author: By DOYLE, J.

text:
    KUCK et, Appellees, v. SOMMERS et, Appellants.
    Ohio Appeals, Third District, Mercer County.
    No. 485.
    Decided August 28, 1950.

      Robert D. TouVelle, Myers & Myers, Celina, for appellees.
    LeRoy E. Eastman, Toledo, Don W. Sears, Columbus, Leo H. Faust, Troy, Ferdinand E. Warren, Leipsic, for appellants.
    (MONTGOMERY, PJ, of the Fifth District, DOYLE, J, HUN-SICKER, J, both of the Ninth District, sitting by designation in the Third District.)
   OPINION

By DOYLE, J.

To here review the lengthy pleadings and the hundreds of factual situations to which one’s attention is directed in this appeal on questions of law and fact, would be productive of no worthwhile result, so far as making clear the real issues and the equitable principles which are to be invoked for a decision in this case. They are well-known to counsel and need not be here repeated. It is sufficient, we think, to say that appellees (plaintiffs below) are seeking, by way of judgment in this court, to establish a trust for their benefit in property bought at a mortgage foreclosure sale in the Common Pleas Court of Mercer County by one F. G. Fisher, trustee. The factual question is presented as to whether the said Fisher bought as trustee for one Frank Sommers, or whether he did, in fact or by way of a legal cord which bound him to these appellees, purchase the property for their use and benefit.

The prayer of the second amended petition is as follows:

“Wherefore, plaintiffs pray that said defendants, and each of them, be required to answer * * * and that they be required to account to plaintiffs for the monies, properties and assets, conveyed by the said F. G. Fisher, trustee, to the defendant The Producers Creamery and Cold Storage Company, and to account for all monies received by them, or any of them, as the result of the use of said monies, property and assets. That said conveyances, made by said F. G. Fisher, trustee, of the title to the chattel property and the title to the real estate to said defendant The Producers Creamery and Cold Storage Company, be set aside, and that said defendants, and each of them, be held as trustees of said property for the plaintiffs, and for all other and further proper relief in equity.”

It appears that The Producers Creamery and Cold Storage Company was a corporation organized in 1934 as a farmers’ “co-operative,” and practically all of its shareholders were farmers. With but few exceptions, its business was managed and controlled by officers and directors who were farmers. It engaged in the business of processing milk and other dairy products, and the cold storage of foods. From the start the company was embarrassed with financial difficulties, and as time went on and its business grew, the company became heavily indebted to many individuals and corporations. Among the individuals who gave of their money and credit were I. E. Crampton (now deceased and appearing herein through personal representatives), L. M. Otis, Raymond A. Younger and E. R. Kuck, appellees herein, and Frank Sommers, F. G. Fisher and H. C. Bowman, three of the appellants herein. These men, as individuals or in combination, loaned their money and extended their credit to the company, although they, in most part, had no substantial financial interest in it. They were residents of a proud community in a prosperous Ohio county, and, seemingly, gave financial help to preserve a growing local business, and to save harmless and to restrain from legal action local banking institutions which had extended credit to the company. Some of these men were directors or officers of the local banks. Eventually their claims as a whole exceeded $150,000.

In September, 1939, a time when the company was heavily indebted to these men, in consideration of $15,000 additional money provided by this group to meet current expenses, the company adopted, on September 5, the following resolution:

“Whereas in order to supply additional temporary working capital to Producers Creamery & Cold Storage Company, the sum of Fifteen Thousand ($15,000.00) Dollars has been borrowed from The First National Bank, Celina, Ohio, by a group of individuals interested in the advancement of the Company which group has designated L. M. Otis and F. G. Fisher to act as its trustees, and said sum has been placed to the credit of this Company to be used exclusively to meet the payroll of Sept. 15th, 1939.
“Now therefore be it resolved by the Board of Directors of said Producers Creamery & Cold Storage Company that from and after said date of Sept. 15th, 1939, all accounts receivable for merchandise processed and sold and all inventory of merchandise as processed be, and the same hereby are, transferred, assigned and set over to said L. M. Otis and F. G. Fisher, trustees, day by day as they become available to be applied by said L. M. Otis and F. G. Fisher, trustees, to .the payment of the operating expenses of this Company and the repayment of said amount so loaned to this Company until such a time as said amount or additional amounts subsequently advanced by said group be paid in full.
“Be is further resolved that until said amount so loaned the Company be repaid, no disbursement of funds of this company by check or otherwise shall be made unless and until said disbursement or check shall have received the approval of the executive committee of said group now consisting of said F. G. Fisher, H. C. Bowman and E. R. Kuck, or a majority of them or their successors duly appointed by said group and certified to this Company.
“Be it further resolved that until such time as said amount so loaned be repaid, the management of this Company shall consult with said group of individuals when assembled in meeting and with said Executive Committee in the interim and so far as possible carry out the recommendations and advice of said group as to management policies and practices so far as said group shall recommend and the Board of Directors of this Company shall approve nothing herein contained being intended, nor shall be construed to derogate from the due and legal powers and duties of said Board of Directors.
“Be is further resolved that the President and Secretary of this Company be, and they hereby are, authorized, directed and empowered to sign all contracts, instruments and assignments and to do and perform all things necessary to carry out the purposes hereof.”

Because of threatened legal action by creditors against the Company shortly before August, 1940, the group of men heretofore mentioned sought and received legal advice relative to further steps to be taken to protect their interests as creditors. As a result thereof, the Company executed a note payable to the creditors comprising the group (except Younger) in the amount of $125,000, and secured it by a mortgage on its real estate and by a separate mortgage on its personal property. Each of the mortgages provided for the appointment of a “trustee” for the mortgagees, with the following stipulated power: that he “shall have all the authority and power and rights conferred in this mortgage upon the mortgagees.”

Pursuant to this authority, Fred G. Fisher was appointed, by written instruments, “trustee,” by a majority vote of the mortgagees, as therein provided.

By resolution of November 6, 1941, the Company cancelled the assignment claimed to exist by virtue of the action taken on September 5, 1939, and in its resolution stated “the intent being to authorize the officers of this corporation to again handle its own finances in order to see that the income of the corporation is used to pay primary indebtedness according to the list marked ‘Exhibit A’ and attached to the trustee’s instructions, rather than money advanced by the group.”

By this action of the Company and for other reasons, the group creditors were provoked into an immediate foreclosure of their real estate mortgage. This action was filed on November 17, 1941, and a receiver was appointed to take charge of the mortgaged assets of the Company. Subsequently, on June 4, 1942, a judgment in the sum of $119,592.72 was entered in favor of the group and against the Company on the note. On this date, also, there was directed an order of sale of the property under the foreclosure proceedings.

On July 6, 1942, the property was sold to F. G. Fisher, trustee, for the sum of $300,100, which bid was subsequently accepted by the Court of Common Pleas. The receiver, however, was directed to continue to operate the business of the Company under the direction of the court until the purchase price was paid or secured to be paid per agreement with the court. On or about September 1, 1942, the balance of the purchase price was paid, and the property was conveyed by the receiver to F. G. Fisher, trustee, the sole bidder.

In addition to cash payments made on the purchase price, some of which came from Frank Sommers personally, and some from the liquidation of assets after the date of sale in July and collected by the receiver, there was deducted from the bid price the balance due on a note secured by a first mortgage of $67,500 to the Columbus Mutual Life Insurance Company, plus $119,592.72, the amount due on the note and mortgage held by the so-called group.

The mortgage note to the insurance company was signed by the Company as well as by all of the individuals here in litigation as comakers, except E. R. Kuck, who, with others, guaranteed payments by endorsement.

The credit taken for the balance due of $119,792.72 on the judgment, was sanctioned by a formal written instrument executed by the judgment creditors. This instrument is in the following language:

“WHEREAS, L. M. Otis, John T. Gibbons, F. G. Fisher, E. R. Kuck, H. C. Bowman, I. E. Crampton, and Frank Sommers, as parties plaintiff filed their certain suit in the Common Pleas Court of Mercer County, Ohio, against The Producers Creamery and Cold Storage Company, a corporation, being case No. 13490, in said Court, praying for judgment and foreclosure of a mortgage given by The Producers Creamery and Cold Storage Company to said parties plaintiff, said mortgage being recorded in Vol. 105, page 603, of the mortgage records of Mercer County, Ohio, and at Vol. 170, page 590, of the record of mortgages, of Darke County, Ohio, and,
“WHEREAS, in connection with said proceedings and on motion of the plaintiffs, one Reed Shafer, was appointed receiver to operate and conduct the affairs of said defendant Company, and,
“WHEREAS, pursuant to the order of the Court, the receiver, Reed Shafer, to satisfy the judgment of the plaintiffs, and other debts and obligations of the defendant Company, sold the property and assets of the defendant Company on July 6th, 1942, to F. G. Fisher, one of the plaintiffs herein, for the sum of $300,100.00, and,
“WHEREAS, said F. G. Fisher, the purchaser, desires the full co-operation of all of the plaintiffs and parties having a financial interest in said mortgage, and their aid and assistance in refinancing said purchase, we, the undersigned, parties plaintiff, in consideration of $1.00 to us paid, respectively agree that said F. G. Fisher be and he hereby is authorized to receipt to said Reed Shafer, receiver, for the sum of said judgment entered in said cause, being case No. 13490, in the Common Pleas Court of Mercer County, Ohio, in the sum of $119,592.92, with interest as evidenced by said judgment entry, less payments made by the receiver since said date as follows:
“To The Peoples Bank, Coldwater, Ohio, interest.
“To The First National Bank, Cincinnati, Ohio, int. and that credit for said sum be allowed on the purchase price.
“IN WITNESS WHEREOF, said parties plaintiff have hereunto set their hands to duplicate copies of this agreement, this 13 day of July, 1942.

