clear that Schott was guilty of contributory negligence, and that his death was caused by it. * * * and under the evidence, we think the couit was justified in directing the jury ‘to return a yerdict for the defendants.”

In Schimdt v. Schalm, 20 C. C. (N. S.) 99, we find the same principle upheld.

In view of these authorities and their applicability to the record in this case, we hold that there was error of law in the judgment and verdict below.

At the conclusion of the court’s instructions to the jury, a specific request was made that, in addition thereto, the court instruct the jury as follows:

“If the jury find that the plaintiff was negligent and that her negligence directly contributed, in the slightest degree, to cause her injuries, that the jury’s verdict must be for the defendant, and this is true although the jury should also find that the defendant was negligent.”

The court refused this charge on the ground that it was an undetermined question, as we are told by counsel, and for the further reason that the language in the request, to-wit: “contributed in the slightest degree,” was employed.

The court, in its general charge, used the language: “any act of negligence,” and -the language of the request, as above noted: is “contributed in the slightest degree.”

Now it might ‘be said that the view which the court took below as to the similarity and significance of expression, was well taken, had not the Supreme Court decided in Chesrown v. Bevier, 101 OS. 232, that the language, “contributed in the slightest degree,” was a correct statement of the law in Ohio, with respect to the acts of contributory negligence, by a person suing for recovery. The court distinguished between the use of the word “any” and the word “slightest,” and because of this, the significance in the difference between the use of the two expressions is acknowledged and noted, otherwise it might be said that the language used by the trial court, to-wit “any act of negligence,” made it unnecessary to grant the request of the defendant below, to use the words “contributed in the slightest degree.”

It is our judgment that, notwithstanding what the court had already said in its general charge, it was prejudicial error to refuse to give the instruction requested.

Inasmuch as the doctrine of last chance was not an issue in this case, under the present state of the record, we do not render final judgment • for the plaintiff in error, but with these views, the judgment of the lower court is hereby reversed for error of lav/, and the cause remanded for further proceedings under the statute.

ÍLevine and Vickery, JJ., concur.)


author: LEVINE, J.

text:
    KISH et v. YUNG et
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8774.
    Decided Jan. 23, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1100. SPECIFIC PERFORMANCE — 297. Contracts— 997. Real Estate.
    1. Provision, in contract for exchange of real estate, “it is being further agreed between the parties hereto, that upon breach or withdrawal of this contract by either of them, such party shall pay the sum of $300 as commission,** constitutes merely additional obligation which does not, by its terms, diminish obligation of either party to fulfill. Such provision no bar to action for specific performance,
    2. Provision in such contract “Remarks: the first ’party shall raise a first mortgage on Lenscrowe Avenue property High as possibly and the Balance to be a second mortgage which is payable one per cent payment monthly including interest.” Held to render contract so indefinite as to be incapable of specific performance.
    Appeal from Common Pleas.
    Petition dismissed.
    George C. Hafley, Cleveland, for Kish et.
    Martin A. Phillips, Cleveland, for Yung.
   PULL TEXT

LEVINE, J.

This ease comes into this court on appeal from the Common Pleas Court. The Plaintiff’s petition alleges a contract for exchange of properties and specific performance is sought to enforce the terms of said contract. The answer and cross-petition likewise ask for specific performance, but allege that the terms of the contract were not, as is alleged in the plaintiff’s petition, and proceeds to set forth the terms of the contract as understood by the defendant. The cross-petition asks for specific performance of the contract according to the defendant’s version.

It appears that, at the time the parties entered into the transaction, two regular form exchange argeements were drawn by the agent who brought the parties together and that in fixing the valuation of the premises belonging to the party designated as the party of the second part, the same was fixed in the one copy as $7,700 and in the other copy as $7,000. The concluding statement of the contract, as found in both copies, is as follows:

“It is being further agreed between the parties hereto, that upon breach or withdrawal of this contract by either of them, such party shall pay the sum of $300 as commission.”

