author: By DULL, J.

text:
    WEST, Plaintiff, v. ANKNEY, Defendant.
    Common Pleas Court, Paulding County.
    No. 18208.
    Decided February 10, 1956.
   OPINION

By DULL, J.

This is an action'for a declaratory judgment construing a farm contract.

It was submitted to the court upon the pleadings, the testimony of witnesses, the evidence, exhibits, oral argument and briefs of counsel.

A copy of the contract, admitted in evidence as Plaintiff’s Exhibit A, follows:

“CONTRACT

“I. This agreement is entered into the 1st day of April 1955, between Carl V. Ankney and Wm West.

“II. This agreement is entered into for the purpose of operating a farm business described as M. L. Searcey Farms Emerald Twp. Paulding Co., Ohio.

“III. The term of this agreement shall be from 1st day of April 1955 to 1st day of Jan 1956, an from, year to year thereafter unless

written notice to terminate is given by either party at least 60 days prior to beginning of succeeding year.

“IV. The terms of this agreement shall be binding on the heirs, executors, administrators an assigns of Each Party in like manner

as upon original Parties, except as shall be provided by mutual agreement to otherwise.

“V. This agreement shall not be construed as giving use to a pardner-ship, an Neither Party shall be liable for debts or obligations incurred

by the other without written concent.

Under this agreement Wm West agrees to furnish his labor and Management. Annual settlement is made on cash basis an inventory.

“(A) Division of Net Farm Income. The net farm income at end

of year shall be divided on a 50/50 basis of tenants share.

“(B) Wm West is guaranteed a cash income of $200.00 a month 4-1-55 to 1-1-56. Such compensation shall be considered advance payment against his share of net farm income at end of year.

“The amount advanced to Mr. West shall not be considered a part nf the cost of hand labor when determining farm expenses.

“(C) Any extra hired labor shall be shared equally.

“(D) Each party is to share equally in all operating expenses of the farm, Any Major expense & sales beyond $25.00 must be agreed upon by both Parties.

“(E) Any Payments upon your share of live stock or Machinery may be deducted from Monthly income provided agreed upon mutually by both parties.

(Signed) Carl V. Ankney

(Signed) W. A. West”

At the oral hearing held on December 15, 1955, from the testimony and evidence certain facts and surrounding circumstances were discovered.

“One of the most satisfactory tests for the ascertainment of the true meaning of a contract is for the court to place itself in the position of the contracting parties and view all the facts and circumstances surrounding them to determine what was meant by the phrases and words of the instrument.” 11 O. Jur. 2d, page 406.

“Preliminary negotiations may be considered for the purpose of explaining ambiguous language in a written contract. Conversation between the parties before, or at the time of, the making of a written contract is admissible to show the sense in which ambiguous words were used therein.” 11 O. Jur. 2d, page 409.

“Subsequent transactions under or in pursuance of contracts, or with the contracts in view, may be looked to for the purpose of discerning the interpretation the parties have put upon doubtful provisions.” 11 O. Jur. 2d, page 410.

During the time of preliminary negotiations between the parties and when the contract was executed by the plaintiff and defendant, the defendant was — and still is — a tenant of a Mr. M. L. Searcey, the owner of the farm or farms in question. The defendant operated the farm or farms for Mr. Searcey, and each shared equally in the profits. The defendant and Mr. Searcey also owned the livestock in equal shares. Further, such operation evidently had been a successful one for a number of years. Hence, the defendant is the “tenant” referred to in Item V. The plaintiff is a tenant of a “tenant,” and the plaintiff’s share of any net farm income would be one half of the defendant’s one-half or one-fourth of any total net farm income. The parties apparently agree on this point.

The defendant paid the plaintiff $200.00 for his services during the months of April, May and June of 1955. Then on or about August 11. 1955, the defendant stopped payment on a check for $200.00, Plaintiff’s Exhibit B, in payment of plaintiff’s services for July, 1955. On or about September 22, 1955, by written agreement of the parties, Plaintiff’s Exhibit C, the plaintiff vacated the buildings on the farm or farms. By the terms of such agreement all of the rights and duties of the parties under the contract in question were preserved.

