author: By SKEEL, PJ.

text:
    JOHNSON, Plaintiff-Appellant, v. COMMERCE MOTORS, INC. et, Defendants-Appellees and JOHNSON, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 24291, 24292.
    Decided June 19, 1958.
    George Braun, for plaintiff-appellant, Willie Johnson and defendant-appellant, Mattie Johnson.
    Marshman, Hollington & Steadman, for defendants-appellees, Commerce Motors, Inc., and Northeast Investment Company, Inc.
    W. J. Papenbrock, for defendant-appellee, The National City Bank of Cleveland.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law and fact from a decree and judgment entered for .the defendants, Commerce Motors, Inc., Northeast Investment Company, Inc., and The National City Bank of Cleveland, on plaintiff’s amended petition. Judgment was entered against the plaintiff and the defendant Mattie Johnson on the cross-petition of The National City Bank of Cleveland.

The plaintiff purchased a Ford convertible Sunliner automobile by contract between himself and defendant, Commerce Motors, Inc. The contract was entered into on or about September 28, 1955. The automobile involved was the property of Milan Mihelich, a salesman for the Commerce Motors, Inc. He had purchased it from Commerce Motors, Inc. for use as a demonstrator. The sale here considered was made for Mihelich’s benefit, the salesman making the sale receiving no commission and Commerce Motors, Inc. no financial reward.

The plaintiff by his second amended petition filed in this court, upon leave, alleges the purchase of a new 1955 Ford Sunliner, eight cylinder, convertible automobile. The petition sets out the alleged terms of the sale. These allegations are not in complete accord with plaintiff’s evidence. It is further alleged that the defendant, Commerce Motors, Inc., “stated, guaranteed, warranted and represented” that the Ford being sold was a new automobile when, in truth and fact, it was a used automobile owned by one of its salesmen. In the transaction, it is alleged that this appellant transferred to the Commerce Motors, Inc., a 1952 Ford convertible which said appellee resold on October 4, 1955. The plaintiff then alleges that after he received delivery of the said convertible, he discovered it was, in fact, a “used” automobile and that he thereupon demanded the delivery of a new 1955 Ford convertible or the return of the automobile he had transferred to the Commerce Motors, Inc. and a cancellation of the contract. It is alleged that on October 17, 1955, the defendant, Commerce Motors, Inc., took title to the automobile sold plaintiff from its salesman and caused such certificate of title to be transferred to this appellant but did not furnish him a memorandum of title.

The plaintiff alleges that he notified the appellee, The National City Bank of Cleveland of the full nature of the transaction, that he had made a tender or offer to return the 1955 Ford convertible and that the defendants have refused such tender and further that he thereupon placed it in storage and has not since that date driven or used it but is holding it for the defendants.

It is alleged that the defendants have refused to furnish plaintiff with ,a retail buyer’s order, and to transfer to him title to said automobile within three days of the sale or to deliver to plaintiff a certificate of title, a copy of the mortgage, as is required by law. It is also alleged that the defendants, Commerce Motors, Inc. and Northeast Investment Co., Inc., performed all of the acts complained of, knowingly, maliciously and wilfully, with purpose, intent and design to defraud, injure and otherwise damage the plaintiff and that The National City Bank of Cleveland purchased the plaintiff’s note and mortgage with full knowledge of the alleged fraudulent conduct of the other defendants and, is, therefore, not a holder in due course.

The prayer of plaintiff’s petition seeks to cancel and rescind the contract for the purchase of the 1955 Ford convertible, the return of his 1952 Ford or its value in money, the cancellation of the mortgage and note now in the possession of The National City Bank of Cleveland, and to assess punitive damages and reasonable attorney fees and other equitable relief.

The separate answers of the defendants Commerce Motors, Inc., Northeast Investment Co. and The National City Bank of Cleveland, to the second amended petition of the plaintiff, admit the sale of the 1955 Sunliner Ford convertible to the plaintiff but allege it was sold as a demonstrator belonging to one of the salesmen of Commerce Motors. These defendants then set forth their claim as to the financial agreement between the buyer and seller resulting in a balance due of $2640 to be paid in thirty monthly installments of $88.00 secured by mortgage.

The National City Bank of Cleveland filed a cross-petition seeking judgment on the note given by the plaintiff and the new defendant, Mattie Johnson, representing the balance due for the purchase of said Ford less a credit of $210.67 for unearned finance charges with interest on the balance due of 8% from February 15, 1956. All claims of fraud or misrepresentation are specifically denied by these defendants.

The plaintiff and new defendant, Mattie Johnson, wife of the plaintiff, put in issue by answer the allegations of the cross-petition of The National City Bank of Cleveland.

The issues of fact on the claim that fraud was perpetrated upon plaintiff in delivering a used automobile to him, in place of the nev,r automobile which he claimed to have purchased, must be decided in favor of the defendants. In the first place, the retail buyer’s order, admittedly signed by Willie Johnson, which is dated September 20, 1955, a photostatic copy of which he attached to his second amended petition, shows on its face that the subject of the sale was a used automobile. It is so marked in the space provided for that information. The transcript likewise shows that plaintiff called as his witness the defendant Commerce Motors, Inc.’s salesman, who made the sale, the former owner of the automobile, who was also a salesman for “Commerce,” its sales manager, all as his witnesses. He is, therefore, bound by their testimony. These witnesses give no support whatsoever to plaintiff’s claims and establish beyond peradventure of doubt that the plaintiff did, with full knowledge of the fact, purchase a demonstrator which had been driven nearly five thousand miles. The plaintiff also introduced a witness who testified as an expert that the tires on the automobile delivered to plaintiff were used tires, the tread of one of them being worn down fifty percent, two others, twenty-five percent, and the fourth worn down ten percent. Also the plaintiff made the statement that the spare was a used tire. There was ’also testimony that the wear on the brake peddle was very noticeable. He also said that the plaintiff drove the car to his place of business about three months before trial and again on the day of trial. He also testified that the speedometer showed that the automobile had been driven more than 4,000 miles. The used tires and worn brake peddle and the speedometer reading were certainly clearly in the view of the plaintiff when he drove the automobile home from the sales agency and it is hard to imagine that the plaintiff failed to see or have knowledge of such clear evidence that the automobile was not new. These physical facts support completely the testimony the witness above referred to, namely, the fact that the plaintiff purchased a “demonstrator.”

