text:
    WRIGHT, Plaintiff-Appellant, v. BAYOWSKI et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3905.
    Decided April 4, 1957.
    Joseph E. Higley, Youngstown, for plaintifi-appellant.
    Loren E-. Van Brocklin, Elwyn V. Jenkins, Youngstown, for defendants-appellees.
   OPINION

By PHILLIPS, J.

On plaintiff’s complaint filed with the Austintown Zoning Board of defendants’ violation of the Austintown Township Zoning Ordinance the Austintown Township Zoning Inspector wrote Andrew Emil and E. Eugene Bayowski the following letter dated March 12, 1954:—

“Gentlemen:
“This is to notify you of the decision of this office regarding your place of business and possible violations incurred. After consideration of all data presented, this office is of the opinion that:
“(1) The building on Lot No. 4 is in violation, being used as an auto repair shop. From your statement, construction on this building was started in August 1948 and was completed in November 1948, which was after you had secured a Vendor’s license and therefore not a part of the auto repair business;
“(2) The driveway on the lot lines of Lots No. 3 and No. 4, from the building on Lot No. 4 north to Radio Road is in violation, being used as a means of ingress and egress for the auto repair business, said driveway being on residential lots;
“(3) Two (2) fuel pumps and a one thousand (1000) gallon fuel tank permanently installed in February 1951 on Lot No. 3, a residential lot, were not a part of the business prior to zoning and are in violation;
“(4) All repair and maintenance on automotive equipment is to be performed at the original location of the auto repair business;
“(5) The original auto repair business may be permitted to expand 25% of the original size at the original location.
“It is requested that steps be taken to comply with the provisions of the Zoning Ordinance to eliminate the above-named violations, in order that the residential characteristics of the neighborhood be preserved, which will not be contrary to the public interest and the comprehensive plan of zoning in Austintown Township.
“To assure compliance, it is the further decision of this office that the repair of automotive equipment, at the building on Lot No. 4, be terminated upon receipt of this letter,, and that repair equipment be returned to the original location of the auto repair shop, no later than March 27, 1954.
“If there is no compliance with these decisions, it shall be necessary to institute legal action to enforce the provisions of the Austintown Zoning Ordinance.”

A hearing was had at the request of the defendants on July 1, 1954, on their appeal from the decision of the Austintown Township Zoning Inspector.

Thereafter on May 5, 1955, the Board of Zoning Appeals reached the following decision:—

“54-03-A-Bayowski:
“The Board considered all data, as prepared and presented, and arrived at the following decision: Motion by Johnson and second by Bokesch that the non-conforming use by Bayowski is illegal and is. to be discontinued. Vote — unanimous.”

Defendants did not appeal from the decision of the Austintown Board of Zoning Appeals to the court of common pleas.

Plaintiff sued defendants in the court of common pleas alleging that the uses of “said property by defendants constitute a violation of said Zoning Ordinance, and that he is without an adequate remedy at law and that the defendants should be enjoined from said violation under the provision of Paragraph I thereof and under §519.24 R. C.”; and prayed that “defendants be permanently enjoined from using said property in violation of said Zoning Ordinance, that they be permanently enjoined from continuing to use said property so as to constitute a private nuisance and that he may be awarded judgment against the defendants in the sum of ten thousand dollars.”

In his amended answer to the first cause of action of plaintiff’s petition defendant, Andrew Emil Bayowski, alleged that the business of repairing and overhauling automobiles, the trucking business and the business of selling used automobiles were all in operation prior to the adopting of the zoning ordinance; that “there has been no change nor has there been any extension to said business subsequent to the adoption of said zoning ordinance on the 2nd day of November, 1948”; and denied “each and every allegation of plaintiff’s first cause of action not herein-before admitted to be true.”

In his amended answer to the second cause of action of plaintiff’s petition defendant, Andrew Emil Bayowski, alleged:—

“* * * having in mind the maxims of equity, ‘He who seeks equity must do equity,’ and ‘He who comes into equity must come with clean hands,’ wishes to aver and plead the following activities of plaintiff herein:
“That plaintiff at the time of the filing of his petition herein kept three dogs in a pen on his property, which dogs were extremely noisy, day and night.
“That plaintiff at the time of filing his petition herein kept one horse on his property.
“That plaintiff and others at his direction frequently and often on Sundays, discharged firearms and permitted the discharge of firearms on plaintiff’s property to the annoyance and danger of defendant and other immediate residents of the neighborhood.
“That for a period of approximately six months during the year 1955 plaintiff had a large oil drum or similar metal container set up on his property and at odd and unreasonable hours would go out and drum upon said oil drum, producing a loud and annoying noise, at unreasonable hours of the day and night.
“That during that said period, to-wit, the year 1955 and for approximately six months, plaintiff set up some sort of mechanical contrivance operated by power which would cause a hacksaw or something bearing teeth such as a hacksaw to produce loud shrieking noises, which noises plaintiff would cause to be produced at unreasonable hours of the day and night, all to the annoyance of defendant herein.
“That Sunday afternoons all during the times referred to herein and presently, plaintiff permits his son and a group of friends of his son who are members of a group who follow what is commonly known as ‘hot-rodding’ to operate their automobiles in and about plaintiff’s property. That said automobiles have special exhaust pipes which make their exhaust noises louder than normal; that on many Sunday afternoons the plaintiff’s son and three or four of his friends will be working on three or four automobiles on or about the premises of plaintiff and that plaintiff’s son and members of his group conduct automobile races up and down Rockwell Road and streets of the near vicinicy, all to the annoyance of defendant herein.
“That plaintiff has on several occasions threatened to kill the son of defendant herein and one Terry Sutton, a minor friend of defendant’s son.
“All of which said acts of plaintiff constituted and do constitute a nuisance.
“Further answering, defendant denies each and every allegation of plaintiff’s second cause of action not hereinbefore specifically admitted to be true.
“Wherefore, having fully answered, defendant prays that' the petition of plaintiff be dismissed and that he be permitted to go hence with his costs.”

Defendant, E. Eugene Bayowski’s amended answer is in substance the same as defendant, Andrew Emil Bayowski, except that it alleges:—

“That plaintiff and various acquaintances and associates of plaintiff, on many frequent occasions, congregate on plaintiff’s property and practice whip-cracking with a large bull whip, which cracking noise is loud and constitutes a disturbance to the peaceful enjoyment of defendant’s property and constitutes an annoyance to defendant.
“That plaintiff at the time of the filing of his petition maintained a septic tank upon his property, which septic tank drained into and upon the property owned by the defendants herein, creating a foul and annoying odor, all of which constituted an annoyance to defendant.”

Plaintiff alleged in his reply as follows:—

“Now comes the plaintiff, and in reply to the defendant’s first cause of action says, that under date of July 1, 1954, a hearing was held by the Austintown Board of Zoning Appeals on an appeal of Andrew Emil and E. Eugene Bayowski (defendants herein) from a decision of the Austin-town Zoning Inspector regarding compliance with the Austintown Zoning Ordinance pertaining to a non-conforming use at appellant’s address.
“That a copy of the minutes of said hearing before the Austintown Zoning Board of Appeals is herewith attached marked Plaintiff's Exhibit A, and made a part of the plaintiff’s reply as though fully rewritten herein.
“That plaintiff further alleges, that under date of May 5, 1955, the following entry was made by the Austintown Zoning Board of Appeals.
“ ‘Motion by Johnson, seconded by Bokesch that the non-conforming use by Bayowski is illegal and is to be discontinued.’
“The plaintiff replying to the defendant’s second cause of action, alleges that the allegations, statements and averments as therein set forth are irrelevant, redundant and immaterial to the legal issues, and does not constitute a defense to the claims set forth in the plaintiff’s petition.
“Wherefore, plaintiff prays that judgment be entered upon the pleadings, that the defendant Andrew E. Bayowski and E. Eugene Bayowski be permanently enjoined from using their property in violation of the Austintown Zoning Ordinance, that they be permanently enjoined from continuing to use said property so as to constitute a private nuisance and that he may be awarded judgment against the defendants in the sum of ten thousand dollars, together with his costs.”

The trial judge entered the following entry on his journal:—

“This cause came on to be heard upon the petition of plaintiff, the answers of defendants, and the reply of plaintiff, and the court, upon consideration of the pleadings, evidence submitted, briefs of counsel and arguments to the court finds as follows: that all parties are proper parties; that all such parties are properly before this court; and that the order of May 5, 1955 by the Austintown Board of Zoning Appeals is void. Decree accordingly to defendants. Judgment for defendants against plaintiff for costs. Motion for new trial overruled. Exceptions.”

Plaintiff appealed on questions of law from the judgment of the trial judge entered upon his finding, and assigns the following grounds of error:—

“1. The trial court erred in granting judgment to the defendants.
“2. The judgment of the trial court is contrary to law.
“3. The trial court committed prejudicial error in admitting evidence as to the jurisdiction of the Austintown Township Board of Zoning Appeals.
“4. The trial court committed prejudicial error in failing to render judgment for the plaintiff in accordance with §519.24 R. C.”

