author: By THE COURT.

text:
    HERMAN, Petitioner-Appellant, v. ALVIS, Warden, Respondents-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4642.
    Decided October 10, 1951.
    Robert P. Herman, Petitioner, acting in his own behalf.
    Hon. C. William O’Neill, Atty. Geni., Max H. Dennis, Asst. Atty Geni., Columbus, for respondents-appellees.
   OPINION

By THE COURT.

Appellant raises the question of the validity of the indictment to which he entered a plea of guilty and upon which he was sentenced. We can consider this case only as upon appeal on questions of law, although it is designated “Writ of Certiorari,” a writ in our practice now abolished.

None of the facts developed in the trial court are before us. As a matter of fact there is no transcript, but the original indictment has been produced and the amendment thereto both of which would properly be a part of the transcript if certified by the clerk. We pass upon the one determinative question in the case, which is, whether or not the indictment to which the appellant entered a plea of guilty and upon which plea he was sentenced, charged an offense. The indictment as returned by the grand jury, in so far as pertinent, charges that Robert P. Herman “unlawfully, maliciously and forcibly broke and entered the cigar store of Frank Reed and Darwin Frost in the night season, with the intent to commit burglary therein.”

A motion to quash the indictment was filed, whereupon the prosecuting attorney moved for leave to amend the indictment by deleting the word “burglary” and inserting the word “larceny” therein by interlineation. The motion was sustained and the word “burglary” was stricken and the word “larceny” written into the indictment. Thereupon the defendant entered his plea of guilty.

Sec. 13437-29 GC authorizes an amendment to an indictment. In so far as germane it provides:

“The court may at any time before, during or after the trial amend the indictment, * * * in respect to any defect, imperfection or omission in form or substance, * * * provided no change is made in the name or identity of the crime charged.”

In our judgment the original indictment charged the offense of burglary and the amendment merely made the charge more specific. The word “burglary” connotes the entering of a building in the night season with intent to commit a felony or with intent to steal property of value. So that, although the form was not exact it did charge a crime. However, had the amendment affected the substance of the indictment the accused would, upon motion, have been entitled “to a discharge of the jury, * * * and to a reasonable continuance of the cause,” under the same section authorizing the amendment, “unless it shall clearly appear from the whole proceedings that he has not been misled or prejudiced by the defect or variance in respect to which the amendment is made, or that his rights will be fully protected by proceeding with the trial, or by a postponement thereof to a later day with the same or another jury.”

Appellant with the benefit of counsel entered a plea of guilty without invoking his privilege under §13437-29 GC.

Upon any theory upon which the indictment and amendment could be challenged we do not find that the proceedings incident thereto denied the appellant due process of law or that he was not charged with the offense of burglary, either in the original indictment alone or in connection with the amendment.

The judgment will be affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. STEVENS, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4449.
    Decided October 2, 1950.
    Ralph J. Bartlett, Pros. Atty., Edmund B. Paxton, Asst. Pros. Atty., Columbus, for plaintiff-appellee.
    Howard H. Gillard, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

The defendant was charged with and convicted of sodomy and rape on five counts. A jury was waived and trial was had before the Honorable Judge Reynolds of the Common Pleas Court.

The only error assigned is a failure of proof of all of the elements of the offenses charged.

We have examined the evidence and find it sufficient to support the judgment. The only question presented was the weight to be attached to the testimony of the various witnesses. This was solely the function of the trial court. The judgment indicates that he placed more credence in the State’s witnesses “than in those offered by the defense. In so doing the conviction was fully warranted.

Finding no error in the record the judgment will be affirmed.

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


author: By McCRYSTAL, J.

text:
    BAUMAN CHEVROLET INC., Plaintiff, v. FAUST, Defendant.
    Common Pleas Court, Erie County.
    No. 28805.
    Filed June 17, 1953.
    Tussing & Pisano, for plaintiff.
    Schwer & Moore, Sandusky, for defendant.
   OPINION

By McCRYSTAL, J.

This matter arises by virtue of a demurrer filed by the defendant to the plaintiff’s petition on the grounds, that

1. The petition does not state a cause of action, and

2. That the action is barred by the Statute of limitations.

Following the introductory paragraph, the plaintiff’s petition reads as follows:—

“The plaintiff says that on or about the 14th day of February, 1951, it was the owner of a certain 1947 Chevrolet Aero Sedan; that on or about the 14th day of February, 1951, plaintiff and defendant entered into an oral agreement whereby plaintiff delivered its automobile, as described above, to the defendant to be used by said defendant for such period of time as plaintiff would be required to repair an automobile which was owned by said defendant.
“The plaintiff further says that the defendant took possession of said 1947 Chevrolet Aero Sedan and agreed with plaintiff that he would carefully drive said automobile and return the same to plaintiff in as good condition and repair as when he took possession thereof; that when defendant took possession of said automobile, it was in good running order and in need of no repairs; that in violation of his agreement, defendant returned said automobile to the plaintiff on the 17th day of February, 1951, in such condition that the same was damaged beyond repair.”

Plaintiff filed his petition on May 18, 1953, and prayed for damages to the car.

Coming to the first ground stated in the defendant’s demurrer, the Court is of the opinion that the petition does state a cause of action. Therefore, the first ground of the demurrer is overruled.

The principal question raised by this demurrer is whether or not §11222 GC with its six year limitation for bringing an action, or §11224-1 GC with its two year limitation, is applicable to the plaintiff’s petition. The defendant contends that the two year limitation applies and that as a result, the demurrer should be sustained.

Sec. 11222 GC recites in part—

“An action upon a contract, not in writing, express or implied * * * shall be brought within six years after the cause thereof accrues.”

Sec. 11224-1 GC recites in part—

“An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arises.”

The plaintiff argues that his petition is founded on an express contract, and that his cause of action is for breach of contract and that therefore the six year statute of limitations applies. The Court agrees with the plaintiff in that the petition states an action for breach of contract, but the Court does not agree that it necessarily follows in this case, that the six year statute of limitations applies.

The petition of the plaintiff establishes a bailment between the plaintiff and the defendant. It further éstablishes that in violation of the terms of the bailment, the defendant returned the automobile in question in a damaged condition.

It has long been settled that under these conditions, a bailor has a choice between an action sounding in contract or in tort.

6 American Jurisprudence 438.

In Ohio, we have but one form of action designated a “civil action” and we no longer carry the distinction between the common law remedies and the wording of the two sections of the General Code with which we are concerned here, does not use the words “cause of action” or “form of action,” but merely states that “an action.”

A search of the cases in Ohio, discloses that there is nothing directly in point on the question involved here.

In the case of Andrianos v. Traction Company, 155 Oh St 47, our Supreme Court held that a fare paying passenger who brings an action against the carrier for bodily injuries based upon the breach of an implied contract, must do so under the two year limitation of §11324-1 GC and not the six year limitation for bringing an action for an implied contract under §11222 GC. While that case pertains to an implied contract for bodily injuries, the Court feels that the principle controlling in that case applies in the instant case.

In the Syllabus 1, of the Andrianos case it states—

“A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable.”

In the present case while being an action for breach of contract, the breach involved is the injury to personal property and the damages sought are damages for the injury to personal property. The relief sought and the damages involved would be the same if the plaintiff had commenced his action on the basis of simple negligence. Had the action been based on negligence and not on contract, it is clear that the two year limitation of §11224-1 GC would apply.

The Court is of the opinion that a cause of action for damages to personal property arising out of a bailment contract, is governed by §11224-1 GC and not by §11222 GC. The Court does not intend to convey the thought that all actions for breach of a bailment contract are limited to §11224-1 GC, as it is conceivable that many breaches of a bailment contract could give rise to a cause of action which would not result solely in injury to personal property or result in damages being limited to the loss or injury to personal property.

The second ground of the demurrer to the plaintiff’s petition is therefore sustained.


author: By DULL, J.

text:
    MAST, Plaintiff, v. STONE, Defendant.
    Common Pleas Court, Mercer County.
    No. 14383.
    Decided January 19, 1953.
    Purdy & Brown, Celina, Wheat & Grimes, Portland, Indiana, for plaintiff.
    Knapke & Montgomery, Celina, for defendant.
   OPINION

By DULL, J.

This action is one on an Indiana judgment. The defendant has filed an answer containing as his first ground of defense that the action is barred by a fifteen year statute of limitation. To this ground of defense the plaintiff has filed a demurrer. The demurrer was submitted to the court on the memoranda of opposing counsel.

The question presented squarely by the demurrer is whether or not an action on a judgment of a sister state is one upon a “specialty.” If it is, then such action is barred by §11221 GC which provides:

“An action upon a specialty or an agreement, contract or promise in writing shall be brought within fifteen years after the cause thereof accrued.”

If the action is not one upon a “specialty,” it is not barred inasmuch as there are no statutes of limitation on actions on judgments or their enforcement in Ohio. However, there are statutes prescribing when judgments become dormant and within what period of time they can be revived. There is no contention by the defendant that such statutes are involved in this case. Hence, if the action is not barred by §11221 GC it may be enforced under the full faith and credit clause of the Federal Constitution (United States Constitution, Article 4, Section 1).

According to the allegations of the petition, the original action in the Circuit Court of Allen County, Indiana, grew out of an automobile accident in which the plaintiff was injured. The judgment was rendered on February 23, 1932, in favor of the plaintiff for fifteen hundred dollars ($1500.00) together with costs. The defendant was one of two defendants, the other defendant not appearing. The judgment was not appealed nor superseded and no part of the judgment has been paid.

One of the earliest reported cases on the question involved in this case is Todd v. Crumb, 5 McLean 172. In it the court held that a judgment of a court of record of another state is not a specialty in the legal sense of that term and the court further held that the limitation of fifteen years provided for specialties is not applicable to an action upon a judgment.

