author: SULLIVAN, J.

text:
    OSTER v COLUMBIAN NAT’L FIRE INS CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9593.
    Decided March 11, 1929
    Mr. Willis R. Diehm, Cleveland, for Oster.
    Messrs. Mooney, Hahn, Loeser & Keough, Cleveland, for Columbian Nat’l Fire Ins Co.
   SULLIVAN, J.

It appears from the record that, after a total loss by fire, the plaintiff delivered his policy insuring property upon which there had been a partial loss theretofore to the Company, and which the Company retained until after a year had expired from the date of the loss, and it is important to remember this, because one of the provisions of the policy declared that a period of a year from the date of loss was the limitation for the commencement of a suit to recover under the terms of the policy. It is claimed by the assured that by fraudulent design the Insurance Company retained the policy until after the expiration of the year, for the purpose of defeating the claim for the insurance under the terms of the policy. To bear out this contention, from an examination of the amended petition and the opening statement, it is claimed that, after numerous efforts to secure redelivery of the policy, it w,as not retransferred, and that then and thereby it resulted that suit could not be commenced within the year because, on account of the retention of the policy by the Insurance Company, he had no means of knowledge as to the limitation of one year during which suit might be commenced. Thus, a waiver was claimed by the pleading and the opening statement, either expressly or inferentially, that this lack of knowledge on the part of the plaintiff as to the particular provision relating to time, was due to the retention of the policy during the year, but such a contention we do not think is the basis for a waiver or estoppel, for the reason that to hold thus, would be straining the law to that extent which would hold the Insurance Company not only responsible for its own knowledge of the provisions of the insurance contract, but also for the knowledge or deficiency of knowledge of the assured, the other party to the mutual contract. Therefore, it is our conclusion upon this point that, with this admission in the amended petition and the opening statement, the plaintiff makes it plain and clear that there could be no recovery upon this ground, because the peril and penalty of want of knowledge as to the terms of the contract were just as applicable to the plaintiff as to the defendant, and this situation is accentuated by the allegation in the amended petition and the opening statement that, for a considerable time before the expiration of the year in question, the Insurance Company had denied to plaintiff any and all liability under the terms of the policy.

The deprivation of knowledge by one party to the contract as to the terms of the same is not the basis or foundation for waiver; because of the proposition of law that, in the absence of fraud, each party to an instrument of writing is equally charged with knowledge of the terms of the instrument which they execute.

That parties to an insurance contract may provide a limitation within which suit must be commenced, providing the same is not unreasonable, is the settled law of Ohio, as laid down in Appel vs. Cooper Insurance Co., 76 OS. 52, and upon the doctrine that an Insurance Company can commit no act which is a waiver of that knowledge which the other contracting party is presumed by law to possess, we also find support in the reading of the opinion in that case, as well as in Stradley vs. Hartford Insurance Company, 21 N. P. N. S. 286, and many other authorities, all of which are to the effect that a provision in an insurance policy duly delivered and accepted fixing a period in which suit must be commenced, is legal and binding, upon the parties.

In the ultimate analysis of the issue under discussion, it seems to us clear that there was no error of a prejudicial nature in the ruling of the court in sustaining the motion for judgment in favor of the defendant Insurance Company, on the amended petition and the opening statement of counsel, and rendering judgment as a matter of law for the defendant.

It is asserted that we have no jurisdiction for the reason that these proceedings in error to reverse the judgment below were in violation of 12270 GC., which provides that no proceedings to reverse, vacate, or modify a judgment or final order shall be commenced unless within seventy days after the entry of the judgment or final order complained of. The judgment was rendered May 17th, 1928.

The record herein shows that the plaintiff did not file his bill of exceptions until July 19th, 1928 which was over forty days after the judgment, and the petition in error and transcript were not filed until August 16th, 1928, a period of ninety-one days after the entry of the judgment, notwithstanding the statutory time of seventy days after the entry of the judgment provided for in 12270 GC.

In the case of Young vs. Shallenberger, 53 OS. 291, we find authority for declaring that, under the record, this court is without jurisdiction, by reason of the non-compliance with the section of the Code above quoted.

In the case of Craig vs. Welply, 104 OS. 312, our Supreme Court held that the time begins to run from the date of the judgment sought to be reversed, and not from the overruling of the motion for a new trial in the case, and we find the same reasoning in the well known case of Wells vs. Wells, 105 OS. 471, where the court again holds that the seventy days begin to run from the date of the entry of the decree and not from the date of the overruling of the motion for a new trial.

In the case ,at bar it is argued by able counsel for the plaintiff that the entry of judgment for the defendant was made prior to the filing of a motion for a new trial and that, therefore, the judgment was invalid, because the plaintiff had the statutory time, subsequent to the entry of the judgment for filing a motion for a new trial, to have the same sustained or overruled, but as we view the question, the court below was determining a question of pure law arising from the amended petition and the opening statement, and the motion was not for a directed verdict, but for a judgment arising from these two propositions in favor of the defendant.

It is argued that when the opening statement was made and when the court thereupon acted, that the situation was equivalent to that period in the trial of a case where the court might act upon a a motion to direct a verdict at the conclusion of plaintiff’s evidence. We do not think, however, that there is any basis for this claim, for that proposition assumes that, no matter what the opening statement might be, the court would be barred from taking into consideration the competency or incompetency of any evidence which in the opening statement plaintiff’s counsel might offer to prove. This right the court had, and thus there was nothing left but a legal question, and consequently a motion for a new trial was not necessary and, therefore, the plaintiff lost no legal rights when the court rendered judgment for the defendant, and because of those premises, it is conclusive that this reviewing court is without jurisdicton by reason of the non-compliance with 12270 GC.

These being our views, the motion to dismiss the petition in error is sustained, and an entry may be made accordingly.

Vickery, PJ and Levine, J, concur.


source: Caselaw Access Project

author: ROBERTS, J.

license: Public Domain

text:
    F. W. WOOLWORTH CO v KINNEY
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided April 5, 1929
    Mr. Franklin Powers, Youngstown, for Woolworth Co.
    Mr. Ed. Williams, Youngstown, for Kinney.
   ROBERTS, J.

First it is claimed that there was error in impanelling the jury; that counsel for the plaintiff below inquired of the prospective jurors first:

“Are any of you interested as stockholders in public liability insurance companies?”

and second:

“Are any of you connected with public liability insurance companies as adjusters or attorneys?”

It is claimed that this is prejudcal and in support it is claimed that the asking of these questions would indicate to jurors that the action was being defended by liability or insurance companies, and that such being the fact the jury would be more willing to return a verdict against an insurance company than they would in a case where an insurance company is not known to be gonnected with the case.

This question has been considered by several courts, especially the Court of Appeals in different districts. There is one decison in the 104 Ohio State Reports, page 500. This question has arisen in two respects, one in the manner suggested in this case by inquiries of prospective jurors, and the other way in which evidence is sought to be elicited which indicates by questions asked that a liability company is defending the case. 3?he latter proposition was involved in the case of Goz v. Tenney, 104 OS. 500.

It seems to be the generally accepted rule, and has been so regarded in several instances by this court, that an attorney should not during the trial ask a question merely for the purpose of eliciting information in the presence of the jury to indicate that the cause was really being defended by a casualty company, but where the evidence sought to' be obtained is not otherwise incompetent, it is not rendered incompetent simply because this information may be obtained by reason of the nature of the question.

We have been cited to the case of Rood v. Ward, a case decided in the Ninth District Court of Appeals, Summit County, decided December 20th, 1928. (7 Abs 183)

The Court of Appeals of Canton recently had a similar proposition. I happen to know about this as I was sitting with that court at the time and in the consideration of the case it was held that it was not prejudicial error to ask such questions.

In the case of Brower et al. v. Silverman, 16 Ohio App., 236, the second paragraph of the syllabus reads:

(Here follows quotation)

It may be readily understood that these questions can be and presumably are asked in good faith. At this time, when business is largely protected by casualty insurance and a very larg.e proportion of the automobiles, for instance, carry indemnity insurance, it is not improbable that prospective jurors may be stockholders in some company, may be agents representing the company, solicitors of insurance, or otherwise interested to such extent as to appreciably or materially affect their judgment if permitted to sit as jurors.

Similar decisions have been rendered in the cases of Highway Construction Company v. Eber, Ohio Appeals of the Eighth District, found in the Ohio Law Abstract of December 24, 1928, page 58, and the case of Lish v. Denny, 23 O. L. R., 229.

This proposition has been before this court on former occasions, and consistently with holdings made in those cases and with the authorities which have been cited and others examined, we do not find prejudicial error to have existed in this respect.

The other proposition urged as error is the claim that there was no notice to the defendant of the ' alleged negligent condition. It is not denied by the Woolworth Company that there was some foreign substance upon the floor upon which this woman might have or presumably did slip, but it is claimed that it was something not placed there by the company; that it was not a permanent thing resulting from the construction or maintenance of the building in the operation of the business; that at most it was only a foreign substance which had fallen upon the floor accidentally, or in any event without the knowledge of the company, and that such being the fact actionable negligence would not be indicated unless this substance had remained there a sufficient length of time that’ the company in the exercise of ordinary care should have known of its presence, in the absence of anything, of course, showing actual knowledge.

While the petition alleged that the substance upon the floor was candy, it is not determined from the testimony with certainty what it was. It was variously suggested to have been candy or chewing gum, and is described by witnesses as being black in color ,and about the size of a silver dollar and firmly adhering to the floor to the extent that its removal necessitated the use of a chisel or some sharp instrument to separate it from the floor.

