author: By SKEEL, J:

text:
    STATE, Plaintiff-Appellee, v. TRUNZO, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23793.
    Decided October 17, 1956.

      Frank T. Cullitan, Pros. Atty., for plaintiff-appellee.
    Alfred L. Steuer, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this Court from a judgment entered in the Common Pleas Court against the defendant on four of five counts on an indictment returned against the defendant by the Grand Jury of Cuyahoga County.

The defendant was charged in the indictment with (1) burglary, (2) larceny, (3) forcing entry into a safe where money was kept, (4) having possession of burglar tools and (5) receiving stolen property. Upon trial he was found guilty by the verdict of a jury of burglary, larceny (the jury finding the value of the property stolen to be $762.00), forcing entrance to a safe where money was deposited and possession of burglar tools. The defendant was found not guilty of receiving stolen property. The Court sentenced the defendant to the Ohio Penitentiary separately on each count and directed that the sentences be served consecutively. The defendant’s motion to amend the order for separate sentences and direct that they would run concurrently for the reason that all the crimes charged grew out of the same transaction was overruled. Thereupon, within three days of the judgment and sentence, the defendant filed a motion for a new trial which was overruled on January 16, 1956. Notice of appeal was filed on January 25, 1956, and the defendant was then given thirty days within which to file his bill of exceptions. The defendant also filed a motion on January 25, 1956, requesting the court to direct the County Commissioners to pay for a bill of exceptions which in effect was to request an order from the Court that he be furnished a bill of exceptions in longhand of all the evidence and proceedings not shown on the face of the record at the State’s expense. This motion was overruled by the Court on February 8, 1956.

The defendant claims the following errors:

First: That he is entitled as a matter of law, under §§2301.23 to 2301.-25 R. C., inclusive, to a bill of exceptions at the expense of the State upon request and a showing that he was without funds with which to pay the cost thereof.

Second: That since all four of the crimes of which he has been found guilty are related to the same transaction, the sentences should run concurrently and not consecutively as directed by the Court.

The other errors assigned are not argued in the defendant’s brief ¡and, therefore, will not be considered. Such claims of error are not considered for the further reason that they could only be demonstrated by a bill of exceptions which was not filed in this case.

The first error argued is based on the Court’s refusal to order a bill of exceptions transcribed by the official court reporter for his benefit at the expense of the State. This claim is not well founded. Sec. 2301.23 R. C., provides:

“When shorthand notes have been taken in a case as provided in §2301.20 R. C., if the court, either party to the suit, or his attorney, requests transcripts of any portion of such notes in longhand, the shorthand reporter reporting the case shall make full and accurate transcripts thereof for the use of such court or party. The court may direct the official shorthand reporter to furnish to the court and parties copies of decisions rendered and charges delivered by the court in pending cases.”

Sec. 2301.24 R. €., provides:

“The compensation of shorthand reporters for making transcripts and copies as provided in §2301.23 R. C., shall not be more than twenty five cents per folio of one hundred words, to be fixed by the judges of the court of common pleas. Such compensation shall be paid forthwith by the party for whose benefit a transcript is made. The compensation for transcripts made in criminal cases, by request of the prosecuting attorney or the defendant, and transcripts ordered by the court in either civil or criminal cases, and copies of decisions and charges furnished by direction of the court shall be paid from the county treasury, and taxed and collected as other costs. The clerk of the court of common pleas shall certify the amount of such transcripts or copies, which certificate shall be a sufficient voucher to the county auditor, who shall forthwith draw his warrants upon the county treasurer in favor of such shorthand reporters.”

Sec. 2301.25 R. C., provides:

“When ordered by the prosecuting attorney or the defendant in a criminal case, or when ordered by the court of common pleas for its own use, in either civil or criminal cases, the costs of transcript mentioned in §2301.23 R. C., shall be taxed as costs in the case, collected as other costs, and paid by the clerk of the court of common pleas, quarterly, into the county treasury, and credited to the general fund

The Court may, under these provisions, have the power in a proper case and under proper circumstances, and in the exercise of sound discretion, make a bill of exceptions available to defendant where at least some justifiable doubt concerning defendant’s claims of error would be exemplified by such bill. That question we are not called upon to decide and no claim is made nor could it be substantiated on the record in this case that in refusing a bill of exceptions, the Court abused its discretion. Such provisions, however, do not require the Court in all events to order the Clerk to grant a request such as is here made by the defendant which he claims to be entitled to as a matter of law.

These sections, dealing with the duties of official court reporters, must be read in pari materia with §2953.03 R. C., which provides:

“On application by or on behalf of the accused, to an officer required to make a record or docket entries in a criminal case as provided in §2953.02 R. C., and upon tender of the proper fee, such officer shall make and deliver to such accused, or his counsel, a complete certified transcript of the record, omitting therefrom, if so requested, a bill of exceptions. If the prosecution was before a court or magistrate in which a complete record is not made, such officer shall so make and deliver a certified transcript of the judgment and all entries in the case, and shall forward to the clerk of the court in which review is sought, the original papers in the case.”

Here it is clearly provided that the defendant must tender the proper fee for a complete certificate of the record (including a bill of exceptions, if desired).

In the case of Poppa v. Wanamaker, 70 Abs 396, 128 N. E. 2nd 764 (Court of Appeals, Ninth District of Ohio), the Court, in considering a like request based on the same statutes, said on page 398 of its opinion:

“A search of the statutes, with respect to bills of exceptions (§2945.65 et seq., R. C.), and appeals in criminal cases (§2953.01 et seq., R. C.), does not disclose any requirement that a defendant in a criminal case be furnished, free of charge, for the purposes of appeal or mere examination, a bill of exceptions.”

The Court then on page 399 refers to the sections above quoted (§2301.23 et seq., R. C.) and follows the sections quoted by the following:

“Is it possible to reconcile the apparent inconsistency between §2953.03 R. C., and the provisions found in the sections on the duty of the official shorthand reporters?
“The Supreme Court of Ohio, in the case of Krieger’s Cleaners & Dyers, Inc., v. Benner, 123 Oh St 482, at p. 491, in speaking of the purpose of similar sections contained in the former General Code of Ohio, said:
“ ‘These provisions illustrate the general intent of the Legislature that litigants shall be entitled to make up a true and accurate account of the proceedings at a trial, to be used upon review.’
“It should also be noted that §2953.03 R. C., provides for the request to be made to an ‘officer required to make a record or docket entries in a criminal case.’ In this case no such request was made to the clerk of the Common Pleas Court.”

We hold that the defendant is not entitled, as a matter of law, to have a bill of exceptions transcribed at the expense of the State for his use in an appeal from a judgment of guilty.

The second claim of error is also unfounded. Each of the crimes charged in the several counts of the indictment are separate and distinct crimes as defined by statute, each carrying a separate penalty. Where one engages in a purposeful act or transaction, the doing of which violates all of the elements of several crimes, a defendant may be tried and if found guilty on each or more than one of the counts, may be punished separately for each of the crimes of which his guilt has been established as required by law. Each requires evidence of facts different from the other to make out the crime though they were each committed by a continuous series of acts. The defendant was charged with procuring the breaking and entering a building other than a dwelling with intent to steal something of value and then with the larceny of the safe taken from such building. The safe, containing money, was carried many miles from the place where it was stolen where it is alleged to have been broken open by the defendant and others with the use of burglar tools in the defendant’s possession. The fact that all of these crimes took place in a continuous series of acts does not deprive the state of the right to prosecute each crime separately.

Whether a defendant must serve sentences imposed for the commission of separate crimes concurrently or consecutively is within the sound discretion of the trial judge.

For the foregoing reasons, the judgment is affirmed:

KOVACHY, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By HESS, J.:

license: Public Domain

text:
    BONFIELD, Plaintiff, v. BARTENDERS’ UNION, LOCAL NO. 68, AFL/CIO, a voluntary unincorporated Association et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-155866.
    Decided December 18, 1956.
    Kennedy, Moore & Heilker, for plaintiff.
    J. W. Brown, Ben Gettler, Jonas B. Katz, for defendant.
   OPINION

By HESS, J.:

This cause came on to be heard on the pleadings, evidence, arguments, and briefs of counsel and was submitted to the Court for determination.

The fundamental question for the Court to determine is whether there is a valid labor dispute existing between the parties which justifies the defendants in picketing the plaintiff’s place of business.

The Court finds the record discloses that at the time the defendants began picketing the plaintiff’s premises a valid labor dispute existed between the parties; that the parties had been engaged in bargaining; that the plaintiff had recognized the defendant unions by the employment of union labor and the collection of dues from the union members; and, that the resignation of plaintiff’s union employees from their respective unions was an incident promoted by the plaintiff while bargaining between the plaintiff and defendants was in progress.

Having determined there was and is a valid labor dispute existing between the parties, it follows the temporary injunction sought by the plaintiff should be denied.

Coming on to consider the defendants’ cross-petition the Court is of the opinion it is without authority to direct the plaintiff to enter into a contract with the defendants.

The evidence indicates there is a valid dispute concerning the terms of the pre-existing working agreements, and the provisions of a new contract sought by the defendants.

If this Court would grant the prayer of the cross-petition it would in effect be stipulating the terms of a contract which were the subject of bargaining between the parties. Such is not the function of this court.

It therefore follows the prayer of the cross-petition for a temporary restraining order should be and is denied.