Another early case, following Todd v. Crumb (citation supra), was Stockwell v. Coleman, 10 Oh St 33, decided December Term, 1859. That case held that an action on a judgment of a justice of the peace of the state of Indiana was an action upon a specialty and within the purview of the statute of limitations relating to actions upon a specialty.

In Tyler’s Executors v. Winslow, 15 Oh St 364, decided December Term, 1864, however, it was held that a judgment of a court of this state is not a specialty within the meaning of the term as used in the statute of limitations relating to actions upon a specialty. It was further held that the rendition of a domestic judgment is not the accruing of a cause of action within the meaning of the statute of limitations and that none of the limitations of the statute were applicable to an action upon a domestic judgment.

The case of Fries v. Mack, 33 Oh St 52, decided December Term, 1877, was an action brought upon a Kansas judgment approximately twelve years after its rendition. The court recognized the cases of Todd v. Crumb, Stockwell v. Coleman and Tyler’s Executors v. Winslow (citations supra). However, the court thought it unnecessary to consider the question whether or not a judgment rendered in another state is to be regarded as a specialty within the meaning of the section of the statute of limitations relating to actions upon a specialty. The reason given being that since the policy of the whole statute of limitation gives fifteen years, within which to bring an action on a simple contract in writing, it cannot be supposed that it intended to bar an action upon a judgment in a shorter time.

The case of Doyle v. West, 60 Oh St 438, decided. June 13, 1899, was an action brought to collect the balance due on an original mortgage foreclosure action originating in an Ohio court of record. In the original action there was no prayer for a judgment and none was rendered. Again, the court deemed it not necessary to decide whether or not it was an action upon a specialty or contract in writing. The cause was considered in the nature of an action on a debt of record and barred after the lapse of seventeen years.

In the case of Graham v. Simon, 76 Oh St 77, decided February 26,1907, the court distinguished the case of Doyle v. West and following Tyler’s Executors v. Winslow (citation supra), held that an action on a domestic judgment could be brought at any time within twenty one years. The effect of such holding being that there is no statute of limitation against a domestic judgment other than then imposed upon an action to revive a judgment.

This review of cases forces two conclusions: (1) An action upon a judgment of a justice court of a sister state is an action upon a specialty within the purview of the statute of limitations relating to actions upon a specialty; and (2) an action upon a domestic judgment is not an action upon a specialty within the purview of the statute of limitations relating to actions upon a specialty.

However, in Armstrong v. Armstrong, 117 Oh St 558, decided December 28, 1927, which was an action • upon a Kentucky judgment for alimony payable in installments rendered in connection with a divorce decree, the court held such judgment, as far as accrued installments were concerned, was a final judgment of a sister state entitled to be enforced by the courts of Ohio under the full faith and credit clause of the Federal Constitution. In the body of the opinion the court stated that “It is well settled that judgments rendered by courts of sister states are entitled to the same faith and credit in every state as in the state where rendered, so that. they are valid and conclusive in other states accordingly as they are or are not valid and conclusive in the state of their rendition. 34 Corpus Juris., 1126.”

A like conclusion was reached in Bowling v. Bowling (C. P.), 62 Abs 178, decided June 25, 1951, in an action for accrued installments upon an Indiana judgment for support money payable in installments awarded in connection with a divorce decree.

Again, in Kinney v. Kinney, 196 F. 2d 587, decided April 17, 1952, the court held that “The duly attested record of a judgment of a state is entitled to such faith and credit in every court within the United States as it has by law or usage in the state from which it is taken.” See also Adam v. Saenger, 303 U. S. 59, 62, 58 S. Ct. 454, 456, 82 L. Ed. 649. This was an action in the District Court for the District of Columbia to recover judgment for past due installments for maintenance under an Ohio decree.

The attention of the court has been called to Holthouse v. Akom (C. P.), 79 N. E. 2d 589, 37 O. O. 31, 51 Abs 176, decided November 3, 1947. In this case the court in its opinion stated “From the decisions of the U. S. Supreme Court there is no doubt that a suit brought upon a judgment of a sister state is not an action upon the original cause but is in the nature of a specialty upon a contract.” However, the last Supreme Court case cited by the court in support of such a view, Titus v. Wallick, 306 U. S. 282, 59 S. Ct. 557, decided October Term, 1938, also held that “Even though the Ohio court might have declined to recognize petitioner as the proper party to sue upon the assigned claim, a suit upon a judgment of another state, by virtue of the Constitution, stands upon a different footing. The Ohio Court is not free to withhold from petitioner, the record owner of a judgment valid and enforceable by him in New York, the full benefit of the constitutional command that the judgment shall receive in the courts of Ohio such faith and credit as is entitled to receive in New York.” Also the latest Ohio Supreme Court case cited by the court in support of such a view, Symons v. Eichelberger, 110 Oh St 224, decided April 29, 1924, held in the syllabus the statement that “The courts of the state of Ohio will give full faith and credit to the judicial decrees of courts of record of the District of Columbia.” In fairness to the court, however, it stated in its opinion that any support for its view in the latter case was dicta only. Hence, the court is of the opinion that the case of Holthouse v. Akom (citation supra) is not dispositive of the question presented by the present case.

If the judgment upon which action is being brought in the present case had been brought in a court of record in Indiana, such action would not have been barred by Indiana law. Section 2-602 (302), Burns Indiana Statutes, 1933, provides in part:

“The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterward.
“Sixth. Upon contracts in writing other than those for the payment of money, on judgments of courts of record, and for the recovery of the possession of real estate, within twenty (20) years.”

According to the allegations of the petition, judgment was rendered in the original action in Indiana on February 23, 1932. The present action was filed in this court on February 20, 1952, summons issued on the same day and the defendant served on February 23, 1952.

It is, therefore, the holding of this Court that this action upon a judgment of a court of record of the State of Indiana is not an action upon a “specialty” and is not barred by §11221 GC. Rather, it is an action upon the judgment of a court of record of a sister state and entitled to be enforced in the courts of Ohio in the same manner as if it were brought in the courts of Indiana under the full faith and credit clause of the Federal Constitution.

By way of further fortification of this holding and in defense to any charge of its needlessly prolonging litigation, attention is directed to §11234 GC which provides:

“If the laws of any state or country where the cause of action arose limits the time for the commencement of the action to a less number of years than do the statutes of this state in like causes of action then said cause of action shall be barred in this state at the expiration of said lesser number of years.”

The court is applying the law of the state in which the cause of action arose, and in so doing is limiting the time within which the action can be brought to a lesser number of years than it could be brought if it had arisen in Ohio.

Accordingly, the demurrer of the plaintiff to the first ground of defense contained in the answer of the defendant is sustained and such first ground of defense declared insufficient in law and in fact to constitute a defense to the cause of action pleaded in the petition of the plaintiff.


author: By MILLER, J: By THE COURT:

text:
    STATE, ex rel. WARNER, Plaintiff-Appellant, v. McGRATH et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County,
    No. 2165.
    Decided November 16, 1951.
    A. K. Meek, Dayton, for plaintiff-appellant.
    Joseph N. McGrath, Dayton, for defendant-appellees.
   OPINION

By MILLER, J:

This is a law appeal from the judgment of the Court of Common Pleas denying the plaintiff’s motion to revive a deficiency judgment resulting from the foreclosure of a mortgage on real property which was rendered on December 2, 1935.

The question presented is whether the defendant is entitled to the benefits of §11663-1 GC, which section in part provides:

“Limitation of enforcement of deficiency judgments; waiver; pending actions: Any judgment for money rendered in a court of record in this state upon any indebtedness, which is secured or evidenced by a mortgage, or other instrument in the nature of a mortgage, on real property or any interest therein, upon which real property there has been located a dwelling or dwellings for not more than two families which has been used in whole or in part as a home or farm dwelling or which at any time was or is now held as a homestead by the person who executed or assumed such mortgage or other instrument, or which has been held by such person as a home site, shall be unenforceable as to any deficiency remaining due thereon, after the expiration of two years from the date of the confirmation of any judicial sale of such property completed subsequent to the rendition of such judgment, or after August 19, 1939, whichever shall be later.”

It is admitted that all of the elements are present to entitle the defendant to the benefits of the statute if the real property involved therein did not have located upon it dwellings for more than two families. The trial court in its judgment entry found the following:

“The court heard testimony by respective parties and witnesses called in their behalf and being fully advised in the premises finds that the real property involved herein was a homestead for not more than two families; that the judgment herein involved was a deficiency judgment; that said defendant has set up the Statute of Limitations designated as §11663-1 GC, as a bar to said reviver of judgment; that the facts set forth by the parties hereto meet the requirements contained in said Code Section to bar recovery on said Deficiency Judgment * * *;”

We have examined the entire record in this case and are of the opinion that there is substantial evidence in the record to support the factual finding of the court. This being a law appeal we cannot substitute our judgment for the trial court under such circumstances. The record reveals that there is practically no dispute as to the character of the buildings located on the mortgaged premises. They consisted of two separate structures, one of which was a small frame building located near the edge of a river and which was used only by the family of the defendant as a summer cottage. It was neither plastered nor ceiled on the inside and had no heating or plumbing facilities. At either end of the living room was a semi-partition which did not reach to the ceiling, but which provided some privacy for the two sleeping rooms. After the close of the summer season it was used for storage purposes. The other building was located further from the river than the cottage and faced the highway. It consisted of three floor levels and a basement. Each of the floors were finished for one complete living apartment, but was never used as such during the time it was in the mortgagors’ possession. It was originally built by the defendant for rental purposes for three families, but due to changed conditions the middle apartment and the top floor apartment were connected by means of an opening in a partition into a hallway and it was then used as a home for the defendant and her family until she was evicted. The lower apartment was rented for approximately five months during the year 1931, after which it produced no income, a relative then being permitted to occupy it for a short time and at all other times being used by the defendant for storage purposes.

