author: WASHBURN, P. J.

text:
    JONES v. MOHLER.
    Ohio Appeals, 6th Dist., Sandusky Co.
    No. 207.
    Decided Oct. 22, 1928.
    (Judges of the 9th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    NEGLIGENCE.
    (370 C3) Contributory negligence not being plead, and there being no evidence tending to prove contributory negligence, charge upon that subject and submission of special interrogatory thereon, prejudicial error
    B. A. Fouche and W. J. Mead, Fremont, for Jones.
    Harry Garn and R. A. Hunsinger, Fremont, for Mohler.
    HISTORY: — Action in Common Pleas by Jones against Mohler to recover damages for personal injuries. Judgment for Mohler. Jones prosecutes error. Reversed and remanded. No action in Supreme Court *prior to date of this publication.
    STATEMENT OF FACTS.
    Jones, being a painter, was employed by one Garland to paint a sign over the doorway of the automobile repair shop leased and occupied by Garland. The doorway over which the sign was to be painted was the main entrance to the garage; and next to the garaga and in the same building was a business conducted by the owner of the building, defendant Mohler.
    Between the building and the street there was quite a space, which was used more or less for the parking of automobiles. The accident occurred in broad daylight. Jones was on a ladder, which was placed in front of the doorway to the garage, the bottom of the ladder being a few feet from the building and resting upon the cement driveway, and the top leaning against the building above the doorway. The ladder was some 15 feet back from the street which ran along by the building. Mohler’s car was parked on the lot in the space in front of the building but not on the driveway leading to the garage, and he came out of his part of the building and walked to his automobile, which was in the direction of where Jones was on the ladder, got into his automobile and backed up towards Jones in order to turn his machine to go out into the highway, and as he did so, the ladder either gave way or was pushed over, and Jones fell and was injured very severely.
    It was the claim of Jones, and he offered very convincing evidence tending to establish, that Mohler backed his machine against and broke said ladder and caused Jones to fall. The claim of Mohler, as shown by his answer and the evidence in his behalf, was that he did not back his machine against, the ladder, but that the ladder, being defective, gave way and caused Jones to fall.
    The trial court charged the jury very fully and voluminously upon the subject of contributory negligence and submitted to the jury an interrogatory, by which nine of the jurors found that both Jones and Mohler were guilty of negligence and that the negligence of both combined to directly cause the injury received by Jones.
   WASHBURN, P. J.

This special finding of the jury, of course, precludes the idea that a general verdict was found for Mohler on the ground that he did not back his automobile into the ladder, because if he did not do that, he could not have been guilty of negligence, as found by the jury.

The jury having specifically, and as we think rightly, found that Mohler was negligent and that such negligence was a proximate cause of the injury to Jones, should have returned a verdict for Jones; and it is perfectly plain that the reason that was not done was because of the charge of the court on contributory negligence.

An examination of the answer shows that contributory negligence was not plead, and a careful examination and consideration of the record leads us to the unanimous conclusion that there was no evidence tending to prove that Jones was guilty of contributory negligence.

It is thus made apparent that the error committed by the court in charging upon the subject of contributory negligence and submitting a special interrogatory to the jury on that subject, was prejudicial to Jones, and for that error the judgment will have to be reversed. This error ' was so fundamental and all-embracing in its effect upon the trial as to render it unnecessary and unprofitable to say more in disposing of the case.

For error in charging upon and submitting to the jury the question of contributory negligence of Jones, the judgment is reversed and the cause remanded for retrial.

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


source: Caselaw Access Project

author: HOUCK, P. J.

license: Public Domain

text:
    FESSENDEN v. FESSENDEN.
    Ohio Appeals, 9th Dist., Wayne Co.
    No. 850.
    Decided Oct. 29, 1928.
    (Houck, _P. J., and Lemert, J., of the 5th Dist., and Sullivan, J., of the 8th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 D3) Trial court abused discretion in not permitting defendant to offer-testimony of witnesses in her behalf.
    DIVORCE AND ALIMONY.
    (230 Dc) Attempt of Wayne County Common Pleas to set aside and vacate former decree of alimony entered in Summit County Common Pleas between same parties, courts being of concurrent jurisdiction, contrary to law.
    Lee J. Myers, Akron, for plaintiff in error.
    Carl M. Myers, Akron, for defendant in error.
    HISTORY: — Action in Common Pleas by Cloyd Fessenden against Mary Fessenden for divorce. Answer sets up former suit and adjudication between parties. Divorce granted and alimony allowed in lieu of former decree. Mary Fessenden prosecutes error. Judgment reversed. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    The parties here stand in the reverse order from where they stood in the lower court, but hereinafter will be referred to as they stood in the trial court.

      The plaintiff brought suit against his wife for divorce, based upon wilful absence, gross neglect of duty, and cruelty. Plaintiff alleged in his petition that “the defendant has obtained an order from the Court of Common Pleas of Summit County, Ohio, in which this plaintiff is ordered to pay the sum of Ten Dollars ($10) per week alimony indefinitely and that he is unable to pay this amount continuously as there is money due on his home and that he is not able to work and earn as much as he did in the past.
    The answer sets up three defenses: first, a general denial; second, challenges the jurisdiction of the court in the premises; and third, sets up a former suit and adjudication between the parties hereto, in, which the defendant here was decreed alimony by the Common Pleas Court of Summit County, Ohio, in the sum of $10 per week, which decree is still in full force and effect.
    The reply is in the nature of a general denial,
    Trial was had and a decree of divorce was granted plaintiff on the ground of gross neglect of duty, and alimony was allowed defendant in lieu of the Summit County Common Pleas Court decree.
    A reversal of this judgment is sought upon three grounds: first, that the court erred in refusing to hear the defendant’s witnesses and therefore was guilty of an abuse of discretion; second, that the judgment is contrary to law; and third, that the judgment is manifestly against the weight of the evidence.
   HOUCK, P. J.

An examination of the record discloses that but two witnesses testified in the trial. The plaintiff was called as a witness in his own behalf, and after he had testified, the trial judge on his own motion called the defendant to the witness stand, and after she had given testimony, the trial judge said: “I will grant him a-divorce on the ground of gross neglect of duty and order him to pay a lump sum of $50 and $10 a week until the first of April, 1929. You may have exceptions.”

Thereupon counsel for defendant requested the court to be permitted to offer other witnesses to testify in behalf of defendant, which the court refused, and defendant excepted. Did the trial judge err in refusing to hear the testimony of defendant’s witnesses, and was he guilty of an abuse of discretion by such refusal?

We are inclined to believe that the trial court abused its discretion in not permitting defendant to offer testimony of witnesses in her behalf. It will be observed that but two witnesses testified: the plaintiff and the defendant. Litigants are entitled to a fair and impartial trial, and in order to have this, their witnesses should be permitted to testify, under the rules of the court and within proper bounds of judicial discretion and the law governing testimony of witnesses. Parties to the suit are entitled to testify, if qualified under the law, and counsel are entitled to be heard. These are not only statutory but constitutional rights of litigants. It follows that the trial judge was guilty of an abuse, of discretion which is erroneous and of a prejudicial nature to the plaintiff in error.

Is the judgment contrary to law?

The decree entered in this case attempts to set aside and in legal effect vacate a former decree of alimony entered in the Summit County Court of Common Pleas between the parties hereto, the courts being of concurrent jurisdiction. This was and is contrary to law, for the reason that the trial judge in the instant case was without legal authority to vacate, set aside or modify the decree of alimony entered in Summit County.

The conclusion of the court is unanimous in finding that the judgment of the Common Pleas Court is manifestly against the weight of the evidence and contrary to law, and the judgment of the lower court is reversed and the cause remanded for further proceedings according to law.

(Sullivan, J., and Lemert, J., concur.)


text:
    HOPPE v. STATE.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2141.
    Decided Oct. 26, 1928.
    (Judges of the 9th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by the Court.
    CRIMINAL LAW.
    (190 M5) In a criminal case, where the accused is indicted for murder in the first degree for killing another in perpetrating a rape, and he enters a plea of guilty as provided in 13692 GC., the trial court is required to receive evidence to determine the degree of crime committed, and if the evidence justifies, may find the accused guilty of murder in the first degree, murder in the second degree, or manslaughter.
    When the court, upon a plea of guilty, finds the accused guilty of murder in the first degree but does not find him entitled to mercy, that part of the judgment determining the degree of crime is reviewable, but the part denying mercy is not.
    Eldon H. Young and Leonard J. Raab, Toledo, for Hoppe.
    Leroy W. Hunt, Pros. Atty., and Clarence A. Irwin, Asst. Pros. Atty., Toledo, for State.
    HISTORY: — Hoppe convicted, in Common Pleas, of murder in first degree and sentenced to electrocution, Hoppe prosecutes error. Judgment affirmed. Dismissed by Supreme Court.
    STATEMENT OF FACTS.
    Stanley Hoppe, plaintiff in error, who will hereinafter be referred to as the accused, seeks to obtain the reversal of a judgment and sentence of electrocution pronounced upon him by the Common Pleas Court of Lucas county.
    The accused was charged with the killing of a little girl seven years of age, in perpetrating a rape upon her; there was but one count in the indictment. By virtue of the statutes of Ohio, the accused could be rightly found guilty under said indictment of murder in the first degree whether he was actually perpetrating a rape or merely attempting to perpetrate a rape at the time of the killing.
    The accused was placed on trial and after the state had introduced its evidence against the accused and rested its case, the accused, through his counsel, asked for a day’s delay before proceeding with the defense, and the court granted the request.
    When the court convened thereafter, the accused being present, counsel for the accused informed the court that the accused desired to withdraw his plea of not guilty and enter a plea of guilty; and the court, after cautioning the accused and explaining to him fully the consequences of his proposed change of plea, inquired of him whether or not he still desired to change his plea, and he replied that he did; and thereupon, the court permitted him so to plead and discharged the jury from further consideration of the ease.
    Thereafter, the trial judge, with the approval and consent of the accused and his counsel, asked two other Common Pleas judges of the county to sit with him and hear the evidence and determine the degree of crime committed by the accused; and by agreement, all the testimony theretofore taken was introduced to the court so constituted and then the accused offered a large volume of testimony in his behalf, hut he did not himself testify.
    The trial judge, with the approval of his associates, found that the degree of crime committed by the accused was murder in the first degree and refused mercy, and thereupon sentenced the accused to be put to death. The attorneys now representing him in this error proceeding, in which he seeks to have such judgment and sentence reversed, are two of the three attorneys who represented the accused in the trial of the case in the Common Pleas Court. In the argument in this court, said attorneys expressly stated to the court that at the time they advised the accused to enter a plea of guilty, they had no thought that he was then insane and that they now make no claim that he was insane at that time, but they do claim that he was insane at the time of the commission of the offense, and that although he was sane at the time he plead guilty and although he was fully advised of the consequences of his plea and understood and appreciated the same, still the trial court abused its discretion in permitting the accused to change his plea.
   WASHBURN, P. J.

