text:
    SELTZER, et v STATE ex READ
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10385.
    Decided March 6, 1930
    Baker, Hostetler and Sidlo, Cleveland, for Seltzer, et.
   VICKERY, PJ.

We approach the solution of the question involved in this case with considerable diffidence and hesitancy for, in order to protect the dignity and standing of a court, there must reside in the court the power to punish summarily for contempt committed within certain bounds, either in the court room itself or so near to the court room that it obstructs the administration of justice and it is necessary that a judge should have this power and, in such case, to sit himself, even though the contempt is directed against him; but usually those cases come within the immediate knowledge of the court and, without any information being filed, the court is fully cognizant of the matter and can summarily try and punish the offender. We have said this because there seems to have been a rumor abroad that in the instant case the Judge had exceded his powers in sitting in the case at bar and finding the parties guilty of contempt against himself. We do not think that the court exceeded his power in sitting in this case even though it was necessary to have an information filed before the parties could be charged with contempt but, inasmuch as it was necessary that written charges be filed, it would have been in much better taste and more in accordance with the present trend of public opinion and judicial decisions, to have referred the matter to another judge, and Judge Walther then could have been a witness against the men charged with the contempt, and the decision would be thus unswayed by personal feelings, passion or prejudice. We think the ends of justice would be better served if judges would recognize this more clearly and refer matters of contempt other than those committed in their immediate presence to .another judge for trial, and we hope that, in the interest of protecting the right of a judge to hear and punish summarily contempts committed in the immediate presence of the judge, judges will refer such contempts as those involved in the instant case to other judges, so that the court will not bring itself into disrepute by sitting in judgment in a case in which it is vitally interested. In the instant case we think that Judge W.alther did not exceed his powers, but that it was a matter of bad taste to sit in the case.

Having cleared away the premises, let us state that this action of contempt grew out of three editorials which appeared in three several issues of The Cleveland Press, a newspaper published and in general circulation in Cleveland, on the 11th day of July, 1929. The editorials are as follows:

“IF THIS be contempt of court
Sheriff, this racing mess is a ‘dreadful thing.’ You never said truer words.
You probably understand now what has happened. It is perfectly clear to us what has happened.
This is it.
The interests which forced you to rescind your statement that you would appoint a commission to clean up racing, .are the same interests which are behind Thistledown, xxxx xxxxxx
They had, as you now know, a judge up their sleeve who would do their bidding. They had that ace in the hole, xxxx xxxxxx
Then comes the judge, Frederick P. Walther, who has long taken orders from the interests which wanted Thistledown to continue.
This judge issues the most monstrous injunction order which has been put out from the bench in Cuyahoga county in our time.
He enjoins the sheriff of this county from doing his sworn duty of enforcing the law. If any act of a judge can drive him from the bench, this act of Walther’s should do it.
If this injunction can be sustained, almost any injunction to restrain an officer of the law from doing his duty can be sustained.
Almost any bootlegger, gambler, divekeeper, or what not, can get an injunction to keep the arresting officers from his door.
Of course, it won’t stand. Walther knows it, if he knows any law at all. The Thistledown gang knows it.
xxxx xxxxxx

(Here follows similar editorials as they appeared in later editions)

Apparently, so far as it appears in the record, Judge Walther had not seen or noticed these editorials until on the afternoon of the 11th while he was holding court in Room Fourteen, his regular room for the purpose of hearing cases, when the matter was called to his attention by a member of the Cleveland Bar, to-wit, J. Harold Read, who interrupted the proceedings in the trial of the case then being heard before Judge Walther and insisted on reading these three editorials, and he did read them in open court to Judge Walther. Whereupon, Judge Walther instructed Mr. Read to draw an information for contempt, basing it upon these editorials, which said information was drawn by Mr. Read .and service was made upon four members of the staff of The Cleveland Press, to-wit, the Editor, Louis B. Seltzer, the Editorial Writer, Carlton K. Matson, and two others whom it is not necessary to further mention, inasmuch as they convinced the court that they had nothing to do with the matter, and Seltzer and Matson assumed full responsibility for the editorials; and in so far as the information against the other two was concerned it was withdrawn and they were discharged.

After service was made upon the defendants Seltzer and Matson, and after they were arrested and brought into court, they plead not guilty. Whereupon Judge Walther appointed Wm. H. Boyd, Luther Day, John A. Cline and J. Harold Read to represent him in the trial of the action. Had Judge Walther sought, he could not have chosen a more capable set of lawyers at the Cleveland b,ar. Mr. Boyd however, was otherwise employed and did not accept the appointment. Mr. Day had an engagement out of town and he was excused from accepting the appointment. Mr. Cline, however, accepted the appointment, as was his duty, being a member of the Cleveland Bar and an officer of the court, as did Mr. Read, and thereupon an amended information was filed. The court in his generosity not only appointed four lawyers to represent himself, but likewise appointed Mr. Newton D. Baker, Mr. Joseph Hostetler and Mr. Thomas Sidlo of the law firm of Baker, Hostetler and Sidlo, to represent the defendants. However, all three of the gentlemen last named, inasmuch as they had been retained by the defendants, declined the appointment but, notwithstanding such declination, the appointment was permitted to stand by Judge Walther and so the record shows.

It was very lucky for the Court of Appeals that the gentlemen last named did not accept the appointment of Judge Walther because, on the eve of trial in the Court of Appeals Mr. Cline, — and we want to say in this connection that Mr. Cline’s connection in this case from its inception to its determination, so far as his relations go, was lawyer-like in every respect, and also that of Mr. Read, — instructed this court by letter, notifying us that he had been instructed by Judge Walther to file no brief and not to appear in the case,— and subsequently we have received the same sort of letter from Mr. Read, although it was after the hearing in this court, — Judge Walther, I believe, stating that he deemed it unethical for him to prosecute the persons or to aid the Court of Appeals in arriving at a decision in the case, — I say, it is important to remember that Mr. Baker, Mr. Hostetler and Mr. Sidlo did not accept the appointment of Judge Walther, because had they done so, Judge Walther could have terminated their relation with this lawsuit the same as he terminated the relation of Mr. Cline and Mr. Read, and then Mr. Seltzer and Mr. Matson having been convicted would have been unable to have the assistance of the lawyers that defended them in the action below and, perhaps, the order of the court might have gone even so f,ar as to direct the counsel for the plaintiffs in error to dismiss the petition in error and then, of course, the judgment of the court below would have stood and there would have been no help but that Mr. Seltzer and Mr. Matson should have paid Five Hundred Dollars each and have spent thirty days in jail.

We cannot quite understand how it was more unethical to present the case in a court that had no bias or prejudice in the matter and thus enable that court to arrive at a just conclusion, than it was to appoint lawyers and .to sit in the trial where the Judge w,as the aggrieved party. But .that is really aside from the purpose. However, we have heard a great many contempt cases and we never thought that it was undignified or unethical for a Common Pleas Judge, who had sat in any such case and found the parties guilty of contempt, to permit the lawyers that represented him in such a hearing to appear in the Court of Appeals, nor do I know of a case where a judge refused to let the reviewing court have the benefit of the advice and counsel of the lawyers that tried the case before him. I do know that in all courts from the lowest to the highest, to-wit, the Supreme Court of the United States, where the judge or tribunal that has been the subject of contempt, and where the judge or tribunal has found the parties charged with the contempt guilty, the judge or tribunal finding the party guilty of contempt has been represented in the reviewing court. One can only say that, had Judge Walther exercised the same degree of care for ethical conduct in the court below that he has invoked in this court, there .would not have been so much made, or to be made, out of this case, and we cannot help but think that the standing of the courts would have been better; that is, when this information was prepared and the parties were brought into court, if Judge Walther had referred the matter to one of his associates upon the bench and had given his statement as a witness rather than as a judge from the bench; but that is only a matter of taste, as we have already indicated.

Now the graveness of this case must be manifest to everyone. The editorials are in a measure vicious editorials but they are shaded down as the different editions appeared, — the first of the three above quoted being the harshest. They were in the nature of editorials addressed to the sheriff of Cuyahoga County, urging him to perform his duty; and that was brought about by reason of what seemed to be a vacillating condition on the part of the sheriff as to whether he would or would not allow horse racing where the the contribution system was to be used within the County of Cuyahoga, which ha'd been a matter of discussion for days and perhaps weeks. The sheriff apparently stood upon one side and then upon the other and then, perhaps, upon neutral ground, and the editorials apparently were addressed to him.

Now a singular situation has arisen. This court, in the case of Euclid Kennel Club Company vs. E. J. Hanratty, decided September 6th, 1927, affirmed a judgment entered by Judge Weygandt of the Common Pleas Court holding that the contribution system as proposed to be carried out, was illegal and that it was gambling and in violation of law. Judge Weygandt rendered a very able opinion holding this view and the case was ably argued in the Court of Appeals, and we affirmed the judgment of Judge Weygandt. How anybody can for a moment beguile himself into believing that by the contribution system, so-called, he can evade the gambling statute, is beyond the comprehension of the writer of this opinion. It is plainly an ingenious or rather a disingenious method of evading . the statute by calling gambling by some other name. The parties who had become contributors of money on the outcome, or as has been naively suggested in the petition, “in the ultimate success or outcome of the horse,” were just as much betting upon the success of that horse as they would have before any gambling statute was ever heard of.