The appellant urges that the two apartments which had been connected by the opening in the partition and occupied by the defendant was in fact occupied by more than one family, since it consisted of the mother, two daughters, and a son, all of whom had reached the age of majority. We do not think that a family relationship is determined by the age of the members. Bouvier’s Law Dictionary, 1934, Edition states that a family consists of those who live under the same roof with the “pater familias”; those who form his fireside.

In the case of Chicago & Northwestern Railway Company v. Chisholm, 79 Ill. 584, 587, the court held:

“A son or daughter of a parent residing with the parent, does not cease to be a member of the family when he or she respectively arrives at the age of twenty-one or eighteen from that fact alone. They must have ceased to reside with their parents in order to break the family relation.”

See also Strawn v. Strawn, 53 Ill. 263; Koehler v. Gray, 102 Kans. 878.

We are, therefore, of the opinion that it may not be said as a matter of law that the two connected apartments were occupied by more than one family. Neither can it be said as a legal conclusion that the summer cottage was a dwelling for one family. Again referring to Bouvier’s Law Dictionary, wherein it is said:

“A dwelling is the building in which a man with his family resides.”

In other words, a dwelling is a place of residence. The word “residence” denotes something permanent and not merely temporary. Whether or not the cottage was a residence was a factual question to be determined from all the evidence submitted with relation to its construction, adaptability and use during the period covered by the mortgage. The same rule is applicable in determining the character of the units in the other building under consideration.

Finding no error in the record the judgment will be affirmed.

HORNBECK, PJ, WISEMAN, J, concur.

Decided December 18, 1951.

ON APPLICATION FOR REHEARING

No. 2165.

OPINION

By THE COURT:

This is an application for a rehearing in which we find nothing presented which had not previously been considered. The appellant is merely asking whether the type of the structure or the use to which it was put, shall be the determining factor in interpreting §11663-1 GC. We think this question was answered on page 4 of our opinion wherein we held that when the character of the building was not apparent from its construction, other factors may be considered in determining the question.

The application will be denied.

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


author: By THE COURT:

text:
    MAD RIVER SECURITIES, Inc., Plaintiff-Appellee, v. FELMAN et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2181.
    Decided April 16, 1952.
    Coolidge, Becker, Wall & Wood, Dayton, for plaintiff-appellee.
    J. W. Sharts, Harold Singer, Dayton, for defendant-appellants.
   OPINION

By THE COURT:

This is an appeal on questions of law and fact from an injunction in favor of plaintiff and against defendants-appellants. By reason of the form of the appeal the issues between the parties must be decided in this Court de novo. Fortunately, there is no substantial conflict in the testimony. The record is presented upon stipulation of the parties together with the transcript of the testimony taken in the Common Pleas Court.

Plaintiff and defendants are the owners of lots and lands abutting a private alley. The plaintiff’s parcels, a part of Lot 151 of the City of Dayton, forms the east line of the alley for its length of a little less than 100 feet and the north line of said alley for its width of 9 feet and defendants land, part of Lot 152 of the City of Dayton, with a frontage of 52 feet, adjoins the alley to the west for a distance of about 80 feet.

Plaintiff bases its right of title in the alley upon three agreements to which its predecessors in title and defendants predecessors in title were parties. These three agreements are of date April 13, 1830, March 17, 1846 and October 17, 1874. By the terms of the last mentioned agreement the width of the alley was fixed at 7 feet, the west 5 feet of which was to be provided by defendants predecessors in title and by the predecessors in title of the owners of the parcels to the north of defendants lot. The east 2 feet of the alley was to be provided by plaintiffs predecessors in title.

Plaintiff claims that the defendants operate a parking lot on the land owned by them and

“To facilitate the parking of automobiles on said lot, defendants have painted or caused to be painted yellow lines on the surface of said lot in rectangular patterns, each rectangle enclosing the space within which a car may be parked. That these enclosed spaces extend five feet or more into said private alley, and said defendants regularly park their customers’ cars therein.”

It is alleged that this use of the private alley is in violation of the agreement establishing said alley, namely:

“That the said alley shall be used only for affording a free passage to the parties from the street to the public alley and not for harboring of horses or cattle or any such thing, and shall not, in any wise, be encumbered by either of the parties, or their heirs or assigns.”
“As a result of this use by the defendants, plaintiff is denied the full use and enjoyment of said private alley, and if such use by the defendants is allowed to continue, defendants will acquire rights of ownership in said portion of the said alley, to the great and irreparable damage of the plaintiff.”

The prayer of the petition is that the defendants be restrained from using the private alley in the manner described in the petition and from using it other than in the manner and to the extent authorized by the aforesaid agreements. In the Common Pleas Court the injunction was granted as prayed.

Defendants assert several defenses, some of which are, that the agreements of 1830 and 1846 were invalid because improperly executed; that the alley was never established as provided in the agreement of 1830; that the agreement of 1874 vacated the alley in its entire length from Third Street to the public alley as shown on Exhibit E and that the plaintiff was not entitled to the relief sought because it did not come into court with clean hands.

Without discussing at length the first three of defendants claims, we are satisfied to say that they are not of such merit as to preclude the allowance to plaintiff of the relief prayed.

There is infirmity in both of the agreements prior to 1874 but they are without material effect because the agreement of 1874 was complete in itself and incorporated the former agreements, except insofar as they conflicted with the 1874 agreement.

There is also ambiguity in the language employed in the 1874 agreement in defining the extent to which it was purposed to vacate the original alley. However, the agreement of 1874 clearly expresses the intent to vacate a portion only of the alley. Indeed, the agreement would be without any substantial import if it were not given that effect.

We then come to the last defense and, although, we do not predicate our judgment upon the application of the maxim invoked by the defendants, we do act upon a maxim of similar import, namely: he who seeks equity must do equity and other principles recognized by the chancery courts, such as: Where the wrong of one party equals that of the other, the defendant is in the stronger position, and he that hath committed inequity shall not have equity.

The private alley under consideration is by the agreement of 1874 fixed as 7 feet wide. The plaintiff to provide 2 feet thereof, the defendants 5 feet thereof. That part of the alley which abuts the defendants lot is of the full 7 foot width except when cars are parked in the parking lot and extend over and onto the 5 foot portion. It is the practice of the defendants, if the space is required, to park cars (probably three) lengthwise the full length of defendants lot to the east which cars extend upon but seldom into the full 5 feet of the alley. It appears from the photos that these cars are parked so as to extend into the alley the width of the loading platform which we hereafter discuss.

Plaintiff and predecessors in title have provided an additional 7 feet adjacent to the east 2 feet of the private alley. Thus, where there are no encroachments, the present width of the passage way is 14 feet.

The predecessors in title of defendants, other than appellants, who owned part of Lot 152 abutting on the alley to the west and to the north of defendant’s parking lot have erected a loading platform 3 feet high, approximately 3 feet wide, which width extends into the alley, approximately 36 feet along the west line of the alley. At the south end of the loading platform there are steps extending to the surface of the alley. At the north end of the loading platform plaintiff has constructed a connecting platform which it is stipulated is of the dimensions of “approximately 4 feet, 3 inches by 3 feet, 2 inches and approximately 3 feet high” which extends over and into the alley. Thus, there are permanent structures in the west 5 feet of the right-of-way of the alley which narrows it for the length of these platforms to approximately 4 feet. It is probable that both platforms, at times, are used by representatives of the plaintiff. These platforms are an encroachment upon the 5 feet which, by the agreements upon which plaintiff relies, was to be a part of the width of the alley extending from the public alley to the north terminus of the private alley.

In addition to this permanent encroachment placed by plaintiff and their predecessors, it is testified and not denied, and supported by photographs, that trucks, depositing upon and receiving from the loading platforms and automobile of patrons of the business houses along the alley, will regularly and for varying periods of time park in that portion of the alley to the east thereof and adjacent to these loading platforms and extending into the 2 feet, the eastern part of the right-of-way of said alley.

It is obvious that the plaintiff and defendants other than appellants by their encroachment in the alley have made it impossible for it to be used for its full length as a passage way for trucks or even passenger cars and it is only by the use of the extra width which has been provided by plaintiff that it can be made passable at all.

In the situation thus developed, the principles and maxims of equity which we have heretofore quoted preclude the granting in full of the equitable relief here sought.

Plaintiff’s principal witness, Mr. Frank Hill Smith, testified that the present use of defendants parking lot is not objectionable except as parked cars in the southeast corner of defendants lot makes it difficult to back trucks out of the alley, but that plaintiff is fearful that the defendants may build in the 5 feet abutting their lot and thus narrow the alley to an extent that it will cease to be of practical use to plaintiff. However, the injunction sought and granted in the trial court enjoins the defendants from doing that which the plaintiff’s witness says is not objectionable to it and which admittedly plaintiff itself is doing.

Both parties have breached, in part, the express terms of the agreement of 1830 upon which plaintiff relies, “That the said alley shall be used only for affording a free passage to the parties * * * to the public alley.”

There is merit in the claim of plaintiff that the parking of a car in the alley at the southeast corner of defendants lot interfers with the egress of trucks from plaintiff’s property. To the extent that this condition can be obviated the plaintiff should have relief. We will, therefore, grant an injunction only against defendants parking a car or cars within any part of the private alley abutting the east line of defendants lot from the southeast corner of said lot for a distance of 9 feet to the north.

Although it is not essential to this decision, we observe that the use of the 5 feet of the alley by the defendants for building purposes would be entirely different both in character and in duration than the purpose for which it is now occasionally employed. Then, too, this Court recognizes the validity and effectiveness of the agreements to vest in the parties rights of usage of the alley which both parties also have conceded subject only to the contention of defendants that the whole alley was vacated by the agreement of 1874.