We have examined all that is shown in the record on this subject and find no element of abuse of discretion on the part of the court in permitting said change of plea.

It is also urged on behalf of the accused that the indictment was defective because the language of the single count in the indictment charged facts which might constitute several different offenses.

We do not find that there is any merit in this claim. Because certain acts may constitute the violation of several different statutes is no reason why said facts cannot be charged in an indictment for the violation of one of said statutes; but in any event, it being a matter relating to the form of the indictment, the plea of guilty waived any such claim. (G. C. Secs. 13581 and 13625; Carper v. State, 27 O. S. 572.)

Counsel for the accused also claim that notwithstanding the ' plea of guilty, the court should have found from the evidence that the accused was insane at the time of the commission of the crime and not responsible for his acts, and also that he should not have been sentenced to death. This claim is made on the theory that the plea of guilty did not waive the defense of insanity. This has reference to insanity at the time the crime was committed and not to insanity at the time of trial.

It is also insisted that.if the accused by his plea waived the defenses he could make before the jury, he could still, under G. C, Sec. 13692, defend against the charge of first degree murder by showing that the killing was not done while in the perpetration of a rape.

Said section provides that when the indictment charges an offense including different degrees, the jury may find the defendant not guilty of the degree charged and guilty of an inferior degree thereof, and if the offense charged is “murder, and the accused is convicted by confession in open court, the court shall examine the witnesses, determine the degree of crime and pronounce sentence accordingly.”

We assume that the true effect of this statute is, in the special class of crimes known as homicide, to place the duty upon the court to do that which but for the plea of guilty the jury would be called upon to do after finding the accused guilty of homicide.

In such a case, the jury, by finding the accused guilty, necessarily disposes of all defenses adversely to the accused, leaving to be considered only the specific facts which determine the degree of homicide of which the defendant is guilty. If it be found that the degree of the offense is murder in the first degree, then it would be the further duty of the jury to recommend or withhold mercy.

Applying that conception of the statute to the instant case, the accused plead guilty to unlawfully taking the life of the deceased; and if he was competent to make such a plea and he made it with a full understanding and appreciation of its consequences, he could not thereafter urge any defense whatever to the crime of homicide. If he or his counsel thought that he could establish that the accused was insane at the time the crime was committed, that defense was completely waived by the plea of guilty; and the same is true of drunkenness or any other defense which could have been urged before the jury if a plea of guilty had not been made.

By the plea of guilty the homicide was conclusively established and it became the duty of the court to determine the degree of the offense, and if that was found to be murder in the first degree, then it was the duty of the court to determine whether mercy should be extended to the accused. Whether or not the degree of the.offense was murder in the first degree depended upon whether or not the killing was done while the accused was perpetrating a rape or attempting to perpetrate a rape. The three judges who determined that question found that the killing was done in the perpetration of or attempt to perpetrate a rape.

Under said statute it has been determined that the court, upon, a plea of guilty of homicide, has the same right as the jury to recommend mercy; and it is claimed in this ease that the court erred in not recommending mercy.

As we understand the law, the right conferred upon a jury to recommend mercy in the event of finding the accused guilty of murder in the first degree is a discretionary right and one which is not reviewable; and we think that the same rule applies where the court, in case of a plea of guilty, is called upon to pass upon the question of recommending mercy. But if the matter is reviewable, the record in this case does not disclose that the trial court erred in that regard.

We think that under the law of this state and the facts shown by the evidence in this case, the accused was legally responsible for his acts, and we find no reason for disturbing the judgment and sentence of the Common Pleas Court or for further postponing the day of execution.

Judgment affirmed.

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


author: LLOYD, J.

text:
    FOUKE v. FOUKE et.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 206.
    Decided Oct. 15, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES
    (220 Wh) Probating of will not adversary proceeding. Only issue is whether or not paper propounded is a will. This inquiry can neither be enlarged nor contracted by pleadings. In absence of evidence to the contrary, it must be presumed that if it was necessary to appoint guardian at litem for interested minor, such appointment was made.
    B. A. Fouche, Fremont, for plaintiff in error.
    David B. Love and A. V. Baumann, Fremont, for defendants in error.
    HISTORY: — Action in Common Pleas by Clara G. Fouke against Wesley Fouke et al., to partition real estate. Heard on appeal. Partition ordered and cause remanded. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    This cause is in this court on appeal from a decree of partition of certain real estate. The plaintiff, Clara G. Fouke, claims title to an undivided one-third of the real estate described in her petition, by virtue of the will of her husband, Louis E. Fouke. The latter was a resident of the State of Michigan at the time of the execution of the will and at the time of his death. The property so claimed by plaintiff came to her deceased husband by will of his mother, Amelia Fouke. The defendant, Hubert Jackson Fouke, was a minor at the time of the decease of his brother Louis, and the defendant Maura Fouke Beal claims that the alleged probate of the will of Louis E. Fouke in the probate court of Ingham County, Michigan, was a nullity and did not vest in plaintiff the title to the real estate so claimed by her. This defendant so contends because. she says the laws of Michigan require that in proceedings to probate a will the probate court should appoint guardians ad litem for minors interested in the probate thereof, and that none was appointed for the defendant Hubert Jackson Fouke.
   LLOYD, J.

We have been cited to none, and have been able to find no statute in Michigan so requiring; nor has our attention been called to any rule of practice so providing. The probating of a will is not an adversary proceeding. The main issue, — in fact the only issue, — is whether or not the paper propounded is a will. This inquiry can neither be enlarged nor contracted by pleadings.

In re Hathaway’s Appeal, 46 Mich., 326. A probate proceeding to establish a will is in the nature of an action in rem.

Allison v. Smith, 16 Mich., 405, 416; Stevens vs. Hope, 52 Mich., 65.

And the Probate courts of Michigan having general and, for the most part, exclusive jurisdiction,

“their orders and decrees are not to be attacked collaterally on any assumption that they may have exercised their jurisdiction without evidence to support the allegations. All presumptions are that their action, when properly invoked, is rightful: . . . and when his action is collaterally-assailed, the presumption in support of it must be that he was satisfied in a legal way and by proper proof.” Marford vs. Dieffenbacker, 54 Michigan, 593, 605.

The authenticated copy of the proceedings admitting to probate the will of Louis Fouke recites that

“It satisfactorily appears to this Court, that said instrument is duly approved and ought to be allowed as the last Will and Testament of said deceased.”

So that, regardless of the fact that the order of probate may not be attacked collaterally, we have no evidence before us to dispute this finding of the court probating the will. In the absence of evidence to the contrary it must be presumed that if it was necessary to appoint a guardian ad litem for the interested minor, that such appointment was made. As said by the court in Allison v. Smith, supra, the proceeding “being one substantially in rem, it would be conclusive against all the world while unrevoked.”

Decree of partition is therefore ordered and the cause remanded to the court of common pleas for further proceedings according to law.

(Richards and Williams, JJ., concur.)


author: RICHARDS, J.

text:
    AKRON, CANTON & YOUNGST. RY. CO. v. BRIGHTMAN et.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 243.
    Decided Oct. 15, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 G2) Growing grass and fence are part of real estate, and measure of damages may be ascertained by determining value of property immediately preceding and immediately after fire, taking into account property destroyed or injury done to property not completely destroyed. Jury may figure damage either by the acre or by figuring value of farm as a unit before and after fire. Rule for determining damage to annual crop, does not apply to growing timothy.
    Waters, Andress, Hagelbarger, Wise & Maxon, Akron, and W. R. Pruner, Norwalk, for Railway Co.
    Rowley & Carpenter, Norwalk, for Bright-man et.
    HISTORY: — Action in Common Pleas by Brightman et al against,Railway Company to recover damage to farm, caused by fire. Judgment for plaintiff. Defendant prosecutes error. Judgment affirmed. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    The original action was commenced by Harry H. Brightman and others to recover damages resulting to their farm by reason of the injury and destruction by fire of timothy growing thereon and of a fence on said farm. The trial resulted in a verdict and judgment in their favor in the amount of $500.00.
   RICHARDS, J.