Plaintiff argues vigorously that “the trial court committed prejudicial error in admitting evidence as to the jurisdiction of the Austin-town Township Board of Zoning Appeals,” and contends:—

“The trial court committed prejudicial error in permitting any evidence as to the actions, jurisdiction, or any matters pertaining to the decision of the Austintown Board of Zoning Appeals. * * *.
"That having submitted to the trial court the Zoning Ordinance (Plaintiff’s Ex. No. 1), the records (Plaintiff’s Ex. No. 4) and the decision of the Austintown Board of Appeals (Plaintiff’s Ex. No. 5), finding the defendants in violation, that the plaintiff had submitted a prima facie case for an injunction and equitable relief. However, the trial court took a contrary view, and permitted evidence as to any and all matters relating to the complaint, the hearing, as well as the decision of the Austintown Zoning Inspector and the Board of Appeals."

Sec. 519.24 R. C., provides:—

“In case any building is or is proposed to be located, erected, constructed, reconstructed, enlarged, changed, maintained, or used or any land is or is proposed to be used in violation of §§519.02 to 519.25, inclusive, R. C., or of any regulation or provision adopted by any board of township trustees under such sections, such board, the prosecuting attorney of the county, the township zoning inspector, or any adjacent or neighboring property owner who would be especially damaged by such violation, in addition to other remedies provided by law, may institute injunction, mandamus, abatement, or any other appropriate action or proceeding to prevent, enjoin, abate, or remove such unlawful location, erection, construction, reconstruction, enlargement, change, maintenance, or use.”

Further plaintiff contends:—

“That under and by virtue of the provisions of §519.24 R. C., that as an adjoining property owner, and, who was specifically damaged by the defendants’ zoning violation, had a right to enjoin the said defendants from maintaining a nuisance, and be perpetually enjoined from future violations of the Austintown Zoning Ordinance.
“* * * the failure of the defendants to take an appeal from the decision of the Austintown Board of Zoning Appeals within 10 days following the decision of May 5, 1955, makes the decision of the Austin-town Board of Appeals final; that the defendants had their day in court; that they are not permitted in an injunction proceeding, instituted by an adjacent property owner, to question the validity and jurisdiction of the Austintown Board of Appeals; any and all complaints against the decision could have been fully litigated in an appeal authorized by law from a decision of the Austintown Board of Appeals.”

Defendants contend:—

“At the outset these appellees would like to point out to the court that this is not an action involved wherein parties are a Board of County Commissioners, the Board of Zoning Appeals or any other political or advisory board or Commission set up to see to the operation of any statutes of Ohio. This action is brought by an ‘adjacent or neighboring property owner,’ who in an equity action seeks the leave afforded by injunction and to recover damages for a violation of zoning law. Declarant is aware that the merits of the proceedings before the Zoning Commission and the Board of Zoning Appeals have no standing in the matter now before this Court. It is urged, however, as was urged in lower court, that the action of the Board of Zoning Appeals was invalid and a nullity because of the manner in which the so called hearing before the Board of Zoning Commission was conducted.”

After full argument in support of their judgment by summary conclusion in their brief defendants contend:—

“That the mandatory proceedings for Township Board of Zoning Appeals were not carried out; that meetings held purporting to follow these proceedings were not in compliance with statute; and that the proceedings were a nullity; that defendant-appellees were not afforded the rights given to them by the law; and that they, therefore, were deprived of their constitutional rights.
“We say, therefore, that because of the nature of these proceedings no valid order of the Board of Zoning Appeals was ever obtained, which order would give plaintiff-appellant any right or standing to prosecute equity or damage actions on the basis of §519.24 R. C.”

The evidence convinces us that Austintown Township Board of Zoning Appeals did not act in conformity with the statutes, and accordingly their acts were illegal and of no effect, were a nullity and void.

In our opinion counsel for defendants by brief have summarized admirably the respects in which such Board of Zoning Appeals failed to comply with the statutory requirements, which we adopt as part of the factual statement of this opinion, and which summarization is as follows:—

“1. Three members of the first panel heard and considered the case.
“2. The minutes of this meeting were signed but not attested to and no decision was reached.
“3. On May 5th, 1955, a public hearing was called on another matter
“4. In the meantime, the membership of the Board had almost entirely changed. Two members of the original panel plus one absent member of the original panel, plus two new members met at this May 5th hearing.
“5. The zoning inspector and clerk was not present at the May 5th meeting.
“6. Four parties turned up who, the minutes and notes of the secretary showed, were opposed to the position of the defendants here.
“7. No notice of hearing was given the defendants.
“8. No facts on which the conclusion of the Board were based and no findings of law were entered into the minutes.
“9. At least ten months time had elapsed since the original consideration by the first board.
“10. The defendants’ matter was, in the acting secretary’s own notes, called a ‘rehearing.’
“11. These notes and minutes were never signed.
“12. The notes in the acting secretary’s own handwriting show ‘proceeded to a discussion of the two appeals presented.’ ”

There is evidence by way of Defendants’ Exhibit 1 of the following notation by Board Secretary, John Sirbu, concerning the gathering on May 5, 1955, as follows:—

“All necessary records for the meeting are on my desk. I would appreciate it if someone would take minutes of the public hearing, so they can be properly recorded.”

The Board of Zoning Appeals is a creature of Statute and accordingly must act in strict conformity with statutory provisions. See 42 American Jurisprudence, Public Administrative Law, Sections 26 and 28, pages 316 and 320¡'United States, ex rel. Kansas City Southern Railway Company v. Interstate Commerce Commission, 252 United States Reports 178; and §519.15 R. C.

In 42 American Jurisprudence, Section 99, Page 429, it is said:—

“* * * It is a wholesome and necessary principle that an administrative agency must pursue the procedure and rules enjoined upon it by the statute creating it, and show a substantial compliance therewith, to give validity to its action.”

See 42 American Jurisprudence, Section 109, Page 440, where it is said:—

«* * * -without jurisdiction, their acts are void and open to collateral • attack. * * * If the provisions of the statutes are not met and complied with, they have no jurisdiction.”

In 42 American Jurisprudence, Section 116, page 451, it is stated:—

“* * * The inexorable safeguard which the due process clause assures in the exercise of a judicial or quasi-judicial power is that the trier of the facts shall be an impartial tribunal legally constituted to determine the right involved; that no finding shall be made except upon due notice and opportunity to be heard; that the procedure at the hearing shall be consistent with the essentials of a fair trial; and that it shall be conducted in such a way that there will be opportunity for a court to determine whether the applicable rules of law and procedure were observed.”

See also DiCillo & Sons, Inc. v. Chester Zoning Board of Appeals, 59 Abs 513; Hardy v. Horst, 64 Abs 228; State, ex rel Kahler-Ellis Company v. Cline, 69 Abs 305, syllabus 5 and 8; State, ex rel. v. Morris, 80 Oh Ap 135; and Randolph v. First Baptist Church, 68 Abs 100.

Now as to whether the Board of Zoning Appeals was legally constituted to consider the evidence submitted to it we refer to Buchsbaum & Co. v. Federal Trade Commission, 153 Federal (2nd) 85, where it is said:—

“Where trial examiner appointed to hear evidence on complaint charging petitioner with unfair trade practices died before hearing was completed, and substituted trial examiner based his report upon the evidence taken before the original examiner and on additional evidence, denial of petitioner’s motion for trial de novo and to strike the evidence taken before original examiner was erroneous as a violation of rule of confrontation, amounting to a lack of due process to which petitioner was entitled.”

Having considered all the evidence submitted to the trial court and the record made there, the grounds of error assigned by plaintiff, which have been stated together with the contentions of the parties fully, and reviewed the law applicable thereto, without separately and in more detail disposing of each assigned ground of error we conclude that the judgment of the trial court must be and is affirmed hereby.

NICHOLS, PJ, concurs.

GRIFFITH, J, concurs in judgment.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    SORRELL et, Plaintiffs-Appellees, v. UTACHT et, Defendants-Appellants.
    Ohio Appeals, Second .District, Montgomery County.
    No. 2386.
    Decided July 2, 1956.

      Shively, Shively & Shell, Dayton, By John H. Shively, of Counsel, for plaintiffs-appellees.
    Nolan, Boesch & Wolff, Dayton, By William H. Wolff, of Counsel, for defendant-appellant, Herman Utacht.
    Otterbein Creager, Dayton, for defendant-appellant, Sara C. Utacht, formerly Sara C. Brown, now Sara C. Johnson.
   OPINION

By THE COURT:

Submitted on application of appellants for leave to file bill of exceptions, assignment of errors and briefs, and on motion of appellees to dismiss the appeal.

On April 13th, 1956 appellants filed notice of appeal on questions of law. Nothing more was filed by appellants until application for leave to file bill of exceptions, etc., was filed on June 15th, 1956. The forty-day period within which a bill of exceptions is required to be filed (§2321.05 R. C.), expired on May 23d, 1956, and none was filed. The fifty-day period within which assignment of errors and briefs are required to be filed under Rule VII expired on June 2d, 1956, and none were filed. Counsel for appellants states that one of the appellants was absent from the State and not able to prepare and file the bill of exceptions, assignment of errors and briefs within time. No showing is made or attempted to be made of the incapacity of counsel during this period of time. No “good cause” is shown within the meaning of Rule VII.

Appellees filed the requisite motion to have the clerk prepare and file in the Court of Appeals a transcript of the docket or journal entries with the original papers as provided in §2505.08 R. C. The last sentence in that section provides:

“If the transcript and papers are not filed within said time either party may apply to the court to which the appeal is taken to have the case docketed and the court shall order them filed.”