No issue is raised upon the proposition but that it not being placed there by the company that it should have been there such a length of time that the company might be charged with constructive notice. A large number of authorities are cited upon this proposition. The firmness with which it adhered to the floor would tend to indicate that it had been there for a period of time. A woman by the name of Davis was called as a witness, Mrs. Joe Davis. She testified to the effect that she was acquainted with Mary Kinney, the plaintiff below, arid about a week after the accident, without knowledge, however, she called upon Mrs. Kinney, found her in bed and upon inquiry as to the cause of her illness or disability Mrs. Kinney related the accident which had happened to her in the Woolworth store, stating the time. Mrs. Davis then said that it occurred to her that shortly previous to this time she h,ad also slipped and nearly fell as a result of something upon the floor in this store at substantially the same location. Upon an investigation of dates she further testified that it was determined that her accident occurred at the same place two days before the accident to Mrs. Kinney. Comment is made upon the fact that it is somewhat singular that Mrs. Kinney should discover this witness who had had a similar accident so recently before her injury. However, Mrs. Davis testified with apparent frankness and truthfulness and this testimony would tend to indicate that this substance had been on the floor for twenty-four hours.

As against that the Woolworth Company offers no testimony concerning the care of the floor, the frequency with which it was swept, does not even call the porter or some other employe, if that is his designation, who is said to have dug up this substance from the floor, so that there is no testimony upon the part of the defendant below tending to indicate that this substance might not have been there such a length of time.

In view of these conditions we are not able to say that there w,as such an absence of testimony tending to indicate a foreign substance upon the floor such a length of time as would give constructive notice, and prejudicial error is not found to exist in this respect.

' It is claimed further that the verdict, which w,as $2500.00, is excessive, and the cause should be reversed for that reason. There is no dispute but what she had an accident and that she received some injury, but we are confronted with the usual condition that if we believe the doctor who testified for defendant company the injury was not serious, but if we believe the testimony of the doctor who testified for the plaintiff, then she did receive a permanent injury or one which is still existing and which has disabled her to a considerable extent and presumably will in the future. During the trial she was still wearing a brace to support and strengthen her ankle to enable her to walk.

The only testimony concerning the injury introduced by the defendant was that of the doctor, and in addition to the testimony of the doctor for the plaintiff there is the testimony pf other witnesses concerning her disability. We are not able to say now, without taking time to go into detail concerning the large amount of testimony upon this proposition, that the verdict was so manifestly against the decided weight of the evidence as to justify a reversal upon that propostion, and the judgment of the court of common pleas is affirmed.

Pollock and Farr, JJ, concur.


author: FUNK, PJ.

text:
    GYORGY et v GREEN et
    Ohio Appeals, 9th Dist, Summit Co
    No 1598.
    Decided March 21, 1929
    Mr. Lloyd R. Read, Akron, for Gyorgy.
    Messrs. Doolittle, Foust & Holden, andMottinger & Evans, all of Akron, for Green.
   FUNK, PJ.

We have examined the descriptions in all the deeds in the chain of title not only to the land described in defendants’ deed but also to the 33 feet adjoining it on the west, and the land adjoining it on the south to a point 336.60 feet south of the center of West South St., back to and including the deed to Eliza Jane Buchtel in 1874, and also to the 64.50 feet adjoining it on the east, back to Jane E. Davies in 1924, and find that an of said deeds accurately describe the property conveyed by metes and bounds without reference to any street, and the distances accurately measured in feet, chains, or links, with reference to and from the north line of said lot 20, tract 9, which is conceded to be the center of West South St.

The only reference to a street or road in any of the deeds is that in some of the earlier deeds, 30 feet is reserved off the north end for a “public road” and a number of the deeds use the formal ending to the description, “be the same more or less but subject to all legal highways.” In none of the deeds is the property conveyed, described as being bounded by the street or ro,ad.

It will be further observed that the driveway provided for by taking four feet off the west side of defendants’ premises and four feet off the east side of the premises adjoining it on the west, was first provided for in deeds for the land on each side, in which the descriptions extended from the center of West South St., south 336.60 feet, thereby making the driveway privileges extend the full length of the land now owned by plaintiffs, and that the provisions for said driveway have been carried in all the deeds for said respective tracts of land since that time.

By reason of the rule in this state that in municipal corporations the fee to the street is generally vested in the municipality, while outside of a municipalty the fee is generallv in the abutting, landowner to the center of the road, the claim is made that as said lands and street have been within the municinal corporation of Akron for many years before defendants purchased their property, and that as a grantor cannot convey what he does not own, that said deeds could not convey the land to the center of the street after said lands and street became a part of the municipality of Akron, and that therefore the deeds for defendants’ lands are presumed to convey 120 feet from the south line of West South St. instead of from the center of the street.

Counsel for defendants cite in their brief as sustaining their position, Thompson on Real Property, Sec. 3206, and 18 C. J. 278. We think these citations have no application to the situation in the instant case.

In this state, municipalities may acquire rights in public streets in three different ways: first, by dedication by private owners and the acceptance of such dedication by council — as where lands are platted; second, by condemnation for street purposes; and third, by extension, by the municipality, of its boundaries so as to include county roads.

There can be no doubt that in the first and second ways the fee of the street, is in the city, in trust for street purposes, with certain reversionary interests remaining in the abutting property owner; but in the third way, the authorities seem to be that the fee of the street remains in the abutting property owner.

In the instant case, however, we are of the opinion that it is immaterial whether or not the fee to the street is in the municipalty or the abuttng property owners, for two reasons: first, because in either case the interest acquired in the street by the municipality or by the public outside of the municipality, is only for road or street purposes, and is necessarily limited to such control over streets or roads as is necessary to accomplish those purposes (Traction Co. v. Cumminsville, 14 OS. 523, at pp. 544 and 546; Callen v. Electric Light Co., 66 OS. 166, at p. 174); and second, for the reason, as heretofore stated, that all the deeds in the chain of title accurately and definitely describe the property conveyed by metes and bounds, beginning on the lot or tract line, which is conceded to be the center of the street, and without reference to the street, and ,are the same distances and descriptions used in the deeds covering, the premises described in defendants' deed for nearly fifty years before defendants purchased the same, and probably long before said lands and street were included within the corporate limits of Akron — there being no evidence as to when said premises became a part of said municipality.

The general rule in construing descriptions, is the same ,as in construing any other part of the deed or any other written instrument — which is that in the absence of ambiguity or uncertainty the intention as found in the language of the instrument controls, ,and that where the language of the deed is plain, certain and unambiguous, the surrounding facts and circumstances will not be considered; but where the language of the instrument is .ambiguous and uncertain, the court will consider the language of the instrument in connection with the circumstances attending the transaction, in an effort to ascertain the intention of the parties.

In the instant case, the language in the deeds is plain and unambiguous and there are no attending circumstances other than what may .appear in or be inferred from the instruments themselves and what defendants say their grantor told them. What their grantor may have said would not be binding upon anyone other than said grantor. There is no claim that defendants could have obtaned title bv prescription to the 25 feet now in controversy. There is no evidence that the street or lands in question or those surrounding it were ever platted and the street dedicated to street purposes and accepted by the council, or that they were ever condemned for street purposes, but on the contrary the evidence offered, including the descriptions contained in the deeds, would all indicate that they were not so platted, dedicated and accepted, but rather that they became a part of the municipality by its extending its boundaries so as to include said lands and street.

Counsel seem to concede that if said street and. premises were outside of a municipality, said “north 120 feet of the following described premises” would mean that it would be measured from the center of the street in the description in the deed to defendants. It surely cannot be the law that where the same description is used to convey the property after it is included in a municipality by the municipality extending its boundary lines, that said “north 120 feet of the following described premises” would mean exclusive of the street and thereby automatically require that it be measured from the south line of the street.

There being nothing in the descriptions in the deeds in defendants’ chain of title or the land adjoning it on either side or to the south to indicate any other intention than that the land conveyed to defendants was to be measured from the center of the street, and there being no evidence of any other intention binding upon anyone other than defendants’ grantor, we can come to no other conclusion than that the north line of the land described in the deed to defendants is in the center of West South St. and that defendants’ land therefore extends only 95 feet south of the south line of said West South St. as it now exists.

A decree may be drawn accordingly.

Pardee, J., and Washburn, J, concur.


author: KUNKLE, J.

text:
    TAX COMMISSION v CORWIN
    Ohio Appeal's, 2nd Dist, Montgomery Co
    No 862.
    Decided January 30, 1929
    Mr. Wm. H. Middleton, Jr., Waverly, for Tax Commission.
    Messrs. McMahon, Corwin, Landis & Markham, Dayton, for Corwin.
   KUNKLE, J.

Are these notes, under the above circumstances, subject to a succession tax?

The determination of this question requires a construction of 5331 and 5332 GC. These sections of the Code have for their basis the constitutional provision found in Article 12 of Section 7 of the Ohio Constitution to the effect that “Laws may be passed providing for a taxation of the right to receive or to succeed to estates.”

As above stated, there is no dispute but that Charles Morgan Wood, a resident of the State of Massachusetts, died testate owning the notes in question and that they were in the physical possession of Mr. Corwin in the City of Dayton at the time of the death of Mr. Wood in Arizona and for the purposes above recited.

Were they property “within the State of Ohio” as defined by Section 5331 GC. above quoted?

Has the legislature of Ohio, by the enactment of Sections 5331 and 5332 GC. so enacted? These sections of the Code are somewhat ambiguous and as this case involves an interpretation of statutes which impose a burden, such interpretation must be governed by the rule of strict interpretation.