At about the time of the conveyance of the assets of the Company to the purchaser, a new corporation was formed, and, with the assets conveyed to it by the purchaser Fisher, the business was continued — which, as time elapsed, became exceedingly successful.

The foregoing recital is but a meager account of the many hundreds of facts developed in the evidence; and the sole purpose of stating them is to give but a general idea of the litigation under consideration.

The appellees, in the presentation of their claims, have adopted three separate theories which they assert entitle them under principles of equity to now participate as shareholders in the assets purchased at the receiver’s sale.

They specifically claim “that an express trust, with Mr. Fisher as the trustee, was created in favor of the group, in September, 1939, by action of the Old Company in transferring and assigning all of its accounts receivable and processed merchandise to Mr. Fisher and Doctor Otis in trust for the benefit of the group, together with complete control of its funds to the executive committee of the group, and the subsequent assumption by Fisher, with the consent of the Old Company and the group, of the control of the property as well as all of the right so assigned and the authority in connection therewith so conferred by said assignment.”

With great care we have analyzed the evidence bearing upon this claim, ever conscious of the requirement that, if third persons are to become trustees, the transfer of the title to property constituting the trust res must be actual and the formalities necessary to convey the title to real or personal propery from one to another must be complied with. We fail to find any evidence of the transfer of title to the claimed trustee of any of the accounts receivable or processed merchandise. In fact, the resolution itself, even if it had been delivered to the trustees, does not effect a transfer of the property, as possibly might a self-executing instrument, because the resolution itself provides the way and manner in which the property should be transferred, in the following language:

“*.* * the President and Secretary of this Company be, and they hereby are, authorized, directed and empowered to sign all contracts, instruments and assignments and to do and perform all things necessary to carry out the purposes hereof.”

There is no evidence indicating that these officers ever, by formal conveyance or otherwise, transferred title to the property under the authority given. There is no evidence that the so-called trustees ever took possession of the property in question. To the contrary, these assets of the company served and were used in the normal operation of the business. The evidence indicates only that the effect of the resolution and contemporaneous arrangements was to permit Mr. Fisher to approve, by initial, the disbursement of the funds of the company through the medium of bank checks, and thereby control the expenditures to a certain extent. Certainly, thus far, the facts shown to exist do not prove the existence of an express trust. The title and possession of the assets in question were always in the corporation.

The appellees, in continuing their claims, assert:

“The express trust so created continued uninterrupted according to its terms and purpose, and Fisher acted as the trustee thereunder, until it was violated in September, 1942, by Fisher acting in concert with Sommers and Bowman, although the trust res and the authority of the trustees were enlarged by the appointment of Fisher as trustee for the group under the provisions of the mortgages of August 1 and 2, 1940, and Fisher’s acceptance thereof and his assumption of the duty to do all things necessary in behalf of the group to protect their rights under the mortgages and their agreement to do nothing in their own behalf, either individually or as a group, except by and through Fisher as their trustee. The broad general powers of Fisher as trustee for the group were more specifically expressed, but not altered or limited, by the agreement or memorandum of October, 1941, wherein Fisher declared the trust, by the meeting of November 11, 1941, and by the declarations of Fisher at the time of the agreement of June 13, 1940, by means of which he secured the execution of said agreement by the plaintiffs.”

The mortgages given to the creditors, herein litigating, in security for the note of the company covering its indebtedness to them, to which reference has been heretofore made, contained the following language:

“It is further understood and agreed that the word mortgagee or mortgagees shall include any person designated in writing by the mortgagee or mortgagees to act as trustees for the mortgagee or mortgagees and said trustee, so designated in writing to the mortgagor, shall have all the authority and power and rights conferred in this mortgage upon the mortgagee or mortgagees. The mortgagee or mortgagees reserve to themselves the right to change the trustee at any time or have no trustee whatsoever, providing the mortgagor and mortgagors shall be notified in writing, the desire of the mortgagee and mortgagees.”

(The language quoted above is taken from the real estate mortgage. The language used in the chattel mortgage is substantially the same.)

At the time of the execution of the chattel mortgage, the following separate instrument in writing was signed by each of the mortgagees:

“We, the undersigned, being at least a majority of the mortgagees named in a chattel mortgage executed by The Producers Creamery and Cold Storage Co. of Celina, Ohio, under date of August 1, 1940, do hereby select and appoint Fred G. Fisher as the trustee in our place and stead to take possession of the property enumerated in said mortgage in our behalf and in our stead. In accordance with the terms of said chattel mortgage, we hereby designate said Fred G. Fisher, as trustee aforesaid, to do all things necessary and act in our behalf under said mortgage hereby ratifying, affirming and approving all of the acts and things done by Fred G. Fisher, as such trustee, which have already been done by Fred G. Fisher, in his capacity as trustee. We also agree that Fred G. Fisher, as such trustee, shall act solely in our behalf and that we, either as a group or as individuals, shall exercise no rights under the aforesaid mortgage only by and through Fred G. Fisher as trustee. * * *
“(Signatures)”

The following instrument was also executed and signed by the mortgagees:

“Celina, Ohio, August 2, 1940.
“The Producers Creamery and Cold Storage Co.,
“Celina, Ohio.
“Gentlemen:
“In accordance with the terms of the mortgage executed by you under date of August 2, 1940, to the undersigned as mortgagees, we have selected and appointed Mr. Fred G. Fisher as trustee of our interests as mortgagees to act in our behalf in accordance with the terms of said mortgage.
“Please be advised that Mr. Fred G. Fisher will act as such trustee during the effective period of the mortgage or until this designation is cancelled by a written document signed by at least a majority of the undersigned.
“(Signatures)”

As with many legal questions, great difficulty in the law of trusts lies in confusion and misuse of terms. The language employed in the instruments set forth above designates Mr. Fisher as “trustee.” But, as stated before in this opinion, there can be no trust without a trust res or corpus, and certainly the language used in the instruments, or any other conduct of the mortgagees, does not convey or deliver to- Mr. Fisher the title to any property, either legal or equitable. Undoubtedly the language and conduct of the parties is sufficient to create an agency, and thus far such is the only status of Fisher, excepting only his standing as a mortgagee in his own right.

Agencies and trusts resemble each other in many respects, in that -both are relations of trust and confidence, but their points of difference are marked. An agent is ordinarily not the owner of property for the benefit of his principal, while a trustee always holds the title to property for his cestui que trust. See 1 Restatement of the Law of Trusts, Sec. 8.

■ We find no evidence in the entire record which would permit this court to rule that an express trust was ever created. The mere statement of a person that he holds property as trustee for someone else is not sufficient to establish an express trust, if in truth and in fact he does not have the title to or ownership of the property for which he declares himself trustee for the benefit of someone else. Nor will the use of the term “trustee” establish an express trust in property when there has been no conveyance of title to property to a third person “trustee” by a settlor.

Thus far in our discussion of the questions presented, we are of the opinion that Fisher acted in the capacity of agent only, and that such was his intended legal status by all of the parties herein.

It is proper, we believe, to make the following observation in connection with the claimed assignment of the mortgages to Fisher. We find no evidence showing that the primary obligation — the debt as evidenced by the promissory note— was ever assigned, endorsed or transferred to Fisher, the asserted trustee. In 27 O. Jur., Mortgages, 469, Sec. 244, appears the following:

“A mortgage given to secure a debt has no determinate value apart from the debt, and as distinct from it, is not a fit subject for assignment. (Kernohan v. Manss, 53 Oh St 118.) A mortgage being a mere incident, an assignment thereof will not, in law, carry with it a transfer of the debt, at least where the intent is not to transfer the debt at law, a negotiable note being retained by the assignor.”

See also, 37 Am. Jur., Mortgages, Sec. 1204.

The failure to transfer or assign the debt to the claimed trustee, Fisher, it would seem, is added evidence that it was never the intention of the mortgagees to make Fisher anything other than their agent, clothed with authority to service and look after their interests.

In connection with the above observations, caution must be used to not confuse the statements there made with the rule of law governing the transfer of a debt. This rule of law is, as we understand it, that, where a note secured by a mortgage is transferred, as by endorsement, so as to vest the legal title to the note in the transferee, such transfer operates as an equitable assignment of the mortgage, even though the mortgage is not assigned or delivered.

The record also discloses that the mortgage was foreclosed and judgment taken on the note in the names of the principal creditors, and not by Fisher, as trustee for the group.

It is further claimed by the appellees that—

“The agreement of July 13, 1942 (heretofore set forth), and the statements of Fisher that induced the execution of that agreement, in and of themselves, constitute a declaration of an express trust for the benefit of the group, in view of the fact that Fisher as the successful bidder then had the equitable title to the property sold by the receiver, coupled with the right to acquire the full legal title thereto; something that had economic commercial value and was assignable.
“Not only did an express trust arise, as stated above, but the evidence also shows a purchase-money resulting trust, based on the confidential relations between Fisher and the group and the contribution by the group of a definite and ascertainable part of the purchase money, by reason of their agreement to permit the continuance of their indebtedness to the Columbus Mutual Life Insurance Company amounting to $67,500 and the surrender of their judgment for more than $120,000.”

As stated before, the bid price for the property made by Fisher on July 6, 1942, was in the amount of $300,100. Twenty-five thousand dollars of Mr. Sommer’s money, in the form of a certified check, was deposited with the bid. Following this deposit, the court allowed a period of time for the final payment, and under the terms of the sale the purchaser was given the accounts and the business as of the date of the sale, although the receiver was to continue to operate the plant until the time of final confirmation.