Appellants claim that this statutory provision permits this Court to fix the time within which to file bill of exceptions, assignment of errors and briefs. The word “transcript” as used in the quoted part of §2505.08 R. C., refers to the transcript of the docket or journal entries, and not to the “transcript of the testimony or bill of exceptions.” The failure to file a bill of exceptions does not necessarily require a dismissal of the appeal, as there may be errors assigned which are exemplified on the face of the record.

The filing of assignment of errors and briefs is controlled by rule of Court. Rule VII. Sec. 2505.21 R. C., provides that:

“Failure to file such briefs and assignments of error within the time prescribed by the court rules is cause for dismissal of such appeal.”

This Court has many times ruled that the appeal will be dismissed for failure to file assignment of errors and briefs within fifty days after filing of notice of appeal on questions of law. Hall v. Hall, 62 Abs 119, 106 N. E. (2d) 661; Miami Motor Sales, Inc. v. Singleton, 62 Abs 244, 107 N. E. (2d) 130; Miller v. Miller, 62 Abs 369, 107 N. E. (2d) 412; State, ex rel. Merrill v. Moore, 83 Oh Ap 525, 82 N. E. (2d), 323; Price Bros. v. Walter, 65 Abs 442, 115 N. E. (2d) 12. See also Anderson v. Industrial Commission, 135 Oh St 77, 19 N. E. (2d) 509.

Application of appellants is denied. Motion of appellees to dismiss appeal for failure to file assignment of errors and briefs within the time prescribed by Rule VII is sustained.

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


author: By SKEEL, PJ.

text:
    TEDRICH FURNITURE COMPANY, Plaintiff-Appellee, v. TISDALE et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24410.
    Decided March 19, 1958.

      Feldman & Feldman, for plaintiff-appellee.
    Louis E. Weitz, for defendants-appellants.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment of the Municipal Court of Cleveland denying or dismissing a motion filed within term to vacate a judgment, the motion alleging “unavoidable casualty or misfortune preventing this defendant from defending this action.”

The plaintiff’s petition, filed November 23, 1956, prayed for judgment against two defendants (Carlos Fletcher and this appellant) for damages for breach of a contract to purchase furniture. It alleges that the defendants verbally purchased certain items of furniture and household goods for the sum of $528.00 and executed and delivered to plaintiff a note and chattel mortgage for said sum, plus carrying charges and sales tax, which sales tax amounted to $15.84. It is further alleged that defendants informed plaintiff that they would refuse to receive and pay for such furniture. (There is no allegation that the furniture was ever delivered.) The petition then states that the furniture cost plaintiff $277.03 and says that by reason of defendant’s breach of contract to purchase such furniture, he has been damaged in the sum $266.81.

The transcript shows an answer filed after default on the. pleading had been entered. The answer admitted the down payment on the furniture, alleges the cancellation of the purchase, and contains a general denial.

The transcript shows the following entry:

“July 17th, 1957: By consent of the parties hereto, judgment is rendered in favor of plaintiff for $200.00 and costs. Journal Entry filed July 17. 1957.”

With the motion to vacate on the grounds above set out, the defendant, Al M. Tisdale, filed an affidavit in which he sets forth that he has an adequate defense; that he was advised by counsel for defendant Fletcher that it would not be necessary for him to attend the hearing: that the defendant Fletcher would appear and defend the matter; that Fletcher did not attend the hearing but his counsel, without this defendant’s knowledge or consent, permitted to be entered, without trial, an agreed judgment in settlement of the claim against both defendants. This defendant specifically denies authorizing defendant Fletcher’s counsel to enter such judgment against him.

The bill of exceptions discloses that no hearing was had upon the defendant’s motion filed during term to vacate the alleged agreed judgment against him, although he was in court and through counsel, demanded the privilege of being heard. By the statement of his counsel, the court was advised that this defendant denied entering into a purchase agreement for the furniture, but that he was, in fact, a co-signer of the note and mortgage “* * * for the purpose of giving credit to the defendant Fletcher to allow for purchases from plaintiff; that defendant Tisdale was not a purchaser * *

Both of the claims of the defendant appellant Tisdale, if substantiated by evidence, would require the court to vacate the judgment and permit this defendant to be heard on the merits. It is said in 30 A. L. R. 2d 945, in an annotation dealing with the “Authority of attorney to compromise action,” paragraph two:

“The rule is almost universal that an attorney who is clothed with no other authority than that arising from his employment in that capacity has no implied power by virtue of his general retainer to compromise and settle his client’s claim or cause of action.”

In the case of Shilling v. Ross, 16 Abs 458 (Court of Appeals 1933), it was stated that the mere relationship of attorney and client would not authorize an attorney representing heirs to make an agreement with the administrator of an estate to allow and settle the account of the administrator in consideration of his recognizing the heirship of the claimants and making early distribution without requiring bond for refund, unless such attorney is specially authorized by the client so to do. See also other authorities to the same effect cited in 30 A. L. R. 2d 944. The rule as thus expressed is so universally accepted that citation of further authorities is unnecessary.

It appearing by the affidavit of this defendant that he denied the authority of the attorney of record to compromise the claim against him and the judgment entered showing clearly that it was entered without trial and by the “consent” of the parties, the court, in the exercise of its sound discretion, in considering a motion to vacate such judgment filed during term, should hear evidence to determine such controversy and the failure to do so constitutes an abuse of discretion.

The petition of the plaintiff, as above set out, seeks damages for breach of contract. It is claimed that the defendants purchased certain furniture and then refused to take delivery. The property still being in the possession of the seller, and as shown by the allegations of the petition, the action as stated must be based on §§1315.62, 1315.65 and 1315.66 R. C., of the Uniform Sales Code. If this be the theory of plaintiff’s case, then the tendered defense of this defendant that he did not purchase furniture from the plaintiff, but was, in fact, an accommodation maker of a negotiable note secured by a chattel mortgage on the furniture purchased, given as evidence of the debt created by the purchase of the furniture by the defendant Fletcher, if established by sufficient evidence, would be. a complete defense to the plaintiff’s claim. Certainly an accommodation maker of a note given to secure the purchase price of a sale of goods cannot be held liable in damages in an action, not for the purchase price or on the note, but seeking damages for.breach of the contract of purchase by the buyer where the subject of the sale was never delivered to the buyer. It was clearly the duty of the court, where there had never been a trial of the issues presented by the pleadings, to hear evidence on a motion to vacate judgment entered during term where the defense presented, if established, would completely absolve such defendant from liability to the plaintifl upon the cause of action pleaded. It is also evident from the face of the petition that the Retail Installment Act applies to this transaction and that the provisions of such act were not followed.

The defendant was certainly entitled to present his evidence on the motion in a hearing in open court. Therefore, for the foregoing reasons, the judgment is reversed and the cause is remanded for further proceedings according to law.

HURD and KOVACHY, JJ, concur.


author: By HORNBECK, J.

text:
    CHEH, d. b. a. DOUBLE JAX TAVERN, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL et, Appellees-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5436.
    Decided June 1, 1956.
    Charles T. Kaps, Columbus, Harry O. Finkelman, Middletown, for appellant-appellee.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellees-appellants.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal by the Board of Liquor Control from a judgment of the Common Pleas Court finding that the order of the Board with respect to charge No. 4 is not supported by reliable, probative and substantial evidence and not in accordance with law and vacating that portion of such order. The permittee files a cross-appeal from that portion of the judgment affirming the order of the Board with respect to charge No. 2.

There were four charges against permittee, two of which, the first and the third, were dismissed after hearing. Permittee was found guilty of a violation of charge No. 2, which is:

“On March 12, 1955, you and/or your agent or employee did sell in and upon the permit premises intoxicating liquor, to wit, malt beverages in excess of 3.2% of alcohol by weight, to Charles Wesley Orth, a minor, age 19 years — in violation of provisions of the Liquor Control Act and regulations of the Board of Liquor Control.”

Charge No. 4:

“On March 12, 1955, you and/or your agent or employee did knowingly allow in and upon the permit premises improper conduct in that you and your agent and/or your agent or employee did have, keep and possess lewd and obscene pictures — in violation of provisions of the Liquor Control Act and regulations of the Board of Liquor Control.”

On the appeal by the Board there is but one question presented, namely, did the trial judge err in holding that the photographs possessed by permittee on the permit premises were not lewd and obscene. By the Andrews case, 164 Oh St 275, this appeal and the immediate questions presented were heard and decided de novo in the Common Pleas Court.

There is and always has been decided difference of opinion as to what constitutes lewd or obscene pictures, drawings or delineations of the human form. It is urged that a picture which may be brought to the attention of those who regularly frequent permit premises may be characterized as obscene when the same picture exhibited' to another class of viewers might not be so characterized. We do not support this contention. A picture is, or is not, as a matter of fact, lewd or obscene, although those who inspect it may place different interpretation on its character. We have examined these pictures and according to the trial judge the prerogative assured him by the Andrews case, cannot say, as a matter of law, that he erred. One of the pictures is beyond doubt vulgar, but that it or any of the other pictures should have been classified as lewd or obscene by the trial judge, we may not hold.

We therefore affirm the judgment of the trial court on charge No. 4.

On the cross-appeal directed to charge No. 2, we have carefully read the transcript of the testimony taken before the Board. We are unable to find any factual development which would justify the Department, the Board, or the trial judge in holding that proof of violation of charge No. 2 was made.

There is no analysis in the transcript of the liquor from the bottle which was confiscated on the day of the alleged offense. Assuming that its content was a malt beverage in excess of 3.2% alcohol, there is no evidence from which inference can be drawn either that this liquor was sold to Orth, that it was in his possession or that he drank it.