It is urged that this judgment should be reversed because the damages awarded by the jury are excessive and by reason of error in the charge of the court relating to the measure of damages.

The evidence discloses substantial damage to a wire fence separating a 50-acre field of growing timothy from certain pastureland, all owned by the plaintiffs. The evidence also shows the damage and destruction of substantially 50 acres of growing timothy. The evidence is conflicting as to whether the fire destroyed the roots of the timothy, but the jury was justified in finding that the destruction of the roots, while. not complete, was so extensive that it would be unprofitable in subsequent years to harvest such crop of timothy as might grow.

Witnesses in behalf of the plaintiffs were permitted to testify as to the fair market value of the entire farm of 148 acres just before the fire of July 21, 1927, and the fair market value thereof just after the fire. On this subject the trial judge charged the jury that the growing grass and the fence were a part of the real estate and that the measure of damages could be ascertained by determining the value of the property immediately preceding the fire and its value immediately after the fire, taking into account the property destroyed or injury done to the property that was not completely destroyed, and that the jury could determine that 'either by the acre or by figuring the value of the farm as a unit before and after the fire, the difference representing the depreciation that resulted by reason of the fire. The charge in this respect is claimed to be erroneous and prejudicial.'

Many authorities hold that where growing crops are destroyed or damaged by fire, the proper method of ascertaining the amount to be awarded is to fix the value of the crop destroyed at the time and place of destruction, or the damage to the crop injured. That rule certainly may well be applied to the destruction or damage of annual crops, but growing timothy is a perennial and it does not necessarily follow that the rule for ascertaining the value of a growing annual crop must be applied to the destruction or damage of growing timothy. 17 C. J., 891. In its last analysis the measure of damages, where property of this character is destroyed by negligence, is just compensation in money for the property destroyed or damaged, and in many cases this just compensation may be ascertained in more than one way. The method followed in the case at bar was to show the value of the farm immediately before and immediately after the fires. This is criticised on two grounds: 1. Because it is urged that the same rule should be adopted as that stated above for the damage or destruction of annual crops, and, 2. Because the witnesses were permitted, in giving their estimates, to include the entire farm. We think the method adopted was not improper in so far as it related to fixing the damages for the destruction of growing timothy. The only damage which the witnesses were permitted to consider was the damage to the timothy and the fence, and the inclusion of the entire acreage in both estimates would leave the difference between the two stand at the same amount as if the witnesses had only included the acreage of the timothy alone, or that acreage and the acreage of the adjoining pasture land. Whichever method of ascertaining the damages should be adopted, the evidence is such as to have justified a verdict of at least as much as was rendered in this case.

On the whole record, we are unable to find that the' method pursued resulted in prejudice to the plaintiff in error, and we find that substantial justice was done.

(Williams, J., concurs. Lloyd, J., concurs in judgment.)


author: WILLIAMS, J.

text:
    STERNS et v. STATE.
    Ohio Appeals, 6th Dist., Sandusky Co.
    No. 209.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    AUTOMOBILES.
    (50 Sb) Chattel mortgage given in good faith and for valuable consideration without notice to mortgagee that vehicle was being used or was to be used for illegal transportation of liquor, gives mortgagee, upon confiscation and sale of such automobile, lien upon funds arising from sale.
    Stahl, Stahl & Stahl, Fremont, for Sterns, et.
    G. C. Sheffler, Pros. Atty., Fremont, for State.
    HISTORY ¡ — Automotive Securities Company, as intervening petitioner, seeks lien upon fund arising from sale of confiscated automobile. Petition dismissed by Common Pleas. Petitioner prosecutes error. Judgment reversed and final judgment. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    Plaintiff in error, H. Stems, otherwise called Louis Weinstein, pleaded guilty in the court below to a charge of possessing and transporting intoxicating liquors, and was adjudged to pay a fine. The court below further adjudged that the automobile in which the liquor was transported should be confiscated. . The confiscated automobile was ordered sold and the liens against it paid from the fund arising from the sale. The sale was made and the proceeds of the sale brought into court. Thereafter an. intervening petition was filed by The Automotive Securities Company and, upon hearing had, the intervening petition was dismissed at the costs of the petitioner and error was prosecuted to this court. This court reversed the judgment of the court below and remanded the cause for further proceedings, upon the ground that there was no proof that the intervening petitioner had any notice that the carrying vehicle was being used or was to be used for the illegal transportation of liquor. G. C. Section 6212-43. This court did not enter final judgment for plaintiff in error in that cause. An examination of the opinion of this court, which is found in Vol. 29 Court of Appeals Opinions, Sixth District, unreported, p. 264, discloses that there was pending in the court of common pleas of Lucas County, Ohio, a replevin suit involving the same automobile, and that the ultimate rights of the parties might depend upon the outcome of that proceeding. Upon retrial of the cause the court below again entered judgment dismissing the intervening petition, and this petition in error is brought to reverse that judgment.
    After the determination of the replevin case and the retrial of the cause in the court below, The Automotive Securities Company for a consideration received by it, sold, assigned and transferred to the nlaintiff in error, Henry Weinstein, all right, title and interest it had in, to and under the chattel mortgage upon which the intervening petition was based and in and to the funds arising from the sale of the automobile under the order of the court.
   WILLIAMS, J.

The assignment in question transferred all rights of the original intervening petitioner to the plaintiff in error, Henry Weinstein, and as the evidence discloses that the chattel mortgage was given'in good faith and for a valuable consideration without any notice on the part of the mortgagee that the carrying vehicle was being used or was to be used for the illegal transportation of liquor, the court below erred in dismissing the petition of the intervening petitioner and in finding that the as-signee of the chattel mortgagee had no lien upon the fund.

The judgment of the court below will be reversed and final judgment entered in this court finding that the plaintiff in error, Louis Wein-stein, under and by virtue of the chattel mortgage assigned to him, has a lien upon the fund in the court below, and that after the payment of costs, his claim shall be satisfied therefrom.

(Richards and Lloyd, JJ., concur.)


author: MILLS, J.

text:
    HAGER v. CLEVE. TR. CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Judges of the 1st Dist., sitting.
    Joseph B. Keenan, Cleveland, for Hager.
    Dustin, McKeehan, Merrick, Arter & Stewart and Neil P Beall, Cleveland, for Cleveland Tr. Co.
   MILLS, J.

NEGLIGENCE.

(370 P5) Under Section 11345 GC., requiring that pleadings be liberally construed, petition in action for injuries, alleging that plaintiff was injured in pursuance of occupation as-contracting painter when using lavatory in building, by reason of a sudden and violent eruption of steam into bowl, held to state a good cause of action under the rule of res ipsa loquitur, without regard to specific allegations of negligence.

(370 R) Negligence of owner of building, in respect to injury to contracting painter employed by one of tenants, sustained when using lavatory, by reason of violent eruption of steam into bowl, held question for jury, under the doctrine ox res iusa loquitur, in view of allegations of petition and evidence offered in support thereof.

(370 L2) Contracting painter, in employ of tenant of building, held, as respects injury resulting when using lavatory, a licensee on premises of the owner, in that one coming upon premises of owner with his consent, for some purpose in which owner may be interested, will be held to be invited by owner either by express or by implied invitation.

(370 D3) In an action against the owner of a building for injuries to painter in employ of tenant when using lavatory, action of trial court in withdrawing specific allegations of negligence from consideration of jury held erroneous, in that case was proper to go to jury under doctrine of res ipsa loquitur.

(370 C3) In action for injuries to painter in employ of tenant of building when using lavatory, by reason of violent eruption of steam into bowl, instruction to effect that owner would not be liable for errors of construction or defects in hot water apparatus of tenant held erroneous, as withdrawing from jury’s consideration owner’s negligence in permitting a defective or improperly constructed apparatus to be connected with its main cold water supply pipe.

(370 C3) In action for injuries to painter in employ of tenant when using lavatory by reason of violent eruption of steam into bowl, instruction precluding recovery in case jury was unable to determine whether accident resulted from negligence of other tenant or of owner held erroneous, as tending to confirm jury in belief that concurrent negligence of other tenant would relieve owner of liability for negligence proximately causing injuries.

(370 E2-) In action for injuries to painter employed by tenant of building, when using lavatory, by reason of violent eruption of steam into bowl, question propounded to expert witness relative to having encountered cases of hot water being generated in gas-heating tanks held improper as involving collateral issues, and not limited to cases where machine was operated under practically the same conditions.

REAL ESTATE.

(510 Lai) In action for injuries to painter employed by tenant, when using lavatory, by reason of eruption of steam into bowl, admission of testimony to effect that heating apparatus in building had been installed in accordance with ordinances and building code held erroneous, as not in accordance with Section 4235 GC., providing for proof of municipal ordinances.

(Hamilton, P. J., and Cushing, J., concur.)

HISTORY: — Action in Common Pleas by Hager v. Cleve. Tr. Co. for damages for personal injuries. Judgment for defendant. Plaintiff prosecuted error. Reversed and remanded. "Motion to certify overruled by Supreme Court.

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


author: VICKERY, J.

text:
    DISSETTE v. CUTLER CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Cline & Patterson, Cleveland, for Dissette.
    Thompson, Hiñe & Flory, Cleveland, for Cutler Co.
   VICKERY, J.

CONTRACTS.