It was urged in the Common Pleas Court and also before this court, that the exchange agreement is what is commonly known as an alternative contract; that the most that the party breaching the contract or withdrawing from it can be subjected to, is the obligation to pay $300 as commission; that no action for specific performance or damages could be founded upon it.

We are not of that view, for the reason that it is quite apparent that this concluding provision found in the agreement did not limit the obligation of the party breaching the contract or withdrawing from it, to the payment of $300 as commission. It is merely an additional obligation which does not, by its terms, diminish the obligation of either party to fulfill the contract.

A perusal of the contract, however, leads us to the conclusion, that the same is too indefinite as to permit of specific performance. One of the paragraphs of the contract reads:

^“Remarks: the first party shall Rais a first mtg. on Lenscrowe Ave. property High as posibily and the Balance to be a second mortgage which is to payable one per cent payment monthly include interest.”

The scrivener not only wrote an ungramatical English, but framed the provision in language which is not capable of interpretation. To decree specific performance would be an utter impossibility, as the important terms relating to the financing are not, by any method of interpretation, understandable. This paragraph alluded to is found in both copies.

For this reason we shall order a dismissal of the petition and cross-petition.

Decree accordingly.

(Vickery, J., concurs. Sullivan, PJ., dissents.)


text:
    ROBINSON v. RILEY.
    Ohio Appeals, 5th Dist., Athens Co.
    Emmett Keenan, for plaintiff in error.
    M. D. Hughes, for defendants in error.
    644. FORCIBLE ENTRY AND DETAINER.
    Sections 10447 to' 10461 GC., relating to forcible entry and detainer, not self sufficient. Provisions of other chapters, on matters not covered, apply to forcible entry cases.
    685. JUSTICES. OF THE PEACE — 1104. Statutes.
    Judgments of justices of the peace, in actions in forcible detention, required to be entered by fourth day after trial.
   MAUCK, J.

1. Article 1 of the Act of March 14, 1853 (51 O. L., 179) Sections 10447 to 10461, General Code, relating to forcible entry and retainer, is not self-sufficient, providing' entire machinery for trying cases of su6h character, but provisions of other chapters on matters not covered by such chapter apply to forcible entry eases.

2. Section 10378, General Code, is to be read in connection with Section 10458, General Code, so that judgments of justices of the peace in actions in forcible detention are required to be entered by the fourth day after trial.

(Middleton, J., concurs. Sayre, PJ., not participating.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: HUGHES, J.

text:
    WILLIAMS, Administrator, et v. BERRY
    Ohio Appeals, 3rd Dist., Crawford Co.
    Decided Jan. 7, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.'
    127. BANKRUPTCY.
    1. The bankruptcy act provides that a discharge in bankruptcy shall release a bankrupt from all his provable debts except * * • such as are for wilful and malicious injury to the property of another.
    2. wrongfully driving car after obtaining same from son at place other than he had been given permission to drive it, and by reason of careless conduct, injury and( damage* to same, does not constitute wilful or malicious injury to automobile in question.
    Error to Common Pleas.
    Judgment reversed
    Edward J. Myers, Bucyrus, for Williams.
    Clarence U. Ahí and A. S. Leuthold, Bu-cyrus, for Berry.
   FULL TEXT

Before Judges Crow, Hughes and Justice.

HUGHES, J.

Plaintiff brought her action to recover against Arthur Williams for damages done to her automobile, alleging before the justice of the peace, facts which show that Williams wrongfully drove the car after obtaining the same from the son, at a place other than he had been given permission to drive it, and by reason, of his careless conduct, the same was injured and damaged.

The facts in the bill of particulars further show that thereafter, he and his mother signed a written paper wherein they agreed to pay the expenses of having the car repaired.

A judgment in the justice court was rendered against both parties and the cause was appealed to the court of common pleas by Arthur Williams only. Thereafter he died, and his administrator was substituted.

Objection is made to the petition filed in the court of common pleas, on the theory that it is a departure from the case plead in the justice court. We do not entertain this view of the ease. As far as Arthur Williams is concerned, the petition sets forth the same wrongful acts xe suiting in injury to the.automobile, that were set forth in the justice court.