Something has been said to the effect that plaintiff might have title, by adverse possession to that part of the alley upon which its lands abut. No such claim is asserted by the plaintiff in this Court. We doubt that it could be maintained for several reasons. Plaintiff claims an easement in the alley by record title.

Its use was permissive and not hostile. Its use was not exclusive.

Judgment as heretofore indicated,' costs to be assessed two-thirds against plaintiff and one-third against defendants.

HORNBECK, PJ, MILLER, J, concur.

WISEMAN, J, concurs in judgment.


author: By DOYLE, J.

text:
    AMERICAN WINE AND BEVERAGE COMPANY, Inc., Appellee, v. BOARD OF LIQUOR CONTROL, Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4666.
    Decided October 16, 1951.
    Loyal S. Martin, Cincinnati, for appellee.
    C. William O’Neill, Atty. Geni., Leander P. Swick, Jr., Richard L. Canter, Asst. Attys. Geni., Columbus, for appellant.
    (HUNSICKER, PJ, DOYLE and STEVENS, JJ, of the Ninth District, sitting by designation.)
   OPINION

By DOYLE, J.

An appeal from a judgment of the Common Pleas Court of Franklin County, which reversed the action of the Board of Liquor Control in revoking the class B-4 and B-5 permits issued to the American Wine and Beverage Company, brings the Common Pleas Court judgment to this Coúrt for review.

On December 28,1950, the Board, pursuant to hearing, entered the following order:

“The Board finds from the evidence that on Oct. 16, 1950, the said permit holder offered to give to a retail permit, holder, to wit, Jessie F. White, premiums, gifts, discounts, or rebates in merchandise in connection with the sale of wine to the said permit holder; that on October 19, 1950, the said permit holder gave away intoxicating liquor, to wit, wine, in connection with the operation of its business pursuant to the aforesaid permits; that on the said date the said permit holder assisted the holder of a permit for sale at retail, to wit, one James S. Hall, by giving him free merchandise, to wit, wine, as premiums and rebates; that on the said date the said permit holder sold wine below the minimum price established by the Ohio Board of Liquor Control; that on October 20, 1950, and on Nov. 3, 1950, the said permit holder gave away intoxicating liquor, to wit, wine, in connection with the operation of its business; that on the said dates the said permit holder assisted the holder of a permit for sale at retail, to wit, M. R. Lindburg, through his agent, one Lloyd Maddox, by giving free merchandise, to wit, wine, as premiums and rebates; and that on the said dates the said permit holder sold wine below the minimum price established by the Ohio Board of Liquor Control; all in violation of the Ohio Liquor Control Act and regulations of the Ohio Board of Liquor Control.”

The order then concludes by suspending the permits for a period of fifteen days.

1. The record has been read with great care in view of the finding and judgment of the Court of Common Pleas — reached on the theory that the evidence before the Board was insufficient as a matter of law to justify its decision.

There is in the record probative evidence which carries the quality of proof and has fitness, coupled with the reasonable inference to be drawn therefrom, to sustain each of the findings of the Board of Liquor Control. The fact that the trial court or the individual members of this Court might not believe the witnesses is of no consequence, for the obvious reason that we are not the triers of the facts and must not be concerned with the credibility of the witnesses. The sole judges of the witnesses’ credibility were the members of the Board who heard the case. It was solely the Board’s duty to determine what witnesses were to be believed or which were the most worthly of belief and from the testimony which they believed draw reasonable inferences, and then decide where the truth lay. This we must presume the Board did in reaching a conclusion.

There are shown In the evidence contradictory statements made by witnesses for the prosecution. Here again it was for the Board, sitting as the trier of the facts, to determine what weight should be given to the testimony concerning the contradictory statements and it was for the Board to

determine whether that testimony was sufficient to shake their belief in the testimony given on the witness stand.

Finding as we do sufficient evidence to sustain the conclusions reached by the Board, it follows that the Court of Common Pleas erred in its judgment of reversal.

2. It is claimed by the appellant that Regulation No. 43 of the Department of Liquor Control is invalid. The trial court so held. This regulation is as follows:

“No retail or wholesale permit holder shall accept any premiums, gifts, discounts, rebates or kickbacks either in money, merchandise, or thing of value from any manufacturer or wholesale distributor of alcoholic beverages and no manufacturer or wholesale distributor of alcholic beverages shall offer or give to any retail or wholesale permit holder any premiums, gifts, discounts, rebates or kickbacks either in money, merchandise, or thing of value based on quantity sales, cash discount sales, or for any other reason.”

The appellee asserts in argument that “since the Legislature has entered the field by enactment of §§6064-22 and 6064-24 GC, the Board of Liquor Control is limited to conformity with these enactments. The limitation would apply to the enactment of a regulation and it would certainly apply with equal or greater effect to an interpretation of or deviation from the wording of the statutes. The Board has attempted to charge and has attempted to find The American Wine and Beverage Company guilty of offering premiums, etc., in direct derogation of the provisions of the General Code of Ohio. Regulation No. 43 ■ is greatly in conflict with these statutes. The Board of Liquor Control has no authority to enlarge the scope of the statute or to limit it. It can and must in its regulation conform * *

It is true that the statutes do not specifically prescribe that an offer to give premiums, etc., constitutes a violation. However, the power to enact regulations is specifically given to the Board and it is a well known doctrine that a regulation adopted pursuant to such power is not invalid merely because certain specific conduct which is made a violation is not referred to in any general law.

We hold Regulation No. 43 valid. The judgment of the Court of Common Pleas will be reversed and the order of the Board of Liquor Control affirmed.

HUNSICKER, PJ, STEVENS, J, concur.


author: By SCHMIDT, J.

text:
    FEDERICA v. MURRAY et.
    Common Pleas Court, Hamilton County.
    No. A-118546.
    Decided July 5, 1950.
    Harry Rockwern, Israel Aron, Cincinnati, for plaintiff.
    Richard Baker, Harry H. Mcllwain, Cincinnati, for defendants.
   OPINION

By SCHMIDT, J.

This action is brought by the plaintiff to recover a balance of $6,453.64 claimed to be due on a promissory note signed by the defendants dated March 24, 1949.

Although admitting the making of the note and the unpaid balance, the defendants deny liability on the ground that the note was given pursuant to a contract between one Ben Peeden and the defendant Willard A. Lene, and that the contract was illegal and void under the law of Kentucky.

The parties have waived a jury.

The facts are these:

Prior to March 18, 1949 the plaintiff was the owner of a cafe and restaurant at 251 Dixie Highway, South Fort Mitchell, Kentucky, which was operated under the name of Kentucky Tavern.

Plaintiff sold the business to Ben Peeden and took certain promissory notes or contractual obligations for payment of part of the purchase price. Subsequently Peeden entered into a contract with the defendant Willard A. Lene, which provided, in substance, that Peeden agreed to sell the entire business, fixtures and chattel property, good will and trade name, to Lene for the sum of $20,500.00. Of this amount $11,600.00 was to be represented by a promissory note payable to the order of the plaintiff in this action on or before three years after date, payable in monthly installments of not less than $300.00 and secured by chattel mortgage on the equipment located in the premises.

The plaintiff, Federica, was not a party to the contract but merely a third party beneficiary.

Under Item 5 of the contract the seller Peeden agreed to permit the buyer to operate the cafe and restaurant under the licenses issued to the seller until such time as the licenses expired, or until such time as the buyer could secure new licenses. It was further agreed under Item 5 that in the event that the buyer could not obtain licenses necessary to operate the cafe, then the payments made under the agreement were to be refunded to the buyer.

The defendants assert that the laws of Kentucky, particularly Section 243.020, Kentucky Revised Statutes, prohibit any person from engaging in the business of the sale or purchase of intoxicating beverages unless such person holds a license as required by the law.

The defendants further urge that under Section 243.100 of the Kentucky Revised Statutes no person who has not had an actual bona fide residence in the State of Kentucky for at least a year may be issued a license for the sale of intoxicating beverages.

It is claimed that Lene, at the time of entering into the contract, was a resident of Ohio and that therefore Peeden knew he could not obtain the necessary licenses to operate the tavern.

It appears that after the contract was entered into the entire business, including all the chattel property connected therewith, was turned over to the defendant Lene and the cafe was operated by the defendant Lene. Defendant took the stand and admitted that he had, in fact, secured all the necessary Kentucky licenses in his name for the operation of the cafe. He testified that these licenses were procured by him through the assistance of the so-called “Syndicate,” which he explained as being the slot machine syndicate operating in Kentucky. He stated that these interests assisted him in obtaining the permit because they placed slot machines in the tavern from which they obtained revenue. He testified further that he was advised to, and in fact did, make a perjured application for the state license by giving a false Kentucky address in the application.

After a short time the defendant Lene, with whom the defendant Dr. Murray had become associated in a financial way, found that the operation was not profitable and closed the business. Certain payments on account of the purchase price had been made by him at that time, but he refused to make further payments.

There is no evidence that the plaintiff in this case was a party to the contract other than to the extent that he agreed that he would accept the note to Lene and Murray in substitution for the obligation which Peeden owed to him at that time. He did not participate in any way in the admitted illegal procedures by which Lene secured his Kentucky licenses.

The credits on the note are as follows:

The defendant paid $1,400.00.

In February 1950 a public sale of the chattels which secured the note was held and the sum of $4,496.36 was realized. The total credits are therefore $5,896.36.

In addition to the face amount of the note, that is, $11,600.00, the plaintiff in January 1950 paid $750.00 on behalf of the defendants to avoid foreclosure of lien by the landlord of the premises. The total obligation due plaintiff from defendants amounts to $12,350.00. Deducting the amount of the credits, the balance due is $6,453.64, which is claimed with interest at six per cent from March 24, 1949.