An entry may be presented denying temporary restraining orders sought by the plaintiff and defendants.


text:
    KOHRMAN, Plaintiff-Appellee, v. RAUSCH et, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23861.
    Decided November 8, 1956.

      Kohrman, Kohrman & Madorsky, E. A. Plazer, for plaintiff-appellee.
    Harold S. Rausch, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from a judgment and decree entered for the plaintiff by the Common Pleas Court of Cuyahoga County on motions for judgment on the pleadings entered by both parties. The petition seeks a mandatory injunction to cause the county recorder to issue a registered certificate of the title to lands (claimed to be owned by the plaintiff) under the Torrens Law of Ohio, to quiet title and other equitable relief.

The plaintiff’s petition alleges that by order of the Common Pleas Court of Cuyahoga County, entered in December of 1946, the lands which are the subject of this action were forfeited to the State of Ohio for non-payment of taxes, assessments, penalties and interest. Thereafter, the county auditor offered such forfeited lands for sale at public auction held July 17, 1947, and that the plaintiff became the purchaser at such auditor’s sale. It is alleged that Mary I. Megaw was the owner of such land prior to such forfeited land sale as evidenced by the Cuyahoga County Recorder’s Land Title Registered Certificate No. 46675. That after the entry of forfeiture was put upon the court’s journal, no objection, oral or written, was registered by Mary I. Megaw, and that she wholly failed to redeem the lands or pay the taxes, assessments and other charges thereon. The plaintiff thereafter received a certificate of sale for each lot purchased which was offered to the comity recorder for memorialization on the registered land certificate and that such memorial was entered thereon. Deeds were received at the same time from the county auditor and recorded with the county recorder. The memorial of the certificate of sale received from the auditor was entered on the registration certificate for each lot on July 17, 1947. No action thereafter was commenced by the then registered owner, Mary I. Megaw. That on November 12, 1952, the defendant, Harold S. Rausch, procured from Mary I. Megaw a deed of the same lands, which was offered to the county recorder for entry on the Land Title Register with the Certificate of Mary I. Megaw, and the recorder then issued to him Certificate of Title No. 67776 as evidence of title and included thereon all the memorials to which reference is herein made and that the memorials of the certificate of sale and the recording of the auditor’s deeds of 1947 constituted notice to defendant, Rausch, of plaintiff's right and interest to said lands.

Plaintiff then alleges that he is the present owner of said lands and is entitled to have same registered in him. The prayer asks that Rausch and Megaw be compelled to set forth any claims or interest he or they may have or be forever barred and the county officers be required to show why the plaintiff is not entitled to have the property registered to show title in his name and for other equitable relief.

To the allegations of the foregoing amended petition, the defendant, Rausch, by leave of court, filed his amended answer, setting forth five defenses. It is admitted that at a public auction, denominated a forfeited land sale, the county auditor purported to sell to plaintiff as forfeited land for non-payment of taxes, assessments, and other charges, the lands described in plaintiff’s petition which sale this defendant alleges took place on May 14, 1947. He alleges that at the time he acquired title and at the time it was registered in his name in the Torrens Title Records of the County Recorder of Cuyahoga County, no certificates as provided by §5309.53 and §5309.58 R. C. of the forfeiture proceeding appeared on the land title registration certificate pertaining to said sublots. He alleges that he had no title at the time of the attempted forfeiture and sale of these lands as forfeited lands and under the aforesaid provisions of the Revised Code of Ohio, he is not charged with notice at the time he received the title from Mary I. Megaw, now deceased, in November, 1952. The defendant alleges that the county auditor was without authority in law to institute proceedings to conduct a tax sale as described in plaintiff’s amended petition without complying with §5309.53 R. C.; that is, until a memorial of the court order of forfeiture had been entered on the registered certificate of title, and that all proceedings, including the attempted sale and issuance of certificates of sale and deeds, were without legal effect because of the failure to memorialize the orders of the court as provided by law.

The second and third defenses allege that at the time the plaintiff’s petition was filed in November, 1952, the action was barred by statutes of limitation as provided in §2305.07 and §2305.11 R. C.

The fourth defense alleges that a large portion of the delinquent tax claims were for special assessments charged against the property on the tax duplicate assessed by resolution or ordinance of the municipal corporation in which said land is situated, said assessments being for public improvements in the streets upon which such lands front. That said resolutions were passed after the torrenization of the property and before August 17,1937. The ordinances and resolutions declaring the necessity for such improvements provided that the greater part of the cost of such street improvements should be assessed against the property fronting on the streets to be improved, a part of which property being the subject of this action. That many years have passed (since 1927) and as yet no improvements of any nature have ever been installed and that no benefit whatsoever was conferred on the property because of the alleged street improvement assessments.

It is further alleged that at the time of the commencement of the proceedings to provide for the street improvements herein referred to, the municipal council failed to cause copies of the resolutions of necessity or any of the assessment ordinances for the improvements to be filed with the county recorder and that no memorial of the legislation providing for such improvements or the assessment to be levied therefor was memorialized on the Torrens Register of these lands whereby it is alleged that such assessments as originally made and any attempted respread of such assessments are wholly void under the provisions of §8572.56 GC in effect at the time of these attempted assessments.

The fifth defense alleges that the notice of the 1947 County Auditor’s Sale as advertised as to this property was fatally defective because the amount of taxes and assessments claimed to be due was grossly excessive by the inclusion of the void special assessments.

The plaintiff’s reply does not deny the allegations of fact set forth in defendants-appellants’ five defenses but alleges, except as to such allegations contained in the reply as are clearly conclusions of law, that such facts and statutes as set forth have no application to the action filed by the plaintiff.

The court was requested to find conclusions of fact and law as provided by §2315.22 R. C, which request was seasonably made by the defendant, and the trial court has filed such findings with the papers in the case.

The conclusions of fact follow very closely most of the allegations of the amended answer of the defendant, Rausch. The court finds that all necessary parties are before the court and that this action is brought under the provisions of §5309.60 R. C., requiring a court order before a registration certificate shall issue upon a tax deed issued upon the sale of forfeited torrenized lands. That the sale of the property here in question to the plaintiff as the highest bidder at the auditor’s forfeited land sale was made on May 14, 1947, and that Mary I. Megaw, defendant Rausch’s grantor, was the holder of Registered Title Certificate No. 46675 of Cuyahoga County Recorder’s Land Register. The court found the fact to be that no memorial of the court orders or judgments, entered as required by law preliminary to a sale of forfeited lands by the county auditor, was memorialized on the registered certificate of title until July 17, 1947, when the auditor’s certificate of sale was then placed or memorialized on registered certificate No. 46675 of Cuyahoga County Recorder’s Land Register. On the same day, the plaintiff filed the auditor’s deeds for record with the county recorder. That this action to require the recorder to issue a registered certificate of title in the name of the plaintiff as required by §5309.60 R. C. was filed more than six years after filing the auditor’s deed. That the defendant, Rausch, received his title from Mary I. Megaw, the registered owner, in November, 1952, and that Mary I. Megaw did not commence an action to set up a defense or question plaintiff’s title within one year after the auditor’s deeds were filed for record or at any other time since said date. That the defendant, Rausch, claims plaintiff is barred from bringing this action by reason of §§2305.07 and 2305.11 R. C., and that no resolution of necessity or ordinance imposing assessments by the municipal council was ever entered as a memorial on Certificate No. 46675 at any time. The pleadings establish without denial that the legislation required by law to provide street improvements (which improvements were never installed in the streets upon which this land abuts) was passed in 1927.

The court further found that the county auditor caused the lands to be advertised as alleged by the plaintiff and admitted by the defendant and that the defendant did not allege that he gave consideration to his grantor or that he has ever tendered plaintiff the sum paid by him for the land or the taxes since the date of purchase coming due on the described land.

Upon these determined facts, the court entered judgment for the plaintiff and set forth its conclusions of law to support such judgment as is disclosed by the record.

The defendant claims the following errors:
“1. The judgment and decree of the Court of Common Pleas should have been in favor of the appellant-defendant, and against the plaintiffappellee, and is contrary to law.
“2. Error of the Court of Common Pleas in sustaining plaintiffappellee’s motion for judgment on the pleadings.
“3. Error of the Court of Common Pleas in overruling appellant’s motion for new trial.
“4. Errors of the Court of Common Pleas in the rendition of separate findings of fact and conclusions of law.
“5. Abuse of judicial discretion by the Court of Common Pleas prejudicial to the appellant.
“6. The judgment and decree of the Court of Common Pleas is in violation of Section 19, Article I of the Ohio Constitution.
“7. The judgment and decree of the Court of Common Pleas is in violation of the Fifth Amendment to the Constitution of the United States.”
In the case of Realty Co. v. Willowick, 136 Oh St 257, in speaking of the purposes of the Torrens Act providing for registration of title to land (Chap. 5309 R. C.), the court said at page 261 of its opinion:
“The predominant object of such legislation is the establishment of a method whereby the title to a particular tract, or parcel of real estate will be always ascertainable by reference to a register of conclusive veracity, maintained by the designated public official.”

Sec. 5309.07 R. C., defining the duty of one acquiring title to torrenized land by tax sale to have title conferred by order of a court of competent jurisdiction, provides:

“No title derived from any tax sale or tax deed may be registered unless it appears that title under such tax sale or tax deed has been established and confirmed, or acquired, by a valid judgment or decree of a court of competent jurisdiction, or that the applicant and those from whom the applicant claims title have been in the actual, undisputed, and adverse possession of the land under such title for at least twenty-one years and have paid all taxes and assessments legally levied thereon for at least ten successive years next preceding the filing of the application.”