There are other factors presented by the transcript to be considered in determining the right of the plaintiff to cancel or .repudiate the contract. A purchaser cannot use the property purchased after he discovers defects upon which he claimed the right to rescind and still seek rescission. The plaintiff drove the automobile one hundred miles by his own testimony after he had full knowledge of the facts upon which he claimed the right to rescind. On one of his trips, he was involved in an accident by reason of his own negligence when he ran into a parked automobile. These circumstances mitigate against his claim of the right to cancel the purchase of the automobile.

The claims of the plaintiff that Commerce Motors, Inc. failed to comply with §§4505.06, 4505.18-B and 1317.02 R. C., are not relevant as a defense, at least on the facts in this case, where the action is not brought until there has been full compliance. The second section mentioned relates to the obligation of one holding an automobile for sale to obtain a certificate of title thereto. The first section mentioned deals with the obligation of a person selling a motor vehicle to file the application for a certificate of title for the purchase within three days of delivery of such vehicle. From the transcript, it is clear that Commerce Motors, Inc. did get a certificate from its salesman and on October 17, 1855, title was transferred by certificate as provided by law to the plaintiff and the certificate made available to him. There is no evidence when the certificate of title for the 1955 Ford convertible was received by Commerce Motors, Inc. or as to when application was filed for the transfer of the certificate of title to the plaintiff. No violation of these statutes has been shown. But even if there were some support for plaintiff’s allegations that the statutes were not followed, there could be no claim that the sale here being considered would be void under the facts of this case. The statutes provide a penalty for their violation but there is no provision which would affect the validity of the contract of sale where before the action was brought, the automobile was in the possession of the buyer and the statutes complied with.

The claim that the written order for the purchase of the Ford automobile was not given to the plaintiff, upon delivery, as required by §1317.02 R. C., is unquestionably a correct statement of fact. Although there was a completed “Retail Buyer Order” signed by the plaintiff, there is no evidence that a copy was delivered as required. There is also some claim that the order was changed after plaintiff signed it. This fact is supported by the evidence. But the record also shows that the change in the figures was made shortly after plaintiff signed the order and that he consented to such changes. The record on this question is as follows:

“Q. Which figures did you change after you saw Stallings?
“A. The used car allowance from 1627. to 1597.76. That left the other balance of $580 alone. I changed this to 2110 and left this the same, and changed the figures down here where it says ‘monthly payments of $86.68’ to $88.00.
“Q. So there is $30 difference, is that right? The first one is $1,627 and the other one is $1,597, so you just added on $30 to the balance of the account?
“A. That’s correct.
“Q. Which gave a smaller trade-in allowance. Did you tell Johnson about this?
“A. Yes, absolutely.
“Q. And he didn’t sign the contract after you told him that, did he? He signed the contract before this change was made in the trade-in allowance?
“A. That’s right. But he knew about it. I come back out and talked to him.
“Q. Now, this is your handwriting?
“A. That’s correct.”

In all events no claim is pleaded by the plaintiff that he was charged more than he agreed to pay. The claim here was that the contract is void for failure to deliver a copy of the order of purchase. Such claims cannot be supported. The failure to deliver such writing may be the subject of a penalty but not a cancellation of the purchase. There is only one proyision under the Retail Installment Sales Act where it is provided a violation thereof will void the contract. That is §1317.08 R. C., dealing with overcharges and even under this section the procedure therein must be followed to permit rescission.

For the foregoing reasons, the plaintiff’s petition is dismissed and a judgment decree is entered for the defendants, the Commerce Motors, Inc., the Northeast Investment Co., Inc., and The National City Bank of Cleveland. Judgment is also entered for The National City Bank of Cleveland on its cross-petition against the plaintiff and the defendant Mattie Johnson in the sum of $2429.33, together with interest at 8% from February 15, 1956, and the costs of this action for which judgment is rendered.

Exceptions noted.

HURD and KOVACHY, JJ, concur.


source: Caselaw Access Project

author: Per CURIAM:

license: Public Domain

text:
    STATE, ex rel. GREEN ACRES DEVELOPMENT COMPANY, an Ohio corporation et, Plaintiffs-Relators, v. SABO, Building Inspector et, Defendants-Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24356.
    Decided April 2, 1958.
    Stanley P. Zuris, Oberlin, for plaintiffs-relators.
    Orgiii, Klein, Loux & Wickham, by Lloyd F. Loux, for defendantsresponaents.
   OPINION

Per CURIAM:

In tins original action filed in this court, relators seek a writ of mandamus to require respondents, the Building Inspector of the Village of West View, and other officials, to approve relators’ application and to issue a building permit for the construction of a trailer camp in said village. We find from the record facts as follows:

■ That on June 11, 1957, relators made application for said permit; that at that time Section IX of Ordinance No. 558 of the Village of West View was in full force and effect, and thát the real estate under District F thereof was zoned for trailer park purposes; that in fact it was the only area in said village which was zoned for such purposes; that the plans and specifications therefor had previously been submitted to and approved by the Department of Health of the State of Ohio and the Cuyahoga County Board of Health.