Such of the judgment as relates to charge No. 2 is reversed and final judgment entered thereon for the permittee upon his cross-appeal. Such judgment as relates to charge No. 4 is affirmed.

Since the case was argued and submitted to this Court for decision, counsel for the appellant has filed a motion to strike the assignment of error and brief relating to the cross-appeal for the reason that the same was not filed in accordance with Rule VII. Such irregularity, if any, has been waived as the motion was not seasonably filed. Therefore, we do not pass upon the merits of the same.

MILLER, PJ, FESS, J, concur.


author: By BRYANT, J.

text:
    ROBNET et, Plaintiffs-Appellants, v. MILLER et, Defendants-Appellees.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5649.
    Decided August 16, 1957.
    Robert Dow Hamilton, John J. Dufley, Columbus, for plaintiffs-appellants.
    Henry A. Reinhard, Richard C. Addison, Columbus, for defendantsappellees.
   OPINION

By BRYANT, J.

Plaintiffs-appellants herein referred to as plaintiffs have appealed on questions of law from a judgment of Judge Robert E. Leach of the Common Pleas Court of Franklin County dissolving a temporary restraining order.

An objection was made by the Columbus Discount and Loan Corporation, herein called the Discount Company, that an appeal could not be made with respect to an order dissolving the temporary restraining order. By a decision dated July 2, 1957, this court, all three members thereof concurring, overruled this objection and held that, under the circumstances here, such an appeal could be maintained.

Plaintiffs make three assignments of error as follows: (1) That Judge Leach erred in holding that this action brought by plaintiffs cannot be maintained as a class suit; (2) That said court erred in ruling that plaintiffs are not entitled to the relief demanded in their petition and (3) That said court erred in sustaining the motion to dissolve the temporary restraining order.

A brief reference to the allegations of the petition and the steps heretofore taken will be made. There are eight defendants including three corporations and five natural persons. In addition to the Discount Company, referred to above, the two other corporate defendants are the Food Fair Budget Plan, Inc., herein called “Food Fair” and the National Cooperative Food Service, Inc., herein called “Food Service.”

It is alleged in the petition, in substance, that two of the corporate defendants, namely, Food Fair and Food Service, together with the five persons named as defendants, devised and carried out a scheme whéreby plaintiffs were defrauded and misled. The Discount Company, which apparently has purchased a sizable number of notes, is charged with none of the fraudulent scheme or fraudulent acts but is alleged to have had knowledge thereof.

It was alleged the plan went about like this: That the five individual defendants, as salesmen, officers or agents of Food Fair or Food Service, or both, told plaintiffs that Food Fair or Food Service would supply “the normal requirements of foods to Plaintiffs at one-half the regular retail price thereof, for a period of two years and thereafter; if Plaintiffs would sign certain notes and contracts for the purchase of a food freezer to store said foods.” (Petition, bottom page 1 and top page 2.) Plaintiffs said such representations were false and known by defendants to be false and were made to induce plaintiffs to sign contracts and notes for the purchase of freezers “at prices greatly in excess of their regular retail price.” (Petition, page 2.) Plaintiffs allege that food was supplied for a time at one-half price but that “as soon as their malicious, wanton, and fraudulent purpose was accomplished: and they had signed up other acquaintances of Plaintiffs in said scheme, and they had assigned the notes to Defendant, The Columbus Discount & Loan Corporation; the aforesaid Defendants then ceased supplying said food and thereafter refused to further supply said food at said one-half price.” (Petition, page 2.)

The petition then alleges the demands were made that the contracts be rescinded, that cognovit notes be returned to them and the money which they had paid be refunded but that such demands were refused.

The petition was filed November 27, 1956 and at that time had ten parties plaintiff, all of whom swore positively as to the truth of the allegations contained in the petition. Plaintiffs at the time of filing the petition applied to Judge Ralph J. Bartlett of the court below for a temporary restraining order and such order was issued. By this restraining order the three defendant corporations were restrained; (1) Prom taking cognovit judgments upon notes for the purchase of food freezers; (2) Prom enforcing collection of said notes or contracts in connection therewith and (3) Prom assigning, transferring or disposing of said notes while the litigation is pending. Bond was set at $100.

On November 30, 1956 the Discount Company filed a motion to dissolve this restraining order upon four grounds as follows: (1) Said order was granted without notice; (2) It was contrary to law; (3) It is prejudicial to the rights of this defendant and (4) Statements in the petition against the Discount Company are not true.

This motion to dissolve came on for hearing before Judge Bartlett and was overruled by him on December 6, 1956. The bond, however, was increased to $1,000. On December 12, 1956 the names of additional parties plaintiff were added to the petition and supplementary allegations also were added. On December 13, 1956 a demurrer was filed by three of the defendants namely, Pood Pair, Pood Service and Roland Ross, who may possibly be the Ronald Ross named as party defendant in the petition and referred to as President of both Food Pair and Food Service in the return of service made by the Sheriff.

This demurrer was upon the ground that the facts stated in the petition “show that a class suit is not authorized or maintainable against these defendants.”

On January 3, 1957 the Discount Company filed its answer alleging it is engaged in the business of purchasing commercial paper, namely, notes and mortgages from dealers. It set up eight defenses, one of them alleging a misjoinder of parties plaintiff and another setting forth a general denial. On January 15, 1957 Judge Marshall announced his decision on the demurrer, deciding that the parties plaintiff fall into two different classes. Referring to his decision on page four there appears the following language:

“In one class, described as ‘in many cases,’ certain plaintiffs were told that if they made purchases of frozen food for two years, the defendants would give freezers to such plaintiffs, without cost, but in making such representations the defendants had no intention to make gifts of the freezers and knew this when the representations were made.
“Another group or class of plaintiffs, described as ‘in other cases,’ allege they were induced to sign what was represented to be ‘a protective device,’ when, in fact, what was offered for signature and which was in fact signed, were blank contracts and cognovit notes.
“Here on the face of the petition is disclosed two entirely different classes of plaintiffs, with different kinds of representations described for each group. They may be considered somewhat similar types of fraud, but they certainly are not the same or identical fraud practiced by defendants on all 62 plaintiffs in this case.”

Judge Marshall concluded his decision by stating, “We do not say that a proper class action cannot be drawn in an equity case, seeking the equitable remedy of rescission and cancellation of instruments, which would withstand a demurrer, but we do not believe the present petition, as amended, can withstand the demurrer filed by the defendants. Plaintiffs may file one or more amended petitions in accordance with this ruling.” 0

In accordance with this decision Judge Marshall signed and there was filed a journal entry on January 25, 1957 and on the same day plaintiffs filed an amended petition which they contend is a full and complete compliance with the order made by Judge Marshall. They have made the representations referred to in the Marshall decision applicable to all of the plaintiffs contending that this makes one class only.

On February 1, 1957 the Discount Company filed a motion to dissolve containing three of the four grounds set forth by this same defendant in its previous motion to dissolve filed on November 30, 1956.

However, there was added a fourth ground namely, that a demurrer to the petition had been sustained. This later motion came before Judge Leach for decision and as heretofore stated his decision to dissolve the restraining order forms the basis for the appeal on questions of law now before this court. We are not unmindful of the fact that the main portion of the lawsuit has at all times remained in the lower court. It is, of course, desirable and in most cases absolutely necessary to have the ruling of the lower court on each and every question before passing upon it upon appeal. We feel that the order made by Judge Leach as disclosed by the journal entry on March 1, 1957 was erroneous and should be vacated and set aside. The very question before the lower court on the second motion to dismiss had been passed upon almost two months earlier by another member of the lower court.

We have examined the Bill of Exceptions. We do not believe the Discount Company has sustained the burden which the law places upon it. The burden was on the Discount Company to show that it was entitled to the order sought. This it failed to do. Only a single witness testified. He was Robert H. Hanback, Manager of the Discount Company. The court at pages 37-38 limited his testimony to the so-called basic question of what amount of bond would be required. He furnished the court with statistical information having to do with the accounts and negotiable papers held by the Discount Company.

But even if the burden had been maintained by the Discount Company there is another defect in the order namely, that only one defendant asked for a dissolution of the restraining order which then applied also to the other seven defendants. The language of the motion says the allegations of the petition as to this particular defendant are not true. According to the petition this defendant is the least culpable of any of the defendants. The petition merely says the Discount Company took the notes with knowledge of defects in them. The motion does not say that the allegations are untrue as to the other seven defendants, yet the court by its order lifted its injunction as to all eight defendants. The journal entry of March 1, 1957 incorporates into the court’s record the decision previously given, appears also to run contra to the order and decision previously made by Judge Marshall when it states that "from the petition and evidence that the plaintiffs are not entitled to the relief demanded, and that this action is not maintainable as a class suit.” The previous decision and entry by Judge Marshall merely had found there were two classes improperly joined and had given plaintiffs permission to amend, which they hád attempted to do. As before stated the evidence we were able to find in the record is insufficient to sustain the burden and appears to be limited to the question of the amount of the bond.

The opinions of the court below have been examined with care in an effort to find what distinction or difference, if any, was made with reference to questions arising out of §2307.18 R. C., relating to joinder of plaintiffs, and §2307.21 R. C., relative to bringing class actions. One frailty suggested namely, that some of the members of the class may want to keep their home freezers, is interesting. The class was described as including persons who were tricked, deceived and misled into believing they were getting a freezer without charge if they would buy frozen food at one-half price and it is difficult to imagine one of this class electing to pay out his contract to the last penny. Even if one such person were found, if a so-called unnamed plaintiff could assert such a claim, no such claim could be advanced or maintained by those whose names appear at the head of the petition.