Sometime after the case was started, Williams took the benefit of the bankruptcy act and was discharged in bankruptcy; and this was plead as a defense to this action, and the principal contention here made of merit, is that this claim or liability asserted in this case is discharged by the bankruptcy act.

The bankruptcy act provides that a discharge in bankruptcy shall release a bankrupt from all his provable debts except * * such as are for wilful and malicious injury to the property of another.

We have carefully read the evidence in this case, and in view of the construction placed upon this portion of the bankruptcy act, in the case of Tinker v. Caldwell, 24 U. S. Supreme Court Reporter, 505; and In re Wilson, 269 Federal, 845; 298 Federal Reporter, 135, and similar cases, we are unable to find any evidence in the record tending to prove that the liability of Arthur Williams was for any wilful or málicious injury to the automobile in question.

The motion of the defendant asking for a directed verdict should have been sustained, and the judgment is reversed and the cause remanded for new trial.


author: PARDEE, J.

text:
    BURNS MOTOR CO. v. BRIGGS
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1288.
    Decided Jan. 10, 1928.
    First Publication of this Opinion.
    Syllabus by the Court.
    118. AUTOMOBILES — 719. LIENS.
    A garage owner who, upon the order of a city policeman, tows to his garage an automobile found parked/ upon a city street in violation of city ordinance, and! keeps it in storage, does not have a claim against owner nor a lien upon automobile for towage and storage charges. * * *
    Error to Common Pleas.
    Judgment affirmed.
    Slabaugh, Seiberling, Huber & Guintrer, Akron, for Bums Motor Co.
    C. G. Roetzel, Akron, for Briggs.
    STATEMENT OF FACTS
    The original action in the trial court was one in replevin, filed by Briggs, the owner of a Ford Coupe automobile. The defendant, in its answer, alleged that the property was held and detained by it pursuant to a warehouse or storage lien, and, by way of cross-petition, sought recovery of the warehouse and towing charges in the sum of $20.00. On March 19, 1926, Briggs placed his car in a garage. On the next day, which was Sunday, he sent his agent to the garage to obtain the car, and was informed that it was missing. On the same morning an officer of the police department of the city found car standing on one of the main streets, and the police lieutenant in charge of traffic called the Burns Motor Company to take the car off the street. They immediately sent their wrecking car and brought the car into their garage.
    Mr. Bums, the managing officer of -the company, observed the presence of the car in his garage and, a few days later, called the police department with respect to the possession of the car, but the officers in charge were unable to give him the name of* the owner. Later Mr. Burns called the Akron Automobile Club and learned that the car belonged to Briggs. Burns then wrote a letter to Briggs who, being out of town at the time, did not claim the car for several days thereafter. He then ordered some minor repairs made and when he later came to take possession of the car, the defendant refused to surrender it unless he paid for the storage and towing charges.
   OPINION OP COURT

The following is taken, verbatim, from the opinion.

PARDEE, J.

In this state no . statutory authorization for the assertion of a storage lien -upon automobiles can be found, and it is conceded that the old livery stable lien statutes of this state cannot be extended, by implication or otherwise, to cover motor vehicles.

It was recently decided by the Supreme Court of this state that a repair man does have a lien for materials furnished and labor performed in repairing an automobile. (107 OS. 583.)

The car was not placed in storage by the plaintiff nor by any one authorized to act for him. These officers were not his agents and they were not acting in accordance with the terms of any state law, or city ordinance, and did not have authority to place or order the car to be placed in the garage of the defendant so as to bind him for the storage and towing charges.. There being no contract, express or implied, existing between the plaintiff and the defendant by which the plaintiff placed the car in storage and agreed to pay the defendant therefor, the defendant, in law, does not have a claim against the plaintiff nor a lien upon the automobile. (Coverlee v. Warner, 19 Ohio 29.)

If it be claimed that the car was lost property and that the finder is entitled to be indemnified by the owner for his necessary and reasonable expense, as distinguished from a lien, of course the defendant would not be entitled to recover its claim from the plaintiff, as the car was placed in storage by the finder and such claim, if any exists, would be based upon an implied contract against the finder to pay for the storage, and not against the true owner.