The major dispute between the parties revolves primarily around the interpretation of Item V, subsection (B) and secondarily around the interpretations of Item V, subsections (A), (C), (D), and (E) as such interpretations may have a bearing on the interpretation to be given to Item V, subsection (B).

“In construing any written instrument, the primary and paramount question is: what was the intent or purpose of the makers of such written instrument? The general rule is that contracts should be construed so as to give effect to the intention of the parties.” 11 O. Jur. 2d, page 379.

“In harmonizing apparently conflicting clauses of a contract they must be construed so as to give effect to the intention of the parties as gathered from the whole instrument, and where the object to be accomplished is declared in the instrument, the clause which contributes most essentially to that object will control.” 11 O. Jur. 2d, page 381.

“Contracts are to be construed according to the sense and meaning of the terms which the parties have used. Words in a written contract are to be interpreted according to their common, ordinary, and usual meaning.” 11 O. Jur. 2d, page 383.

In the first sentence of Item V, subsection (B), the plaintiff is “guaranteed a cash income of $200.00 a month 4-1-55 to 1-1-56.”

According to Webster’s New International Dictionary, Second Edition, 1950, a “guaranteed day or week” is “The guarantee of employment for a given period, and hence of wages for that period.”

“ ‘Guaranty’ or ‘guarantee’ do not always import guaranty contract, but may mean promise or agreement importing original obligation.” Yankelewitch v. Beach, 2 P. (2d) 498, 499, 115 Cal. App. 629.” Words & Phrases, Vol. 18, page 789.

“ ‘Guarantee’ is a word frequently employed, in business transactions which do not provide for securing the promise or debt of another, to express an original primary obligation. The promise, in which the word appears is to be construed in the light of the evidence and as a whole. Border Nat. Bank of Eagle Pass, Tex., v. American Nat. Bank of San Francisco, Cal., C. C. A. Tex., 282 F. 73, 78.” Words & Phrases, Vol. 18, page 790.

“Where, in several employment contracts, plaintiff was ‘guaranteed’ a specified compensation, the term ‘guaranty’ was used in the sense of assurance that his compensation earned should amount to a specified sum, and, plaintiff having sued for the amount of such assured compensation, there was no failure of proof because the contract pleaded was for ‘salary’ while that proved was for a ‘guaranty’; such proof operating at most as a mere variance of which defendant could not avail itself. Gale v. J. Kennard & Sons Carpet Co., 165 S. W. 842, 848, 182 Mo. App. 498.” Words & Phrases, Vol. 18, page 792.

There is* little doubt, that by the use of the word “guaranteed” in the first sentence of Item V. subsection (B), the defendant is primarily liable to pay the plaintiff $200.00 per month for 9 months, 4-1-55 to 1-1-56. But has the defendant made himself liable to the plaintiff for $1800.00 if it is found at the end of the year that plaintiff’s share of net farm income is less than that amount?

Further light upon the problem may be obtained by examining the word “income” as used in the instrument under study.

“The terms ‘profit’ and ‘income’ are often used interchangeably, and to a great extent have the same meaning. Selleck v. Hawley, 56 S. W. 2d 387, 331 Mo. 1038.” Words & Phrases, Vol. 20, page 505.

In Item V, subsection (A), the words “net farm income” are used twice and in Item V, subsection (B), they are used once Again, there can be little doubt even in the mind of a casual reader of the instrument, that the parties used these words to mean the profit from the operation of the farm or farms.

This view of the meaning of the words as used by the parties is given added weight by the appearance of the word “net” wherever the words “farm income” are described.

However, in Item V, subsection (B), the word “net” is not used, but the word “cash” is used to describe the words “$200.00 a month.”

Again, according to Webster’s New International Dictionary, Second Edition, 1950, the word “cash” is defined, “Money, especially ready money; strictly, coin or specie, but also, less strictly, bank notes, sight drafts, or demand deposits at a bank.”

“Although ‘profits’ and ‘income’ are sometimes used synonymously, strictly speaking, ‘income’ means that which comes in, or is received from any business or investment of capital, without reference to the outgoing expenditures; while ‘profits' generally mean the gain which is made upon any business or investment when both receipts and payments are taken into the account. First Trust Co. of St. Paul v Commonwealth Co., C. C. A. D., 98 F. 2d 27, 31.” Words & Phrases, Vol. 20. page 505.