One more point is worthy of mention. The Discount Company had on January 3, 1957 filed its answer containing among other things the defense of the so-called misjoinder. The propriety of raising by way of motion the substantially similar question set forth in an answer filed nearly a month previously is open to some question.

In conclusion, the entry of March 1, 1957 appears to have set aside, without adequate evidence, decisions previously made by two Judges of the same court. There may be circumstances when such action is permissible. However, the result may be confusing to litigants.

As far as we know it is not uncommon in case of courts of first instance composed of more than one judge, where each judge has the full power alone to sit and determine cases and questions for the rule to be adhered to that when a matter in regular course comes before one of them and is decided, it will not be reversed by another member of that court, in the absence of a showing of new facts or circumstances of a material naturé. Such a practice would seem to be sound procedure.

For the reasons set forth above the order appealed from is reversed and the cause remanded to the court below for further proceedings in accordance with law. This will permit the issues to be determined in the trial courts on the merits.

PETREE, PJ, MILLER, J, concur.


author: By SKEEL, J:

text:
    WEST HILL COLONY, INC., Plaintiff-Appellee, v. SAUERWEIN et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23818.
    Decided November 28, 1956.
    Marshman, Hollington & Steadman, Richard Hollington 8z Edward Crouch, of Counsel, for plaintiff-appellee.
    Merkel, Campbell, Dill & Zetzer, for defendants-appellants.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law and fact from a judgment and decree for the plaintiff entered by the Common Pleas Court of Cuyahoga County. The plaintiff’s petition seeks a mandatory order directing the defendants to paint their residence which is located in plaintiff’s Community No. 2 and 3, white to comply with restrictions applicable to sublots in the community, or, in the alternative, to direct specific performance of an agreement between plaintiff and defendants to paint said house white.

The plaintiff, a corporation, is the developer of a residential community at the northeast corner of Shaker Boulevard and Lander Road in Pepper Pike Village, Cuyahoga County. The plaintiff purchased between 85 and 100 acres of undeveloped land from Union Properties, Inc., located at that corner in 1939. Union Properties, Inc. acquired title from The Van Sweringen Company. The deed from The Van Sweringen Company to Union Properties, Inc., contained many restrictions, among which was the following:

“3. No building or structures or any additions thereto, or any alterations thereof, shall be erected, reconstructed, placed or suffered to remain on said premises, unless or until the_ architecture, size, location, type, cost, use, construction, materials, color scheme, grading, landscaping, lot plan, grade elevation and plot plan showing the proposed location of said buildings and structures upon said premises, and the plans, specifications and details of said buildings and structures shall have been approved in writing by the Grantor, and a true copy of said plans, specifications and details shall have been lodged permanently with the Grantor, and no buildings or structures, except such as conform to said plans, specifications and details shall be erected, reconstructed or suffered to remain upon said premises.”

This restriction, together with many others, was carried into the deed from Union Properties, Inc. to this plaintiff, West Colony, Inc. In 1946, the plaintiff sold defendants sublot No. 45 in its “Community No. 2 and No. 3” by warranty deed, which contained the following stipulation:

“Same being subject to all of the restrictions contained in a deed from Union Properties, Inc. to West Hill Colony, Inc. dated June 23, 1939, and recorded in Volume 4971, page 227 of the records of the Recorder of Cuyahoga County, Ohio.”

Since 1939 every purchaser of a lot in plaintiff’s development, known as West Hill Colony, was issued a share of stock in the company and thus participated or had the right to participate in the affairs of the company as a stockholder. At the beginning of the development in 1939, the board of directors of plaintiff adopted a resolution that all houses in the community would be of Colonial or Western Reserve type architecture and would be painted white. An architectural committee was appointed to supervise the regulation thus adopted and, although the membership of such committee changed from time to time, it has continued to carry out its purposes under the restrictions or general plan of development applicable to all lot owners. The defendants in 1940 became lot owners and built a house complying with restrictions in West Hill Colony, and Val E. Sauerwein was then issued a share of stock. At the time this petition was filed, he was still the owner of this share of stock.

After purchasing lot No. 45 in Community No. 2 and No. 3 from the plaintiff' on April 25, 1946, the defendants presented plans to the plaintiff’s architectural committee (thus showing their knowledge of the regulations) which the committee refused to approve until the defendants agreed to paint the house white. The defendants at first tried to avoid the requirements of painting the house white because the outside walls of the house were to be of brick construction. But on October 26, 1949, the defendants entered into an agreement with plaintiff to paint the brick exterior (excluding chimney) in accordance with the restrictions of their deed and the rules and policy of plaintiff as supervised through its architectural committee. This agreement was evidenced by the following-writing on the plans of defendants’ proposed house then to be built on Sublot No. 45 and signed by Val E. Sauerwein:

“Shingles to be asphalt of 300 lbs. per square block. All exterior brick except chimney to be painted.
(Signed:) V. E. Sauerwein 10-26-49."

Upon concluding such agreement, the plaintiff approved the building plans of defendants, and the defendants were enabled to get a permit to build, which was issued to them by the Village of Pepper Pike. The defendants proceeded to and did build the house on Sublot No. 45, but upon its completion and ever since, although requested many times so to do, have refused and still refuse to paint the exterior of the house white as required by the restrictions and as defendants promised to do in order to be accorded the privilege of building the house in West Hill Colony.

At the outset, it must be stated that the defendant, Dorothy D. Sauerwein, is charged and bound by the acts and agreements of her husband, the defendant, Val E. Sauerwein, with regard to the' building of their home when the lot was placed by the act of the parties in the wife’s name. The evidence shows that the defendant husband conducted negotiations for the privilege of improving his wife’s lot by building a home thereon. A wife, as a member of the family, does not live in a vacuum completely oblivious of family negotiations, promises and the need to be responsible for carrying out family projects. Sec. 1311.10 R. C., provides, among other things, that where a married woman is the owner of land upon which a house is being built or repaired under a contract with the husband of such woman and without her express objection, he is the authorized agent of his wife therein. This section, while not directly in point, certainly expresses the theory of the law of this state where a husband contracts for the improvement of his wife’s property with her knowledge, she is bound by his agreements. The claim that Mrs. Sauerwein is not bound by what her husband did to secure a permit to build a home for the family on a lot held in her name is without merit and will be completely disregarded.

The evidence shows that West Hill Colony community upon its organization determined on a plan for its uniform development. An architectural committee was created and as shown by the minutes of directors’ meetings, it was determined that the type of residences should be “Western Reserve or Colonial” in character and painted white

Under the restrictions in defendants’ deed, the grantor was given the right to require approval of the architecture, size, location, type, cost, use, construction, materials, color scheme, landscaping, lot plan and grade elevation of a house built in plaintiff’s community. The use of the lot was also subject to the right of the grantor to fix by resolution the type of house and color scheme to be used in the development of defendants’ property. The defendants were fully informed as to the requirements and restrictions of the West Hill Colony Development and were bound to comply therewith unless the requirements were not sufficiently defined or were unreasonable and arbitrary. The evidence shows that the plaintiff’s community has been built up by many individual lot owners in complete compliance with the plan as formulated by plaintiff resulting in benefit to all. The fact that all owners, with but two or three exceptions, including these defendants, have fully complied with the plaintiff’s plan of development is irrefutable evidence that the plan was sufficiently definite and reasonable. In the case of Dixon v. Van Sweringen, 121 Oh St 56, 166 N. E. 887, the Supreme Court, in dealing with the right of a community builder to require a lot purchaser in its subdivision to improve his property under the provisions of a plan looking to harmonious development said:

“1. Where an owner of land has adopted a general building scheme or plan for the development of a tract of property, designed to make it more attractive for residential purposes by reason of certain restrictive agreements to be imposed upon each of the separate lots sold, embodying the same in each deed, such agreements will generally be upheld, provided the same are not against public policy.
“2. In order that restrictive agreements in a deed may be declared void as against public policy, the same must violate some statute, or be contrary to judicial decision, or against public health, morals, safety or welfare, or in some form be injurious to the public good.”

The restrictions here insisted upon by the plaintiff are for the general benefit of all the home owners in the community. Wallace v. Clifton Land Co., 92 Oh St 349, 110 N. E. 940. The defendants here have no standing in a court of equity in attempting to disregard reasonable requirements imposed on them by the restrictions of the deed to maintain the harmonious and aesthetic character of the residence community in which their home is situated and must conform to such community plan.

As indicated herein, not only do the restrictions of defendants’ deed, as directed by the architectural committee of the grantor plaintiff, require compliance therewith but in addition the defendants bound themselves by contract to paint their house white. The facts upon which this part of the case is based are fully set forth above in the statement of facts. The contract was made by the plaintiff on its own behalf and on behalf of all other home owners in the community to require uniformity in the development of the color scheme of the allotment. That such agreement was supported by adequate consideration cannot be the subject of doubt. There could be no adequate remedy at law that could be instituted for a breach of this agreement so that resort to an action in specific performance is clearly available to the plaintiff. The defendants are legally bound to perform their promise to paint their residence white to conform with all others about them in consideration of the privilege granted them to build in this restricted community, and the court will, therefore, direct them to do by its decree.