Between the date of the sale and its confirmation, $37,000 came into the hands of the receiver out of the business, which was applied on the purchase price. Under the terms of the sale, this money was to belong to the purchaser in the event of a final confirmation. It therefore was properly applied to the purchase price as money belonging to the purchaser. It represented a part of, or the augmentation of a part of, the assets purchased. In addition to these cash payments, an additional sum of $50,358.53 of cash belonging to Mr. Sommers, or cash for which he was personally responsible, was paid on the purchase price. It thus appears that Sommers paid personally in cash, $75,358.53, plus $37,000 in cash (the latter representing cash owned by the purchaser), or a total of $112,358.53. The balance of the purchase price was paid by a credit on the purchase price of two prior liens — i. e., (1) a mortgage lien in the amount of $67,500 to the Columbus Mutual Insurance Co., and (2) the judgment lien of $119,592.73 in favor of the creditors’ group.

In analyzing the legal effect of the abatement in the purchase price to the extent of the amount of the two items mentioned, we determine that the purchaser acquired the property subject to these claims, and, by his purchase, assumed personal liability for their payment. We find nothing in the agreement of July 13, 1942, heretofore set out, which indicates that the members of the group of creditors intended that their respective interests in the judgment were to be cancelled or discharged and in consideration therefor that they were to have an interest in the property. In fact, the entire record indicates a hope on the part of all of the creditors that some way could be found whereby they could get their money back and be relieved from further liability. And as a matter of fact, at the time of the institution of this suit, their hopes had been realized, because they had been paid and were no longer liable for any of the obligations, including the note to the Columbus Mutual Life Insurance Company.

An extended discussion at this point on resulting trusts seems unnecessary. Professors Bogert and Scott have well covered the field, and the fundamental principles are well known to counsel. It is well, however, to call to mind the following principle so well ingrained in this field of the law: that the first fundamental fact which a claimant relying on a resulting trust of the kind herein claimed, must prove, is that he paid all or a part of the purchase price. The payment of the claimant’s money or property must have been with his consent, express or implied. The mere loan of money or the loan of credits to a purchaser, .by a claimant of a resulting trust in his favor, does not create such a trust. In the instrument of July 13, 1942, supra, there is nothing which indicates a payment, through the release of a debt, on the purchase price. The debt still remained. Nor is there any other evidence in the record to indicate any such intent.

The appellees further claim “that the property purchased by Mr. Fisher at the receiver’s sale should be impressed with a constructive trust in favor of the plaintiffs, arising from the confidential relationship that existed for more than three years between Mr. Fisher and the group, * * * the representations by Mr. Fisher to the plaintiffs that he was acting and would continue to act as their trustee, their reliance on such representations and their belief that Mr. Fisher was acting as their trustee, the control that Fisher thereby secured over their property and rights, the transfer and conveyance of the assets of the old company to ‘F. G. Fisher, trustee,’ the failure of Mr. Fisher under all of the circumstances to deal fairly with the plaintiffs and to advise them fully of the so-called ‘Sommers-Fisher trust’ in order that plaintiffs could have protected their rights, and the fact that the defendants derived large profits by abusing the trust and confidence reposed by plaintiffs in Mr. Fisher.”

It is said that a constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired under such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.

Here it is claimed that Fisher, the purchaser, violated his fiduciary and confidential relations with the group, and that he, in conjunction with Sommers, took an unfair advantage which now unjustly enriches him or his successor in title, at the expense of former creditors of the old corporation.

In so far as this claim is concerned, the evidence points to the fact that, while for several years Fisher had acted in a confidential and fiduciary capacity toward the members of the group of creditors as an agent in assisting them to safeguard their hazardous financial transactions, at the time of the appointment of the receiver by the Court of Common Pleas, his agency had terminated, and the affairs of the company and its assets and liabilities were under the guidance and protection and in the custody of the court and its receiver.

From this time on, it was the hope of all that an advantageous judicial sale of the property could be made. Through this medium it was apparently thought by all of the group of creditors that they could be reimbursed and relieved of further liability. The operations of the business by the receiver, under the authority and direction of the Court of Common Pleas, and the nature and status of debts and assets of the company, were open for inspection by any one who cared to investigate. There is no evidence indicating the concealment of any material fact.

It is indeed a rule of law that a person in a fiduciary capacity to another who purchases property for himself, may be chargeable as a constructive trustee of the property, even though he purchases it from a third person and not from himself as fiduciary. He is chargeable as a constructive trustee when he purchases for himself individually, property which he should purchase for the beneficiary. This is true where the fiduciary is an express trustee, and it is also true in the case of other fiduciaries, such as executors and administrators, guardians, partners, agents, etc.

The simplest situation arises where the fiduciary is under an affirmative duty to purchase the property for the beneficiary, and he not only fails to purchase it for the beneficiary but purchases it for himself. And this is so even though the fiduciary would not incur a liability to the beneficiary for his failure to purchase the property. It is sufficient that he is under a duty if he purchases it at all to purchase it for the beneficiary.

There are many authorities with which we do not disagree which hold that if one is induced to confide in the promise of another that he will acquire property for him, and is thereby led to do what otherwise he would have foreborne, or to forebear what he contemplated to do in order to acquire such property, and the promisor acquires the property in his own right or as agent or trustee for someone else, the denial of the confidence is such a fraud as will operate to convert the promisor into a trustee ex maleficio and a constructive trust arise thereby. No one can acquire rights in property antagonistic to the person whose interest he has committed himself to protect, nor to hold any benefit acquired by fraud or breach of duty.

In our appraisement of the evidence touching the claim of a constructive trust, we find no evidence indicating a duty on the part of Fisher to purchase for the group. He was free to purchase for himself or as an agent for anyone else. There was no agreement, either express or implied, between Fisher or Sommers and the other members of the group that Fisher was to raise the purchase price and buy for their benefit. Each member of the group could have bid and purchased the property for himself, had he been able and so desired. At the time of the sale, Fisher was not an agent for anyone other than Sommers.

However, assuming that Fisher was the agent for the group at the time of the judicial sale, he cannot be held as a constructive trustee if, before purchasing the property, he gave the principals an opportunity to purchase and they declined to do so. And in this connection, by way of repetition perhaps, we find no evidence to establish the fact that any one or more members of the group, except Sommers, ever intended to buy and pay for, with his money or credit, the property later sold to Fisher, although they were at all times in a position to know, and presumptively did know, the details of the foreclosure action.

Under such circumstances, we fail to find that the purchase by Fisher was in violation of any duty of his to purchase for the group.

As a general proposition of law, an agent is required to use good faith in dealing with property of his principal, but this duty does not necessarily impose upon him additional duties as a fiduciary in matters unrelated to the agency. In order to charge an agent as a constructive trustee, there must be a connection between the scope of his duties and the transaction in which the agent seeks to profit; also, it is recognized as the sounder view that a principal cannot hold his agent as constructive trustee if the agent, before purchasing the property, gave the principal an opportunity to purchase it and the principal declined,

The record does not show that the group or any of its members were misled by Fisher to the extent of forebéaring to purchase the property for themselves. They were content at the time of the judicial sale to have it sold to Fisher for the benefit of Sommers, and thereby create an avenue of escape from their financial involvement.

While the foregoing statements are rather lengthy, they cover but a small part of the factual and legal problems presented. We think, however, that what has been said is sufficient to show that the members of this court do not find from the evidence presented the existence of either an express trust or a resulting trust. Nor does the evidence justify the finding that a constructive trust should be impressed upon the property. For these reasons the claims of the plaintiffs (appellees) must fail for lack of proof.

A decree may be drawn for the appellants.

MONTGOMERY, PJ, and HUNSICKER, J, concur.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    MALEY, Plaintiff-Appellee, v. WYOMING (Village), Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 7347.
    Decided February 20, 1951.
    Fred W. Murphy, Cincinnati, for plaintiff-appellee.
    Robert G. McIntosh, Cincinnati, for defendant-appellant.
   OPINION

By THE COURT:

Plaintiff recovered a verdict and judgment for damages for personal injuries suffered in a fall she received in stepping off the sidewalk onto the metal cover of a catch basin maintained by the defendant in the space between the curb and the sidewalk of its public street. The appeal is on questions of law.

No claim of original structural defect amounting to an absolute nuisance is made, but rather plaintiff seems to proceed upon the theory of qualified nuisance dependent upon the negligence of the defendant in permitting the cover to remain out of position, so that it would tip when stepped upon, thereby creating a potentially dangerous and unreasonable risk of harm, which in due course injured the plaintiff.

The duty resting upon the municipality arises by virtue of §3714 GC, and in City of Cleveland v. Amato, 123 Oh St, 575. In paragraph 1 of the syllabus it was stated to be:

“The duty imposed upon municipalities by the provisions of §3714 G C, is the exercise of ordinary care to keep its streets, sidewalks, and other public ways open, in repair and free from nuisance. Liability for damages for failure to perform such duty cannot arise except upon proof either that its agents or officers actually created the faulty condition from which the injury resulted, or that it had notice thereof, actual or constructive.”

And, at page 577, the Court said:

“Liability of a municipality arises only upon proof that its agents or officers actively created the faulty condition, or that it was otherwise caused and the municipality had actual or constructive notice of its existence.”

