author: By HOY, J.:

text:
    STATE, ex rel. HOVER, Plaintiff, v. BRAXTON W. CAMPBELL CO. et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-133438.
    Decided April 28, 1953.
    Robert L. Black, John J. Sullivan, Cincinnati, for defendant, Braxton W. Campbell Company.
    John Cooney, Nathan Solinger, Cincinnati, for defendants, Eugene Bezenah, Ella Bezenah and Myrtle Bezenah.
   OPINION

By HOY, J.:

This action was brought by the State of Ohio on the relation of C. Watson Hover, Prosecuting Attorney of Hamilton County, Ohio, against the Braxton W. Campbell Company as owner, and Eugene Bezenah and others as lessees and operators, to enjoin the use of certain premises known as “The Drake Hotel” for purposes of prostitution.

In the interest of brevity the defendant, The Braxton W. Campbell Company, will be referred to as the lessor and the defendants Bezenahs as lessees.

The lessor has filed a cross petition against the lessees for recovery of the premises on the ground that the lease under which the lessees occupied the premises has been forfeited by reason of the unlawful use thereof by the lessees in knowingly using, or permitting the use thereof for purposes of lewdness, assignation and prostitution in violation of a covenant in the lease against unlawful use, and in violation of §6212-12 GC, which is as follows:

“Lease void when tenant uses building for lewd purposes. If a tenant or occupant of a building or tenement, under a lawful title uses such place for the purposes of lewdness, assignation, or prostitution such use shall annul and make void the lease or other title under which he holds at the option of the owner and, without any act of the owner, shall cause the right of possession to revert and vest in him, and he may without process of law make immediate entry upon the premises.”

The lessees have filed a cross petition against the lessor alleging that in 1947, in pursuance of a contract with the lessor, lessees expended large sums of money in repairing and remodeling the premises thereby enhancing the value thereof to the extent of $50,000.00, in consideration whereof an existing lease between the parties was extended for an additional period; that a substantial portion of such extension period remains unexpired and that if the prayer of the lessor for the recovery of the property is granted an unjust enrichment amounting to $22,500.00 will accrue to the lessor. The prayer of the cross petition of the lessees is that, in the event that the lessor is successful in its ejectment action, judgment in the sum of $22,500.00 be awarded to the lessees.

To this cross petition the lessor has interposed a demurrer on the ground that it does not state facts sufficient to constitute a cause of action or to entitle lessees to the relief prayed for and it is this demurrer which is now under consideration by the Court.

The precise question to be decided is whether a tenant who has made valuable improvements, with the consent of the landlord, but with no right to payment therefor at the end of the term, may recover any part of the value of such improvements when the lease is terminated by reason of a forfeiture arising out of the use of the premises for purposes of prostitution.

No ease has been cited nor has the Court been able to find any reported case on all fours with the situation here presented. However, in opposition to the demurrer counsel for lessees have cited the case of Lent v. Curtis, 14 O. C. C. 592, in which a lease for a vacant lot contained a covenant against unlawful use and further provided that the lessee would construct a dwelling on the premises which the lessor was obligated to purchase at the end of the term for an amount equivalent to seventy per cent of the then appraised value thereof. The Court of Appeals held that even though the lessor was entitled to recover the premises by reason of the unlawful use thereof by the lessee, he was still obligated by the terms of the lease to compensate the lessee for the dwelling at the end of the term because the covenant against unlawful use and the agreement as to compensation for the building were wholly independant matters.

Significantly, however, in its opinion the Court uses the following language found on page 603:

“We do not look upon it as being like a case where a lessee, for his own convenience erects buildings, or improves or puts in fixtures that he may not be permitted to take away or remove after the expiration of the term, there being no express provisions in the lease upon the subject.”

Inferentially, at least, the Court holds that where there is no provision in the lease for payment by the lessor for improvements made by the lessee, a lessee is not entitled to recover for such improvements when he loses possession by reason of a breach of covenant amounting to a forfeiture.

In the instant case the pleadings show that the consideration for the improvements made by the lessees was the extension of the lease for an additional term and at the end of that term the possession of the property was to revert to the lessor without any compensation to the lessees for such improvements.

A lessee who makes improvements which are to become the property of the lessor at the expiration of the term is in exactly the same position as a lessee who has paid the rent for the entire term in advance. If such a tenant should decide to use the premises as a house of prostitution and thus come within §6212-12 GC, can it be argued that the landlord, upon exercising his right to declare a forfeiture, is thereupon bound to refund the rent for the unexpired portion of the term? Such a construction would defeat the very purpose of §6312-12 GC and would be against public policy. Certainly the legislature never intended that a landlord who invoked the statute in order to prevent an unlawful use of his property would thereby subject himself to a lawsuit for the return of rents or the value of improvements.

It is true that forfeiture is a harsh remedy not favored by the law and, where the tenant has made valuable improvements, forfeiture should be even less favored and should not be enforced unless the Court is compelled to do so by an unbending rule of law. However, it must be remembered that in this case the lessees seek relief only in the event that it is judicially determined that they were guilty of using the premises for purposes of prostitution so as to work a forfeiture of the lease.

While it is true, as a general rule, one person should not be permitted to unjustly enrich himself at the expense of another but should be required to make restitution for property or benefits received where it is just and equitable that such restitution be made and where such action involves no violation or frustration or opposition to public policy either directly or indirectly, nevertheless this Court holds that a tenant who makes improvements to property, which improvements are to revert to the landlord at the expiration of the term, may not recover for the value of such improvements on the theory of unjust enrichment where the lease is forfeited because of the unlawful use of the property by the tenant.

The demurrer will, therefore, be sustained.


source: Caselaw Access Project

author: Per CURIAM.

license: Public Domain

text:
    MARTIN et, Plaintiffs-Appellees, v. SHARON STEEL CORPORATION, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3553.
    Decided April 8, 1953.
    Traxler & Beil, Youngstown, for plaintiffs-appellees.
    Manchester, Bennett, Powers & Ullman, Youngstown, for defendant-appellant.
   OPINION

Per CURIAM.

Defendant, a corporation amenable to the provisions of the Workmen’s Compensation Act and a self insurer thereunder, appealed to this court on questions of law from a judgment of the court of common pleas entered upon a jury verdict returned for plaintiffs, the widow and minor child of George Martin, upon whom they were wholly dependent for support at the time of his death on February 4, 1946, in her action on appeal to that court from the disallowance of her claim for benefits under the Workmen’s Compensation Act of Ohio.

Plaintiffs’ application for compensation was denied by the industrial Commission of Ohio on rehearing on the ground that the death of George Martin, designated herein as decedent, was not the result of an injury sustained in the course of and arising out of his employment with defendant corporation.

While crossing ravel bars in the defendant’s plant on April 3, 1944, decedent allegedly injured his left heel, which injury he reported to defendant’s plant dispensary on the morning of April 4, 1944, when he went there to have dressed a finger which was injured some days before.

Decedent’s medical history discloses a tubercular abscess in the vicinity of the right clavicle and right side of the neck and swelling in both groins for about a month prior to April 3, 1944; that a physician treated decedent for the tubercular-condition of the neck and region of the clavicle, following which treatment he returned to work for defendant; that on July 17, 1944, decedent was admitted to the Youngstown Hospital, where he remained a patient until discharged therefrom on November 22, 1944; that on November 28, 1944, he became a patient in the Mahoning County Tuberculosis Sanitarium, where his condition was diagnosed as “tubercular pleurisy with effusion, left; tubercular cervical adenitis; tubercular ankle, left”; that he was discharged from such sanitarium on November 27, 1945, and admitted to St. Elizabeth’s Hospital, where his illness was diagnosed as “tuberculosis of left foot and ankle; multiple TB foci in body,” and where his left leg was amputated on December 1, 1945; that he was discharged from the Youngstown Hospital on December 27, 1945, and on the same day readmitted to the Mahoning County Tuberculosis Sanitorium, where he died on February 4, 1946, of “pulmonary TB — duration two years.”

It is the contention of defendant that decedent’s death was not the result of an injury sustained in the course of and arising out of his employment with defendant, nor in any manner connected therewith; and that the trial judge erred to its prejudice in overruling its motions for judgment to be entered in its favor made at the close of plaintiffs’ case and at the conclusion of all the evidence, and for judgment to be entered in its favor notwithstanding the verdict of the jury returned against it, and for a new trial.