In compliance with this section, this action is founded upon and is required of the plaintiff by the provisions of §5309.60 R. C. as a necessary proceeding under the Torrens Law of Ohio.

The section provides:

“A tax deed of registered land, or an interest therein, issued in pursuance of any sale for a tax assessment, or other imposition, shall have only the effect of an agreement for the transfer of the title upon the register. Before any person dealing with such land is affected by such tax deed such deed must be filed in the county recorder’s office and a memorial of such filing be made by the recorder on the registered certificate of title for such land. No registration of title under such tax deed shall be made, or certificate of title issued thereon, unless the tax deed is filed within sixty days after its date, or in any case except upon the order of the probate court or the court of common pleas, on application therefor by petition to which all persons in interest shall be made parties and brought before the court. Any person interested in the land may show, as cause why such certificate shall not issue, any fact that might be shown at law or in equity on his behalf to set aside such tax deed. The party named in the tax deed must show affirmatively that the law entitling him to a deed has been strictly complied with. In such suit the court may decree such deed and tax sale under which the same was issued to be invalid for the purposes of entitling the purchaser or grantee to a transfer of the title to said land and order the same to be canceled upon the payment by any party in interest to said purchaser or grantee of the amount paid by him on such tax sale and subsequently as taxes on the property, together with interest on all such sums.”

The first claim of the appellant is that the judgment is contrary to law, because, among other things, the right to bring the action had expired under the statute of limitations. The appellant cites two sections of the Revised Code — §§2305.07 and 2305.11 R. C.

Sec. 2305.07 R. C. provides:

“An action upon a contract not in writing, express or implied, or upon a liability created by statute other than a forfeiture or penalty, shall be brought within six years after the cause thereof accrued.”

Sec. 2305.11 R. C., which in part provides a one year limitation for actions based on a penalty or forfeiture, has no application here. By the findings of fact, fully justified by the pleadings, this action was commenced more than six years subsequent to the filing of the auditor’s deed which was issued sixty two days after the attempted forfeited land sale. The only manner in which the plaintiff can be entitled to a registered land certificate as a purchaser at a forfeited land sale is by bringing this action as provided by §5309.60 R. C., supra. It is a statutory action and must be brought within six years after the filing of the auditor’s deed. The case of Powers v. Humming, 26 C. C. N. S. 237, at page 239 and 240, while not directly in point, supports this conclusion. We hold, therefore, that this action was barred by the statute of limitations.

At the time this defendant became the purchaser of the lands for which the plaintiff here seeks an order or judgment directing the recorder to issue to him a registered certificate of title under the Torrens Act (§5309.60 R. C., supra), the only memorial appearing on the registered certificate with regard to the title to the land was the certificate of sale issued by the auditor as provided by §5723.12 R. C., which was memorialized on the certificate of title in the recorder’s office on July 17, 1947. The auditor’s sale of forfeited lands took place on May 14th so that the forfeiture proceeding, including the judgment of the court, by which the State claimed to have acquired title, must have preceded such sale.

Secs. 5721.14 to 5721.17 R. C., inclusive, provided the manner in which lands are forfeited to the state for nonpayment of taxes, assessments, interest and penalties. The County Board of Revision, after omitting lands from the foreclosure list, which in its judgment cannot be economically foreclosed is required to make a list of such omitted lands, file the same with the county prosecutor, who shall file an application for an order forfeiting such lands to the State of Ohio in the common pleas court. A hearing is provided for and the court is empowered by §5721.17 R. C. to “confirm the action of the board and order such lands forfeited to the state. Such lands shall thereupon be forfeited to the state and disposed of as provided by §§5723.01 to 5723.19, inclusive, R. C.” The last paragraph of this section provides for an appeal as in other civil cases from such court order or judgment. Only by such a proceeding can the state be vested with the title to forfeited lands and the power to sell such lands as provided by law.

Sec. 5309.53 R. C., provides:

“No judgment or decree or order of a court shall be a lien upon or affect registered land, or any interest therein, until a certificate under the hand and official seal of the clerk of the court in which the case is entered, or of record, stating the date and purport of the judgment, decree, or order, or the action taken by the court, giving the number of the case, the full names of the parties, plaintiff and defendant, and the volume and page of the journal or record in which it is entered, or certified copy of such judgment, decree, order, or action of the court, stating the facts required by this section, is filed and noted in the office of the county recorder. When such filing is completed, a memorial of such filing shall be entered by the recorder upon the folium of the register in which the title to the land to be affected is last registered.”

Sec. 5309.58 R. C., in part, provides:

“No suit, action, or proceeding, pending in any court, affecting registered land or any interest therein or charge upon such land, is lis pendens, or notice to any person dealing with such land, until a certificate of the pendency of such suit, bill, or proceeding, under the hand and official seal of the clerk of the court in which it is pending, is filed with the county recorder, and a memorial thereof entered by him upon the last registered certificate of title to the land to be affected. This section does not apply to attachment or other proceedings, in which the officer making the attachment or levy, under §§5309.02 to 5310.21, inclusive, R. C., is required to file and has filed with the recorder a certificate of the things such officer has done under the writ in his hands.”

Sec. 5309.28 R. C., in part, provides:

“Every applicant in a land registration case who without fraud on his part receives a certificate of title in pursuance of a decree of registration, and every subsequent purchaser of registered land, who takes a certificate of title for value and in good faith, shall hold such land free from all estates, encumbrances, and rights except those noted on the certificate and except any of the following estates, encumbrances, and rights which may be existing:”

The exceptions thereafter noted have no application here. These sections require that any court action, order or judgment affecting registered lands or any interest therein to constitute lis pendens or notice must be memorialized on the registered certificate. There is no exception to the rule. Such an order is a judgment. In the case of Taylor v. Monroe, 158 Oh St 266, the Court said in the second paragraph of the syllabus:

“2. Neither the judgment of the Common Pleas Court, rendered pursuant to §5718-lc GC, and ordering such land forfeited to the state, nor the judgment of the court, rendered pursuant to §8572-58 GC, and ordering issuance of a certificate of title under the Torrens Act to the purchaser of such land at the tax sale, will necessarily bar such former owner, who has taken no action in such court proceedings, from making such a contention in such proceedings under §5757 GC.”

The failure to memorialize the judgment of forfeiture, whereby the state acquired title, invalidated all subsequent proceedings based upon such forfeiture. The auditor was without legal right to sell registered lands where he had failed to memorialize the order of forfeiture. This claim of error is, therefore, sustained.

The findings of fact, as pleaded by the defendant, establish for the purpose of the motions for judgment, that the improvements for which the grantor’s part of the delinquent taxes had been assessed had been so assessed in 1927 by council action of the municipal corporation in which the land was situated and that such legislation was not memorialized on the registration certificate as required by §8572-56 GC, as then in force (amended 1937 withdrawing such requirement).

In the case of Curry v. Lybarger, 133 Oh St 55, the court, in dealing with this exact state of facts, said:

“1. The authority to levy special assessments for local improvements is conferred only by statute and the validity of such assessments is conditioned upon compliance with the requirements of these statutes.
“2. Under the provisions of §8572-56 GC prior to its repeal effective August 18, 1937), it was essential that notice of the passage of an ordinance or resolution providing for a public improvement, the expense of which was to be levied on real estate, and a list of the lands assessed or to be assessed be promptly filed with the county recorder as a prerequisite to the imposition of a valid assessment lien upon lands registered under the Torrens Act.
“3. A lien cannot be created upon lands registered under the Torrens Act by filing with the recorder notice of the passage of legislation for a local improvement seven years subsequent to the enactment of such legislation.”

See also Shaker Corlett Land Co. v. City of Cleveland, 139 Oh St 536, 41 N. E. (2nd) 243, 23 O. O. 27; Groene v. Boyle, 141 Oh St 553, 49 N. E. (2nd) 564, 26 O. 0.148; Gunderson v. City of S. Euclid, 157 Oh St 437, 105 N. E. (2nd) 868, 47 O. O. 361; State, ex rel. F. B. Co. v. Beachwood, 37 Abs 366, 46 N. E. (2nd) 808.

The facts clearly show that the delinquent special assessments for public improvements assessed against this land are void for failure to memorialize the municipal legislation authorizing such improvements (such legislation having been passed prior to Aug. 17, 1937). It is also clear that such void assessments were considered by the Board of Revision in its decision to place said land in the list of lands to be forfeited. The sale as forfeited land based on the nonpayment of taxes where the greater part of the delinquency claimed was for special assessments which were void in fact and law and not, therefore, collectible as taxes against said property is absolutely void and of no legal effect. The third paragraph of the syllabus of the case of Younglove v. Hackman, 43 Oh St 69, 1 N. E. 230, provides:

“3. Where land is sold for non-payment of taxes charged thereon, and some part of such taxes is so charged illegally, such sale is void.”

This same result must also follow where it is found as a fact that although the default of special assessments was a part of the tax delinquency for which the lands were forfeited to the state, and that although such assessment was made in 1929, to date (1955) no improvements have ever been installed.

