text:
    MOCK v SURDYK
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10126.
    Decided October 7, 1929
    Frank W. Emslie, Cleveland, for Mock.
    E. H. Meisel, Cleveland, for Surdyk.
   SULLIVAN, J.

It is clear from the contract that the brokerage to be paid was to be derived from the terms of the written contract. Is other words, all of the provisions of the contract are a condition precedent to the right to recover brokerage, for it is a well understood proposition of law, as well as a principle of common sense, that in order to entitle a broker to his commission on the ground that he has brought the parties together, and on the ground that they are ready, willing and able, it must depend upon the terms and conditions of the contract of exchange and sale, and one of the provisions of this contract is that certain conditions must be complied with and in a most material and vital way they were not complied with, because to consummate the sale there would be a loss to one of the parties of the sum of $900.00 by reason of the mortgage being $5000.00 instead of $4100.00.

It was an assumption upon which the broker was compelled to rely that the terms of the contract as to the amount of the mortgages would be substantially as stated therein. Otherwise a deal was being consummated which was not contemplated by the contract and so far as the evidence discloses the contract would not have been completed excepting according to the terms of the agreement.

A broker cannot secure his commission unless he furnished a purchaser who is ready, able and willing under the terms and conditions of the contract, and a purchaser ready, able and willing to purchase under the terms which are not included in the contract is not the consummation of a sale or trade which entitled him to brokerage because he is making a trade or sale which is not in contemplation of the parties and which is out of accord with the provisions of the agreement.

Holding these views the judgment of the lower court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


source: Caselaw Access Project

author: MAUCK, J.

license: Public Domain

text:
    MIDDLESWART v WHITING
    Ohio Appeals, 4th Dist, Washington Co
    Decided Oct. 9, 1929
    R. M. Noll, Marietta, for Middleswart.
    C. D. Fogle, for Whiting.
   MAUCK, J.

It is vigorously urged that no negligence on the part of the defendant was established and that if any were established that such negligence was not the proximate cause of the boy’s injury but that his .injury w,as rather due to his own careless running in front of the defendant’s machine. It is impossible to ascertain the exact facts. The plaintiff, however, made a case for the jury. There is evidence tending to show that the defendant was driving at an excessive speed, considerably beyond the rate fixed by law as establishing a prima facie case of unlawful speeding. While the greater number of witnesses testified to the contrary, the jury may have believed that the defendant was driving at a negligent rate of speed and if it so believed it may well have found that the negligence in that respect proximately caused the plaintiff’s injury. The plaintiff testifies that he was standing on the wagon driven by his father and the jury might well have found that if the defendant had been moving more slowly the plaintiff might either have seen the approaching machine and avoided the injury or the defendant might have had his car under such control that he could have either avoided the collision altogether or have inflicted much less injury than he did. That the defendant was guilty of negligence in some way is strongly supported by his failure to stop his car within a reasonable distance after the collision. The fact that he proceeded for something like 170 feet after striking the boy warranted the jury in believing that he was going at a negligently rapid rate or that his brakes were not operating effectively. The evidence further tended to show, and this too is strongly disputed, that the wagon upon which the plaintiff was riding was right up against the curb on the right band side of the street, and that the defendant in order to avoid some rough places in the street on his right side was driving in the middle of the street and right next to the wagon upon which the plaintiff had been riding. If the jury took this view of the case it may well have found that the defendant was negligent altho he was travelling, much less than tweny five miles an hour because it may have found that in view of the fact that he was in the center of the street he was bound to go much more slowly in order that just such an accident as happened might be prevented. All these were matters properly submitted to the jury and we have no inclination to disturb the findings it has made.

The plaintiff in error also urges that error intervened because of the use or misuse of a memorandum taken from the files of the police department of Marietta relating to the accident. This memorandum was first admitted but later the court properly held it to be incompetent.. Notwithstanding the court’s ruling it appears that counsel for the plaintiff in the course of his argument said this:

“Lieutenant Mills gave testimony on that 'stand which is' before the jury in these words: ‘They went out to adjust the matter among themselves’.”

The defendant objected to this and the objection was overruled. The objection ought to have been sustained. Lieutenant Mills did not testify that the parties went out to adjust the matter but only testified! that he told them to go out and adjust the matter, and there was no evidence in the case that they had gone out to adjust the matter themselves except that the memorandum which had been ruled out stated: “Parties will adjust matters theirselves”. While, therefore, the argument complained of was improper and defendant’s objection ought to have been sustained, we can not find that it was so prejudicial as to justify a reversal. Indeed, we can not see that any prejudice resulted at all.

A more serious question arises in the examination by plaintiff’s counsel of prospective jurors on their voir dire. The jurors were asked whether they were interested in any insurance company insuring owners of automobiles against liability. To this the defendant objected and the objection was overruled. The action of the trial court in overruling the objection was authorized and required by the doctrine of Pavilonis vs Valentine, 120 OS. 154; 165 N. E. 730. By the Pavilonis case it was finally and definitely determined in this state that it is not error to inquire of a prospective juror regarding his possible interest in or relation to the casualty insurance company. Everyone realizes the difficulties in such a situation as this. The plaintiff has an undoubted right to ascertain the possible interest of prospective jurors in the outcome of the litigation in which they are to sit. Everyone also realizes or ought to realize the impropriety of surreptitiously giving to the jury the idea that a verdict for the plaintiff will in the last instance fall upon some insurance company rather than upon their neighbor, the nominal defendant. In a comprehensive note to Jessup v. Davis, 56 A. L. R. 1403, it is said on page 1529 that while the general rule is that the jurors may be inouired of as they were in this case nevertheless

“The rule is qualified by the requirement of good faith and honest purpose on the part of the plaintiff’s attorney.”

In the case at bar James Whiting, the father of the plaintiff, testified that the defendant said “that he belonged to an insurance company. This answer was not elicited, however from any question propounded by plaintiff’s counsel but in response to the questioning of the defendant’s counsel, and the court properly charged the jury to. give no consideration to the fact thus brought out. The worst feature of the case arose on the cross examination of Mrs. Harris. The plaintiff was properly seeking to show that the Witness had made statements to others in regard to what she saw at the time of the .accident. This question was put to her:

“Then didn’t you later make a statement for the adjuster who called at your home?”

Objection was made to the use of the word adjuster. It was sustained .and upon motion of the defendant the court directed the jury to disregard the term. Thereupon the defendant moved to withdraw a juror and direct a mistrial, and this was overruled. The witness then proceeded to testify that the written statement she had made was to an insurance man. It thus happens that it appeared to the jury beyond any doubt that the case at bar was one in which the. defendant was protected by liability insurance. If it were clear that this information reached the' jury solely because counsel for the plaintiff used the word adjuster when he could easily have avoided doing, so we would be constrained to the view that the verdict had been tainted by such misconduct. It was, however, brought out, as we have already indicated, by the cross examination of the defendant that an admission of Mr. Middleswart to this effect was testified to by Mr. Whiting. While, therefore, we have no disposition to condone the action of counsel for the plaintiff in emphasizing the relation between the parties by using the word adjuster, it appears that the jury was so otherwise acquainted with the fact that the impropriety in this respect resulted in the jury securin'- no added information.

We find no prejudicial error in the case and the judgment is consequently affirmed.

Middleton, PJ, concurs. Blosser, J, not sitting.


author: SULLIVAN, J.

text:
    ALBERT FUR SHOP CO v MOSKOWITZ
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10040.
    Decided October 7, 1929
    Messrs. Klein, Harris & Diehm, Cleveland, for Fur Shop Co.
    Messrs. Sanders, Monaghan. & Sanders, Cleveland, for Moskowitz.
   SULLIVAN, J.

It appears that two years after the purchase of the goods in question the Seidners moved to Cleveland and incorporated The Albert Fur Shop Co., under the laws of Ohio and did .business at East lQ5th St. in this city. In order to hold the Ohio corporation, it would have to be shown by the record that the assets of the New York corporation were taken over by The Albert Fur Shop Co., the Ohio corporation and that there was a mutual agreement that the successor corporation would pay the debts of the. old corporation, particularly the debt in question, but there is no evidence of a legal nature in the record, establishing this foundation for recovery. On the contrary it appears that the Seidners personally assumed the indebtedness by correspondance that what was known as the Albert Fur Shoppe, was not a corporation but a partnership of the Seidners, notwithstanding that subsequently The Albert Fur Shop Co., was organized under Ohio laws, and these letters are signed by Mrs. Seidner and S. Seidner and there are several of them which are convincing as against the Seidners personally although at the time the property was sold, the Seidners were doing business as a New York corporation.

We do not think that the court, under the record, in pronouncing judgment against The Albert Fur Shop Co., had any foundation in law for such action as there was no evidence of an affirmative nature that the deal was made with the Ohio corporation or that the Ohio corporation succeeded to the assets and had agreed to take over the accounts of the corporation in New York. In fact there is no connection between the Ohio corporation as to the responsibility for the old, accounts with the New York corporation or with the partnership or the individual, and therefore we find no basis for the conclusion reached by the learned judge below.

Holding these views the judgment of the lower court is hereby'reversed and the cause remanded for further proceedings according to law, on the ground that the judgment is contrary to the weight of the evidence and the law.

Vickery, PJ, and Levine, J, concur.


author: WILLIAMS, J.

text:
    CLARK v STUDEBAKER CORPORATION et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9710.
    Decided August 2, 1929
    Messrs. Arthur P. Gustafson and Louis Fernberg, Cleveland, for Clark.
    Messrs. Henderson, Quail, McGraw & Morgan, Cleveland, for Studebaker Corporation et.
   WILLIAMS, J.

Even though there is no evidence in the record tending, to prove either that Fisher bought the car or was the agent of both of the defendants at the time of its sale, yet these facts are not vital. The mortgage by its terms gave the mortgagee the right to take possession of the mortgaged car and sell it at private sale without notice, and also provided that the mortgagee could become the purchaser at such sale. It follows that if the mortgagee or an agent of the mortgagee, or any one else, bought it at such sale, the sale would be valid and the purchaser would get. a good title. It does not follow, however, that the mortgagor would have no remedy against the mortgagee. The sale being valid, cannot be set aside, and obviously an action for an accounting could bring, no results in the instant case.