(Washburn, PJ., and Funk, J., concur.)


text:
    REEL et v. COMBES et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Messrs. Boyd, Cannon, Brooks & Wickham, Cleveland, and W. 0. Chappell, for Reel et.
    Harvey E. Elliott, for Combes et.
    1140. SURETY AND SURETYSHIP — 299. Contribution.
    1. Contribution not founded on contract, but is result of general principles of equity.
    2. Where implied assumpsit on part of cosurety to pay his proportion of loss is raised, law of equitable obligation to contribute arises.
    3. Where some of cosureties have become insolvent, ordinary rules of contribution ineffective.
    4. Where part of cosureties were forced to pay judgment on note, they can not compel contribution to extent that proceeds of note were used by principal to cancel principalis indebtedness to cosureties.
    5. In action by cosureties for fixing liability as between themselves, entire transaction may be looked into.
   SULLIVAN, PJ.

1.Contribution is not founded on contract, but is the result of general principles of equity, which 'are based upon equalization of burdens and benefits.

2. Where there is raised an implied as-sumpsit on the palrt of a cosurety to pay his proportion of the loss resulting from a concurrent liability to pay a common indebtedness, the law of equitable obligation to contribute to such payment applies.

3. Where some of the cosureties on a note had become insolvent, such insolvency rendered the ordinary rules of contribution by cosureties to the payment of the judgment rendered against them on the note ineffective as to such insolvent cosureties.

4. Where a part of the cosureties on a note were forced to pay judgment on such note, they could not compel contribution for the payment of such judgment from the other co-sureties to the extent that the proceeds obtained by the giving of the note had been used by the principal to cancel the principal’s indebtedness to plaintiff cosureties.

_ 5. In an action by cosureties on corporation’s note for contribution from other cosureties to pay the judgment obtained against the plaintiffs, for the purpose of fixing the liability as between the parties themselves, the entire transaction to determine rights and equities could be looked into.

(Vickery and Levine, JJ., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: BY THE COURT.

text:
    SAUNER v. DRAGOO
    Ohio Appeals, 4th Dist., Highland Co.
    Decided Jan. 25, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    1255. WARRANTY — 997. Real Estate.
    1. Covenant of general warranty, as expressed in this deed, held to be joint and several.
    2. Where warranty is joint and several, fact that each owned an undivided one-half interest in property can not limit liability in proportion to quantity that each owned and conveyed.
    Error to Common Pleas.
    Judgment affirmed.
    Wilson & Morrow, Hillsboro, for Sauner.
    McMullen & Durnell, Hillsboro, for Dragoo.
   FULL TEXT

BY THE COURT.

The only question in this case is whether a certain covenant of general warranty in a deed executed by tenants in common is joint and several. It is our conception of the law that this question _ must be determined from the terms in which the covenant is expressed. Rawle on Covenants, p. 508. The covenant in this inquiry reads as follows:

“And the said Lewis S. Sauner, Ora C. Sauner, Alta E. Sauner and Malinda F. Sauner, for themselves and their heirs, executors and administrators, do hereby covenant with the said F. C. Dragoo, his heirs and assigns, that they are the true and lawful owners of said premises and have full power to convey the same; and that the title so conveyed is clear, free and unincumbered; and further, that they do warrant and will defend the same against all claim or claims of all persons whomsoever.”

The language of this covenant expressly binds both Lewis and Ora Sauner for any breach thereof and they are both liable. There is no room in its terms to warrant any limitation of their liability. It is joint and several and the fact that each owned an undivided one-half inteiest in the property can not limit their liability in proportion to the quantity that each owned and conveyed. Williams v. O’Donnell, 74 Atl. 205, Carleton v. Tyler, 16 Me. 392; Cornings v. Little, 24 Pick. (Mass.) 266, 7 R. C. L., p. 1092.