There is a general rule of law that if the consideration for a contract is illegal and contrary to public policy, the contract is unenforceable. Gordon v. Gordon, 168 Ky. 409. The reason for the rule is, of course, that courts refuse to give their assistance to the enforcement of an agreement which is in contravention of the law. There are, however, numerous exceptions and qualifications to the general rule. Thus, if part of the consideration is illegal and part is legal, and if the agreement is separable, the Court will enforce the agreement to the extent that it conforms to the law. Furthermore, where the parties are not in pari delicto, and one of them has not been guilty of serious moral turpitude, he can recover under the contract, particularly where he has performed on his part and the failure to permit a recovery would work an obvious injustice. See Restatement of the Law of Contracts, Sections 604 and 606.

In the opinion of the court this case comes under the exceptions to the general rule. The contract between Peeden and Lene was primarily a contract for the sale of chattels and equipment connected with the operation of a tavern. The provision that the buyer was to be permitted to operate the tavern under the seller’s licenses until he secured permits of his own was only an incidental feature. In any event, the plaintiff in this action did not make any representations of any kind that the buyer would be permitted to or would be assisted in operating the cafe in violation of any law. Indeed, the contrary intention is expressed, since the contract provided that the agreement would be cancelled and the money paid returned if the buyer was unable for any reason to secure the necessary permits. The bargain was fairly made and the defendants secured everything which they bargained for under the contract. The law of Kentucky did not work in any way as an obstacle to defendant’s operation since he admitted that he was able, through the influence of the gambling syndicate and through perjury on his part, to obtain the state licenses to conduct the business.

It seems to me that it would be a gross miscarriage of justice if the defendants, having received full consideration under the agreement, were permitted now to escape payment to an innocent third party beneficiary because of their own illegal and reprehensible conduct. If recovery were denied, the reward would go to the guilty and the penalty would fall upon the innocent party. I do not believe that the policy of the law requires a result of this kind. Parties who admittedly participate in corrupt practices in Kentucky should not be permitted to come into Ohio and ask the assistance of the court in relieving them from their legal obligations. If the court yielded to such requests, it would in effect be giving tacit approval to the corruption in which the defendant participated.

In view of the evidence the court finds that the plaintiff is entitled to judgment for the unpaid balance of $6,453.64 with interest at six percent from March 24, 1949, and the costs of this action.


author: By WISEMAN, J.

text:
    JOHNSON, Plaintiff-Appellant, v. CAMPBELL et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4613.
    Decided January 28, 1952.
    A. A. Bunner, Russ Bothwell, Columbus, for plaintiff-appellant.
    Dargusch, Caren, Greek & King, John Caren, of Counsel, Columbus, for defendants-appellees.
   OPINION

By WISEMAN, J.

This is an appeal upon questions of law from the Common Pleas Court of Franklin County from the order dismissing plaintiff’s petition after sustaining a general demurrer, the plaintiff electing not to plead further.

The plaintiff’s petition is as follows:

“Defendant Fred B. Prophet Co. is a Michigan corporation for profit.
“On the 3rd day of April 1950, defendants composed and published in a written statement, a certain false and malicious libel, containing the false, malicious and defamatory matter, to-wit that said plaintiff was dismissed from their employment because the said plaintiff was ‘disloyal.’ And furthermore on the 10th day of April, 1950 the defendants composed and published in a written statement, a certain false and malicious libel, to wit that said plaintiff was disloyal to us her employers.
“Plaintiff as a result of the aforementioned libels has been exposed to hatred, contempt, ridicule, shame and disgrace, deprived of public confidence, injured in her right to pursue gainful employment, and injured in her reputation, all to her damage in the sum of $25,000 dollars, for which plaintiff asks judgment.”

The trial court held that the petition did not state facts sufficient to constitute a good cause of action for libel. It will be observed that the petition in the one instance alleges that the defendants charged the plaintiff with being disloyal, and in the other instance with being disloyal to her employers. In each instance the charge of disloyalty is general and not specific, and as such is ambiguous and of a doubtful meaning. In the absence of an explanatory allegation it may be assumed and reasonably inferred that the first statement referred to disloyalty to her employers. The plaintiff in her petition has not alleged extrinsic facts by way of inducement or by direct averment showing the defamatory or libelous meaning of the use of the word “disloyal”; neither are special damages alleged. In the absence of such allegations a good cause of action is not stated unless the statement made is held to be actionable per se. The words used are susceptible of many different meanings, either of a defamatory or innocent significance. Where the words used are susceptible of an innocent interpretation they are not actionable per se; in such case it is necessary to establish by inducement and innuendo the defamatory character of the words used. Vol. 25 O. Jur. 243, 244; Vol. 33 Amer. Jur. 219; 53 C. J. S. p. 247, et seq. In Vol. 53 C. J. S. p. 43 it is stated:

“It has been held that words, in order to be defamatory per se, must be susceptible of but one meaning, and that an opprobrious one.” (See numerous cases cited.)

Specifically, we hold that the simple statement that a person is disloyal in connection with his employment, without more, is not libelous per se. The case of Ward v. League for Justice, 57 Abs 197, 93 N. E. (2d) 723 (motion to certify overruled), is easily distinguishable upon the facts.

In our opinion the trial court properly sustained the demurrer and dismissed the action. Judgment affirmed.

HORNBECK, PJ, MILLER, J, concur.


author: By CRAMER, J.

text:
    STATE, Appellee, v. SMITH, Appellant.
    Common Pleas Court, Butler County.
    No. 69365.
    Decided June 1, 1953.

      Jackson Bosch, Pros. Atty., Hamilton, for State of Ohio.
    Mark T. Brown, Hamilton, for defendant.
   OPINION

By CRAMER, J.

This cause is before the court upon the appellant’s (hereinafter referred to as defendant) appeal from his conviction in the court of Harry Stretcher, Mayor of the Village of Trenton, Butler County, Ohio. The defendant was charged with violating §6307-37 (b) GC in that he backed his vehicle without exercising due diligence “so as not to injure other persons or property in and upon said highway.”

The affidavit upon which the defendant was convicted was signed by State Highway Patrolman B. A. Joyce.

The defendant, before trial, objected to the jurisdiction of the mayor to finally hear and render judgment in the case.

The defendant contended before the mayor, and likewise contends here, that the mayor had no jurisdiction to render final judgment against him for the reason that the alleged offense was committed outside the corporate limits of the Village of Trenton — in Lemon Township, Butler County, Ohio —and that the affidavit charging the offense was signed by one other than' the party injured.

The defendant takes the position that mayors are limited in their county wide jurisdiction in criminal matters to the same extent and by the same statutes which limit and define the jurisdiction of justices of the peace. He therefore urges, in support of his claim that the mayor had no jurisdiction to render final judgment against him, the decisions of this and other courts in Ohio which have held that justices of the peace have jurisdiction only in the following situations:

1. Where the affidavit is filed by the “party injured” and the accused enters a plea of guilty: or,

2. Where the affidavit is filed by any person, and the accused being entitled to a trial by jury, pleads not guilty and waives a jury and submits to be tried by the justice of the peace.

The State finds no fault with the defendant’s claim respecting the jurisdiction of justices of the peace but insists that the jurisdiction of a mayor’s court is limited and controlled by separate statutes pertaining solely to mayors’ courts and they are not subject to those statutes which affect the criminal jurisdiction of justices of the peace.

These contentions necessitate an examination of the statutes which pertain exclusively to the criminal jurisdiction of mayors of villages.

Sec. 4535 GC gives to the mayor of a village final jurisdiction to hear and determine any prosecution for the violation of an ordinance unless imprisonment is prescribed as part of the punishment.

Sec. 4536 GC deals with the county wide jurisdiction of the mayor of a village in any misdemeanor and provides as follows:

“He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor unless the accused is, by the constitution, entitled to a trial by jury. His jurisdiction in such cases shall be co-extensive with the county * * *”

Sec. 4537 GC gives the mayor of the village jurisdiction, notwithstanding the accused’s right to a jury, if before the commencement of the trial a waiver in writing, signed by the accused, is filed in the case.

Sec. 4538 GC provides for the mayor summoning a jury and trying the accused in any prosecution for the violation of an ordinance where imprisonment is part of the prescribed punishment and the accused does not waive a jury.

Sec. 4539 GC provides that the mayor may decline to permit the trial mentioned in §4538 GC, whereupon he may either discharge the accused or recognize him to the Court of Common Pleas.

Sec. 4540 GC provides that the mayor may summon a jury to try a misdemeanor prosecuted in the name of the state where the accused has a right to a jury which he has not waived if a request for such trial is filed in the case.

The foregoing statutes, in our opinion, require the conclusion that the mayor of a village has final jurisdiction to hear and determine any prosecution for a misdemeanor unless the accused is by the Constitution entitled to a trial by jury, in which event, if a jury waiver is signed by the accused, the mayor retains jurisdiction. If the offense is a violation of an ordinance where imprisonment is a part of the punishment and the accused does not waive a jury, the mayor may summon a jury and try the accused. However, in misdemeanors prosecuted in the name of the state, the mayor may summon a jury and try the case, notwithstanding the accused has the right to a jury which he has not waived, if a request for such trial subscribed by him is filed in the case before the commencement of the trial.

Where, as here, a conviction under the offense charged would not permit of either a jail sentence or a fine in excess of $50.00, and therefore the defendant would not be entitled to a trial by jury, clearly the mayor may exercise final county wide jurisdiction.

Our next inquiry is whether §13422-1 GC, which provides among other things that “the word ‘magistrate’ shall be held to include justices of the peace, police judges or justices, mayors of municipal corporations, etc.,” impliedly repealed the provisions of §4535, et seq., GC, relating to the criminal jurisdiction of village mayors.

It is a recognized rule of law that it may be presumed to have been the intention of the legislature that all its enactments, which are not repealed, should be given effect. It has therefore been held that “a construction should be avoided which will render a part of the statutory law inoperative, meaningless, nugatory, purposeless, unnecessary or useless unless such a construction is manifestly required.”