(150 O) Where a real estate company’s board of directors pass a resolution, by a majority vote, to issue to their attorney fully paid-up capital stock as compensation in full for past legal services rendered to the company, to which recompense the attorney assents, the proceedings constitute the making of a valid contract, binding upon the company.

ATTORNEY AND CLIENT.

(40 C2) A valid contract to issue fully paid-up stock as compensation for legal services cannot be avoided by a prior agreement, since anything taking place prior would be merged into or changed by the subsequent contract.

CORPORATIONS.

(160 Oa) A valid contract to issue fully paid-up stock as compensation for legal services cannot be avoided by a plea that, although the president of the company signed the contract, he was unaware of its contents, because an able business man cannot evade his responsibility by saying that he did not read a contract which he signed.

DEBTOR AND CREDITOR.

([210 A) A valid contract to issue fully paid-up stock as compensation for legal services rendered cannot be avoided by the plea of an accord and satisfaction, because, until there had been a satisfaction, neither party would be bound by the so-called accord.

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

HISTORY: — Action in Common Pleas by Dissette v. Cutler Co. asking mandatory injunction to have transferred to him on books of Co. certain shares of stock. Heard on appeal. Decree for plaintiff.

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


author: CUSHING, J.

text:
    WOODWORTH v. BANNING et
    Ohio Appeals, 1st Dist., Hamilton Co.
    Davies, Hoover & Beall, Cincinnati, for Woodworth.
    Wm. J. Rielly and Lester A. Jaffe, Cincinnati, for Banning, et.
   CUSHING, J.

REAL ESTATE.

(510 Dh) Plaintiff’s amended petition for an accounting and nullification of deed, alleging that deed given in December, 1921, by her attorney, who held only equitable title, was by design an unlawful appropriation of her property, held not to charge fraud, so as to bring action within four-year limitation, under 11224 GC., but merely to charge defendant with taking equitable title of vendor, and hence being in equity, was within 10-year limitation provided by 11227 GC.

(Hamilton, P. J., and Mills, J., concur.)

HISTORY: — Action in Common Pleas by Woodworth v. Banning et al. for accounting and nullification of deed. Demurrer to plaintiff’s amended petition sustained. Plaintiff brings error. Reversed and remanded. No action in Supreme Court prior to date of this publication.

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


text:
    KETTENRING v. KETTENRING.
    Ohio Appeals, 6th Dist., Lucas Co.
    T. T. Shaw, Defiance, and Marshall, Mel-horn, Marlar & Martin, Toledo, for plaintiff in error.
    James Harrington Boyd, Toledo, for defendant -in error.
   RICHARDS, J.

DIVORCE AND ALIMONY.

(230 Aa) Judgment, in divorce action, unconditionally fixing amount of alimony and method of payment pursuant to contract of parties executed during pendency of the action, is not subject to modification after term, in the absence of fraud or mistake.

(230 Ae) Where amount of alimony was dependent on an adjudication to be made by court of Common Pleas granting divorce in accordance with amount of husband’s annual gross income, court of Common Pleas of another county had no jurisdiction of action to recover alimony in so far as amount thereof was dependent on such adjudication.

(230 Ac) Where amount of alimony was absolutely fixed by agreement of parties and judgment of court and was not subject to change, Court _ of Common Pleas of another county had jurisdiction of- action to recover accrued and unpaid amounts of judgment therefor.

(Williams and Lloyd, JJ., concur.)

HISTORY: — Action in Common Pleas by Julia Kettenring v. Chas. H. Kettenring and Un. Cent. Life Ins. Co. to recover alimony past due and unpaid. Judgment for Pltff. Chas, prosecuted error. Reversed and remanded. Motion to certify overruled by Supreme Court.

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


text:
    UN. SAV. & LOAN CO. v. GYRO CONST. CO. et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    W. S. Hannon, Cleveland, for Savings & Loan Co.
    Ulmer & Berne, Cleveland, for Const. Co.
   VICKERY, J.

REAL ESTATE.

(510 M4p) Company loaning money for purpose of erecting house on lot held entitled to foreclose its mortgage on the lot in advance of subsequent judgment liens, though building was by mistake erected upon another lot, which mortgagee purchased for purpose of saving itself from loss.

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

HISTORY: — Action in Common Pleas by Sav. & Ln. Co. v. Constr. Co. to foreclose mortgage. Mortgage held void. Pltff. appealed. Decree for Pltff. No action in Supreme Court prior to date of this publication.

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


author: MAUCK, J.

text:
    PAINTER v. BRAINARD-CEDAR REALTY CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    (Middleton. P. J., and Mauck, J., of the 4th Dist., sitting.)
    Tolies, Hogsett, & Ginn, Cleveland, for Painter.
    Frank T. Cullitan, Cleveland, for Realty Co.
   MAUCK, J.

REAL ESTATE.

(510 L2) Written contract for sale of a parcel of land, “situated in Orange township, Cuyahoga county, Ohio, at the southeast corner of Cedar road and Brainard road,” held sufficiently to describe the realty, where vendor owned but one parcel of land at place indicated and only one piece of realty anywhere.

(510 L2) Both parties to land contract must be bound, or neither is bound.

(510 C3) Purchaser is entitled to notice of the acceptance of his offer to purchase realty before he becomes bound thereby.

(510 C3) No particular form of notice of acceptance of offer to purchase realty is required by law, but form of acceptance is determined by the offer.

(510 M4p) Plaintiff’s written offer to purchase realty owned by defendant corporation was sufficiently accepted by defendant within statute of frauds, when acceptance was signed by proper Officers of defendant and oral notice thereof communicated to plaintiff in absence of requirement in offer that acceptance be written.

CORPORATIONS.

(160 Oa) When six of corporation’s seven directors authorized sale of corporate realty at meeting which was not held pursuant to corporation’s regulations or by-laws, sale thereunder was not invalid as to purchaser having no knowledge of the irregularity; rule being that illegality or irregularity in directors’ meeting cannot be set up to defeat rights of innocent third persons dealing with corporations.

(160 Oa) 8710-8712 GC., prohibiting sale of all corporate assets, unless three-fourths of directors and stockholders authorize it, enacted for purpose of regulating transactions resulting in absorption of one corporation by another, does not apply to sale of real estate by corporation organized to buy, sell and deal in realty, notwithstanding property sold was only realty owned by it.

(Middleton, P. J., concurs.)

HISTORY: — Action by Painter vs. Realty Co. to enforce specific performance of contract for sale of real estate. Heard on appeal. Decree for plaintiff. No action in Supreme Court prior to date of this publication.

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


author: SULLIVAN, PJ.

text:
    CLEVELAND (City) v. GENERAL STORAGE CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Alfred Clum, Cleveland, for City of Cleveland.
    White, Cannon & Spieth, Cleveland, for Storage Co.
   SULLIVAN, PJ.

MUNICIPAL CORPORATIONS.

(360 P4i) A municipal ordinance attempting to change the grade of an existing street or highway must conform to the provisions of the General Code relating thereto, and notice thereof must be given to abutting property owners.

(360 O) An ordinance which in legal effect merely provides for the elmination of an existing grade, and does not make provision for a change of grade, insuring that the property owner will have ingress or egress restored to him, does not comply with the provisions of the General Code.

(Levine and Vickery, JJ., concur.)

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


author: HOUCK, J.

text:
    GREEN et v. CARTER, et.
    Ohio Appeals, 5th Dist., Morgan Co.
    C. H. Fouts, MeConnellsville, for Green.
    G. O. McGonagle, Pros. Atty., and M. E. Danford, MeConnellsville, for Carter.
   HOUCK, J.

PLEADINGS.'

(440 D) “Demurrer” is an objection made by one party to his opponent’s pleading, alleging that he ought not to answer because of some defect therein, and such attack calls in question not only the sufficiency of the facts to constitute a cause of action, but also the right of plaintiff to maintain suit.

(440 D) Demurrer, though admitting facts well pleaded, does not admit correctness of mere conclusions drawn from the facts, and admits truth of pleading demurred to as far as is necessary to enable court to determine on the pleading objected to and no farther.

(440 P) In case defect of statement of facts in petition does not amount to a want of action, but facts can be resolved into, or if well stated, would constitute a valid cause of action, a demurrer is not proper, but a motion to make more definite and certain is proper mode of objection.

TAXES.

(560 C) Petition in suit to enjoin collection of a road assessment, alleging that assessments were not made according to benefits to abutting property nor according to any authorized method of making assessment and that they were excessive and unreasonable in amount and without warrant of law, held not demurrable.

(Shields and Lemert, JJ., concur.)

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


author: SULLIVAN, P. J.

text:
    INTERSTATE MOTOR FREIGHT CO. v. GIRARD.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Charles T. Rich, Cleveland, for Freight Co.
    Wertz & Breitenstein, Cleveland, for Girard.
   SULLIVAN, P. J.

NEGLIGENCE.

(370 C2) “Contributory negligence” bars recovery when it proximately contributes to the infliction of the injury, but plaintiff’s negligence is not a bar where damage is due to some unexpected event, which could not reasonably have been anticipated.

(370 O) Whether plaintiff was in exercise of ordinary care at time of injury must be determined by considering his situation at the time, and mere errors in judgment in attempt to escape imminent danger brought about by defendant’s negligence do not necessarily constitute “contributory negligence.”

(370 O) To determine whether person injured is in exercise of ordinary care, excitement, confusion, and danger of situation must be taken into consideration.

AUTOMOBILES.