I suppose the greatest evil that confronts our people to-day-is the habit of gambling. It is the forerunner of crime. It is the breaking down of the morals of the people and many a young man, — and old man too, for that matter, — has been guilty of embezzlement and theft to cover up his shortage that he has lost on betting or gambling, ,and it was with that in mind that the legislature passed the anti-gambling statute, and it has been the aim of those who seek to profit by the weaknesses of their fellowmen to evade the enforcement of that statute, and one must say that the men who have those things in charge ,are very resourceful and have political influence, and apparently all of that influence and adroitness was used upon the sheriff to prevent him from enforcing the statute. As already stated, the sheriff had vacillated from one post to another, and we learn from this record that, on the 10th day of July, at two o'clock in the afternoon, a series of races were to be held at the Thistledown Track, and the contribution system was to be used, and apparently the sheriff had been told by the very able counsel connected with the Prosecutor’s office that such a system was illegal and was prohibited by law and, as already stated, the Common Pleas Court and this Court had so held. Apparently those promoting the races had information that the sheriff had been led to see through the thin veneer of the so-called contribution system, and that he was going to call it gambling and was going to perform his duties and so, on the 10th day of July, although this thing had been brewing ■ for days and perhaps weeks, a lawyer appeared in court room number one, where Judge Walther was holding court temporarily to fill the assignment of some other judge while he was away a day or. two, at twelve minutes before twelve o’clock, and Judge Walther was asked how long he expected to remain in court, and he said that he had an engagement to lunch with his daughter, who was in the court room, and that he would not stay later than twelve o’clock exactly. He was informed that a lawyer by the name of Felsman was drawing a petition to enjoin the sheriff from interfering with the races on the Thistledown Track and that he would have it in before twelve o’clock and asked Judge Walther to wait. Before twelve o’clock, perhaps twelve minutes before, Mr. Felsman appeared together with his client Mr. Strong, who likewise was a lawyer at this bar, with a petition praying for an injunction to prevent the sheriff from confiscating the property to be used on the track, and to prevent the sheriff from stopping the races, or interfering in any way with the races being run under cover of the contribution system, together with other allegations in the petiton. Whereupon Judge Walther made some inquiries and said he would not grant the injunction in the form it was asked for in the prayers, but that he would grant the injunction if they would add certain things to three of the five prayers in the petition and, although the lawyers protested, they could not get an injunction any other way and so they finally wrote in what Judge Walther requested in three prayers of the petition, which are the most peculiar things that one ever saw in a petition. It then purported that an injunction had been issued and yet it left it with the executive officer of the County, the sheriff, to determine whether the acts to be done were legal or illegal. If they were illegal, then the sheriff was not to be interfered with; and if they were legal, then the sheriff was enjoined from interfering. It would be difficult in the annals of legal history to find such another order of injunction.

With all the • astuteness and learned ability of Mr. Baker only one case which is at all parallel to the instant case has been found, and that is the case of Charles M. Oliver, Respondent, vs. Allen C. Or-rick, et al, appellants, 220 Missouri Appeal Reports page 614; 288 Southwestern, 966, which differs somewhat from the instant case, but is more clearly akin to it than any other case to which we have been referred or, judging from the statement of Mr. Baker, that he was able to find.

' Now this was the situation on the 10th. Fortunately for Cuyahoga County it had a man who had been on both the Common Pleas and the Court of Appeals benches as the first assistant prosecuting attorney, Mr. Lieghley, and he at once saw through the so-called injunction and told the sheriff that the injunction was not worth the paper upon which it was written, and that he should go on and perform his duties, which the sheriff did, and went to the race track and closed up the races and all the horses and paraphernalia used in racing and betting was removed from the tracks. “They folded their tents like the Arabs, and quietly stole away.”

Now this was the situation when the editorials, which were the basis of this contempt proceedings, were published by The Cleveland Press. The case, so far as Judge Walther had anything to do with it, was a thing of the past and was done away with. The answer day for the defendant sheriff was a time several days after the closing of the proposed racing meet. Nothing else was ever done in that lawsuit; there was nothing else to do. The sheriff, if he was enjoined, treated the paper that had been served upon him as of no importance, as a mere blank piece of paper and, ignoring it, performed his duties.

Now the thought in the mind of the editor of the Press and of the editorial writer of the Press evidently was that here was a situation which called for strong remarks, — and one must admit that in the editorials they gave utterance to strong remarks, — but when one thinks of a judicial officer exercising the strong power of injunction to prevent an officer, elected and sworn to enforce the criminal law,— I say, when one thinks that a court grants an injunction against said officer performing his duty, one cannot help but think that such actions did call for strong remarks. I have been on the Common Pleas bench and I was asked many times to grant injunctions against the chief of police ,and others from enforcing the law. I always refused. There is no occasion to grant an injunction against an executive officer from enforcing the law that he is sworn to enforce. If the law is invalid, or if the parties arrested are not guilty of the violation of any law, they have a clear and adequate remedy at law; and there are but very few cases in the judicial history of the world, especially in the United States, where courts have transcended their power and issued injunctions to prevent the enforcement of a criminal statute. Our courts refuse to do it because the complainant has a clear and adequate remedy at law. Where there is likely to be a multiplicity of arrests and where there is a question as to the legality of the law, a court might grant an injunction to prevent a multiplicity of suits and arrests while it tries out one case to see whether the law is valid or otherwise. But beyond this, it is hardly conceivable that a court of equity should be called upon to issue such injunction.

It is said in this case that the Judge did not intend to issue any injunction; that he intended to make it appear only that an injunction was issued. Was this to befuddle the sheriff so that he would look at the heading of the petition and the prayer enjoining him, and then not molest, and rest upon the assumption that he had been enjoined? Was it a subterfuge, or was it a genuine injunction? We have no hesitancy in saying that, under the authority of Oliver vs. Orrick, supra, the act of the sheriff in going out and stopping the races and confiscating the property that was to be used in betting could not be held as being in contempt of the order issued by Judge Walther. The petition was so vague and so indefinite, leaving the decision of whether the acts were legal or illegal up to the sheriff, and it reminds one of an old pioneer who lived in the forest, in which forest roamed his cattle and likewise roamed deer; and so, when the pioneer would see something stir in the bushes, he would get his gun and aim it so as to hit it if it were a deer and miss it if it were a cow. So, apparently, in this case this injunction was aimed to enjoin if he interrupted the things that were legal, and not to enjoin if he interfered with things that were -illegal, and the sheriff was to be the sole judge of the legality or illegality of the things that lie was to stop or not to stop.

With such an injunction the one violating it could not be found guilty of contempt. Then the question follows whether the one who criticised such an order — no matter how severe the criticism might be— could be found guilty of contempt. If it could not, then no matter how annoyed and hurt Judge Walther was, no matter how lacerated his feelings that made him sick and unable to transact business, it would not be contemptuous. He might, of course, if he were libeled or slandered, have his action against the newspaper for such recompense as he might be entitled to by reason of such libel or slander.

We live in an age of pitiless publicity! We live in an age when freedom of speech and freedom of press are paramount issues! People should be allowed -to say what they please and newspapers should be allowed to print what they please, always making themselves liable under the law of slander or the law of libel, and usually this is penalty enough to keep persons from transcending the bounds of decency and proper criticism.

While courts must be protected in the administration of their judicial duties, yet courts are filled with men who are only human and they are subject to all the weaknesses and variable temperaments that beset the ordinary man, and because a man gets on the bench does not necessarily mean that he has changed his temperament or his liability to get excited; and if he can set himself above the rest of mankind and sit in judgment on grievances in which he is the injured party, we are establishing a dangerous precedent and I say, as I said before, courts should be very loath to transcend the rules allowed in such cases.

Now in the instant case one can readily understand how Judge Walther might have been hurt to the quick, might have been agonized in his mind by the criticisms that were made in the editorials in question, for we say they were severe, but perhaps no serverer than the circumstances warranted considering everything surrounding the entire transaction of which the public was perfectly cognizant for days and days before. We think that this contempt was not committed in the presence of Judge Walther, nor was it committed so near to the court that it interfered with the administration of justice. Judge Walther says in his statement that “it disturbed him and made him nervous, restless, agitated and sleepless.” I can quite understand how that might be, and how that might interfere with the orderly administration of justice by Judge Walther; but that is not what the law means by interfering with the administration of justice. If Judge Walther would have anything else that would upset him so that he would be nervous, agitated, restless and sleepless and thus interfere with the performance of his official duties, — and many such things do occur in men’s lives,— yet no one would think that was interfering with the administration of justice in such a way that the man who caused this nervous, agitated, restless and sleepless condition would be guilty of contempt.

No, it must be interference with the administration of justice! The actions which are called contemptuous must be committed within the court room or so near to the court room that they interfere with the administration of justice.

In this case, so far as this action was concerned,- Judge Walther’s connection with it had ceased. He issued a temporary restraining order, such as it was, and then he went to his own room, and in all human probability he never would have had anything more to do with the case, but the record shows that, on the teñth this case became nothing more than a moot case, and the editorials of the Press referred to transactions that were past and, so far as Judge Walther was concerned, however aggrieved he might be, whatever claims he might have by reason of a libel against the Press, it did not constitute contempt of court within the meaning of the statute. The act was not committed in his immediate presence and it was not committed in the court room. He admits that in having the information drawn and the parties arrested and brought into court to answer to that information. Had it been a matter which he could have treated summarily, he need not have done either of those things. He could have written on his calendar an order of arrest for these men, without serving them with a copy and he could have brought them into court and summarily punished them. For example, if Seltzer and Matson had stood up in the court room and stated to Judge Walther personally wh,at they had written in the first of the three editorials, Judge Walther would have been perfectly within his rights and wjthin his power to have written on his calendar contempt charges, and could have had the men brought before him and could have summarily sent them to jail or fined them within the limits of the statute. But when ■ he filed, or caused to be filed an information when the criticism was called to his attention by a member of the bar, he admitted that it was not a summary contempt; that it was not a matter which he could punish summarily for contempt; and then, the best that could be done with this matter, so far as he was concerned, — for the case was already disposed of; it was no longer a pending case so far as Judge Walther was concerned, — all that he could have done was to have pursued his remedy like any other man might have against the Press, and that was to sue it for libel, if it constituted libel.