We find further that the plans and specifications submitted with said application conformed in till respects to all laws, ordinances, rules and regulations then in full force and effect in said village; that the application for a building permit for the construction of said trailer camp and in connection therewith the improvement of a railroad crossing dividing Parcel 1, on which the trailer camp is to be constructed, and Parcel 2, which forms the entrance thereof on Columbia Road in said village, was filed with respondents and that relators did everything necessary to be done to entitle them to the issuance of said permit, but that all efforts of said relators and applications made by them were arbitrarily refused by said respondents; that relators then thereafter exhausted all remedies by way of appeal or otherwise provided by ordinances, but that respondents and other responsible officials of said village persistently refused to accept said application and fees tendered in conformity with existing ordinances and thwarted certain bona fide efforts of relators to secure said permit by refusing to accept applications therefor and denied appeals provided by ordinances.

We conclude that under the facts shown in the record as a matter of law relators had a clear right to the issuance of said permit at the time the application therefor was made and now have a clear right to such issuance and that the respondents have had and now have a clear duty to issue said permit and that the relators having no plain and adequate remedy in the ordinary course of law are entitled to a peremptory writ of mandamus. It is therefore ordered that such writ be allowed to issue requiring the respondents to issue said building permit as prayed for.

Exceptions allowed. Order see journal.

SKEEL, PJ, HURD and KOVACHY, JJ, concur.


author: By BRYANT, J.

text:
    BUCKEYE LAKE HOTEL COMPANY, d. b. a. LAKE BREEZE HOTEL, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellee-Appellant.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5927.
    Decided June 17, 1958.
    Robert Dow Hamilton, Columbus, for appellant-appellee.
    William Saxbe, Atty. Genl., Chester Hummell, Asst. Atty. Genl., Columbus, for appellee-appellant.
   OPINION

By BRYANT, J.

This matter comes on for consideration upon a motion to dismiss the appeal on the ground that this court does not have jurisdiction of the subject matter. Said motion was filed on April 29, 1958 on behalf of the Buckeye Lake Hotel Company, dba Lake Breeze Hotel, appellant-appellee, herein called the Hotel Company. The latter, at the same time, filed a memorandum in support of said motion. In opposition thereto a memorandum was filed on May 7, 1958 on behalf of the Board of Liquor Control of the State of Ohio, appellee-appellant, herein called the Board.

It appears that the Hotel Company was the holder of four retail permits issued by the Ohio Department of Liquor Control, namely, D-l. D-2, D-3 and D-3A; that it was charged with selling beer and intoxicating liquor to eight persons too young to make such purchases and that the Board, upon hearing, found it guilty as to seven of the eight alleged illegal sales and revoked said permits.

Further, it appears that upon appeal, the Common Pleas Court reviewed the entire record and found that the order of said Board “is sup-' ported by reliable, probative and substantial evidence and is in accordance with law.” The said Common Pleas Court then decided that the penalty of revocation was too severe and accordingly reduced it to a suspension of sixty days and made a further reduction to forty-five days by making fifteen days of the suspension run prior to the date the journal entry was filed.

On April 2, 1958 the said Board filed its notice of appeal with this court from the said judgment of the Common Pleas Court, the appeal being on questions of law. It was with this background that the Hotel Company on April 29, 1958 filed its motion to dismiss the appeal of the said Board, which motion is now under consideration.

It is the contention of the Hotel Company that the reduction in penalty ordered by the Common Pleas Court was merely the exercise of discretion by the said lower court and that such action may not form the basis for an appeal to this court. Cited in support of this view is the case of Herman Mangold, dba Clover Club v. Board of Liquor Control (CP 76 Abs 124; OA 77 Abs 457), in which the opinion was rendered by this court on April 8, 1957.

In the Mangold case, supra, it was stated in the opinion that “the question presented is limited to a review of the correctness of the judgment of the court of common pleas holding that the order of the administrative agency is not supported by reliable, probative and substantial evidence.” (Emphasis added.)

Hence, it was held that this court lacked jurisdiction of the appeal This was because of §119.12 R. C., which provides in part as follows:

“Such appeal by the agency shall be taken on questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency and in such appeal the court may also review and determine the correctness of the judgment of the court of common pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record.”

Had the Mangold case, supra, been an appeal based upon questions relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the Board, the conclusion reached, in all probability, would have been opposite from what it was.

The Supreme Court of Ohio has passed upon the meaning of §119.12 R. C. See Katz et al., dba Century Grill v. Department of Liquor Control of Ohio, 166 Oh St 229, in which the syllabus is as follows:

“Under the provisions of §119.12 R. C., as amended in 1953 (125 Ohio Laws, 488), an administrative agency may appeal from a judgment of the Court of Common Pleas, rendered on appeal from a decision of such agency, only upon questions of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency, but when such appeal is perfected the reviewing court has jurisdiction to review and determine the correctness of the judgment of the Court of Common Pleas that the order of the agency is not supported by any reliable, probative and substantial evidence in the entire record.”

What are the questions which the Board seeks to have determined in this appeal? The Mangold case, supra, is of no help here for in it the Common Pleas Court expressly held that the evidence was insufficient to support the order of the Board. In the case now before us, the Common Pleas Court expressly held that the evidence was sufficient and was in accordance with law.