For the foregoing reasons, a decree will be entered for the plaintiff as prayed for. Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By CRAWFORD, J:

text:
    DEAN, Plaintiff-Appellee, v. DEAN et, Defendants-Appellants.
    Ohio Appeals, Second District, Fayette County.
    No. 284.
    Decided April 25, 1957.
    Shoemaker, George & Hill, Columbus, By Fred Shoemaker, of Counsel, for plaintiff-appellee.
    Robins, Metcalf & Alton, Columbus, By Jack R. Alton, of Counsel, for defendants-appellants.
   OPINION

By CRAWFORD, J:

This is noted as an appeal on questions of law and on questions of law and fact. However, both sides presented and submitted the case as an appeal on questions of law only, and it will therefore be so dealt with in this decision. The case is submitted upon the evidence contained in the transcript of testimony taken at the trial.

Plaintiff-Appellee, Edwin W. Dean, and the defendant-appellant, George Rodney Dean, are brothers. In March of 1946 their grandmother conveyed a property located at 812 Ebner Street in Columbus, Ohio, for the sum of $4,500.00. Title was taken in the name of George Rodney Dean, in whose name also a mortgage of $4,500.00 was obtained to finance the purchase. The property was sold on December 7, 1951 for the sum of $7,000.00, which was $3,573.49 in excess of the balance owing on the mortgage and the expenses of sale.

Plaintiff-appellee alleged in his petition that the purchase and ownership of the premises constituted a joint enterprise and that it was orally agreed: that for reasons of convenience, title was to be taken temporarily in the name of George Rodney Dean only; that each would share “one-half of the mortgage payments, repairs and water bills and any and all expenses resulting from ownership of said premises;” and that when the plaintiff-appellee was graduated from Ohio State University, the defendants-appellants, George Rodney Dean and his wife, Louise Dean, would convey to him title to an undivided one-half interest.

The petition further alleged that the premises comprised a duplex; that plaintiff-appellee lived in the upper, and the defendants-appellants in the lower apartment and that the parties shared equally in the mortgage payments and expenses as agreed;

But that when he was graduated, defendants-appellants refused to convey to him his undivided one-half interest but instead, and without his knowledge or consent, conveyed the premises to one Leslie Gordan;

That he is not familiar with the terms of the sale to Leslie Gordan • and has received nothing for his undivided one-half interest in the property and that the defendants-appellants used the proceeds of the sale to purchase their present property in Fayette County, Ohio.

The prayer of the petition is for an accounting and distribution in accordance with the agreement and for the declaration and enforcement of an equitable trust in favor of the plaintiff-appellee in the Fayette County property of defendants-appellants.

Defendants-appellants answered, admitting the purchase of the Columbus property in the name of George Rodney Dean and his execution of the $4,500.00 mortgage; alleging that the parties orally agreed to share equally all expenses and profits, and asserting that such agreement is unenforceable under the statute of frauds.

They also filed a cross-petition alleging that the plaintiff-appellee lived in the upstairs apartment while they themselves lived in the downstairs apartment; that plaintiff-appellee rented part and later all of the upstairs apartment; that after a time they also rented the downstairs apartment; but at a much less rental than was obtained for the upper one, the difference being attributed to O. P. A. regulations then in force, and that they expended the sum of $758.00 for repairs and expenses. They prayed for judgment based upon a division of these repairs and an equalization of the rentals between the upper and lower apartments.

The trial court found that the parties had agreed to and did purchase together the Columbus property from their benevolent grandmother, solely upon the condition that each grandson would own an undivided one-half interest in the same; that although the title was taken and the mortgage given in the name of George Rodney Dean for reasons of convenience, they were in fact co-owners and in accordance with the agreement paid equally upon the mortgage and shared equally the expenses and the cost of improvements upon the outside of the house; that further in pursuance of the agreement plaintiff-appellee exercised complete dominion over the upper apartment and made certain repairs thereon solely in accordance with his own desires, and at his own expense; that defendants-appellants exercised complete dominion over the lower apartment and made certain repairs thereon solely in accordance with their own desires, and at their own expense, and that these acts constituted sufficient part performance to take the oral agreement out of the statute of frauds.

The court further found that there was no agreement as to division of rents, so that each brother was entitled to retain the rent received from the apartment occupied and managed by him.

The court therefore awarded judgment to the plaintiff appellee for $1,768.74 with interest, the principal sum being one-half of the net proceeds of the sale, which amounted to $3,573.49; impressed an equitable lien in favor of plaintiff-appellee upon defendants-appellants’ present property in Fayette County for the amount of the judgment; dismissed the cross-petition of the defendants-appellants, and assessed the costs against them.

Defendants-appellants made the following assignments of error;

“1. The Court erred in its findings of facts.
“2. The Court erred in imposing an equitable lien on the property of Defendants-Appellant.
“3. The Court erred in dismissing the Cross Petition of Defendants-Appellant.
“4. The Court erred in rendering Judgment for Plaintiff.
“5. Other errors apparent on the face of the record.”

As to assignments Nos. 1, 3 and 4, the evidence amply supports the findings of fact; and the facts so found clearly constitutes sufficient part performance of the oral agreement to render it enforceable under the provisions of the statute of frauds.

Assignment No. 2, questions the granting of an equitable lien. The record shows that defendants-appellants gave a supersedeas bond in the sum of $2,000.00, payable to plaintiff-appellee, conditioned according to 82505.14 R. C., whereupon the trial court cancelled and held for naught the equitable lien previously decreed. Hence, this issue is no longer in the case.

As to assignment No. 5, there being no errors apparent upon the face of the record,

The judgment is affirmed.

HORNBECK, PJ, WISEMAN, J, concur.


author: By DOYLE, J.

text:
    TONY APPLE SEWER and WATER CONSTRUCTION CO., Plaintiff-Appellant, v. PERLICK et, d. b. a. PERLICK & CO., Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24250.
    Decided January 24, 1958.
    Joseph L. Newman, for plaintiff-appellant.
    Bennett Yanowitz, for defendants-appellees.
    (HUNSICKER, PJ, STEVENS and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.

We are called upon to review the action of the Municipal Court of Cleveland in the rendition of a judgment for the defendants, in a suit brought by the plaintiff on an account for work and labor. The petition was in the short form, under authority of §2309.32 R. C.

The action was defended on the ground that the services were rendered under a special contract, and that full payment had been made.

Trial was had to the court without the intervention of a jury; and, in the light of the record before us, we are concerned principally with the legal question of the weight of the evidence.

The Court of Appeals, in a case properly before it, not only has the power but the duty to weigh the evidence, if the question has been properly brought up on the record.

In our appraisal of the evidence, we find it in direct conflict, and such that reasonable minds might differ as to the inferences to be drawn therefrom. In such a situation this court, in an appeal on questions of law, cannot find the issues of fact otherwise than was found by the trier of the facts. The credibility to attach to the testimony of the various witnesses was solely the function of the trial judge.

If the burden of proof of establishing the terms of a contract was upon the defendants (which claim of the appellant we do not here challenge), nevertheless the evidence of the defendants was sufficient to establish their version of the contract.

The members of this court are of the unanimous opinion that the judgment should be affirmed. We find no error to justify a reversal.

Judgment affirmed.

HUNSICKER, PJ, STEVENS, J, concur.


author: Per CURIAM.

text:
    STATE, ex rel. CUNNINGHAM, Plaintiff-Relator, v. EAST LIVERPOOL CIVIL SERVICE COMMISSION, Defendants-Respondents.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 747.
    Decided February 21, 1957.
    S. S. Fekett, Youngstown, for plaintiff-relator.
    Joseph W. C. Cooper, City Solicitor, East Liverpool, for defendants-respondents.
   OPINION

Per CURIAM.

This is an action in mandamus seeking an order to compel "defendants to allow said relator-plaintiff to file an application for the civil service promotional examination for the office of captain of the Police Department of the City of East Liverpool, Ohio, scheduled for August 21, 1956, that respondents-defendants be required to include relator-plaintiff’s name on the eligible list and further prays that said defendants be ordered to grant plaintiff the right to compete in said examination.”