The findings of fact, although the plaintiff’s brief does not mention the subject, declares that there is no evidence that the defendant was a “bonafide” purchaser, that is, that he gave consideration for the transfer of the property from his grantor, Mary I. Megaw. There can be no legal significance to such finding. A purchaser can get no less than that owned by the seller and so far as the purchaser of registered land is concerned, he has the absolute right to rely on the assumption that there are no encumbrances or other claims not memorialized on the certificate of registration on file in the recorder’s office. In the case of Corvington v. Heppert, 156 Oh St 411, where a licensee was in possession of property under a claimed lease for more than three years, which had not been memorialized on the recorder’s registration certificate (the land being registered under the Torrens Act), the action was for breach of warranty by the purchaser because of the lease. The court held: a certificate of title thereto for value and in good faith and where such lease is not noted on the certificate, and the purchaser may not successfully maintain an action for breach of warranty against the seller on account of such lease, which was not mentioned in the deed of conveyance.”

“3. A lease of a part of real property for a term exceeding three years, which property has been registered under the Torrens Act (§8572-1 et seq, GC), is ineffective against a purchaser of such property who takes

Sec. 5309.28 E. C., supra, has application under the facts here being considered.

The deed to the defendant can be subject only to such liens or interests shown on the registration certificate and the question of consideration can have no effect as to claims of third persons.

The plaintiff also puts some reliance on the fact that the record fails to show a tender back of the payments made by the purchaser plaintiff upon the tax sale and taxes subsequently paid. Sec. 5309.60 E. C., in part, provides:

“The party named in the tax deed must show affirmatively that the law entitling him to a deed has been strictly complied with. In such suit the court may decree such deed and tax sale under which the same was issued to be invalid for the purposes of entitling the purchaser or grantee to a transfer of the title to said land and order the same to be canceled upon the payment by any party in interest to said purchaser or grantee of the amount paid by him on such tax sale and subsequently as taxes on the property, together with interest on all such sums.”

The provisions of this section do not require a tender back of plaintiff’s expenditures as a prerequisite for the true owner to defend against an unlawful sale of his property or as in this case, the purchaser’s attempt to compel the issuance to him of a registered certificate of title.

The Supreme Court in the case of Heffern v. Hack, 65 Oh St 164, said, in dealing with a statute of similar character; (not involving torrenized land).

“1. The owner of land, in an action to recover it from one in possession under a void tax deed, is not required by §2910 E. S., before he can have judgment rendered in his favor, to refund or tender the taxes paid by the defendant. Such payment or tender may be made after judgment, but must be made before process is issued on the judgment to turn the defendant out of possession.”

Here, whatever plaintiff paid for the purchase of the land must have in part been received for assessments that were absolutely void and not collectible. As to such payments, the plaintiff was a volunteer to whom the defendant owed no obligation. It must also be noted that there are no allegations in the pleadings dealing with this subject and not a word of evidence as to what has been paid.

Sec. 5723.17 E. C., provides:

“When the claimant of any lands sold for the nonpayment of taxes, assessments, penalties, interest, and costs, or his heirs or assigns, recovers the land sold, by reason of the invalidity of such sale, such claimant, or his heirs or assigns, shall refund to the purchaser, or his heirs or assigns, the amount of the purchase price, with all other taxes, assessments, penalties, interest and costs paid by such purchaser, or his heirs or assigns to the time of such recovery, with interest. Such sum shall be paid to such purchaser entitled thereto, before he is evicted by any claimant so recovering such land. This section does not prevent a purchaser from obtaining the value of any improvements made upon said land under §5303.07 to 5303.17, inclusive, R. C.”

Whatever rights or obligations due or imposed upon either party with regard to monies expended by the plaintiff must, therefore, be left for determination in a subsequent action.

From the state of the record, the right of the defendant for a judgment in his favor on plaintiff’s petitions is so clearly established, as a matter of law, that it requires this court to reverse the judgment and a decree for the plaintiff and to enter final judgment for the defendant.

KOVACHY, PJ, HURD, J, concur.


author: By CASE, J.

text:
    TIPTON, Plaintiff, v. FLEET MAINTENANCE COMPANY et, Defendants.
    Common Pleas Court, Fayette County.
    No. 22245.
    Decided February 20, 1957.
    Landis, Ferguson, Bieser & Greer, David H. Bailie, Dayton, for plaintiff.
    Pickrel, Schaeffer & Ebeling, William H. Selva, Dayton, for defendants, Fleet Maintenance Co., Sears, Roebuck & Co., and Louis Decker.
   OPINION

By CASE, J.

Plaintiff’s petition was filed herein on December 18, 1956; and, on January 24, 1957, certain of the defendants filed a motion to quash service which reads as follows:

“Come now the defendants, Fleet Maintenance Company, Sears, Roebuck & Company, and Louis Decker, not entering their appearance herein, or intending to enter their appearance herein, and appearing solely for the purpose of this motion, and for no other purpose, and without submitting themselves to the jurisdiction of this Court, move the Court to set aside the summons issued herein against them, the service thereof made upon them and the return of the Sheriff thereon for the reason that the purported service of summons made upon these defendants is invalid and the Court does not have jurisdiction of the person of the defendants.”

Defendants’ memorandum in support of said motion reads as follows:

“This Honorable Court will observe that each of the defendants, Fleet Maintenance Company, Sears, Roebuck & Company and Louis Decker are non-residents of the State of Ohio, and service upon these defendants has been attempted under §2703.20 R. C.
“This Section provides in part:
“ ‘And by sending to the defendant, by registered mail, postage prepaid, a like, true and attested copy, with an endorsement thereon of the service upon said Secretary of State.’
“We attach the original summons served upon Louis Decker; the original summons served upon Fleet Maintenance Company and the original summons served upon Sears, Roebuck & Company.
“Sec. 6308-2 GC, §2703.20 R. C., prescribes a definite method of service and procedure, construction of which by the Court is unnecessary, it being required only that the plain language of the statute be given such purport and intent as appears upon its face. Corbitt v. Stolwein, 2 O. O. 259, and, as the provisions of the statute have not been followed, service upon these defendants is improper and this motion should be sustained.”

On February 5, 1957, plaintiff filed a memorandum in opposition to said motion which reads as follows:

“Now comes the plaintiff and moves the Court to overrule Motion of defendants to quash service of summons on the ground that although the summons sent to the various defendants in this case did not show a return of service on the Secretary of State, that in fact the Secretary of State was served with a summons by the Sheriff of Franklin County, Ohio, according to law, and that the Sheriff’s Office of Fayette County, Ohio, failed to note that fact on the summons sent to the various defendants.”

And attached to plaintiff’s memorandum there appears an affidavit the pertinent part of which reads:

“Dorothy L. West, being first duly cautioned and sworn, deposes and says that she is the Clerk of Common Pleas Court of Fayette County, Ohio, and that she has in her office the original return in Case No. 22245 showing service upon the Secretary of State of Ohio by the Sheriff of Franklin County.”

The sole question raised by the within motion to quash service is whether failure to show, in the summons served upon a nonresident defendant, an endorsement thereon of the service upon the secretary of state is fatal to the obtaining of jurisdiction over the defendant.

By their motion to quash service, these defendants contend that by such failure the service of summons made upon them is invalid and the court does not have jurisdiction of the person of the defendants.

In support of their contention said defendants cite Corbitt v. Stolwein, 17 FS 760, 2 O. O. 259; and at page 260 (2 O. O.), paragraph 3 of the headnotes, it reads as follows:

“Where service of summons upon a nonresident has not been obtained in the manner prescribed by statute, a motion to quash will be sustained.”

It is also noted that the court of Appeals for Darke County, in the case of Travelers Fire Insurance Co. v. Miller, 27 Abs 406, in paragraph 2 of the headnotes thereto, said court held:

“The failure to have on the attested copy of process sent by registered mail to a nonresident defendant involved in an accident in Ohio the indorsement of service upon the Secretary of State as required by §6308-2 GC, is fatal to the obtaining of jurisdiction over the defendant.”

And, at page 411 thereof, Judge Barnes stated in part as follows:

“The law is well defined that service of process is jurisdictional and the provisions of the statute as to manner and method must be followed strictly. * * *”

Since the Court of Appeals for Darke County is also the Court of Appeals for Fayette County, this court is compelled to conclude that the rule of law so pronounced by the aforesaid decision is controlling and should be followed by this Court in ruling upon the within motion to quash service.

Upon due consideration of the facts and the law, as hereinabove set forth and discussed, it is the considered opinion of this Court that defendants’ aforesaid motion to quash service is well made and should be sustained.

Counsel for said defendants should prepare an appropriate entry in accordance herewith, noting exceptions on behalf of plaintiff, and submit same to plaintiff’s counsel and to this Court for approval by, on or before March 1, 1957.


text:
    FERGUSON, Plaintiff-Appellee, v. SHARKEY CONSTRUCTION COMPANY, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23852.
    Decided October 17, 1956.

      Frank K. Levin, for plaintiff-appellee.
    Paul Mancino, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal is from a judgment entered in the Common Pleas Court for the plaintiff in an action seeking damages for breach of contract.

The parties entered into a written contract whereby the defendant, as a mason contractor, agreed with the plaintiff, as a general contractor, to install footings for a “ 40 x 40 garage base V x 2' deep, 4" of concrete floor, with wire mesh 1 row of block 8" bolts in blocks.” Neither party, according to the record, knew at the time the contract was signed that the surface of the ground where the work was to be done was very uneven so that the work described in the contract could not be done until a fill was made on the rear of the site. The only evidence in the record as to the cost of making such fill and other work necessitated entirely by the deep slope was that the expense would exceed the contract price for the work described in the contract. The defendant, when he discovered the conditions of the surface of the land and that the floor and footings could not be built as provided in the contract until a fill was made, refused to proceed with the work. This action was then filed in which the plaintiff, who had paid no part of the consideration, prayed for damages in the sum of $5,000 and was awarded judgment by the trial judge, a jury having been waived, in the sum of $782.00.