I have been on the bench a great many years and I find that many things are said which tend to ruffle a person and to agitate him, but it is better for a judge to be ruffled and agitated than it is to close the mouth of the speaker to the public, for while it may transcend good taste and decency at times, usually the reaction is •great upon the medium that has uttered uncalled-for criticisms and unjust statements; and the man against whom they are leveled passes unscatched if the criticisms are unjustified and he pays no attention to them. In other wordss, it is better that the Press be free, that speech be free, that the right of assembly be free, that the right to air our views be free, than it is that they be uttered in fear and trembling even though oftentimes they transcend the bounds of decency and of the rights of the individual assaulted. A free people must have a free press and they must have the right to speak freely their thoughts. They must have the right to meet in assembly and to discuss questions. Public men must always remember that they are subject to criticism, and when a public officer does an unworthy act that is uncalled for and unjust, he cannot expect other than to be criticised by the press and by the thinking people of the land, and the less he says about it, the better it will be for him and for the public. While Mr. Read thought he was doing Judge Walther a kindness in calling his attention to these editorials, the writer of this opinion thinks he did him the greatest unkindness that one man can do to another, for had Judge Walther ignored and forgotten about those matters the public would have soon forgotten it likewise. He put in concrete form what otherwise would have been evanescent. What otherwise would have been written on water, he has written in marble. It was, therefore, no kindness to Judge Walther to have caused him to institute these proceedings nor to have called his attention to it.

I cannot help but think that Judge Walther now realizes that, and that may have been the reason why he declined to have briefs filed and why he refused to permit the able counsel that' he appointed to assist us in arriving at our conclusions. I cannot help but think that Judge Walther had come to the conclusion that he probably was in error and that he had acted hastily. If that is so — and I do not know whether it is or not — there was but one thing open to Judge Walther, and that was to instruct his counsel to come in the Court of Appeals, or to come himself and frankly state that he had made a mistake and ask the court to reverse the judgment rendered in his court and to discharge the plaintiffs in error. This was not done and so we had only the aid of Mr. Baker, and I do not say “only” in any invidious sense, because there is nobody better able to present the truth to the court nor more willing to aid the court, nor more fair to the other side of a lawsuit, than Mr. Baker, and that was demonstrated throughout this whole case.

We think the court erred in sitting in this case and in hearing the evidence, such as it was, for an information having been filed, he could have plainly sent it to another judge. We think he was not in a fit condition of mind to give an unbiased judgment and to weigh the matters with which he had to deal; that he lost sight of his position as a judge and sought to reek vengeance upon the plaintiffs in error because they had dared to criticise him in his official capacity.

I do not mind saying that the criticisms were unduly harsh. They were of a nature to incite most any man, and under those circumstances he ought to have consulted with the lawyers whom he after-wards appointed, before having rushed into an action from which he could not afterwards withdraw. Of course, had this been committed in the presence of Judge Walther, we admit that he had the power, the right and it was his duty to sit and punish the offender summarily for the contempt committed in his presence, nor do we have any sympathy with the cry that such contempts must be sent to other judges. To deny that power to a judge destroys, the very efficacy and power of the court, which must have power to enforce obedience and order in his court and, if it is necessary to summarily punish for contempt for that purpose, he can do so; but that cannot be confused with the idea of having personal vengeance upon the part of the judge to gratify a whim or spite or an angry feeling he may have for persons who insult him outside and away from the court.

In this connection it is well to quote from the great bard of Avon:

“O’ it is excellent
To have a giant’s strength; but it is tyrannous
To use it like a giant.”
And again:
“And earthy power doth then show likest God’s
When mercy seasons justice.”
And Beaumont and Fletcher say:
“Tis Godlike to have power, but not to kill.”

So we think that the court erred in these respects: first, that these men did not and could not have had a fair trial, the court being guilty of abuse of discretion in hearing the case; we think the court erred likewise in the rendition of the judgment in this case, for he sent these men to jail for thirty days and fined them Five Hundred Dollars, when under the statute under which he acted the limit of his right to imprison was ten days in the county jail. That could, of course, be rectified, by sending the case back to Judge Walther for a modification or re-sentencing. Third, we think the court erred in treating these editorials as contemptuous in that he regarded the action as pending before him and the contempt committed as tending to interfere with the administration of justice. We think, so f,ar as Judge Walther was concerned, that there was no pending action; that the whole matter had ceased and that he was no more than a stranger. We think, furthermore, that the so-called injunction was nothing more than a piece of paper that had no judicial order upon it whatever, and that nobody could be guilty of contempt for violating that “in-j unction” and, as a corollary from that nobody could be guilty of contempt in commenting upon that so-called order and in characterizing it in the strongest sense that it could be characterized. It was no order; it was nothing but a blank piece of paper. Whether it was designed for the purpose of befuddling the sheriff we do not know. Many sheriffs would have been befuddled with such a writ, but fortunately the sheriff had good legal advisers who told him plainly and succinctly that the order was not worth the paper upon which it was written, and if the order was not worth the paper upon which it was written, then how could a comment, however severe, upon the paper be a contempt? True, the comments might be libelous; true, they might subject the utterer of them and the paper that carried them to a suit for slander or libel and recovery of damages, but that is aside from the question.

We think from this whole record that the judgment of the court was not supported by sufficient evidence; that it was contrary to the evidence and that there was no evidence in this record to warrant the judgment of the court and, therefore, the judgment of the court will be reversed and the defendants Louis B. Seltzer and Carlton K. Matson discharged.

Sullivan and Levine, JJ., concur.


source: Caselaw Access Project

author: LEVINE, J.

license: Public Domain

text:
    COUNTS v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10311.
    Decided Feb. 3, 1930
    Stanton & Connell, Cleveland, for Counts.
    Ray T. Miller, Pros Atty, Cleveland, for State.
   LEVINE, J.

There is no evidence of a direct nature showing that the accused signed the document. No handwriting expert was introduced seeking to connect the writing of the name of John B. Molnar with the accused. The accused is a practicing attorney of many years standing and his signature appears on a great many pleadings which were filed in the various courts. It would seem like a rather simple matter to establish the identity of the particular writing by comparing it to other writings admittedly that of the accused. The state introduced no such evidence. The prosecution relied instead upon circumstantial evidence tending to show that the accused signed the document. It resorted to a process of elimination in order to establish its case.

It is pointed out by the State that only three people handled the petition before it was filed, to-wit, a Miss Miller, the stenographer, Mr. Counts, the accused, and a Mr. Gobozy. It is agreed that Miss Miller did not sign Molnar’s name; Gobozy denied having signed Molnar’s name. It is argued therefore, that by this process of elimination it leaves Mr. Counts as the only one who might have signed Molnar’s name and of course it is conceded that Molnar did not sign it. The accused denied that he signed the name of Molnar upon the petition. He stated that he had requested one Gobozy, an attorney, to use his name upon the petition but Gobozy refused and suggested the use of the name of Molnar. Thereupon he, Counts, left the prepared petition with Gobozy; that later Gobozy returned the petition bearing the forged name of Molnar, to Counts who subsequently filed it.

In view of the flat denial of Counts of the allegations in the indictment that he forged the signature of Molnar, it became incumbent upon the State to introduce evidence at least tending to show that the signature was in the handwriting of the accused.

We are not concerned with the motives of the accused in seeking the signature of another attorney upon the petition and we may well agree with the prosecution that Counts was actuated by some chicanery in seeking to hide his own identity; but the indictment charges a substantive offense, namely, that he, Counts, signed and forged the name of John B. Molnar and this burden which rests upon the State is not fulfilled in our opinion by merely showing that only three people, including Counts, handled the petition before it was filed, and that two of the three having testified that they did not sign it, it leaves Counts as the only remaining one who might have signed it. That does not necessarily follow. Some one else might have signed it either at the request of Counts or without such request. Even- if the accused had requested some one else to forge the name of Molnar he would not be guilty under the allegations of the indictment. There is a clear course open to the State to prove the allegations of the indictment, namely, the introduction of a handwriting expert who could use other signatures admittedly that of the accused, found upon many pleadings in our courts, by way of comparison with the signature which constitutes the basis of the indictment. Upon this essential allegation of the indictment, namely that the accused forged the name of John B. Molnar, there is no evidence of a substantive character substantiating the same, under the rules of the criminal law which requires proof beyond a reasonable doubt.

Another assignment of error which in our opinion deals with the substantial rights of the accused, is the admission of a transcript of the journal entry in the Kemppel divorce case which is the case in which the petition was filed. The prejudicial matter found in the transcript which is State’s exhibit 2, shows that after a decree for divorce was signed, upon the petition bearing the alleged forged signature, a motion was filed to strike the journal entry from the files; ■ that the court investigated the latter and then under date of Jan. 26, 1929, made the following entry:

“To court: The motion is heard and submitted and the transcript of testimony ordered by the court and to transmit to the prosecutor of this county.”

The prosecuting attorney in his argument made reference to this entry in the following language:

“And according to that record we have this law suit that we are trying here today. You read the record there and find an order from the Court turning the whole thing over to the prosecuting attorney. The whole record over to the prosecuting attorney — ”

The introduction of the transcript was strenuously objected to, which objection was overruled by the trial court and exception duly taken.

The argument of the prosecutor in referring to the said transcript was likewise objected to and the objection was overruled.

The transcript submitted in addition to the entry quoted, shows that the court found that the affidavit for service by publication was false and fraudulent. In our opinion this was highly prejudicial and was erroneously permitted in evidence.

There is one question in this case, namely, did the accused forge the signature of John B. Molnar to the petition for divorce? The fact that there was improper practice as to some other phase of the case does not bear upon that question. Then its introduction in evidence would have no other influence upon the jury than to arouse passion and prejudice. If the accused did in fact forge the signature of John B. Molnar, the State still has the opportunity to orove it by a handwriting expert.