The plaintiff below sought her remedy by way of damages.. There is evidence in the record tending to show that, the property was sold by the Studebaker Corporation, which had taken back the notes and mortgage from the Industrial Acceptance Corporation, for much less than half of its market value at the time of the sale and for about a third . of the price for which it had been sold six months before, and that the Studebaker Corporation at the time of the sale knew that the plaintiff had paid about one-half the purchase price and had funds with which to pay all notes that had matured according to their terms, and was endeavoring to raise the money to meet the whole indebtedness.

If the facts in this case are not sufficient to warrant the submission of the cause to the jury, then in every case in which a mortgage provides for repossession of mortgaged property and sale of the same at private sale without notice to the mortgagtor, the mortgagor is wholly at the mercy of the mortgagee.

We are still of the opinion that the court erred in directing a verdict and that the question whether the sale was made fairly, openly and in good faith should have been submitted to the jury. Application for rehearing denied.

Lloyd and Richards, JJ, concur.


author: . RIQHARDS, J.

text:
    MOREY v BRECKENRIDGE CO
    Ohio Appeals, 6th Dist, Erie Co
    J. F. McCrystal, Sandusky, for Morey.
    Quigley & Byrnes, Cleveland, and King Ramsey & Flynn, Sandusky, for Breckenridge Co.
   . RIQHARDS, J.

The record discloses that Lyon never used or had authority to use the truck except in and about the company’s business, and it had no knowledeg.e that he was using it on the day when the plaintiff was injured. The fact that he had worked ten or fifteen minutes beyond the usual quitting time at noon, certainly gave him no authority to take this, truck withhig employer’s consent. It was no concern of his employer whether he rode home on the street car for his midday meal or obtained the meal downtown near the place of business. The competency or incompetency .of Lyons as a driver is immaterial for, in any event, the record is utterly devoid of any evidence showing or tending to show authority or permission, general or special, express or implied, of Lyons to operate, this truck for his own private conveniences.

For the reason given the defendant would not be liable and the judgment must be affirmed.

Williams and Lolyd, JJ, concur.


text:
    BOOKER v STATE
    Ohio Appeals, 4th Dist, Athens Co
    Decided August 27, 1929
    Messrs. Woolley & Rowland, Athens, for Booker.
    Mr. R. D. Williams, Athens, for State.
   MAUCK, J.

It is here urged that incompetent testimony was admitted to the Drejudice of the accused. The record shows clearly enough that Booker had been twice convicted of violating the ijquor laws as charged in the indictment. In proof of the allegation that Booker had been convicted in a, court of a justice of the peace the docket entries of the trial justice were placed in the record by the evidence of the successor .in office of the trial justice. In addition to that the clerk who made up the docket in that case was called and testified that the docket was made up from the papers in the case. We see no objection to either or -both methods of the proof in this respect.

It is further urged that the court erred in admitting, in' evidence a transcript of the docket entries made by the justice in the preliminary examination of the case on trial, and it would, of course, be incompetent to admit this record as evidence of the truth of the averments of the affidavit embodied therein. The record, however, disclosed that when the accused was arraigned on the charge of which he now stands convicted he entered a plea of guilty. The state was entitled to show this as a confession of guilt, and to identify .it as a confession of guilt in the instant case it was proper to show that it was made under an affidavit charging him with the particular offense upon which he was being tried. It was competent for' that purpose.

Further complaint runs to questions propounded the accused upon cross examination tending to show his guilt of other offenses. This character of testimony was justified by defendant’s attitude on the stand. -None of it would have been elicited if he had frankly told the truth in regard to his two previous convictions. He evaded proper questions designed to bring out the truth, and so dodged and equivocated that the state naturally enough elicited a number of court appearances of the accused in its effort to bring out the two appearances and convictions upon which its case depended.

A question of greater difficulty arises from the introduction and the offer to introduce testimony running to the defendant’s good character and the rebuttal evidence thereto. It is a well grounded principle in this and practically all other states that one accused of a criminal offense has a right to prove his good character to further fortify the presumption of innocence which the law gives him. It is also well established in this state that as indicating the character of the accused he may show the good reputation he has in the community in which he lives. In showing his character, however, he is confined to that'trait of character that is inconsistent with guilt of the offense charged in the indictment. The accused in this case attempted to qualify a witness to testify to the general reputation of the accused fox truth and veracity. The ob-, jection thereto was properly sustained. ¡Sucn a reputation might .properly be shown in a case of perjury but it is not a trait involved in the unlawful possession' of liquor. He then attempted to qualify a witness as to

"the general reputation of Mr. Booker for being a peaceable, quiet, law abiding citizen.”

Objection was made to this question because it included the traits of peaceableness and qufetude. The court sustained this objection, observing that the crime charged was not one of violence, and in this the court was right for it is of course true that bootlegging may be both peaceable and "quiet. Thereupon the record shows this:

“Q What is his reputation in that respect, good or bad?
A You mean his reputation as a citizen in regard to outside .of this bootlegging deal? Is that the way you want me to answer?
Q Outside of the charge against him in this trial?
A Is go.od.”

This disclosed that the witness and the parties understood that the court had limited the witness to testifying to the reputation of the accused as a law abiding citizen, and while the witness did not say he was qualified he had shown his qualifications and in this way testified that the accused enjoyed a good reputation as a law abiding citizen.

It is difficult to say just what trait of character is involved in a great many offenses that are deemed mala prohibita only and great difficulty has been experienced in laying down any rule that covers such cases. Yet the law is that good character may always be shown. Chamberlayne in Section 3271 of the Modern Law of Evidence.

The same author says (Section 3296) that in the prosecution for a s,ale of intoxicating liquors the character evidence must be confined to the trait involved and that the accused may not show a good reputation as á law abiding citizen or for peaceableness and quiet. The authorities cited are Chung Sin v. United States, 4 Ariz. 217, 36 Pac. 205; Westbrooks v. State, 76 Miss. 710; 25 So. 491, and Baehmer v. State, 25 Ind. App. 597, 58 N. E. 741. These cases do not quite sustain the text. They do tend to the view that the only objection against showing a good reputation for being‘law abiding in behalf of one charged with violating the liquor laws is that such reputation is too general and that it should rather be confined to a reputation as a law abiding citizen with reference to the particular sort of law which the accused is charged with' violating. There must, however, be some expression that can be employed by one accused of an offense of this kind designed .to bring out the good .character of the accused, and nothing occurs to us as being better adapted to that purpose than proof that he is a law abiding citizen. That is to say, that he has a regard for the law and observes it because it is the law. So viewing it, we look upon the testimony above quoted as evidence of the accused’s good character upon the trait involved in this case, and by bringing out this testimony the accused opened up the question of his good character and made it possible for the state to rebut it. The state did attempt to rebut it by evidence tending to show that the reputation of the accused as a law abiding citizen so far as the liauor laws were concerned was bad, and' this testimony we find to have been competent as a matter of rebuttal.

The record discloses no error to the prejudice of the plaintiff in error and the judgment is affirmed.

Middleton, PJ, concurs. Blosser, J, not sitting.


text:
    LOCKE v STATE
    Ohio Appeals, 4th Dist, Scioto Co
    Decided August 30, 1929

      Messrs. Blair & Ball and Geo. W. Sheppard, Portsmouth, for Locke.
    Mr. Dustin W. Gustin, Portsmouth, for State.
   MAUCK, J.

We would not reverse the case as being opposed to the weight of the testimony. There is no question that Locke shot Mrs. Galloway and that she died as the result thereof. The jury tried out the question of the defendant’s mental competency and we would not disturb its finding in that behalf. There was no apparent motive for the killing and the testimony tending to show premeditation is very meag.er, but as there was some competent testimony frozn which the .jury might have found premeditatiozi and deliberation the conclusion of the jury will not be disturbed as against the weight of the evidence.

As before izidicated. the state called the defendant’s wife to the stand and examined her fully. At the time of the shooting there was no one present éxcept Locke, Mrs. Galloway and Mrs. Locke. Mrs. Locke testified to the shooting by her husband and, except as to a claimed admission, to whatever facts there were to establish premeditation on the part of the defendant. Her importance as -a witness, therefore, can not be questioned.

There were ,at common law two important rules relating to the testimony of husband and wife. Jones on Evidence, Section 2128. The first of these rules was that ,as no one could testify in a case to which he was .a party, and as husband and wife were one in law, so the husband or wife was incompetent to testify in a case in which the other spouse was a party. This rule made the wife absolutely incompetent to testify for or against her husbánd, and the rule was so absolute that in most jurisdictions it was held that the incompetency could not. be waived. The second rule was of a different character. It did not rest upon any fiction of the unity of husband and wife but had as its basis sound public policy. It was that neither spouse should testify in regard to any confidential communications between husband and wife. This rule was designed to encouz'age marital confidences and tho the marriage relation was thereafter dissolved a confidezice imparted during marriage could not be violated after the marital relation terminated. The first rule made the husband or wife wholly incompetent to testify in certain cases. The second rule made it incompetent for husband or wife to testify to certain particular things in such cases as they were competent witnesses. The first rule ceased to operate as soon as the marriage ceased to exist. The second rule continued to operate regardless of the continuance of the marriage. The first rule governed the power to testify and made the witness incompetent. The second rule conferred a privilege and made the evidence incompetent. Neither of these common law rules prevail in this state in their entirety, .but they do prevail except so far as they have been supplanted by statute. So far as criminal law is concerned the legislature has undertaken to change both rules by the provisions of 13«59 GC.

This is as far as the legislature had gone in making the wife a competent witness against her husband at the time of this trial, and it is consequently apparent that the first of. the common law rules above mentioned had not been sufficiently modified as to make a wife a competent witness for the state in the prosecution of her husband for any offense except those mentioned.