The court was requested to return findings of fact separately from its conclusions of law. The court found that the agreement between the parties was in writing and that such written agreement was not supplemented by any other verbal agreement and that under the physical conditions where the floor and footings were to be built in accord with the contract, the reasonable cost for doing the work would be $1812.00. The court held that as a matter of law “where a contract provides for furnishing all materials and labor necessary for the work, as does the present one, and the physical conditions make it necessary to underpin the structure contracted for, this is a part of the work undertaken to be done and is included in the terms of the contract. These difficulties would have been foreseen if, before entering into the contract, ordinary care had been exercised by defendant in viewing the site of the work. In the absence of fraud or misrepresentation clearly relied on, such neglect of duty cannot affect the enforceability of the plain terms of a written contract.” The court then answered seven interrogatories in which it is stated that there was a meeting of the minds upon the terms of the contract and that the contract required the defendant to furnish all the materials and labor to lay the cement floor described in the specifications no matter what the conditions were.

At the time the contract was signed, the record discloses that the plaintiff and defendant disclaimed knowledge of the actual condition of the surface of the land where the garage was to be built although the defendant testified as follows:

“* * * when I asked him how the grade was, he said it was perfectly flat. That’s his exact words; I took his words for it, because he was a contractor, he knew what he was talking about. If he wasn’t a contractor I would have went and looked at the job. But the man is a contractor, excavation, understands grades.”

The plaintiff, of course, denied stating that the surface of the ground was fiat. He testified that he showed the defendant a “cut” (drawing) of the garage, which shows the concrete floor on a level surface. When the defendant called the attention of the plaintiff to the fact that a fill would be necessary before the work he had contracted to do could be accomplished, the plaintiff refused to make the fill and said to the defendant: “That’s your hard luck, not mine.” The discovery of the surface condition was not made by the defendant until his workmen went out to start the job. The plaintiff also testified in speaking of the fill:

“Q. Well, it was quite a bit, wasn’t it?
“A. There was some, yes. I don’t know what there was; I wasn’t interested in it.
“Q. In other words, you didn’t care; is that right?
“A. No.
“Q. Did Mr. Sharkey tell you that in order to do that job they would have to add about five or six courses of eight inch block in order to bring that flooring, that wall up around where the front end was?
“A. No, sir; he never discussed about it. All he said was put some fill in there. Never said about four or five courses of block or anything else. I didn’t discuss it with him at all. I said ‘That’s your hard luck.’
“Q. Now, without putting in the fill-in and doing the extra work there, he could not put in the floor the way you wanted it, could he?
“A. He couldn’t put the floor until the fill was in. He couldn’t even put the foundation if he don’t take the dirt out of it.
“Q. But in order to put the footers in and put the floor in, he would have to go ahead and build up the back end of that garage where the garage is supposed to be, is that right?
“A. Not one story. He could put his fill in.
“Q. That’s what I am talking about. He would have to build it up by fill-in of whatever it takes?
“A. Yes.
“Q. There is nothing in this contract abount any fill-in, is there?
“THE COURT: It speaks for itself.
“Q. And you didn’t care about whether he had put any fill-in; you told him it was his hard luck; is that right?
“A. That is correct; yes.”

Contracts are to be construed by an examination of the written instrument (if the agreement is in writing.) The surrounding circumstances under which the agreement was entered into can only be considered where there is an ambiguity in the writing. There is no such ambiguity in the written contract which is the basis of this action. It provides for the furnishing of all labor and material for work specified. The work specified is “didge footer for 40 x 40 garage base 1' x 2' deep, 4" of concrete floor, with wire mesh 1 row of block 8" bolts in blocks.” There is not the slightest suggestion that the defendant was to grade the land where the garage was to be located. To hold that the defendant owed some legal duty to inspect the site before entering into the agreement and failure to do so cast a burden on him to accept hazards not mentioned in the contract because of his “neglect of duty” is without legal foundation.

The plaintiff’s own case failed to establish any duty on the defendant to do the grading necessary as a preliminary step to building the foundation and laying the cement floor. As shown by the testimony quoted above the defendant’s contract could not be performed until the grading necessary to fill the back of the lot was completed. These conclusions of fact are undisputed in the record.

As has been pointed out, both parties were unacquainted with existing facts which, if known, would have completely changed any dealing with respect to the contemplated work. There was here a mutual mistake of fact upon which the parties relied and which completely prevents “a meeting of the minds” as found by the court.

See Byers v. Chapin, 28 Oh St 300; Parker v. Ingle, 27 Abs 137.

For the foregoing reasons, the judgment of the court entered for the plaintiff is reversed and final judgment entered for the defendant on plaintiff’s case. We do not disturb the finding for the plaintiff on defendant’s cross-petition.

KOVACHY, PJ, HURD, J, concur.


author: By BARTLETT, J.

text:
    JENKINS, Plaintiff, v. COHEN, Defendant.
    Common Pleas Court, Franklin County.
    No. 196789.
    Decided January 31, 1957.

      Joseph E. Ryan, Alfred J. Frericks, for plaintiff.
    Wright, Harlor, Purpus, Morris & Arnold, for defendant.
   OPINION

By BARTLETT, J.

MOTION TO STRIKE FROM THE PETITION SUSTAINED PER ENTRY.

This action is founded upon the willful and wanton misconduct of the defendant in the operation of his motor vehicle, rather than his negligence in said operation thereof, which it is averred resulted in personal injuries to the plaintiff while riding with the defendant.

“An action based on wilful or wanton misconduct is apart from an action for negligent conduct, and the difference is one of kind, not merely of degree, since negligence does not have for its base either wilfulness or wantonness, and misconduct which is merely negligent is neither wilful or wanton.” 6 O. Jur. (2d), Automobiles, Sec. 226, p. 452.

If the instant case were based on pure negligence, it would be essential to aver and prove that the plaintiff was a passenger for hire and not a guest under §4515.02 R. C.; but where based upon willful or wanton misconduct of the person responsible for the operation of the car, the status of the plaintiff as a guest in the car, is not an issue, so that an averment of paid transportation serves no proper purpose in the petition.

Counsel for the plaintiff assert they know of no rule of law that estops the plaintiff from recovering in a negligence action, where he goes further and proves willful and wanton misconduct.

4. “A party charged with wanton misconduct is deprived of his plea of contributory negligence.”

5. “The parking of an unlighted truck for a few minutes on the proper side of a city street after dark on a misty, rainy night, two feet from the curb, if there was a curb, in order that the driver, who had lost his way, might cross the street and make inquiry, the lights of which truck were burning several miles away and several minutes before collision, while negligence, is not wanton misconduct, and the injection of the element of wanton misconduct into such case to the point that the trial court instructs the jury on such issue, constitutes prejudicial error and a judgment based thereon must be reversed.” 130 Oh St 568, Universal Concrete Pike Co. v. Bassett.

On page 573 Stephenson, J., speaking for the court in the Bassett case says:

“but the party who injects the ingredient of wantonness in a case where the facts do not warrant it is playing with ñre and may ruin a perfectly good case, if based on ordinary negligence.”

On page 580 of his opinion, Stephenson, J., continues:

“a party is either guilty of wanton misconduct or he is not, and to permit a litigant to gamble with wanton misconduct until he sees he is going to lose, then fall back upon his action for ordinary negligence is subjecting the party sued to a hardship the law never intended,”

The motion to strike from the petition is sustained. Entry accordingly with exceptions by counsel for plaintiff.


author: By HOLTSBERRY, J.

text:
    STATE, Plaintiff-Appellee, v. LARASON, Defendant-Appellant.
    Common Pleas Court, Licking County.
    No. 43048.
    Decided November 20, 1956.

      Virginia Weiss, Newark, for plaintiff-appellee.
    Walter U. Bolton, Newark, for defendant-appellant.
   OPINION

By HOLTSBERRY, J.

An affidavit was sworn to by complainant, Virginia Weiss, against Thomas L. Larason, August 8, 1956, charging that on or about said date defendant “unlawfully trespassed upon the land of the complainant contrary to §2909.21 R. C.”

Defendant waived trial by jury and trial resulting in conviction was held by the Justice of the Peace of Union Township, Licking County, Ohio.

Appellant contends the conviction should be reversed as being contrary to law in that no proof of any criminal intent was offered and that the evidence was not sufficient to warrant a verdict of guilty.

The record reveals that during the month prior to defendant’s arrest he had entered into a contract for the purchase of an acre of ground with a cabin thereon, from one Wilfred Britton. A deed introduced in evidence and being prior in time to the alleged trespassing incident grants an easement which appears to be over and across the land of the complainant, Weiss. Defendant had parked his automobile on what he believed was his easement on this day in question, and took his ladders and equipment to said cabin and painted until around five-thirty p. m., upon returning to the automobile he found .all four tires deflated. The air had been removed by direction of complainant, Weiss.

Sec. 2909.21 R. C., under which defendant was prosecuted reads as follows:

“No person shall enter without lawful authority upon the land or premises of another, or being upon the land or premises of another, upon being notified to depart therefrom by the owner or occupant, or the agent or servant of either, without lawful authority neglect or refuse to depart therefrom.
“Whoever violates this section shall be fined not more than fifty dollars or imprisoned not more than thirty days, or both.”