(Middleton, PJ., and Mauck, J., concur. Thomas, J., not participating.)_


text:
    MARKET et v. FOUTS
    Ohio Appeals, 3rd Dist., Henry Co.
    No. 189.
    Decided Nov. 4, 1927.
    First Publication of this Opinion.
    Syllabus by Editorial Staff. •
    225. CHARGE OF COURT — 1195. Trial.
    Mandatory for court to permit jury to take written-instructions in retirement. Failure is error .calling for reversal.
    191. BURDEN OF PROOF — 923. Pleadings.
    Affirmative averments not affirmative defenses. Unless affirmative defense is pleaded, burden of proof is upon plaintiff.
    Error to Common Pleas.
    Judgment reversed.
    J. P. Vandenbroek and Jas. P. Ragan, Napoleon, for Market.
    Otto W Hess, Napoleon, for Fouts.
   PULL TEXT

Before Judg-es Crow, Hughes and Justice.

HUGHES, J.

We have spent many days in reading the voluminous record before us in this case that we might intelligently .pass upon the numerous errors assigned. '

There are but three which we deem of sufficient importance to call for a discussion here. They arc, relative to the misconduct of the attorney for -the plaintiff, during the trial; the refusal of the court, upon the request of the defendants, to permit the jury to have with it in its deliberations, the special requests that were given before argument on behalf of the defendants; and the charge of the court placing the burden of proof upon the defendants in respect to the affirmative aver-ments contained in their answer.

To use the expression of Judge Shauck in the case of Railroad v. Pritschau, 69 OS. 444, the record before us contains the solemn assurance that there were many indulgences by counsel for both sides, both in their conduct and questions "directed to witnesses and in the remarks made to witnesses and to each other, that were quite unbecoming in the orderly trial of a lawsuit, and it is only proper to say that the permission of such conduct on the part of attorneys engaged in the trial of lawsuits does not in any way tend to elevate or increase the respect of the attending layman for courts and the administration of justice by the machinery provided therefor.

The entire argument of counsel is not contained in the bill of exceptions and we are unable to say whether or not the remarks as found in the extracts, were brought out by counsel on behalf of the defendants, but we deem this sufficient comment upon the conduct of counsel inasmuch as in the other grounds of error we find sufficient merit calling for a reversal of the judgment.

As held in the case of Cohn and O’Dell v. Bright, 68 OS. 543, it was mandatory for the court to permit the jury to take the written instructions in. their retirement, and this was error calling for the reversal of the judgment.

In placing the burden of proof upon the defendants regarding the affirmative averments contained in the answer of the defendants, the court also erred. Unless there is plead what is known to the law as an affirmative defense, the burden 'of proof is upon the plaintiff. The affirmative . averments regarding the character of the plaintiff, and like aver-ments, while averments of facts were not affirmative defenses, the same facts being-provable under a general denial, and the answer- therefore was in effect simply a general denial of the case made in the petition of the plaintiff, leaving- the burden of proof remaining with the plaintiff to make out her case by a preponderance of the evidence.

Por these errors, the judgment must be reversed.


author: JUSTICE, J.

text:
    AIKEN v. CINCINN., SAND’Y & CLEVE. RY. CO. et.
    Ohio Appeals, 3rd Dist., Logan Co.
    No. 760.
    Decided Jan. 7, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    445. EASEMENTS — 991. Railroads — 357. Deeds — 997. Real Estate.
    Where, right of way deed conveys easement and noi fee, owner held to have right to use underground way in any manner that does not reasonably interfere with use for railroad purposes.
    Appeal from Common Pleas.
    Injunction granted.
    Dow Aiken, Charles Aikin and Hale & McGee, Bellefontaine, for Aiken.
    West & Campbell, Bellefontaine, for Railway Co.
   PULL TEXT

Before Judges Crow, Hughes and Justice.

JUSTICE, J.

This is a suit in injunction and comes to us on plaintiff’s appeal from the Court of Common Pleas of this county, and is submitted on the evidence.

The plaintiff seeks, by this suit, to restrain the defendant from interferring with her use and enjoyment, as a passageway for stock, vehicles and pedestrians, of that certain underground way which lies across defendants right of way and connects her lands.