From its brief we learn that said Board intends to raise the following two questions:

“1. Upon appeal from an order of an administrative agency may the Court of Common Pleas, after finding that the order of agency is supported by reliable, probative and substantial evidence and is in accordance with law then modify the penalty imposed by the agency?
“2. May the Court of Common Pleas, after granting a stay order, fix the date for the beginning of a period of suspension 15 days prior to the date on which the decision was journalized, as was done in the instant case?”

The language above quoted is part of the argument of the said Board in its brief opposing the motion of the Hotel Company to dismiss the appeal. It is not an assignment of errors, although we assume that it is the intention of the said Board at the proper time and in the proper manner to raise, by an assignment of errors, the two questions above set forth.

It would appear that we must decide the said Hotel Company’s motion to dismiss upon the condition of the record as of the date when the said motion was filed. On that date, namely, April 29,1958, the said Board had not filed any assignment of errors in connection with its appeal to this court. Inasmuch as only twenty-seven days had elapsed from the date of the filing of the notice of appeal, the said Board was not out of rule ana still had time within which to file its assignment of errors and brief.

It is from the assignment of errors that we must start in our search to learn precisely what questions the said Board seeks to raise. Inasmuch as the said assignment of errors was- not due and had not been filed, there is no way of determining from the record, on April 29, 1958, whether ■the questions it seeks to raise relate to the constitutionality, construction or interpretation of statutes and the rules and regulations of the said Board, or wheher they relate to questions-of evidence. It is therefore apparent that the said motion to dismiss was filed prematurely. Until said assignment of errors is filed there is no way of determining from the record just what .questions are- raised by the said Board.

For the reasons above set forth the motion of the said Hotel Company to dismiss the appeal must be overruled.

PETREE, PJ, MILLER, J, concur.


author: By DOYLE, J.

text:
    FITZSIMMONS, Appellant, v. LOFTUS, d. b. a. SHAKER SQUARE APARTMENTS, INC. et, Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24351.
    Decided July 16, 1958.
    Hornbeck, Ritter & Victory, for appellant.
    McConnell, Blackmore, Cory & Burke, for appellee.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.

This was an.action brought to recover damages for injuries received by Thomas J. Fitzsimmons, as the result of an explosion of natural gas ■ in a room 'in an apartment which he was then occupying.

It was asserted that, as the injured claimant “ignited a cigarette lighter in the kitchen of said apartment for the purpose of lighting a cigarette * * *, suddenly, without any warning whatsoever, and as a direct and proximate result of the negligence of the defendant * * *, a terrific explosion and flash-fire occurred by the ignition of gas,” which had escaped from a gas pipe line at the point of its connection with a gas range.

The material part of the grievance was stated to be that “one Walter Succov, custodian of said apartment building, who was an agent and employee of defendants then and there acting within the course and scope of his employment, disconnected the gas stove in the kitchen * * * from the gas pipe line entering said kitchen and moved said stove out from the kitchen wall in order to permit said wall and the back of said stove to be washed. When the washing of said wall and stove had been completed, said Walter Succov pushed the stove back to the wall and reconnected the stove to said gas pipe line. In making said reconnection, said Walter Succov did so in a careless and negligent manner, permitting gas to escape from said connection, and failed to test said connection with a lighted match, or otherwise, in order to ascertain whether or not any gas was escaping therefrom.”

Negligence was particularized as follows:

“1. In carelessly and negligently connecting said stove to said gas pipe line in such a way that gas was permitted to escape from said connection.
“2. In failing to inspect and test said connection after reconnecting said stove to said gas pipe line, in order to ascertain whether or not gas was escaping therefrom.
“3. In failing to warn plaintiff and other persons properly occupying said apartment of the dangerous condition caused by the escape of gas from said connection.
“4. In failing to furnish and provide reasonably safe premises for occupancy by the tenant of said suite and her guests, including plaintiff.”

The case proceeded to trial, upon issues joined, in the Court of Common Pleas of Cuyahoga County. At the close of plaintiff’s evidence, one of the defendants, Don A. Loftus, d. b. a. Shaker Square Apartments, Inc., was dismissed from the case by virtue of a stipulation that the custodian was an employee of the other defendant, Investors Diversified Services, Inc., which had full control of the apartment building during the period covered by the testimony. No complaint is made of this ruling.

The remaining defendant then moved the court for a directed verdict in its favor. This motion was overruled, and the evidence of this defendant was then introduced. At the close of the case, after both sides had rested, the defendant, Investors Diversified Services, ' Inc., again moved the court for a directed verdict in its favor. This motion was sustained, and, from the judgment entered thereon, the present appeal has been taken.

The sole question before this court is, whether the trial court was right in ruling as a matter of law that the evidence offered in the trial, and the reasonable inferences to be drawn therefrom, were insufficient to enable reasonable minds to reach a conclusion that the exploding gas came from the gas pipe connection in question, claimed to have been negligently reconnected by the servant of this defendant. Hamden Lodge, etc., et al., v. Ohio Fuel Gas Co., 127 Oh St 469; Tanzi v. New York Central Rd. Co., 155 Oh St 149.

By bringing this action, the plaintiff assumed the obligation to show that the negligence of the defendant’s servant created such a condition, at the connection of the gas pipe line with the stove, as to allow gas to escape into the kitchen. v

This was an affirmative burden and' could not be left to surmise, conjecture or imagination. The plaintiff was called upon to produce something amounting to proof, either by direct evidence, or rational inferences of probabilities from established facts. While the plaintiff was not bound to exclude every other possibility of cause for his injury ^ except that of the negligence of the defendant, he was required to show, by evidence, a greater likelihood that it came from an act of negligence for which the defendant was responsible than from a cause for which the defendant was not liable. If on all the evidence produced in the trial it appeared just as reasonable to suppose that the cause of the explosion and injury was one for which no liability attached to the defendant as one for which the defendant was liable, then the plaintiff failed to make out his case. See: Gedra v. Dallmer Co., 153 Oh St 258.