In the trial of this case these two common law rules and their statutory modification were confused. Counsel for the accused urged that the act of Locke in shooting could not be testified to by Mrs. Locke because no third person was present. This objection was untenable. Mrs. Galloway was present and her subsequent death did not change the fact that her presence robbed the act of any confidential character. The record is obscure but there appears to be but one incident or conversation to which Mrs. Locke testified over objection that was not in the known presence of a third person, and that was a conversation in the kitchen in the absence of Mrs. Galloway. The objection to this conversation would have been well taken if Mrs. Locke had been a competent witness. Mrs. Locke was, however, incompetent and her employment as a witness fatal unless waived by the accused. While at common law an absolutely incompetent person could not by agreement or waiver be converted into a competent one that rule no longer obtains. The' spouse is no longer absolutely incompetent. Husband or wife may testify for each other and this partial competency makes it possible for the accused to waive the competency of such witness when called by the state.

The most serious question in this case is whether Locke did waive the use of his wife as a witness against him. Manifestly the proper time to object to the use of an incompetent witness is when the witness is called to the stand or as soon thereafter as the disqualification appears. In this case Mrs. Locke was sworn without objection and her examination proceeded to some length. She testified to her marriage to the accused and to many facts prd incidents nrior to and leading up to the shooting, all without objection. When, however, the state first connected the accused with the shooting an objection was interposed on the g'.round that she was incompetent. While this objection came surprisingly late, and while, as pointed out, the subsequent objections were predicated. not upon her incompetency, as they should have been., but upon the ground that they violated the second rule above mentioned, namely, that they were privileged because not commited in the known presence of another, we conclude nevertheless that the one objection was made early enough and clearly enough to protect and save the rights of the accused in the premises and that it was error to proceed with the examination of Mrs. Locke after the first challenge of her competency was made. State v. Orth, 79 OS. 130.

For error in the admission of evidence the judgment is reversed and the case remanded for new trial.

Middleton, PJ, and Allread, J, concur.


author: EPITOMIZED OPINION SULLIVAN, PJ.

text:
    PAYNE v GREEN CAB CO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 8841.
    Decided October 22, 1928
    Messrs. Payer, Minshall, Karsh & Kerr, Cleveland, for Payne.
    Messrs. McConnell, Blackmore & Cory, Cleveland, for Cab Co. et.
   EPITOMIZED OPINION

An action for damages for personal injuries against one or more joint tort feasors, jointly and severally liable, is not barred by a judgment against a co-defendant, after ,a motion for a new trial has been overruled as to plaintiff, it appearing that such judgment is uncollectable, and in such case it is error for the court to grant judgment on the pleadings as against the plaintiff. To be a bar, the judgment first obtained must have been fully satisfied.' If only partially satisfied the joint and several liability is only discharged pro tanto, leaving a cause of action against the other tort feasors for the balance due.

Opinion by

SULLIVAN, PJ.

VICKERY & LEVINE, JJ, concur.


author: HORBECK, J.

text:
    HAMMAKER v DAYTON (City)
    Ohio Appeals, 2nd Dist, Montgpmery Co
    No. 879.
    Decided July 2, 1929
    Mr. Frank W■ Howell, Dayton, for Ham-maker.
    Messrs. John Harshman and Lon Volz, Dayton, for Dayton (Cit',).
   HORBECK, J.

It is apparent that any person who drives an automobile after dark in the city streets must take notice of the fact that the right side of every street, unless prohibited by law, will be used for parking purposes. In the absence of some reasonable explanation other than the mere statement that the driver did not see that which he, with the exercise of the simplest demand of caution, should see, it is but logical to presume that he was recklessly careless .in failing to see the object. This defendant,, in utter disregard of his obligation as a driver, drove into the auto-mile, hurled it 25 feet, struck and injured the prosecuting, witness, drove on without stopping, and made no attempt to inform anyone of his identity until the following day.

Undoubtedly he was frightened and had a sense of deep regret for the damage he had caused. This attitude is commendable and no doubt was taken into consideration by the trial court in fixing sentence, but it in no wise amounts to a d.efense, and we cannot say that the court erred in sustaining the judgment of the trial court. On the contrary, we are of opinion that the judgment of both courts was only that which the facts and the law demanded.

The judgment of the Common Pleas Court will be affirmed, and the cause remanded to the trial court for execution of sentence..

Kunkle and Allread, JJ, concur.


text:
    HARTWELL, et v CONSUMERS ICE & CREAM CO
    Ohio Appeals, 6th Dist, Sandusky Co
    No. 216.
    Decided Oct. 8, 1929
    Graves & Duff, Port Clinton, for Hart-well, et.
    Stahl, Stahl & Stahl, Fremont, for Company.
   WILLIAMS, J.

We are of the opinion it was in time. With the clause above quoted in the journal entry there would be no reason why the defendant would appeal as the journal entry, in its original form, was in favor of the defendant. The decree of the court as modified by the second entry became the ultimate decree in the case and therefore the period within which the appeal bond could be filed would run from the filing of the second journal entry.

We are therefore of the opinion that the motion to dismiss the appeal was properly overruled. .

Lloyd and Richards, JJ, concur.


author: LEVINE, J.

text:
    UNION TRUST CO v NUSBAUM
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10,144.
    Decided October 14, 1929
    Oliver Stamper, Esq., Cleveland, for Union Trust Co.
    P. L. Horwitz, Esq., Cleveland, for Nusbaum.
   LEVINE, J.

It will be observed that on May 15th the obligation of the note did not yet mature and, in our opinion. The Union Trust Company could not apply the money in its hands to the payment of a note which as yet did not mature.

The judgment of the Municipal Court is, in our opinion, correct, and the same is affirmed.

Vickery, PJ, concurs. Sullivan, J, not participating.


author: WASHBURN, J.

text:
    CARMICHAEL v BD OF EDUCATION et
    Ohio Appeals, 9th Dist, Summit Co
    No. 1733.
    Decided October 3, 1929
    Messrs. Rockwell & Grant and Smoyer & Smoyer, Akron, for Carmichael. -
    Messrs. Roetzel, Hunsicker & Olds, and A. B. Underwood, Akron, for Bd of Education et.
   Syllabus by

WASHBURN, J.

In the absence of fraud, the certificate of á fiscal officer required by 5625-33 GC, attached to a contract, certifying that the amount required to meet the same is in the treasury or in process of collection, is, as to the facts set forth therein, binding upon the political subdivision and upon the taxpayers of said subdivision, though the statements set forth in said certificate are not true.

Full opinion will be published later.


author: BY THE COURT

text:
    THRAVES v WHITE CITY BEACH ASSN
    Ohio Appeals, 6th Dist, Sandusky Co
    No. 218.
    Decided Oct. 8, 1929
    Stahl, Stahl & Stahl and M. G. Thraves, all of Fremont, for Thraves.
    James G. Hunt and I. G. Stout, both of Fremont, for Association.
   BY THE COURT

Since proceedings in error were not instituted to reverse the order of the court vacating the judgment and the time within which such proceedings might have been instituted has elapsed, the order so made is effective and can not now be disturbed.

The judgment being thus vacated, an. answer was filed by the defendant, in effect a general denial, and on the issues so made a trial was had resulting in a verdict for the defendant. The plaintiff now seeks to reverse the judgment entered on this verdict.

The evidence clearly shows that the alleged account stated was approved only by the president and secretary of the defendant and therefore could not in any event bind the association because the so-called declaration of trust "does not confer upon the president and secretary the authority to employ attorneys or other agents or to enter into contracts except by affirmative action of the board of trustees. We have carefully examined the record, and finding no error therein, affirm the judgment.

Williams, Lloyd and Richards, JJ, concur.


text:
    DAVIS et v JONES et
    Ohio Appeals, 6th Dist, Williams Co
    No. 175.
    Decided October 21, 1929
    Messrs. Rheinfrank, Simmons, Lindecker & Lamb, Toledo, and H. H. DeMuth, Bryan, for Davis et.
    Messrs. Chas. E. Scott, Bryan, and Geo. C. Rings, West Unity, for Jones et.
   WILLIAMS, J.

We are of the opinion that the court erred in overruling the motion. It appears from the record that the decree of March 1, 1929, was entered without notice to the defendants Angeline May Davis and Fred E. Davis, and was made without a revivor of the action in the name of the executrix of the last will and testament of the decedent. As her legatee and devisee under the last will and testament of decedent, Angeline May Davis was entitled to her day in court and no valid decree binding upon the estate of the decedent could be entered without a revivor.

For the reasons given the judgment of the court &glow will be reversed and the cause remanded for further proceedings according to law.

Lloyd and Richards, JJ., concur.


author: LLOYD, J.

text:
    KROGER GROCERY & BAKING CO v SCHWER, Auditor
    Ohio Appeals, 6th Dist, Erie Co
    No. 311.
    Decided October 21, 1929
    Messrs. Nichols, Morrill, Wood, Marx & Ginter, Cincinnati, and G. C. Steinemann, Sandusky, for Kroger Co.
    Messrs. King, Ramsey' & Flynn, and Clarence Moyer, all of Sandusky, for Schwer.
   LLOYD, J.

The only question involved is whether the sales of cigarettes by plaintiff hereinabove enumerated constituted engaging “in the wholesale business of trafficking in cigarettes” within the meaning of 5894 GC. According to Webster the term “traffic” means “to pass goods and commodities from one person to another for an equivalent in goods or money” and the term “business”, in a general sense, includes every kind of employment, the purpose of which is to gain a livelihood or obtain a profit, but as used in this statute it has, in our judgment, a more restricted meaning. The legislature has not defined what shall constitute “wholesale business’.’ as that term is used in this statute, although it would seem peculiarly proper, if not essential, that this should have been done.