The Court notes that the wording of §2909.21 R. C., is somewhat different from former §12522 GC. Under the former section it was originally required that unlawful entry be first forbidden, or if unlawful entry made, that notice to depart and neglect or refusal to do so be present. Old §12522 GC, was amended in 1941 using the word wilfully in connection with entry without lawful authority.

Under our present Ohio Statutes there appears two possible types of violation. (1) Entry without lawful authority upon the land or premises of another. (2) That a person without legal authority neglect or refuse to leave upon being notified to do so.

In the instant case we have only the first branch of the statute to be concerned with since there is no claim by the prosecution that any notice was given. Therefore, our question is did defendant enter without legal authority upon the land of complainant so as to constitute a crime within the contemplation of §2909.21 R. C.?

Whether defendant parked on the granted easement or by mistake was on another lane he believed to be the easement would be immaterial as this Court views the question. The instant case is a criminal one and not civil. A criminal trial is not the place to determine equitable property rights. Civil and criminal trespass are different things. Trespass statutes, criminal in nature, have in general been construed somewhat strictly, and do not afford a substitute for other adequate civil remedies for trespass. (52 American Jurisprudence [Trespass] Section 85; State v. Shackleford, 100 Oh Ap 487.)

It is an abuse of a penal statute relating to criminal trespass to use it to try disputed rights in real property. (Steele v. State, 191, Indiana, 350.)

In accordance with the general rule that the existence of a criminal intent is an essential element of a statutory offense, it is the rule in many jurisdictions that criminal intent is an essential element of the statutory offense of trespass even though the statute is silent as to intent; and if the act prohibited is committed in good faith under claim of right or color of title, although accused be mistaken as to his right, unless it is committed with force or violence of a breach of the peace, no conviction will lie, the view being taken that it will not be presumed that the Legislature intended to punish criminally, acts committed in ignorance, by mistake, or under claim of right, and in the bona fide belief that the land is the property of the trespasser, unless the terms of the statute forbid any other construction.

This Court quotes this statement from 87 Corpus Secundum, page 1102 with approval. Also see 12 O. Jur., page 311; 146 A. L. R., 655; State v. Ellen, 68 N. C., 281.

The right of an easement owner to park on an easement would depend upon the circumstances of each case, with the gist being that the right is present so long as there is no unreasonable interference with the rights of the servient estate. 37 A. L. R., 2nd, page 944.

It must be concluded from the record that defendant parked his automobile where he did in good faith and without any malice, and there is nothing in the record indicating that his belief in his right to do the act complained of did not have a fair and reasonable foundation. In fact, complainant testified at page 69 of the transcript that defendant parked with innocent belief that he had such right.

The law throws around a defendant in a criminal case a sheath of presumed innocence for his protection which must be overthrown by proof such as excludes every reasonable doubt of guilt.

The conviction of defendant is clearly and manifestly contrary to the evidence. There is no evidence in the record justifying the finding of guilty.

The conviction is hereby reversed.


author: By THE COURT. By HUNSICKER, J.

text:
    COLUMBUS (City), Plaintiff, v. HUNTINGTON NATIONAL BANK, Trustee, Defendant-Appellant, KROGER COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5498.
    Decided August 15, 1956.
    Chalmers P. Wylie, City Atty., Columbus, for plaintiff.
    Luther L. Boger, Columbus, Clyde E. Lewis, Delaware, for defendant-appellant, The Huntington National Bank, Trustee.
    Jenkins, Williams, Wendt, Murray & Deeg, Aubrey A. Wendt, of Counsel, Columbus, for defendant-appellee, The Kroger Company.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee, The Kroger Company, seeking an order dismissing the appeal on questions of law and fact for the reason that this court has no jurisdiction to entertain such an appeal.

The record discloses that the appeal is from a special proceedings in the Court of Common Pleas of Franklin County, wherein the City of Columbus through its powers of eminent domain brought an action to appropriate certain lands adjacent to Spring Street, within said city. Among such properties was a parcel located at 355 West Spring Street, held and occupied by the Kroger Company under a lease from the Huntington National Bank of Columbus, Ohio, as Trustee, etc. The value of such premises was determined by a jury and thereafter the jury’s award of $463,550.00 was paid into court by the city. The Kroger Company filed an application to have the court determine the value of its leasehold in the appropriated premises and asked the court to order such sum to be paid to it from the award of compensation. Article IV, Section 6, Ohio Constitution confers upon this court “such (appellate) jurisdiction as may be provided by law.” In compliance with this mandate, §2501.02 R. C. was enacted, which became effective on October 4, 1955. This section spells out the classes of cases which may be appealed on law and fact. The case here presented appears to us to come within the provisions of Part 10 of said section, for as between the parties to this appeal the primary relief sought is by means of the “interpleader” and said section specifically provides that in this class of cases the appeal may be had on law and fact. We recognize that §719.20 R. C., provides that a review of the appropriation proceedings may be had on questions of law as in other similar actions, but the appropriation of property is no longer involved here, the same having been completed and no appeal prosecuted. It is only the distribution of the fund which is in dispute and the issue has been raised by the interpleader.

Decided December 7, 1956.

The motion to dismiss will be overruled.

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

No. 5498.

(FESS and DEEDS, JJ, of the Sixth District; HUNSICKER, J, of the Ninth District, sitting by designation in the Second District.)

OPINION

By HUNSICKER, J.

This is an appeal on questions of law and fact from a judgment of the Court of Common Pleas of Franklin County, Ohio.

The City of Columbus, by condemnation proceedings, took several parcels of land for expressway purposes. One of the parcels is involved in the matter now before us. This property consisted of a warehouse building held by the Huntington National Bank of Columbus, as trustee, herein called Bank, and leased to the Kroger Company, herein called Kroger.

The lease by the Bank to Kroger began May 1, 1951, and was to end April 30, 1956. The lease contained an option to renew for an additional term of five years. On June 7, 1955, a judgment in the condemnation action was filed fixing the total amount of money the City of Columbus should pay for the lands taken.

On June 22, 1955, the city of Columbus paid this condemnation money into court. On June 13, 1955, the Bank notified Kroger, in writing, that it was terminating the lease. On June 20, 1955, Kroger filed, in the Common Pleas Court, an application in this matter, and asked therein that the court determine the value of its lease hold. In that application, Kroger requested that any amount so found be paid to it from the compensation awarded in the condemnation proceedings.

On September 7, 1955, the Bank again notified Kroger in writing that under the powers reserved in the lease to Kroger, it was terminating the lease.

On April 25, 1956, the trial court determined that the lease was a valid subsisting lease of the premises, appropriated by the city of Columbus, and that the damages for the taking of the leasehold interest of Kroger, as of June 22, 1955 (the date when the city of Columbus paid the condemnation award into court) was $34,145.47.

An appeal was then lodged in this court by the Bank, who say that:

“1. The judgment of the Court of Common Pleas of Franklin County is contrary to law.
“2. The conclusions of law as found by the Court of Common Pleas are contrary to law.
“3. The judgment of the Court of Common Pleas is against the manifest weight of the evidence and contrary to the evidence.
“4. The findings of fact of the Court of Common Pleas are contrary to the evidence and are against the manifest weight of the evidence.
“5. The judgment of the Court of Common Pleas is contrary to the facts adduced at the time of the hearing.
“6. The Court below erred in finding that the lease between the appellant as the lessor and the appellee as lessee does not provide for termination upon notice in the event of condemnation.
“7. The court below erred in its finding that the notice of cancellation given by appellant to appellee upon the conclusion of the condemnation proceedings was not effective to cancel said lease in accordance with the cancellation provision therein contained.
“8. The court below erred in finding that The Kroger Company, appellee-lessee, was entitled to share in the compensation paid for the property notwithstanding the exercise by the appellant of its right of cancellation as contained in the lease.”

Our principal question herein concerns the interpretation of that portion of the written lease from the Bank to Kroger, which reads as follows:

“It is mutually agreed by and between the lessor and the lessee that if during the term hereof, or any extension thereof, the demised premises or any part thereof be rendered untenantable by public authority or by fire or other casualty (except such as shall have resulted from the negligence of the Lessee), a proportionate part of the rent herein reserved, according to the extent of such untenantability, shall be abated and suspended until the premises are again made tenantable and restored to their former condition by the Lessor; and if the premises or a substantial part thereof are thereby rendered untenantable and so remain for a period of ninety (90) days, the Lessee may, at its option, terminate this lease by written notice to the Lessor; and if the premises cannot by reasonable efforts be restored to their former condition within ninety <"90) days, either the Lessor or the Lessee shall have the option of terminating this lease by written notice to the other.”

There was an addenda to the original lease executed May 9, 1951, but, except for providing additional space and fixing rent, all other terms of the lease remained in full force and effect.

There is no question but that Kroger was in possession of the premises under the lease when the city of Columbus, on June 22, 1955, acquired title by reason of the condemnation proceedings.

Kroger was a party to the original action of condemnation by the city of Columbus, and by such fact knew all that transpired in the proceedings up to the time Kroger received the first notice of termination of lease on June 7, 1955. Kroger continued to occupy the premises after June 22, 1955, although at the time this matter was heard in this court, the building had been razed and the expressway was well along in its construction.