The evidence discloses that the metal cover when properly in place was seated on a metal collar, and was fitted on the underside with a lug designed to be inserted in a slot in the collar and turned under a phlange thereon, locking it in place. When thus seated, it would not tip when weight was applied to the surface. When the cover was placed in any other than the locked position, it was capable of being tipped by the application of weight to its surface. It is clear, however, that the cover was not under the exclusive possession and control of the defendant, but exposed to the public generally.

Plaintiff testified it tipped when she stepped upon it, because she heard it bang, and that on arising after having fallen, she put her foot on the cover, and “It moved, it tipped.” Another witness testified that another person had fallen in the man hole about a week prior to plaintiff’s fall. There is no evidence in the record of notice, actual or constructive, to the defendant that the catch basin cover was not in a locked position, as it was designed to be.

On the contrary, the record shows affirmatively that no notice was given to the defendant until after plaintiff’s fall.

In Taylor v. City of Cincinnati, 143 Oh St, 426, it is stated in the 4th and 5th paragraphs of the syllabus that:—

“Sec. 3714 GC, requiring a municipality to keep its streets open, in repair and free from nuisance, does not enjoin upon municipalities a specific legal requirement, but provides a general rule of conduct and makes negligence the basis of liability for its violation, unless an absolute nuisance is proven to exist.
“The duty resting upon municipal corporations, under §3714 GC, to keep their streets and other public ways open, in repair and free from nuisance, requires only reasonable care and vigilance, in view of all the surroundings, to keep such streets and ways in a reasonably safe condition for travel in the usual and ordinary modes, and does not exact that which is unreasonable or impracticable. Municipal corporations are not insurers of the safety of their public ways, and are liable only for negligence in creating a faulty condition in such ways, or in failing to repair, remove or guard against defects or obstructions therein, after actual or constructive notice of their existence. The standard of care required to be exercised by municipal authorities in keeping streets in repair and free from nuisance is that care which persons of reasonable and ordinary prudence exercise under Hire circumstances and conditions. (City of Cleveland v. Amato, 123 Oh St, 575, approved and followed.)

See, also: Wall, Jr., v. City of Cincinnati, 150 Oh St, 411.

Since no proof of notice, either actual or constructive, to the Village, necessary to liability based on negligence, appears in the record, the judgment will be reversed, and final judgment entered in this Court for the defendant-appellant.

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


author: By HORNBECK, J:

text:
    STATE, Plaintiff-Appellee, v. NEWTON, Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2127.
    Decided December 22, 1950.
    Matthews & Altick, Dayton, Francis S. McDaniel, of Counsel, for plaintiff-appellee.
    Harold E. Smock, Dayton, for defendant-appellant.
   OPINION

By HORNBECK, J:

This is an appeal on questions of law from a judgment of the Common Pleas Court, affirming a judgment of the Municipal Court of the City of Oakwood, Ohio, sentencing defendant-appellant on a conviction of the charge of driving an automobile while under the influence of alcohol. The cause was tried to the Municipal Judge without the intervention of a jury.

The affidavit charged the defendant with “unlawfully operating a motor vehicle over and upon Route 48 by driving said vehicle while under the influence of alcohol, narcotic or opiates, contrary to and in violation of §6296-30 GC.” The affidavit also contains the statement “This is the second offense within one year” which it appears was interlined in the affidavit after it was originally verified and without further verification. This addendum apparently was given no consideration in the trial or the judgment.

Seven grounds of error are assigned.

1. That the Common Pleas Court erred by not giving appellant and appellant’s counsel his day in court when the appeal to that court came on for consideration.

2. That the judgment in the Municipal Court is contrary to and against the manifest weight of the evidence.

3 and 4. The judgment entry of the Common Pleas Court is null and void and the judgment of the trial court is contrary to law.

5. Insufficiency of the affidavit because of the new matter added which was not verified.

6. Error of the Court in refusing to dismiss the State’s cause upon defendant’s motions.

7. Because of all other errors, mistakes, irregularities and defects appearing on the record prejudicial to the rights of the defendant-appellant.

The brief of the appellant is directed extendedly to the failure of the Common Pleas Court to notify defendant, or his counsel, of the hearing in that court on the appeal and the consequent denial of the defendant of the right to appear by counsel and to be heard. It is urged that defendant’s constitutional rights were violated and that the rules of the court were disregarded. As to this assignment we are required to say that it cannot be properly considered on this .•appeal because of the fact that there is no showing that the .Presiding Judge of the Common Pleas Court to which the application for hearing on the appeal was presented acted upon the application, one way or the other, prior to the notice of ■the appeal. The application was filed on the 27th of July and -the notice of appeal on the 12th of August. Without some showing that the court denied the application or refused to .act upon it, we are not in a situation to determine whether or not error intervened to the prejudice of the appellant.

The rest of appellant’s brief is devoted to the weight of the evidence which we do not discuss because of the determination of this appal on another ground of error assigned. To discuss the testimony at length and comment upon its probative effect might be prejudicial to the parties.

No other error assigned, except that which we hereinafter immediately consider, is well made. The error assigned which arrests our attention is No. 7, directed to all other errors appearing on the face of the record. Ordinarily such an assignment is a catch-all which deserves and requires little consideration. However, because of a development in this cause it becomes vital to this appeal.

The decision of the trial judge which appears in the bill of exceptions followed immediately the conclusion of the trial. Early in the decision this language is employed:

“The Court is well aware of the fact that the burden of proof is on the State of Ohio to establish the guilt of this defendant by a preponderance; by that the Court means by the greater weight of the testimony.”

The Court later states that the testimony of the State’s witnesses as the more acceptable and that the State has made its burden of proof. Manifestly, the trial judge in applying the rule which he announced erred to the prejudice of the defendant. The rule which he stated applies to civil cases only wherein the Court is dealing with probabilities. In a civil case if the evidence preponderates even in the slightest degree the party who has the burden has met his obligation. On the other hand, in criminal cases the degree of proof to sustain a conviction is always beyond a reasonable doubt. So firmly fixed is this in our jurisprudence that we have a section of the Code, §13442-3 GC, defining the presumption of innocence with which a defendant in a criminal case is at all times clothed and a definition of reasonable doubt with the further requirement that the rule as to presumption and the definition of reasonable doubt shall be read to the jury in the trial of every criminal case. Sec. 13442-5 GC puts upon the trial judge when acting as a jury the obligation to try and determine such cause in accordance with the rules and in like manner as if such cause were being tried before a jury.

A case which presented some facts similar to those appearing in the instant cause which was reviewed by this Court will be found under the title of State v. Marshall, 31 Abs 382.

It is unfortunate that this inadvertence as to the burden of proof occurred because the record discloses that the trial was well handled. The rulings as to the admission and rejection of evidence were sound. However, there can be no doubt as to the error on the part of the court in adopting the wrong rule as to the burden of proof and that it was prejudicial to the defendant is apparent.

Inasmuch as the case may be tried again we make some observations concerning procedure. The affidavit charges that the defendant was under the influence of alcohol, narcotic or opiates. The evidence related to alcohol only. The defendant went to trial without any objection to the affidavit and only interposed objection after trial. The State upon a motion to elect before trial had should elect which charge it will proceed upon. If no such motion is made, in the interest of clarity, if the defendant is found guilty, specifieation should be made as to the charge oí which he is adjudged to be guilty.

The judgment of the Common Pleas Court will be reversed and the cause remanded to the Municipal Court for a new trial.

MILLER, PJ, and WISEMAN, J, concur.


author: By THOMAS, J.

text:
    SLOAN v. S. S. KRESGE COMPANY.
    Common Pleas Court, Trumbull County.
    No. 58722.
    Decided January 23, 1951.
    Luchette & Hoffman, Masury, for plaintiff.
    Hoppe, Day & Ford, Warren, for defendant.
    Common Pleas Judge of Geauga County sitting in Trumbull County by assignment.
   OPINION

By THOMAS, J.

By demurrer the plaintiff questions the propriety of the entire set of interrogatories which the defendant has attached to its answer.

Plaintiff has sued the defendant for personal injuries claimed to have been sustained in a fall which she says she suffered in defendant’s store, by reason of a pool of water on the floor.

Defendant either specifically or generally denies all of the plaintiff’s claims except that it is a corporation conducting stores on West Market Street in Warren. It affirmatively charges “that the fall and injuries and damages, if any, sustained by the plaintiff were directly and proximately caused by the plaintiff’s own negligence.”

To its answer defendant attaches the following interrogatories:

1. What is the name and address of each doctor who attended the plaintiff? How many times and on what dates ■did each of them so attend her?

2. What is the name and address of each hospital at which plaintiff was attended? During what period of time was she confined to such hospital?

3. What is the name and address of each of the nurses, if any, by whom the plaintiff was attended, and as to each such nurse state whether she was registered or practical, and the dates each such nurse attended the plaintiff?

4. What is the name and address of the person, partnership ■or organization by whom the plaintiff claims to have been employed prior to the accident alleged in her petition? In what capacity; during what hours and for what rates of pay was she so employed? What is the amount of plaintiff’s earnings during the year preceding February 6, 1950?

5. During what periods of time, if any, was the plaintiff absent from her employment following February 6, 1950?

6. Was the plaintiff paid for the time during which she was so absent from employment?

Plaintiff demurs to these interrogatories “for the reason that said interrogatories are not pertinent to the issue and are not a proper subject for interrogating the plaintiff in this cause.” In short it is the contention of the plaintiff that “The Statute (Sec. 11348) is intended only to aid a party in supporting his own case and not to help him destroy his opponents cause of action.” Supporting her contention the plaintiff cites Ward v. Mutual Trucking Company, 1 O. O. 456, 22 Abs. 636, and Schuldt v. Associates Investment Co., 61 Oh Ap 213, 15 O. O. 148.