Defendant waived its right to rely on the claimed error that the trial judge erred to its prejudice in overruling its motion for a verdict to be directed in its favor at the close of plaintiffs’ case, when it accepted the ruling of the court and proceeded with its defense and introduced evidence in its own behalf. Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

Over defendant’s objection the trial judge permitted plaintiffs’ medical witnesses, an orthopedic specialist and a specialist in tuberculosis respectively, to answer the following hypothetical question:—

“Q. Dr. Kirkwood, I would like to ask you a hypothetical question, and I want you to consider the following facts and no others.
“Assume that on April 3, 1944, George Martin, a man about fifty-five years of age, was, and had been for some years, employed by the Sharon Steel Corporation. On that day, while at work, near quitting time, he suffered an injury to his left heel which caught, while he was crossing over ravel bars at the mill. When Mr. Martin returned from the shift to his home that night, as he came into the kitchen he winced as he stepped on his foot and favored the one foot. The next day his left ankle was sore and had puffed quite a bit more than the preceding night, the swelling had become more pronounced. That same day, April 4, 1944, he went to the company hospital where his ankle was examined. He kept on trying to work and reported to the company’s plant dispensary numerous times between April 4, 1944, and May 25th of that year for treatment of that ankle.
“I shall show you, Doctor, at this time what has been previously introduced in evidence and marked Claimant’s Exhibit A and B, being paper writing entitled ‘Accident Report’ and ‘Dressing Record,’ and shall ask you to examine them and indicate to us when you have done so.
“A. O. K.
“Q. You have finished, have you, Doctor?
“A. Yes, sir.
“Q. Now, about twenty-six days after Mr. Martin’s first visit to the plant dispensary an abscess showed up in his left cervical region, and on May 1, 1944, he consulted a physician about that. He was in St. Elizabeth’s Hospital several days from this condition, and then went back to the plant hospital for treatment of his left ankle which was still swollen. Finally he entered Youngstown Hospital on July 17, 1944, where he remained until November 22, 1944, during part of which time his leg was in a cast and there was a draining infection on the inside of the left ankle.
“On the following November 28th he was admitted to the Mahoning Tuberculosis Sanitorium with a diagnosis of tubercular ankle, left. He was discharged from that institution on November 29, 1945, to go to St. Elizabeth’s Hospital for surgery. On December 1, 1945, his left leg was amputated, followed by a development of a widespread pulmonary tuberculosis with left chest emphysema and inflammation of the cervical and inguinal lymph nodes. He was readmitted to Mahoning Tuberculosis Sanitorium on December 27, 1945, and expired at 2:45 o’clock a. m. on February 4, 1946, the cause of his death being given as pulmonary tuberculosis.
“I wish, Dr. Kirkwood, that you would look at Claimant’s Exhibit E-l and F-l at this time, each being a record of the patient’s case history at Mahoning Tuberculosis Sanitorium, and indicate to us when you have finished your examination.
“A. O. K.
“Q. Before April 3, 1944, Mr. Martin was a busy and energetic man, taking care of all the repairs on his property besides keeping another home in repair, such work including painting, excavating, and in addition he would fix electrical appliances for friends, and he also had a garden in the previous season, and Mr. Martin worked regularly and consistently at Sharon Steel Corporation, and his general health was good before this 3rd day of April, 1944, but soon thereafter his vigor showed a marked tendency to go down, he showed a lack of interest in his home, and he made no major repairs to it from that time on. He sat around and took things easy, lying or relaxing in the sun, favoring his left ankle and not moving around much until he was hospitalized.
“Dr. Kirkwood, taking all of the information, all of the foregoing assumed facts and nothing else into account, and considering also your examination of the patient and your findings and diagnosis to which you have testified here today, do you have an opinion with reasonable medical certainty as to whether or not there was a causal relationship between the injury as described to you, the developments that followed, and Mr. Martin’s death from pulmonary tuberculosis on February 4, 1946. First, do you have an opinion?”
To the hypothetical question propounded to Dr. Kirkwood the ■ defendant interposed its objection, stating to the court the grounds thereof, and a considerable discussion followed. After this discussion the court stated:—
“I am going to admit it, and give exceptions. He can give that answer.”
The doctor thereupon answered “I do.” Counsel thereupon inquired as to what his opinion was, and the objection to that question having been overruled, the doctor answered:—
“A. Well, I believe in such a case that an injury can lead to the development of tuberculosis of the bone.
“Q. What is your opinion, based upon the facts in the hypothetical question, as to the probability in this particular instance of Mr. Martin?
“A. Sir, I think it probably happened that way.
“Q. Do you care to state, Dr. Kirkwood, the reasons for your opinion?”
Objection being interposed and overruled the doctor answered:—
“A. Well, the way I look at the thing is this: Usually the man has an infection somewhere in his body, and an injury lowers the resistance of that particular part, the germ enters there, disease follows. It may be tuberculosis, it may be other infections, depending on what germs are in the body at the time of the accident.
“Q. What is modern medical opinion, Dr. Kirkwood, if you know, as to the presence of existence or absence of tubercular germs in adult human beings?”
Objection to the question having been overruled the question was supplemented as follows:—
“Q. Confine it, Doctor, to your own opinion, based upon your own experience and practice.
“A. Well, my experience has shown me that a large percentage of the adult population are infected with tuberculosis.
“Q. What is the fact, from your own experience, as to whether or not trauma or injury may or will cause an activation of such a condition?
“A. It will.
“Q. Well, Dr. Kirkwood, you have given us your reasons, as I understand, as to the cause of the development of a tubercular condition in the bones of Mr. Martin’s left ankle.
“A. Yes.
“Q. Now, what connection, if any, in your opinion, is there between that condition and Mr. Martin’s death on February 4, 1946?”
After further discussion upon objection to the question the court overruled the objection and the witness answered:—
“A. Well, once a person acquires his tuberculous infection, it may spread to any part of his body and eventually end in death. Is that what you wanted?”
Later the following question was propounded to Dr. Kirk-wood:—
“Q. Well, Dr. Kirkwood, let me ask you this further question, based upon the assumed facts in the hypothetical question which I shall not repeat, unless you ask me to, and no others: Do you have an opinion as to whether or not there was a probable causal relationship between the development of tuberculosis in Mr. Martin’s left ankle, following that injury of April 3, 1944, and his death from pulmonary tuberculosis on February 4, 1946?”
After overruling an objection to the question the witness answered:
“A. I do.
“Q. What is that opinion, Doctor?”
After overruling the objection to that question the doctor answered:—
“A. I really answered that in the preceding question when I said that any tuberculous infection, no matter where it is in the body, can spread to any part of the body and eventually lead to death. I think that answers the question. If you have air infection, it may go to the lungs, the meninges or any part of your body. It is in the blood stream.”
Defendant’s objection to such question is bottomed on the fact that such question contains the following erroneous statement:—
“Now, about twenty-six days after Mr. Martin’s first visit to the plant dispensary (which was April 4, 1944) an abscess showed up in his left cervical region, and on May 1, 1944 he consulted a physician about that.”
Defendant's objection to such question is further bottomed on the ground that:—
“The question merely asked for an opinion from each medical witness * * with reasonable medical certainty as to whether or not there was a causal relationship between the injury as described to you, the developments that followed, and Mr. Martin’s death from pulmonary tuberculosis on February 4, 1946’ (R - 112 and R - 148). Nowhere in the question (or elsewhere in the record, it might be added) are the medical witnesses asked for, or do they give, their opinion as to whether or not Martin’s death was the direct and proximate result of the alleged trivial injury to his heel. The record is bare of any evidence at all that Martin’s death was the direct and proximate result of the alleged injury. Indeed the doctors don’t even say there was a probable causal connection. It is clear beyond all cavil that Dr. Kirkwood was unwilling to go further than to say that the tubercular ankle was probably due to the alleged injury and that the tubercular ankle possibly was a cause of Martin’s death. (R. 120-123.) The testimony of Dr. Golden on cross-examination utterly destroys plaintiffs’ case, for he testified that it was just as probable that Martin’s pulmonary tuberculosis was caused by the tubercular condition in the cervical and inguinal regions (which existed before the T. B. in the ankle) as by the tubercular ankle; or as he put it ‘nobody can tell you exactly which one was the direct cause’ (R - 150).”

Defendant contends:—

“That the Court should have sustained its objection to the hypothetical question asked of Dr. Kirkwood and Dr. Golden, which in turn would have resulted in no evidence of any causal connection, much less direct causal connection, between the alleged injury and death, and would have required a directed verdict. Defendant further contends that regardless of the correctness or incorrectness of the court’s ruling on defendant’s objection to the hypothetical question, the evidence presented by plaintiffs failed completely to prove Martin’s death was the direct or proximate result of the alleged injury to the heel.”

We find in the record evidence of the facts stated in the hypothetical question, and that such question was proper, and that the answer of the doctor was sufficient to send the case to the jury for its finding that the injury suffered by Mr. Martin on the third day of April, 1944, had a direct causal relationship to the death which occurred in 1946.

In this connection it may be observed that if the defendant’s evidence brought forth facts differing from those in the hypothetical question propounded defendant would be permitted to propound a hypothetical question based upon such facts, but that plaintiff could not be precluded from propounding a hypothetical question upon the facts most favorable to him, as shown by the record.

The answer of the witness, which we have emphasized above, “I think it probably happened that way” required the submission of the case to the jury, and the trial court was not in error in overruling defendant’s motions for judgment in its favor or in overruling defendant’s motion for a new trial, and this court being unable to find that the verdict and judgment are against the manifest weight of the evidence or contrary to law, the judgment must be and is affirmed.