See 37 O. Jur., 617, Sec. 341.

It has also been said:

“The rule is that all laws newly enacted by the General Assembly must be performed to harmonize with existing statutes on kindred subjects neither expressly nor impliedly repealed.”

37 O. Jur., page 622.

Secs. 13433-9 and 13433-10 GC concern all magistrates generally (these sections are relied upon by the defendant). However, §4535, et seq., GC, apply only to one class of magistrates, mayors.

It was held in the case of State, ex rel Comnar, 120 Oh St, 310, as follows:

“Special statutory provision for particular cases operate as exceptions to general provisions which might otherwise include the particular cases and such cases are governed by the special provisions.”

It is our view that §4535, et seq., GC, defines criminal jurisdiction of mayors and §§13433-9 and 13433-10 GC, are inapplicable insofar as they might be construed to conflict therewith.

We have been aided considerably in our conclusion by the enlightening opinions of the Attorney General of Ohio, found in Volume 2, Opinions of the Attorney General, 1939, Opinion No. 1076, page 1547, and Opinions of the Attorney General, 1943, Opinion No. 6246, page 440.

It is our conclusion that the mayor of the Village of Trenton had final jurisdiction in this cause to pronounce the judgment which he did even though the alleged offense occurred beyond the limits of the Village of Trenton and the affidavit or complaint was not filed by the party injured.

Having determined that the mayor had final jurisdiction in this cause, we next consider the assignment of error made by the defendant, namely, “that the conviction is not sustained by sufficient evidence,” and, “that the State of Ohio failed to prove the necessary allegations of the affidavit.”

The Bill of Exceptions reveals that but two witnesses testified, — the State Patrolman, who was not present at the time of the commission of the alleged offense, and the driver of the vehicle immediately to the rear of defendant’s truck.

A careful reading and consideration of the evidence incorporated in the Bill of Exceptions leads us to the conclusion that the same did not attain that degree of proof — beyond a reasonable doubt — required to sustain a conviction. We conclude that the judgment of the mayor is not sustained by sufficient evidence and is manifestly against the weight thereof.

The judgment of the mayor will therefore be reversed.

The reversal being on a ground other than that the mayor had no jurisdiction of the appellant or the subject of the action, this court will retain this cause for trial and final judgment.

See §12223-26 GC.


author: By SKEEL, PJ.

text:
    BADEMAN, Plaintiff-Appellee, v. CLEVELAND (City), Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22380.
    Decided March 3, 1952.
    Alfred L. Steuer, Cleveland, for plaintiff-appellee.
    Joseph H. Crowley, Director of Law, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a judgment entered for plaintiff in the Municipal Court of Cleveland.

The action is one in which it is claimed that the City of Cleveland wrongfully took, converted and destroyed certain property of plaintiff consisting of tools, scaffolding, bricks and like materials which the plaintiff used in his business of repairing and rebuilding chimneys and roofs.

In his petition the plaintiff attempts to state a cause of action in conversion. The evidence does not support such claim. The evidence considered in its most favorable light in support of plaintiff’s petition shows that the material taken was piled next to the regular ash barrels and rubbish containers and the city employees, in the rubbish department, loaded it on ash or rubbish trucks and dumped it on the Fairfield Avenue Dump with other rubbish and ashes.

There is no evidence that the city did anything else than to collect the plaintiff’s property as rubbish and dump it on a city dump. Such a taking does not constitute a wilful taking. At most it would constitute negligence in the operation of the rubbish department.

The operation of the rubbish department is a governmental function. Gorman v. City of Cleveland, 26 Oh Ap 109. It has long been the recognized rule in Ohio that there can be no recovery against a municipal corporation for injuries or damages occasioned by its negligence or nonfeasance in the exercise of a function governmental in character. Wooster v. Asbury, 116 Oh St 281.

For the foregoing reasons, the judgment of the Municipal Court must be reversed and final judgment entered for the defendant. Exc. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By EMMONS, J.

text:
    LOOK v. HINKLE.
    Common Pleas Court, Summit County.
    No. 174480.
    Decided October 19, 1950.

      Richard Nye and Carl Myers, Akron, for plaintiff,
    Lloyd Read, Akron, for defendant.
   OPINION

By EMMONS, J.

This cause came on to be heard upon the petition of the claimant asking that she be allowed to participate under the Workmen’s Compensation Insurance Act of Ohio, §1465-37 et seq., GC, a jury being waived.

The Court finds from a perusal of the record taken before the Referee that, as was indicated in the claimant’s brief, two questions arise in this case:

First, was the employer named an employer of labor within the meaning of the Workmen’s Compensation Act of Ohio?

Second, was claimant an employee of the employer named within the meaning of the Workmen’s Compensation Act of Ohio?

Concerning the first question, there is no doubt in the Court’s mind that at the time the accident happened LeRoy Hinkle was, and had been, employing three or more persons.

Page 46 of the transcript, line 28:

“Q. Who would this fourth person be, then, if you told Mrs. Look on the morning that she was burned that the four of you did it? In other words, there was Dean Faires, and Bus Faires, and his wife and yourself, is that right? A. (By Hinkle) That is right; that is all, I am certain. I feel certain.”

As to the second question, whether or not the claimant was an employee or an independent contractor, the Court finds from the testimony that the Hinkle Novelty Company, under which name LeRoy Hinkle was doing business, had formerly transacted business under one roof, and that by reason of an explosion and fire the place of business had been destroyed so that at the present time herein referred to, he had been filling orders by persons who were working on the respective novelties in their respective homes, since there was no other place afforded them to work by Hinkle.

Gillum v. Industrial Commission of Ohio, 141 Oh St 373, 48 N. E. 2d 234:

“Whether one is an independent contractor or in service depends upon the facts of each case. The principal test applied to determine the character of the arrangement is that if the employer reserves the right to control the manner or means of doing the work, the relation created is that of master and servant, while if the manner or means of doing the work or job is left to one who is responsible to the employer only for the result, an independent contractor relationship is thereby created.”

27 American Jurisprudence 485, Section 5:

“That there is no absolute rule for determining whether one is an independent contractor or an employee and that each case must be determined on its own facts.”

31 Corpus Juris 473:

“It is impossible to lay down a rule by which the status of men working and contracting together can be definitely defined in all cases as employees or independent contractors. Each case must depend on its own facts.” See also 42 C. J. S., p. 638.

In this instance Hinkle furnished the square boxes and plugs for cigars and cigarettes. He furnished powder and glue to tip matches and furnished the matches, and told the claimant herein what to do and how to do it, and certainly he reserved the right to control the manufacture of these novelties, if not the actual control itself. He was, therefore, an employer and the claimant an employee. And since Hinkle was amenable to the Ohio Workmen’s Compensation Insurance Act, employing three or more employees, and she was injured in the course of and arising out of her employment, she is entitled to participate under the Workmen’s Compensation Insurance Act of Ohio.


text:
    RICHTER, Plaintiff-Appellee, v. COLUMBUS (City), Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4561.
    Decided February 6, 1952.
    Schwartz & Gurevitz, Carl B. Mellman, Columbus, for plaintiff-appellee.
    Richard W. Gordon, City Atty., Hugh K. Martin, Edward J. Cox, Asst. City Attys., Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment on a verdict of a jury on behalf of plaintiff on her action for damages for personal injuries suffered by a fall over a cement box or block. .The box was placed by the defendant City at a point approximately 50 feet west of the southwest corner of Gay and High Streets in Columbus on the sidewalk near the curb. The box was 16 inches long, 16 inches wide and 14 inches high, made of cement, weighing 250 pounds, was placed to cover certain exposed hot wires and supporting bolts for a light standard which had been removed. The box was placed lengthwise of the street along the curb and about 10 inches from it and thus extended 26 inches in from the curb. The plaintiff with three of her relatives had been a passenger on a chartered bus which was double parked on the south side of West Gay Street about 10 feet from the curb. Alongside the bus at the curb was an automobile. Plaintiff alighted from the bus, moved to the sidewalk, started walking to the west on Gay Street when she fell over the box and was injured. The accident occurred shortly after midnight. The nearest light in the vicinity of the box was about 75 feet away. It was the claim of the plaintiff that the size of the box, its position on the sidewalk, its dim lighting, the blending of its color with the sidewalk and the fact that it was somewhat in the shadow of the bus and the parked car, created a dangerous obstruction for plaintiff constituting a nuisance, in violation of §3714 GC.

It is the contention of the City that this box is in the same class of obstructions as light standards, parking meters, Are hydrants, mail boxes, traffic signs, erected for public use, and that the public and the plaintiff were expected to know that this type of obstruction might be found in that part of the sidewalk upon which she was walking and that she walked there at her own risk.

The City further maintains that “the character of the obstruction is not controlling as long as some useful public purpose is being served and the obstruction is in the area reserved for it.”

At the conclusion of plaintiff’s case and at the end of the whole case defendant interposed a motion for a directed verdict, which was overruled. Defendant also tendered special instructions numbered 1 to 5, inclusive, which it requested the trial judge to give before argument. These requests were denied. The refusal of the Court to direct a verdict and to give the special charges before argument are made the subject of six of the assignments of error. The other assignments based on insufficient evidence, that the verdict is against the manifest weight of the evidence, and that the judgment is contrary to law, are dependent upon the determination of the correctness of the action of the trial judge respecting the motions to direct a verdict and the refusal to give the special charges.

The other error assigned is in the refusal to permit defendant to offer evidence to show the type of erections one normally would find along curbstones where this cement block was located.