Cassidy vs. Ellerhorst, 110 OS.

While the decision in 110 Ohio State did not involve property such as is embraced in the case at bar, yet upon a careful study of this case, we are of opinion that the reasoning employed in such decision would exempt the notes in question from a succession tax under the circumstances disclosed by the record in this case.

Our attention is also called to a very recent decision of our Supreme Court in the case of the Tax Commission of Ohio vs. Farmers Loan & Trust Company of New York City. This case was decided October 31, 1928, and we are advised by the Clerk of the Supreme Court that an application for a rehearing has been denied. This case is cited by counsel for both plaintiff in error and "defendant in error.

Judge Marshall, in rendering, the decision of the court, near the close of the decision, uses the following language:

“We have no hesitancy in saying that any property belonging to a nonresident decedent, which is lawfully subject to ancillary administration in Ohio, would necessarily be subject to the succession tax.”

It is contended by counsel for plaintiff in error that the notes in question would fall within the reasoning of the court as above quoted. It will be observed that the language of the court is that the property must be “lawfully subject to ancillary administration in Ohio.” From the facts disclosed by the record we are of opinion that the notes in question were not subject to administration in Ohio. There were portions of the estate of Charles Morgan Wood which it is conceded were subject to the succession tax, but in our opinion the notes in question do not fall within that class.

We assume from the statements of counsel that these notes were. not inventoried nor were they subject to be distributed through the Probate Court of Montgomery County, but were in the State of Ohio, as previously stated, in the hands of Mr. Corwin merely for convenience and collection of the installments as they became due and were to be sent to Mr. Wood at his home in Massachusetts upon his return there.

In the first part of this decision, Judge Marshall says:

“More specifically, it will be the task of this court to determine whether the language ‘that the succession thereto is, for any purpose, subject to, or governed by the law of this State’ is broad enough to include registered bonds of Ohio municipalities.”
“It is not contended by anyone that that language would include simple contract debts, promissory notes, either with or without collateral, bonds of private corporations, or coupon bonds of municipalities. The tax commission' does not ground its claim upon the power of the state over the debtor. Such a claim would result in all bonds registered and- unregistered, as well as simple contract debts, being held subject to the succession tax.”

Applying the reasoning found in this latest expression of the Supreme Court to the facts as disclosed in the bill of exceptions, and as conceded by counsel in their argument, we are of opinion the promissory notes held in the State of Ohio under the circumstances disclosed by the record herein are not subject to a succession tax.

From a consideration of the entire record and the authorities, we find no prejudicial error in the record and the judgment of the lower court will be affirmed.

Ferneding and Allread, JJ., concur.


author: HORNBECK, J.

text:
    HYERS et v WESTERN & SOUTHERN LIFE INS CO et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 911.
    Decided July 18, 1929
    Messrs. W. S. Rhotenhamel and Wm. F. Hyers, Dayton, for Hyers et.
    Messrs. James & Coolidge, Dayton, for Insurance Company.
    Messrs. Brumbaugh & Mattern, Dayton, for Mina C. McKeehan.
   HORNBECK, J.

There are two basic propositions upon which the petition must be tested:

1. Is the action equitable in character, or is it a simple action at law in quantum meruit?

2. Are the proceeds now held by the Insurance Company, or so much of them as may be decreed by the court to be due plaintiffs, subject to a lien of plaintiffs?

In 'our judgment, both questions are answered in cases which this court is bound to accept as controlling. These decisions are Walcutt vs. Huling, etc., et al., 5 Ohio Appellate Reports, decided by this court in the Franklin County Court of Appeals, and Roberts, et al., partners, etc vs. Montgomery, et al., decided by the Supreme Court in December, 1926, in 115 OS. 502.

The Walcutt case was a suit brought in equity to require the court to fix and .determine the value of legal services performed under contract by Huling for' Walcutt, through which services a judgment had been rendered, and for a decree awarding a lien to Huling on the fund represented by said judgment. This case then is decisive to the effect that as stated in the second proposition of the syllabus of this case in the Common Pleas Court, found in 13 Ohio Nisi Prius Reports (N. S.) 409:

We are unable to make any distinction in the character of an action to determine the amount due for attorneys’ fees on an account in procuring a judgment, and such action to determine the amount due in securing, a fund which has been set apart and is available to be paid upon the order of the court, and can note no change in the equitable character of the proceeding because the amount which may be due plaintiffs is not fixed but' subject to determination by the court.

Coming to the second proposition, were it not for the Roberts case in the 115 State, we would clearly be of the opinion that the instant case could not in any aspect come within the classification authorizing a court of equity to decree a lien on the fund under consideration, inasmuch as plaintiff’s claim' had not been reduced to judgment, nor is the fund in possession of plaintiffs. But in our judgment, the Supreme Court in deciding the Roberts case went a step further than in any former decision on like subject-matter in Ohio and the facts in that case so nearly parallel those in this case that the law therein enunciated seems to be controlling.

' But there is one vital distinction between the facts in the Roberts case and the allegations of the petition in this case. In the Roberts case the contract was conceded, and by its terms Roberts was to have one-third of the money or specific fund which was recovered by the settlement with the Refining Company.

In the instant case, the claim is not asserted either by express or implied contract that payment was to be made to plaintiffs out of the proceeds or specific fund secured to the defendant, McKeehan from the defendant Insurance Company. The petition is silent on this material matter.

The averments of the petition go no further than to establish the relation of debtor and creditor.

A lien such as is sought in the instant case amounts to a preference and is an extraordinary proceeding, and before it can be held to attach, it must be alleged either directly or by necessary inference, that plaintiff’s payment for service was to be secured by or attached to the fund against which the lien is asserted.

We have been unable, after careful consideration and with an appreciation that the equities in this case are with the plaintiffs, to find this necessary allegation. If it were made, we would hold that the Roberts case would require the overruling of the demurrer.

We do not deem it necessary to discuss the many other cases cited by counsel for both parties inasmuch as the two cases commented upon in this opinion are the most favorable to plaintiffs and controlling upon us in our decision.

The petition is faulty in the particular which we have indicated, and therefore the demurrer was properly sustained, and the judgment thereon will be affirmed.

Kunkle and Allread, JJ, concur.


author: LEVINE, J.

text:
    BRAUN v ENGEL
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9339.
    Decided March 4, 1929
    Mr. Joseph L. Stern, Cleveland, for Braun.
    Messrs. A. E. Goldhamer and Ezra Z. Shapiro, Cleveland, for Engel.
   LEVINE, J.

The court charged the jury in part as follows:

“Before you would be warranted in finding a verdict for the defendant in this case, you must find by a preponderance of the evidence, that is, by a greater weight of the evidence, that this written release was executed by the plaintiff to the defendant, and that it was delivered either in escrow or to the defendant.

That is the plain,' common, simple issue in this case upon which the jury is called upon to pass.” (Record 154-55 commencing with bottom of page 154).

The court further charged:

“If you find by a preponderance of the evidence that this release was executed, at or about the time alleged, and that it was delivered either in escrow or to the defendant,' then your verdict should be for the defendant Engel. If, on the other hand, you fail to find by a preponderance of the evidence that these two essential facts to be true, then your verdict should be for the plaintiff.” (Record p. 155).

Later in the charge the court stated as follows:

“If this release was executed and delivered in escrow it would be a complete defense.”

Also the following language was used by the court:

“Keep in mind although all the testimony that was admitted in this case must be considered, yet the question narrowed down, is whether or not there was a written release.”

On the question of whether there was a consideration for the release the court charged the jury as follows:

“That question as a question, is not in this case. That question is not raised. Testimony was permitted upon that subject for the reason that it tended to show whether or not the release was executed and delivered, either to the defendant or in escrow, and as one of the circumstances surrounding this case.”

At the conclusion of the entire charge, counsel for plaintiff requested the court to charge farther on the subject of the defense of failure of consideration in connection with the reléase, on account of the plea that the stock was never issued or delivered, which request the court refused, and an exception was taken.

The substance of the court’s charge was to the effect that if the release was delivered to him or in escrow, the defendant, Engel, would be released from his obligation on those notes regardless of whether the conditions or terms of the escrow were ever fulfilled or performed.

Counsel for defendant points to the amended reply filed by the plaintiff and urges that it pleads at most a partial failure of consideration which would not in any way void the release, although it might give the releasor, the complaining plaintiff in this case, a right of action against the releasee for any damages she may have suffered by reason thereof. Citing 34 Cyc. 1053.

It seems quite clear that in the absence of a written release whereby the defendant was released from any obligation upon these notes, that the plaintiff would be entitled to recover upon these notes.

The defendant having interposed the defense of a written release, the allegations of the amended reply which deny the existence of a release signed by the plaintiff, and also sets forth in substance that the conditions under which the release was to be signed and delivered, were never complied with, in view of the evidence submitted to the jury, presented a clean cut issue first as to whether this release was ever signed by plaintiff, and second, whether the conditions under which the release was to be signed and delivered were ever complied with.

When the court told the jury that if they find in the alternative that this written release was executed by plaintiff to defendant, and that it was delivered, either in escrow or to the defendant, your verdict shall be for the defendant” the court erroneously stated the law applicable to this case. It cannot be true, as a matter of law, that if this alleged written release was delivered in escrow upon certain terms and conditions, that the same would operate as a release, regardless of whether the terms of the escrow were ever fulfilled or complied with. Likewise we hold that when the court eliminated the defense of failure of consideration in connection with the release, and refused upon request to instruct the jury concerning it, that the court committed error substantially affecting the rights of plaintiff. The question of whether the release was ever signed by the plaintiff, and also the question whether the terms and conditions agreed upon by the parties to govern the execution and delivery of the release were ever combined with, constitute the primary issues of fact in this case. Perusing the charge as a whole we find that the court elminated those primary issues from the case. We hold this to be error substantially affecting the rights of plaintiff.