GRIFFITH, PJ, PHILLIPS & NICHOLS, J, concur.


author: By BELT, J.:

text:
    WOHNHAS et, Plaintiff, v. SHEPHERD, ST. CLAIR OIL COMPANY, A Corp. et, Defendants.
    Common Pleas Court, Monroe County.
    No. 14950.
    Decided March 15, 1954.
    Austin C. Furbee, St. Clairsville, for plaintiff.
    W. O. Chappell, Barnesville, for defendant, A. C. Shepherd.
    Thornburg & Lewis, St. Clairsville, for defendants. St. Clair Oil Company.
    Harry J. Iles, Henry Schneider, Sistersville, W. Va., for defendant, Charles W. Lynch.
    (BELT, J, of Belmont County sitting by assignment in Monroe County.)
   OPINION

By BELT, J.:

This is an action brought by the plaintiffs to quiet title to certain real estates in Green Township, Monroe County. The petition alleges, in substance, that plaintiffs executed and delivered to defendant, Harry J. lies, their certain oil and gas lease on the premises described in the petition under date of May 31,1950, which lease was duly recorded. The lease provides, in substance, that it was to continue for five years and so much longer thereafter as oil or gas are produced in paying quantities. Said lease further provides that the lessee is to commence a well on said premises within three months from the date of said lease or pay to the lessor $37.50 per quarter thereafter until such well is drilled or the lease surrendered. The lease further provides that upon payment to the lessor of $1.00 and all amounts due thereunder, the lessee shall have the right to surrender the lease by written notice or by returning the lease to the lessor. There is no forfeiture clause therein.

Harry J. lies is the President and General Manager of defendant, the St. Clair Oil Company, and owns the controlling stock therein, and said lease was taken in his name for the benefit of said corporation.

On or about the 17th day of August, 1952, plaintiffs executed and delivered an oil and gas lease on the same real estate to one, James W. Sachs, which lease was thereafter canceled and surrendered by the said James W. Sachs on or about the 4th day of August, 1953. On the 5th day of August, 1953, plaintiffs executed and delivered an oil and gas lease on said premises to defendant, Charles W. Lynch. All of said leases are recorded and in evidence and will be hereafter referred to.

Defendants, Harry J. lies and the said St. Clair Oil Company, assigned all their right, title and interest in said lease to defendant, A. C. Shepherd, on or about the 12th day of August, 1953, which assignment is in evidence in this case. The said A. C. Shepherd claims that the original lease is a valid and subsisting lease, and the said defendant, Charles W. Lynch, claims that his lease is the only valid and subsisting lease on said premises.

The evidence shows that following the execution and delivery of the lease to the defendant lies, the defendant lies or the St. Clair Oil Company made a location on a farm in the block of leases owned by him, which included plaintiffs’ lands, and drilled a well; that the well was non-productive and in the latter part of 1951, not later than February, 1952, St. Clair Oil Company removed its rights and tools from the location on said block of leases in Green Township to the Northern part of Monroe County in the Beallsville district and at the same time ceased paying rentals on the Wohnhas lease and the other leases in that territory; that said company actually canceled and surrendered some of the leases in the block in question, at which time there were past due rentals on the leases canceled. The Wohnhas lease and the other leases in the block referred to, of which the Wohnhas lease was a part, was of a different form from that which Mr. lies and St. Clair Oil Company had formerly used; (their leases having a forfeiture clause therein) and Mr. lies believed and so testified that he supposed the leases were automatically canceled when he failed to pay the rentals called for in said leases at the time they became due and payable. Prior to defendant Shephard taking the assignment from the St. Clair Oil Company, he attempted to secure a lease on plaintiffs’ property from plaintiffs but failing so to do, he suggested to Mr. lies that the Wohnhas lease was valid and Mr. lies was liable for the unpaid rental. Mr. lies thereupon consulted legal counsel and found that there was liability for unpaid rentals, whereupon he sold and assigned his interest in the Wohnhas lease to defendant Shephard.

There is no forfeiture clause in the lease in question and therefore the mere non-payment of rental is not sufficient to warrant a court in decreeing a forfeiture. In fact, under the circumstances as presented by the evidence in this case, unless Mr. lies and the St. Clair Oil Company abandoned this lease, warranting a cancellation thereof for that reason, plaintiffs are not entitled to relief in this proceeding. This presents an inquiry as to the status of the law on the subject of abandonment. Counsel for defendant lies, St. Clair Oil Company and A. C. Shepherd have cited a number of cases to the court, which have little or no bearing on the question presented.

Summers on Oil and Gas, Permanent Edition, Volume 2 at page 454 and the following pages, Section 440 and the following sections, deals with this subject in a very elaborate way. The subject is also discussed under the title of Abandonment in Volume 1, O. Jur., Page 4, Section 4; also Volume 1, Corpus Juris, Section 11, in which is found the following language:

“Upon a question of abandonment, as upon a question of fraud, a wide range should be allowed as to the evidence, for it is generally only from facts and circumstances that the truth is to be discovered and both parties should be allowed to prove any fact or circumstances from which any aid for the solution of the question can be derived.”
“Where an oil lease required payment of rentals in advance to continue the-lease if a well was not completed within the time fixed, but contained no provision forfeiting the lease for nonpayment on the due date, a delay of a few days only in tendering payment does not terminate the lease, though the lessor may sue lessee for the rentals.” A Kentucky Case, 247 S. W.. 753.
“An oil and gas lease binding the lessee to drill a well on the leased premises within a certain period or in lieu thereof make periodical payments of rental or delay money, and containing no clause of forfeiture, is not forfeited merely by non-payment of the rental. It can be terminated only by surrender, abandonment, or expiration of the term.” Reserve Gas Co. v. Carbon Black Mfg. Co., 72 W. Va., 757; 79 S. E. 1002.

In the case of Pure Oil Company v. Sturn, 43 Oh Ap 105, Judge Roberts of the 7th District Court of Appeals quotes with approval from the case of Orr v. The Pure Oil Company, a Licking County case, as follows:

“A mere delay for the matter of thirty days, when it is explained by circumstances such as are sought to be set up in this answer, the court does not think it would be an equitable rule to declare a forfeiture of the lease under those circumstances. If the nonpayment had continued for such a length of time through the negligence or delay of the defendant company to pay this rental in justice and equity the court ought to declare it forfeited.”

In the case of Martin v. Consolidated Coal & Oil Corp., a W. Va. case, reported in 133 S. E. 626, the rules are stated as follows:

“The general rule as to oil and gas leases is that such contracts will generally be liberally construed in favor of the lessor, and strictly as against the lessee. In case of failure to begin operations or pay delay money as provided in an oil and gas lease, recovery of the delay money is not the only remedy of lessor, where the lease contains a clause giving lessee the right to surrender the lease at any time on making a nominal payment.
“Time is of the essence of every material provision of oil and gas lease conferring option or right of exploration and requiring operations to begin within a certain time; where lessee under oil and gas lease has not within reasonable time entered premises to explore or pay delay rentals provided, law presumes abandonment; where lessee under oil and gas lease has not within rasonable time entered to explore nor paid delay rentals, lessor may by suit in equity cancel lease as cloud on title; to warrant finding of abandonment of oil and gas lease because of delay in entering to explore or failure to pay rentals, each case must depend on its own circumstances.”

And the Court says that these principles are of the essence of every material provision of a lease. In the opinion the Court used the following language:

“Time is not an essential element of abandonment. The moment an intention and the relinquishment of the possession unite, the abandonment is complete. Lapse of time is, however, a circumstance to consider in determining the question of abandonment.” Citing the following cases: McIntosh v. Robb, 4 Calif. App. 484, 88 P. 517 in which it was held 6 months was held an abandonment; Brown v. Vandergrift, 80 Pa. 142, 11 months; Loveland v. Longhenry (Wisconsin) 129 N. W. 650. 14 months.
“The title under an oil lease is inchoate and for purpose of exploration only, until oil and gas is found, and if not found no estate vests in the lessee.”

The Court further pointed out in the above-mentioned case that a plaintiff has no adequate remedy at law; that oil and gas being a concealed substance, there is no way in which damages for the breach of a covenant can be accurately measured.

“The law recognizes, as we have said, a distinction between the abandonment of operations under an oil lease, and an intention to abandon or surrender the lease itself; and unless bound by the terms of the lease so to do, it will not permit the lessee to hold the lease without operating under it, and thereby prevent the lessor from operating on the land or leasing it to others.” Citing Parish Fork Oil Co. v. Bridgewater Gas Co. (W. Va.) 42 S. E. 665.

The Court further said:

“In construing contracts relating to oil and gas in place, and creating reciprocal rights in respect to it, this court has always recognized an implied obligation or covenant on the part of the lessee to develop the property with reasonable diligence, so that the lessor may come into possession of the benefits which it was intended he should receive, as otherwise the contract would be one-sided.”

Again quoting:

“This court has held that though a lease contains no express provision of forfeiture, under some circumstances of delay or fraudulent evasion of duty of development, equity will cancel an oil lease, as development is regarded as the real intent of the lessor.” Bettman v. Harness, (W. Va.) 26 S. E., 270 and 271.

The Court ordered the lease canceled, saying that the lessee had no vested estate as no possession had been taken and that his right was only inchoate. The Court in the above mentioned case exploded the idea that the only remedy lessor has is to recover delay money or for damages for violation of the lessee’s covenant to drill, saying:

“Two years later the lessee has neither drilled nor paid rentals — has in fact done nothing more than take the lease from the hands of the lessor and put it to record. This in the face that the consideration for the lease was that the lessee ‘perform the covenants and agreements’ therein contained. Does not this constitute an abandonment? In the absence of extenuating and qualifying circumstances, which of course may be shown by the defendant on the final hearing, we would say that it does.”