Every one at all familiar therewith knows that it has "always been customary for retail dealers of cigarettes to sell, upon request therefor, one or more car-' tons, and hitherto no one has questioned the propriety of doing so. It would seem, therefore, that it must be assumed that the Legislature intended the statute to apply to sales of larger quantities than custom had established as being within the proper scope of retail business. Since, under the statute, each of the stores of plaintiff must be considered as separate places of business, we have before' us four actions rather than one, because the question of whether any one of them is “engaged in the wholesale business of trafficking. in cigarettes” must be determined by the character of the business conducted in each store and not by the aggregate of the business carried on in all of them, since the statute provides that the assessment to be paid is “for each place where such business is carried on”. In the instant cases, whatever may be the facts otherwise, the evidence discloses but a single sale of one or more cartons in any of these stores, except one of them, where one sale of two cartons was made in February and one of five cartons in April of 1928. In our judgment, a single act or transaction or two isolated and separate transactions, at least under the circumstances disclosed by the evidence, does not constitute engaging “in the wholesale business of trafficking in cigarettes” within the intent and purpose of this statute.

We therefore find in favor of the plaintiff. Decree accordingly.

Williams, J, concurs. Richards, J, not participating.


author: VICKERY, P. J.

text:
    STATE ex CERMAK v BARRY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9854.
    Decided April 15, 1929
    Messrs: Orgill, Masehke & Wickham, Cleveland, for State ex.
    Carl Shuler, Esq., Cleveland, for Barry.
   EPITOMIZED OPINION

Where the conviction of the captain of a city fire department was reversed in the Federal Court because the evidence upon which he was convicted was procured by entrapment, there being no question otherwise as to his guilt, he is not, on mandamus, entitled to reinstatement in the fire department as against a rule disqualifying a member because of “conduct unbecoming a gentleman.”

Opinion by

VICKERY, P. J.

SULLIVAN, J. concurs.

LEVINE, J. dissents.


text:
    BREWER v STATE
    Ohio Appeals, 4th Dist, Gallia Co
    No. 133.
    Decided October 17, 1929
    Mr. R. M. Switzer, Gallipolis, for Brewer. Mr. Harry M. Miller, Gallipolis, for State.
   BY THE COURT

It is contended that this record should not have been admitted for the reason that no testimony followed its admission that the plaintiff in error is and was the same person charged and found guilty in the case aforesaid. The only evidence connecting plaintiff in error with the case before the justice is his answer to the following question submitted to him on his direct examination:

“Q Will you please state whether or not you ever plead guilty before justice of the peace Allshouse in Gallipolis Township, Gallia County, Ohio, April 1,1925, to receiving intoxicating liquors or any other charge?
A I did not.”

In a way Brewer’s answer to this question might be interpreted as a tacit admission that he w,as the person named in the case before the iustice. • On the other hand, however, his answer might well harmonize with the presumption that he was not the defendant on trial in said case and for that reason did not plead guilty as the record shows. At any rate, we are bound to give the accused the benefit of the doubt and hold that on the question of his identity as the defendant named in the prior case the evidence is not sufficient. This conclusion does not require a reversal of the judgment but merely a modification thereof.

So much of the judgment as recites that the accused was guilty as charged in the affidavit of the unlawful possession of intoxicating liquor is affirmed, but so much of the judgment as recites that the accused was guilty of a second offense is vacated. And as the accused was entitled to be sentenced as tho for a first offense and as it appears that he was sentenced as for a second offense the case is remanded to the trial court for resentence. In so doing this court does not mean that' it be implied that the new sentence be more or less severe than the original sentence. The only purpose of this is to give the accused the record to which he is entitled.

Judgment modified and case remanded for resentence only.

Middleton, P. J„ Mauck and Blosser, JJ., Concur.


text:
    McMENAMY v BD OF EDUCATION
    Ohio Appeals, 4th Dist, Athens Co
    Decided October 9, 1929
    Messrs. Woolley & Rowland, Athens, for McMenamy.
    Mr. R. D. Williams, Athens, for Bd of Ed.
   MAUCK, J.

Section 7669 authorizes the boards of education of adjoining' school districts to unite for high school purposes, and by the succeeding section it is provided that such high school shall be under the management of a high school committee consisting of two members of each of the boards constituting the joint district. Section 7671 provides that the high school shall be supported by appropriations from funds of each district in proportion to the property valuation of the respective districts. Section 7669 authorizes the boards of the two districts to submit to the electors of each district the questions of levying a tax for the purpose of purchasing. a site and erecting a building, and in such case a favorable vote must be had in both districts before the bonds can be sold • for the purpose of purchasing a site and erecting a building. The petition in this case does not show that it is proposed to purchase a site nor even to erect a building, but that it is proposed to use the funds now in the hands of the Jacksonville board in “the construction of or an addition to a school building in the incorporated village of Trimble.” It is fairly apparent, therefore, that the two boards propose to use the high school building now owned by the Trimble district and to put an addition thereto to take care of the needs of the new joint district. Section 7669 provides that if the boards have sufficient money in the treasury to purchase a site and erect such building, or if there is a suitable building in either district owned by the board of education that c,an be used for a high school building,' a vote is unnecessary and the boards may appropriate money from their funds for the purpose of securing, the high school building.

The two boards of education in effecting a union for high school purposes are thus given a large discretion. The statute could not be generally effective if it were otherwise. Every case in which a union is sought almost necessarily differs from every other case in the state. The districts differ in wealth; they differ in the number of children to be educated, and these differences in turn vary in degree from year to year. Every question that arises seems to confided to the judgment and discretion of the two boards except in the single case of a union where it is necessary to purchase a site and erect a building. In that case a favorable vote is required on the part of the electors of both districts. In all other, cases the authority of the two boards of education is complete and their judgment is conclusive.

In the case 'at bar the two boards of education do not appear to have found it necessary to purchase a site nor erect a new building. It is not clear just what is to be furnished by the Trimble board but it would appear that it • contributes a site apd building to the new enterprise and that Jacksonville contributes something like $15,000 which it has in its treasury for the purpose of securing a high school building. The propriety of this contribution was to be determined by the Jacksonville board and there is nothing in the situation to warrant the interference of a court pf equity. It is argued that the funds were raised thru the favorable vote of the Jacksonville electors in 1925 and that these voters expected that the funds would be used in erecting a building within the confines of the Jacksonville district. The petition shows, however, that the proposition voted for was not the erection of a building in the Jacksonville district but one for the Jacksonville district, and so voting the electors must be supposed to have contemplated every legal use to which the funds might be put, and this included the supplying of a high school building for Jacksonville district wherever it might be lawfully located. We do not find that the defendant board of education derived any power from Section 5625-13 GC. as amended July 26; 1929, nor that it required any further power than that afforded by Section 7669 et seq. The petition did not state a cause of action.

Middleton, PJ., concurs. Blosser, J, not sitting.


text:
    SMITH v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10188.
    Decided October 14, 1929
    Mr. Harold T. Gassaway, Cleveland, for Smith.
    Mr. L. O. Payne, Cleveland, for State.
   SULLIVAN, J.

It is claimed that there is no evidence of any traffic in liquor and therefore that under the authorities there can be no conviction for the mere possession of liquor, and no reasonable ground for the issuing of a search warrant but from a reading of the record it appears that plaintiff in error on three different occasions, before three different tribunals, was under process and hearing, for violation of the liquor laws and it further appears by the record, from the testimony of officers, that on various occasions parties were seen entering and departing from the suite of plaintiff in error in numbers and at such times as to arouse suspicion and there is a further' fact in the record that watching through the window, police officers saw men gathered around a table drinking although there is no evidence as to what they were drinking excepting from the circumstances of the case and the inquiries growing therefrom.

Thus we are of the opinion, from the record, that there are probable grounds for the issuing of the search warrant and also from the weight of the evidence we find there is sufficient testimony to support the charge made under the rules of criminal law, and thus holding we do not think that under the rulings of the Supreme Court that there is any right in the reviewing court to disturb the judgment.

Holding these views the judgment of the lower court is hereby affirmed.

Vickery, PJ., and Levine, J, concur.


text:
    STATE ex PLANCE v WAYNE CO BD of ED
    Ohio Appeals, 9th Dist, Wayne Co
    No. 857.
    Decided October 17, 1929
    Mr. Jospeh O. Fritz, Wooster, for State ex Planee.
    Messrs. Weygandt & Ross, Wooster, for Bd of Ed.
   WASHBURN, J.

The law in force at the time of the transactions here in question, permitted the township board to provide transportation for said daughter', but provided that—

“In no case shall such board of education be required to provide, high school transportation except as follows: If the transportation of a child to a high school by a district of a county school district is deemed and declared by the county board of education advisable and practicable, the board of education of the district in which the child ’•esides shall furnish such transportation.” 7749-1 GC.

It is apparent that the matter of transportation was, by law, committed to the sound discretion of said boards of education and that the law does not require such boards to furnish transportation under the circumstances disclosed by the record in this case, and hence the furnishing of transportation was not an act which the law specifically enjoined as a duty upon said boards, and therefore the court could not, by a writ in mandamus, require the furnishing of transportation; the court was fully justified, under the record, in rendering the judgment which was rendered, and the judgment is therefore affirmed.

Funk, PJ, and Pardee, J, concur.


author: PER CURIAM

text:
    MORRIS J. ROSE v SELMA E. ROSE, et al
    Ohio Appeals, 9th Dist, Summit Co
    No. 1716.
    Decided October 16, 1929
    Messrs. Rockwell & Grant, Akron, and Max P. Goodman, Cleveland, for Selma E. Rose.
    Messrs. Carl M. Myers, and Slabaugh, Seiberling, Huber & Guinther, all of Akron, for Morris J. Rose.
   PER CURIAM

It is claimed that the papers which were filed were not bonds because there were no qualified sureties thereon, — the bonds, except the two signed by Carl M. Myers, being signed only by co-defendants.

It may be assumed that where one of several defendants attempts to perfect an appeal, another defendant cannot properly be taken as a sufficient surety on the bond; but where such a bond is filed and approved in the manner provided by the statute, is it a nullity, or can a sufficient surety be supplied under 11363 GC?