The judgment of the Common Pleas Court will therefore be reversed and the case remanded for further proceedings according to law.

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


author: VICKERY, PJ.

text:
    CLEVELAND RY CO v LEANZA
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9888.
    Decided May 6, 1929
    Messrs. Squire, Sanders & Dempsey, Cleveland, for Cleveland Ry Co.
    Mr. Geo. Spooner, Esq., Cleveland, for Leanza.
   VICKERY, PJ.

Now the plaintiff’s theory of this case was that the automobile in which she was riding being driven at a moderate rate of speed on the street and without any fault of the driver, was crowded over and got Railroad Company been exercising that into a place of danger and then had the degree of care which it should ordinarily exercise upon the streets, it could have stopped the street car in time to have avoided the accident. The jury might well believe that this car was coming down there at a high and dangerous rate of speed from the record.

There is evidence to show that even if the driver of this automobile was guilty of negligence in coming into that place of danger, the doctrine of last clear chance was involved, and according to the evidence he came to a stop and had ceased to become negligent, but was in a dangerous place, and the Railroad Company in the exercise of ordinary pare could have prevented this accident. But assuming that the driver of this car was guilty of negligence in getting into a place of danger and had not ceased to be guilty of negligence, could his negligence be imputed to the plaintiff, who was a passenger in the automobile? In order 'to get around the question as to her being a passenger, the Railroad Company seeks to hold her responsible in the driving of this car, in that the driver was her agent, because there is some loose talk in the record about her having, some lottery tickets and while they were down-town they would see whether that lottery ticket had won a prize, — an automobile, I believe, — and from this statement it is seriously argued that the driver of the automobile was the agent of this plaintiff and, therefore, his negligence was her negligence.

This court in several cases has taken occasion to lay down the rule with respect to the duty of a passenger in a car. We do not think that because the driver was to do something in the interests of the plaintiff that made her any less a passenger in the car. If such a principle of law were established, it will be a very dangerous proposition indeed for anybody to ride in the car with another; that is, to accept an invitation to ride with another when that driver is to let him off at a particular place, because if the argument of the learned counsel for the Railroad Company is sound, the driver will be the agent of the passenger and, therefore, the passenger could not recover, no matter how badly he might be injured by the negligence of a third person, if the negligence of the driver of the car in any way contributed to this injurv.

We do not think the record shows that this plaintiff was anything other than a passenger, and there is nothing in this record to show that she was cognizant of anything or was called unon to exercise any care or control over the driver in the least, and so we think that even if the driver of this car was negligent, she was not his master, nor in control of the car in such a manner that his negligence could not be. imputed to her; and so the sole question, we think, is whether the Railroad Company was guilty of any negligence which contributed to this injury. This matter was fairly submitted to the jury under a charge which has been criticised, but which we do not find subject to criticism; and the jury found under the instructions of the court against the Railway 'Company’s contention. Neither do we think, from the evidence in this case, nor has it been seriously argued, that this verdict is so excessive that it would tend to show the influence of passion or prejudice upon the part of the jury.

Now that brings us to the last proposition: Did the court err in refusing to grant a new trial on a motion, on the ground of newly discovered evidence? The court found, as is undoubtedly true, that this evidence is merely cumulative, and it is not at all to be expected that the verdict would have been any different had this evidence been introduced. This court has taken occasion to lay down the rule as to when it is the duty of the trial court to grant a motion for a new trial on the ground of newly discovered evidence, and that is to the effect that the evidence must be such that in all probability had it been available and introduced in court, the verdict would have been the other way. We cannot say that that would be true in the instant case. The court having this matter before it, was better able to judge than we, of the whole situation.

There is one thing, however, that is brought out in argument which rather corroborates the theory of the plaintiff in this lawsuit and tends to rebut the theory of the Railway Company. I will admit that from the statement of counsel in this case, this member of the Court got the notion that the automobile in which the plaintiff was riding was being driven on the wrong' side of the street and not until we got the whole situation and after several inquiries, did we find that the automobile in which the plaintiff was riding, was on the right side of the street but over toward the center of the street, driving on the railroad track, if you please, but still in the street; and of course, being crowded over it got beyond the center of the street- in the way of the oncoming east bound street car, and the front of the east bound street car struck the hind end of the automobile in which the plaintiff was riding. Now from the affidavits that were filed on a motion for a new trial as to newly discovered evidence, we find that an automobile standing headed west close to the curb on the right side of the street as a tire had blown out and they were repairing the tire. Now the evidence shows there is room for only one automobile between the car tracks and the curb. The record also shows that there were two lines of traffic side by side going down Union Avenue toward town. The learned counsel for the Railway Company naively queries how that could be, when there is only room for one automobile between the railroad track and the curb, and the simplicity of this inquiry is rather intriguing because even though a street car company occupies, in this instance, most of the street with its two lines of tracks, it is still a public street and vehicles can drive on the street car track; and if two lines of traffic were going side by side, one of these lines must be on the street car track. Now if this were so, and the evidence showed that it was so, when these two lines of traffic came to where this car was parked while they were mending a tire blowout, the car that was closest to the curb would natural.ly crowd over to escape that obstruction and that would crowd over the car in which the plaintiff was riding on to the other track, and, I take it, that is how this accident happened. When the driver of the car in which plaintiff was riding saw the street car coming, he sought to get back, but could not because of the traffic and so got as far as he could and stopped and was in that position when he was struck by the oncoming street car. Now instead of this newly discovered evidence being used as ground for a new trial, it explains almost conclusively how this accident happened, and if the Railroad Company had been exercising the degree of care which it is incumbent upon it to exercise in the operation of its street cars upon the streets, it could have seen that this automobile was in a place of danger and could have avoided the accident.

We have gone over this entire record and heard the arguments of counsel and we cannot but see that it was fairly submitted to the jury, and the jury were the best judges under the charge which we think was not erroneous, as to just how this accident happened, and their findings being in favor of the plaintiff, we do not feel called upon to disturb the verdict.

The judgment will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


text:
    NAT SIGN CORP v MACCAR CLEVE SALES CORP
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9584.
    Decided March 11, 1929
    Mr. T. F. Quigley, Esq., Cleveland, for Nat Sign Corp.
    Messrs. Mann, Dray & Whitney, Cleveland, for Macear Cleve Sales Corp.
   VICKERY, PJ.

Now the record shows that this contract was made in Indiana, at least it was not binding upon either party until it had been approved in the Indiana office at Kokomo, Indiana. It is perfectly manifest that it was within the contemplation of both parties that the performance of the contract was to take place in Ohio, but in our judgment it does not make much difference where the contract was made, whether in Ohio or whether in Indiana, for it is conceded that the plaintiff company is a foreign corporation, and has no office or place to do business, nor has it complied with the above cited statute in procuring a license to do business in Ohio, and so the sole queston, as already stated, to be determined is, was the business or work that was contemplated by this contract upon the part of the plaintiff company for the defendant, doing business or performing work in Ohio?

At first blush one would think it was simnly the selling of material by a foreign corporation to be delivered in Ohio, and if so, it would be only interstate commerce and would not be subject to the statutes of Ohio, but .upon examination is that the fact? Here, as a matter of fact, there was no sale whatever. It was a contract for service, for advertising the products or the business of the defendant company, and all of that was to be performed in Ohio. Now the method of doing that was, of course, first the exercise of interstate commerce, or, rather, the use of interstate commerce in transporting the goods into Ohio, and if the matter had stopped there and the plaintiff had simply sold the goods to be taken care of by the consignee in Ohio, there would be no question but what it would be interstate commerce only, and the auestion involved here could not arise. It makes no difference where the contract was made, it would still be interstate commerce, and the contract could be enforced wherever service could be obtained upon the parties. Here it contemplated upon the part of the plaintiff below, plaintiff in error her, the keeping of a crew of men, and it makes no difference whether they were imported from Indiana, or whether they were residents in Ohio. They were on the payroll of the foreign corporation and performed work for the foreign corporation, and so far as this contract is concerned the entire work was to be and was performed in Ohio, and I have spoken of a sale, and I have likewise spoken of the fact that in the instant case there was no sale, it being a contract to perform service in erecting these signs and keeping them in order for the full period of the contract, to-wit, three years.

It is amazing to find how many decisions there are upon this question. Browning vs. Waycross, 235 U. S. 16, (1913).

Phoenix Nursery Company vs. Trostel, 166 Wis. 215, (1917).

We recognize the fact that nursery stock might be sold from New York State, we will say, and shipped into Ohio, and the fact that it was shipped into Ohio would not make it doing work or business in Ohio. That would still be interstate commerce, but when, as in the Wisconsin case, they undertake to perform services and work in relation thereto which would run over quite a period of time in replanting the trees and seeing that they had a successful growth, it is more than a mere sale from one State into another. In this case the court says that it is not proper that courts should permit people to derive the benefits from a contract and then hold them not liable for the price of the same. The policy of the law is against that, but where there is a positive statute declaring such contracts void, the courts have no option but to enforce the law.

A. H. Andrews Co. vs. Colonial Theatre Company, 283 Federal, page 471, (1922).

Where there is nothing more involved than mere ordinary labor and not any particular skill, or where there is something remaining to be done after the machine is installed, such as keeping it in order and keeping the title to it, it is work in the consignee’s state so that it would be prohibited by the laws of that state.