In the case of Smith v. Root, reported in 66 S. E. 1005, a W. Va. case, the second and third syllabi read as follows:

“An oil and gas lease giving the lessee the right, for the period of ten years, to explore for oil and gas, and providing that if a well is not completed on the leased premises within three months from the date of the lease the lessee shall pay to the lessor, in advance, a quarterly cash rental for each additional three months the completion of a well is delayed is an executory contract and vests no title in the lessee to the oil and gas in place.
“Such a contract contemplates development of the leased premises within a reasonable time, and the lessee may lose his rights thereunder before the expiration of the ten years by abandonment of the lease, notwithstanding there is no forfeiture clause in the contract.”

The lease in question in the above-mentioned case is substantially the same as the lies lease in this case. The Court said, in substance, that a lessee may abandon the premises notwithstanding there is no forfeiture clause. The failure to pay the cash rentals may not alone be sufficient but his failure to pay, taken in connection with other facts, evincing a clear intention to abandon the enterprise, coupled with the fact that no operations were begun, is sufficient to prove relinquishment of lessee’s rights. The Court, in the opinion, said one other significant thing and that is, that the defendant claimed, as is claimed in the case at bar, that he had a misapprehension of his legal rights. In other words, he had made a mistake of law by which she should not be bound. The answer is given, “But if such was their understanding of the agreement, and they acted upon it, how can they be heard to complain of their own mistake of law?” The Court further said:

“Failure to pay the quarterly rentals, taken by itself would not be sufficient to prove intention to abandon, but it is an evidential fact which may properly be considered in determining intention. It materially strengthens the evidence of intention to abandon which other facts tend to prove.”

See also: Marshall v. Forest Oil Co., (Pennsylvania), reported in 47 Atlantic 927.

See Williamson v. Jones, (W. Va.), 27 S. E. 411; Crawford v. Ritchey, (W. Va.), 27 S. E. 220; Eclipse Oil Co. v. South Penn Oil Co., (W. Va.), 34 S. E. 923; Urpman v. Lawther Oil Co., (W. Va.), 44 S. E. 433; Harris v. Riggs, (Indiana), 112 N. E. 36; Tucker v. Watts, 15 Ohio Circuit Decisions 320, third paragraph of the syllabus; Pure Oil Co. v. Sturm, 43 Oh Ap 105, paragraph two of the syllabus.

Applying the evidence in this case to the question of whether or not defendants lies and St. Clair Oil Company abandoned the lease in question, we make the following findings: That said defendants regarded the lease as having been abandoned; they felt that they had no right, title or interest therein until they were told by legal counsel that they were liable under the terms of jfche lease for the past due rentals; they removed their rig and equipment from the territory and paid no rentals for a considerable period of time on any of the leases in the block. Plaintiff, Mr. Wohnhas, called upon Mr. lies about a month after the unpaid rental became due, which would be on or about the 1st day of March, 1952, and, being unable to see defendant lies, called at his home and told his wife that a rental was due and unpaid; that he either wanted the rental, a well drilled or the giving up of the lease. Thereafter, not having heard from Mr. lies, he leased the property to Mr. Sachs and received rentals for about six months. Mr. Sachs gave up his lease and the property was again leased to the defendant, Charles W. Lynch. The further testimony is that Mr. lies told two or three witnesses that he was through; that he had nothing in the West Union Field. Mr. lies also testified that he told Charlie Wright that he didn’t have any leases in the West Union Field. The question is:

Q. Well, until you were told, you were of the impression you had no leases there?
A. That’s right.
Q. And up until the time you learned that in 1953, you were of the opinion your leases were no good and you had not paid the rentals on them for that reason, is that so?
A. I expect that’s right.

In a letter written by the St. Clair Oil Company to one of the lessors in that block, we find this statement, “We desire to cancel as we do not expect to be drilling here.” Taking all of those things into consideration, the failure to pay rentals even after a request was made by the plaintiff; the moving of equipment to a far away territory; the various statements made, together with the lapse of one year and a half of inaction would seem to the Court to not only be proof but conclusive proof of abandonment even though the defendants were mistaken as to the law and their rights thereunder.

The Court finds upon a consideration of all of the evidence in this case that the defendants, lies and St. Clair Oil Company abandoned all their right, title and interest in and to the lease in question in this case and that the same should be and hereby is canceled. The Court is of the opinion that the law pertaining to the question of abandonment is fairly uniform in the various states and that abandonment is recognized in Ohio as a ground for cancellation. Counsel for plaintiff may prepare a proper entry in this case in accordance with the foregoing opinion and decision and submit it to other counsel and to the Court.


author: By CASE, J.

text:
    CURRY, Plaintiff, v. GREAT ATLANTIC & PACIFIC TEA COMPANY et, Defendants.
    Common Pleas Court, Fayette County.
    No. 21651.
    Decided April 20, 1954.

      Collis Gundy Lane, Columbus, Reed M. Winegardner, Washington C. H., for plaintiff.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendant, The Great Atlantic & Pacific Tea Co.
    Hill & Hill, Washington C. H., for defendant The Coca-Cola Bottling Company.
   OPINION

By CASE, J.

This cause is an action for damages predicated upon certain allegations of negligence as set forth in Plaintiff’s petition filed herein on August 5, 1953, against The Great Atlantic & Pacific Tea Company and The Coca-Cola Bottling Company.

On October 30, 1953, upon leave of Court first had and obtained, Defendant, The Coca-Cola Bottling Company, filed its demurrer herein which reads:

“Now comes the defendant, The Coca-Cola Bottling Company and demurs to the petition filed herein for the reason that said petition does not state facts sufficient to constitute a cause of action against said defendant.”

Counsel for the respective parties have filed rather comprehensive memoranda for and contra said demurrer; and the Court has carefully considered the authorities cited therein.

In opposing said Defendant’s demurrer, Plaintiff finally urges and contends that:

“The second paragraph of the petition alleges that this defendant manufactured and bottled under its exclusive custody and control, the soft drink in question. Many Ohio cases have held that the principle of res ipsa loquitur applies to bottled soft drinks. See Leach v. Joyce Products Company, 66 Abs 296, and cases therein cited. If the evidence is such as to make the rule applicable, we would then be entitled to go to the jury under proper instructions if the petition had not contained any specifications of negligence as to this defendant. Res ipsa loquitur is a rule of evidence. Collins v. McClure, 143 Oh St 569, 573. The fact that specific negligence has been pleaded, does not prevent the application of this doctrine, even though it is not proved. Pierce v. Gooding Amusement, 55 Abs 556, and Motorists Mutual Insurance Company v. Calland, 93 Oh Ap 543. Both of these decisions were by the Court of Appeals for this district. Whether the doctrine can be applied, cannot, of course, be determined until the evidence is in. taut so long as the doctrine is potentially applicable, the matter cannot be determined upon demurrer.”

Therefore, it clearly appears that Plaintiff’s memorandum raises the question:—

Can the Court, in considering a demurrer to a petition (on the ground that said petition does not state facts sufficient to constitute a cause of action against one of two defendants), before any evidence has been adduced, determine whether the doctrine of res ipsa loquitur can be applied?

We believe that, under the facts and circumstances alleged in' Plaintiff’s petition, this question must be answered in the affimative. In the case of Naomi Brown v. Pennsylvania Greyhound Lines, Inc., and The Red Cab Company, 29 O. O. 442, the Common Pleas Court of Lucas County held:

“When the plaintiff alleges that the injury was proximately caused by the acts of two defendants, the doctrine of res ipsa loquitur can not be applied to one of the defendants.” (Emphasis added by the Editor.)

In arriving at its decision in that case, Judge Pess stated in part:

“In the second place the defendant asserts that since plaintiff in her petition sets forth the negligence of another defendant as directly and proximately contributing to cause her injuries the rule of res ipsa loquitur can not apply to the defendant Greyhound.
“After setting foth the negligence generally of the defendant Greyhound and the specific acts of negligence of the Cab Company the petition alleges:
“ ‘As a direct and proximate result of the aforesaid careless, negligent, and unlawful acts of the defendants, and each of them, the said passenger bus in which plaintiff was riding and the said taxicab collided, and plaintiff sustained severe and permanent injuries, as hereinafter set forth.’
“Taking the allegations of the petition as a whole can it be said that an inference can be drawn that the accident was caused by the negligence of one of the defendants only?
“In Glowacki v. Ry., 116 Oh St 451, the court says on p. 463: ‘The controlling fact in the Loomis case (107 Oh St 161) was that the casualty was as attributable to the vis major as to any negligence on the part of the defendant, and that under such circumstances the rule of res ipsa loquitur has no application. All of the cases cited bear out that theory and clearly establish the rule of law that the doctrine of res ipsa loquitur should not be applied, where, by the pleadings and the evidence of the defendant, another cause equally efficient is shown.’ The court likewise quotes with approval from Section 58b of 1 Shearman and Redfield on Negligence as follows:
“ ‘If it appear that the injury was proximately caused by the independent acts of two or more persons, the application of the maxim is excluded by its terms.’
“In the instant case the plaintiff alleges the injury was caused by the acts of two defendants and therefore the maxim should not be applied to one of the defendants.” (29 O. O. 443.)