Upon the record we are of the opinion that substantial error was committed directly affecting the rights of the accused.

Judgment of the Common Pleas Court is therefore ordered reversed and the case remanded for a new trial according to law.

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


text:
    SMITH v N Y C Rd Co SROKA v GREEN CAB CO GREEN CAB CO v SROKA, et
    Ohio Supreme Court
    No 21993. No 22129. No 22147.
    Decided Mar 12, 1930
    Decided Mar 12, 1930
    Decided Mar. 12, 1930
    Kinkade, Jones, Matthias, Day and Allen, JJ., concur.


author: WILLIAMS, J.

text:
    U S FIDELITY & GUARANTY CO v DECKER, Admr.
    Ohio Appeals, 6th Dist, Lucas Co
    No 2228.
    Decided Dec 9, 1929
    Tabor, Chittenden, Daniels & Cochrane, Toledo, for Guaranty Co.
    Ralph E. Zeigen, for Decker.
   WILLIAMS, J.

It has frequently been held that money so received is not assets in the sense that it is to be administered and distributed like ordinary monies of the deceased.

Steel, Admr. vs. Kurtz, et al., 28 Ohio
St., 191; Wolf, Admr. vs. Railway Co.,
55 Ohio St., 517; May Coal Co. vs.
Robinette, Admr., 31 Ohio App., 113.

These cases, however, are not determinative of the question presented in the instant case.

In cases where there are no general assets of the estate but there exists only a right of action for wrongful death, by the great weight of authority, an administrator may be appointed to enforce the right.

Jordan vs. Railroad, 1 L. R. A., N. S., 885.

Under the provision of 10770' and 10772 GC. the action is brought in the name of the personal representative of the deceased person and if settlement is .made without suit it is made by the personal representative with the consent of the court appointing him, and the money paid to satisfy the judgment or in settlement is received by the personal representative and distributed to the beneficiaries entitled thereto by order of the court making the appointment of the personal representative. It has generally been held, under statutes of other states, that conversion of such fund and refusal to account therefor constitutes a breach of the administration bond.

Coltra vs. People, 53. Ill., 224;
Vukmirovich vs. Nickolich, 143 N. W.,
226; Patterson vs. Tate, 213 S. W. 981.

There is some authority to the contrary. In view of the fact that the conclusion reached must depend largely upon the statutes in force in the jurisdiction where the action is brought, we have not attempted to collect all .the cases.

Under the statutes of Ohio regulating the conditions of the bond and those establishing the right to bring an action for wrongful death, we are of the opinion that the conversion of the assets received in settlement of a wrongful death claim and failure to account and distribute said fund as ordered by the court, constitutes a breach of a bond given pursuant to the statutes.

In accordance with provisions of 10618 GC. the bonds are conditioned that the administrator should render upon oath a true account of his administration and pay any balance remaining in his hands upon the settlement of his accounts to such persons as the court appointing the administrator directs. The administrator received the funds in question as administrator and he could not make a complete account of his administration without accounting for such funds, and the provision requiring him to pay over the balance remaining in -his hands upon the settlement of his accounts applies to the fund so received. It is true, the administrator holds the fund so received as trustee for the beneficiaries entitled thereto, but he is also trustee in his capacity as personal representative. It was the apparent intention of the General Assembly to designate the administrator as the one in whose name the action should be brought and as the one who should receive and disburse the funds, because the administrator is required to give bond and account. We think a common sense construction of the statutes requires the holding that a failure to so account and pay over monies received in settlement of a death claim, when required by law or lawful order of the court so to do, constitutes a breach of a bond conditioned according to the statutes.

The surety in the instant case was a paid surety and the rule of strict construction ordinarily invoked in favor of a private, volunteer surety does not apply.

Indemnity Co. vs. Granite Co., 100 Ohio St., 373.

Plaintiff in error relies upon the case of Murphy vs. Dorsey, Admr., 13 C. D., 157. The funds involved in that case did not arise out of a right of action for wrongful death, and therefore it has no application to the instant case.

Was the action below properly brought in the name of the administrator de bonis non as plaintiff?

In the case of Vukmirovich vs. Nickolich, supra, the court had under review a judgment rendered in an action brought by an administrator de bonis non to recover for conversion and misappropriation by his predecessor of funds paid in satisfaction of a claim for wrongful death. The court in its.opinion at page 27 uses language which is instructive in the presefit inquiry, and we quote:

(Here follows quotation)

We ,are strengthened in our position, moreover, by statutory enactment. Under the provisions of 10634 GC, the administrator de bonis non is given express power to maintain a suit against a former administrator and his sureties on the administration bond for all damages arising from the • maladministration or omissions of the former administrator. The administrator de bonis non may therefore maintain the action for damages for breach of the bond of his predecessor.

The court below did not err in overruling the demurrer and the judgment of the court will therefore be affirmed.

Richards, J., concurs. Lloyd, J., dissents.


text:
    BALTIMORE & OHIO RD CO v BROWN, Admr.
    Ohio Appeals, 6th Dist, Wood Co
    No 456.
    Decided Nov. 25, 1929
    N. R. Harrington, Bowling Green, for Rd Co.
    Meek & Meek, Toledo, for Brown.
   WILLIAMS, J.

Plaintiff in error claims that the court erred in refusing to direct a verdict, first because the evidence does not show that the defendant was' negligent in failing to keep the crossing in a reasonable condition of repair, and second, that such verdict should have been directed because of the contributory negligence of the decedent.

There was evidence tending to show that the emergency brake was not applied until just as the locomotive hit the automobile ,and there is also testimony to show that as the car stalled on the track the train was just coming out of Hull Prairie, which was distant about three-quarters of a mile from the crossing and that the train in fact did stop in about, 1200 feet.

At defendant’s request the court submitted to the jury the following interrogatory:

“Did the engineer discover or in the exercise of due care could have discovered that the car in which Leona Brown was riding was stalled upon the track in time to stop the train at the speed at which the train was going, so as to avoid the collision?”.

The jury answered this interrogatory in the affirmative and there was evidence which warranted the jury in so doing if it saw fit. It is thus evident that the jury found the defendant guilty of negligence regardless of the condition of repair of the crossing.

It would have been error for the eourt to direct a verdict for the defendant on the ground that the evidence did not tend to show actionable negligence on its part.

It is claimed, however, that plaintiff’s decedent was herself guilty of contributory negligence as a matter of law. With this contention we can not agree. She was a guest riding in the seat with the driver. If the jury found that the driver was guilty of negligence in going upon the track, that negligence would not be imputed to a guest, under the law of Ohio, and while she was bound to exercise ordinary care for her own safety at all times, the extent to which she could, in the exercise of ordinary care, rely upon the driver and the extent to which she should watch for an approaching train and warn the driver in the exercise of such care, was a question of fact for the consideration of the jury. Whatever the skill or experience or knowledge of the driver may be, there is a chance that to speak to him or advise him what to do may involve more danger than to maintain silence and not interfere. The inference might arise in the instant case that the automobile stalled on the track and that if it had not done so it would have passed over in safety. If the automobile did so stall, it could hardly be said that the driver was guilty of negligence himself in going upon the track, for if the train was in fact about three-quarters of a mile away he could have gotten over. If the driver were not himself guilty of negligence in that respect, it could hardly be said that the guest was. As to the action of the plaintiff’s decedent after the car got upon the track and stalled, as claimed by plaintiff below, evidence was adduced by the plaintiff tending to show that she was endeavoring to get out of the car and the evidence is such as to give rise to the inference, if the jury saw fit to draw it, that the door stuck and she was unable to get out. We think the question whether plaintiff’s decedent was guilty of Contributory negligence was a question of fact for the determination of the jury.

The fact that the plaintiff’s decedent was familiar with the crossing was a fact properly submitted to the jury, but we do not believe that it is of controlling importance on the question of contributory negligence as a matter of law.

It follows from what we have said that the court did not err in refusing to direct a verdict.

Plaintiff in error claims that the court erred in giving plaintiff’s requests to charge before argument. There were five such requests and all of them, with the exception of No. 1, accurately state propositions of law germane to the issues involved. No. 1 reads as follows:

“I charge you as a matter of law, that Section 8843 of the General Code of Ohio provides, in part, as follows: “Companies operating a railroad in this state, shall build and keep in repair good and sufficient crossings over, or approaches to such railway, its trains, side-tracks and switches, at all points where any public highway, street, lane avenue, alley, road or pike is intersected by such railroad, its tracks, side-tracks or switches.”

This request raises the question whether or not, in failing to keep its crossing in repair in accordance with Section 8843, GC., a railroad company is guilty of negligence per se. We hesitate to give our approval to this request. On the other hand, we do not pass directly upon the question for the reason that we do not feel that it is squarely raised by the record. There was no objection or exception noted at the time these requests were submitted to the jury, but the record discloses that they were first read and then several requests of the defendant were read to the jury, and after the reading of the latter the following statement of counsel for the railroad company appears: “Note exception to plaintiff’s requests”. The exception was to the giving of the entire series and was too general in its terms to make it available in a reviewing court. Coal Mining Co. vs. Admr. of Clay, 51 Ohio St., 542.

Several interrogatories other than the one above quoted were submitted to the jury and were answered “we do not know”. The court, in charging’the jury, had instructed it that it might answer these questions “yes” or “no” or “we do not know” as the case might be. Under 11463 GC., the court is not required to submit interrogatories at the request of a party unless- questions are propounded which require answers which establish ultimate facts and not merely evidential facts, or which establish probative facts from which an ultimate fact may be inferred as a matter of law. Mellon vs. Weber, 115 Ohio St., 91. The interrogatories which were answered “we do not know” were all of such a nature that the trial court was not required to submit them to the jury. All the questions were such as could be answered categorically and whether answered in the affirmative or negative, the answers would have no controlling effect upon the rights of the parties, nor could they control the general verdict.