Sec. 12226 GC seems to make the sufficiency of the surety a question for the determination, in the first instance, of the “clerk of the court or a. judge thereof,” and if that required approval is, in good faith, secured and the bond is filed in time, we do not think it is a nullity, even though the surety be insufficient; and hence, the appellee, under 12232 GC, or the appellant, under 11363 GC, may have the surety made sufficient.

Austin v. Morris, 103 OS. 449.

Some other objections to the bonds are suggested, but we think the court has power to and should permit the correction of all mistakes or omissions in the bonds, and therefore the motions to dismiss the appeals are overruled and the request to supply other surety and correct any uncertainties. is granted.

Funk, PJ, Pardee, J, and Washburn, J, concur.


text:
    BOHLEY et v CROFOOT et
    Ohio Appeals, 9th Dist, Medina Co
    No. 90.
    Decided October 17, 1929
    Messrs. John A. Weber, Medina, and Doolittle, Foust, & Holden, Akron, for Bohley et.
    Mr. Ralph G. Thomas, Akron, for Defendant Crofoot.
    Messrs. J. B. Palmquist, Medina, and Weiser & Weimer, Wooster, for Defendant Williams.
   PER CURIAM

We do not approve, of course, the acts of the defendant in establishing his junk yard upon his lot in this residential district, but in the absence of valid deed restrictions or a zoning ordinance, he has the right to use his property in such manner as he sees fit, without the interference of a court of equity, unless such use violates the vested rights of his neighbors.

Plaintiff has no interest in the property of the defendant, and cannot rightfully complain of the use thereof unless such use injures plaintiff’s right to use and enjoy his own property. The only restriction upon the right of either party in the use of his own premises is that one shall not use his own property in a way that violates the rights of the other. The mere unsightliness of the junk upon defendant’s premises violates no rights of the plaintiff, any more than an unsightly house or other building would; and a court of equity cannot, at the instance of one neighbor, control another neighbor in the use of his own premises when such use in no way violates the rights of said first neighbor; where no right has been invaded, although one may have damaged another, no liability has been incurred, and no redress, either in law or in eqmty, is obtainable.

Letts v. Kessler, 54 OS. 73.

Plaintiff’s rights are not invaded by the mere storage of automobiles upon the premises of the defendant, and a court of equity, therefore, has no right to prevent that being done; but plaintiff’s rights are invaded when-offensive gases, noises, odors or smoke, which are unusual in this residential district, are created by defendant upon his premises and pass over and upon the premises of plaintiff.

The evidence in this case establishes that the defendant, in the operation of the business of wrecking automobiles upon his property, does cause gases, noises, odors and smoke, which pass upon and over the premises of the plaintiff and injure him in the quiet and peaceable use and enjoyment of his premises; and such conduct on the part of the defendant is an invasion of the rights of the plaintiff and he is entitled to the protection of a court of equity to prevent such invasion.

We further find that it is not possible for defendant to prosecute his business of wrecking automobiles upon his property in the manner and method he has used in the past, without invading said rights of the plaintiff, and we do not see how it is possible for him to operate said wrecking business without thus interfering with the rights of plaintiff.

The plaintiff being without an adequate remedy at law, the defendant should be and is enjoined from the operation of the business of wrecking automobiles upon his said premises in such manner as to cause offensive gases, noises, odors or smoke to pass from his premises to the premises of plaintiff, and a decree for plaintiff may be accordingly drawn.

Funk, PJ, Pardee, J, and Washburn, J, concur.


author: LEVINÉ, J.

text:
    COMMERCIAL CASUALTY INS CO v WHEATMAN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10,070.
    Decided October 7, 1929
    Mr. E. A. Binyon, Cleveland, for Casualty Co.
    Messrs. I. Grohs and Alfred DeLorenzo, Cleveland, for Wheatman.
   LEVINÉ, J.

It is claimed that under the terms of the policy, no liability attached to pay indemnity. We are referred’ to the following provisions found in the policy :

“Does herein insure Ben Wheaton of Cleveland, Ohio, from the first day of October, 1927, beginning and ending at 12 o’clock noon, standard time *** against loss resulting directly and exclusively from sickness or disease contracted and disability beginning not less than thirty (30) days after the date of this policy above stated and while this Policy is in force and for which the Insured is treated by a legally qualified physician other than himself, hereinafter referred to as “such sickness” as specified in the following parts, respectively:

Section P. of that part of the policy headed “Standard Provisions” the first sentence thereof reads:

“A copy of application endorsed hereon is hereby made a part of this contract*** Compliance on the part of the Insured and beneficiary with all the provisions of this policy is a condition precedent to recovery hereunder and any failure in this respect shall forfeit to the Company all right to any indemnity.”

Section 15 of the Application reads as follows:

“I have not had, nor am I now suffering, from tuberculosis, paralysis, rheumatism, hernia, appendicitis, nor any chronic, or periodic mental or physical ailment or disease, nor am I crippled, or maimed, nor have I any defect in hearing, vision, mind or body, except as herein stated: “No exceptions.”

Section 16 reads:

“I have not been confined to the house '■ by sickness or accident during the last five years, nor have I consulted or been treated by a physician during that time, except as herein stated:
“In September 1926 for Ulcer of Stomach lasting 3~weeks.”

Section 17 reads:

“Last physician consulted was Dr. Berger, residence 1543 East Boulevard, Date May 1927 for General Examination.”

Section 18, reads:

“I have never undergone surgical operation except as herein stated: Date: October 1926 for Ulcer of Stomach. Result: Good. Policy applied for this 1st day of October, 1927.
Signature of applicant: Ben Wheatman.”

We are also referred to the cross-examination of Ben Wheatman by counsel for the insurance company, the substance of which is a statement by the assured that he was operated on for ulcer of the stomach and that he was suffering from same in 1926.

There can be no doubt that on December 3, 1926 he was operated upon by Dr. Hamann for ulcer of the stomach. Dr. Oldenburg who was Wheatman’s physician, testified to that effect. He also stated that Ben Wheatman, his patient, felt fair after the operation.

It is claimed that the indemnity of $200.00 per month is limited to sickness or disease contracted and disability beginning not less than thirty days after the date of the policy. It is pointed out that in view of the evidence this disease resulting. in disability, which was diagnosed as ulcer of the stomach, was a pre-existing disease; that the policy contemplated an obligation to indemnify the assured only for sickness or disease contracted thirty days after the date of the policy, and does not contemplate a pre-existing disease.

It appears that in his application the assured did not conceal the fact that he was operated on for ulcer of the stomach in 1926. He apparently made a fair recovery after the operation. There was a recurrence of same on November 26, 1927 .

Construing the policy most liberally as is the duty of the court to do, we are of the opinion that the provision referred to does not exclude a disease or sickness from which the assured had previously suffered but from which he apparently recovered prior to the issuance of the policy. The policy was issued with full knowledge on the part of the company that on December 3, 1926, the assured was operated on for ulcer of the stomach. They nevertheless accepted the premium and issued the policy and it may be reasonably inferred that both the assured and the company believed that the .assured had made a full recovery after said operation.

We find no error in the judgment of the Municipal Court and the same will be affirmed.

Vickery, PJ, and Sullivan, J, concur.


author: VICKERY, PJ.

text:
    SCHOOLEY v WILKER
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9969.
    Decided October 14, 1929
    Messrs. Milton C. Moore, Alliance, and Hyre & Hyre, Cleveland, for Schooley.
    Mr. Sydney A. Davies, Esq., Cleveland, for Wilker.
   VICKERY, PJ.

We think the matter can be disposed of very quickly and very easily and that is that such a claim is not tenable. The court in finding for the defendant in the sum of $423.04 only, allowing a credit for the difference in the rental of $25.00 a month for the time that the new tenant took possession up until the end of the original lease, comitted error.

Judgment reversed and final judgment for $963.50 and interest from the time of the commencement of the suit in favor of the plaintiff in error.

Sullivan and Levine, JJ., concur.


author: FUNK, PJ.

text:
    KAUFFMAN et v CORNELL
    Ohio Appeals, 9th Dist, Wayne Co
    No. 855.
    Decided October 17, 1929
    Messrs. Weygant and Ross, Wooster, for Kauffman et.
    Messrs. L. D. Cornell, Shreve, and H. R. Smith, Wooster, for Cornell.
   FUNK, PJ.

The principal issue in this case is whether or not, under all the facts and circumstances as shown by the evidence, defendant had the right to rescind his contract . with plaintiffs and have the amounts paid by him, refunded to him by the plaintiffs. The burden is, of course, on the defendant to show the claimed false and fraudulent representations as to said roof by a preponderance of the evidence.

Under the evidence in this case, we are clearly of the opinion that defendant has failed to sustain this burden and that even if there was any misrepresentation on the part of plaintiffs or their agent, concerning the roof on the building on the premises in question, defendant remained in possession and kept on paying without protest long after he -discovered the roof leaked and thereby slept on his rights, and by reason of such laches on his part, he was not entitled to rescind said contract at the late date he sought to do so. In fact, the testimony of defendant is to the, effect that the roof did not leak at the time he took possession of the property, and that there was no material leaking of the roof until about a year after the contract had been made. We therefore find no merit in this contention.

As to the claim that defendant did not have a proper deed, it is a well understood proposition of law that an owner of real estate may sell the same and put the purchaser in possession without giving a deed at all, and that the purchaser can then be as much the owner- of the property as if he had a properly executed deed for it; so that the mere executing and delivering, of a deed is not essential for conveying good title. A written deed, properly executed, delivered and recorded, is only for the purpose of making a record title, so that it may bejnore readily known who is the owner and so the title may be mere easily traced and the owner of it ascertained from the record.