(60 Nc) Contributory negligence of driver of taxicab who had proceeded forward beside street car trailer, and was struck by defendant’s truck and trailer running wild down hill at excessive speed because of defective brakes, held, under evidence, for jury in action for injuries.

NEGLIGENCE.

(370 O) If, in action for injuries, there is any reasonable foundation for plaintiff’s conduct warranting inference that plaintiff at time of injury was exercising ordinary care, contributory negligence is question to be submitted to jury, though foundation for plaintiff’s conduct is repugnant to other testimony in the case.

TRIAL.

(590 Da) If there is any credible evidence in record which sustains verdict, reviewing court cannot set it aside, though reviewing court itself might have found differently on the facts, and verdict and judgment can be reversed only as matter of law on ground that they are clearly against evidence.

AUTOMOBILES.

(50 A2S1) In action by taxicab driver for injuries resulting from collision with defendant’s truck, which ran wild down hill, evidence held sufficient to sustain verdict for plaintiff’s recovery.

TRIAL.

(690 V2a) $3,500 damages to taxicab driver for injury to spine, resulting in two weeks’ confinement in hospital and two months’ confinement in his home, held not excessive under conflicting evidence as to whether permanent spinal injuries or mere injury to accessory ribs was involved.

(Vickery & Levine, JJ., concur.)

HISTORY: — Action in Common Pleas by Girard v. Motor Freight Co. for personal injuries. Judgment for plaintiff. Defendant prosecutes error. Affirmed. No action in Supreme Court prior to date of this publication.

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


text:
    GEO. J. KIEBLER REALTY CO. v. MILLER
    Ohio Appeals, 6th Dist., Lucas Co.
    Seeley & Wolfe, Toledo, for Realty Co.
    Stephen Brophy, Toledo, for Miller.
   WILLIAMS, J.

REAL ESTATE.

(510 C3) Agreement for sale of real estate, executed by purchaser and president of corporation formed for the purpose of buying, selling and dealing in real estate, subject to provisions of 8648-8650 GC., held to constitute a valid, subsisting, and enforceable contract, sufficient in law to be binding on both parties.

CORPORATIONS.

(160 D2) Deed of corporation, which is in due form, carries with it a presumption of authority for its execution.

(160 Oa) Where president of corporation under regulation adopted by stockholders was expressly authorized to sign deeds and similar papers, such authorization carried with it power to have his own signature acknowledged before notary public and to perform other things incidental to signing and complete execution thereof.

(Richards and Lloyd, JJ. concur.)

HISTORY: — Action in Common Pleas by Realty Co. v. Miller for specific performance of contract for sale of real estate. Prayer of petition denied. Plaintiff appealed. Decree for Plaintiff. No action in Supreme Court prior to date of this publication.

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


text:
    BECK, Tee v. BEAGLE.
    Ohio Appeals, 5th Dist., Ashland Co.
    . W. W. Scott, Loudonville and Clyde C. Sher-rick, Ashland, for Beck.
    W. J. Weiriek, Loudonville, for Beagle.
   HOUCK, J.

TRIAL.

(590 C) The office and purpose of an instruction by a trial court to a jury is to enlighten it and aid it in arriving at a correct verdict.

(590 Cb2) It being the court’s duty to instruct the jury, a correct declaration of the legal principles involved should be given it

(590 Cb2) It is a part of the office of a trial judge to exercise discretion as to the form and style m which to expound the law pertaining to the case in instructions to the jury.

(590 Cb2) It is the duty of the court, in charging a jury to fully inform it of the law applicable to the case by which it is to be guided in reaching the verdict.

(590 Cb2) In submitting a case to the jury, it is the court’s duty to separate and definitely state issues of fact made in pleadings, accompanied by such instructions on each issue as nature of case requires, and distinguish between and call the jury’s attention to material allegations of fact admitted and denied.

(690 Cc2) Charge to jury that the only evidence for the defense was the last two witnesses called as on cross-examination, that the court deemed it insufficient to overbalance plaintiff’s evidence, and that only question to determine was amount of verdict or what plaintiff’s services were reasonably worth, not exceeding amount asked for in petition, held prejudicial error, requiring reversal of judgment for plaintiff as not stating nature of case or any issues raised by pleadings.

(590 Cb2) The jury is entitled to receive from the court such instructions in the general charge as will fully place it in possession of the issuable facts in controversy, as presented by the pleadings and evidence.

(Shields and Lemert, JJ., concur.)

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


text:
    KEX MFG. CO. v. PLU-GUM CO. et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    George W. Spooner, Cleveland, for Kex Mfg. Co.
    Klein & Klein, Cleveland, for Plu-Gum Co.
   VICKERY, J.

TRADE RIGHTS — Contracts (150 R4)

(580 P) A contract whereby one party agrees to assign all of his patents of a process for repairing tires, and all rights to renewals thereof, in the United States or anywhere in the world, and also argees not to enter into and carry on the business of repairing tires in the United States or in any other county in which a patent or any renewal thereof might be obtained, which agreement is to last during the lifetime of the patent or any renewals thereof, is a contract in restraint of trad<?, and no action will lie for the breach thereof.

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

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


text:
    STATE ex WATMOUGH et v. CORTLAND BANKING CO.
    Ohio Supreme Court.
    No. 21327.
    Decided Oct. 24, 1928.
    Syllabus by Editorial Staff.
    SCHOOLS AND SCHOOL DISTRICTS.
    (530 D) Banking company ordered to deliver to relators, all or any part of funds in its possession, belonging to New Rural School District.
   HISTORY: — Action in Mandamus. Writ allowed.

Reference to full opinion will appear in Omnibus Index of later date.


text:
    DURST et v. STATE ex WATMOUGH et.
    Ohio Supreme Court.
    No. 21267.
    Decided Oct. 24, 1928.
    Syllabus by Editorial Staff.
    SCHOOLS AND SCHOOL DISTRICTS.
    (530 D) Written remonstrance against organization of new rural school district, required to contain signatures of majority of all electors in all townships affected.
   HISTORY: — Rural school district dissolved and, on same day, new district created, including additional territory. Remonstrance filed. Board of education held remonstrance not sufficient as to signatures. Court of Appeals holds that remonstrance required to contain majority of all electors in each of three townships affected. Relator prosecutes error. Judgment affirmed.

. Reference to full opinion will appear in Omnibus Index of later date.


text:
    PERO et v. MILLER.
    Ohio Appeals, 6th Dist., Sandusky Co.
    No. 210.
    Decided Oct. 22, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 L4e) Specific performance of renewal clause in defectively executed, unrecorded lease, granted.
    A. V. Bauman, Fremont, for Pero.
    James G. Hunt, Fremont, for Miller.
    HISTORY: — Action in Common Pleas by Pero et ai against Miller, to compel specific performance of renewal clause in lease. Decree for plaintiff. Defendant appeals. Decree for plaintiff. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    The plaintiffs, as lessees, commenced an action in the court of common pleas against the defendant as lessor, to compel the specific performance of a renewal clause contained in a defectively executed lease. A decree was rendered for the plaintiffs, from which an appeal has been taken to this court.
    The lease was prepared by Miller himself, was executed on January 27, 1922, and was for a period of five years commencing on May 1, 1922, but it only had one witness and was neither acknowledged before an officer nor placed on record. However, the lessees entered into possession pursuant to the lease and continued in possession as tenants throughout the entire period covered by the lease, paying the rent as stipulated, monthly in advance.
   RICHARDS, J.

In view of these facts, it can be of little importance that the lease was defectively executed and not recorded.

The lease contains a renewal clause in the following language:

“Said second party shall have the right to renew this lease for five years provided first party shall have been given written notice at least six months before April 80, 1927.”

Pursuant to the terms of the above renewal clause the lessees mailed to the lessor on August 31, 1926, a letter postpaid, notifying him that they wanted the extension of five years as specified in the lease. The lessor denies receiving this notice, but from the evidence it is apparent that he did receive the letter and has forgotten the fact.

The original lease expired April 30, 1927. The lessees continued to pay rent regularly thereafter, monthly in advance, and the lessor to receive and accept the same until January 3, 1928, on which date he notified the tenants that they would have to vacate. Nevertheless they did in fact pay rent regularly thereafter to April 30, 1928, and such rent was received and accepted by the lessor, with knowledge the renewal notice.

It is urged that the lease being defectively executed, a holding over and the payment and receipt of rent after the expiration of the lease would only operate as a renewal for one year, in analogy to cases in which leases are defectively executed and have no provision for a renewal. The renewal clause distinguishes this case from cases of that character. While the lease was defectively executed and not recorded, _ it did nevertheless constitute a valid and enforceable contract between the parties. There is no magic about the word “lease.” The instrument had a valid consideration and specific provisions, and was executed by parties competent to contract. Treating it as a contract for a lease, the instrument clearly bound the parties to a renewal for a period of five years.

Raitz v. Dow, 10 C. C., N. S., 249; Gross v. Clauss, 6 Ohio App., 140; Schloss v. Brown, et al., 13 Ohio App., 294.

A decree will be entered for the plaintiffs as prayed for.