An examination of the various authorities that are cited by the plaintiff in error in this case shows that most, if not all, of the cases relate to sales of property by a corporaton in one state to a consignee in another state, where there is nothing to be done, except in particular cases where the goods are to be set up, but the title is to .pass and the consignor has nothing more to do to it. I say, an examination of the cases and authorities cited by the plaintiff in his brief will throw most, if not all, of the cases into this category, and no one questions but what a foreign corporation may sell goods in Ohio without complying with the law in Ohio compelling it to be registered or to take out a license. Such a corporation is not doing business in Ohio within the meaning of the law.

It is said in this case that the men who performed the work for this foreign corporation are a crew of men that move from place to place and live in hotels. To us it does not seem to make any difference who the men are or where they come from. They are on the payroll of the foreign corporation and they surely are performing labor for the foreign corporation, not only in installing these signs, but in maintaining them. In other words, this corporation has contracted to put up these signs and to furnish service to the defendant company for the full period of three years. Now that is not interstate commerce. It becomes a matter of local concern and it comes within the provisions of the Ohio law.

We think, therefore, that under the law of Ohio, the plaintiff company not having complied with the statutes of Ohio, the contract is void and it has no right to maintain a suit upon it, and we think the court below was right in its decision, and not finding any error in the record, the judgment will be affirmed.

Sullivan and Levine, JJ, concur.


text:
    FALLER v MASS BONDING & INSURANCE CO
    Ohio Appeals, 8th Dist, Cuyahoga. Co
    No 9943.
    Decided May 13, 1929
    Messrs. Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Faller.
    Messrs. Paul Howland and C. A. Colvin, Cleveland, for Mass Bonding & Ins Co.
   LEVINE, J.

It appears from the record that the accident upon which this lawsuit is based occurred on Feb. 6, 1924, at a time when the statute of limitation for injury to personal property was four years. On Aug. 2, 1927, the amendment to 11224-1 GC. which reduced the time to two years, became effective. The statement of claim in this action was filed in the Municipal Court Feb. 2, 1928, which is six months after the two year amendment became effective.

It is contended by plaintiff in error that 11224-1 GC. is a statute effecting the remedy only and that statutes of limitation may be repealed or amended at the will of the Legislature subject only to the rule that a reasonable time must be afforded in which to file suits.

. It must be borne in mind that at the time the amendment to the old statute of limitations was passed, more than three years had elapsed since the cause of action arose. At the time the amendment became effective, about three and a half years had elapsed since the cause of action arose.

It is the settled' law in most jurisdictions that an existing right of action cannot be taken away by mere legislation, as by shortening the period of limitation to a time which has already arrived. (See 17 R. C. L. p. 676).

A cause of action or chose of action which has already arisen is generally regarded as a property right which cannot be taken away by legislation as it contravenes a constitutional inhibition against taking property without due process of law.

Cooley’s Constitutional Limitations, Vol. 2, 8th Ed. 764.

It will be observed that in the amendment to 11224-1 GC. which became effective August 2, 1927, no exception is made as to existing causes of action nor does it allow claimants a reasonable time within which to bring suits. If this amendment is to be considered as having retroactive effect, it would undoubtedly bar the present action entirely because at the time of the passage of the amendment more than three years had elapsed since the cause of action, involved in the case at bar, arose.

The argument that a statute of limitations is purely remedial and that the legislature has the power to change laws affecting, remedy as to existing causes of action, upon which suit had not yet been commenced, does not seem to us tenable. The statute of limitations when it is made to apply, cuts off the remedy entirely. When legislation, even though remedial in its character, has the effect of destroying the cause of action, it runs contrary to the Constitutional guarantee against taking property without due process of law.

It is clearly the duty of the court to give the amendment such construction as will make it valid.

The case of Shuman v. Drayton, 14 O. C. C. Rep. 328, is a case exactly in point.

It is held in 38 OS. 46:

(Here follows quotation)
Section 26 GC. of Ohio provides:
(Here follows quotation)

It will be seen that neither the first part nor the second part of Sec. 26 can apply to the instant case because this action was not pending at the time 11224-1 GC. became effective. It is contended that the 3rd part cannot apply because the amendment of 1927 does not purport to affect the cause of action and pertains solely to the remedy.

The answer to this contention is that if the subsequent legislation is purely remedial, still it cannot be made effectual to displace any portion of a vested or subsisting right without express provision to that effect contained in the amending act. No such provision is contained in the amending act of 1927, but even if there were such a provision found therein so as to make the amendment of 1927, shortening the time within which causes of action for the injury to person or property may be brought, applicable to existing causes of action, it would in our opinion invalidate the law for the reason that by shortening the period of limitation to a time which has already run, and making no provision for a reasonable time within which claimants may enforce their existing claims, amounts to a denial of justice and destruction of a vested property right.

We are therefore content to adopt the reasoning of Shuman v. Drayton supra and to reach a similar conclusion. We are of the opinion that the trial court was correct in overruling the demurrer to the statement of claim.

Viewing the case as we do, the judgment of the Municipal Court will therefore be affirmed.

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


text:
    BIRMINGHAM et v BROWN et
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    Decided June 24, 1929
    Herman Spielberg, Cleveland, for Birmingham et.
    W. M. Kastriner, Cleveland, for Brown et.
   SULLIVAN, J.

There were no counter-affidavits filed as to the affidavit to support the motion for a receivership and there was no other evidence of any kind that was offereed so far as the record is concerned, although it is stated, and it would appear so to be .confirmed by the journal entry, that counsel made a statement as to the value of the land that made the security sufficient for the payment of the notes. It makes no difference what the reason for a judgment of the court is, if the judgment is right. The reason may be wrong and the judgment correct and as was said by former Associate Justice Hughes of the Supreme Court of the United States, there should be a paucity of opinion instead of' an abundance because the tendency of the times is to give a wrong reason as a basis for a judgment and oft times the reason was wrong but the judgment right. It appears, in the affidavit for the support of the motion, unchallenged that the notes were in peril because of the deficiency in the mortgage securities and so far as the record is concerned, this situation seems to justify the court in its appointment of a receiver upon the motion supported by the affidavit, especially as it is our judgment that where it appears as in the instant case, that the rents and profits have been pledged as additional security and the same has been so set forth in the mortgage, the necessity of showing inadequacy of security does not arise and if it appears that the security is in peril a receivership is the logical outcome and the usual procedure, and outside of the statute receivers are appointed where established precedent has made it the usual course of procedure, and we think that in the instant case this doctrine was sufficient for the appointment of a receiver. However, if we turn to the power of the court under the statute for the appointment of a receiver which is found in 11894 GC. we find that under section 2 in an action by a mortgagee for the foreclosure of a mortgage and the sale of the mortgaged property, that a receiver may be appointed if it appears that the mortgaged property is in danger and that the property is insufficient to discharge the mortgage debt after all taxes, assessments and other costs are paid. This law was laid down in an able opinion by Ruhl, J. in the case of Ohio Mutual Savings & Loan Co. vs Public Construction Co. et al, dated Oct. 26, 1926, 26 Nisi Prius Rep. 371, and in the 85 N. Y. Suppl. 1008, 118, U. S. Supp. 1056, Ling vs Marcus, 104 Ill. 428-29, it was laid down that where there are mortgage clauses pledging the rents and profits there is a sufficiency of fact for the appointment of a receiver.

In Ohio and Illinois the statutes are similar and we are content to rest our opinion upon 104 Ill. supra.

It is claimed that the appointment ofia recevier was unlawful because the appointee was an interested party. We do not find any facts in the record that justify this conclusion because we find no interest that the appointee has or might have in any of the property or the litigation concerning the same.

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

Vickery, PJ and Levine, J, concur.


author: ALLREAD, J.

text:
    CLEVELAND CEMETERY ASSN v CUYAHOGA CO COMRS etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided June 24, 1929
    Messrs. Maurer & Bolton, Cleveland, for Cemetery Assn.
    Messrs. Ray T. Miller, Esq., & E. J. Hopple, Esq., Cleveland, for Cuyahoga Co Comrs.
   ALLREAD, J.

Section 10,093 GC provides:

“A company or association incorporated for cemetery purposes may appropriate or otherwise acquire and may hold, not exceeding six hundred and forty acres of land; * * * all of which shall be exempt from execution and from being appropriated for any other public purpose.”

There is no question about the necessity for the use of ,a part at least of this land for cemetery purposes. The cemetery was originally located upon six acres of land with an easement for access to Detroit Street. To this there has been added, by several deeds, other small tracts. All of these lands were owned or held by the Cemetery Association prior to the time when the petition was filed in the Insolvency Court by the defendants for the appropriation of the right of way.

We are clear, both from the statute and from the decision of the Supreme Court in the case of Board of Education of Akron vs. the Proprietors of Akron Rural Cemetery, 110 OS. 430, that this court has the right to entertain an action to enjoin the appropriation by the Board of County Commissioners, for the purposes aforesaid.

The defendants contend:

First: That there was no plat put on-record or proper dedication of this land for cemetery purposes.

Second: That the proposed easement is not a taking of lands under 10,093 GC.

Third: The proposed easement would not destroy the prior use, or materially interfere with it.

Taking up these propositions in the order named, we are of the opinion that the plaintiff’s rights are not dependent upon whether a plat of the lands was put on record or a proper dedication thereof was made, for the reason that the secition of the statute, to-wit, 10,093, precedes the section which makes it the duty of the Cemetery Association to file its plat with the County Recprder. In other words, the filing of the plat is subsequent to the incorporation of the company and the acquisition of the title. We are, therefore, of the opinion that the Association has a right to protect its land against other appropriations from the time of the acquisition thereof.