As the record clearly discloses that the deed in question, which defendant claims was not properly executed because the notary did not sign the acknowledgement thereon, was in fact d’-’v signed, witnessed and acknowledged before U. S. Saunders, who was at the time a notary public, and everything pertaining to the execution and delivery of the deed was done except the mere signature of said Saunders as a notary public to the certificate of acknowledgement, we are of the opinion that the original deed, which is attached to the record as defendant’s exhibit 2, could and should be detached from the record by the plaintiffs and presented to said U. S. Saunders, who is yet living., for his signature as notary public to the certificate of acknowledgement, thereby completing what was actually done on „ Oct. 28, 1925, and leaving the dates stand in the deed and the certificate of acknowledegment just as they are; that the de.ed should then be delivered to the defendant, and that he should then attach to said deed the revenue stamps for which he received the money at the time the deed was delivered to him, and file said deed for record.

We therefore find no merit-in the claim of the defendant that he did not have a proper deed, and find, on the issues joined, for the plaintiffs and against the defendant, and that the cross-petition of the defendant should be dismissed and judgment entered for plaintiffs on their petition, similar to the judgment entered in the court below, and the cause remanded to the Common Pleas Court to carry this judgment into effect.

Pardee, J, and Washburn, J, concur.


text:
    THE REALTY BOND & MORTGAGE CO v BOGNAR et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9457.
    Decided February 11, 1929
    Messrs. Goulder, White & Garry, Cleveland, for Mortgage Co.
    Messrs. S. B. Fitzsimmons and W. H. Munson, Cleveland, for Bognar et.
   EPITOMIZED OPINION

The oral promise of a construction loan mortgagor to hold plaintiff harmless from mechanics’ liens, even though not considered within the statute of frauds, held not sufficiently proved because of insufficiency and conflicting character of eviclence.

Opinion by

SULLIVAN, J.

VICKERY, PJ, & LEVINE, J, concur.


author: PARDEE. J.

text:
    HORVITZ et v BLANTERN
    Ohio Appeals, 9th Dist, Lorain Co
    No. 502.
    Decided October 8, 1929
    Messrs. Fauver & Fauver and Anthony Nieding, Elyria, for Horvitz et.
    Messrs. Rudin & Keech and D. W. Myers, Elyria, for Blantern.
   Syllabus by

PARDEE. J.

A debtor gave a redelivery bond, under 11667 ■ GC., to the sheriff, who had levied an execution upon the automobile of the debtor. Subsequently, and within four months of the levy, said debtor was adjudged a bankrupt, and said debtor refused to deliver said property to the sheriff for sale under said execution, but did deliver the same to the trustee in bankruptcy, to be disposed of according to law:

Held, in a suit upon said'bond, that the discharge in bankruptcy of the debtor discharged the obligors upon said bond.

Full opinion will published later.


text:
    HOLTZ v LOVEJOY et
    Ohio Appeals, 8th Dist., Cuyahoga Co
    No. 9983.
    Decided June 24, 1929
    Messrs. John F. Wilson and Harold H. Gorman, Cleveland, for Holtz.
    Messrs: W. J. Patterson and J. M. Patton, Cleveland, for Lovejoy et.
   SULLIVAN, J.

It is important to note that the description of the property in detail with the memorandum in writing as a basis, was sent to Lovejoy in addition to the description and the deed which fully appears by plaintiff’s exhibit 9 in the record. Thus we reach the legal status in the case that there was no dispute as to the identity of the property by either party, as the description furnished by the abstract company in the deed and the exhibit referred to, so indicated. Now it is well settled law in Ohio that a memorandum in writing which identifies the property is sufficient upon which to base a suit for specific performance of a contract and it is equally well settled that if the memorandum pointed ■ to the identity of the land, oral evidence may be introduced to enlarge upon the description in order that it may be exact by metes and bounds or otherwise, and in the instant case it is our judgment that any resort to oral evidence outside the written option was upon this theory of the law that there was a legal sufficiency in the • written option itself to establish and identify the land in question, but in this .connection it is necessary to observe that as before stated, that there does not appear in the record anywhere but.that there was mutual understanding between the parties that there was no question about the identity and location of the property in question.

The principle of law just enunciated is based on Pomeroy’s equitable remedies and this author, in various sections of his work, elaborates and analyses this theory of the law. We call particular attention to Sec. 766 of the work just noted.

Able counsel for defendant cite Kling v. Bordner, 65 OS. 86 and 29 O. C. A. 63, and many other decisions of this and other courts, holding as a proposition of law that there must be no resort to extrinsic facts to aid the memorandum in writing in determining the identity of the property in question but these decisions in our judgment do not destroy the rule of law above noted that where there is only one reasonable conclusion from the memorandum and that this is the identification of the property that then and thereupon evidence of a nature technically describing the poroerty is competent proof for the reaábn that it does not vary the terips of the memorandum but only enlarges upon provisions as to identification which are already embodied in the instrument of writing in question.

The supreme court has settled the law as to what is a memorandum in writing and it is left to the facts in each particular case to determine whether there is a sufficiency of provisions to establish identity. If there is, it is a memorandum in writing and satisfies the Statute of Frauds. If there is not, then otherwise.

In the case at bar we find, first, that the quantity of land is absolutely determinative in the instrument itself; second, that the ownership in the land is beyond dispute as shown by the provision which stipulates that it bolengs to the estate of Mary Ellen Lovejoy; third, that the land is located on the west side of Wooster Pike in Middleburgh Township, and finally, judicial notice that Middleburgh Township is a part of Cuyahoga county and that Wooster Pike runs through it.

Now, while there is an absence of provisions as to the county and state in the option itself, yet there are two facts which cannot be eliminated from the case at bar. One is the exact description, in the deed that was sent to Lovejoy, and the same description sent to him by way of Ex. 10, made up by the abstract company from the option itself and from other data in the offices of the abstract company, but these two exhibits are instruments of writing and they are the joint products of the parties to this lawsuit establishing by mutual act such an enlargement of the written option itself that when the three instruments of writing are taken together there can be no question as to the identity of the property, and even if this were not so we think that under the law the option itself is a-memorandum in writing which indicates the identity of the property and that the oral evidence offered in the record decided its competency and regualrity in the fact that the option itself is sufficient to identify the property.

It must be remembered that the word “memorandum” means no more than it says. It is not intended that it shall be so replete with specific facts that nothing else could be added thereto. It is something that refreshes the recollection. It may be on one piece of paper and it may be on several pieces of haper if the writing of each may be combined with the others and then form a memorandum in writing that is sufficient. From the very nature of the term “memorandum” it indicates a naked skeleton which is later on to be clothed by facts which meet all requirements of exactitude.

The real point to be determined is whether in the minds of real men giving such construction to the language as is ordinarily implied, the description of the property and other data indicated in the writing ,are reasonably capable of being ascertained. So it is our judgment that the option in question is of sufficient legal substance to constitute a memorandum in writing.

The argument was made by able counsel for defendants that plaintiff had not performed. The answer to this question is determined by the fact that the positive refusal to go forward with the agreement on the part of defendant deprived defendants of insisting upon things being done which ought to have been done had the situation been otherwise.

The option was for thirty days from November 4, 1927; $50.00 in cash was paid upon that day, and on November 21, 1927, the balance of the cash payment, to-wit, $950.00, was also paid and then and thereupon the note and mortgage for $1000.00 was executed. We believe that under all these facts that there was a substantial compliance with the provisions of the option.

Holding these views a decree may be entered for the plaintiff such as was entered below. O. S. J.

Vickery, PJ, and Levine, J, concur.


text:
    LUNA PARK AMUSEMENT CO v LEAVITT
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10081.
    Decided October 7, 1929
    Messrs. Boyd, Cannon, Brooks & Wick-ham, Cleveland, for Luna Park Amusement Co.
    Mr. Martin E. Blum, Esq., Cleveland, for Leavitt.
   LEVINE, J.

Evidence was offered by the defendant to support its affirmative defense and counterclaim. Leavitt claimed in his testimony that there was no conversation as to the cost plus service charge, and that he merely stated that he would furnish the required service for $250 per week. He admits that he did some figuring; that after the first conference he left, came back and informed Ferris that he could handle the same at $250 per week.

It appears quite clear from the record that the Manager of Luna Park was anxious to provide some new entertainment for the patrons of the Park and that he authorized Ferris, advertising man and agent for The Luna Park Amusement Company, to get figures; that he did proceed to get figures which ran much higher than $250 per week. It may be reasonably asserted that, in the conversation between Leavitt and Ferris, Leavitt made some such statement as to what the same would cost him, and that it would be in the neighborhood of $207 per week, although he denies it most strenuously.

The record, in our opinion, does not support by the preponderance of the evidence the allegations in the statement of defense and counterclaim, to the effect that it was contemplated by the parties that Leavitt was to charge the actual cost plus $40 per week as a service charge. The written contract is an agreement setting forth an unconditional price of $250 per week for certain films, accessories and so forth to be furnished by Leavitt. Had it been the intention of the parties to enter into an agreement upon a basis of cost plus $40 as a service charge, the written contract undoubtedly would have so specified.

Assuming, for the sake of, argument, that Leavitt did make the statement as to what the actual cost to him would be, it would not, in our opinion, be the kind of representation upon which a defense or counterclaim could be predicated. As a general rule statements as to value of property, though false, are not grounds for affirmative relief or good as matters of defense. Southern Development Co. vs. Silber, 125 U. S. page 247.

Assuming that this statement charged to Leavitt was actually made by him, and it turned out that instead of "^sting, him $207 per week that the cost was much larger. In view of the written contract signed by him, he could not escape its obligations just because he was. mistaken as to the actual cost to him of the films, accessories, and so forth, to be furnished by him.

Le,avit is referred to by counsel for The Luna Park Amusement Company as a sort of an expert fully conversant with prices. The record does not support the statement. It appears that, in the main, he was a moving picture operator; that when it came to stating price-’ he had to make inquiry, not being able to give the information himself. The means of information upon which a fair judgment could be predicated as to the cost of films, accessories, and so forth, was equally open to both parties. There was no fraud used by Leavitt to prevent The Luna Park Amusement Company from making an examination and forming a judgment for itself. In view of this, whatever representations he made, must be regarded as a mere expression of opinion, and does not constitute fraud in legal contemplation. See II Addison on Torts, p,age 422, Section 1186.