In the instant case, Plaintiff alleges in her petition as follows:

“On or about the 17th day of May, 1952, plaintiff entered said store as an invitee, and customer of defendant, The Great Atlantic and Pacific Tea Company, for the purpose of purchasing articles sold in said store, including a case or carton of Coca-Cola. Defendant, The Great Atlantic & Pacific Tea Company, had so carelessly and negligently arranged the cartons of Coca-Cola on said display self, that as plaintiff was removing one of said cartons, a bottle protruding over the edge of the next carton, caught upon the carton plaintiff was removing, and was jerked out of the carton in which it had been placed, and fell to the floor, exploding and cutting the plaintiff with fragments of flying glass. Said occurrence and plaintiff’s resulting injury was solely and proximately caused by the carelessness and negligence of defendants in the following particulars:
“Defendant, The Great Atlantic & Pacific Tea Company, was negligent in:
“1. Arranging said Coca-Cola display so that the bottle from the carton next to that removed by plaintiff, protruded over the edge and became caught upon the carton plaintiff was removing, and was thereby caused to fall to the floor;
“2. In failing to make sure that all the bottles in the cases so displayed, were firmly within the limits of the case in which said bottle was placed:
“3. In failing to warn plaintiff of the hazard so created by it;
“4. So negligently handling said bottle of Coca-Cola after receiving it into said defendant’s custody and control as to cause said bottle to explode.
“Defendant, The Coca-Cola Bottling Company was negligent in:
“1. So carelessly and negligently manufacturing and bottling said Coca-Cola, or in selecting a defective container therefor, the exact fact being known to said defendant but unknown to plaintiff, while under its exclusive custody and control, as to cause said bottle to explode.”
“As a proximate result of the aforesaid carelessness and negligence of defendants, plaintiff received a deep cut on the outside of her right leg above the ankle, which involved a severance of the peroneal nerve in said leg. * * *”

Plaintiff, by her memorandum, contends that she might be entitled to recover from Defendant, The Coca-Cola Bottling Company, upon the doctrine of res ipsa loquitur, and that the applicability of said doctrine can not be determined “until the evidence is in.”

Plaintiff cites and relies upon the case of Leach v. Joyce Products Company, 66 Abs 296, 116 N. E. (2d) 834, in support of this contention. In that case the Court of Appeals for Franklin County (which is also the Court of Appeals for Fayette County) held:

“1. The weight of authority in Ohio holds that it is not necessary that the defendant have exclusive possession and control of a carbonated beverage bottle before the principle of res ipsa loquitur becomes effective, but before the doctrine can be invoked the plaintiff must produce some evidence from which the inference could be drawn that the particular bottle or consignment of which it was a part was handled in a reasonably careful manner at all times after it left the possession and control of the defendant. (Emphasis by the Court.)
“2. In the absence of evidence as to the cause or the responsibility of the explosion of a carbonated beverage bottle it is not proper for the .jury to speculate on whether or not there was a breach of warranty.”
Plaintiff’s petition clearly states and admits, among other things, that the offending bottle was “jerked out of the carton” and “fell to the floor.” The very nature and extent of these admissions, as set forth in Plaintiff’s petition, are inconsistent with and repugnant to the possibility and probability of producing “some evidence from which the inference could be drawn that the particular bottle * * * was handled in a reasonably careful manner at all times after it left the possession and control of the defendant.”
Plaintiff subscribed to these operative facts under oath as being true. They are undisputed admissions as to the cause or the responsibility of the explosion of the offending bottle, and they clearly preclude Plaintiff from presenting any evidence out of which the principle of res ipsa loquitur could become effective or be invoked. So long as these admissions remain on the face of the petition, the Plaintiff will be unable to produce any evidence from which the inference could be drawn that the offending bottle “was handled in a reasonably careful manner at all times after it left the possession and control of the defendant.”

In the case of Rockwell v. The Queen City Bottling Co., 73 Oh Ap 42, 28 O. O. 86, 39 Abs 452, 53 N. E. (2d) 528 the Court of Appeals for Hamilton County held:

“A petition alleging that defendant is in the business of bottling and distributing soft drinks through retailers for resale and packed in pasteboard cartons holding six bottles, fashioned with a handle for carrying, that plaintiff aged eight years purchased six bottles contained in such a carton and while carrying same from the store to an automobile nearby the carton collapsed, the bottles fell to the sidewalk, were broken, and plaintiff was injured by flying glass, does not state a cause of action for breach of implied warranty or for negligence.”

Beginning at page 45 (73 Oh Ap) the court stated in part as follows:

“Plaintiff here seeks to hold the defendant responsible' in damages for the breach of an implied warranty or negligence, or both, and relies principally upon the case of Sicard v. Kremer, 133 Oh St, 291, 13 N. E. (2d), 250, construing §11305 GC to sustain the sufficiency of the allegations of the petition and opening statements of counsel. That case is readily distinguishable from the case at bar, as involving an article inherently dangerous and the petition containing allegations of negligence.
“As far back as Hess v. Lupton, 7 Ohio (Pt. 1), 216, the Supreme Court of Ohio has said: ‘Action for damages consequent on an act innocent in itself, and injurious only in consequence of particular circumstances, the declaration must set out the circumstances showing the wrong.’
“Plaintiffs allege and offered to prove merely that defendant put the carton in circulation and the happening of its collapse, while out of the possession and beyond the control of defendant, mentioning no act or omission to act of defendant in connection therewith, and leaving to utter speculation and the limitless field of guesswork as to what did or did not happen to the carton after being placed in the hands of the retailer. If these be the ultimate facts, they fail to state a cause of action on an implied warranty as to fitness for a particular use or in an ordinary negligence case. If the so-called cursory inspection of the defendant amounted to negligence, there is an utter lack of any causal connection between that and its being the proximate cause of the injuries herein complained of.
“This court has said in Flamm v. Coney Island Co., 49 Oh Ap 122, 195 N. E. 401, in the third paragraph of the syllabus:
“ ‘Mere co-existence of negligence and injury is not sufficient to establish a causal connection between the two, nor can difficulty in securing evidence of that causal connection be substituted for such proof.’ ”

In her petition in the instant case, Plaintiff sets forth one specification of negligence against The Coca-Cola Bottling Company. This specification of negligence seeks to apply the breach of warranty doctrine. This breach of warranty so alleged by Plaintiff is clearly inconsistent with and repugnant to certain admissions set forth in said petition which aver independent acts and operative facts from which it must be reasonably inferred that the accident was due to a cause other than the alleged negligent act of the Defendant.

Upon due consideration of the express allegations and admissions, as set forth in Plaintiff’s petition, which show, among other things, that the offending bottle “was jerked out of the carton * * * and fell to the floor,” it is reasonable to assume, for the purposes of Defendant’s demurrer herein, that there then and there existed undisputed facts and circumstances which would show the accident was due to a cause or causes other than the alleged negligent act of said Defendant.

By admitting the existence of such facts in her petition, Plaintiff has expressly disavowed proximate causal connection of the alleged specification of negligence by which she seeks to recover from said Defendant upon the doctrine of implied warranty; and it is, therefore, clearly apparent that Plaintiff’s petition does not state facts sufficient to constitute .a cause of action against said Defendant.

Therefore, upon due consideration of all of the reasons and grounds hereinabove set forth and discussed, the Court finds:

1. That Plaintiff’s petition does not state facts which show a cause of action against said Defendant, The Coca-Cola Bottling Company; and

2. That said Defendant’s demurrer herein is well, made and should be sustained.

The Court further finds that Counsel for said Defendant, The Coca-Cola Bottling Company, should prepare an entry accordingly with appropriate notation therein of exceptions on behalf of Plaintiff to the aforesaid findings, decision and such entry, and thereupon submit same to Counsel for Plaintiff and to this Court for approval within fifteen (15) days from the date hereof.


author: By DOYLE, J.

text:
    GURAN et, d. b. a. M. B. GURAN COAL & CONTRACTING CO., Appellants, v. WHIMS, Appellee.
    Ohio Appeals, Ninth District, Summit County.
    No. 4218.
    Decided December 26, 1951.

      Roby & Arenson, Akron, for appellants.
    Bailey & Bailey, Akron, for appellee.
   OPINION

By DOYLE, J.

Since the enaetmént of §6290-4 GC, it has been required, in litigation seeking damages for injury to a motor vehicle, that ownership of the vehicle be established by the introduction into evidence of a certificate of title issued .to the complainant.

A part of the Code section noted above is in the following language:

“* * * No court in any case at law or in equity shall recognize the right, title, claim, or interest of any person in or to any motor vehicle, hereafter sold or disposed of, or mortgaged or encumbered, unless evidenced by a certificate of title or manufacturer’s or importer’s certificate duly issued, in accordance with the provisions of this chapter.”

In the trial of the instant case in the Municipal Court of Akron, wherein the plaintiffs, noted in the caption hereof, brought suit against the defendant for claimed negligent injury to their motor vehicle, the partnership was denied the right to introduce into evidence its certificate of title. As a result thereof it failed to establish ownership of the vehicle, and consequently lost its case.

The several Gurans, noted in the caption, are,associated in a partnership (pleaded in the petition and proved in the trial), and they operate their business under the name of “M. B. Guran Coal & Contracting Co.” It appears that the certificate of title was issued in the name of “M. B. Guran Coal and Contracting,” with the word “Company” missing. Evidence was offered, and rejected by the court, tending to prove that the partnership which brought the lawsuit, and “M. B. Guran Coal and Contracting,” in which name the truck was registered, were one and the same firm. As stated before, this evidence was rejected, as was the certificate of title; and without it, plaintiffs were unable to make a case. A judgment for the defendant was thereupon entered.