The court in its general charge did not instruct the jury that a violation of 8843, GC., in failing to keep the crossing in reasonable repair would constitute negligence per se, and a close examination shows that the principles given to the jury in the general charge are in accordance with established law.

The verdict is not manifestly against the weight of the evidence and we do not find error in the record prejudicial to plaintiff in error. For the reasons given the judgment will be affirmed.

Lloyd and Richards, JJ., concur.


author: SULLIVAN, J.

text:
    GUSTAFSON v CLEVELAND (city)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10529.
    Decided Dec 9, 1929
    A. P. Gustafson, Cleveland, for Gustafson.
    H. H. Burton and Edward J. Schweid, both of Cleveland, for City.
   SULLIVAN, J.

A demurrer to the supplemental petition raises this question and it is our holding that this question is practically decisive of the entire case, because it is obvious from the record that the supplemental petition creates and organizes a new case from which no appeal has been taken because its existence came into effect only after an appeal from the Common Pleas court to this court.

We think the holdings are universal in Ohio that in order to exercise Appellate jurisdiction, the Court of Appeals must have before it the suit commenced in the court of original jurisdiction and if it is sought by amendment to substitute a new cause of action and to create new litigation that it is in violence to the law which has been laid down by numerous authorities.

Under the procedure in this state with respect to a case in chancery upon appeal, the decree of the court of common pleas is thereby suspended and then and thereby the whole case, when the procedure upon appeal is completed, is transferred to the Court of Appeals and this court has the same jurisdiction over the subject matter of the .action and the same control over the pleadings and issue and service of process as well as the ultimate decision in the case which adhered to the court of common pleas. Thus it follows that an amendment or a supplement to the original cause which substitutes another cause than that originally sued upon, does violence to the procedure upon appeal because the case in the common pleas court as originally tried is not in the Court of Appeals but a new one as if the Court of Appeals was entertaining original jurisdiction instead of Appellate jurisdiction. This we think is not only elementary law but it is emphasized in 2 Ohio Jurisprudence, Sec. 14, Note 14, and in Barnes vs Christy, 102 OS. 160.

It is also claimed that the demurrer should be sustained on the ground that, there is an adequate remedy at law. We think this claim is well founded. This is a court of equity and the case is one in chancery and if there is an adequate remedy at law the relief sought by injunction cannot be granted. The Legislative acts of a municipality even though tainted with unconstitutionality must not be enjoined in a court of equity because it is an interference with the proceedings of the municipality in matters resting within their jurisdiction or control and over which they have a right to exercise a discretion. When municipal ordinances have been enacted, proceedings for their enforcement by the municipal authorities such as by suits, arrests or fines, cannot be enjoined merely because of illegality with respect to the ordinances or for the purpose of subsequently determining the validity of the enactments when it appears that the party aggrieved has a full and adequate remedy at law, either in an action for damages or by pleading the invalidity of the ordinance as a defense to a criminal prosecution.

Municipal officers are not restrained from prosecuting suits against complainants or interfering with their business because of the existence of an alleged illegal municipal ordinance, since that question does not properly pertain to a court of equity, provided the complainants have a perfect remedy at law as we think is obvious in this case and there are many authorities which show that in order to make a test of the constitutionality of the Ordinance, arrests have been made or even submitted to for the purpose of escaping the doctrine that a court of equity cannot interfere where it is apparent that there is an adequate remedy at law, as we think exists in the instant case.

That criminal prosecutions may be enjoined where property rights are effected, there can be no question, and that a test of the Ordinances may be made under habeas corpus proceedings there can be no doubt, as is laid down in Yutze vs Copelan, 17 Ohio App, 461, and Truax vs Raich, 239 U. S. 33.

We think the case at bar is entirely different in character from Gibbings vs Edding, 70 OS. 298, and Sorg vs Oak Harbor, 20 Ohio App. 313, as there the property rights at issue were of a substantial and physical character which is entirely different from the instant case where the property rights are distinctly technical and fictional to a large degree, especially in character.

A leading case which bears out our analysis of the case at bar we think is Benjamin Pover vs Village of Des Plaines 123 Ill. 111.

A leading authority to support the contention of the city in this case we think is Froelich vs Cleveland, 99 OS. 376.

There are many cases of like character and it being our opinion that the authorities not only quoted herein, but many others, apply, the relief prayed for is denied, and an entry may be made accordingly.

Vickery, PJ., and Levine, J., concur.


author: POLLOCK, J.

text:
    BERTOLINI BROS Co v MAY
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided October 25, 1929
   POLLOCK, J.

There are many authorities cited by the defendants below which they claim sustain their contention that these are not statements of account. We do not care to review those authorities. We think that the general principle that controls is very clearly stated in Sturgell v. Grand Union Tea Co., 13 App., 240:

We have this statement made by defendants and according to May given to him and he accepted it. That would make, under the authorities, an account stated, and it could not be attacked unless on account of a mistake or fraud. Of course Bertolini Brothers deny this statement being given by them as an account stated, and Modarelli tends to support that, but we have these accounts which they do not deny were made out either by themselves or their bookkeeper, and on each of them is endorsed the following:

“The above amount is the real balance due Mr. R. C. May for bonus for the year 1925. This amount to be paid to Mr. May or Mrs. May as soon as possible.”

Mr. May was at that time in poor health, possibily thought he might not survive very long, -and he gives that as a reason for the endorsement in this way, to be paid to Mr. May or Mrs. May, and also as the reason for being so insistent that the claim be paid. We think this tends to support Mr. May’s claim very strongly. It is not likely the bookkeeper would make such endorsement on the papers as this is unless she was instructed by the Bertolini’s to so make it, and in addition to that they can not give any good reason for all these, meetings if they had not given out this statement. They claim they want to pay what is due him, claim in the trial they want to pay him. If that is true we see no necessity for these meetings in Modarelli’s office. All they had to do was to go to the books with May and make out the account. That is all that was necessary to be done, and yet it continued for some months. We think the facts in this- case as appear by the testimony and statements,, clearly sustained the verdict and should be affirmed. Exceptions.

Roberts and Farr, JJ., concur.


author: LLOYD, J.

text:
    FASSNACHT v BESSINGER et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2264.
    Decided Feb. 17, 1930
    Scott Stahl and L. E. Gorman,’ both of Toledo, for Fassnacht.
    F. A Carabin and Fraser, Hiett, Wall & Effier, all of Toledo, for Bessinger, et.
   LLOYD, J.

■ The evidence shows that Halapleus has an easement or right of way along the southerly line of the property in question next to and adjoining the river, but is somewhat in conflict as to the knowledge possessed by Mrs. Fassnacht as to its nature and extent. There is no evidence to show that it has ever been or is now a public highway. Mrs. Fassnacht and her predecessors in title have always paid the taxes levied and assessed thereon. It has never been legally dedicated to public use, nor has there ever been an acceptance of it as such by the public authorities. It leads to and stops at the private property of Halapleus and so far as the evidence discloses has never been used by any one except him and his predecessor in title, nor for any purpose except as a private way of ingress and egress to and from the property now owned by him.

The trial court, therefore, correctly found that

“/Halapleus is entitled to and has an easement or right of way in, to and over and upon”

the land in question. In view of the admissions and allegations of the pleadings filed by Maud A. Fassnacht and the Bessingers, the only question for determination is whether Mrs. Fassnacht had a right of action for breach of the covenants of warranty contained in the deed to her from the Bessingers. The question, we think, must be answered in the affirmative. The deed is explicit in its terms and unless the facts are such as in law would justify a reformation thereof, the grantors must answer in damages for the injury, if .any, resulting to the grantee for the breach of its covenants.

Long vs. Molor, 5 Ohio St., 272;
Kunkle vs. Beck, 1 Ohio App., 70;
3 L. R. A., 789;
4 L. R. A., N. S., 309, note;
38 Am. & Eng. Anno. Cases, 862.

The judgment of the court of common pleas in favor of the defendants in error Bessinger and against the plaintiff in error is therefore reversed and the action remanded to that court for further proceedings according to law.

Richards, J., concurs. Williams, J., dissents.


text:
    MIKELS v COWIE CUT STONE CO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10302.
    Decided Nov. 18, 1929
    Efros & Efros, Cleveland, for Mikels.
    C. A. Chapman and A. R. Johnson, both of Cleveland, for Stone Co, et.
   SULLIVAN, J.

It will be noted that the section of the General Code merely provides a way in which a corporation may wind up its affairs, and the question' of the solvency or insolvency in this section is not taken into consideration, and this bears upon the question as to whether there was any statutory effect upon the assets of the corporation which precluded any disbursement of them as against a judgment in garnishment procured by 'Statutory procedure, and it will be noted from the finding of the court quoted, that The Cleveland Stone Company had, upon the date of the pronouncement of the judgment, in its possession and under its control the sum of $880.00 due the defendant, The Cowie Cut Stone Company, as a balance of the purchase price of $2500.00 which was the consideration for the physical assets of The Cowie Cut Stone Company, and the plaintiff’s claim total some $235.00 with interest and costs.

Thus there is, as against the statute which apparently was the basis for the judgment of the court below in favor of the defendant, this finding of the court as against the effect of the statute which provides merely for the liquidating of the business of the corporation for the purpose merely of winding up its affairs, without the question of solvency or insolvency having any effect in concentrating the assets of the corporation and confining the same alone for distribution and disbursements to the general creditors.