The matter turns on the scope which interrogatories may take under §11348 GC. That section provides:

“Annexing interrogatories to pleadings. A party may annex' to his pleading, other than a demurrer, interrogatories, pertinent to the issue made in the pleadings, which interrogatories, if not demurred to, shall be plainly and fully answered under oath, by the party to whom they are propounded, or if such party is a corporation, by the president, secretary, or other officer'thereof as the party propounding requires.”

The statute thus sanctions interrogatories which are “pertinent to the issue made in the pleadings.” This language is. plain and unequivocal.

First considering the words “issue made in the pleadings”' those words are certain and unambiguous. Manifestly here, the issue made in these pleadings embraces the following questions:

Was there a puddle of water on the floor of the store?

If so, was the puddle caused by any failure on the part of the defendant to exercise ordinary care?

If so did the plaintiff fall at the time and place claimed, because of said puddle?

If so, was her fall contributed to by any failure to exercise ordinary care for her own safety?

If not, what injuries if any did she suffer thereby?

Then considering the word “pertinent” surely its meaning i& not obscure. In human affairs generally as in law, the word “pertinent” means “belonging or related to the subject or matter in hand” Webster’s New International Dictionary (1933 Edition); “Applicable, relevant” Black’s Law Dictionary (Second Edition).

Hence any interrogatory which is pertinent, (that is applicable or relevant) to the “issue made in the pleadings” (that is the questions previously enumerated) seems clearly permissible under the plain and unequivocal language of §11348 GC.

Because there is no ambiguity or obscurity in the words “pertinent to the issue made in the pleadings” the court has no occasion to resort to any rules of statutory interpretation, in order to determine what these words mean.

“Where the language of a Statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation.”

37 O. Jur. Section No. 278, p. 514, and numerous supporting cases.

And as Judge Wanamaker said in Kroff v. Amrhein et al, 94 Oh St, 282 at 285:

“Now, the right to judicially interpret a duly enacted statute is based upon some apparent uncertainty of meaning, some •apparent ambiguity of terms, some apparent conflict or provision * * *. To interpret what is already plain is not interpretation but legislation, no matter by what name it may be called.”

The Supreme Court has never directly and specifically interpreted the meaning of these words “pertinent to the issue made in the pleadings,” as used in §11348 GC.

But the Supreme Court has quite recently considered §11551 GC, a related section of the General Code which contains language very similar to §11348 GC.

In the case of In re Keough, 151 Oh St, 307, 39 O. O. 141, the court was passing on the propriety of a demand for records of the Cleveland Transit System made in a deposition hearing by the plaintiff who sued the system for injuries claimed to have been sustained by reason of the negligence of one of the system’s street cars.

At the plaintiff’s request Keough, one of the system’s commissioners, was subpoenaed by a notary public to produce

(1) The records showing what car barn street car No. 329 was kept in on November 21, 1946;

(2) Trip sheet records of said street car on the day in question and particularly during certain named hours;

(3) Names of the crew operating said street car on the day and during the hours mentioned.

Upon the refusal of the witness to produce and disclose said records he was cited by contempt whereupon he filed habeas corpus proceedings in the Supreme Court.

Defendant claimed among other things that by virtue of §11551 GC he was not required to turn over these records. That section provides:

“Books and writings. Upon motion, and reasonable notice thereof, the Court, in which an action is pending, may order the parties to produce books and writings in their possession or power which contain evidence pertinent to the issue, in cases and under circumstances where they might heretofore have been compelled to produce them by the ordinary rules of chancery. If the plaintiff fails to comply with such order on motion, the Court may give judgment for the defendant as in case of non suit; if a defendant fails to comply with such order, on motion, the Court may give judgment against him by default.”

Before attention is directed to portions of Judge Stewart’s ruling in which he deals with this argument of the defendant, the similarity of the qualifying language in §11551 and §11348 GC should be noted:

Sec. 11551 GC “pertinent to the issue, in cases and under circumstances where they might heretofore have been compelled to produce them by the ordinary rules of chancery.

Sec. 11348 GC “pertinent to the issue made in the pleadings."

Defendant’s argument in the Keough case closely followed and undoubtedly relied on the opinion of Judge Davis In re Schoepf, 74 Oh St, 1. There under circumstances very similar to those present in the Keough case, the plaintiff in a personal injury action against the Cincinnati Traction Company had sought in a deposition hearing to force Schoepf-, a representative of said defendant to disgorge company records relating to the accident involving one of its street cars in which the plaintiff claimed to have been hurt.

In support of his opinion holding that Schoepf was improperly held in contempt for refusing to turn over said records Judge Davis, speaking for the court, said, at page 13:

“It was held in the case of Rauh, supra, that a notary public has power to punish a witness for contempt by imprisonment when the witness refuses to obey a subpoena duces tecum directing him to bring with him any book, writing or other thing under his control, which he may be compelled to produce as evidence. What may he be compelled to pro-' duce? And how may he be compelled to produce it? These questions are clearly answered by Section 5289 to 5293 inclusive of the Revised Statutes. Section 5289 provides that the Court may require the parties to an action ‘to produce books and writings in their possession or power which contain evidence pertinent to the issues, in cases and under circumstances where they might heretofore have been compelled to produce the same by the ordinary rules of proceeding in chancery.’ The sections providing for inspections and copies of writings, for reference to a master, and for action for discovery may be passed over as not material to the present discussion. Section 5289 limits the power to compel the production of books and writings, 1. To such as are pertinent to the issue and 2. To cases and under circumstances where the parties might heretofore have been compelled to produce the same by the ordinary rules of proceeding in chancery. Under these limitations could the court compel the production of the reports which were made to this witness under the rules of his company and for the purpose stated?
“The rule in chancery as to compelling the production of documents for the purposes of evidence and inspection is generally recognized and clearly defined. It is to the effect that a plaintiff is entitled to a discovery of such facts or documents in the defendant’s possession or under his control as are material and necessary to the plaintiff’s case; but that this right does not extend to a discovery of the manner in which the defendant’s case is to be established, nor to evidence which relates exclusively to the defendant’s case.”

Judge Stewart, without expressly saying so, accepts defendant’s contention that the right to secure documents by subpoena in a deposition hearing is limited and circumscribed by §11551 GC. But it is equally clear from his opinion that he interprets the limitations of §11551 GC (“pertinent to the issue, etc.”) as meaning only that the documents sought must be relevant to the issues of the case.

In the course of upholding the contempt conviction of the petitioner, Judge Stewart says:

“The identity of the operators of a transportation vehicle involved in an accident is relevant in an action concerning such accident by one who claims to have been hurt therein. The kind of person an operator is, with reference to his competency or lack thereof or training or lack thereof, bears directly upon the question of the due care of a transportation company with reference to the operators to whom it entrusts its vehicles.
* * * *
“Since petitioner’s whole argument with reference to §11551 GC, is bottomed upon a question of relevancy, Gebauer was entitled under that section to the information he seeks in the subpoena with which the present case is concerned.”

The name of defendant’s operator, and the trip sheet covering the run on which the accident occurred out of which Gebauer’s law suit grew manifestly involve records which strictly might be regarded as part of defendant’s case. For unquestionably these were defendant’s own records.

Plaintiff’s interest in obtaining that information undoubtedly stemmed from a desire to determine in advance of trial, by deposition or by statement of said operator, exactly what the operator’s story of the accident was. In one sense it is true that the defendant was thus required to disclose part of its defense. But more accurately defendant was only required to disclose information that was highly relevant to the issues of the action.

It appears therefore that the Supreme Court has now taken, the sensible view that relevancy is the sole criterion for determining whether or not a document may be obtained pursuant either to §11551 GC employed alone or pursuant to the-deposition procedure modified by §11551 GC.

If §11551 GC is now given that liberal and practical construction it necessarily follows that §11348 GC — the section presently involved — must receive a similar construction.

The comparison of the qualifying language of these two-sections reveals great similarity but also substantial difference.

Both sections require that the power granted relates to-matters that are “pertinent to the issue.” On this point the-two sections require the same ground.

But §11551 GC, unlike §11348 GC, adds the further condition that the power to produce documents is limited to “cases, and under circumstances where the parties might heretofore-have been compelled to produce the same by the ordinary-rules of proceeding in chancery.”

If this second condition no longer restricts the employment of the powers granted under §11551 GC (though this, second condition is expressly provided) surely it must follow that this second condition cannot possibly restrict the employment of the powers granted under §11348 GC — which. Section does not and never has contained that second condition.

Judicial “green light” to use the interrogatory power to-the full extent permitted by the language of §11348 GC — to-probe all matters that are relevant to the issues of the case— will be entirely in keeping with the broad expansion in the-powers of discovery which is taking place in courts across, the country.

The Federal Rules of Civil Procedure, Rule 33, and related rules 34, and 26b have given litigants in federal civil actions-wide interrogatory powers of discovery, quite apart from the-powers to take depositions, and to produce documents.

The spirit and rationale behind these new powers is well described by Justice Murphy in Hickman v. Taylor, 329 U. S. 495, 34 O. O. 395, 91 L. Ed. 451, at 460, which dealt with the-use of the interrogatory power, and its limitations.

“We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of ‘fishing expedition’ serve to-preclude a party from inquiring into the facts underlying his opponent’s case. Mutual knowledge of all the relevant-facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to-disgorge whatever facts he has in his possession. The deposi■tion-diseovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of surprise.”