“It is undobutedly true that ‘profits’ and ‘income’ are sometimes used as synonymous terms; but, strictly speaking, ‘income’ means that which comes in or is received from any business or investment of capital, without reference to the outgoing expenditures, while ‘profits’ generally mean the gain which is made upon any business or investment when both receipts and payments are taken into account. ‘Income’ when applied to the affairs of individuals, expresses the same idea that ‘revenue’ does when applied to the affairs of a state or nation; and no one would think of denying that our government has any revenue, because for a stated period the expenditures may exceed the amount of the receipts. People v. Niagara County Sup’rs, N. Y., 4 Hill, 20.” Words & Phrases, Vol. 20, page 506.

It is also noteworthy that the word “income” as used in Item V, subsection (E), is modified by the word “monthly” in the sentence which reads, “Any payments upon your share of live stock or Machinery may be deducted from Monthly income provided agreed upon mutually by both parties.” Certainly, it would be difficult to agree to deduct payments from a “monthly income,” if such income were subject to diminution or complete cancellation at the end of the year.

In the second sentence of Item V, subsection (B), it is provided “Such compensation shall be considered advance payment against his share of net farm income at end of year.”

There is substantial authority to the effect that if the defendant had paid the plaintiff $200.00 a month for the duration of the contract or a total of $1800.00 and an accounting at the end of the year revealed that plaintiff’s share of net farm income were less than that amount, the plaintiff would not have been liable for the difference to the defendant.

“Under a contract employing a general insurance agent providing for an allowance of general agency expenses by the company and of $3 for each $1,000 of business, against which the company would advance a specified sum each month, held that, though the advances were primarily payable out of earnings, if sufficient, they created no personal liability on the agent to make repayment to the extent that they exceeded earnings; ‘advances’ having a much broader signification than ‘advancements,’ requiring an examination of the context, with the aid of surrounding circumstances, to determine its exact meaning. Minnesota Mutual Life Ins. Co. v. Fraser, 222 P. 228, 230, 128 Wash. 171.” Words & Phrases, Vol. 2A, page 116.

“Contracts to advance expenses to traveling salesman do not in absence of express stipulation impose upon him personal obligation to return sums advanced in event he is not earning enough in commissions to offset them; advance not implying loan in its strictly etymological significance. Richmond Dry Goods Co. v. Wilson, 141 S. E. 876, 877, 105 W. Va. 221, 57 A. L. R. 31.” Words & Phrases, Vol. 2A, page 118.

“A contract of employment as a salesman at a certain commission, the employer to ‘advance’ the salesman a certain sum monthly, ‘said advanees to be charged and deducted from the commission computed at the end of .the period of employment,’ does not create a personal liability on the part of the salesman to repay advances in excess of commissions earned. Schlesinger v. Burland, 85 N. Y. S. 350, 351, 42 Misc. 206.” Words & Phrases, Vol. 2A, page 120.

In Barlett Lumber Co. v. Hammel, 20 Abs 667, in paragraph 1 of the syllabus and on page 680 of the opinion, it is stated:

“1. A promise' contained in a letter to continue the employment of a salesman during 1932, not on a formal contract basis for the full year ‘because we do not know what the next three or four months may bring forth,’ but at a guaranteed monthly salary with 40% of net profits exceeding the guaranteed salary and credit for 1931 unfilled orders, may be enforced, where the employment is discontinued after May 1st. for 40% of net profits exceeding the minimum salary up to that time including the 1931 unfilled orders, in the absence of a condition in the letter that the salesman be employed for a full year before becoming entitled to a portion of the net profits. See 9 O. Jur., Contract, pg 479, Paragraph 241.”
“It is the duty of the court to construe the writing. It seems to us that the defendant reserved the right to terminate the employment at any time, but that it was obligated to pay the guaranteed minimum during the continuance of the employment, and in the event forty per cent of the net profits on the orders received during the employment and on the unfilled orders of 1931 exceeded the amount of the guaranteed minimum paid the plaintiff, the defendant was obliged to pay that excess.”