“6. In order to recover against a defendant in a tort action, plaintiff must produce evidence which furnishes a reasonable basis for sustaining his claim. If his evidence furnishes a basis for only a guess, among' different possibilities, as to any essential issue in the case, he fails to sustain the burden as to such issue.”

Landor v. Lee Motors, Inc., 161 Oh St 82.

There is no direct evidence that gas leaked at the connection, nor is there any direct evidence that gas leaked from any other source. There is evidence that natural gas exploded in the kitchen and hurt the plaintiff.

The plaintiff (appellant here) analyzes the liability of the defendant as follows:

“A. It is conceded that there was a natural gas explosion.
“B. Only one gas line entered the kitchen.
“C. There were only two places where a natural gas leak could originate.
“1. in the burners.
“2. m the union.
“D. There were no natural gas leaks in the burners.
“E. Therefore, the natural gas leak came from the union.”

In contrast to the conclusion reached in “E” above, there is no evidence that the “union” was in disrepair and leaked gas. In fact, the evidence all pointed to the fact that it was in good condition and did not leak gas, and that the same gas range and connections were used without repair long after the explosion, and no gas leaked therefrom.

It is conceivable that gas entered the room from the burners. It might be suggested, with like plausibility, that it came through the cracks of a door jam, or through an open window. These hypotheses illustrate the wide range of speculation available in guessing the cause of the presence of gas.

In considering the entire record before this court, the mind is left in such uncertainty that it cannot be said, nor could reasonable minds conclude, that a cause attributable to the negligence of the defendant has been indicated by a probability sufficient to be removed from the realm of guess and fancy. In short, the evidence before us does not show that the explosion resulted from negligence for which the defendant was responsible, any more than from a cause for which he was not.

The judgment must be affirmed.

HUNSICKER, PJ, KOVACHY, J, concur.


text:
    BEACH, Guardian, In re, Plaintiff-Appellant, v. BAKER et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24480.
    Decided June 26, 1958.

      Beach & Warner, George E. Beach, of Counsel, for plaintiff-appellant.
    Lawrence E. Stewart, Peter Onysko, for defendants-appellees.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered by the Probate Court of Cuyahoga County against the plaintiff on his/ petition seeking a declaratory judgment. This action for declaratory judgment was commenced by the plaintiff as guardian of John Burger, the appointment having been made by the Probate Court of Cuyahoga County on May 11, 1956. The application alleged that John Burger'was an incompetent person by reason of advanced age, or mental or physical disability or infirmity. The petition is concerned with the right of the defendants to certain money paid to them by John Burger for services rendered for his care. While the case was pending, the defendant, Clarence M. Baker, died on December 1, 1955, and the plaintiff’s ward. John Burger, died on January 16, 1957. The court, upon the supplemental petition of the plaintiff, revived the action in the name of George E. Beach, as Executor of the Estate of John Burger, and also revived the action against Bertha M. Baker, as Executrix of the Estate of Clarence A. Baker.

John Burger, at the time of the filing of this petition on July 23, 1956, was a widower of eighty-six years. He was a retired railroad engineer of the Baltimore and Ohio Railroad Company, and was receiving therefrom a pension of $135.94 per month. His second wife, to whom he was married in 1941, died on October 2, 1954. He lived in his own home on Westwood Drive, Strongsville, Ohio. He had a savings account in The Commercial and Savings Bank of Berea, Ohio (now consolidated with the Union Bank of Commerce of Cleveland), with a balance, prior to the withdrawals here considered, of $5291.07.

William E. Burger, son and only child of John Burger, lived in Chicago, Illinois, with his family. He had been a resident of that city since 1922 and was engaged in building construction. Clarence A. and Bertha M. Baker, husband and wife, lived the second door from John Burger on Westwood Drive in Strongsville.

The plaintiff’s petition alleges that on May 11, 1956, he was appointed and is now the qualified and acting guardian of the person and estate of John Burger, Incompetent; that John Burger was found mentally ill by the Probate Court of Cuyahoga County as charged in a lunacy proceeding filed May 8, 1956. In such proceeding John Burger was committed to a State Hospital (Hawthornden) on May 10. 1956.

The plaintiff’s petition further alleges that the defendant, William E. Burger, was the sole child of said ward and the only person entitled to the next estate of inheritance from him and as a person so interested, had. in writing, pursuant to §2107.46 R. C., requested this guardian to institute this proceeding for “his guidance the direction or judgment of this court on the matters Herein set forth.” The petition then sets forth the facts above set out concerning John Burger, his advanced age, that he is a widower, his pension income, his savings bank deposit, the relationship of William E. Burger, and that William E. Burger visited the said. ward from time to time and that as time passed, the “said ward’s physical and mental vigor gradually ebbed to the extent that in the fall of the year, 1955, his son, defendant, William E. Burger, made inquiries from time to time of neighbors, including defendants, Baker, herein, who had been volunteering to, and did, look in upon, and do some services for, his father occasionally, but with increasing frequency, as to whether they had been sufficiently paid therefor, or, as to what their demands were, if any, and even wrote them several letters about it but his inquiries were at different times responded to by defendants, Baker, either in the negative, or evasively, but concluding on October 31, 1955, wherein it was stated, inter alia, by said Bakers to said William E. Burger, in writing: ‘We (Bakers) do have an understanding with him (John Burger),’ but did not reveal what it was though defendants, Baker, were, the while handling said ward’s pension money and paying certain bills therefrom.”