This judgment in ' garnishment was secured by a default in answer and subsequently the defendant came into court and set up the liquidation noted under the statute and urges that this proceeding prohibited any preference by way of attachment or , garnishment under the provisions of the statute in such cases made and provided.

Under 11772 GC. garnishees in aid of execution are liable to the judgment credit- or for all monies, property and credits in their possession or under their control belonging to the judgment debtor from the time of the service of the order upon them, We do not find anything in the statute relating to liquidation that would deprive a creditor of his judgment and its collection under this section of the GC. There is nothing in the statute of liquidation for the purpose of winding up the affairs of the corporation, that distinguishes the assets from any other property belonging to the corporation, that would be subject to attachment and garnishment proceedings. The liquidation does not create any lien and there is no prohibition which makes the fund sacred and immune as against the statutory provisions relating to attachment and garnishment in-behalf of a judgment creditor.

The judgment in the instant case on default of answer, was rendered regardless of any issue as to solvency or insolvency or any other defense that would surround the assets with an impassible barrier as against the statutes relating to garnishment. Even though the question of insolvency of the corporation had been an issue in the trial of the case at the time of the default of answer, yet there is nothing in the statute relating to liquidation that would have the effect of depriving creditors o'f their legal remedies because that being so these creditors would be at liberty, even in the face of insolvency of the corporation, to sue the corporation in an action at law and by such procedure establish a specific lien upon the property, the subject of which was the attachment. That lien is of such a nature that it entitles the creditor, acquiring it, to a preference over other unsecured creditors, in our judgment, under the authority of 132 111. 82, 23 N. E. 339, as well as other cases of like nature.

Under that holding the court takes the assets of the insolvent into its hands and its jurisdiction becomes exclusive and it will proceed in administering the estate upon the maxim that “equality is equity.” After the jurisdiction has attached, no creditor can pursue a legal remedy in such a way as to obtain a preference. However, under such circumstances the court of equity is bound to respect legal rights already acquired as in the instant case where there is a judgment in garnishment unassaulted, unappealéd from and unquestioned.

In the instant case the “trust fund doctrine” has no application because the court of equity has not been invoked and therefore the conclusions of law of the court below are in our judgment, erroneous. The only defense in the instant case is the liquidation under the statute for the purpose of winding up the affairs of the judgment debtor. There is no claim that any legal proceedings were instituted whereby the jurisdiction of a court of equity came into exercise. There was no attachment of insolvency by any court, for any reason and there was no petition or discharge in bankruptcy and no other action that involved the jurisdiction of the Federal Court.

We think that under the circumstances of the case, taking into consideration the entire record, that the judgment is contrary to law and the evidence, for the reasons herein given, and this judgment is reversed and from the ultimate facts appearing in the record final judgment for plaintiff in error is hereby given and an entry may be made accordingly.

Vickery, PJ., and Levine, J., concur.


author: VICKERY, PJ.

text:
    ROSENBERRY, Recr v TAYLOR ROSENBERRY, Recr v WILLIAMS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Nos 10150 & 10149.
    Decided Nov 25, 1929
    Warren M. Briggs, Cleveland, for Rosenberry.
    M. C. Portman, Cleveland, for Taylor & Williams.
   VICKERY, PJ.

Now it is admitted by counsel for the plaintiff in error that this was a trust fund, that a trust was created; but it is claimed that inasmuch as this fund was commingled and mixed with the assets of the Hydraulic Develpoment Company and could not be traced, that it had lost its identity as a trust fund and, therefore, while the plaintiff below was entitled to a judgment against the receiver for the amount, he came in only as a general creditor and was not entitled to a preference; and that is the issue to be decided in this court, the Common Pleas Court holding that it was a trust fund and that the (plaintiff below had the right to follow that fund and had a preference and that if there was enough money in the receiver’s hands to pay it, it should be paid before any other amount that was owing.

We are familiar with the maxim of equity that equity regards that as done which ought to have been done, and it is argued in this case that the Hydraulic Development Company should have set this fund apart and, therefore, in equity they did set it apart. The trouble with that reasoning is, while admitting the soundness of the maxim, yet in this case there was to be no setting apart of this fund, because if the Hydraulic Development Company had gone on in business and Williams had broken his contract, this money would have belonged to the Hydraulic Development Company as liquidated damages. Therefore, it was not intended by either party to keep this a separate and distinct fund, but the depositing of this money with the Hydraulic Development Company simply created a relation of debtor and creditor between these two parties, and the plaintiff was not entitled to a preference out of the money in the hands of the receiver.

We are constrained to come to this conclusion and in doing so, we follow a very able decision of the Ninth District Court of Appeals, — opinion by Judge Washburn, —in the case of Ohio State Banking and Trust Company vs. Biltwell Tire and Rubber Company, 22 O. L. R. 322, (2 Abs. 205), where Judge Washburn discussed the question at length to the effect that inasmuch as the fund could not be traced, the party who deposited the fund was relegated to the position of a general creditor.

This ruling is likewise sustained by 26 Ruling Case Law, page 1354, Section 218 of the Article on Trusts, where the whole matter is ably and capably discussed.

Therefore, we can come to no other conclusion than that the plaintiff in error as receiver was wrongfully ordered to pay this money as a preference and the judgment of the court must, therefore, be reversed, and the same ruling will apply in both cases. It is admitted that the fund cannot be traced nor any product realized from said fund and, therefore, it comes squarely within the decisions above cited and the judgment of the Common Pleas Court so far as it makes this a preference must be reversed.

Sullivan and Levine, JJ., concur.


text:
    WALL v GLASS
    Ohio Appeals, 6th Dist, Lucas Co
    No 2282.
    Decided Feb 17, 1930
    Taber, Chittenden and Daniels, Toledo, for Wall.
    Geer & Lane, Toledo, for Glass.
   WILLIAMS, J.

There is no question but that the arrest and imprisonment of the plaintiff was unlawful. Counsel for plaintiff in error contends, however, that there is nothing to connect the defendant with the unlawful arrest. Under the law of torts any one who aids, abets, advises, encourages, promotes or instigates the commission of a tort by another, is jointly and severally liable therefor. 26 R. C. L., 766, Sec. 15.

The evidence tends to show not only that the defendant actively participated in the arrest of the plaintiff but advised and encouraged it. There was sufficient evidence to require the submission of the cause to the jury, and the trial court did not err in overruling the motion for a directed verdict in favor of the defendant.

Lloyd and Richards, JJ., concur.


text:
    LUDWIG HOMMEL & CO v WOODSFIELD (Village)
    Ohio Supreme Court
    No 21894.
    Decided March 19, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Day, JJ., concur.


text:
    LOGAN GAS CO v GLASGO
    Ohio Supreme Court
    No 22072.
    Decided March 19, 1930
    Marshall, CJ., Kinkade, Robinson, Jones and Allen, JJ., concur.


text:
    STATE ex BRICKELL v ROACH, Rec’r et
    Ohio Supreme Court
    No 22011.
    Decided March 19, 1930


text:
    TRUMBULL CO BOARD OF EDUCATION v STATE ex VAN WYE
    Ohio Supreme Court
    No 21999.
    Decided March 26, 1930


text:
    INDUSTRIAL COMMISSION v ROGERS
    Ohio Supreme Court
    No 21965.
    Decided March 26, 1930
    Kinkade, Jones, Matthias, Day and Allen, JJ.,. concur. Marshall, CJ., concurs in propositions one and two of the syllabus.


text:
    CONDON et v HAZEN CONTRACTING CO
    Ohio Supreme Court
    No 21712.
    Decided March 19, 1930

      Marshall, CJ., Kinkade, Jones, Matthias and Allen, JJ., concur .


text:
    BENOLINE CO v STATE ex BETTMAN CANFIELD OIL CO v STATE ex BETTMAN
    Ohio Supreme Court
    Nos 21889 & 21934.
    Decided March 19, 1930
    Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    FISHER BODY CO v CHEFLO
    Ohio Supreme Court
    No 22036.
    Decided March 19, 1930
    Marshall, CJ., Kinkade, Robinson, Matthias, Day and Allen, JJ., concur.


text:
    INDUSTRIAL COMMISSION v LINK
    Ohio Supreme Court
    No 22008.
    Decided March 19, 1930


text:
    SPITZNAUGLE v GREEN
    Ohio Appeals, 6th Dist, Lucas Co
    No 2261.
    Decided Feb. 17, 1930
    Miller, Brady & Yager, Toledo,, for Spitznaugle.
    E. C. Froelich, Toledo, for Green.
   WILLIAMS, J.

We find from the evidence that this contract was modified by new agreements made from time to time, by which changes were made and extra material and work were put into the construction of the house, so that it cost considerably in excess of $12,600.00. Both Spitznaugle and Green participated in the supervision of the work and consulted together from time to time and we have no trouble in reaching the conclusion that the arrangement between them amounted to a joint adventure and that, as joint adventurers, they were liable for indebtedness incurred by the authorized acts of either in carrying forward such joint adventure. The general rule is that each joint adventurer has power to bind the other in undertakings which are strictly within the scope of the joint enterprise, "j R. C. L, 553, Sec. 7.

Where there is an agreement for the sharing of profits, but no agreement whatever exists as to the sharing of losses, the joint adventurers are bound to share them in the same proportion as profits, and an action for accounting will lie. 33 C. J., 865, Secs. 79, 80 and 81.

Applying these principles to the instant case, we hold that the plaintiff is entitled to an accounting but should not be allowed anything for repairing the furnace or putting in of cinders. As to the commission to be paid for the sale of the property, for which the plaintiff incurred a liability, no allowance will be made to the plaintiff for the reason that the sale was made by an agent in the office of the plaintiff and under his direction and control. What one does by agent he does himself. By the terms of the contract a party thereto was not entitled to a commission for making a sale. Plaintiff could not collect from the defendant any amount by way of commission paid to his own agent and employe.