In the consideration of this problem, there can be no question but that the correct measure of damages to a tenant, on the taking of his leasehold interest by condemnation, is the market value of the use and occupancy of the leasehold for the remainder of the tenant’s term, minus the agreed rent which the tenant is required to pay for such use and occupancy under the terms of the lease. 18 Am. Jur., Eminent Domain, Sec. 296, at page 938, and authorities there cited; 3 A. L. R. 2d, 290-295, and authorities there cited. See also, Platte Valley Public Power, etc. v. Armstrong, 159 Neb. 609, 68 N. W. 2d 200.

If that portion of the lease above set out, properly interpreted, does not provide by its terms for a right of termination by the Bank of the lease, in the event of condemnation proceedings, then this measure of damages rule must be followed to determine what amount of money Kroger shall receive out of the funds deposited with the Clerk of Courts on June 22, 1955, by the city of Columbus.

We think it is not to be controverted that a landlord and tenant may, by a properly worded contract, provide that the tenant shall receive no compensation when the leased premises are taken by right of eminent domain. It also is not subject to dispute that a landlord and tenant may, by a properly worded contract, provide that in the event the leased premises are taken by condemnation proceedings, the lease shall terminate. These rules are so elementary that they need no citation of authority to support them, although see Goodyear Shoe Machinery Co. v. Boston Terminal Co., 176 Mass. 115, 57 N. E. 214.

Our question here is one of interpretation of that phrase of the lease “rendered untenantable by public authority,” when read in the light of the entire paragraph, quoted near the beginning of this opinion.

An examination of the authorities cited in the briefs and our own research have failed to disclose any case sufficiently similar to become persuasive. Counsel for Kroger do cite a case bearing some resemblance, in phraseology, to the instant case, viz. Siggelkow v. Arnold, 245 N. W. 629, 187 Minn. 395.

Leases of lands and buildings are prepared for specific purposes, and those containing covenants with respect to the rights of the parties in the event of condemnation proceedings invariably contain phrases such as: “If the whole or any part of the demised premises shall be taken by federal, state, county, city or other authority for public use, or under any statute, or by right of eminent domain,” then the lease terminates. United States v. Petty Motor Co., 327 U. S. 372, 375, 376; 90 L. Ed. 729, at p. 733. Or the language used may be similar to the following: “* * * in the event the premises or any part thereof, are taken through eminent domain, the future award for damages to the premises, both leasehold and reversion, shall be the sole property of the landlord * * *.” In re John C. Lodge, Highway in the City of Detroit v. Siegel, et al., 340 Mich, 254, 65 N. W. 2d, 820, at p. 822.

It should be again noted in the instant case that the lease herein does not mention that the taking by public authority shall be for public use, nor is there a reference in the lease as to the rights of the parties where the property is taken by eminent domain.

Some courts in discussing the meaning of the word “untenantable,” as used in leases, define such word as unfit for the tenant to carry on business. Miller Hotel Co. v. Gray, 19 S. E. 2d, 428 (Georgia Appeals); Reischmann v. L. N. Hartog Candy Co. et al., N. Y. S. 435; Acme Ground Rent Co. v. Werner, 139 N. W. 314 (Wis.).

When the city took title to the premises, it was not unfit for occupancy, although the city did tear down the building some months later; and certainly Kroger knew, when the city took title to the property, it was for the purpose of destroying the building and using the land for an expressway.

We revert them to the rule of construction of contracts, and in our attempt to determine the meaning of the paragraph under discussion, we must give the words used their usual and ordinary meaning as shown by the context in which such words are employed. Fidelity & Casualty Co. v. Hartzell Bros. Co., 109 Oh St 566.

The parties to this lease were not contracting with reference to their rights in the event the city of Columbus, by eminent domain, decided to appropriate this property for highway purposes.

If such had been the intent of the parties, they could very easily have inserted one of the clauses found in those cases where relief was denied the tenant because he had contracted away the right to get damages for a loss of his interest in the premises.

These parties were, by this lease, interested in those acts of public authority such as destruction by order of the health board or fire marshal. The casualty or catastrophe guarded against by the lease agreement is where the premises present a hazard which must be removed but which may be corrected by act of the parties. The phrase, “if * * * the demised premises or any part thereof be rendered untenantable by public authority * * *” does not mean if the demised premises are taken for public use, then the lease terminates. The words used show that the intention was to restore the premises to occupancy. A taking for road purposes was never contemplated by the parties. We cannot imply exceptions in the lease not shown by the language which the parties choose to use.

“The agreement of parties to a written contract is to be ascertained from the language of the instrument, and there can be no intendment or implication inconsistent with the express terms thereof.” Blosser v. Enderlin, 113 Oh St 121, 148 N. E., 393.

We determine in this case that the Kroger Company is entitled to participate in the fund paid by the city of Columbus for the taking of the property herein.

The testimony with respect to the value of the leasehold premises was at some variance, although all witnesses agreed that if the premises could be leased it would be worth, annually, from ten cents to twenty-five cents more per square foot than the amount Kroger was paying to the Bank. The amount determined by the Court of Common Pleas, based upon an increase annually of fourteen cents per square foot, is certainly well within the testimony, and we adopt the amount so determined by the trial court as the award granted herein.

The parties may prepare a journal entry in accord with this opinion.

FESS and DEEDS, JJ, Concur.


author: By BAYNES, J. By BAYNES, J.

text:
    BRONIKOWSKI, Admr., Plaintiff, v. BIGHAM, Defendant.
    Common Pleas Court, Madison County.
    Nos. 19946, 19947.
    Decided May 4, 1955.

      Stanley A. Grzezinski, Edwin J. Lynch, Toledo, Crabbe & Tanner, London, for plaintiff.
    Richmond & Richmond, London, for defendant.
   OPINION

By BAYNES, J.

The same question is primarily raised in both cases. It is alleged that plaintiff’s decedents were drowned, in an abandoned quarry located on premises leased to the defendant in Seneca County, Ohio, on 11 July 1952. The instant action was filed in this Court and personal service obtained on defendant on 1 November 1954.

The actions are for wrongful death under Chapter 2125 R. C., §.02 which provides the action must be brought within two years after the decedent’s death, except as otherwise provided by law.

“Commencement of Action,” is defined in §2305.17 R. C.:

"... as to each defendant, at the date of the summons which is served on him . . .
“. . . an attempt to commence an action, is equivalent to its commencement, when the party diligently endeavors to procure service, if such attempt is followed by service within sixty days.”

Plaintiff relies on §.04 R. C. of the wrongful death Chapter which provides that if such action is, “commenced or attempted to be commenced” within the two years and judgment for plaintiff be reversed or if plaintiff fails otherwise than on the merits plaintiff may commence a new action with one year.

Plaintiff relies upon paragraph 13 of his petition as conferring jurisdiction of the case, upon this court:

“A suit involving the above facts was filed in Seneca County, Ohio and was dismissed without prejudice on September 27, 1954 to a further action on the same facts as a result of a motion by defendant to quash the service of summons for the reason that said summons was left at a place which was not the usual place of residence of the defendant.”

What this allegation fails to say is that the Seneca County action was filed on or before 11 July 1954. For the purposes of the demurrer, it can not be said that the allegation infers or implies that the action was so filed. The Court does not consider this defect decisive. It is important only to the extent that it can be determined, on the above allegations and under the above quoted provisions of §2305.17 R. C., that no action was:

1. Commenced, or

2. Attempted to be commenced;

in Seneca County, within the two years as required under the Wrongful Death statute.

Plaintiff relies on Sabol v. Peckoc, 148 Oh St 545. In our view plaintiff both misconstrues and misapplies the law of that case. The Court held that where plaintiff had sued the wrong person and then attempts to commence an actoin against another defendant after the two year condition has elapsed, that the failure of the first case, “otherwise than on the merits,” does not permit the commencing of a new action on the same death against a different person.

In other words the subsequent defendant not having an action commenced or attempted to be commenced within the two years against him, could not be substituted for the original defendant against whom an action was commenced within the two year condition. This Court is of the opinion the Sabol case would control the instant case by analogy.

The instant case, never reaches the point of considering whether plaintiff lost otherwise than on the merits. It is patent that there was no action commenced or attempted to be commenced against this defendant, either in Seneca or Madison Counties on or before 11 July 1954.

In a case where plaintiff filed suit within two years in one county, but no service was had on the defendant, and after two years the case was dismissed for failure of service of summons (just as this case was in Seneca County), and subsequently the plaintiff filed an identical suit in another county, it was held:

“. . . the plaintiff cannot be considered as having failed ‘otherwise than upon the merits’ in an action commenced or attempted to be commenced so as to authorize the plaintiff to commence an action within one year after the date of such ‘dismissal,’ under §11233 GC (§2305.19 R. C.).” Kossuth v. Bear, 161 Oh St 378, Syl. 1.

Plaintiff’s counsel will observe that otherwise than the reference to §2125.02, §2125.04 R. C., the Wrongful Death statute savings clause, and the first sentence of §2305.19 R. C., the general savings clause, are identical word for word. It is impossible to apply one rule of construction to one statute and a different rule of construction to the other.

As this is the second time the defendant has raised this objection on the demurrer, and in order that this be the last time it should be necessary, holding as we are compelled to do by statutory definition of an action commenced or attempted to be commenced, this Court is of the opinion that the sixty day provision for service, which qualifies an attempt to commence as a commencement, under §2305.17 R. C., and as mentioned in §2125.04 R. C., does not apply to the facts of this case.

For the reason that, it could only apply to an action brought in this county on or before 11 July 1954. No action was filed in this county until I November 1954. But if it had been filed on or before 11 July 1954, it would have been necessary that the defendant be served on or before II September 1954.