With reference to the second and third objections, we are of the opinion that the proposed easement sought to be acquired by the defendants is a taking of lands within the meaning of Section 10,093 GC, and that such proposed easement would in some degree destroy the use of the cemetery association, or at least materially interfere with the use by the association and the lot owners.

It is also urged that during the last two or three years the drainage down the ravine over the cemetery lands is impregnated or polluted with sewage coming from the sewer system in the upper lands or at least from other sources. We think this gives no right to the defendants to appropriate a right of way along the ravine for the purpose * of furnishing a permanent outlet for the sewers in question. It is true that the outlet as proposed would be covered over, and the only openings would be the manholes along, the line. Nevertheless such construction would, to a certain extent, interfere with the sale of lots by the Cemetery Association and would .also interfere with the use of lots already sold.

The decree must, therefore, be in favor of the plaintiff and an injunction will be

Decree accordingly.

Kunkle and Hornbeck, JJ, concur.


text:
    HARRY JAFFA v ALVENA JAFFA
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided Sept. 16, 1929
    Frank R. Jaffa, Esq., Cleveland, for Harry Jaffa.
    Bernard H. Schulist, Esq., & C. M. Livingston, Esq., both of Cleveland, for Alvena Jaffa.
   VICKERY, PJ.

The basis of the claim in the petition in error is that, inasmuch as the defendant below, the plaintiff in error here, had no money or property at the time the order for alimony was made, it was ineffectual and void. In other words, that his future earnings could not be taken into consideration in order to make an alimony order.

The plaintiff in error failed to appear in court, and we not do know just what his argument is, but it surely cannot be possible that a man might be earning large sums of money in the way of salary, and even though he did not have any property or money at the time the decree was entered, he would be immune from the legal obligation imposed upon him to support his wife and children, if there were any.

We think the law is well settled that alimony may be allowed to a wife or husband out of the future earnings of the recalcitrant party, and such is the force and effect of the decision of our Supreme Court in the case of Lape vs. Lape, 99 OS., 143.

We think this is conclusive of the question involved in the instant case, and the Common Pleas Court did not commit any error, and the judgment below will be affirmed.

Sullivan and Levine, JJ., concur.


text:
    BUEHNER v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided September 16, 1929
    L. E. Appleton, Cleveland, for Buehner.
    Ray T. Miller, Cleveland, for State.
   SULLIVAN, J.

There is only one ground of error and that is the claim that the court erred in refusing to grant, at the request of counsel for plaintiff in error, leave for him to leave the court room during the trial temporarily while the testimony relating to his identification and description was in process of being detailed. The motive and object appears to be that the absence of the defendant at the time would have been a test of the ability of the witness to describe and identify the defendant. A cross-examination, had the request been allowed, would have followed along this line and plaintiff in error, through counsel, claims that he was injured in his rights by not being allowed this basis and foundation for a cross-examination upon this question of identity. The court refused the request and error is based unon this refusal. This was a matter which ivas purely within the discretion of the court and we find nothing in the record which shows an abuse of discretion and that being so the judgment will stand and it is hereby affirmed. •

Vickery, PJ, and Levine, J, concur.


text:
    CLARK v RUBINSTEIN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided June 17, 1929
    Moses H. Dixon, Cleveland, for Clark.
    Joseph Rubinstein, Cleveland, for Rubinstein.
   VICKERY, PJ.

There were three theories on which this action might have been maintained. The first would be on the ground of a lien,— the materials being furnished by Rubinstein which went into the property of Ella Clark; but there is no evidence in the record that he perfected a lien. The second theory would be that Turner had a claim against Ella Clark and had assigned that claim to Rubinstein and whatever was due to Turner by Ella Clark could be recovered on this assignment, even though the suit was brought in his own name. This was not done either. The only other theory under which this suit could have been maintained was upon the theory that Rubinstein was the principie, either undisclosed or disclosed, and that Turner was merely in his employ and the contract, although in the name of Turner, was really a contract between Ella Clark and Rubinstein; and inasmuch as the court could only have found on one of these three theories, and the other two being negatived, it must have been upon the third theory that the court found a judgment in favor of Rubinstein against Ella Clark. So it becomes important to examine the bill of exceptions; and upon examination of the bill of exceptions we find that there is no certificate by the trial judge that it contains all the evidence and the assumption would be that inasmuch as the court could not have found for the plaintiff without evidence, being introduced in the case to show that the relation of an undisclosed principle or perhaps of a disclosed principle existed the court must have found that the contract was made between Ella Clark and Rubinstein, although Turner’s name was used in the contract.

A reviewing court must assume that the trial court had evidence before it upon which to base its judgment unless the contrary appears ,and the bill of exceptions not being complete or at least having no certificate that it contains all the evidence we must assume that the court had proper evidence before it to sustain its finding. With that in view we find there is no error in this record and the judgment of the lower court will be affirmed.

Levine and Sullivan, JJ, concur.


text:
    PINCHEFSKY v GOLDSTONE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided September 16, 1929
    Messrs. Thorman & Goldman, Cleveland, for Pinchefsky.
    Messrs. Baker, Hostetler & Sidlo, Cleveland, for Goldstone.
   LEVINE, J.

The plaintiff states in the petition that he relied upon the promise and agreement of the defendant that said premises were in good condition and repair and that said defendant would keep said premises in good condition and repair. This promise and agreement on the part of the landlord as set forth in the petition contains two subdivisions:'(1), that the premises were in good condition and repair; (2), that he would keep said premises in good condition and renair. Subdivision 1 cannot be taken in the nature of a promise. If anything it is nothing more or less than a representation concerning the condition of the stairway and handrail at the time that the' tenant entered into possession and occupancy. Nowhere in the petition do we find any allegation negativing this representation alleged to have been made by the landlord. Insofar as the petition reveals, this representation of the landlord concerning the condition of the premises at the time the tenant entered into possession and occupancy, was entirely true. We must therefore elminate any claim of negligence on the part of the landlord based upon that representation. We are therefore limited to the statement contained in subdivision 2 namely, that the landlord promised and agreed that he would keep the premises in good condition and repair.

Assuming as we must, in the absence of a statement to the contrary, that the premises including the handrail, were in good condition and repair at the time that the tenant first entered into Dossession and occupancy, that the same became out of repair at a subsequent time, and that the tenant had brought no notice or complaint to the attention of the landlord concerning the handrail become out of repair, would the failure of the landlord to examine and inspect the handrail with a view to making necessary repairs, constitute a violation of duty on his part so as to subject him to a cause of action for damages for the injuries sustained by the tenant? The petition states that the dangerous condition of the stairway and handrail was not apparent and could not be discerned by ordinary observation. This is set forth as an excuse for the tenant using the stairway. It must, however, follow that if the dangerous condition was not apparent and could not be discerned by the ordinary observation of the tenant that the landlord likewise could not have discerned and discovered it by ordinary observation. The tenant, according to the allegations of the petition, was in exclusive control and occupancy of the storeroom .and basement and as such had a better means of observing, the condition of the stairway including the handrail than had the landlord who was out of possession and control of the premises.

Negligence is a failure to observe ordinary care under the circumstances. In order to subject the landlord to a libility for the injuries sustained by the tenant, the petition would have to make it appear that there was a failure to exercise such ordinary care by the landlord. Not only does the petition fail to make such allegations, but on the contrary it negatives such allegation, for in the petition it is stated, “that the dangerous condition of said stairway and handrail was not apparent and could not be discerned by ordinary observation.” If this is true, then it must follow that the landlord cannot be held to have failed to exercise ordinary care since the defective condition of the stariway could not be discerned by ordinary observation.

It is our opinion upon the face of the petition that the landlord had a right to assume that the premises including the handrail remained in good repair. Especially so since the defect in the handrail was not apparent, and could not be discerned by ordinary observation and since no notice whatsoever of the true condition of this handrail was brought to the attention of the landlord by the tenant who was in exclusive control and possession of the premises.

We find no error in the judgment of the common pleas court.

Vickery, PJ, and Sullivan, J, concur.


author: JUSTICE, J.

text:
    LICHTY v BD of EDUCATION OF CRANE TOWNSHIP
    Ohio Appeals, 3rd Dist, Paulding Co
    Decided July 26, 1929
    T. T. Shaw, Defiance, and S. S. Beard, Paulding, for Lichty.
    Mervin Day, Paulding, for Bd of Education.
   JUSTICE, J.

The demurrer presented two questions: first, the sufficiency of the resolution; second, the constitutionality of 7749-1 GC. Of these in their order.

The resolution was adopted under and by virtue of 7749-1 GC.

It will be observed that- the resolution alludes to the Paulding County Board of Education and the Crane Township Board of Education. Strictly speaking, no such boards are known in law. The resolution, however, was passed by the Board of Education of the Paulding County School Districa and was served on the Board of Education of the Crane Township Rural School District. Manifestly, the resolution refers to these boards. It will also be observed that the resolution does not declare in terms that the Board of Education of Crane Township Rural School District shall furnish transportation. However, the county board, by passing said resolution and causing it to be served upon the defendant, did in fact so announce and declare. A substantial compliance, rather than a technical one by the county board, with the provisions of said statute, is all that the law requires. Hence, it follows that the objections to the sufficiency of the resolution are. not tenable.

Coming now to the second question, that is to say, the constitutionality of said 7749-1 GC. The court below held said Section unconstitutional for that, as it concluded, the legislature had delegated therein to the County Board of Education, legislative power. With this conclusion we are not in accord.