The appeal brings to us, for review, the legality of the court’s ruling in respect to the attempted proof of ownership.

The suit was instituted by the partnership, and properly brought by virtue of §11260 GC. This section is:

“A partnership formed for the purpose of carrying on a trade or business in this state, or holding property therein, may sue or be sued by the usual or ordinary name which it has assumed, or by which it is known. In such case it shall not be necessary to allege or prove the names of its individual members.”

While there appears in the caption of the petition the names of the several partners, this inclusion in and of itself does not require a court to determine that the suit was instituted by the individual partners, as distinguished from the partnership as a legal unit. There appears in the body of the petition an allegation that the M. B. Guran Coal and Contracting Co., as set forth in the caption of the petition, was a partnership. Also, the pleading was verified by one John Guran, who stated therein that “he is united in interest with the other members of the partnership of M. B. Guran Coal and Contracting Co.”

While the statute (§11260 GC) does not in terms require an allegation or proof of the names of the individual members of a partnership, the inclusion of the names in a petition, either in the caption, or in the body of the petition, may be treated as mere surplusage. So here, a reading of the entire petition leaves no doubt but that the partnership as such brought the suit, and that the “M. B. Guran Coal and Contracting Co.” was the plaintiff in the action. It is observed in this connection, however, that good pleading would have set forth, in the caption of the petition, the words “a partnership” following, the adopted name. Compare Phoenix Ins. Co. of Brooklyn v. T. & W. R. Carnahan, 63 Oh St 258.

There is no prohibition in the law of this state against a partnership holding legal title to a motor vehicle. Sec. 6290 et seq, GC.

A partnership, as such, can own chattel property. In fact", “Conveyances of chattel interests may be made by or to the Arm in the firm name, and will be regarded as effective to convey legal title from or to all the partners individually.” 30 O. Jur., Partnership, Sec. 37, pg. 1022, and cases therein cited.

Apparently the court rejected the evidence offered to prove ownership of the vehicle, on the ground that the partnership party which instituted the suit was not the party to which the certificate of title was issued, because the word “Company” was in the name of one and not the other. If in truth and fact the parties are the same, to permit what appears to be a clerical error to alone defeat a substantial right of the plaintiff, would pervert truth and defeat the whole concept of justice.

The identity of individuals or firms may be established by proof, and in this case it was the duty of the court to permit the introduction into evidence of such proffered proof, and then determine whether the plaintiff partnership and' the holder of the certificate of title were identical.

Judgment reversed and cause remanded.

HUNSICKER, PJ, STEVENS, J, concur.


author: By ALLEN, Circuit Judge.

text:
    SADLER MACHINERY CO. v. OHIO NATL., INC.
    United States Court of Appeals Sixth Circuit.
    No. 11605.
    Decided March 19, 1953.

      Charles P. Taft, Cincinnati (Samuel K. Walzer, Schwartz & Walzer, Cleveland, Marcus L. Friedman, Toledo, on the brief), for appellant.
    Harold A. James, Doyle, Lewis & Warner, Toledo, on the brief, for appellee.
    Before SIMONS, C. J., and ALLEN and MARTIN, Circuit Judges.
   OPINION

By ALLEN, Circuit Judge.

This is an appeal from a judgment dismissing plaintiff’s complaint praying for’the return of $25,000 theretofore paid by plaintiff to defendant for a 16", 6 spindle Bullard Mult-Au-Matic machine which was destroyed by fire while awaiting delivery to plaintiff. Defendant admitted that it received the full price of the machine, but contended that title had passed to plaintiff prior to the fire and that it was holding the machine on its premises for plaintiff’s convenience at the time defendant’s plant and the machine were destroyed. The court tried the case without the intervention of a jury and held that title to the machine was in the plaintiff at the time of the ñre and that delay in delivery was chargeable to plaintiff. The court therefore dismissed the complaint.

Plaintiff contends that the Ohio sales statute, §8381 et seq, GC, and the applicable decisions establish that title to the machine was in the defendant at the time of the fire. This is the principal question in the case. We think the District Court correctly decided that title to the machine was in plaintiff. The pertinent facts as found by the District Court are as follows:

“During telephone conversations January 12 to 15, 1951, between Mr. Sadler, of plaintiff, and Mr. Day, of defendant, the defendant agreed to sell the plaintiff, for the sum of $25,000 a certain Bullar Mult-Au-Matic machine, then located in the plant of the defendant at Upper Sandusky, Ohio, which had been previously examined by Mr. Sadler.
“Under date of January 15, 1951, a written contract in the form of a purchase order was mailed by plaintiff to defendant, and later signed by defendant, in which the price of the machine was fixed at $25,000, to be paid ‘$4,000.00 down — balance within ten days.’ The order contains the term ‘F.O.B. Cars Upper Sandusky, Ohio.’ It also contains the following with referencce to shipment: ‘Ship To Will advise’ and ‘Via Will advise.’ The order also contains the following with reference to preparation for shipment of the machine: ‘Note: It is understood that you will skid the machine and prepare it properly for shipment. The counter-weights to be removed and heads blocked, also all machined surfaces to be sludged to prevent rusting.’
“On January 15, 1951, after a telephone conversation with Mir. Day, at which the terms were agreed upon, the plaintiff by Mr. Sadler, wrote to the defendant, attention of Mr. Day, a letter enclosing the purchase order and check for $4,000, which letter contained the following request that the defendant hold the machine temporarily:
“ '* * * We would like you to hold the machine for a week or two, as we may sell it direct from your plant. In that way, we can avoid extra handling cost by shipping it to our warehouse.’
“Mr. Day testified that, upon receipt of the above letter, on January 17, 1951, he telephoned Mr. Sadler and told him that the terms set forth in the purchase order did not carry out the terms of the oral agreement; that he wrote Mr. Sadler a letter under date of January 17,1951, responding to Mr. Sadler’s letter of January 15, stating that he was returning copy of the purchase order signed,
“ ‘* * * but you will note that I have changed the terms as agreed upon by telephone and that is $4,000.00 Cash, and the balance of $21,000.00 within ten days.’
“ ‘One of my reasons for agreeing to sell this machine is the fact that we are cramped for space and would like to get it out of our factory as soon as humanly possible. We realize, of course, that if you can ship directly from our plant, it would mean considerable saving to you, and we are willing to go along for a couple of weeks as outlined.’
“On January 26, 1951, the plaintiff wrote a letter to the defendant, which states that the plaintiff is attaching a check for $21,000 ‘to cover the final payment on the 16" 6 Spindle Bullard Mult-Au-Matic recently purchased from your company.’
“The plaintiff also referred in the letter to its desire to leave the machine in the plant of the defendant for another week or two, stating:
“ ‘We tried to contact you today, by phone, but were informed that you were out of town until Monday. The reason for trying to phone you was to ask if it would be possible to leave the machine in its present location for another week or two. If this is not possible, we will have a truck at your plant Wednesday, January 31st, to pick the machine up and take it to Cleveland, where it will be stored.
“ ‘We wish to thank you kindly for your co-operation and hope that we may have the pleasure of hearing from you the early part of next week.’
“On the same day, January 26, 1951, the plaintiff wrote a letter to the Noll Equipment Company of Cleveland, Ohio, stating as follows:
“ ‘When talking with you by phone today it was agreed that you would send a truck to Ohio National, Inc., at Upper San-dusky to get the Bullard Mult-Au-Matic next Wednesday morning. You will deliver the machine to your warehouse and store it there until sold.
“ ‘We are sending Ohio National a check today to cover the balance due on this machine, so there should be no trouble in getting it released.
“ ‘Ohio National will prepare the machine for shipment and load it on your truck, therefore you won’t need to send any riggers along.’
“On January 29, 1951, the plaintiff wrote a letter to Noll Equipment Company, confirming a telephone conversation of that day.
“ ‘in which we asked you not to send your truck to The Ohio National, Inc. Plant in Upper Sandusky, Wednesday morning to get the Bullard Mult-Au-Matic which we purchased from them. The reason for the change in plans is that Mr. Day called us today stating that it would be alright to leave the machine in their plant another two weeks.’
“The weight of the evidence is that two or three days after the sale was made the machine was prepared for shipment by defendant by being skidded and sludged, but the counterweights were not removed and the head was not blocked, for the reason that this operation was not considered by Mr. Day necessary on a machine of this particular type.
“The fire occurred about 11 A. M„ on January 30, 1951.
“Plaintiff’s check for $21,000 dated January 26, 1951 (Friday), was apparently received by defendant at Upper Sandusky on January 29, 1951 (Monday), and mailed for deposit to defendant’s bank at Cygnet, Ohio, on that day and deposited to its credit on January 30, 1951, and paid by plaintiff’s bank at Detroit on February 2, 1951. [102 F. Supp. 652, 653.1”

The facts are even more favorable to defendant than as found by the court or than as asserted by defendant’s counsel. In its complaint plaintiff alleged:

“On or about January 15, 1951, the plaintiff entered into a contract to purchase from the defendant one used 16 inch, 6 spindle Bullard Mult-Au-Matic High Column Type Ser. No. 16840 machine arranged for single indexing with 5 heads, three plane vertical and two plane compound, machine arranged for power chucking, but without chucks, including cool lamp system and 30 H. P. motor and starter, at a price of Twenty-Five Thousand Dollars ($25,000.00), of which said price, Four Thousand Dollars ($4,000.00) was paid with the order, and the balance of said purchase price in the sum of Twenty-One Thousand Dollars ($21,000.00) was to be paid within ten (10) days thereof. Plaintiff says that said contract of purchase was confirmed in writing by its Order No. 560, dated January 15, 1951, and thereafter accepted by the defendant and acknowledged January 17, 1951.”