The petition further alleges that defendant, Clarence A. Baker, without giving notice to William E. Burger, attempted to have himself appointed guardian of John Burger by application filed in the Probate Court of Cuyahoga County on December 29,. 1955, asserting that he (Burger) was mentally ill and incompetent, but that such application was dismissed on January 26, 1956,' by the applicant because William E. Burger, who accidentally received notice of the proceeding, appeared at the hearing. (The application, which is Joint Exhibit No. 1) alleges that “John Burger is incompetent by reason of advanced age, physical disability and infirmity and by reason thereof is incapable of taking proper care of himself or of his property.” No mention is made of plaintiff’s allegation that the application claims Burger to be then “mentally ill.”

The petition then alleges that in the meantime and without the knowledge of William E. Burger, there was withdraw from the ward’s savings account $3400 on January 16, 1956 and $350.00 on March 9, 1956, which sums were “appropriated in their entirety” by the Bakers.

The petition then asks the determination of the' following questions so that plaintiff, as executor, may proceed safely in the premises:

“1. Whether defendants, Baker, have the right to retain, all, or any part, of either or both of the items of $3,400.00 and $350.00, aforesaid.
“2. Whether he should pay to defendants, Baker,' the additional $150.00, aforesaid, demanded by them from the estate of his ward.
“3. If defendants, Baker, be required to account for and return all or part of the items of $3,400.00 and $350.00, aforesaid, do said items draw interest, or penalty?
“4.. Do defendants, Baker, owe duty to account fully for disposition of all funds received by them from John Burger including also his monthly pension?” - ■

By answer, it is alleged, in addition to admitting the record of plaintiff’s appointment as guardian, and other matters of record, that the money paid to the defendants was in payment for the amount due under a contractual agreement for services performed at fifty dollars per week.. It is further alleged that John Burger was fully competent to contract when the agreement was made and when the money was paid.

The pertinent evidence, in brief, on the issues as submitted by the parties^and'admitted into the record by the court over objections of the opposite party, was to the. following effect: The plaintiff called as his witness the defendant, William E. Burger (a party defendant in the action)- who testified that after his stepmother died on October 2, 1954, he wrote a letter to the Bakers, dated October 13, 1954, in which he stated: “As was explained to you over the telephone, it is my utmost wish that he (John Burger) have whatever comfort you may be able to help him with. If at any time you receive compensation from him, kindly accept it at face value and if in your opinion, it is inadequate, kindly let me know and I will supplement it to whatever extent suits you. If he does not offer you money, please feel free to let me know and I will see that you are adequately compensated.” (Plaintiff’s Exhibit C.)

And again, October 26, 1955, William E. Burger wrote: “Since my visit to Strongsville in August, at which time I asked you to send to me an account of whatever might be due you by my father, I have not heard from you in this connection; consequently, I am assuming that you are adequately being paid regularly from time to time for whatever services you are performing for him.” (Plaintiff’s Exhibit P.)

An answer to this letter from the Bakers was put in evidence (Plaintiff’s Exhibit G; which stated: “Answering your recent letter, wish to say we are not being paid in cash for our services to your father. . We do have an understanding with him that we will be taken care of in the future. We are keeping an account of meals and all other work we do on his place.”

This witness also testified that at least until April 1956 his father was mentally competent to take care of his own affairs. He testified as follows:

“Q. And you knew that your father couldn’t care for his own property, meaning the house, he couldn’t take care of repairs or things of that nature, could he?
“A. That was on account of a physical condition.
“Q. Yes, physically he couldn’t take care of them.
“A. That’s right.
“Q. You are not contending at all that there was anything wrong with him mentally?
“A. No.,
“Q. He was mentally alert?
“A. Yes.
“Q. As a matter of fact, you didn’t notice anything wrong with his mentality until, as you said in the report, about April of ’56, isn’t that true?
“A. That’s right.
“Q. So during this entire period of time, this entire transaction, up until about April of ’58 was the first that you had noticed that anything outwardly appeared mentally concerning the man, correct?
“A. Yes.”

The plaintiff must also have considered John Burger of sound mind and memory during this period because his evidence shows that he drafted and witnessed John Burger’s will on December 22, 1955, and on the following day, accepted a deed to himself from John Burger of his real property in Strongsville.

There is no dispute in the evidence but that John Burger withdrew from his savings account in The Commercial and Savings Bank of Berea the sum of $3400.00 and $350.00 and that this money was given to Clarence A. Baker and Bertha M. Baker who accompanied him to the bank on both occasions as payment for their services.

The plaintiff’s witness (the bank employee who paid out the money) testified on direct examination as to the first withdrawal as follows:

“A. It was in the morning and Mr. Baker came in with Mr. Burger and came to my desk. I was sitting at my desk at that time. I wasn’t at the window. And he came to my desk and I asked him to come in and they came in and sat down and Mr. Baker said, ‘Mr. Sander-son, Mr. Burger wants to draw some money off his account and is going to pay me for services that Mrs. Baker and I rendered to him for the past few years taking care of him,’ and he handed me the book and I said, ‘How much do you want to draw?,’ and he told me.”