States which have adopted the Federal Rules in toto or in part, or have similar provisions are Arizona, Colorado, New Mexico, Delaware, Maryland, New Jersey, Florida, Iowa, Mis.souri, Texas, Pennsylvania and South Dakota. See Honor.able Charles E. Clark’s Introduction to Federal Rules of Civil Procedure. (1950) West Pub. Co.

In Ohio the power to take depositions of opposing parties .and witnesses, (§11521 GC et seq) though there were early ■efforts to limit its use (see Thomas v. Beebe, 5 O. N. P. 32) .as early as 1901 was broadly held to depend upon the “competency of the evidence.” In re Rauh, 65 Oh St, 128, at 135. Until the adoption of the Federal Rules the- scope of discovery by deposition was broader in Ohio than in other .jurisdictions.

No statutory reason explains why Ohio courts have permitted full latitude in the use of discovery by deposition, but have ■denied equivalent latitude in the use of discovery by interrogatory. Thoughtful and experienced lawyers have pointed ■out that “interrogatories attached to pleadings afford a simple, inexpensive way of getting information from an adverse party * * *” but point out that their scope has been limited. Address by Byron E. Ford of Columbus to the Ohio .State Bar, Ohio Bar, August 7, 1950.

He voiced the further view that “that the words of the .statutes do not so limit the use of interrogatories (after referring to the cases which are here cited by the plaintiff) but the courts have consistently held that, since the statutory ■enactments were intended to take the place of bills for discovery in equity, the rules of practice under the old equitable action of discovery apply to interrogatories under the code.” (Paranthetic matter added.)

This court agrees that the words of §11348 GC do not and ■cannot warrant the restrictions placed upon the use of the interrogatory power by these prior court decisions. Therefore those decisions will not be followed.

The Supreme- Court, In re Keough, supra, holds that under §11551 GC any document may be obtained which is relevant to the action and which is not privileged.

Relevancy to the issues of an action is made the test of the propriety of an interrogatory under §11348 GC by its words

“pertinent to the issue made by the pleadings.”

It follows that the liberal interpretation of §11551 GC adopted by the Supreme Court in the Keough case, supra, applies with even greater force to §11348 GC.

Accordingly it is concluded that a party may propound any interrogatory which seeks from his opponent information which is relevant to the issues of the action, and which information is not privileged.

The information sought by the defendant relates to the issue of the nature and extent of the plaintiff’s injuries, and the issue of the damages. The interrogatories are therefore “pertinent to the issue made by the pleadings.” None of the questions ask for information which is privileged.

Plaintiff’s demurrer to defendant’s interrogatories is therefore overruled. Defendant may prepare an appropriate entry.


author: By HILDEBRANT, J.:

text:
    ALLEN et, Plaintiffs-Appellees, v. COLE et, Defendants-Appellants.
    Ohio Appeals, First District, Butler County.
    No. 983.
    Decided December 6, 1950.
    Mark T. Brown, Hamilton, for plaintiffs-appellees.
    Sohngen, Parrish, Beeler & Egbert, Hamilton, for defendants-appellants.
   OPINION

By HILDEBRANT, J.:

This law appeal is from the refusal of the Common Pleas Court to allow recovery of attorney’s fees incurred in obtaining a dissolution of an injunction, as damages secured by the injunction bond, wherein it was finally determined that the-injunction was wrongfully issued.

The chronology of events is set forth in the short narrative-Bill of Exceptions, as follows:

“On the 23rd day of July, 1949, plaintiffs filed their petition herein, and therein prayed that the defendants be temporarily-restrained, and that on final hearing they be permanently enjoined, from locking or barring the gate or from doing anything which would deny the plaintiffs the right to use and enjoy a certain lane described in the petition. In this petition plaintiffs further prayed that an account of the damage done by defendants blocking said lane be taken and that plaintiffs be awarded judgment therefor and for such other relief as might be just and proper.
“On the same day plaintiffs posted a cash injunction bond in the amount of Two Hundred ($200.00) Dollars and a temporary restraining order was issued restraining the defendants from blocking said lane.
“On August 2, 1949, defendants filed a motion to dissolve the temporary restraining order.
“When counsel for the parties discussed with the Court the setting of a time for a hearing on the motion to dissolve the temporary restraining order, counsel for plaintiffs advised that plaintiffs would seek no relief in the action other than making the temporary order permanent. The Court then suggested that counsel for defendants file an answer and that the hearing on the motion be consolidated with the hearing on the question as to whether the temporary restraining order would be made permanent. Counsel for defendants agreed to this procedure.
“On September 7, 1949, defendants filed an answer and on the same day the cause came on for hearing before the Court sitting without a jury. Both parties produced testimony bearing on the sole question of whether plaintiffs were entitled to the injunction relief sought.
“On October 31, 1949, both parties filed briefs in support of their respective positions.
“In early December, 1949, the Court rendered an opinion in which it held that plaintiffs were not entitled to the injunctive relief prayed for.
“On January 10. 1950, plaintiffs filed a motion asking leave of Court to re-open the matter and introduce additional evidence. This was granted and a further hearing was had before the Court sitting without a jury on March 20, 1950.
“Subsequently defendant filed an additional brief dealing with the effect of the additional evidence introduced by the defendants at the second hearing and on a later date, the plaintiffs filed a reply brief.
“On the 3rd day of May, 1950, defendants filed a motion asking the Court to increase the amount of the plaintiffs’ injunction bond. A memorandum of law accompanied the filing of this motion.
“On the 19th day of June, 1950, the Court rendered a supplementary opinion holding that the additional evidence offered by plaintiffs did not change the court’s decision and that plaintiffs were not entitled to the injunctive relief sought.
“Also on June 19, 1950, defendants filed a motion requesting the Court to order the Clerk of Courts to pay to the defendants the cash deposited with said Clerk by plaintiffs as their ■cash injunction bond to secure defendants’ damages sustained by reason of the temporary restraining order having been wrongfully issued.
“At a hearing on this motion defendants introduced in evidence a copy of a statement of account rendered to defendants by defendants’ counsel for services rendered by counsel in defending the instant suit in the Common Pleas Court. This included services in preparing and filing pleadings and motions, arguing motions, appearing at hearings and preparing entries. A copy of the exhibit referred to is attached hereto and made a part hereof.
“On the 25th day of August, 1950, the Court denied defendants’ motion to require plaintiffs to increase the amount of their injunction bond, and also denied defendants’ motion to order the plaintiffs’ injunction bond forfeited. Defendants noted their exceptions to these two rulings.”

Many cases in other jurisdictions under a variety of circumstances disclose widely different views which are set forth in the comprehensive annotation to Kern v. Gentner, 164 A. L. R. 1077, and Littleton v. Burgess, 16 L. R. A., (n. s.) 49, to which reference is made for a broad general view of the whole subject.

The majority rule is stated in 43 C. J. S., p. 1102:

“Attorney’s fees are allowable as damages only for services rendered in procuring dissolution oí the injunction. If injunction is the sole relief sought, fees may be allowed for defending the entire action; but, if other relief is also sought, they generally are not recoverable if the dissolution results merely from a trial on the merits. The services for procuring the dissolution ordinarily must be segregated from services rendered in the case generally, to warrant a recovery therefor.”

The rationale of the majority view is stated in 164 A. L. R„ 1089:

“The reasoning which supports this view is that a temporary-injunction is an extraordinary remedy, that it deprives the-defendant of a right claimed by him, even though temporarily, and puts him under a restraint, to remove which he must procure the services of counsel, that the plaintiff in the suit in which the temporary injunction is issued has agreed to pay the defendant’s damages in the event it is determined that the temporary injunction was wrongfully issued, and that the expenditure of attorney’s fees to remove the temporary restraint are a part of the damages sustained by reason oí .its issuance.”

It is set forth in 16 L. R. A. (n. s.) p. 77:

“In other states— and they are the more numerous — the sums paid attorneys, solicitors, and counsel as compensation, for services rendered in procuring the dissolution of the injunction are recoverable as damages by the obligee from theobligors in the injunction bond in case the injunction fails'. The charges must be reasonable, the services must have been necessary, and the fees must have been paid, or at least there must be a legal obligation of the obligee to pay them. If the injunction is ancillary only to the judgment sought, it must be directly attacked and dissolved, save in some very exceptional cases, or the fees will not be allowed. The services, too, for which compensation is claimed, must be exclusively related to the dissolution of the injunction; but the relation is not exceedingly close. The services in preparing the papers and briefs on the application to dissolve, in attending and making the argument, in defending the dissolution when it has been challenged on appeal, in preventing the reinstatement of the injunction, and in the proceedings to ascertain the damages, are all sufficiently related to the dissolution.”

The basis for a right to recover at all is set forth in 21 O. Jur., p. 1307, wherein it is said to be: “The restraint of lawful right gives a right to the recovery of at least nominal damages.”

As to attorneys’ fees, it is stated at page 1309, section 231:

“Attorneys’ fees necessarily incurred in obtaining dissolution of an injunction wrongfully issued may be allowed in assessing the damages in an action on the injunction bond. The fact that such fees have not been paid does not affect recovery on the bond. Recovery cannot, however, be had for attorneys’ fees in the original case, for services which were not rendered in efforts to dissolve or modify the provisional injunction, or not otherwise occasioned by its allowance or subsistence. Such fees and expenses as are incurred in defeating the action, where the dissolution of the injunction is only incidental to the result, are not recoverable.”

In considering the case' at bar, it will be noted that it is one wherein the defendant filed a motion to dissolve and pressed that motion at every opportunity until final disposition of the case and that it. is a case wherein injunction was the sole relief sought.