We conclude that it is not only mete, proper and just that the demurrer be again sustained on this Branch, but this Court is of the opinion that it is bound by the 2nd syllabus of the Sabol case, and we so hold.

Another ground of demurrer to the amended petitions is that the plaintiff states no cause of action. This was not raised on the original petition demurrers. It requires no authority to say that a demurrer admits only the well plead facts.

It is alleged, in essence, that defendant was the lessee of a farm containing an abandoned quarry, 20 feet in depth with no outlet, in 1952 children and adults played and swam in and about the quarry; that prior to 11 July 1952 there had been a sign warning of the danger to swimmers, but that on that date no such warning sign was posted and that plaintiff’s decedents were drowned about the hour of midnight on that day. Then follow allegations, not sounding in negligence, but which attempt to make the premises an “attractive nuisance.” The last allegations referred to are bare of operative facts and constitute pleaders conclusions, and are not considered to be admitted on demurrer.

We do not have a theory of recovery in Ohio on the doctrine of “attractive nuisance.” In general it may be said that in Ohio the same rules of care apply alike to trespassers and licensees, also to infants and adults; 29 O. Jur. 454, Sec. 55; see also Secs. 56, 57 and 58.

Attention is called to the fact that a municipality, under §723.01 R. C. (§3714 GC), charged with a duty of keeping parks, open to the general public, free from nuisance is not liable for the death of a fourteen year old boy, who fell into a clogged ravine in such park, which filled with water from time to time, which was frequented by children, without warning signs, without enclosing it, or without maintaining guards. The case of City of Toledo v. Cummings, 121 Oh St 37, was considered by the Court on plaintiff’s claimed error of the trial court’s direction of a verdict for the defendant. (Declaration of no liability in the case of a ten year old, under similar circumstances see 52 Oh Ap 477 and in the case of an eight year old, see 23 Abs 417.)

8 A. L. R. 2d 1254, contains a thorough article on the subject of landowner’s liability for drowning of a child. We quote from page 1259, Sec. 2, of the Article:

“As will be seen by an examination of the cases considered herein, recovery for the drowning of a child has been most often sought under the attractive nuisance doctrine, since the child is in most instances a trespasser on the premises and some such theory is necessary to make the landowner liable at all ... .

(Eleven states and Canada recognizing the attractive nuisance doctrine refuse to apply it for recovery of drowning of a child) “Of course, recovery for drowning of a trespassing child is consistently refused in jurisdictions such as . . . Ohio . . . (and twelve other states), which refuse to recognize the attractive nuisance doctrine under any circumstances.” (cf. Signs v. Signs, 161 Oh St 241, 243.)

Decided July 18, 1955.

Attention is called to the eleven reasons set out, why the rule is not applied in drowning cases, if counsel care to examine them.

Even in states where liability may be recognized generally, the rule does not apply to infants of advanced years such as the decedents in this case who were nineteen (19) years old.

In the instant case it is not alleged that the decedents were invitees or licensees. Although of passing interest, it is idle to speculate as to what these decedents, who were impliedly residents of Lucas County, were doing miles away from home, on private property located along a railroad track at midnight, and with whom these odd events were occurring. How, in the ordinary course of events, any ordinary sign of danger, apparent though it might be in the daytime, would normally be as apparent at midnight. Should the defendant have had the area lighted all night too?

The Court is of the opinion that the demurrer should be sustained because:

(1) The action was not brought within the time limited for the commencement of a wrongful death action.

(2) The amended petition does not state facts which show a cause of action.

Attorney for defendant is directed to prepare an Entry in accordance with this opinion and to file the same according to rule, giving plaintiff leave to plead further on or before 28 May 1955.

Nos. 19946, 19947.

OPINION

By BAYNES, J.

The same question is raised in both cases. This is the third time a demurrer has been filed in the cases (s). Neither the first or second amended petition contains additional operative and material facts to overcome the grounds for sustaining the demurrer (s). This is particularly true of the Second Amended Petition(s).

For the reasons stated in the Court’s decision (s) of 4 May 1955, the demurrer to the second amended petition (s) is sustained as to both Branches.

It clearly appears that no further pleading can be filed which will cure the defects of plaintiffs’ petition (s). Defendant’s attorney is, therefore, directed to prepare an entry sustaining the demurrer (s) and dismissing the cases (s) and file the same according to rule.


author: By THE COURT: By HORNBECK, J:

text:
    M. JENEFSKY & CO., Plaintiff-Appellee, v. Di BAUDA, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2375.
    Decided August 9, 1956.
    Wasserman & Talbot, Dayton, for plaintiff-appellee.
    Beigel & Mahrt, Dayton, By Edward J. Duffy, Jr., of Counsel, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal (1) because no bill of exceptions has been filed “within forty days after the final order was filed,” and (2) because no briefs have been filed within fifty days after fling of notice of appeal, and, also, on motion of appellant to dismiss motion of appellee and for an order allowing appellant to perfect the appeal within time.

Decided November 28, 1956.

Wasserman & Talbot, Dayton, By Jesse Jennings, of Counsel, for plaintiff-appellee.

Beigel & Mahrt, Dayton, By Edward J. Duffy, of Counsel, for defendant-appellant.

Under §2321.05 R. C., as amended a bill of exceptions is required to be filed “not later than forty days after the perfecting of the appeal by the filing of the notice of appeal, etc.” It will be observed that the time to file a bill of exceptions begins to run from date of notice of appeal, rather than the date of the final order. Under either form of the statute the time has expired.

But motion of appellee is overruled, first because the failure to file a bill of exceptions does not necessarily require dismissal of an appeal as there may be errors exemplified on the face of the record, and, second, because the instant appeal is on questions of law and fact. In such appeal there is no bill of exceptions, and Rule VII which fixes the time for filing assignment of errors and briefs applies only to appeals on questions of law.

Motion of appellant to overrule motion of appellee is sustained, but the second branch of appellant’s motion, requesting permission to perfect the appeal as within time, is overruled. The appellant is in Court on an appeal on questions of law and fact. If the appeal stands Rule V would control.

The action was one for the recovery of money only. An appeal on questions of law and fact does not lie. The court sua sponte dismisses the law and fact appeal and retains the appeal on questions of law. “Whenever an appeal is taken on questions of law and fact and the Court of Appeals determines that the case cannot be heard upon the facts and no bill of exceptions has been filed in the cause, the Court of Appeals shall fix the time, not to exceed thirty days, for the preparation and settlement of a bill of exceptions.” Sec. 2321.05 R. C. Also, see Rule V. This Court fixes the time at thirty days after this opinion is journalized. An entry may be drawn fixing the time within which to file assignment of errors and briefs.

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

No. 2375.

(CONN, J, of the Sixth District, sitting by designation in the Second District.)

OPINION

By HORNBECK, J:

Plaintiff sued on account for produce sold and delivered to defendant and claimed the sum of $1,955.85 as due thereon.

Defendant in his answer denied all the allegations of the petition, but in his testimony admitted the correctness of the account.

Defendant cross-petitioned for $1,974.08 on a contract which he claimed he had with William Jenefsky on behalf of plaintiff company, whereby said Jenefsky agreed to place its produce in storage in a warehouse, which William Jenefsky leased in his own name, but had sublet to defendant, “in such quantities and at such prices that the defendant would not incur any expense in operating said warehouse and office.” The expenses incurred by defendant were the amount prayed for in the cross-petition.

The trial judge found for the plaintiff for the amount claimed in its petition, and for the defendant for the cost of storage in the amount which plaintiff admitted it owed defendant.

Defendant appeals, and the appeal proceeds as upon questions of law. Several errors are assigned, but all go to the one question whether the trial judge erred in failing to hold with appellant on his cross-petition.

Defendant relied upon the claim that an agency was created by plaintiff in William Jenefsky by estoppel which bound the plaintiff to the contract, which it was testified and not denied William Jenefsky made with defendant.

There is no need of pursuing at length the legal principles of agency by estoppel, as there is no room for doubt that the trial judge was well within the evidence in holding that defendant had failed in his proof of his cross-petition.

Sufficient of the basic essentials of agency by estoppel are set out in one paragraph of 2 O. Jur. 2d, 99, paragraph 58 — Agency, to demonstrate wherein defendant failed:

“In determining the apparent authority of an agent it is the conduct of the principal, rather than that of the agent, that is to be considered. The principal is only liable for that appearance of authority caused by himself. Apparent authority on the part of an agent cannot be established solely by the acts and conduct of the agent, but must be traced to some act or conduct of the principal.”

Supporting the text are cited the cases of General Cartage & Storage Co. v. Cox, 74 Oh St 284; Storms v. United Grain & Millworkers’ Union, 64 Oh Ap 19, and Chesapeake & O. R. Co. v. Ringstaff, 67 F. 2d 482.

It was developed that Williams Jenefsky was not a stockholder, director or officer of the plaintiff corporation; that he was given no authority whatever to execute such a contract as is involved here, and that no act of any officer of the corporation appeared, which should have led the defendant to believe that William Jenefsky, as agent for the plaintiff, was authorized to enter into the contract with defendants. As a matter of fact, the gist of defendant’s testimony is that from his observations of the conduct of William Jenefsky, and not of that of any officer of plaintiff company, he assumed that William Jenefsky had authority to bind the plaintiff company. Agency by estoppel is not proven.

The judgment will be affirmed.

WISEMAN and CONN, JJ, concur.