Appellant relies principally upon the case of City of Cincinnati v. Fleischer, Admr., 63 Oh St 229, which holds that “the duty of a city to exercise ordinary care in the construction and maintenance of streets and sidewalks is not violated by permitting a carriage block of the usual size to occupy the usual position of such blocks, near the curb and not upon that portion of the sidewalk which is designed for the use of pedestrians going upon or passing along the walk.” The accident out of which this case arose occurred in January, 1898. The case was decided in the Supreme Court in October, 1900. The opinion is based upon the proposition that it was common custom to erect carriage blocks along the curb of a sidewalk and that one using that part of the sidewalk was charged with the knowledge that he might find such blocks there, and that the maintenance of them in such place was not a nuisance. Manifestly, this case was decided when carriage blocks were commonly used in connection with the type of transportation then in vogue. To state at this time that one would be charged with the knowledge that he might find carriage blocks along the curb in any city would find no support in fact. Nor does it appear, nor can it be successfully urged that boxes such as the one here under consideration are commonly found on the sidewalks along the curb. There are certain obstacles which are customarily placed on the sidewalk along the curb as to which the public would be requiied to take notice. The evidence discloses that the sidewalk on West Gay Street where this accident occurred was paved its full width from the building line to the curb and was available for use by pedes-, trians for its full width subject only to such obstructions as are customarily found on a sidewalk near the curb. It was inferable from the evidence that the base of this box which was fourteen inches high and of the same dimensions at the top as at'the bottom, extended inward from the curb further than the base of any other objects placed near it on the sidewalk.

When the motion for a directed verdict was made Judge Gessaman, the trial judge, expressed his opinion of the law controlling, at length, which opinion is found in the record. He held that whether or not the block was a nuisance was a question of fact and could not be resolved as a matter of law. We are in accord with this conclusion. Likewise the question of the contributory negligence of the plaintiff was for the jury, under all the circumstances appearing. Whether or not the plaintiff was negligent was in the realm of fact and was properly submitted to the jury under the charge of the court.

All of the special charges of the defendant, Nos. 1 to 5, except 5, followed the theory of the defendant that there was a zone in the sidewalk alongside the curb wherein the plaintiff walked at her own risk and with an appreciation that there might be obstacles such as the block over which she fell, in her path. This conclusion was not justified.

In the case of Hubler v. Dayton, 26 Abs 679, this Court held that the strip between the sidewalk and the curb ordinarily called tree lawn, is a part of the highway which the city is under statutory duty of keeping open, in repair and free from nuisance as against the usual mode of travel. In the instant case that part of the sidewalk which might be utilized as tree-lawn was paved and in use by pedestrians for travel.

In the case of the Village of Barnesville v. Ward, 85 Oh St 1, the city maintained park strips between the curbing of the paved street and the pavement of the sidewalk in which strips grass, flowers and trees were growing and the Court held that this could be done and that proper barriers could be placed alongside the treelawn to prevent travel thereon. The city placed a wire around the park strip and a pedestrian, undertaking to pass over it, was injured by reason of the dangerous condition created by the wire. The Court held that the placing of the wire, under the circumstances, created a nuisance within the meaning of the controlling statute.

The City maintains that it is not liable because the cement block was serving some useful purpose of benefit to the public, namely, that it protected the public against dangerous wires charged with electricity. There is no doubt that the purpose served the public and that the City in placing the box acted •within its police power and that the act was a governmental function.

An obstacle in a sidewalk placed by the City may serve some useful purpose for the public but, notwithstanding, be a nuisance. This differentiation is marked by the first syllabus in City of Hamilton v. Dilley, 120 Oh St 127:

“The duty imposed upon municipalities in Ohio by §3714 GC, to keep its streets free from nuisance, is an exception to the rule of common law that no liability attaches to a municipality for negligence in the ■ discharge of a governmental function.”

And the second syllabus supports the action of the trial judge in submitting the question whether or not the block as placed by the City was a nuisance, to the jury for determination.

Second syllabus:

“It is the province of the court to define a nuisance and the province of the jury to determine whether the circumstances of the particular case come within the definition of a nuisance.”

See also, Liesman v. City of Brookville, 33 Abs 189; City of Mingo Junction v. Sheline, 130 Oh St 34; Wall v. Cincinnati, 150 Oh St 411; Tolliver v. Newark, 145 Oh St 517.

The fifth special charge requested by the defendant would have been properly given to the jury but for the requisite that the jury find “that said sidewalk along Gay Street was otherwise, in a reasonably safe condition for travel in the ordinary mode.” This was not an issue upon the pleadings.

We find no prejudicial error in the action of the trial judge in refusing to'direct a verdict for the defendant and in refusing to give the special charges Nos. 1 to 5, inclusive, requested by the defendant. Nor do we find any other assigned error well made.

The judgment will be affirmed.

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


author: By THOMPSON, J.:

text:
    MATTHEWS, Plaintiff-Appellant, v. ADMINISTRATOR BUREAU OF UNEMPLOYMENT COMPENSATION, Defendant-Appellee, and M. A. HANNA COMPANY, Defendant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22192.
    Decided October 1, 1951.

      Miller, Davis & Folk, Cleveland, for plaintiff-appellant.
    C. Wm. O’Neill, Atty. Geni., Jos S. Deutschle, Jr., J. Ralston Werum, Asst. Attys. Geni., Columbus, for defendant-appellee.
    (DOYLE, J, of the Ninth Appellate District, sitting in place of HURD, J.)
   OPINION

By THOMPSON, J.:

This case is an appeal on questions of law from a judgment of the Common Pleas Court. The primary question involved is the interpretation of §1346-4 GC, with reference to appeals from the Board of Review of the Bureau of Unemployment Compensation, the pertinent provision of the section being the following language:

“* * * Such appeal shall be taken by the filing by the appellant of a Notice of Appeal with the clerk of such court and with the board of review. Such Notice of Appeal shall set forth the decision appealed from and the errors therein complained of * *

The plaintiff appellant was a claimant who filed a claim for unemployment compensation with the Bureau of Unemployment Compensation.

The claim was heard in the first instance before a referee of the Bureau of Unemployment Compensation who rejected the claim. The claimant thereupon appealed from the referee’s decision to the Board of Review of the Bureau of Unemployment Compensation. On April 18, 1950, the Board affirmed the previous decision of the Referee. On May 3, 1950, claimant filed a notice of appeal from the decision of the Board of Review in the Common Pleas Court of Cuyahoga County. The Notice of Appeal in that Court, after setting forth the caption of the case and the docket number of the claim at the Bureau of Unemployment Compensation, provided as follows:

“Sidney S. Matthews, appellant, erroneously designated as Sidney S.' Matthew, in proceedings before the Bureau of Unemployment Compensation, hereby gives notice of appeal pursuant to §1346-4 GC from the decision of the Board of Review, Bureau of Unemployment Compensation, rendered on the 18th day of April, 1950, denying unemployment compensation to Sidney S. Matthews.”

The notice of appeal then set forth nine reasons why the decision of the Board of Review was contrary to law, and five reasons why the decision was unreasonable. As a further ground of error the notice of appeal stated that the decision was against the manifest weight of the evidence.

In the Common Pleas Court, the defendant Administrator, Bureau of Unemployment Compensation, moved to dismiss the appeal on the ground that the notice of appeal was defective, in that it failed to comply with the requirements of §1346-4 GC, having failed to set forth verbatim the ruling of the Board of Review. The claimant thereupon asked leave to amend his notice of appeal in order to set out verbatim the decision of the Board of Review. The trial court overruled the motion to amend the notice of appeal and granted the motion to dismiss the appeal. The action of the trial court was based on the fact that the claimant had failed in his notice of appeal to set forth, in entirety, the decision of the Board of Review denying the claim.

In this court, plaintiff appellant urges error on the part of the trial court, first, in refusing to allow him to amend his notice of appeal and, second, in granting the motion to dismiss the appeal.

This court finds that the precise question here involved concerning the interpretation of §1346-4 GC, which requires that the notice of appeal in unemployment compensation cases “shall set forth the decision appealed from,” has heretofore been passed upon in the case of Moore v. Foreacher, Recr., 61 Abs 265, decided by the Court of Appeals, 2nd District, Franklin County ( Judges Hornbeck, Miller & Wiseman). That court held that it is not necessary to set forth in the notice of appeal the entire opinion of the Board of Review and that it is sufficient to designate clearly the ruling or' judgment appealed from, as by identification by number, date and ruling. We note that the Court of Appeals case referred to, reversing the Common Pleas Court of Franklin County, was carried to the Supreme Court of Ohio on motion to certify, that the Supreme Court granted the motion and that the case is now pending for decision on its merits in the Supreme Court.

This Court, on authority of Moore v. Foreacher, supra, and on the principles stated in Castleberry v. Evatt, 147 Oh St 30, finds that the trial court in this case committed error in its interpretation of §1346-4 GC. The law generally is summarized by Judge Zimmerman in the case of Castleberry v. Evatt, 147 Oh St 30, pg. 38, as follows:

“It is the general rule that, although a notice of appeal should comply substantially with statutory requirements, it is usually sufficient if it contains enough information to apprise the opposite party of the particular judgment which is sought to be reviewed. 3 American Jurisprudence, 168, Sec. 470; 4 Corpus Juris Secundum, 1061, Sec. 593.”