The Ohio authority on this question is meagre and none too clear.

In Noble v. Arnold, 23 Oh St, 264, it is stated in the syllabus: “In an action on an undertaking for an injunction, whereby the plaintiff agrees to pay the defendant ‘the damages he may sustain by reason of the injunction,’ if it be finally decided that it ought not to have been granted. Held:

“1. That attorney fees and expenses necessarily incurred in obtaining a dissolution of an injunction, may be recovered as damages secured by the undertaking, when it is finally decided that the injunction ought not to have been granted.
“2. But where the attorney fees and expenses are incurred in defeating the action, and the dissolution of the injunction is only incidental to the result, such fees and expenses are not damages sustained by reason of the injunction, and no recovery therefor can be had upon the undertaking.
“3. An indebtedness, or liability to pay attorney fees and expenses, incurred in procuring a dissolution of an injunction, is sufficient damage to sustain an action on the undertaking.” In that case the injunction was ancillary, and a motion to dissolve was filed. At page 270, the Court said:
“It is the undoubted privilege of the party to procure a dissolution of an injunction which has been wrongfully obtained. To the extent of the attorney fees and expenses necessarily incurred for that purpose, he is damaged by the injunction. The express undertaking, is to pay ‘the damages he may sustain by reason of the injunction,’ if it ought not to have been granted. Such expenses, then, come within the damages he is entitled to recover upon the undertaking.
. “But as already intimated, a distinction is to be taken between expenses incurred only in procuring a dissolution of an injunction, and such as are incurred in the defense of an action, to which the injunction is merely auxiliary, and is not essential to the relief sought.
“While, as already stated, we regard the expenses, including reasonable attorney fees, necessarily incurred in procuring a dissolution of an injunction wrongfully granted, as recoverable in an action on the undertaking, when it is finally decided that it ought not to have been granted, we are equally clear that this can not be done, when the expenditure or liability is incurred in defending an action, to which the injunction is only ancillary, and not essential to the relief sought by the action; for it could not then be regarded as damage sustained ‘by reason of the injunction.’
“The true rule would seem to be, under an undertaking like the one in this case, that where reasonable attorney fees and expenses are necessarily incurred alone in procuring the dissolution of an injunction, when it is the sole relief sought by the action, or is merely ancillary thereto, and it is finally decided that it should not have been granted, such fees and expenses may be recovered in an action on the undertaking; but where the injunction is only auxiliary to the object of the action, and the liability is incurred in defeating the action, and the dissolution of the injunction is only incidental to the result, no recovery can be had on the undertaking for the attorney fees and expenses occasioned thereby.”

In Biddle v. Cheadle, 25 Oh St, 278, it was held:

“In an action on an injunction bond, the plaintiff can not recover for attorneys’ fees in the original case, except those paid for services rendered in efforts to dissolve or modify the provisional injunction, or otherwise occasioned by its allowance or subsistence.”

On its facts, the case is very similar to the one at bar, the injunction restraining the erection of a building on a right of way, but is distinguished by the fact that no motion to dissolve was filed and, therefore, no services were rendered in attacking the temporary order.

In Hatch v. Newark Tele. Co., 12 Abs., 717, the Second District Court of Appeals held:

“Attorney fees, paid for trying a case finally and on its merits, defeating an injunction sought, do not form a basis for action upon an injunction bond, but where defendants are put to extra expense by virtue of the allowance of temporary restraining order, such expense may be collected.”

The action was to enjoin a reorganization of the telephone company, and a motion to dissolve the temporary order was made. At page 718 the Court said:

“It is settled in the state by Noble v. Arnold, 23 Oh St 264, and Kiddle v. Cheadle, 25 Oh St, 278, that attorney fees paid for trying a case finally and on its merits, defeating an injunction sought, do not form a basis of the action upon an injunction bond; that the bond indemnifies the obligees only for damages that have resulted from the injunction. The cases referred to, however, do not meet the precise question that we now have.
“In this case the defendants moved for a dissolution of the restraining order and prepared for a hearing thereon and proceeded to partially hear that motion. Manifestly, therefore, the defendants did something more than defend a final judgment and incurred liability for counsel fees further than would have been necessary had they awaited the opportunity to submit it once for all when the action was ready for trial. The fact, therefore, seems to be beyond dispute that the defendants were put to extra expense by virtue of the allowance of the restraining order. It may be difficult to determine just how much extra expense was incurred because of the issuance of the temporary restraining order. It may be difficult to apportion the attorney fees finally paid and say just how much more of attorney fees had to be paid because the temporary injunction issued. Still these difficulties do not affect the legal principle that the obligees were entitled to recover something for the undoubted damage that did actually follow the issuing of the injunction.”

And, further, it is stated:

“If, therefore, there was evidence tending to show a line of demarcation running through the services rendered by the attorneys, so that it can be seen that up to one point the services were required or justified by the injunction and the desire to dissolve it and after that point the services were required only to present the defense against a final decree, then it follows that the obligees were damaged by the temporary injunction to the extent that they incurred attorney fees to dissolve it, although it might well be that not all the services rendered up to the line of demarcation could be said to be elements of damage. There appears to have been in this ease manifest damage to some degree.”

Finally, the Court said at page 719:

“The trial court had the power and the difficult duty of determining what part of that sum had been earned by the-attorneys and paid to them by reason of the issuance of a temDorary restraining order.”

The fact that the ultimate hearing on the motion to dissolve and right to make the injunction permanent was, by direction of the court, consolidated, so that the right to dissolution and the right to a permanent injunction were the subject of the same evidence and effort of counsel at the same time, we do not believe should mitigate against the defendants who never receded at any time from their position of attack upon the temporary order.

We, therefore, conclude that the duty was cast upon the trial court to fix the reasonable value of the attorneys’ services as damages recoverable upon the injunction bond.

The judgment is, therefore, reversed and the cause remanded to the Common Pleas Court for the purpose of so doing.

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


author: By COLLIER, J.:

text:
    STATE ex WILLIAMS, Plaintiff, v. GILLETTE, Defendant.
    Common Pleas Court, Lawrence County.
    No. 31345.
    Decided September 8, 1950.
    Irish, Riley & Riley, Ironton, for plaintiff.
    Roy L. Henry, Ironton, for defendant.
   DECISION

By COLLIER, J.:

This is an action in mandamus in which the relator in her petition alleges that I. N. Crabtree is a duly elected, qualified and acting Justice of the Peace in and for Payette Township, Lawrence County, Ohio, and that on the — day of July, 1950, the relator, Hazel Williams, swore to, and filed nine affidavits in the court of the said I. N. Crabtree, Justice of the Peace, for the arrest of several law violators and the search of several places; that the affidavits filed with the Justice of the Peace charge the defendants with operating slot machines and the illegal sale of intoxicating liquor. The persons charged with criminal offenses in the Justice of the Peace court, with one exception, are named as John Doe, real name unknown, operator of Frontier Club, Gulf Gasoline Station, Spot Lunch, etc. It is further alleged that the Justice of the Peace issued warrants on these affidavits and placed them in the hands of the respondent, Clyde Gillette, who is a duly elected, qualified and acting Constable of Payette Township, Lawrence County, Ohio, and that he has refused to serve them.

To this petition the defendant, Clyde Gillette files an answer in which he admits that he is a duly elected and qualified Constable in Payette Township, and that I. N. Crabtree is a duly elected, qualified and acting Justice of the Peace in Payette Township, and admits that certain warrants were obtained by relator, Hazel Williams, and denies all other allegations in the petition. The respondent in his answer further claims that the warrants issued by the Justice of the Peace of Payette Township for the arrest of persons living in Union and Rome townships, and that the affidavits allege the offenses were committed in Union and Rome townships, and that the places to be searched are located in Union and Rome townships, and that he as Constable of Payette Township is without authority of law to make searches and seizures and arrests in Union and Rome townships. The material facts in the case are not disputed, no testimony was taken and the case has been submitted upon an agreed statement of facts by stipulation of counsel.

Mandamus is a writ issued in the name of the state, to an inferior tribunal, corporation, board or person, commanding the performance of an act which the law specially enjoins as a duty, resulting from an office, trust or station. It is fundamental that the act must be one which the law specially enjoins as a duty resulting from an office, trust or station. Or, stated another way, the duty, performance of which is to be enforced must be mandatory. When an officer refuses to perform a duty plainly and clearly enjoined on Trim by law, he may be compelled to perform such duty by a writ of mandamus, but, of course he cannot be compelled to perform a duty that the law does not require to be performed. Needless to say on officer cannot be compelled to exceed his authority and go beyond the call of duty and perform an unauthorized act. Therefore, it becomes important in this case to determine whether a constable of one township has any authority to make an arrest on a warrant for an offense alleged to have been committed in another township, and also whether he has authority to execute a search warrant in another township, and also whether the justice of the peace of one township has authority and jurisdiction to issue a warrant for the arrest of a person, and the search of a place for an offense committed in another township. In other words, we must determine the validity of the warrants issued by Squire Crabtree and placed in the hands of the respondent, Gillette. If the warrants are legal the law enjoins a duty upon the respondent to serve the warrants, but if the warrants are illegal he cannot be compelled to act on them.