At any rate, it is our opinion that the trial court having heard all the evidence, with a full opportunity to observe the witnesses in person while they, testified, was not .bound to accept the version of The Luna Park Amusement Company, but could, in its discretion, lend credence to the testimony of Leavitt, which apparently it did.

Upon the above considerations, we hold that at most there is involved in this matter the question of the weight of the evidence and we do not feel justified in disturbing the judgment of the Municipal Court upon that ground.

The judgment of the Municipal Court is hereby affirmed.

Sullivan, J, concurs. Vickery, P. J., dissents.


text:
    EBEL v CLEVELAND (City)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10106.
    Decided October 7, 1929
    Messrs. Krueger & Pelton, Cleveland, for Ebel.
    Mr. S. O. Hirstius, Cleveland, for City.
   SULLIVAN, J.

It is a well settled principle that a reviewing court cannot go outside the record upon a question which is vital and necessary in the determination of the material issue. The purpose of the bill of exceptions is to bring before the reviewing court the matters and things upon which the court acts in order to determine whether the judgment of the lower court was good or b,ad. In this case, in order to determine the validity of the ordinance or whether its provisions have been complied with, it would be necessary to go outside the record and make up the deficiency of the bill of exceptions by bringing the ordinance by main. strength into the case. We think under the authorities that this cannot be done.

Evans vs City of Wooster, 28 O. C. A.

The Evans case supra cites 21 Cir. Ct. 761 which was afterwards affirmed by the Supreme Court of Ohio without opinion in the 92 OS. 504 which undoubtedly makes the doctrine here laid down the law in Ohio.

Grossner vs State, 18 C. C. (NS) 46.

Esch vs City of Elyria, 7 C. C. (NS) 9.

It is our judgment that the bill of exceptions should show what the ordinance is and that the mayor should certify the same so as to bring the matter before this court by way of the bill of exceptions, and we think that in no other way can it properly be brought before a reviéwing court.

Peter Nelson vs Village of Berea, 21 O. C. C. 781.

Affirmed in 66 OS. 668.

Turning to Jones on Evidence upon this point we find that he uses language which bears out the authorities cited:

Vol. 1. Sec. 401.

Holding, these views it is our unanimous judgment that the motion to dismiss the petition in error and strike the bill of exceptions from the record should be granted and the same is hereby done and an entry may be made on the motion docket and the general docket in accordance with these views.

Vickery, PJ., and Levine, J, concur.


text:
    BOMMER v DALEY
    Ohio Appeals, 9th Dist, Lorain Co
    No. 491.
    Decided October 11, 1929
    Messrs. F. M. Stevens, Cyril J. Maple, Elyria, and Frank E. Stevens, Cleveland, for Bommer.
    Mr. Harry M. Redington, Elyria, for Daley.
   PER CURIAM

Bommer, in writing and. before argument, requested the court to charge the jury before argument as follows:

“I say to you that the law of Ohio did not require the plaintiff to walk on the right-hand side of the road at the time and place in the petition mentioned, ancLgoing in the direction he did.”

—which request was refused and exception noted.

Insofar as traffic traveling in the same direction as a pedestrian on the highway in the country is concerned, there is no law requiring a pedestrian to walk on the right-hand side of the road, and hence, the trial court should have given said request. As the law makes no specific requirement in reference to where such a pedestrian shall walk upon the highway, he is required to use ordinary care, under all the circumstances, in choosing the place where he will walk in the highway; and when it is claimed that he is negligent in walking in a certain part of the highway, a question is presented which it is the province of the jury and not the court to determine, and in determining that question, the jury, should consider all of the circumstances, which include a knowledge imputable to him of the rules of the road governing the use thereof by vehicles.

Bommer was entitled to have the jury instructed that Daley was free to choose where he would walk upon the highway, and was not required, as a matter of law, to walk upon any particular part thereof. The error in refusing to give a proper instruction before argument is, under the holdings of the Supreme Court, necessarily and conclusively prejudicial, and cannot be cured by anything that is thereafter" said in the general charge; but in this case, no attempt was made by the trial court to comply with said request in the general charge.

Scharff v. Levine, 29 O. App. 340, 163 N. E. 581, and cases therein cited.

In the general charge the court instructed the jury that it was the duty of Bommer not only to keep a watch ahead for pedesti'ians in the highway, but that it was his duty “to give a signal upon approaching pedestrians on foot in said highway, by blowing, a horn or by some other signal, of his approach.” The court later on charged the jury that “Even the giving of such signal alone might not be sufficient, under all the circumstances, without adopting other precautionary measures to avoid injury.”

We know of no law, statutory or otherwise, which makes it the absolute and unqualified duty of the driver of an automobile upon a public highway in the country, to give, under all circumstances, a signal by blowing a horn or by some other means, upon approaching, pedestrians on foot in said highway. If the circumstances were such that ordinary care required a signal, one should have been given; but whether or not ordinary care, under the circumstances of this case, required a signal, was a question for the jury and not for the court, and hence, the trial judge was in error in charging as he did.

But there is a more fundamental and serious error in the charge of the court in this case. The trial court charged the jury as follows:

“You are instructed that if you find, from the evidence the night in question and at the time of this accident was so dark that the operator of an automobile must den end upon the light from his machine to see the condition of the highway, it is his duty to have his automobile under such control that he can stop or avoid an obstruction or traffic thereon within the range oí the light produced by the lamps on his automobile.”

Sec. 6310-1 GC. provides that—

(Here follows quotation)

■ — but neither this section nor any other section of the statutes that we know of, requires the operator of such a motor vehicle to operate the same at. such a rate of speed as that he "an stop the same within the distance that an obstruction in the highway can be seen by him by the headlights of his vehicle.

The operation of a vehicle at a speed greater than such speed, violates no law, and therefore, in Ohio, the driver cannot properly be declared to be guilty of negligence per se.

Tresise v. Ashdown, 118 OS. 307, at page 313.

So far as the syllabus and the language of the opinion upon this subject in that case is concerned, that case is the same as the case at bar. There is no substantial difference between the charge of the court in that case and in the case at bar, and we are required to follow that case; and the record does not disclose a situation in which we c,an say that the error committed by the court was not prejudicial.

Following, the law established by the Supreme Court in the case hereinbefore cited, and the established law requiring a reversal for error in refusing a proper request to charge before argument, the judgment of the trial court is reversed for error in the charge of the court, and the cause is remanded for retrial.

Funk* PJ, Pardee, J, .and Washburn, J, concur.


text:
    BAKUTA v UKRANIAN AMER BLDG & LN ASSN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 8941.
    Decided October 7, 1929
    Messrs. E. J. Kovanda and Wm. H. Chapman, Cleveland, for Bakuta.
    Messrs. Bernon, Mulligan, Keeley & Le-Fever, Cleveland, for Bldg & Ln Assn.
   SULLIVAN, J.

This cause is here on appeal and in order for the plaintiff to, recover it is necessary to establish an express or a resulting trust, and therefore the elements constituting these trusts must appear in the record.

In other words, the record must show an agreement either verbal or written, to create it in the first instance, and it is also necessary that the subject of the engraftment of the trust must also appear. There must be an*objective and the trust must be so clearly and definitely declared by agreement that it will be possible for the court to pronounce judgment without resorting to extranious evidence, and of course it is well settled that before such a trust can be declared the evidence, must be clear, convincing and conclusive. There is no need to cite authorities but for our purpose, we will cite the case of Maddox vs Purcell, 46 OS. 102, and Stahl et al vs Cincinnati, et al, found in the 16 OS. 170.

We find the evidence is weak and unconvincing as to the terms of the alleged trust and as to what disposition of the property was to be made and we think the evidence is clearly lacking to show in a convincing manner that the defendants ever agreed to act ag trustees as they are known to the law. In fact the only evidence that seems to be positive' and unequivocal is that the property was not accepted with the understanding that the defendants were to act as trustees or that the property was to be held in trust.

Of course it goes without arguing, that the consent of the trustees is necessary because there must be a meeting of the minds upon this question just the same as in others. Even the probate court would not appoint a trustee named in a will unless the trustees consented and aualified by giving bond under the provisions of the law. Thus it is in every trust. It is composed of elements which require a meeting of the minds because no trust can be imposed and no trustee held to the obligation of the trust unless there is written or verbal language which shows a mutual agreement. Then again, it must appear if there is a trust, that the porperty or subject matter of the trust was delivered or conveyed in accordance with the law and. in this particular instance it was a corporation and the law apnlicable to the auestion of the conveyance of the porperty and the delivery thereof is found in 8710-11-12 GC. and they were in effect in 1922, and therefore the law which governs the present case.

It appears from the record that the purposes of these statutes were not complied with and a compliance with the-same is- the only way by which the property of the corporation could pass to the trustee and hence it may be said the record instead of being clear and convincing, shows no evidence whatsoever of the conveyance and the delivery of the property in accordance, with the terms of the law.

Other terms of law had to be complied with in order that the assets of the corporation might pass to the trustees. There should have been a meeting of the stockholders, action by the board of directors, resolutions creating the transfer, and all established by minutes to be kept by the secretary of the stockholders and the secretary of the board of directors, and it required the official signatures of the proper officers in order to complete the conveyance and the execution of these signatures could only be had by virtue of the compliance with the statutes and the adoption of all resolutions that were necessary in order to conform to the law to pass the assets to the trustee. We find that this was not done. Therefore it is our judgment that there could have been no trust because of the non-passage of the assets according to the provisions enjoined by law.

Another element m the case which precludes the existence of a trust, is the fact that at the time of the alleged agreement to create a trust, the property in question was in the court of common pleas in the hands of an officer of the court known as a receiver, and therefore whatever action was taken as to the disposition of the assets could only be done by a court order acting through the instrumentality of the receiver. We find that whatever was done was done by the common pleas court in this manner, and that instead of - the defendants receiving the property by way of the trust agreement which is alleged, they came into possession of it in the due course of law by virtue of proceedings in receivership pending in the common pleas court.