(Williams and Lloyd, JJ., concur.)


text:
    AURAND, Admr., v. STRANAHAN.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 246.
    Decided Oct. 15, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    COMMERCIAL PAPER.
    (120 R2d) Officers of corporation, who sign note in official capacity, not individually liable.
    Young & Young, Norwalk, for Aurand.
    Parkhurst & Buckingham, Bellevue, for Stranahan.
    HISTORY: — Action in Common Pleas by Aurand, as Administrator, against Stranahan and Darst, to recover on promissory note. Demurrer to petition sustained. Plaintiff prosecutes error. Judgement affirmed. Pending in Supreme Court.
    STATEMENT OF FACTS.
    In the action in the court of common pleas Clay D. Aurand, as administrator of the estate of Hiram C. Aurand, deceased, as plaintiff, sought to recover a judgment upon a promissory note against E. A. Stranahan and L. D. Darst as defendants.
    The note reads as follows:
    “Bellevue, Ohio, Sept. 14, 1921. $1313.12.
    On demand days after date, for value received, we as principal debtors, promise to pay to the order of H. C. Aurand, Belle-vue, Ohio, with interest at the rate of 7 percent per annum, payable semi-annually, • at The First National Bank, Bellevue, Ohio, Thirteen hundred thirteen and 12/ 100 Dollars.
    And we hereby authorize any Attorney in any Court of Record, in the State of Ohio, or elsewhere, at any time after the above sum becomes due, to appear for us, or either of us, in any Court in said State of Ohio, or elsewhere, having jurisdiction of said sum, and confess judgment hereon against us, or either of us, in favor of said Payee or their Assigns, for said amount and cost of suit, and to release all epors in the entry and rendition of said judgment, all right and benefit of appeal, writs of error and stay of execution. Also pledge to above named Bank as security for the payment of this note, or any other indebtedness, the following — with authority to sell the same, on the non-performance of this promise in such manner as in its discretion may deem proper without notice, either at public or private sale, and to apply the proceeds thereon.
    The Carballoy Prod. Co.,
    L. D. Darst, P.
    E. A. Stranahan, Sec.”
    The defendant Stranahan filed a demurrer to the petition, which was sustained. Plaintiff not desiring to plead further, the petition was dismissed and judgment for costs entered in favor of Stranahan.
   LLOYD, J.

Plaintiff in error, the plaintiff below, claims that this note obligates not only The Car-balloy Prod. Co., but also Stranahan and Darst individually, citing as authority therefor the case of Huron County Banking Company v. Oberlin Gas & Electric Co., 32 Cir. Dec., 390, decided April 26, 1911, by the Lorain County Circuit Court.

Section 8125, General Code, provides:

“When the instrument contains or a person adds to his signature words indi-eating that he signs for or on behalf of a principal, or in a representative capacity, he is not liable on the instrument if he was duly authorized. But the mere addition of words describing him as an agent, or as filling a representative character, without disclosing the principal, does not exempt him from personal liability.”

It seems to us that the construction of the note in question is governed by this section of the General Code and that the form of the note and the manner of signing it clearly indicate that both Stranahan and Darst signed it as officers of The Carballoy Prod. Company and not otherwise.

Judgment of the court of common pleas is therefore affirmed.

(Richards and Williams, JJ., concur.)


text:
    NICHOLES et Admr., v. WILLIAMS et.
    Ohio Appeals, 4th Dist., Washington Co.
    Decided Oct. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES.
    (220 D) Purchase of property by widow, with funds which are proceeds of property which belonged to deceased husband, does not, upon death of widow intestate and without issue, give nephews and nieces of deceased husband claim upon property so purchased.
    Charles D. Fogle, Marietta, for Nicholes.
    Mary G. McMahon, Columbus, for Williams et.
    HISTORY: — Action in Common Pleas by Nicholes et al., Administrators of estate of Elizabeth O’Connor against Williams, et al., for protection of court in making distribution of estate. Heard on appeal. Findings of Common Pleas approved. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    Patrick O’Connor died intestate in 1877 without issue and survived by his widow, Elizabeth A. O’Connor. Mrs. O’Connor died in 1925, intestate and without issue. Her next of kin were certain nieces and nephews. There were also living at her death certain nieces and nephews of her predeceased husband Patrick. The administrators of Elizabeth filed their petition in the Common Pleas asking for the protection of the court in making distribution of Elizabeth’s estate, and from the decree of that court an appeal was taken to this court.
    The question here is as between the nephews of Patrick O’Connor and those of Elizabeth A. O’Connor. The property in question involved the proceeds of the sale of the personal estate of Elizabeth A. O’Connor, and all this personal property was acquired by Elizabeth by purchase and consisted of securities purchased many years after the death of her husband but with the proceeds of the sale of property inherited by her from her husband. The nephews and nieces of Patrick O’Connor claim that because the personal property- of which Elizabeth died possessed was purchased by her from the proceeds of property which had originally belonged to Patrick that they are entitled to one-half thereof by virtue of Section 8577 G. C.
   MAUCK, J.

The question, however, has been definitely determined contrary to this contention by two cases recently decided by the Supreme Court. Guear v. Stechschulte, to be reported in 118 O. S. 1, now found in Ohio Bar for July 10, 1928, and Wilson v. Eccles, 119 O. S. 184, now to be found in Ohio Bar of October 11, 1928. It has been insisted that the Supreme Court was wrong in the decisions referred to and that this court might refuse to follow the Supreme Court, thus inviting a reconsideration of the question. It sometimes appears necessary for courts to overrule their own decisions. It would be disastrous, however, for courts of lesser dignity to refuse to follow the plain opinion of the Supreme Court. Such a course leads to judicial anarchy. We would not do this if we had the temerity to believe that the Supreme Court had erred. We are not, however, troubled even to that extent in the instant case because we are convinced of the soundness of the holding in the cases referred to and would so hold if we had not the guidance afforded by those opinions.

The same decree will be entered here as was entered in the Court of Common Pleas.

(Middleton, P. J., and Thomas, J., concur.)


text:
    SMITH v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9332.
    Decided Oct. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    INTOXICATING LIQUOR.
    (330 P) Conviction, on charge of unlawful possession, of married woman living with husband, held unlawful. Watson v. State, 6 Abs. 167, followed and approved.
    Weltmar and Edenburg, Cleveland, for Smith.
    J. A. Kovachy, Cleveland, for State.
    HISTORY: — Beatrice Smith convicted in Municipal Court of Cleveland, on charge of unlawful possession of intoxicating liquor. Accused prosecutes error. Reversed and accused discharged. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    This ease comes into this court on a petition in error to the Municipal Court of the City of Cleveland.
    In the court below the plaintiff in error was charged with having liquor in her pos-sesion in violation of law. The evidence shows that she was living with her husband Addie Smith, and that the husband rented the place and paid the rent and this plaintiff in error seems to be a hair dresser and had the name “hair dresser” on the window, I believe, but it is claimed that she only did work by going out to her customers.
   VICKERY, J.

However this may be, the evidence is clear that she was a married woman living with her husband and under the circumstances, and under the decision in Watson v. State of Ohio, published in the Ohio Law Abstract of March 17, 1928, decided by the Seventh District Court of Appeals, which we follow, the wife cannot be convicted. The conviction, therefore, under these circumstances, was erroneous in that it was not supported by sufficient evidence and contrary to law.

The judgment will, therefore, be reversed and the plaintiff in error discharged.

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


author: HUGHES, PJ.

text:
    FRANKEL v. CROSS et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8901.
    Decided Oct. 29, 1928.
    (Hughes, P. J., and Justice, J. of the 3rd Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE.
    (510 B2e) Claim asserted on parol contract, for collection of real estate broker’s commission, earned for services in procuring purchaser, not enforceable.
    Christian J. Bannick, Cleveland, for Frankel.
    Lieghley, Halle, Haber & Berick, Cleveland, for Cross, et.
    HISTORY: — Action in Common Pleas by Frankel against Cross, et al., to collect eom-mision for sale of real estate. Demurrer to petition, sustained. Plaintiff prosecutes error. Judgment affirmed. No action in Supreme Court prior to date of this publication.
    STATEMENT OF FACTS.
    Plaintiff brought his action in the Common Pleas Court upon two causes of action. The first alleged that the defendants employed him to find a purchaser for certain real property described therein at a given price, and orally agreed to pay him therefor a commission of four percent on the first Twenty Thousand and two and a half percent on the remainder received; that he accepted said employment, found a purchaser who was able, ready and willing to make said purchase upon terms agreeable to the defendants and so notified them and that by reason whereof he became entitled to the sum of $3175 as a commission. The second cause of action is not involved in these error proceedings.
    A demurrer was filed to this first cause of action on the ground that it was within the operation of the statute of frauds and therefore set forth no enforceable claim against, the defendants and this demurrer was sustained by the court below. This review on error here involves the application of the statute of frauds as now amended to this first cause of action.
   HUGHES, PJ.

It would make little difference in what variety of language this cause of action might be described or set forth. In its substance it would always be a claim asserted on a parol contract for the collection of a real estate broker’s commission earned for services in procuring a purchaser. This is exactly what the statute of frauds now says is unenforceable. Without doubt the demurrer was rightly sustained and the judgment is affirmed at the costs of plaintiff in error.