Bertha M. Baker testified over plaintiff’s objection that there was an agreement between the Bakers and John Burger to pay them, the Bakers, fifty dollars a week for taking care of him. The record shows the following:

“Q. All right. Now, you indicated in this letter on October 31, 1955, that you are not being paid in cash, but you had an understanding with him that you would be taken care of in the future. Will you tell us concerning that arrangement?
“MR. BEACH: Object.
“THE COURT: Overrule the objection.
“MR. BEACH: Exception.
“A. Well, he talked to Mr. Baker and he said ‘If you folks will continue on taking care of me and bringing my meals and tending to things,’ he said, ‘I’ll give you $50.00 a week,’ and Mr. Baker came home and talked it over with me and well, we thought he was so near, Mr. Baker was so near retirement and that, he would want to pay us every week or so, and we said we would rather have it in a lump later on whenever it accumulated a little bit.
“MR. BEACH: 1 want to move that the answer be stricken, Your Honor, along with the other objection I had we will note that she says that Mr. Burger said something to Mr. Baker when she was not present and Mr. Baker, now deceased, came and told her about it and then they decided to do it.
“THE COURT: She is attempting to interpret the language—
“MR. STEWART: That’s correct, Your Honor, which was introduced.
“THE COURT: I will overrule the objection.
“MR BEACH: Exception.”

There is no dispute in the record but that, the Bakers rendered care and assistance to John Burger of a necessary and material nature for his well-being from the date his wife died until about the time he was sent to a rest home — a period of seventy-five weeks — and that at $50.00 per week, there would be due for such, period of service $3750.00, the exact amount paid to the date of the last'payment.

From the judgment of the Probate Court holding that the $3750.00 paid to the Bakers was their property and further that they owed no obligation to account for the pensión funds of John Burger, handled by them, the plaintiff claims the following errors:

“1. The judgment of the trial court is manifestly against the conceded, stipulated and uncontroverted evidence.
“2. The judgment of the trial court is contrary to law, among others, in the following respects:
(a) In prejudicially drawing erroneous conclusions of law from the undisputed facts.
(b) In rendering judgment in favor of defendants, Bakers, and against plaintiff.
(c) In admitting the testimony of Bertha M. Baker against John Burger’s" executor — §2317.03 It. C.
(d) In prejudicially failing to hold that the transactions involved .were invalidated by §2111.04 R. C.
(e) In prejudicially failing to hold defendants, Baker, liable as constructive guardians or constructive trustees.”

It must be said at the very outset that unless John Burger has been shown by the plaintiff to have been non compos mentis prior to April, 1956, any contracts or agreement entered into and performed by him before that time cannot be the concern of either his guardian thereafter appointed or his executor. The evidence in this case is clear that John Burger has sufficient assets to take care of himself and so long as he had mental capacity to understand what he was doing, his son could not interfere with his father’s financial affairs and owed no legal responsibility for his support. From the evidence .as herein detailed and as unequivocally supported by other witnesses, John Burger was capable of making and legally responsible for his contracts during the period when he paid the defendants $3750.00 for personal services rendered by the Bakers which were necessary for his well-being.

The question here then is as to the terms of the contract and upon whom lies the burden of proof. There is no issue but that services were rendered for John Burger and that some compensation was rightfully due for such services. There is also no dispute but that $3750.00 was paid for such services. The plaintiff’s evidence, the allegations of the petition and other evidence, clearly establish this fact. An. executed contract, whether express or implied (so far as the defendants are concerned), is therefore presented. If the plaintiff would challenge the amount received by the defendants by virtue of such contractual relations, the burden is upon him to show either that the amount received was m excess of the terms of the contract, if based on an express contract, or if based on implied contract, that the amount paid exceeded the reasonable value of the services rendered. The plaintiff has not attempted to refute an express contract or to show over-payment of an implied contract so that the trial court’s judgment on the principal question must be sustained.

The claim that §2111.04 R. C., as then constituted, prevented John Burger from paying a debt created on account of rendering personal services through a long period of time before the application for guardianship was filed, cannot be sustained. The section, in part, provides:

“No guardian of the person, the estate, or both shall be appointed until at least three days after the probate court has caused written notice, setting forth the time and place of the hearing, to be served upon the following persons:
“Such notice shall be served by delivering a copy to each person named therein, by leaving such copy at his usual place of residence, or by sending such copy by registered mail to his last known address, except that when required by this section, personal service of such notice shall be made on the person for whom such appointment is sought. Such notice may be waived in writing by all competent persons except the person for whom such appointment is sought.
“From the service of such notice until the hearing no sale, gift, conveyance, or encumbrance of the property of such incompetent, habitual drunkard, idiot, imbecile, lunatic, or confined person shall be valid as to all persons having notice of such proceeding.”

This section is not applicable to the facts of this case. The payment of a debt is not a sale, gift, conveyance or incumbrance. In re Estate of Stevenson, 79 Oh Ap 315, 69 N. E.2d 426; Brockway v. Jewell, 52 Oh St 187, 39 N. E. 470. Also, it is not clear from the record whether an application for a guardian was pending when the first payment was made on January 16, 1956. Certainly, no such application was pending on March 9, 1956.

The appellant complains that Bertha M. Baker, being a party to the action, was not eligible as a witness to testify by reason of the provisions of §2317.03 R. C., the plaintiff being at first the guardian and then the executor of the estate of John Burger, now deceased.