We find that the plaintiff is entitled to an allowance of $2,000.00 for monies expended by him for extras, and the decree will be the same as that in the court of common pleas, except for said allowance.

Lloyd and Richards, JJ., concur.


author: Vickery, pj.

text:
    SCHAEFER v CONSOLIDATED IRON-STEEL MFG CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9961.
    Decided Feb 24, 1930
    Francis J. Cook, Cleveland, for Schaefer.
    J. R. Kistner, Cleveland, for Mfg. Co.
   Vickery, pj.

The only question that needs to be considered in this case is a question of fact and that is, Did F. M. Ashman and Son employ three or more workmen? It seems as though this might depend upon the question as to whether the son in the firm of F. M. Ashman and Son was really ,a partner with his father. If he were, then he could not be counted as a workman, but we think a fair reading of this record will show that while it was a partnership in form, the father F. M. Ashman was really doing business for himself as F. M. Ashman and Son, and the son was an employee of the father and could be counted as one employee to make up the regularly employed; but an examination of this record and the testimony of Ash-man himself will disclose that he never had three or more men regularly employed. He answers the question so himself, and that seems to be the trend of this entire record. There is a bit of evidence in the record which will show that, at the time of this injury, or shortly theretofore, three men had worked for Ashman at one time, but it does not show, — in fact it shows the contrary, — that they were regularly employed, or that three were regularly employed. The son was regularly employed and then at one time the father had Kerns and at’ another time Louis Schaefer, the man who was injured, and at another time “blank”, whose name does not seem to be in the record, but nowhere does it appear that any or all of these men were regularly employed. If he had a job, he would call in an extra man. He had no definite rules of employment and the men were not definitely employed for any particular time, and one construction that can be put upon this testimony is that at no time were three men working for him; but giving it the most liberal construction . possible, all one can say for it is that at one particular time he might have had three men working for him, but nowhere were they regularly employed by him, and so this record shows that F. M. Ashman and Son including the son as a workman, never employed three or more men regularly and, therefore, he did not come within the industrial' compensation act; and if Ashman was not obliged to comply with the compensation act ,a workman for him could not hold Ashman’s employer responsible. •

That being the sole question before the commission and the sole question before the Common Pleas Court, and they both having decided that F. M. Ashman and Son did not regularly employ three or more men, we cannot see that there is ;any error in this record, for we think the record bears out this contention, employ three or more men, we cannot see that there is any error in this record, for we think the record bears out this contention.

There being no error in the record, the judgment of the Common Pleas Court will be affirmed.

Sullivan and Levine, JJ., concur.


text:
    GUSTAFSON v JOHNSON etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10576.
    Decided Feb 17, 1930
    A. P. Gustafson and P. K. Fulton, both of Cleveland, for Gustafson.
    Grossman & Grossman, Cleveland, for Johnson, etc.
   LEVINE, J.

Various assignments of error are set forth. We entertain grave doubt as to the legality or justice of permitting Gustafson to charge the corporation the sum of $100.00 for services rendered to Goldberg and Wexler. It can harly be thought that these services rendered to Goldberg that these services rendered to Goldberg and Wexler were services rendered to the corporation.

We would be unwilling to disturb the trial court’s judgment except for one reason, that there was in our opinion, and adjudication by the referee in bankruptcy of the subject matter involved in this case. The trustee filed an application in bankruptcy court for a summary order to compel Gustafson to pay the $100.00. The trustee adjudicated the same by refusing the application. There was a clear way open to the trustee in bankruptcy, namely, to take exceptions to the ruling of the referee in bankruptcy and to prosecute error from such ruling.

We are not concerned with any private conversation had between counsel and the referee in bankruptcy as to the reason for the refusal of the application. His refusal of the application was a judicial determination of the question now before us and remains undisturbed until there was a modification or reversal by proper authority.

Holding these views, the judgment of the municipal court is ordered reversed and final judgment ordered for plaintiff in error.

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


text:
    SPITZ et v NUNN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10498.
    Decided Feb. 24, 1930
    Jerome M. Friedlander, Cleveland, for Spitz et.
    Arthur E. Brueckner, Cleveland, for Nunn et.
   LEVINE, J.

One of the early cases decided by our Supreme Court bearing upon the point in controversy, is the case of Sutliffe vs. Atwood, 15 OS. 194, which is followed in Lodge vs. White, 30 OS. 575. In Lodge vs White, syllabus (1) is as follows:

“A lessee remains liable on his express agreement to pay rent, notwithstanding he may have assigned his lease with the lessor’s consent and the lessor has accepted rent from the lessee.”

The latest pronouncement was in Blosser vs Enderlin, 113, OS. 134, wherein the court reiterated the law'to the effect that a lessee is liable for an express agreement to pay rent even though the lessee assigned his lease.

We can take it as well established that an express agreement to pay rent under a lease is binding upon the parties until there has been a discharge or modification by the act of the contracting parties. The guarantors in this case, it may be taken as conceded, were not, in the slightest, prejudiced by the change in the personnel of the occupants of the premises. The obligation expressed in the guarantee is quite definite and free from doubt. Just as long as the original lessees are liable for rent under the lease, the obligation expressed in the guarantee co-exists and continues until it is discharged either by payment or the mutual agreement of the parties.

As - a general rule the liability of the guarantor of the tenant is measured by that of the principal and will be so construed. 36 Corpus Juris 306.

Thompson on Real Property, Vol. 2, p. 508, states the rule in more explicit language, as follows:

“A surety for a lessee is not discharged from liability on the express covenants of the lease by an assignment to any greater extent than the lessee would be discharged. A contract of guaranty presupposes another and original contract to which it is collateral; it is an undertaking to answer for the performance of some contract of another. A failure to pay rent would even after an assignment of .a lease, be the default of the lessee and his sureties would be liable as guarantors.”

The guarantee as signed by these defendants is absolutely clear and must be construed by the language used and in no other way. There was no occasion for interpreting any doubtful words or phrases as the language of the guarantee is quite explicit and needs no aid from the outside by way of interpretation. This last statement of law is pertinent to this case for the reason that the trial court permitted one of the guarantors to give his intention and also his interpretation of the meaning of the guarantee. The following appears in the record:-

“Q. Mr. Nunn, who were you guarananteeing when you signed the guarantee on the lease?
Mr Friedlander: Objection.
The Court: He may answer.
Mr. Friedlander: Exception.
A. For Mr. Blanchard and Mr. Eberhardt.”

The same question was asked of defendant in error, John F. Eberhardt, as shown by the record on page 22.

“Q. Mr. Eberhardt, for whom did you guaranty this lease?
Mr. Friedlander: Objection.
The Court: He may answer.
Mr. Friedlander: Exception.
A. Mahlan J. Eberhardt, and Mr. Blanchard.”

This action of the court was, in our opinion, erroneous. The parties should not be permitted to give their own interpretation of the language of a guarantee, if the language used therein was explicit and free from ambiguity.

We .are of the opinion that the judgment of the lower court was erroneous. Accordingly, the judgment of the municipal court is ordered reversed and final judgment entered in favor of plaintiffs in error.

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


author: ROSS, J.

text:
    SHEAR v HARTMAN
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3502.
    Decided Nov 4, 1929
    Joseph L. Meyer, Cincinnati, and Ben Schwartz, for Shear.
    Albert L. Weinstein and Kenneth Mooter, both of Cincinnati, for Hartman.
   ROSS, J.

A broker is not permitted to accept compensation from both parties to a transaction, without their knowledge, and, if he attempts to do so, he cannot collect from either. There is evidence in this case indicating that the parties to the trade were ignorant of the double employment of the broker, but there is also evidence that the parties to the trade knew of such double employment. In such case, it is a question for the trier of the facts, and this court cannot substitute its judgment for that of the trial court, sitting as a jury.

It is claimed that the trade had been cancelled, but it is not denied the contract for the sale of the property of the plaintiff in error had been signed by the purchaser. Under such circumstances, the agent instrumental in the execution of such contract is entitled to his commission, regardless of the fact that thereafter the transaction may be annulled by the parties to

the original contract.

It is claimed that the original contract was valueless to the plaintiff in error because of misrepresentations of the agent. It is however, undisputed in evidence that the plaintiff in error did accept the tire shop, which was a partial consideration in the trade of her real estate, and it was for the trial court to determine whether or not the contract of trade w,as void, and constituted a failure of consideration for the commission of the broker.

Moreover, while the evidence is in conflict as to whether or not plaintiff in error knew of the claimed misrepresentations and double agency at the time she signed the contract and note, it is certain that she knew all the facts at the time she issued the check sued upon, and took up the note before maturity. Her conduct was, therefore, inconsistent with a claim of misrepresentation, or want of knowledge of a double agency. She knew as much when she gave the check as she did when she stopped payment.

There being evidence sufficient to support the judgment of the municipal court the judgment fo the court of common pleas, affirming the judgment of the municipal court, is affirmed.

Cushing, PJ., and Hamilton, J., concur.


author: HAMILTON, J.

text:
    KELLER et v WEISS et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3483.
    Decided Nov 4, 1929
    George B. Goodhart and J. A. Scanlon,' Cincinnati, for Keller.
    Wm. H. Mortashed and Kelley & Remke, Cincinnati, for Weiss.
   HAMILTON, J.

In this error proceeding, some question is made of the insufficiency of the separate finding of fact and conclusions of law by the trial court. However, since the case is here on error with a full bill of exceptions containing all the evidence taken below, we do not consider this complaint important.

Two questions remain. The first is whether or not the defendants have obstructed the means of ingress and egress to plaintiff’s property. The question is not stressed here, and we doubt if it could be seriously considered in view of the evidence showing the new roadway established in 1910, as above adverted to. The court was fully justified in finding that the plaintiffs failed in the proof on this question.