In the spirit of fair play and to save the time of counsel in looking up the citation, in the letter referred to and which the court viewed as forming part of the agreement of the parties it was stated that the salesman was to have a monthly drawing account, which he would receive regardless of whether his portion of the profits equalled that amount or not. This monthly drawing account was a guaranteed minimum.

Counsel in their briefs attach great weight to the wording of the last sentence of subsection (B), Item V, and subsection (C), Item V. But in the scales of the court, these provisions weigh very little.

The last sentence of subsection (B), Item V, reads as follows:

“The amount advanced to Mr. West shall not be considered a part of the cost of hand labor when determining farm expenses.” Subsection (C), Item V, reads as follows: “Any extra hired labor shall be shared equally.”

By virtue of the first sentence of the second paragraph of Item V, the plaintiff was under obligation to furnish his own labor and management. In subsection (C), Item V, the parties agreed that the cost of any labor other than that of the plaintiff was to be shared equally as part of the cost of operation. This is an extremely clear statement. Then call it what one will “guaranteed — cash income of $200.00 a month,” “advance payment” or “amount advanced,” by the last sentence of subsection (B), Item V, the parties agreed that such “guaranteed — cash income of $200.00 a month,” “advance payment” or “amount advanced” was not to be taken into consideration in determining the cost of any extra labor in arriving at the cost of operation. In subsection (D), Item V, the parties agreed to share equally all operating expenses in another extremely clear statement.

Further, “A fundamental and frequently applied general rule of construction is that if there is doubt or ambiguity in the language of a contract the document is to be construed strictly against the pary who prepared it or selected its language and in favor of the party who took no part in its preparation or in the selection of its language. He who speaks should speak plainly or the other party may explain to his own advantage.” 11 O. Jur. 2d, page 391.

“Ambiguous language in a contract written on a printed form prepared by one of the parties is to be construed most favorably to the other party.” 11 O. Jur. 2d, pages 392 and 393. See also The Farmers National Bank v. The Delaware Insurance Company, 83 Oh St 309, O’Neill v. German, 154 Oh St 565 at page 571 of the Opinion.

The defendant freely admitted not only drawing the contract in his own handwriting but that it was copied, in part at least, from a form book.

At the oral hearing, the defendant testified that according to his understanding of Item V, subsection (B), the “guaranteed — cash income of $200.00 a month” was only an advancement on the plaintiff’s share of “net farm income.” That if there were no profits, then the defendant would owe him money.

At the oral hearing, the plaintiff testified that according to his understanding of Item V, subsection (B), the “guaranteed — cash income of $200.00 a month” meant a guaranteed minimum of $200.00 a month; that if there were no profits, he was to keep the $200.00 a month.

The defendant is a man of mature years, a successful businessman and farmer with 17 years of farming experience.

The plaintiff is a young man in his twenties, a former corporation wage-earner and with no business experience.

A minor dispute between the parties centers about the question of whether or not the natural increase of livestock shall be taken into account in determining any net farm income at the end of the year.

“In the absence of any agreement to the contrary, the offspring or increase of tame and domestic animals belongs to the owner of the dam or mother, and it appears that the rule is applicable to tamed or reclaimed wild animals. In this respect the common law follows the civil law and is founded on the maxim ‘partus sequitur ventrem,' which principle, according to Puffendorf, is based not alone on the fact that the male is frequently unknown, but also upon the circumstances that the dam, during the time of her pregnancy, is almost useless to the proprietor, and must be maintained with greater expense and care, wherefore he ought to be the gainer by her brood.” 2 O. Jur. 2d, page 398; 2 Am Jur., pages 703 and 704. See also Kellogg v. Lovely, 46 Mich. 131, 8 NW 699, 41 Am. Rep. 151.

It was admitted by the parties that at the time the contract was executed and the operation began the livestock was owned by the defendant and Mr. Searcey.

By the provisions of Item V, subsection (E), the plaintiff was given the opportunity of buying a share of the livestock Again, it was admitted that the plaintiff did not buy any share of the livestock.

Hence, the plaintiff not being an owner of any share of the livestock, he is not entitled to any of the natural increase. And, therefore, the natural increase of the livestock shall not be taken into consideration in determining any net farm income at the end of the year.