Sec. 2317.03 R. C., provides, in part:

“A party shall not testify when the adverse party is the guardian or trustee of either a deaf and dumb or an insane person or of a child of a deceased person or is an executor or administrator, * * * except:
“(C) If a party, or one having a direct interest, testifies to transactions or conversations with another party, the latter may testify as to the same transactions or conversations;”

Here the plaintiff introduced in support of his case the letter of Bertha M. Baker, above quoted, in reply to a letter of the defendant, William E. Burger, an interested party, which was presented and received in evidence on behalf of the plaintiff, wherein she stated that they (Clarence A. Baker and Bertha M. Baker) have an agreement with John Burger for compensation as a result of their personal services to him. This evidence involved the very transaction about which the plaintiff seeks instruction and by presenting such evidence, opened the door for the defendants, Baker, to testify on the same subject as provided by §2317.03, paragraph (C), R. C., which was above quoted. See Rankin v. Hannan, 38 Oh St 438, where it was held that if an administrator testifies to a conversation between his intestate and the opposite party, the latter may testify as to the same subject. Also, see Williams v. Longley, Admr., 3 C. C. 508, where the court held that a party having a direct interest in the event testified' to • concerning transactions between decedent and the adverse party, such adverse party may testify to the same transaction. /

It is also doubtful whether the defendant was required to produce evidence to support the judgment. The sufficiency of the petition, in stating a cause of action, was challenged by demurrer which was overruled by the trial court. This ruling has not been appealed by the defendants, Eaker, either by direct or cross appeal so that the question has not been called to our attention. Even if ‘we concede that the petition does state a cause of action, which is open to considerable doubt, the evidence of the plaintiff falls far short of sustaining the right to a declaratory judgment upon the facts pleaded. The evidence establishes no controversy involving a relationship or the meaning of a contract or other controversy coming within the provisions of the Declaratory Judgment Statutes. If anything, it is a suit for money only.

In the case of Ohio Farmers Ins. Co. v. Heisel, 143 Oh St 519, 56 N. E. 2d 151, an action was filed seeking a declaratory judgment to determine whether an accident experienced by the son of the insured while operating the insured vehicle of his father came within the terms of the policy which, upon the face of the petition, required only a determination of fact. The defendant demurred to the petition on the ground that it did not state a cause of action, which demurrer was sustained by the trial court and which judgment was entered after the plaintiff refused to plead further. Such judgment was affirmed by the Supreme Court. The third paragraph of the syllabus provides:

“3. An insurer may not obtain a declaratory judgment with reference to its insurance policy when no question of construction or validity thereof is raised.”

And on page 522, the court said:

“Are these plaintiffs asking to ‘have determined any question of construction or validity arising under the * * * contract’ of insurance? Of course the demurrer admits the plaintiffs’ well-pleaded allegations, but in the petition there is not even a suggestion of any question of ‘construction or validity’ of the policy. The plaintiffs allege that they insured ‘any person while using the automobile and any person or organization legally responsible for the use thereof * * * provided further the actual use is with the permission of the named insured.’ This the demurrer admits. Neither the meaning nor the validity is challenged. What, then, is the question the plaintiffs want to have decided at this time in the form of a declaratory judgment? According to the petition, the single issue presented is a question not of ‘construction or validity’ but merely of fact as to whether at the time of the collision the automobile was being driven with the permission of the insured.”

The character of the action before us, as indicated by the pleadings and evidence, is one for money only. The material allegations of the petition are admitted by the answers of the Bakers, as is above set out. The facts pleaded as the basis of compensation for services took place during the lifetime of John Burger. The only justiciable issue is as to whether or not the estate is entitled to the return of a part of the money paid to the Bakers by John Burger. Such an issue, not being the subject of an action for a declaratory judgment, is not within the jurisdiction of the Probate Court.

In the case of Sherrets, Admr. v. Tuscarawas Savings & Loan Co., 78 Oh Ap 307. 70 N. E. 2d 127, the administrator filed a petition in the Probate Court seeking a declaration of her rights to certain corporate stock. The action was based on contract but the terms of the contract were not in issue. The court said in the syllabus:

“1. The power of a court to render a declaratory judgment by virtue of provisions of the Uniform Declaratory Judgments Act does not empower tne court to expand its jurisdiction over subject matter.
“2. The jurisdiction of actions at law and suits in equity seeking to enforce oral contracts or to set aside such contracts in equity for fraud practiced and to recover back any consideration paid is reposed solely in the Court of Common Pleas to the complete exclusion of the Probate Court.
“3. Where the administratrix of an estate files an action in the Probate Court of a county against a savings and loan company, a resident of such county, and the receiver of a park association, a nonresident of such county, the petition in the action charging fraud in the decedent’s oral transaction with the park association and seeking a declaration of rights to a certain stock certificate of the company alleged to have been given by the deceased to the association as consideration in such transaction, an order of dismissal of the petition is justifiable,' the court having no jurisdiction of the subject matter of the action and there being an improper joinder of parties defendant.”

And on page 313, the court said:

“It must be remembered that the entire transaction of which plaintiff -complains occurred prior to the death of her decedent. It is not a case of someone withholding an asset of the estate under a claim of gift or ownership from an estate’s personal representative; but a fully executed transaction whereby decedent parted with title and possession in her lifetime. All the administratrix of her estate had was a right of action to recover property or its money value. It is exactly in the same situation as a promissory note due the estate, or an action for personal injury to the decedent’s person or property, or property withheld which could only be recovered by an action in replevin.”

We have not spoken of the claim of the plaintiff seeking an accounting of funds received and handled by defendants, Baker, coming from John Burger’s pension checks. There is no evidence in the record to support this claim and even if there were, it could not be recovered in an action for declaratory judgment for the reasons herein set forth.

For the foregoing reasons, the judgment of the trial court is affirmed.

HURD and KOVACHY, JJ, concur.