The remaining question goes to the ownership of the 1-16)100 acres. The evidence discloses that the land of the plaintiffs, described in the petition, and the lands of the defendants join. The trouble arises over the description in the deeds to the respective tracts of land by courses and distances.

The Weiss deed, if limited to the distances named in the deed would not include the 1-16)100 acres in controversy, while • the Keller deed in accordance with the measurements as to distances would include the 1-16)100 acres. However, there is evidence of a stone, which it is claimed was set at the corner of the two properties. It is the law that monuments control courses and distances. If the stone mentioned in the evidence was set as the corner of the two properties, then the 1-16)100 acres would be included in the Weiss lands.

Plaintiffs deny that this stone is the corner stone, but claim it to be merely a field stone. However, there is strong evidence, given by Houston Coates, a deputy county surveyor, who surveyed the properties, that the stone is a monument. In his testimony he states that a survey was made by D. S. Hosbrook in 1873, that the Hosbrook survey gave a stone as the northwest corner of the Weiss property. Coates stated he found the stone mentioned in the Hosbrook survey, and details the steps he took to verify the Hosbrook survey. This is strong evidence that the stone was a monument, marking the northeast corner of the Keller property and the northwest corner of the Weiss property. This would control over the measurements set forth in the Weiss deed, which would bring the line short of the stone. This would also control the measurements in the Keller deed which would extend beyond the stone. Moreover, the Weisses set up the defense of adverse possession for more than 21 years.

There is testimony of an old rail fence running on' the line to the stone in question for many years. There is evidence of the establishment of the line as heretofore stated by the Hosbrook survey in 1873. There is evidence that the land in dispute had been used by the defendants for 22 years. There is also evidence that the Weisses had cultivated the strip of ground continuously for 26 years. The plaintiffs offer no evidence to the contrary.

We have stated this much of the evidence to show that the trial court could well find from the evidence that the plaintiffs and cross-petitioners, had failed to prove the blocking of the ingress and egress to their land, and had failed to prove the wrongful seizure and retention of the 1~16|100 acres of land.

Since this court cannot disturb the judgment unless manifestly against the weight of the evidence, the judgment of the trial court will be affirmed.

Cushing, PJ., and Ross, J., concur.


author: FARR, J.

text:
    HARRY MENDELSON v ETHEL MENDELSON
    Ohio Appeals, 7th Dist, Monroe Co
    Decided December 5, 1929
    Matz- & Matz, Woodsfield, for Harry Mendelson.
    C. M. Myers, Akron, for Esther Mendel-son.
   FARR, J.

The vital issue to be determined here is whether or not under these facts, the husband is liable for the amount provided by the terms of the articles of separation. The agreement or contract .between the parties is under favor of 8000 GC.

Which indicates by its own terms that such contract would be valid and binding during their separation, but while they were husband and wife.

It is, of course, a well recognized principle that this husband and wife could make no agreement that would deprive their minor child of reasonable support, or impose upon the State the burden which it would be the husband’s duty, primarily, to bear. In fact, the decree of divorce granted to the wife, and carrying the provision above set out practically terminated the contract between the parties, and all obligations of each to the other thereunder; and it is quite apparent, as above stated, that this contract obtained only while the relation of husband and wife was sustained between the parties, and when the wife chose to go into another state and secure a decree of absolute divorce, such decree operated as a rescission of the terms of said contract.

Next, it is insisted that the trial court erred in its instructions to the jury, where the paragraph set out in plaintiff in error’s brief was given instead of the requests to charge, which was error. And on page 30 of the record, the Court said:—

“The Court says to you that the procuring of a divorce, by the plaintiff in this case, did not operate to work an abandonment of the contract, nor to affect its terms.”

In view of the conclusion reached in this cause, the foregoing was erroneous, and clearly prejudicial to the rights of the defendant below. The charge as to payment in full and honest dispute is subject to ci’iticism and somewhat misleading.

It is further suggested that certain interrogatories were requested to be submitted by the trial court to the jury, three in number, and which it will not be necessary here to specifically set out. The first was properly refused by the trial court because it involves a question of law; a question which the jury would have no right to determine. The second might properly have been submitted, likewise, the third, although the third would, perhaps, be unimportant.

It is, also, complained that certain testimony was rejected by the trial court, as disclosed at page 5 of the record. ■ Parts of this testimony were clearly incompetent, while some parts were not, and, especially, those questions which involved propositions of law, and where the witness was asked:—

“And that was ,an agreement whereby you were to live separate and apart?”

although a number of the proposed questions and answers were competent, and should have been admitted by the trial court.

So far as alimony is concerned, the wife had ,an opportunity to have that matter adjudicated. The custody of the child was awarded to her by contract, and by the decree of divorce.

If there be any further question relating to the support of the child, it may yet be determined.

Having reached the conclusions herein indicated, it follows that the judgment must be reversed, and it is so ordered.

Pollock and Roberts, JJ., concur.


text:
    COMMERCIAL CREDIT CO v M & M CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10049.
    Decided Dec 9, 1929
    Cannon, Spieth, Taggert, Spring & Annat, Cleveland, for Credit Co.
    Smith, Olds, Smith & Shepard, Cleveland, for M & M Co.
   LEVINE, J.

1. It is conceded that the written contract entered into by The A-C Electrical Mfg. Co., and defendant made no mention of the deductions and credits claimed by the defendant company. The claim of the defendant is based upon alleged verbal modification of a written agreement heretofore entered into between the parties, by virtue of which modification the defendant was to have the option to make settlement with The A-C Electrical Mfg. Co., of any and all bills for merchandise sold to it on one of the two folowing plans:

“This defendant might keep any such merchandise and pay therefor 60% of the price thereof as charged to this defendant by said The A-C Electrical Mfg. Co., or this defendant might, at its option, return any such goods, wares and merchandise that it had purchased of The A-C Electrical Mfg. Co., and pay to said company 10% of the net scheduled price thereof, the same, together with the return of such goods, to be in full of any and all claims and demands for the goods, wares and merchandise covered by such transactions.”

The perusal of the record discloses that there was some such arrangement between The A-C Electrical Mfg. Co. and the defendant, covering prior seasons. The plaintiff contends that there was no such arrangement' as to merchandise sold during the 1926-1927 season. It admits that there had been some such arrangement prior to that season but it is claimed that that was a special agreement relating to the particular season. The written contract covering the 1926-1927 season was entered into after the so-called modification covering prior seasons took place.

There is, in our opinion, particular strength in the argument of plaintiff that had it been the intention of the parties that the terms comprised in the modification agreement covering prior seasons were to be held good for the 1926-1927 season, that the same would have been expressly incorporated in the written contract relating to the 1926-1927 season. The omission of the terms of the modification agreement covering prior seasons, from the written contract upon which the suit is based, is in • our opinion a most powerful circumstance which weakens the whole structure of the defense.

Weighing the case in the light of probability, it seems to us that the judgment of the common pleas court is manifestly against the weight of the evidence.

2. It appears from the record that during the midst of the trial the plaintiff moved for leave to withdraw a juror and to continue the case on the ground that it was taken by surprise which it could not foresee by the exercise of reasonable prudence. Evidence was offered by defendant i'elating to the modification agreement. The president of the defendant company testified that he had made such arrangement for the alleged credits with Mr. C. H. Bosler. Counsel for plaintiff informed the court that prior to the trial he1 had made inquiry as to who the particular officer of The A-C Electrical Mfg. Co. was who participated in this arrangement or modification agreement; that he could not get any information from defendant’s counsel; that he made the best independent inquiry he possibly could and was led to believe that whatever conversations were had between the defendant company officials and the representative of The A-C Electrical Mfg. Co., were had with Mr. Barrett K. Bosler. Accordingly Mr. Barrett K. Bosler was brought to Cleveland from Binghamton, N. Y., and . was present at the trial so that he might meet such testimony as the defendant offered in regard to the so-called modification agreement.

The testimony of the president of the defendant company was to the effect that this arrangement was made not with Barrett K. Bosler, but his father, Mr. C, H. Bosler. Counsel for plaintiff accordingly requested the withdrawal of a juror and the continuation of the case because it was impossible to get Mr. C. H. Bosler to testify by way of refuting the defendant’s claim because he lived at Tulsa, Okla. The court overruled the motion. We are of the opinion that the action of the trial court constituted in law an abuse of discretion. The court having been apprised that counsel for plaintiff was taken by surprise and pointing out 'as counsel did the materiality of the testimony of C. H. Bosler, it became the duty of the court to grant the motion so as to afford plaintiff an opportunity to refute the evidence of the president of the defendant company.

3. As against the objection of plaintiff, a letter bearing date of July 28, 1926, and purported to have been written by The A-C Electrical Mfg. Co. to The M. & M. Co., was admitted in evidence. This letter dealt with the matter of credits to be allowed The M. & M. Co. Counsel for plaintiff objected to the letter on the ground that there was no showing that the particular orders enumerated in the letter were any of the orders which were included in the- merchandise which furnishes the basis of this action. Counsel for defendant thereupon stated to the court that it is very evident that the letter could not relate to the orders involved in the present case because the letter was written several months before the orders' were given but the same was introduced merely to establish the course of conduct between the parties.

In view of this admission by counsel for defendant, we hold that the admission of the letter in evidence constituted prejudicial error as it tends to confuse the jury. We are not of course interested in the general course of conduct between the parties. Under the issue as presented in the pleadings, the question to be determined was whether this arrangement as to credits was by special agreement made applicable to and constituted a modification of a written agreement between the parties covering the 1926-1927 season. Upon these various grounds above set forth we hold that there was prejudicial error substantially affecting the rights of the plaintiff.

The judgment of the common pleas court is therefore ordered reversed and the cause is remanded for further proceedings according to law.

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