It is claimed that a resulting trust exists if not an express trust, but it must be kept in mind that in order to hold that it is a resulting trust, it must have all the elements of an express trust as above outlined.

Again, if we examine the pleadings and the evidence, and rely upon the arguments of counsel for plaintiffs, it appears that the real question is the violation of an agreement and not the creation of a trust, and it is well settled law that no trust results merely from the breach of a parol agreement as was laid down in Fleming et al vs Donahue et al 5 O. 255, where it is held that a trust is the creation of acts and not agreements or at least it must be composed of acts accompanied by agreements, but in no event will a trust result simply because there has been a broken contract. This principle is laid down in Perry on Trusts, Vol. 1, Sec. 134.

In the citation of Eaton on Equity, page 366, cited by_counsel for plaintiff, we find upon an examination that it does not apply' because it appears that there was a voluntary disposition of the property by will or deed and this fact was taken into consideration in the decision of the court. That fact does not appear here. A few of the stockholders of a corooration cannot bind the balance of the stockholders by acts or language which occur in a public meeting not called under the provisions of the law and of which all the stockholders, had due notice under the. orovisions of the’ statute.

We think the weight of the evidence in this case is to the effect that if there was a parol agreement between the plaintiffs and defendants whereby there was to be a purchase of the assets of the National Company from the receiver, and a re-sale of the same for the sum of $35,000.00, that the defendants did purcahse the assets and that they have been ready, willing and able at all times to re-sell the same to plaintiffs but that plaintiffs have neglected and still neglect to pay the said sum. We do not think under such a conflict as this that a trust can be declared as it must appear by clear and convincing, evidence that a trust was created.

33 OS. 35, Watson vs Ero.

Newman vs Newman, 103 OS. 230.

Therefore for the these reasons as well as others which are apparent from the record, the report of the referee is hereby confirmed and judgment is rendered accordingly, and the sum of $500.00 is awarded to the referee, Marie L. Wing, as well as the sum of $64.00 which is to be applied in payment of stenographer’s fees already advanced, and an entry may be drawn accordingly.

Vickery, PJ, and Levine, J, concur.


text:
    SHAW ADMR etc v CREBS
    Ohio Appeals, 9th Dist, Wayne Co
    No. 858.
    Decided October 17, 1929
    Messrs. Daniel C. Punk and L. R. Critchfield, Wooster, for Shaw, Admr. etc.
    Messrs. Weygandt & Ross, Wooster, and John V. Keeler, West Salem, for Crebs.
   FUNK, PJ.

To entitle plaintiff to have his case submitted to the jury, he was required to show by some evidence that the driver of the truck was operating it in a negligent manner in one or more of the ways alleged in the petition,, and that this negilgence was the proximate cause of the accident.

Sec. 6310-17 GC. provides that “vehicles shall keep to the right side of the road or highway.”

Our Supreme Court, in Elms v. Flick, 100 OS. 186, held that the,term “road” in this connection means the improved part of the road.

It will be observed that plaintiff did not offer the testimony of any eye-witness to this accident. The only evidence in the record to indicate where the respective automobiles were at the time of the collision, if it may be said to be evidence at all as to where said automobiles were at that time, is the evidence as to the scratch in the cement part of the road.

We are clearly of the opinion that there is no evidence in ihis record to show that it was defendant’s negligence alone that was the proximate cause of the collision.

The mere fact that there was a collision is not even presumptive evidence of the negligences of either driver.

Th mere fact that .the driver of the truck changed the tire on its rear left wheel about one-half mile from the place of the collision, is no evidence of any negligence on the part of the driver of the truck or as to where the truck was or the speed at which it was going at the time of or immediately before or after the accident, neither is it at that distance from the place of the accident any direct evidence that the accident was the cause of the tire going flat; at best there can be only an inference that the collision might have been the cause of the tire becoming flat about a half mile from the place of the accident.

However, since the scratch on'the cement is the only evidence, if it is any evidence at all, as to where either automobile was at the time of the accident, and as this was not over 18 inches from the' westerly side of the cement road, it would seem that it was the negligence of decedent rather than of defendant that caused the accident.

. Finding no evidence of any negligence on the part of the driver of the truck, we hold that the trial court was right in directing a verdict for defendant, and the judgment is therefore affirmed.

Pardee, J, and Washburn, J, concur.


text:
    EMERY v TOLEDO (City)
    Ohio Appeals, 8th Dist, Lucas Co
    No. 2253.
    Decided October 21, 1929
    Mr. Chas. A Thatcher, Toledo, for Emery.
    Messrs. Dudley Smith, Martin S. Dodd and Mark Winchester, all of Toledo, for City.
   WILLIAMS, J.

It will be observed that the jury returned the verdict fixing the value of the property to be appropriated at the same amount as that given in the opinion of value expressed by the witness Wakefield and no other witness called by either of the parties fixed that sum as the value of the property in question nor did any witness testifiy to any sum as the value of such property that was approximately near to the value fixed by the witness Wakefield. Clearly, the first quoted statement of the court was erroneous in character and highly prejudicial and jve do not think it was cured in the statement latterly made by the court. In fact, in such latter' statement, the trial judge said in substance that he had known Mr. Wakefield for many years and knew that he lived out there and that he considered him a qualified witness. The trial judge went a good ways in expressing his own personal opinion as to the qualification of this expert witness and such statement was well calculated to influence the mind of the jury. Of course, the trial judge passes upon the preliminary qualification of an expert witness as to the value of real estate, but if he finds the witness is qualified he must base that finding on the evidence adduced. What the trial judge . said in the latter statement amounted to an expression of his own opinion as to the qualifications of this witness and was therefore erroneous and prejudicial in itself. The inference is plain that these erroneous and prejudicial statements were effective in inducing, the verdict which was returned. It is true that as a rule’ inadvertent remarks made by a trial judge may be cured by him by properly instructing the jury with regard thereto, but when we consider the facts and circumstances surrounding the trial of this .case, in the light „of the verdict returned, we are compelled to the conclusion that the court below erred to the prejudice of the plaintiff in error. We are mindful of the difficulties encountered by a trial judge in the course of a jury trial and know that inadvertent remarks may escape him in the heat of contest, and being conscious of the integrity of purpose and ability of the trial judge, we can justly offer no criticism of the conduct of the case, other than that the utterances were inadvertent.

Complaint is made that the court erred in refusing requests to charge before argument submitted by defendant below. We think upon retrial No. 14 should be given, although Nos. 12 and 13 cover in part the same ground.

We find no other error apparent upon the face of the record. For the reasons given the judgment will be reversed and the cause remanded for a new trial.

Lloyd and Richards, JJ, concur.


author: RICHARDS, J.

text:
    JACOBY et v KRUPP et
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2254.
    Decided October 21, 1929
    Mr. W. W. Campbell, Toledo, for Jacoby.
    Mr. Geo. N Fell, Toledo, for Krupp.
   RICHARDS, J.

No serious controversy can exist as to the controlling facts in this case. The petition alleges that the grantor Mary Jacoby was incompetent to execue a deed at the time these instruments were made and was unduly influenced thereto, but we find no evidence of consequence in the record tending to sustain such allegations. The first deed was executed by her in due form of law on April 24, 1925, for a recited consideration of $20,000.00, and conveyed the property to the grantor’s four daughters, Josephine, Gertrude, Amelia and Marie. A year or two after the execution of this deed the daughter. Gertrude executed a will by which she devised to her mother her interest in the same property which had been conveyed in the deed already mentioned. Subsequently Gertrude died and shortly thereafter her mother executed another deed to the three surviving daughters, Josephine, Amelia and Marie, for the undivided one-fourth in the property which had been willed to her by her daughter Gertrude. This latter deed recites a consideration of $1.00 and other good and valuable considerations. The defendants testify that they never paid the $20,000 named in the first deed nor any part thereof and claim that they had no knowledge of the execution and delivery of the deed. The evidence, however. discloses that on the same day the first deed was made the four daughters united in a life lease to their mother of the property conveyed to them. In view of this fact the court finds that they did in fact have knowledge of the conveyance máde by their mother to them.

The common pleas court found no grounds on which either deed would be set aside and no grounds for partition, but did find that the plaintiffs were entitled to recover one-fourth the consideration of $20,000 named in the first deed, together with interest thereon, and entitled to a vendor’s lien to secure the payment of the same.

In May, 1927, Mary Jacoby executed a trust instrument conveying her personal property to a son-in-law, Albert W. Krupp, in trust for her support and maintenance during her lifetime and after death to pay her just debts and funeral expenses and with instructions to divide the remainder among her three surviving daughters.

At the time of the execution of the first deed Mary Jacoby was about seventy eight years of age, and it is perfectly apparent to the court that all of the instruments executed by her were executed as gifts in contemplation of death for the purpose of making a provision for the benefit of her daughters. It is impossible to conclude from the evidence that either she or any one of the grantees contemplated that the $20,000 named in the first deed, or any part thereof was to be paid. The grantor, Mary Jacoby lived for about two and a half years after executing the first deed ,and never made any claim that her daughters were indebted to her for $20,000 or any part thereof.

The first deed was left for record a few days after its execution and the second deed was held by the grantor for a time and then given by the grantor to one of the grantees, who left it with the county recorder for record two or three months after its execution, after which it was returned to the' grantor. We have no doubt that this amounted to a valid delivery of the deed.

From the entire record in this case we find nothing, which would justify the court in cancelling either of the deeds and nothing which would entitle the plaintiffs to partition. And, in view of the fact that the deeds were intended as deeds of gift, the plaintiffs are not entitled to recover any part of the consideration named in the first deed. Not being entitled to recover any amount, of course there could be no vendor’s lien.

The court reaches this conclusion entirely independent of the question that the action is brought in the name of an administrator, who ordinarily would be entitled to recover money due from the grantees, if such money were in fact due.

Judgment and decree for defendants.

Williams and Lloyd, JJ, concur.