These allegations were admitted in defendant’s answer. It therefore was not necessary for the defendant to prove that the contract in its essential terms was agreed upon January 15th instead of January 17th as claimed by the plaintiff in the oral testimony. Bitterman v. Louisville & N. R. Co., 207 U. S. 205, 28 S. Ct. 91, 52 L. Ed. 171; Alexander v. Harris, 4 Cranch. 299, 2 L. Ed. 627. Also the pleading was an admission of the truth of the facts stated. While the assertion as to the making of the contract involves a conclusion of law, the statement in the complaint that the agreement was made January 15th and that under it full payment for the machine was to be made within ten days expressly supports the testimony of Day, the defendant’s president. The change in the purchase order made by Day on January 17th therefore was not a revision of the oral agreement but in conformity with it. The alteration of the terms of payment to read “balance within'ten days” instead of “balance before shipment” was the mere correction of plaintiff’s error in stating in the purchase order the terms agreed upon. The plaintiff made no objection to the change.

Since the District Court found that the agreement was made between January 12th and 15th and found in effect that the balance, of the price was to be paid within ten days, and since these facts are established beyond contradiction by plaintiff’s formal pleading, we do not discuss at length a number of the questions urged by plaintiff. Its contention that the defendant offered a totally new arrangement as to time of payment, so that the new contract was in effect on January 17th instead of January 15th, and its claim that the time arranged for delivery ran at least to January 31st are eliminated by the terms of its own complaint. The phrase “balance before shipment” which was changed by Day without objection by the plaintiff is eliminated from consideration by the same pleading. The time for delivery clearly was the period between January 15th and January 26th, the day when plaintiff mailed the check for $21,000 in final payment.

Plaintiff’s citation of the Statute of Frauds does not strengthen its position. Sec. 8384 GC, contains the usual provision that-

“A contract to sell or a sale of any goods or choses in action of the value of twenty-five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold, or sold, and actually receive them, or give something m earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.”

Plaintiff argues in effect that under this provision we may look only to the purchase order, which is the memorandum in writing of the sale, to determine what the contract was. Under well-established Ohio law the oral contract is not absolutely void. 19 O. Jur., Statute of Frauds, pg. 650, Section 135 et seq. Minns v. Morse, 15 Ohio 568; Ewing v. Richards, 8 Ohio Dec. Rep. 357; Gramann v. Borgmann, 14 Ohio N. P., N. S., 449. The statute of frauds only forbids the maintenance of an action to enforce the parol contract. Minns v. Morse, supra, and does not in any way affect the substance of the agreement, Ewing v. Richards, supra, nor touch the formation of the contract, Gramann v. Borgmann, supra. It simply prescribes that the contract shall not be enforced upon oral proof alone. The Statute of Frauds and its language fairly import that the oral agreement precedes the written memorandum and may exist as a complete agreement independent of the writing. Heaton v. Eldridge & Higgins, 56 Oh St 87, 46 N. E. 638, 36 L. R. A. 817. Under Ohio law. therefore, the oral agreement between the parties was the controlling contract.

Plaintiff attacks the conclusion of the District Court, which held that the term, “F. O. B.. Cars Upper Sandusky, Ohio,” in light of the parties’ correspondence, merely meant that the defendant was required to load the machine for shipment without expense to the plaintiff. This was in accordance with King, Gilbert & Warner v. Cleveland Shipbuilding Company, 50 Oh St 320, 34 N. E. 436. Plaintiff contends that the use of this phrase means the parties agreed that title should not pass until the machine had been loaded on the railroad at Upper Sandusky and the bill of lading issued by the common carrier.

But here the contract was never construed by the parties to require shipment by rail. Throughout the entire transaction the words “F.O.B. Cars Upper Sandusky, Ohio” were ignored by both plaintiff and defendant. The purchase order stated with reference to shipment; SHIP TO “Will advise” and VIA “Will advise.” This meant that plaintiff would advise the destination and the identity of the consignee. But in view of the construction of the contract by the parties plaintiff was also required to advise the time of shipment, for it was contemplated that the machine would be shipped by truck arranged for by the plaintiff and loaded on the truck without expense by the defendant. On January 15th Sadler, plaintiff’s president, wrote to Day that “we may sell it [the machine] direct from your plant.” Day, defendant’s president, in his letter of January 17th expressly recognized the saving to the plaintiff “if you can ship directly from our plant.” This not only meant that the machine would be shipped by truck instead of by railroad but also embodied an implied requirement that the plaintiff should notify the defendant when the truck would arrive. Sadler, on January 26th, in his letter enclosing final payment for the machine, stated that a truck would call at the plant on January 31st and also wrote a letter making this arrangement with the trucker.. He postponed the appointment with the trucker when Day gave him permission to leave the machine at the plant “a couple of weeks” longer. Since no shipment by rail was planned, no bill of lading was contemplated and the test contended for by the plaintiff as to passing of title, namely, that title could not pass until the bill of lading had been delivered by the carrier, was inapplicable. It follows that the exclusion of evidence with reference to the usage of the trade on shipment by railroad was not prejudicial and the holding of the District Court upon this point was not erroneous.

The District Court applied the long-established rule of the Uniform Sales Act, which is the law in Ohio, that the time of the transfer of property in the machine depended upon the intention of the parties, and found that an immediate transfer of property was contemplated. 2 Williston on Sales, Section 280b; Goodyear Tire & Rubber Company v. Northern Assurance Company, Ltd., 2 Cir., 92 F. 2d 70; Price v. Ed. Baum & Company, Inc., 71 Oh Ap 160, 25 O. O. 513, 48 N. E. 2d 123. It also applied Rule 1 of §8399 GC, which reads as follows:

“When there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.”

We think the finding of the District Court is sustained by the record. Clearly the contract contemplated delivery and transfer of the title within ten days from January 15th at the latest. Day testified that the machine was to “be taken immediately, just as soon as possible.”

The credibility of Sadler’s testimony is seriously affected by his denial at the trial of the statements of fact made in the formal complaint. The District Court had reason for not attaching weight to Sadler’s denial that the machine was expected to be taken promptly. From a legal standpoint under Rule 1, §8399 GC, the postponement of payment or delivery is immaterial. The fact that payment was made by check not honored until February 2, 1951, is therefore not controlling.

Plaintiff contends that Rule 1 of §8399 GC does not apply because the machine was not in a deliverable state. This is because the terms as to preparation for transportation embodied in the purchase order had not been fully complied with. The record shows that shortly after the telephone conversation of July 15th Day ordered that the machine be skidded and sludged, but the counterweights had not been removed and the heads had not been blocked at the time of the fire.

The defendant asked to leave the machine at plaintiff’s plant a longer time than the contract allowed. Day protested this but permitted the machine to remain there. The plaintiff thus not only deferred delivery but also deferred complete compliance with the specifications as to preparation of the machine for shipment.

We still think the District Court decided correctly that the machine was in a deliverable state. It was a secondhand item and the plaintiff examined it before he bought it. It is not contended that any change was needed for it to be operable. Although defendant was required, as the court held, to remove the counterweights, this obligation did not affect the “deliverable state” of the machine; it was merely a part of the agreed preparation for shipment. Underwood v. Burgh Castle Brick & Cement Syndicate, 1 K. B. 123 (1921). Plaintiff emphasizes this feature in its argument that the property in the machine had not passed to it under §8399 GC, on January 30th when the fire occurred. But after Sadler set the date at which he would pick up the machine he postponed delivery for two weeks longer and Day was not obliged to hasten the preparation of the weights and the heads.

Moreover, the delay in delivery was due to the plaintiff and was entirely for his benefit. The loss would not have occurred if delivery had been taken as the contract contemplated, but the plaintiff, having secured one delay, asked for another and revoked the instruction to his trucker to secure the machine on Jan. 31st. This situation was clearly covered by §8402(b) GC, which provides “When delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault.” “ ‘Fault’ means wrongful act or default.” Sec. 8456 GC. It was the plaintiff’s fault that the loss occurred. Cf. Schenning v. Devere & Schloegel Lumber Company, 173 Wis. 20, 180 N. W. 136.

The plaintiff urges that this conclusion runs counter to the case of Cochrane v. Forbes, 257 Mass. 135, 153 N. E. 566, which held that no wrongful act or default exists in the case of delayed deliveries if the parties have contracted that they may be made. This clearly is not the situation involved here. In the Cochrane case a new contract for delayed delivery was made and a new consideration passed between the parties. In the instant case there was no such contract for delay. The defendant simply complied with an urgently repeated request that the machine be left at its plant in order to accommodate the buyer. This was the buyer’s fault. The statutory definition, §8456 GC, differentiates between “wrongful act” and “default.” Sadler’s securing the delay was not a wrongful act, but it constituted a failure to act in accordance with the terms of the contract. This is a default. 35 O. Jur., Sales, Section 109 p. 825; §8431 GC; Restatement of the Law of Contracts, Section 457, e.