A justice of the peace has only such jurisdiction as is conferred upon him by statute, and there have been some changes made in the law in recent years limiting the jurisdiction of a justice of the peace to his own township with certain exceptions. Sec. 13422-2 GC, defines the jurisdiction of justices of the peace in criminal matters, and so far as applicable reads:

“A justice of the peace shall be a conservator of peace and have jurisdiction in criminal cases throughout the township in which he is elected and where he resides, and county wide jurisdiction in all criminal matters only upon affidavit or complaint filed by the prosecuting attorney, or upon affidavit or complaint made by the sheriff, the party injured, or any authorized representative of a state or federal government, in the event there is no other court of concurrent jurisdiction other than the common pleas court, police court or mayor’s court.” (Emphasis ours.)

In the agreed statement of facts it is admitted that the relator, Hazel Williams gambled and lost money in slot machines exhibited by the persons named in the affidavit. The “party injured,” is defined in Hanaghan v. State, 51 Oh St 24, as a person who suffers some particular injury from the commission of the misdemeanor, as distinguished from that which results to the public or local community where it was committed. Apparently a person who loses money in a slot machine sustains an injury different than people generally, and in my opinion such person is an “injured party,” as that term is used in this statute. But, let us look at this statute to determine when a justice of the peace has county wide jurisdiction, when the complaint is filed by the “injured party” and other persons therein named. Omitting the language of the statute which has no application to this question, the statute reads:

“A justice of the peace shall — have—county wide jurisdiction in all criminal matters only upon affidavit — by the party .injured, in event there is no other court of concurrent jurisdiction other than the common pleas court, police court or mayor’s court.”

If we understand this statute, a justice of the peace has •county wide jurisdiction in criminal matters only in the event there is no court in the township where the offense is committed similar to a justice of the peace court, or, to use the language of the statute “of concurrent jurisdiction.” It is admitted in this case that there are justices of the peace in the other two townships where the offenses are alleged to have been committed, and, therefore, the justice of the peace in Fayette Township, under this statute has no authority to .assume jurisdiction of an alleged offense committed in Union •and Rome townships.

Sec. 13430-1 GC authorizes the issuance of a search warrant. We have had occasion in recent months to familiarize our■selves with this statute, and it reads as follows:

“A magistrate * 4 4 or when the building, house, erection or place or any separate part or portion thereof to be searched is situated in a township or municipality having no magistrate, .a judge of any court having jurisdiction in that county may issue warrants to search such house or place.”

It will be noted that under §13430-1 GC a search warrant may be issued by a judge of any court having county wide jurisdiction only when the place to be searched is situated in a township having no magistrate. If there was no magistrate in Union or Rome townships, a justice of the peace in Fayette Township could issue a search warrant for the search •of a place in such township having no magistrate, but, when there is a justice of the peace in both Union and Rome townships, a justice of the peace or magistrate in another township has no such authority.

This may be an unwise statute, and it may be true as argued by counsel that in correcting the evils that existed prior to the recent changes, the present statutes create a worse situation than existed before the change, but if this is true, it is the duty of the legislature to make the correction — courts have no legislative powers, and must take the statutes as we find them.

For the reasons above stated we must reach the conclusion upon a consideration of these statutes, the warrants issued by I. N. Crabtree, Justice of the Peace of Fayette Township, and placed in the hands of the respondent, Gillette, as constable of Fayette Township, are illegal warrants; that upon the undisputed facts in this case Squire Crabtree has no jurisdiction to issue said warrants; that the respondent may not be compelled by a writ of mandamus to serve illegal warrants; that the relator has shown no clear right for the issuance of a writ of mandamus, and, therefore the writ is denied.


author: By DRUCKER, J.

text:
    MAY COMPANY, Plaintiff, v. JONES et, Defendants.
    Municipal Court, Cleveland (City).
    No. A-165687.
    Decided April 11, 1951.
    Harland G. Burnham, Cleveland, for plaintiff.
    Jean Murrell Capers, Paul D. White, Martin & Martin, Cleveland, for defendants.
   OPINION

By DRUCKER, J.

The plaintiff stated in its petition that there was due it from the defendant a balance on account for necessaries, wearing apparel and household goods. The defendant, Lela Jones, contends that she is not liable primarily for the necessaries furnished to herself and her minor child but urges that the liability for debts incurred is upon the husband, James Jones. The evidence adduced was to the effect that Lela Jones married James Jones and that her son, Kenneth by a previous marriage, livéd at the home of James Jones. The evidence further showed that during the time of the marriage he paid for and assumed responsibility for necessaries which were furnished his wife and her child during that period.

There is no dispute that the husband may be held liable for the purchase of necessaries for himself and his wife while living together as husband and wife. The husband is chargeable and liable for necessaries suitable to the condition and standing of the life of his wife and family. It includes board, clothing, lodgings and medicines. It is not confined merely to those things which are regarded as essential to preserve life or standards of decency. ' 13 Ruling Case Law, 1207.

The general provision for the support of a wife and family is stated in §7997 GC, “The husband must support himself, his wife and his minor children out of his property or by his labor. ' If he is unable to do so, the wife must assist him in so far as she is able.”

The duty of the husband to support his wife has been held to make the wife a creditor to that extent. Chittenden v. Chittenden, 22 Ohio Circuit Court 498, (1901).

The case of Kruger v. Baumgarten, 9 Ohio Nisi Prius (NS) 332 (1910), after reviewing the authorities states, “In the absence of a contract with the wife or circumstances which raise a presumption that she intended to charge her separate estate therefor, no legal liability arises against her even for necessaries required by the family.” McMillan v. Auerback, 7 Nisi Prius 376, (1900); Toledo v. Duffy, 13 Ohio Circuit Court 482, (1897); Thompson v. Green, 4 Oh St 216 (1854); Fickel v. Granger, 83 Oh St 101, (1910).

This liability on the part of the husband is not extinguished even though there is a separation. 18 A. L. R. 1136; Daniels v. Daniels, 17 Ohio Nisi Prius (NS) 605, (1915); Lockwood v. Crum, 34 Oh St 1, (1877); Withrow v. Boone, 16 Ohio Nisi Prius (NS) 506, (1914); Durham v. Durham, 104 Oh St 7, 135 N. E. 280, (1922).

The defendant contends too that James Jones being a stepfather was not liable because he had not adopted the child and that the second husband has no legal control over his wife’s children by a former marriage. Trustees of Bloomfield v. Trustees of Chagrin, 5 Ohio 315 (1832).

It seems logical to conclude that where a husband marries a woman who has a child and that child is taken into the home and the husband with full knowledge consents to such an arrangement and assumes the obligations for the support of the child and holds himself out to creditors as having accepted the responsibility of maintaining that child he could not be heard in denial of his obligation of the support of that child.

In Berkmeyer v. Kellerman, 32 Oh St 239, the court there argued “that a stepfather who educates and supports the child and discharges the duties of a parent stands in loco parentis to him and is entitled to claim his earnings and is liable for his support.”

In the case of Kraft v. Wolf, 3 Ohio Nisi Prius (NS) 105, (1905), the court raised the interesting question as to whether or not the child has become an integral part of the family. In that case the small stepdaughter was living apart with her maternal grandmother and being partially supported by her stepfather. The court held that the minor was not his child so as to render him liable for the support of the child.

The court stated in Wing v. Hibbert, 7 Ohio Nisi Prius 124 (1900) that “When a widowed mother has abundant means to provide for the support of a minor child she can not compel a guardian to lay out of the estate of the ward any demands of the mother for the ward’s maintenance so long as such ward resides with his mother as a member of the family.” The court went further and said, “A stepfather is under no obligation to support the child of his wife by her former husband; yet if he receives the child into his own home and educates and supports him discharging to him all the duties of a parent, he would be entitled to claim the earnings of the child and is liable for the support of that child and may be bound by his contract for necessaries.” Even at that time the court felt that the policy of the law was to encourage and extend the family relation so that when persons assumed the relationship of parent and child they should be encouraged to all the rights and subject to all the liabilities of that relation. Judicial opinions ought not to be influenced by pure moral considerations or ought the court take cognizance of economic changes which have seriously affected the pattern of our existence without in some way relating that philosophy to existing implications and justifiable interpretations of our law. Courts should not make laws. Courts have to depend on the Legislature and law making bodies to make the necessary changes consistent with our present social and economic patterns of life. However the court must be mindful that in rendering its decision and basing it upon well declared legal practice it is within its rights to take cognizance at that time of evolutionary changes in our progressive society. The law certainly takes cognizance of the basic unity of our social structure. It tends to preserve the family as a unit and give deeper significance of the obligations and liabilities of parents. The law has made rapid progress in its endeavor to protect the child and preserve the home. The rapidity with which the rate of divorce has increased is abundant evidence of the ease with which families are disunited and bonds are severed. The court has paid considerable attention to the rights and obligations of husbands and wives but only too frequently have divorces been granted without recognizing the right of the child to be heard and the welfare of the child considered by the court in determining custody, support and maintenance. Certainly no act of the court nor any administration of the law ought to make it more difficult for the divorcee or widow to remarry. Her new husband marries her supposedly with knowledge of her previous marriage and her obligations that may exist towards her child or children. He marries her and when he knows that the child lives with her, is supported by her and maintained by her then he avowedly undertakes to maintain and support her and her child. Her necessaries and right to live according to recognized standards include the necessaries of her child. He becomes the head of the family and when he continues to support the child and his credit is pledged by his wife, creditors have a right to assume that the necessaries of the family will include the clothing, shelter, education and health of his foster child living in his home. He ought not to be permitted after assuming the obligations of a husband and father to then upon the separation of his wife throw off easily that which he had previously undertaken. He should not be permitted to enjoy the privileges of the home and of a family without being subjected to its burdens and liabilities.

The court therefore finds the defendant liable for the necessaries of both the wife, Lela Jones and her minor child, Kenneth Jones.