We are supported in our views in the instant case by the provisions of §1346-33 GC, effective September 22, 1949, which declares as follows:

“Secs. 1345-1 through 1346-4, inclusive, GC, shall be liberally construed to accomplish the purposes thereof.” ■

We hold that §1345-33 GC calls for a liberal construction of the Unemployment Compensation Act, particularly §1346-4 GC. While not controlling, such construction is likewise in conformity with the more recent decisions of the Supreme Court of Ohio and of the Courts of Appeals favoring a liberal interpretation of the Appellate Procedure Act, 2 O. Jur., “Appellate Review” pg. 506, Sec. 249. In case of any ambiguity in the sections of the Appellate Procedure Act, or of the Unemployment Compensation Act, relating to appeals, that interpretation is to be favored which will not deny to an appellant his day in court. It would appear to us to be giving a fantastic and highly technical interpretation to §1346-4 GC, to hold that a verbatim copy of the decision of the Board of Review must be incorporated in a notice of appeal, in the absence of express statutory language so requiring. We have examined the case of Zier v. Bureau of Unemployment Compensation, 151 Oh St 123, relied upon by the defendant appellee, and do not find that it is an authority contrary to the views herein expressed. For a discussion of the various meanings of the word “decision,” found in §1346-4 GC, also supporting our conclusions herein, see opinion of Judge Doyle, State ex rel. Squire, Superintendent of Banks v. Winch, 62 Oh Ap 161, affirmed 137 Oh St 479.

We also find that the refusal of the trial court to permit claimant to amend his notice of appeal constituted an abuse of discretion. We deem applicable to the present circumstance the statement by Judge Bettman in Couk v. Ocean Accident and Guarantee Corporation, 138 Oh St 110, in recognizing the right to amend the notice of appeal provided by §12223-5 GC, as follows:

“The art of jurisprudence should find expression in the closeness to absolute justice achieved, rather than in the refinements of procedural technique required.”

The judgment of the Common Pleas Court is reversed and the case remanded to that court for further poceedings according to law. *

SKEEL, PJ, DOYLE, J, concur.


author: By HORNBECK, PJ.

text:
    STARKS, Plaintiff-Appellant, v. REED, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4581.
    Decided September 29, 1951.
    Edmund B. Paxton, Columbus, for plaintiff-appellant.
    Marion A. Ross, Columbus, for defendants-appellees.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment of the Common Pleas Court finding for the defendants, dismissing plaintiff’s petition and ordering the cancellation of a $1100.00 note and mortgage which defendants had executed and delivered to the plaintiff. The action was for judgment on the $1100.00 note and to foreclose the mortgage securing it. Defendant answered generally denying the allegations of the petition and setting up want of consideration for the note, fraud in securing the note and mortgage and that to permit collection of the note and foreclosure of the mortgage would be against public policy because of violation of certain rules of the Home Owners’ Loan Corporation, which has a first mortgage on the property described in the petition, which note and mortgage were executed a short time subsequent to the note and mortgage upon which plaintiff predicates his causes of action.

The facts developed are that on or about August 28, 1933, defendants made application to the Home Owners’ Loan Corporation for a loan. At that time there were listed a claim against the defendants secured by a first mortgage and the claim of plaintiff secured by a second mortgage. The amount of defendants’ claim was listed as $12.73. In connection with the application for the loan, plaintiff submitted over his signature a statement of the balance due him as of January 22, 1934, on a mortgage, as $12.73. Upon the same statement and at the bottom thereof is this notation: “Paid Feb. 14, 1934.” Signed, “Charles W. Starks.” Plaintiff denies his signature but there is testimony to the effect that he wrote it and this signature was subject to comparison with his admitted signature on the same statement. At the time of the negotiations, plaintiff, as mortgagee, consented that,

“if said refunding can be consummated, to accept in full settlement of the claim of the undersigned any sum left after taxes, 1st mtge and expenses of loan are paid, face value of the bonds of Home Owners Loan Corporation, to be adjusted with not exceeding $50.00 cash, as provided in said act and thereupon to release all the claims of the undersigned against said property.”

It was further agreed that plaintiff consented to the payment of necessary expenses arising by reason of the transaction incident to the considering and -concluding of the loan. Said consent provided it should be binding for a period of 60 days from date. The loan was not consummated within 60 days from August 28, 1933, but was concluded on January 22, 1934.

After the 60 days had elapsed and a few days after the mortgage had been given to the Home Owners’ Loan Corporation by the defendants, the plaintiff over his signature by counsel wrote to the defendants saying that he understood that the loan had been granted and was now ready to be closed but that it would be necessary for defendants to call upon plaintiff; that his mortgage had not been cancelled and that whereas he was to receive the sum of $280.00 from the proceeds of the Home Owners’ Loan Corporation, he had been informed that he would only receive $12.73. Pursuant to this letter, defendants called upon plaintiff and as a result of the conference at that time the note and mortgage sued upon were made and delivered.

The defenses which we have heretofore set out were asserted by the defendants, Reeds, only. The defendant, Home Owners’ Loan Corporation, in its answer and cross-petition merely set up its note and mortgage, stated that it did not care to foreclose but if a sale of the premises were ordered it be declared to have the first and best lien and to have judgment for the amount due on its note.

We have been favored with a rather lengthy and complete opinion of Judge Reynolds who tried the case in the Common Pleas Court and have examined the journal entry which specifically found three defenses established:

(1) That the plaintiff is estopped from asserting his claim.

(2) That the plaintiff settled his claim.

(3) Fraud against the Home Owners’ Loan Corporation because of the concealment of plaintiff of the note and mortgage sued upon and that to permit collection and foreclosure would be contrary to public policy.

Appellant relies upon the proposition that the consent which he signed to accept $12.73 in full of his claim expired before the execution of the note and mortgage sued upon, that by reason thereof he was not bound by the consent; that the defendants with full knowledge of the facets signed and executed the note and mortgage sued upon and that the note was for a valid consideration, the sum then due on the original note to the plaintiff.

There may be a substantial question if the defendants, Reeds, could urge as a defense the failure of the plaintiff to observe certain rules of the defendant, the Home Owners’ Corporation, inasmuch as it does not assert such a defense. Then, too, there is a question if the rules had the effect of law. We do not believe that either question is controlling.

After the plaintiff had asserted over his statement that it was .correct and, as of January 1, 1934, there was due bim only $12.73 and that upon its payment he would release all claims against the property and thereafter, in February, 1934, accepted that sum and cancelled the mortgage referred to there was afforded the basis of estoppel which the trial judge found and support for the defense that there was no consideration for the note sued upon. Had the plaintiff acted upon his right to deny that he was bound upon his consent because of the 60 day provision, he would have better standing in Court. Instead, and with knowledge of the statement that had been made as of the amount due, he accepts it.

Then, too, the trial judge had the right to find that there was concealment amounting to fraud in the conduct of the plaintiff towards the defendants at the time they signed the note and mortgage sued upon. The letter of the plaintiff to the defendants was written a week after the note and mortgage had been given to the Home Owners’ Loan Corporation and the statement that the plaintiff was to receive $280.00 from the proceeds of the loan is not supported by the record.

With knowledge that he had secured a note and mortgage from defendants after the note and mortgage had been given to the Home Owners’ Loan Corporation and after the second note and mortgage had been given to the plaintiff, he accepted without explanation the $12.73. These facts in connection with the rather extended testimony of defendant, Landon Reed, as to what was said and representations made at the time of the conference when the note and mortgage sued upon were given, support the judgment in behalf of the defendants and sustain enough of the specific findings in the judgment entry to require an affirmance.

Plaintiff cites Weber v. Sternad, 140 Oh St 352, and the Dayton Mortgage Investment Co. v. Theis, et al., 62 Oh Ap 169, in both of which cases it was held that claims could not be enforced which were based upon secret agreements to pay sums in excess of the amounts which creditor claimants had agreed to accept from the proceeds of loans from the Home Owners’ Loan Corporation. Attempt is made to differentiate these cases because of the contention of appellant that the consent contract was not binding upon him because it had expired.

As we have held, upon all the facts appearing, the trial judge could have found that the plaintiff accepting the benefits of the consent contract after 60 days succeeding its execution yielded the right to urge that it was no longer effective. This being true, both cited cases have application and support the judgment of the trial court.

The bad faith of plaintiff in taking the $1100.00 note and mortgage from the defendants may be implied because of his failure to inform the Home Owners’ Loan Corporation of his transaction with the defendants and his acceptance of the $12.73, a sum that was not then due him, in addition to the amount represented by the $1100.00 note.

We do not find the errors assigned by appellant to be well made.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.


author: By BARTLETT, J.

text:
    BREWER d. b. a. BREWER’S MARKET, Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 186784.
    Decided April 30, 1953.
    Leonard J. Stern, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., Ralph N. Mahaffey, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

ORDER OF BOARD OF LIQUOR CONTROL (SUSTAINING ORDER OF THE DIRECTOR OF THE DEPARTMENT OF LIQUOR CONTROL, REJECTING APPLICATION FOR C-2 [CARRY OUT] permit), IS REVERSED AND THE APPEAL THEREFROM SUSTAINED.

The school authorities were notified but did not appear for the hearing before the Board.

Mr. N. J. Barrack appeared as Recreation Director of the City of Columbus pursuant to a resolution of the Recreation Commission requiring him to appear and object whenever it came to his attention that any application had been made for a permit from said Department within 500 feet of one of the city’s playgrounds. Mr. Barrack made no other objection to the issuing of the permit. He gave no other reason why the permit should not be issued. In fact he stated that he had not investigated the matters, nor made any study of the facts.

Sec. 6064-16 GC, requires written notice to be personally served on the authorities in control of the school, church, library or public playground, and an opportunity shall be provided “said authorities for a full and complete hearing before the Director of Liquor Control upon the subject of the advisability of the issuance of the said permit”; (where the permit premises are within 500 feet from the playground, etc.) (Emphasis ours.) It would appear, therefore, that more than just a formal objection is required; otherwise, there would be no occasion, for “a full and complete hearing.”

The Court is unable to find that the order of the Board of Liquor Control (sustaining the order of the Director of the Department of Liquor Control, rejecting application for C-2 [Carry-out] Permit), upon consideration of the entire record, is supported by reliable, probative and substantial evidence and is. in accordance with law; and, therefore, reverses said order, and sustains the appeal therefrom.

Entry accordingly with exceptions by counsel for the Board.