The matter was submitted to us on stipulated and agreed facts as follows:—

“1. Plaintiff-relator has been appointed, qualified and acted as a police officer in the Police Department in the City of East Liverpool, Ohio, since March 4, 1950, that said appointment has been made from an eligible list duly certified by the Civil Service Commission of the City of East Liverpool, Ohio.
“2. On the 23rd day of March, 1956, plaintiff-relator, Ira Cunningham, received the following letter:
“ ‘Order of Suspension.
“ ‘Whereas, certain charges of breaking and entering have been filed in Municipal Court in the City of East Liverpool by the Chief of Police of this city against Ira W. Cunningham affecting his efficiency and honesty, said charges constituting acts of malfeasance in office, and whereas said charges are still pending.
“ ‘It is hereby ordered that Ira W. Cunningham is hereby suspended without pay from his duties as patrolman of the Police Department of the City of East Liverpool until said charges are disposed of.
“ ‘This order is made under authority of §143.26 R. C., and is effective on the date hereof.
William C. Heasley
Director of Service & Safety.
Dated March 23, 1956.’
“3. On March 27, 1956, Plaintiff-Relator, Ira Cunningham, filed with the Safety Director the following letter:
“ ‘March 27, 1956
“ ‘Mr. William Heasley
“ ‘Director of Public Safety
“ ‘City Building,
“ ‘East Liverpool, Ohio
“ ‘Sir:
“ ‘Replying to the order of suspension issued against me, I am not guilty of the charges and fully believe I will be vindicated of said charges.
Ira Cunningham.’
“4. It is further stipulated and agreed that on or about March, 1956, the office of Chief of Police in the Police Department of the City of East Liverpool, Ohio, became vacant.
“5. It is further stipulated and agreed that on or about March, 1956, plaintiff-relator, Ira Cunningham, was charged with the crime of breaking and entering.
“6. It is further stipulated and agreed that as a result of said charges plaintiff-relator, Ira Cunningham, was indicted for breaking and entering on or about April, 1956.
“7. It is further stipulated and agreed that plaintiff-relator, Ira Cunningham, has been acquitted by a Petit Jury on one of the indictments against him, that the other indictments are still pending in the Common Pleas Court of Columbiana County, Ohio.
“8. A list of purported eligible police officers was published, that said list omitted the name of plaintiff-relator, Ira Cunningham, that said list purported to indicate the names of police officers eligible to submit to the promotional examination, that said examination was tentatively scheduled for August 21, 1956.
“9. It is further stipulated and agreed that plaintiff-relator, Ira Cunningham, notified and demanded that his name appear on the list of the police officers eligible for the promotional examination, that as a result of said request and demand the following letter was received from the Civil Service Commission of East Liverpool, Ohio:
“‘August 4, 1956
“ ‘Mr. Ira W. Cunningham
“ ‘703 Riley Avenue,
“ ‘East Liverpool, Ohio.
“ ‘Subject: Promotional Examinations for Police Chief and Captain
“ ‘Dear Sir:
“ ‘In reply to your letter of Aug. 3, 1956 please be advised that this Commission is complying with the City Solicitor’s opinion that you are ineligible to compete in the above examinations to be conducted Aug. 16 and 21, 1956. This opinion states that your suspended status also includes suspension of all rights to compete in promotional examinations.
Yours very truly,
Civil Service Commission
By: R. G. Borger, Secretary.’
“10. It is further stipulated and agreed that the examinations were postponed indefinitely and that said examinations have not been held as of the date of this brief.
“11. It is further stipulated and agreed that Ira Cunningham never did make an appeal to the Civil Service Commission of the City of East Liverpool, Ohio, and therefore no hearing was granted to said Ira Cunningham.
“12. It is further stipulated and agreed that the letters set forth in Stipulations 2 and 3 were duly certified to the Civil Service Commission.
“13. It is further stipulated and agreed that the Civil Service Commission of East Liverpool had adopted a set of rules and regulations among which is the following:
“Rule XII. 2. Hearings on appeal from persons reduced in pay or position, laid off, suspended, or discriminated against by appointing officers, shall be conducted generally in the same manner as hearings on appeal from orders of dismissal under the provisions of §486-17a GC (now 8143.27 R. C.)
“and this rule was in full force and effect during the periods mentioned in the stipulations and is still in full force and effect.”

Notwithstanding that the question presented is and was moot because the date of examination had expired before the appeal was heard we will proceed to determine that question as though the petition sought to compel the respondent commission to permit relator to take such examination whenever set by such commission.

Relator contends:—

* * that the Civil Service Commission has not conducted a hearing and therefore has not made its finding and further therefore, making it meaningless for the plaintiff-relator, Ira Cunningham, to file an appeal to the court of common pleas. We submit that there is no order from which the appeal could be perfected.”

Respondents contend:—

“1. That inasmuch as the relator, Ira Cunningham, never made any appeal or request for hearing to the Civil Service Commission that he has not availed himself of the right of objection and therefore his suspension is valid, in force and effect, and he has no right to take a promotional examination.
“2. That relator has brought an action asking for a writ of mandamus and that the writ of mandamus is not available to him inasmuch as he has an adequate remedy in the ordinary course of the law.”

Relator was suspended under authority of §143.26 R. C., which provides:—

“No person shall be reduced in pay or position, laid off, suspended, discharged, or otherwise discriminated against by an appointing officer for religious or political reasons or affiliations. No chief of police or chief of a fire department or any member of a police or fire department shall be reduced in rank, laid off, or suspended, except as provided in §§143.27 and 143.28 R. C., with reference to the removal of any officer or employee in the classified service of the state, counties, cities, and city school districts. In all such cases of reduction, layoff, or suspension of an employee, whether appointed for a definite term or otherwise, the appointing authority shall furnish such employee with a copy of the order of layoff, reduction, or suspension, and his reasons for the same, and give such employee. a reasonable time in which to make and file an explanation. Such order together with the explanation, if any, of the employee shall be filed with the commission. In case the order applies to the chief of police or chief of a fire department or any member of a police or fire department of a city, the commission shall conduct a hearing following the filing of the order and explanation, to determine the sufficiency of the cause of the order. Secs. 143.01 to 143.48, inclusive, R. C., do not limit the power of an appointing officer to suspend without pay, for purposes of discipline, an employee for a reasonable period, not exceeding thirty days, excepting that in the case of the chief of police or chief of a fire department or any member of a police or fire department of a city, the suspension shall be made in the manner and subject to the right of appeal as provided in this section. Successive suspensions shall not be allowed, and this section does not apply to temporary and exceptional appointments made under the authority of §143.23 R. C.”

Answering respondents’ second contention first we conclude that relator must be denied a writ of mandamus because he had an adequate remedy at law, to-wit the right of appeal to the Civil Service Commission of the City of East Liverpool, Ohio, which he failed to pursue.

“The writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law.” Sec. 2731.05 R. C.

See State, ex rel. Harris, Chief of Police, v. Haynes, Mayor, et al, 157 Oh St 214.

This conclusion obviates the necessity of passing upon respondents’ first contention.

Writ denied.

NICHOLS, PJ, GRIFFITH and PHILLIPS, JJ, concur.


text:
    BROOKS FUNERAL HOME, INC., Plaintiff-Appellant, v. HATCHER, Defendant-Appellee.
    Ohio Appeals, Second District, Fayette County.
    No. 283.
    Decided December 28, 1956.
    Lawrence M. Gwynn, Columbus, for plaintiff-appellant.
    Walter E. Schaeffer, Columbus, for defendant-appellee.
   OPINION

By THE COURT:

A brief of appellant has been brought to the attention of the court. An examination of the Court of Appeals docket discloses that the brief has not been filed with the papers. There is no bill of exceptions setting forth the factual developments at the time the judgment was entered. The brief of appellant does not assign any specific errors, but requests that this court enter final judgment in its favor based upon the facts as has been set forth in the brief.

Manifestly, the facts may not be brought to the court on an appeal on questions of law by mere recitation in the brief of one of the parties and there is insufficient factual development elsewhere to predicate any judgment in favor of the appellant.

Whether or not any error intervened to the prejudice of the plaintiff may not be determined because it is not exemplified nor assigned in the brief.

In the situation thus developed, the brief of appellant may be filed in the office of the Clerk of Courts of date, December 1, 1956 and an order affirming the judgment entered. No other order could be made upon the appeal.

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


text:
    UNITED STATES STEEL COMPANY, Appellant, v. OLEWINSKI, Appellee.
    United States Court of Appeals, Sixth Circuit,
    No. 12736.
    Decided June 29, 1956.
    James C. Davis, Squire, Sanders & Dempsey, Cleveland, on the brief, for appellant.
    Theodore T. Sindell, Fred D. Shapiro, Sindell, Sindell, Renswick & Bourne, Cleveland, on the brief, for appellee.
    Before MARTIN and STEWART, Circuit Judges, and STARR, District Judge.
   OPINION

Per CURIAM.

The appellee was injured while working as an electrician for an independent contractor on the appellant company’s premises at Lorain, Ohio. Diversity of citizenship existing, he brought this action in the district court, where he was awarded a money judgment upon a jury verdict in his favor.

Appellant argues that as the owner of the premises it violated no duty to the appellee under the law of Ohio, since the appellee had full knowledge of the dangerous condition which caused his injuries. In so contending, appellant places prime reliance upon Schwarz v. General Electric Realty Corp., 1955, 163 Ob St 354, 56 O. O. 319, 126 N. E. (2d), 906; Wellman v. East Ohio Gas Co., 1953, 160 Oh St 103, 51 O. O. 27, 113 N. E. (2d), 629; Davis v. Charles Shutrump & Sons Co., 1942, 140 Oh St 89, 23 O. O. 299, 42 N. E. (2d), 663, and this court’s decision in Ford Motor Co. v. Tomlinson, 6 Cir., 1956, 229 F. (2d), 873, 59 O. O. 345. It is also the appellant’s position that the appellee was guilty of contributory negligence and assumed the risk of injury as a matter of law. Masters v. New York Central Rd. Co., 1947, 147 Oh St 293, 34 O. O. 223, 70 N. E. (2d), 898. It is urged that the trial court was in error in not directing a verdict for the appellant upon these grounds.

In Ford Motor Co. v. Tomlinson, supra, this court took occasion to review the Ohio law as to the liability of an owner for injuries received on his premises by an employee of an independent contractor, with particular reference to the so-called “frequenter” statutes of Ohio. Secs. 4101.11 and 4101.12 R. C. In the Tomlinson case, as in Schwarz v. General Electric Realty Corp., supra, the immediate cause of the accident was the negligence of other employees of an independent contractor over whom the owner exercised no control. Not only is that factor not present in the instant case, but the dangerous instrumentality that caused the injury here, high-voltage electricity, was within the complete and exclusive control of the appellant. Viewing the evidence in the light most favorable to the appellee, we cannot conclude that the court was in error in submitting to the jury the questions of negligence, contributory negligence and assumption of risk. Moreover, we perceive no prejudicial error in the court’s instructions upon the issue of assumption of risk.