The defendant admits that it purposes to prevent plaintiff from so using and enjoying said way, and denies that she has a right to an injunction forbidding it so to do.

The question is: Has plaintiff a right to so use and enjoy.said underground way as it is now constructed?

Counsel and the parties are well acquainted with the facts in this case.' It will therefore be neither interesting nor profitable to set them forth in detail. ' Suffice to say the evidence -and concessions disclose that plaintiff has the legal title in fee to the land on which the passageway is constructed, unless the deed from James Reed and others to The Mad River and Lake Erie Railroad Company, the defendant’s predecessor in ownership, conveys to it a fee simple estate therein. This deed reads as follows:

“Right of Way. This indenture made the 23rd day of July, A. D. 1845, Witnessed:
“That whereas the Mad River & Lake Erie Railroad company have under the provisions of their charter, surveyed and located their line of railroad which survey and location crosses over and upon the following' described premises, to wit: the southwest quarter of Section 6, town '3,'range 14, in consideration that the said railroad company cause to be constructed two open culverts under the road at the west line of said quarter and at the south line of the same where the road enters and leaves said quarter section, and in further consideration that the said railroad company pay $2.50 for each and every apple tree destroyed in said quarter section in consequence of the construction of said railroad. Culverts not to be less than five feet wide, no timber to be taken off this quarter for construction of bridges. And in consideration of the sum of $1.00 to us in hand paid by said company, the receipt whereof is hereby acknowledged, that James M. Reed, Duncan M. Reed and Ebenezer E. Reed of the township of Harrison, county of Logan and State of Ohio, do hereby grant, bargain, sell, release and convey to said company and to their successors and assigns, the exclusive right of entering upon, occupying and improving all that portion of the above described premises to the width of one hundred feet upon which said railroad is located, and the soil, stone and wood thereon being and growing, to take, use and improve for the purpose of constructing and using said railroad as long as the same shall be used by said company, hereby releasing to said company all damages we may have or may hereafter sustain by reason of the premises.
“In Witness Whereof, we have hereunto ■set our hands and seal this 23rd day of July, A. D. 1845. Signed, James M. Reed, Duncan M. Reed, E. E. Reed. In the presence of Jerrard S. Dawson.
“The State of Ohio,. county, ss: Personally appeared before me, a justice of the peace in and for said county, the above named who acknowledged the signing and sealing of the foregoing deed of release to be his act and deed, this.day of.. 184...., .J. P.
“Received August 19, 1895 at 3 o’clock P. M. Recorded August 23, 1895, William Stough, Recorder.”

We have carefully examined and considered this deed and ase unanimously of the opinion that it does not convey to defendant’s predecessor in ownership, the fee in said right of way, but only an easement therein. Plaintiff, therefore, has a right to use said underground way in any manner that she' may- see fit that does not unreasonably interfere with its use by defendant for íailroad purposes. 70 OS. 113. 12 O. C. C. R. 743-749.

N o claim is made that the use to which plaintiff intends to put said underground way, as it is now constructed, will unreasonably or otherwise interfere with defendant’s use of it for railroad purposes.

Other facts appear in the evidence, but we do not regard them as essential in the disposition of the question here. Plowever, we deem it fitting to say that the judgment we enter, is not intended to affect any question which may arise by reason of changed conditions incident to the use of the land by defendant or a successor, for railroad purposes.

Entertaining these views, it follows that defendant should be enjoined from interferring with plaintiff’s, use and enjoyment, as a passageway for stock, vehicles and pedestrians, of said underground way as it is now constructed. Judgment and decree accordingly.


author: WASHBURN, PJ.