We quote from Lewis’ Sutherland Statutory Construction, Second Edition, Volume 1, page 148, Section 88:

“The true distinction is between the delegation of power to make the law, which involves a discretion as to what the law shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance'of the law. The first cannot be done; to the latter no valid objection can be made.”

C. W. & Z. Railroad Company vs. Commissioners of Clinton County, 1 OS. 77, page 87.

In State v Messenger, 63 OS. 398, Justice Minshall quotes from Agnew, J., in Locke’s Appeal, 72 Penn. St. 491.

Board of Health v. Greenville, 86 OS. 1, page 20.

This court is, of course, bound by the pronouncements of our Supreme Court, and, in the light of these authorities, we are unanimously of the opinion that said Section 7749-1, GC, is constitutional.

It would seem that further comment will serve no useful purpose. Clearly, the petition does state a cause of action. Hence the court below erred in sustaining the demurrer and entering judgment for the defendant.

Entertaining these views, it follows that the judgment of the court below; should be reversed.

Before Judges Hughes, Justice and Crow.


text:
    NOCAR v. FILMORE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided September 23, 1929
    Messrs. Sacharow, Sacharow & Sacharow, Cleveland, for Nocar.
    Messrs. Fuerst & Brown, Cleveland, for Filmore.
   SULLIVAN, J.

An effort is made by counsel for plaintiff in error to have this court order the affidavits made a part of the bill of exceptions and the section of the General Code relied upon as .authority for such action is No. 11572-A.

Under section of the General Code 11572-A in Schneider vs. McIntosh ,the court corrected the misspelling of the name of the victim of a homicide. This case is found in Long v. State, 109 OS. 77 and we find that under the same section that provisions for the amendment to bills of exception is a remedial statute which is to be liberally construed and the bill of exceptions may be amended by striking therefrom an incorrect statement and substituting therefor a correct statement. We do not find, any such situation as any of the above cited, appearing in the record because it is not a question of accident or error.

For the same reason, under the section above quoted, the question could not be remanded for correction to the court of common pleas. Each court seems to have concurring power under the statute. There is nothing in the record to show that the elmination in the bill of exceptions was by accident or error. There is no showing of any kind in the record or out of it as to the reason why the affidavits are not attached to the bill of exceptions. Under the statute the reason would have to appear before the court could .apply the statute, if the reason was sufficient foundation for the requisition of the statute.

Whether counsel, as often happens, did not think it necessary to incorporate the affidavits as part of the bill of exceptions or whether it was by reason of neglect, or whether it was because of misinterpretation of the statute, is not apparent. It is clear, however, that there is no record that it was because of accident or error. Therefore we are power! e^- to grant the request of learned counsel for plaintiff in error because of the statute and the absence of the record justifying the action prayed for.

Under such a status this court must presume as a matter of law, that the court acted on sufficient grounds, and according to law, because the contrary does not affirmatively .appear as is laid down in Prescott vs State, 19 OS. 184; McHugh vs State 42 OS. 154; Koch v. Hotel Co., 13 C. C. (NS) 163, and Dallas v. Fernau, 25 OS. 635.

In the case of Lon°- v. Cassiero, 105 OS. 125, it appears to be conclusive that our position is correct.

We also add the following citations:

Sleet v. Williams, 21 OS. 82.
Schultz vs State, 32 OS. 276.

In Montgomery v. Slate, 12 C. C. 879, and Henning v. Barts, 1. C. C. (NS) 389, it is laid down in corroboration of our views herein that reveiwing courts cannot consider facts in support of motions unless they are made a part of the bill of exceptions. The record in this case as certified by the lower court is the only record which can be considered and if vital material is absent upon this record which forms the basis of judging of errors of the trial court there is no way to grant the relief that is prayed for. The record signed by the judge is the only record that can be considered, as is laid down in State v. Young, 77 OS. 529, and recently affirmed in Konigsberg vs Lamports Co. 116 OS. 640.

Thus holding, we are without authority to change the record or order the court below so to do, for the reasons herein given, and hence the judgment of the lower court upon the question raised is hereby affirmed.

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


text:
    RUTSKY v LUCIA
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided September 23, 1929
    Messrs. Davis, Young & Vrooman, Cleveland, for Rutsky.
    William J. Corrigan, Esq., Cleveland, for Lucia.
    Sullivan, J, concurs. Levine, J, not participating.


author: HUGHES, J.

text:
    VIRGINIA JOINT STOCK LD BK v CRAWFORD CO FARMERS MUT FIRE INS CO
    Ohio Appeals, 3rd Dist, Crawford Co
    Decided July 24, 1929

      Edward J. Myers, Bucyrus, for Land Bank.
    Charles Gallinger, Bucyrus, for Insurance Co.
   HUGHES, J.

The sole and only question before us, is whether or not this mortgage clause that was attached and made a part of this contract, ,as were the provisions of the constitution and by laws, which are also a part of the contract- and printed thereon, effected a change in favor of the mortgagee whereby it can now make claim for this loss notwithstanding the provisions of the constitution and by laws.

It is shown that the .assessments were paid by the insured and received by the company from the time the policy was issued, until the time of the loss by fire.

We see no difference in principle between this case and the case of Mutual Insurance Company v. Green, .submitted herewith, and the same observation that was made by Judge Davis in the Richards v. Louis Lipp Company case, reported in 69 OS. 359, is quite as appropriate. That is. where the policy has been issued and held in good faith as an indemnity, and where premiums have been paid and received under it, it is not only manifestly unjust, but contrary to settled rules of law to permit the insurance company to set up some clause in the constitution or by-laws of its organization, as a defense to an obligation that it has incurred under this policy with the mortgage clause thereto attached, and the judgment in this case is reversed.

Before Judges Hughes, Justice and Crow.


text:
    CRAWFORD CO. FARMERS MUT. FIRE INS. CO v GREEN et
    Ohio Appeals, 3rd Dist, Crawford Co
    Decided July 23, 1929
    Messrs. R. V. Sears and Chas. Gallinger, Bucyrus, for Insurance Co.
    Dean C. Talbott, Galion, for Green et.
   HUGHES, J.

The bill of exceptions contains ample evidence to support the claim of waiver and estoppel against the three defenses made by the insurance company, if a mutual comnany is to be controlled and governed by the same rules of law and equity as would apply to old line insurance companies. And it is conceded, in oral argument, that such is the record.

It is true the provisions of the constitution and by laws of this company prohibit the waiving of the things claimed to have been waived in this case, but we are unable to formulate any reasonable rule that would distinguish a mutual company from any other company or individual. When a mutual company by its acts and conduct does things to cause another to forego certain things which otherwise result in injury and loss were not the doctrine of estoppel applied, there can be no good reason for excepting such company from the doctrine.

The doctrine was invoked against such a company by our Supreme Court, speaking through' Judge Davis, in the case of Richards vs. Louis Lipp Company, 69 OS. 359 at 364.

Entertaining this view, the judgment is affirmed.

Before Judges Hughes, Justice and Crow.


text:
    HULING et v NEAL et
    Ohio Appeals, 3rd Dist, Logan Co
    Decided July 24, 1929
    Messrs. W. Clay Huston, Bellefontaine, and Meade C. Robinson, Marysville, for Huling et.
    Messrs. John S. Huston, Degraff, and H. H. Newell, Toledo, for Neal et.
   HUGHES, J.

Both deeds above referred to, conveying the half acre and the one acre to the school board for school purposes, reserved in the grantors a reversionary interest which at all times was a vested interest, subject to be enjoyed upon the abandonment of the school property for school purposes. When Robert Moore conveyed this entire property to Mary A. Huling, he divested himself of that right and Mary Ann Huling became vested with it. And wh£p. Mary Ann Huling died devising this property, including this interest, to her daughter Etta Electa Worley, she passed that interest on to her daughter, who in turn by deed to William S. Neal and Mary C. Neál, divested herself of that interest and passed it on to the Neals. When the school board abandoned this property, therefore it reverted to William S. Neal and Mary C. Neal, and_the plaintiffs’ petition must therefore be dismissed. The reasoning herein adopted is supported, we think by the reasoning in Jeffers v. Lampson, 10 OS. 101, at 106.

Before Judges Hughes, Justice and Crow.


text:
    HOFFMAN v STATE
    Ohio Appeals, 2nd Dist, Montgomery Co
    Decided June 26, 1929
    Strother B. Jackson, Dayton, for Hoffman.
    Messrs. Ralph Hoskot and Jerome T. Miller, Dayton, for State.
   ALLREAD, J.

Mrs. Hoffman, the wife of Douglas Hoffman, testified. The defendant, the plaintiff in error here, also testified. Neither Mrs. Hoffman nor Douglas deny that the officers found the whiskey, but they claim that the whiskey was in the house at the time of a previous arrest and the fine therefore covered the whiskey in controversy. However that is, it is nowhere claimed that the whiskey was taken possession of by the enforcement officers or that the former judgment covered the time in controversy here.

They also claim that the whiskey was on the premises for family use and was not intended to be sold or disposed of, This contention, however, is not a defense and there is no claim that the possession of liquor on the date in question was to be used for any lawful purpose.

We are therefore of opinion that the judgment of the Probate Court convicting the plaintiff in error, and the judgment of the Court of Common Pleas affirming that judgment, are correct.

Kunkle and Hornbeck, JJ, concur.


author: KUNKLE. PJ.

text:
    NATIONAL SURETY CO v GRIFFIN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided June 24, 1929
    Messrs. Tolies, Hogsett & Ginn and Geo. D. Bonebrake, Esq., Cleveland, for Surety Co.
    Messrs. Howell, Roberts & Duncan, Cleveland, for Griffin.
   KUNKLE. PJ.