Accordingly, the judgment of the district court is affirmed.


text:
    STATE, ex rel. WILLIS, Relator, v. INDUSTRIAL COMMISSION, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5727.
    Decided April 1, 1958.
    Keith McNamara, Elliott, Hilliard & Martin, Clyde R. Elliott, George Leshy, of Counsel, Columbus, for relator.
    William Saxbe, Atty. Geni., Robert M. Duncan, Asst. Atty. Geni., Columbus, for respondent.
   OPINION

By BRYANT, J.

Thomas D. Willis, relator herein, has invoked the original jurisdiction of this court asking for a writ of mandamus against The Industrial Commission .of Ohio, respondent herein. Willis seeks to require said commission to vacate and set aside orders made by it on January 25, 1957 and March 14, 1957, holding that it had no jurisdiction to entertain the application filed by Willis. Relator further prays for an order compelling said commission to entertain and assume jurisdiction of the application filed by Willis and to consider it on its merits.

The principal facts in this case appear not to be in dispute, and both sides have agreed to the submission of the official file of the respondent. From that file it would appear that on March 27. 1956 Willis filed a form of application “For Occupational Disease Only.” This form being the official application form prescribed by said commission is in three parts spread over some four pages. The first part contains questions to be answered by the employer, the second contains questions to be answered by the employee and the third by the attending physician. From this we learn that Willis was first employed by the Nitrogen Division — Allied Chemical and Dye Corporation of South Point, near Ironton, Ohio on January 26, 1948 and apparently continued in their employ until on or about March 24, 1955 when he quit. The employer reported the reason for his quitting was “illness.” Willis amplifies this by stating his symptoms were “nausea and vomiting, profuse sweating, diarrhea, and a semicomatose.” Further describing his symptoms, Willis said “loss of reflexes in lower extremities, pain, swelling and numbness of feet.”

.We conclude that both sides are in agreement that on March 24, 1955 Willis was disabled and left his job for that reason. It appears that he was attended by a number of physicians and that his condition was initially diagnosed polyneuritis. When he failed to respond to the treatments prescribed, other physicians were called in consultation and other tests were made. In the late Fall of 1955, one physician in Columbus, after careful study, concluded that Willis’ condition “could well be arsenic poisoning.” Another specialist in preventive medicine was called into the ease' who gave a so-called final opinion and final diagnosis that Willis was suffering from “peripheral neuropathy of toxic origin probably due to arsenic.” This later opinion was given December 2, 1955.

As before stated Willis’ claim was filed on March 27, 1956 and the respondent has refused to accept jurisdiction of it because of the statutory limitation applicable in such cases. It is clearly provided that in such cases the claim for occupational disease must be filed within six months after the disability due to the disease began. Sec. 4123.85 R. C., provides in part as follows:

“In all cases of occupational disease, or death resulting from occupational disease, claims for compensation shall be forever barred unless, within six months after the disability due to the disease began, or within six months after death occurred, application is made to the industrial commission, * * (Emphasis added.)

On the basis of the record submitted, there appears no doubt that on March 24. 1955 the disability of Willis had begun, as was evidenced by his own statement and by the fact that he did not work after that date. It is equally clear that the application for compensation was not filed until March 27, 1956 more than a year later, whereas the statute requires that it be filed within six months after the disability due to the disease began.

Relator argues that he could not have filed his claim sooner because the final diagnosis by the last physician who examined him and diagnosed his condition as due to arsenic poisoning was not made until December 2, 1955. It may well be that the law should be amended to allow for such cases as that of relator herein, but that of course is a matter over which we have no control. We are compelled to ■ take and apply the law as we find it and applying the statute above set forth are unable to find that there has been a gross abuse of discretion on the part of respondent or that respondent has deprived relator of any clear legal right.

For the reasons above set forth the prayer for a writ of mandamus must be denied.

PETREE, PJ, MILLER, J, concur.


text:
    BELKNAP, Appellant, v. BOWERS, Tax Commr., Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 33463.
    Decided June 20, 1957.
    A. Glenn McClelland, for appellant.
    William B. Saxbe, Atty. Geni., by Chester Hummell, Asst. Atty. Geni., for appellee.
   OPINION

This appeal is from a final order of the Tax Commissioner, under date of November 29, 1956, wherein the Commissioner denied appellant’s application for a refund of sales taxes paid in the sum of $1617.00.

The cause now comes on for further and final consideration upon appellant’s notice of appeal, the Commissioner’s transcript and order made, the record of a hearing had on April 3rd, last, and briefs of counsel.

The period of time covered by the claim extends from January 1, 1948 to December 31, 1952, inclusive. During the hearing had the taxpayer abandoned all that portion of his claim covering the period of time prior to September 25, 1951. As appellant stated in his brief:

“The reason for this abandonment was the mistaken belief that the application for prepayment and the journal entry which made the rate of tax dependent upon a spot check was in fact dated in September of 1951, rather than in 1948.”

There is an overture to the present claim which must be understood in order to appreciate what is here attempted to be accomplished. Vendor since 1935 has had exclusive concession contracts for athletic events sponsored by the Athletic Department of Ohio State University; for the sale of soft drinks, ice cream, candy and the like. Due to the method and nature of making these sales, the vendor had been granted successive permits by the Tax Commissioner for prepayment of sales tax upon a percentage basis as he is authorized to do. Pursuant to the holding of the court in Cleveland Concession Co. v. Peck, 159 Oh St 480, 50 O. O. 396, this concessioner filed a previous application for refund and thereby eventually secured a refund of $8,573.76, see Case No. 25845 before this Board. B. T. A. Journal 52, page 640, affirmed -in Belknap v. Bowers, 163 Oh St 72, 56 O. O. 59. We now quote the following from appellant’s brief:

“Commencing with September 24, 1951, and extending through December 31, 1952, the rate was 4% of 33 1/3% of the vendor’s gross sales but ‘subject to spot checks and revision up or down at the end of 1951 season.’ No spot check or study of the vendor’s actual sales operation was made until September 24, 1955, as a result of which it was determined that only 6% of vendor’s total sales were taxable rather than the 33 1/3%, the basis upon which the vendor had been remitting.
“The gist of this claim is, therefore, that the refund actually made was insufficient and that an actual rate study reflects exactly what the refund should have been for the year and one-third in question.”

Appellant argues further, page 2 of his brief:

“Can a vendor base a claim for refund of Ohio sales tax claimed to have been erroneously paid by applying the results of a subsequent rate study to the volume of sales made in earlier years? I think the answer is quite apparent that such cannot be done; that the rate as applied for and journalized are conclusive. The very apparent exception is here presented. Reference is made to the application of the vendor dated September 25, 1951, wherein the Sales Tax Section of the Department of Taxation insisted upon the inclusion of the phrase ‘subject to spot checks and revision up or down at the end of 1951 season.’ This was inserted for the express purpose of making a rate study to determine that the State was getting the proper amount of tax yield on this operation. The rate was consequently tentative and substantially the same language was incorporated into the entry by which this vendor was authorized to prepay the sales tax. Too, the same application and entry remained in effect through the entire calendar year 1952.”

We do not find at any place within the record, exhibits or transcript, any evidence to the effect that the Sales Tax Department insisted upon the inclusion of the wording about which the controversy centers. The Taxpayer’s application of September 24, 1951, for permission to prepay sales tax reads a bit different than appellant’s argument. The application states:

“The applicant, or applicants, states that the rate of tax which he, they, or it shall pay to the State upon the receipts he receives from his gross taxable sales is 4 per centum of 33 1/3% of Gross Sales (No deductions) subject to spot checks and remission up or down at end of 1951 season.”

By whom or when this language was written in this application we do not know in the absence of any evidential proof thereof. Neither are we advised whether or not this is a usual or an unusual phrase in like applications. Since appellant or his counsel drew this document we must and do assume that they formulated these words. We do note that the Commissioner’s entry of October 2, 1951, approving of the application, includes the same words. Appellant recognizes that a Tax, Commissioner’s journal entry approving an application for permission to prepay sales tax is prospective in character and not- retrospective. But he contends that the language used creates an exception. Appellant knew that his tax would be 4% of 33 1/3% of his gross sales until the end of his 1951 season. He also knew that the Commissioner had the power to' and might make a spot check and establish a greater or less percentage for the 1952 season. He knew that if he was dissatisfied with the amount of his tax in 1951 that he could at any time thereafter make an application for establishment of a new percentage figure for 1952 or any year thereafter. He knew that his tax for the 1951 season would be no more or no less than the journal order established. Irrespective of who wrote these words in the application and journal for 1951, they constitute an agreement fixing the taxable percentage figure for that year and each year thereafter, so long as the Commissioner and the Taxpayer were both satisfied therewith. By the order made the taxpayer secured a special privilege. It was not conditioned upon any subsequent recheek which might fix tax percentages for a subsequent and future period only.

As we see it the rebate paid the taxpayer previously was a finality upon the remand. If appellant was not fully satisfied with the result of his claim for refund, he should then have appealed therefrom. There is nothing tentative in the order of 1951. He is not entitled to any further rebate under his 1951-1952 sales. The Tax Commissioner did not err in his order complained of, and the same is hereby affirmed.