(Justice and Mauck, JJ., concur.)


text:
    JOHNSON v. JOHNSON.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9100.
    Decided Nov. 12, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DIVORCE AND ALIMONY.
    (230 Dc) Fact that plaintiff in divorce action had not been in county thirty days before filing of original petition, cured by filing of supplemental petition on which service was had in accordance with law, plaintiff having been resident of county more than thirty days before filing of supplemental petition.
    Louis A. Perry, Cleveland, for plaintiff in error.
    White, Hammond, Brewer & Curtiss, Cleveland, for defendant in error.
    HISTORY: — Action in Common Pleas by Jane Johnson against Wm. Johnson, for divorce and alimony. Judgment for Jane Johnson. Wm. Johnson brings error. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    In the court below a divorce and alimony was granted to the plaintiff and it is to reverse that judgment that error is prosecuted here. It seems that the defendant in error was plain-. tiff1 below and formerly lived in Lake County and she moved into Cuyahoga County the eleventh day of February and shortly thereafter, perhaps two weeks, she filed a petition in this county alleging that she had been a resident of the State of Ohio for more than one year and of Cuyahoga County for more than thirty days and was a bona fide resident of Cuya-hoga County. Summons was served with a copy of the petition of divorce. It was duly served and the defendant came into court and made a motion, or filed some proceedings, raising the question of the right of plaintiff to bring the action at that time in this county, because she had not lived in the county thirty days, although, as later stated, the question thus raised does not appear on review m this case, because there is no bill of exceptions to show what really took place in the court below, but that is the claim. Apparently some time in August, this having been called to the court’s attention or to the attention of plaintiff’s counsel, a supplemental petition was filed in exactly the same words as the original petition and upon this supplemental petition summons was served, with a copy of the supplemental petition, upon the defendant. Whether he filed an answer to the supplemental petition or not is not clear from the statements of counsel, but it is claimed that an answer had been filed to the original petition and more than six weeks after the service of summons upon the supplemental petition, the case came up for hearing- before the Common Pleas Judge to whose room this ease had been assigned and both parties appeared by their counsel. The case was tried before the Judge and after hearing all the testimony, he entered a decree of divorce and alimony against the defendant in favor of the plaintiff and the defendant not being satisfied, prosecuted error to this court and the only error complained of is that, because the plaintiff had not lived here thirty days when the suit was brought, there was no such thing as getting jurisdiction after-wards by filing a supplemental petition, even though a new summons was served upon the defendant after filing the supplemental petition, and the case was not heard until the full statutory period in which such case can be heard, had elapsed, to-wit, six weeks.
   VICKERY, J.

We do not so understand the law. It was to all intents and purposes a new case and issues were made up upon the new petition or at least the defendant had the right to file an answer; if he did not do it, having had service, it would then be like any other case. It is admitted that the petition might have been dismissed and re-filed and the objection would not obtain; but at best, doing it in the manner it was done, simply gave the case an earlier number. It did not affect the legal rights of the parties nor did it affect the jurisdiction of the court. In other words, if the party had not been in the county thirty days before the original petition was filed,- it was cured by the supplemental petition on which service was had in accordance with law and it was upon this later supplemental petition that the decree was entered and we do not think there is any error in the court’s granting the divorce as he did. He must have had sufficient evidence to warrant his action in granting the decree. At least if he did not have, there is no bill of exceptions which brings before us the evidence so that it might be reviewed. We must assume that the court acted properly.

There being nothing shown to the contrary, we can do nothing but affirm the judgment.

(Sullivan, P.J., concurs, Levine, J., not participating.)


text:
    BARR et v. MEEK et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8950.
    Decided Nov. 5, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ERROR PROCEEDINGS.
    (260 Be) Trial Court is sole power in determining correctness of bill of exceptions. He cannot refuse to sign it because it is incorrect. He must correct it, if possible, either from memory, notes or otherwise, but if there is nothing to refresh his recollection, and he does not remember the testimony, he cannot be compelled to close his eyes and sign a reputed bill of exceptions. What he does sign, however, is «.conclusive and argument of counsel that it is not a true bill of exceptions is of no avail in presence of sufficient certificate properly signed by trial judge.
    A. F. Hanson, Cleveland, for Barr, et.
    G. 0. Farquharson, Cleveland, for Meek, et.
    HISTORY: — Error to Common Pleas. Bill of Exceptions fails to conform to requirements of statutes. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    This cause is here on error proceedings from the Common Pleas Court of Cuyahoga County, a jury having been waived and the ■ cause tried to the court.
   SULLIVAN, PJ.

The petition in error sets up six grounds and with the exception of the question as to whether the allegations of the petition are sufficient to constitute a cause of action, they cannot be considered for the reason that in order to determine whether the assignments of error are well founded it is necessary to have recourse to the evidence as contained in the bill of exceptions. We find upon an examination of the bill of exceptions that it does not conform to the requirements of the statutes in that it does not contain all the evidence and the objections and exceptions upon which the errors charged against the court below are founded. The court, itself, when signing the bill of exceptions used the following language:

“The court finds that the bill of exceptions does not contain all the evidence or all of the material evidence offered or heard on behalf of either of the parties in the trial of this case nor was there to the best recollection of the court any motion offered for judgment on the pleadings or any actual tender of a deed made in open court and said bill of exceptions being contested accordingly, the same is hereby as corrected, allowed and signed by the court and it is ordered that the same be transmitted to the office of the clerk of this court and the same filed and made a part of the record of this case but not to be spread on the journal.”

An examination of the record shows that the court is correct for the correction of the bill of exceptions indicates by what is apparently the court’s own handwriting, that only part of the evidence submitted to the court for its finding, is contained in the bill of exceptions. This situation occurs in several instances throughout the entire record. Thus there is only a portion of the evidence contained in the bill of exceptions.

It is obvious from the briefs, the transcript and that portion of the record which is submitted in the case, that there were extensive examinations and cross-examinations, and it is easily ascertainable that the evidence submitted is vastly in excess of the proportion that appears in the so-called bill of exceptions. Therefore, the bill of exceptions so-called, is deficient in fact and defective in law and the court is without jurisdiction even to consider the same excepting as to the question of the sufficiency as before noted, of the petition itself. Even upon this question it is very doubtful whether the defendant properly raised the question, for the court says in its certificate attached to the bill of exceptions that there was no motion made for judgment upon the pleadings and there is no evidence of the submission of a demurrer to the petition. However, inasmuch as it might be claimed that the court has power in the absence of a demurrer, to consider the adequacy of the petition, it is our opinion, from an examination of the same, that the attack made upon it is not well grounded because, in our judgment, all the elements under the statute, to constitute a cause of action in the case of the character of the one at bar, are apparent in the petition.

It is argued that' this court can take cognizance of counsel’s statement in argument that the bill of exceptions, even though incomplete, should have been corrected by the court to conform to the actual facts and in default thereof the court committed error under the principles of the well known Beebe case, 15 O. App. Rep. 182. This however, is not true, because the so-called Beebe case, was an action in mandamus and this court issued the writ’ compelling the lower court to correct the bill of exceptions even to the extent of compelling the private stenographer, who sat during the trial for one of the parties, to transcribe his notes and submit the translation to the court for the purpose of making the proper corrections in the bill of exceptions.

In this case no such action was commenced by the court and no such action is here. It was plainly and obviously apparent that inasmuch as there was no stenographer to take notes during the trial that it was impossible for the court to correct the bill of exceptions excepting in the way noted on the so-called bill of exceptions, by noting that only part of the evidence appeared. The trial court is the sole power in determining the correctness of a bill of exceptions. He cannot refuse to sign it because it is incorrect. The court must correct it, if it is possible for him to do so, either from memory, notes, or otherwise, but if there is nothing to refresh his recollection, and he does not remember the testimony, he cannot be compelled to close his eyes and sign a reputed bill of exceptions. 'What he does sign, however, is conclusive and an argument of counsel that it is not a true bill of exceptions is of no avail in the presence of a sufficient certificate properly signed by the trial judge.

With such a situation in the case at bar, it is our holding that the judgment of the Common Pleas Court is hereby affirmed.

(Vickery and Levine, JJ., concur.)


text:
    DOSS v. STATE.
    Ohio Appeals, 4th Dist., Vinton Co.
    Decided Oct. 29, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 V3) Failure of jury to find accused guilty of all that jury might have found him to be guilty of, does not warrant reviewing, court in setting aside verdict establishing partial guilt.
    (190 A4) There being some corroboration of testimony of accomplice, court may refuse to instruct jury that they should fail to convict upon uncorroborated testimony of accomplice. There being two accomplices corroborating each other and other significant testimony relating to conduct of defendant that strongly evidenced his guilt, state cannot be said to have relied upon uncorroborated testimony of accomplice.
    (190 F3) Evidence that stolen property was of much greater value than $35, warrants sentence to penitentiary notwithstanding failure to prove specific value.
    F. N. R. Redfern, Adelphi, for Doss.
    W. J. Jones, Pros. Atty., McArthur, for State.
    HISTORY: — Doss was tried in Common Pleas under indictment charging burglary and larceny, and was found guilty of larceny but not burglary. Doss prosecutes error. Judgment affirmed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    Don Doss was tried in the Court of Common Pleas of Vinton County under an indictment charging him with burglary and larceny. He was found not guilty of breaking and entering but guilty of larceny, the value of the personal property taken being fixed at ninety dollars. He was sentenced to a term in the Ohio Penitentiary and now seeks to reverse the judgment of conviction.
   MAUCK, J.

The state largely relied for a verdict upon the testimony of Ross Waldron and Myrtle Waldron, husband and wife. They both testified to their own guilt and both testified that Doss was a participant in the crime. If their testimony is true there was not only a larceny but a burglary and Doss was guilty of both larceny and burglary.

It is now contended that inasmuch as the testimony tended to show that there could have been no larceny unless there had been a breaking as well that the verdict of larceny ought to be set aside because the jury found that there had been no burglary. There is a hint of logic in this position, but verdicts are not always logical and the failure of a jury to find an accused guilty of all that the jury might have found him to be guilty of does not warrant a reviewing court in setting aside the verdict establishing his partial guilt. The fact that the state has been deprived of part of that which is due it by a jury does not justify a court in taking from it the rest of what was due it.