The principal controversy in this case relates to the charge of the court in reference to the nature of the misrepresentation which must be made in order to create a liability under the bond.

In brief, the court charged the jury as follows:

“And I say to you as a matter of law that if you find that such a misrepresentation was made upon the part of The George W. Stone Company or its agents at that time to this plaintiff, and that those statements were false and untrue, whether they were made wilfully or whether they were made carelessly or recklessly, if she relied upon them and parted with her property and they were misrepresentations, then this plaintiff should recover from any and all defendants as principals who took part in any of those misrepresentations, whether those principals knew them to be true or not.”

It is contended by counsel for plaintiff in error that the misrepresentations, in order to be actionable, must have been fraudulently made, that is, that they were known to be false.

We have considered the section of the statute carefully and have also examined the authorities cited by counsel in their respective briefs upon this phase of the case. Without discussing the authorities in detail, we are of opinion that the charge of the court in this respect contained a correct interpretation of the section of the statute involved.

Objection is also made to the form of the verdict which was returned by the jury.

The copy of the docket and journal entries as filed contains the following:

“Parties by their attorneys come and a jury is duly impanelled and sworn, who after due trial do find for the plaintiff in the sum of $3425.83 against The George W. Stone Gompany, Virginia Broden and Louis A. Wald, and the jury further finds for the plaintiff against the National Surety Company for $3425.83 as surety on the bond of The George W. Stone Company, and the jury further finds for the plaintiff against the National Surety Company for the sum of $2500 as surety on the bonds of Virginia Broden and Louis A. Wald respectively.”

It is suggested by counsel for plaintiff in error that a double recovery might be had under the verdict so returned. The verdict as returned by the jury is in somewhat unusual form, but we do not see how the plaintiff in error can be prejudiced thereby.

There can be but one recovery and counsel for defendant in error in open court so- concede.

The judgment entry of the lower court may, if so desired, be modified to show that the full amount of recovery upon the judgment shall be limited to $3425.83 plus interest.

We have considered all of the .errors urged by counsel for plaintiff in error and finding no error in the record which we consider prejudicial to plaintiff in error, the judgment of the lower court will be .affirmed.

Allread and Hornbeck, JJ, concur.


text:
    BAKER v APPEMAN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided September 30, 1929
    David Kammer, Esq., Cleveland, for Baker.
    Messrs. Lamb, Vaughn & Krauss, Cleveland, for Appeman.
   SULLIVAN, J.

Speaking jqpon the latter point first, we do not think that the court committed any error for the nature of the injuries, as appears by the record, was necessarily and inevitabily cognizant to the plaintiff. If the injury in a personal injury case is the breaking of a bone, the dislocation of a joint, the loss of a leg or eye, or any other injury of a similar nature, there is no question but that upon the testimony of the person injured a recovery can be had without resorting to expert testimony. This is self-evident for the reason that the knowledge is actually in the possession of the person injured, and in the instant case it would be only upon a more subtle aspect of the case that an expert would be necessary. We, therefore, do not think that the court .committed error in this respect.

Coming to the question as to whether the verdict is clearly and manifestly against the weight of the evidence, an examination of the record does not bring us to that conclusion in -this case, because there is nothing, but a conflict in the testimony ,and, as has often been said in our opinions, a reversal can only be had as a matter of law and this reversal depends upon some aspect of the record which shows that there has been such a judgment as shocks the senses or results in a judgment which is clearly and manifestly against the weight of the evidence. This rule is laid down, and we have quoted it often, and we quote it again in the case of Painesville Utopia Theater Co. vs. Lautermilch, 118 OS. 167.

Holding these ylews, the judgment of the lower court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    SAN ANTONIO SOCIETY et v COVERSON etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided September 30, 1929
    Messrs. Nicola & Horn, Cleveland, for Society.
    Messrs. Sexton & Picciano, Cleveland, for Coverson.
   SULLIVAN, J.

Now we do not find in this decree or the entry thereof upon the docket any .judgment which is equivalent to a final order from which error procedings may be taken. Had the court granted the motion of defendant for a directed verdict of course the verdict of the jury would have been in favor of the defendants below. Under this statute a motion for a new trial could have been made and upon a hearing thereof the court could have sustained the same, and thus, as is the status now, the case would be pending in the common pleas court but it is well settled that error will not lie from the decision of a court sustaining a motion for a new trial and granting the same. This analysis bears vitally upon the question as to whether there was a final order or judgment from which error proceedings could be taken. The court necessarily had to consider both motions. It appears that one of the reasons which guided the court is that the Statute of Limitations would have barred the right to sue on the part of plaintffi within a very short time after the action of the court upon the motion. Now, when we come to consider this aspect of the ease existing at the time of the court’s action, it is our judgment that had the court sustained the motion to direct and pronounced judgment thereon that then and thereupon if error proceedings were taken to this court the question as to whether the common pleas court in this action was guilty of an abuse of sound discretion would arise. There were two motions, one to direct a verdict in behalf of defendants and the other to continue the ease, and withdraw a juror. If the couri had granted the motion to direct a verdict the statute of limitations would have auickly ensued and perhaps plaintiff might have been barred of his day in court. In such a situation we believe the court had the right, in the exercise of sound discretion, to grant the motion and continue the case and .allow the withdrawing of a juror and grant leave, as was done, to amend the amended petition within thirty days. Thus if there there had been a final order in the case we believe there would have been error on the part of the court below for the reason that directing the verdict in the face of the motion to continue, under the circumstances, would have been an abuse of sound discretion.

We think that the case of Cincinnati Car Co. v. Schneider, 25 C. C. (NS) 33 is not contrary to the nosition which we assume In the case at bar.

From this authority it is clear that there was no order affecting a substantial right and therefore proceedings in error would not lie. Similar motions were made in the case cited but before it had been submitted to the court or any intimation had been given as to what its decision would be. We do not think that this distinction is sufficient to base the claim that this authority is repugnant to the views herein expressed. However this, may be in the instant case there was no judgment or order affecting a substantial right. made by the court and this bing so there is no basis for error under the analysis of the case above set forth.

Holding these views the judgment of the common pleas court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


text:
    WILL-O-WAY DEVELOPMENT CO v MILLS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided September 30, 1929
    Mjessrs. Thorman & Goldman, Cleveland, for Development Co.
    Frank Morton, Esq., Cleveland, for Mills.
   VICKERY, PJ.

We again hold that the demurrer to the petition was rightfully sustained in the court below, because the plaintiff company in the action, instead of rescinding the contract or suing for damages, in which event it would not have had to make any tender inasmuch as the refusal to go forward had been made by the other side, is standing upon its contract and is suing to recover the balance of the purchase price and, therefore, it is only entitled to the purchase price upon the giving or tendering of the deed conveying by said deed the property purchased.

Now the defendant having repudiated her contract, the plaintiff had the right to elect either to declare a forfeiture and proceed in that way, or to stand upon the contract and sue for the balance of the purchase price, and the latter was the remedy sought. Now if it wants the purchase price, it must tender or offer the thing that it was to give for this purchase price. It won’t do to say that the equitable title would vest in the defendant, and she could maintain an action to enforce the plaintiff to transfer it. That would be requiring the defendant to do an. unusual thing.

The whole thing, can be illustrated thus: These payments were to be made in installments and there was an accelerating clause in the contract. Now they all had become due, and suppose the plaintiff, the owner of the property, had gone to the defendant and said: “Now, here all this money is due, $822. We want the money.” Then she had the perfect right to say: “All right, I have the money right here. Give me the deed for the property and I will give you the money.” Surely there is nothing unreasonable about that, and if the plaintiff said: “Oh, no, you will have an equitable interest in the property; wé want your money”, thus compelling her to bring another action in order to get the property; such is not the law. For all that anyone may know, the plaintiff company no longer has this property. It may have sold it and if á judgment is rendered it could look to other property of the defendant upon which it might levy execution, and then the defendant would be compelled to pay for the land when she did not get it and could not get it, because it had been sold.

We think the law is well settled that where a person wishes to insist upon the performance of the contract, he must perform or tender performance of that which was to be done on his side of the contract. In this case the plaintiff must tender a deed with a certificate of title, if the contract provides for that, to show that this land was still in the possession of the plaintiff company ,and it had the right to" transfer it. Under a land contract the contractee has no record title, and this land may have been transferred. But a tendering of the deed and a compliance on the part of the vendor of his part of the contract would show to the vendee, the defendant, that all she had to do was to pay the money and get the deed for the property; and if a judgment were rendered under those circumstances, the defendant could pay the judgment and get the deed which should have been properly executed and filed with the files in the case; and the whole title would then be straightened up. This could be no hardship upon the plaintiff and could be easily performed if it still owned the property, and if it did not own the property, it was not entitled to a judgment for the purchase money.

It is urged that the plaintiff did not have to do a vain thing by making, a tender when the party on the other side had notified it of her refusal to go forward with the contract. That would be so, so far as the right to recover damages was concerned, but, as already pointed out, this is not that sort of an action. It is to get the purchase price and, therefore, a tender is necessary and it is not a vain or useless thing. We think the defendant is entitled to have a tender made of the deed before she is called upon to pay the money, and we think that the petition not stating this, does not state a cause of action.

Therefore, the same ruling must be made now that was made when the case was here before; that is, the judgment of the court below will be affirmed.

Sullivan and Levine, JJ, concur.