text:
    DUDOCK v. ALEXANDER, et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1359.
    Decided Jan. 13, 1928.
    First Publication of this Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS.
    Provision, in contract for sale of real estate, that same is subject to owners being able to deliver free and clear and that on failure to deliver, down payment :s to be refunded, held not to give option of arbitrary rescission.
    753. MEASURE OF DAMAGES.
    1. For failure to perform contract for sale of real estate, is contract price, less value of real estate sold^
    2. Expense in having tenants vacate premises and loss of rent, held proper element of damages to be considered.
    Liability for commission held not proper element of damages.
    4. Cost of certificate of title procured in anticipation of contract being fulfilled held not proper element of damages.
    Error to Common Pleas.
    Judgment reversed.
    Jonathan Taylor, Akron, for Dudock.'
    Musser, Kimber & Huffman, Akron, for ' Alexander.
    STATEMENT OF FACTS
    In her petition, Anna Dudock stated that she entered into a contract with the defendant Mary M. Upperman, in which plaintiff agreed to purchase of Mrs. Upperman certain real estate, and in payment therefor agreed to deed certain real estate to Mrs. Upperman and pay her a certain amount of money. The agreement of the parties is in writing and is in part as follows:
    “Akron, Ohio, May 5, 1926.
    “Received of Anna Dudock $50.00, to apply as part payment on the purchase price of property * * *.
    “This agreement is made subject to the consent of owner and subject to Anna Dudock’s being able to deliver said Baird Street property free from incumbrance.
    “If Anna Dudock fails to deliver, this money to be refunded by the said Mary M. Uppeiman.
    “Accepted: C. P. Alexander, Agent,
    5-5, ’26, Mary Anna Dudock,
    M. Upperman. By Andy Dudock.
    “Akron, Ohio, May 25. 1926.
    “Received of Anna Dudock C/D 8140 issued to Anna Dudock and C. P. Alexander, Agent, for $450.00 pending satisfactory settlement of terms in sale contract.
    “The Citizens Savings & Loan Co.,-
    By Roy H. Musser.”

      The plaintiff refused to perform her part of the contract and brought this action to recover the $500 she had paid thereon. A jury was waived and the trial resulted in a judgment in favor of Mrs. Upperman for $500 for failure to comply with the terms of her contract.
    There is no claim that plaintiff failed to deliver a deed of her property because of her inability to convey the same free from incum-brance, but plaintiff in error bases her claim or right to recover the $500 paid, squarely upon the language of said contract, wherein it is provided that “If Anna Dudock fails, to deliver, this money to be refunded by the said Mary M. Upperman. . It is argued that, because of said provision in said contract, the plaintiff had a right to refuse to comply with the contract, for any reason, or for no reason at all, and recover what she had paid on the contract.
   OPINION OF COURT.

The following is taken, verbatim, from the opinion.

WASHBURN, PJ.

We cannot agree with plaintiff’s construction of this contract. We think that the language quoted must be construed in connection with the other provisions of the contract, and that when so construed, it means that if plaintiff failed to deliver a deed of her property because she was not able to convey it free from incumbrance, she should have a right to the return of the money paid, and that a failure to deliver simply because the plaintiff did not choose to fulfill her contract, constituted a breach of the contract, and, under th'e pleadings in this case, entitled Mrs. Upperman to damages against the plaintiff for such breach.

The court erred, however, in the assessment of damages. The proper measure of damages was not observed either in the evidence offered or in the judgment.

In situations like this, the general rule is that if the purchaser abandons the contract and fails to perform, the measure of damages is the contract price less the value of the real estate sold. Evidence was introduced tending to show that in consequence of plaintiff’s insisting that she be given possession, Mrs. Up-perman was put to some slight expense in having her tenants vacate the premises, and that she lost a small amount of rent. This, we think, in view of the conduct of the parties as shown by the record, being properly plead, wa.s a proper element of damages to be' considered.

The claim was also made, in the pleadings, and some evidence was introduced in support thereof, that while Mrs. Upperman had no contract therefor, she would be liable to Mr. Alexander, who was her agent in renting and managing the property, for a commission for-the sale of the same. Under the circumstances of this case, we do not think that this was a proper element of damages.

The same reasoning applies to the item for cost of certificate of title, which Mrs. Upper-man procured in anticipation of the contract being fulfilled.

Even if these items could be properly cofi-sidered, the judgment exceeds the. damages shown By the record, and, the judgment not being sustained by the evidence, is reversed and the cause remanded.

(Funk, J. and Pardee, J., concur.)