It is also argued that the charge of the court did not fully cover the rule relating to the testimony of accomplices. What the court said was this:

“It is a rule in Ohio, that there is no rule of law preventing a jury from convicting upon the uncorroborated testimony of an accomplice or accomplices, if such evidence convinces you beyond a reasonable doubt; but you should look to the evidence of an accomplice with care and with such evidence consider all the_ other evidence of a corroborating nature, if any, and arrive at such conclusion as the entire evidence warrants.”

Counsel for the plaintiff in error claims that this instruction was not as favorable to the accused as was required by the doctrine laid down in Allen v. State, 10 OS. 288. The law upon this subject was reviewed in State v. Reichert, 111 OS. 698. The holding in the Reichert case was that where the record discloses that there was some corroboration of the testimony of the accomplice the trial judge might refuse to instruct the jury that they should fail to convict upon the uncorroborated testimony of the accomplice. In the instant case there were two accomplices corroborating each other but there was other significant testimony relating to the conduct of the defendant that strongly evidenced the defendant’s guilt and furnished such corroboration of the testimony of the Waldrons that the state can not be said to have relied upon the uncorroborated testimony of accomplices. The instruction complained of was fully in line with the opinion in the Reichert case, the last and we believe the best exposition by the Supreme Court of the question at issue.

It is also claimed that the evidence in the case did not show the value of the goods stolen. In a sense that is true. The jury had no exact idea of the value of the particular items of property proved to have been taken. The evidence did, however, show that the stolen property was of much greater value than thirty-five dollars and even of greater value than ninety dollars and that the plaintiff in error was not prejudiced by the failure to prove specific value.

There was much to discredit the testimony of the two Waldrons. The fact, however, that Doss made way with an automobile upon which there were tires that might have been proven to have been part of the booty resulting from this burglary and larceny is strongly suggestive of the guilt of Doss and warranted the jury, in connection with the testimony of the accomplices, in returning a verdict of guilty.

(Midleton, PJ., and Thomas, J., concur.)


author: LEVINE, J.

text:
    COVERSON, etc. v. CARPENTA, et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8951.
    Decided Nov. 5, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ACTIONS.
    (10 Pa) Face of petition having made case in which all defendants are rightfully joined and service having been had, on one or more, in county where suit is brought and on others in another county, question of jurisdiction of court, over persons of defendants served in other county, must be raised by answer. Trial court without authority to pass upon question of jurisdiction until such answer is filed and evidence introduced.
    Jerome W. Moss, Cleveland, for Coverson.
    Nicola & Horn, Cleveland, for Carpenta, et.
    HISTORY: — Action in Common Pleas by Coverson against Carpenta and others. Sanda, defendant, filed motion to quash service. Motion sustained by Common Pleas. Coverson brings error. Judgment reversed. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    In the Common Pleas Court, Mike Sanda, one of the defendants in the above entitled action, through his counsel, filed a motion, without entering his appearance in said action, for an order to quash service of summo.ns had upon him, for the reason that there was a mis-joinder of parties defendant, and that he, as a non-resident, could not be joined in such action. This motion was sustained by the trial court and service of summons was accordingly ordered quashed. The correctness of the ruling of the trial court is now before us.
    The petition is predicated upon the theory that a certain unincorporated society, through its officers and members, gave a fireworks exhibition and suit is brought against such officers and members who participated in the fireworks exhibition. Insofar as Mike Sanda is concerned, the petition charges that he was the manufacturer who furnished defective explosives which caused an injury to plaintiff, and in addition the petition charges that all of the defendants, including Mike Sanda, were careless and negligent in allowing and permitting dangerous and defective fireworks and explosives to be discharged; careless and negligent in failing to place competent and experienced servants in charge of tbe exhibition, and in failing to provide proper safeguards for the safety of spectators and invited guests of whom the plaintiff was one.
   LEVINE, J.

The allegations of the petition, in our opinion, charge joint negligence against all the defendants named, and it' also in substance alleges active .particioation in the negligent acts and omissions by all of the defendants complained of.

The Sections of the General Code which permits the service of summons against non-resident defendants in certain cases is Sec. 11282 GC., entitled, “When summons may issue to another county,” as follows:

“When the action is rightly brought in any county according to the provisions of the next preceding chapter, a summons may be issued to any other county, against one or more of the defendants, at the plaintiff’s request; * * *”

It is conceded that insofar as certain defendants, who were officers and members of the unincorporated society is concerned, that the action was rightfully brought against them in Cuyahoga County, all of them being residents of Cuyahoga County.

The ease of Drea v. Carrington, et al, 32 OS. 595, is pertinent to the point under discussion.

It seems clear that if upon the face of the petition a case is made in which all the defendants are rightfully joined and service is made on one or more in the county where the suit is brought and on the others in another county, the question of the jurisdiction of the court over the persons of the defendants served in such other county, must be raised by answer and that it becomes one of the issues in the case. The trial court is without authority to pass upon the question of jurisdiction . until such answer is filed and the evidence introduced upon all pertinent issues including the question of jurisdiction.

We are of the opinion that the trial court erred in ruling upon the motion as it did, and the judgment of the Common Pleas Court will therefore be reversed with institodtions to overrule the motion to quash, filed by Mike Sanda.

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


author: MAUCK, J..

text:
    COOK ORGANIZATION, INC. v. NIGHTINGALE, Extrx., etc. COOK v. NIGHTINGALE, Extrx., etc.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8876, 8877.
    Decided Oct. 29, 1928.
    (Justice, J., of the 3rd Dist., and Mauck, J., of the 4th Dist., sitting.)
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DEBTOR & CREDITOR.
    (210 P'' Proof that check was issued and cashed, not sufficient to make case of money loaned. Without other evidence, it would be presumed that check was in payment of debt. Plaintiff bound to show, by greater probabilities of case, that it was a loan. This may be done by showing attendant circumstances from which loan may be inferred.
    M. W. Vickery, Cleveland, for Cook Organization.
    White, Hammond, Brewer & Curtiss, Cleveland, for Nightingale, Extrx.
    HISTORY: — Two actions in Municipal Court by Nightingale against Cook Organization, Inc., and Wilbert L. Cook, respectively. Judgment for Nightingale. Cook brings error. Both judgments affirmed.. No action in Supreme Court prior to publication date.
    STATEMENT OF FACTS.
    Edith F. Nightingale as executrix of her deceased husband, Charles Nightingale, brought two action in the Municipal Court for the recovery of money claimed to be owing to the estate, for money loaned and for services rendered. She asserted identical claims against the corporation and against Mr. Cook personally. She recovered a judgment against the corporation for part of the money claimed to have been loaned and against Cook for another part claimed to have been loaned. It is now sought to reverse both these judgments.
   MAUCK, J..

So far as the judgment against the corporation is concerned the proceeding may be disposed of with a word. The undisputed testimony showed the corporation liable on that count and that judgment is affirmed.

The judgment against Cook presents more difficulty. The plaintiff showed the issuance of a check to Cook and that the latter cashed the check. It may be conceded that this was not sufficient to make a case of money loaned. Without other evidence it would be presumed that the check was in payment of a debt and not to make a loan.. Jones on Evidence, Section 234. It established the payment of the money but not the purpose of the payment. The plaintiff was bound to show by the greater probabilities of the case that it was a loan. This she might do by showing the attendant circumstances from which might be inferred that it was a loan. The trial judge had a right to consider the relation of the parties, whether the decedent had available funds to loan, whether Cook needed the money, whether in view of their relations a loan might be made without being evidenced by a note and any other incidents that would enable one to infer that the transaction constituted a loan or did not.

To maintain her case the plaintiff placed the defendant on the stand for cross-examination. He admitted the receipt of the money and attempted to show that it was received in satisfaction of an indebtedness owing him by Nightingale. Thereupon the plaintiff showed to the satisfaction of the trial judge that Cook was wrong and that his explanation of the purposes and nature of the transaction was untrue. The plaintiff in error admits that the trial judge might have found that Cook’s story was untrue but claims that even though it be found to be false that it could not help the plaintiff. The argument is that if Cook failed to show that the money received by him was not in payment of an obligation owing him, still it does not help the plaintiff because it does not tend to prove a loan. Reliance is placed upon Kazdan v. Stein, 118 OS.—. That case is not, however, decisive of this.

In the case at bar there was undisputed evidence that Cook had received the money from Nightingale.. The defendant sought to show that he received the money as payment for an indebtedness owed by Nightingale and in effect said that the decedent owed him on an indebtedness arising in a particular way or did not owe him at all. Thereupon the plaintiff showed to the satisfaction of the trial judge that no indebtedness could have arisen in the way claimed. This wholly destroyed the defendant’s contention that Nightingale owed the defendant. Thereupon the trial judge having eliminated the possibility of the transaction being the satisfaction of an old debt draws from all the circumstances the conclusion that it was the creation of a new debt running from Cook to Nightingale. This he finds not because Cook’s testimony was discredited, but because the whole testimony shows that Cook’s theory is impossible and being impossible that the only inference to be drawn from the situation is that Cook borrowed and Nightingale loaned the money in question. We hold that the trial judge was warranted in his conclusion.

A like case is reported in New York. Nav v. Curley, 113 NY. 575, 577.

The other assignments of error, in our view of the case, do not require detailed discussion.

The judgment against Cook personally is also affirmed.

(Justice, J., concurs.)