Bonham v. Hamilton, 66 Oh St 82, 63 N. E. 597, strongly relied on by the plaintiff, does not require reversal. There the question was whether title had passed to a stock of goods in a store sold at an auction sale by an administrator. The law required that the sureties on the security offered by the buyer should be approved by the administrator and this had not been done. Plainly, the title did not pass so long as this requirement was not complied with.

The judgment of the District Court is affirmed.

      . The parties will be denominated as in the court below.


text:
    LANDS OF McKAY, In re.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3560.
    Decided April 10, 1953.

      Manchester, Bennett, Powers & Ullman, Youngstown, for appellees.
    C. William O’Neill, Atty. Geni., Hugh E. Kirkwood, Jr., Asst. Atty. Geni., Columbus, for appellant. Director of Highways.
   OPINION

Per CURIAM.

The questions presented by the appeal of the Director of Highways of the State of Ohio, called director, from a judgment of the court of common pleas entered upon a jury verdict of $70,000.00 returned for appellee “In The Matter of the Extinguishment of all rights and easements of direct access from the lands of J. Russell McKay, executor of the estate of James M. McKay, deceased, et al,” is whether the trial judge erred to the director’s prejudice in the admission and rejection of evidence, in refusal to charge the jury as requested by the director, and whether the verdict of the jury “was excessive and against the manifest weight of the evidence.”

Prior to 1948 the land involved, known as original lot number 1, situated in the city of Youngstown, Mahoning county, Ohio, owned by James M. McKay, of whose estate J. Russell McKay, called executor, is executor, was bounded on the north by West Federal Street, on the west by Spring Common, a duly dedicated and accepted thoroughfare of the city of Youngstown, on the east by lands of others, and on the south there was pedestrian and vehicular access by way of an alley to Front Street. Spring Common was a square approximately 125 feet in width upon which various streets converged. The building situated on Lot No. 1, which has not been altered physically, had and still has three storerooms fronting on West Federal Street, four store rooms fronting on Spring Common, and seventeen rooms on the second floor; and was accessible to pedestrian and vehicular travel from Front Street, West Federal Street, the alley, and Spring Common.

As the result of a contract entered into in May 1945 by the director, the city of Youngstown, a municipal corporation, and three railroad companies Spring Common was reconstructed, the bridge which connected Ohio State Route 18 with Spring Common, and which spanned the Mahoning River and the tracks of the railroad companies, was rebuilt and extends now to West Federal Street. Front Street was extended in a general northwesterly direction, and by a change of grade passes under such bridge, rendering appellee’s building inaccessible to vehicular traffic from Front Street and the alley.

As the result of such reconstruction no highways converge on Spring Common, which has been eliminated. A retaining wall with railing protecting pedestrian travel was constructed on the Spring Common side of appellee’s property, and the highway lowered denying vehicular access to appellee’s building from the Spring Common side.

The trial judge overruled the director’s objection to the introduction into evidence of appellee’s exhibits indicating barricades of approaches to Spring Common during construction on the ground that the exhibits showed a temporary situation for which the director contends appellee is not entitled to compensation.

Executor contends such exhibits were offered and admitted in evidence for the sole purpose of establishing “the time of the taking of this property,” which time subsequently was stipulated, and that the trial judge did not err to the director’s prejudice in their admission.

In view of the fact that the improvement contemplated permanent elimination of Spring Common and vehicular access to appellee’s property the barricades did not constitute a “temporary situation.” Such elimination was permanent from the time the first barricade was erected. We conclude that such exhibits were properly admitted..

The trial judge admitted in evidence, over the director’s objection, the following testimony of two of appellee’s tenants of storerooms on the Spring Common side of his building:—

“Q. Prior to the improvement, Mr. Dempsis, what was your gross business per week?
“Mr. Kirkwood: We object. May it please the court, he is going to attempt to show loss of business.
“The Court: I think it is competent to show whether or not his business fell off. I don’t know anything about what he is going to testify to. I am doubtful about the figures. I will permit it. Give you an exception.
“Q. Would you please read that question again.
(Whereupon, the last question was read then by the court reporter.)
“A. Well, what year?
“Q. Well, let’s say 1947.
“A. 1947 there was around $250, $300, it was around there, something like that — $350, it depends, some weeks was a little better, some weeks less.
"Q. With respect to the Spring of 1948, before the improvement, what did your gross business average a week.
“The Court: Same objection and exception.
“Mr. Kirkwood: Yes, sir.
“Q. You may answer.
“A. Well, it’s about the same: it’s went down a little bit, you know, just a little bit it started to go down, not very much.
“Q. When the improvement was completed, and since it has been completed, what has been your average gross business per week?
“Mr. Kirkwood: Objection.
“The Court: Objection overruled.
"A. $85; $65; $55; $60 a week.”
“Q. What was your gross business per week before the improvement?
“Mr. Kirkwood: We object.
“The Court: Same ruling; exceptions.
“Mr. Kirkwood: Note our exceptions.
“Q. Would you read the last question.
(Whereupon, the last question: ‘what was your gross business per week before the improvement?’ was read by the court reporter.)
“A. Well, it was about to me between $300 and $400 a week.
“Q. Three-hundred and four-hundred dollars a week?
“A. Yes.
“Q. And what has your gross business been since the improvement?
“Mr. Kirkwood: Objection.
“The Court: Same ruling. Overruled and exceptions.
“Q. You may answer.
“A. You mean now?
“Q. Yes.
“A. Now, I reach up to $80; $85; $60.”

The testimony of the two witnesses referred to should not have been admitted because the reduction of the income of such tenant witnesses was not based solely upon any showing of extinguishment of access to the storerooms by reason of this improvement and is entirely too speculative.

However, due to the conclusion we reach finally we conclude that the introduction of this incompetent testimony is not so prejudicial as to warrant a reversal of the judgment of this case, especially in view of the provisions of §11364 GC, that no judgment shall be reversed if substantial justice has been done.

The trial judge refused to charge the jury in writing before argument the following instructions submitted by the director, designated respectively as requests 2, 3 and 4, in which refusal the director maintains the trial judge erred to his prejudice:—

“You are instructed as a separate proposition of law that where, as the result of the improvement of a street, there is a diversion of pedestrian or vehicular traffic causing a loss to a business fronting upon such street it has been held that such loss does not constitute an element to be considered in fixing the damages of the owner.” Special Instruction Number 2.
“You are instructed as a separate proposition of law that an individual owner has no right to insist that the entire volume of pedestrian or vehicular traffic that would naturally flow over a highway or street on which his property abuts, pass undiverted and unobstructed.” Special Instruction Number 3.
“You are instructed as a separate proposition of law that the property owner is not entitled to any compensation for the temporary inconvenience caused him during the construction of this highway project.” Special Instruction Number 4.

The director cites Nichols on Eminent Domain, Volume IV, page 275, and Volume II, page 409, respectively as authority for requests numbers 2 and 3; and 18 American Jurisprudence, page 901, as authority for request number 4. Request number 2 was practically in the verbatim language of the authority cited.

With respect to charge number 3, the director maintains that it is a basic rule of law “that highways are built for the traveling public and are not built in particular to bring traffic to the abutting property owners on a highway,” and “are not for the enhancement of property of abutting property owners.”

Arguing in behalf of request number 4, the director maintains that temporary inconvenience suffered by appellee is not “a compensable item.”

Appellee contends that even though the requests to charge as submitted were correct in the abstract they were not pertinent and responsive to any one or more of the issues in the case raised by the pleadings and the evidence offered in support of them, and that had the trial judge charged as the director requested he would have been “guilty of the grossest kind of error.”

As to request number 2, it appears upon its face that it is not a definite statement of the law applicable to this case, and is contrary to the holding of the supreme court in the case of Schimmelmann v. Lake Shore & Michigan Southern Railway Co., 83 Oh St 356.

The refusal of the trial judge to charge special request number 3 is supported by Schimmelmann v. Lake Shore & Michigan Southern Railway Co., supra. The trial judge did not err to appellee’s prejudice in refusing to submit request number 3 to the jury.

With reference to request number 4, we have answered the question of claimed error as to that request by what we have said in disposing of the claimed error with reference to admissions of exhibits showing barricades. There was no “temporary” elimination of vehicular traffic. Such extinguishment of access was permanent.

Executor’s expert witnesses testified that the damage to executor’s real estate was $100,000.00, $100,000.00, and $77,062:50 respectively. Director’s expert witnesses testified such damage was $16,000.00, $23,193.75, and $19,673.28 respectively.

We have carefully considered all of the evidence in this case, including that which relates to the amount of the verdict of the jury, and conclude that such verdict is excessive and against the manifest weight of the evidence, but not as the result of passion and prejudice; and that a remittitur should be ordered by this court of all damages awarded in excess of $55,000.00, and upon acceptance by the appellee of this remittitur judgment will be entered in the amount of $55,000.00, it appearing to the court that thereby substantial justice will have been done between the parties.

Upon failure of appellee to accept such remittitur in writing filed with the Clerk of this Court within ten days from the date of the docket entry of this court, the judgment of the trial court is reversed as against the manifest weight of the evidence and the admission of incompetent evidence to which reference has been made, and the case is remanded to the trial court for further proceedings to be had in accordance with law. Otherwise the judgment of the trial court is affirmed as modified.

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