Finally, it is the sincere opinion of the court, that neither of the parties contemplated a loss in the farm operation. At the oral hearing the defendant spoke of profits made in the past and the plaintiff of estimated profits for the period covered by the farm contract. But losses do occur in business ventures no matter how roseate the prospects may appear. They should be expressly provided for. When they are not, then it becomes an extremely difficult task to determine how the parties intended to provide for them. This the court has tried to do. It has been quite a chore in the field of etymology. For, as it is so well put by Mr. Adams in his THE EDUCATION OF HENRY ADAMS, “No one means all he says, and yet very few say all they mean, for words are slippery and thought is viscous.”

In the light of the foregoing authorities and the application of a combined measure of logic and common sense, it is the opinion and judgment of the court and it is so ordered, adjudged and decreed:

That the defendant by the words used in the contract, especially those contained in Item V, subsection (B), has made himself liable to the plaintiff for 9 monthly payments of $200.00 each or a total of $1800.00, even if an accounting at the end of the year reveals that plaintiff’s share of the “net farm income” is less than that amount. Of course, if such accounting reveals that plaintiff’s share is more than $1800.00 then the $1800.00 shall be deductible from plaintiff’s share.

That the natural increase of the livestock shall not be taken into consideration in determining any net farm income at the end of the year.

The plaintiff shall pay one-half of the costs and the defendant shall pay one-half of the costs.

The counsel for the plaintiff may draw a journal entry accordingly.


source: Caselaw Access Project

author: By SHARP, J.

license: Public Domain

text:
    PARRISH et, Plaintiffs, v. McKEE, Admr., Defendant.
    Common Pleas Court, Columbiana County.
    No. 41939.
    Decided April 30, 1956.
    Hunston, Atkinson & Lower, By Ralph Atkinson, Salem, for plaintiffs.
    William E. Pfau, Jr., Youngstown, for defendant.
   OPINION

By SHARP, J.

This matter comes into this Court on defendant’s Demurrers to the original petition, to the supplemental petition, to the amended supplemental petition and to the second amended and supplemental petition.

FACTS:

Plaintiffs are the owner, the lessor and the insurer of a tractor and trailer which were damaged on May 28, 1953, in a collision with an automobile driven by one Robert L. Fullum.

On November 1, 1953, the said Robert L. Fullum died from causes having nothing to do with said accident.

On May 24, 1955, F. W. McKee was appointed Administrator of the Estate of said Robert L. Fullum.

Plaintiffs, fearing that the two year statute of limitations might be construed to run against their cause of action, did, on May 25, 1955, without waiting to present their claim to the Administrator who had been appointed the day before, file their petition for damages against said Administrator and cause summons to be issued and served upon said Administrator on May 26, 1955, two days within said two year period of limitation.

On September 20, 1955, four days within four months of Mr. McKee’s appointment as Administrator of the Estate of Robert L. Fullum, deceased, the plaintiffs presented their claim to said Administrator which was rejected by him on that day.

Two days later, September 22, 1955, plaintiffs filed a supplemental petition alleging the appointment of said Administrator and the presentation and rejection of their, claim. Summons was issued on said supplemental petition and served upon the Administrator on September 23, 1955.

On or about September 29, 1955, defendant’s counsel, not realizing that the supplemental petition had been filed, wrote to the Assignment Commissioner enclosing a demurrer to the original petition on the ground that “plaintiffs’ petition does not set forth facts which constitute a cause of action,” and a brief in support of said demurrer. This demurrer and brief was misplaced and was not filed until January 30, 1956. A copy, however, was sent to plaintiffs’ counsel.

On October 3, 1955, defendant filed a demurrer to the supplemental petition “for the reason that it was filed after the statute of limitations had run and should be stricken from the files for the reason that no legal petition was filed which it could supplement.”

On October 14, 1955, plaintiffs filed an amended and supplemental petition alleging the appointment of the Administrator, the presentation and rejection of the claim and concluding their amended supplemental petition as follows:—

“The allegations of plaintiffs’ original petition in this cause, are hereby incorporated in this pleading and are made a part hereof by reference in their entirety.
WHEREFORE, plaintiffs repeat the prayer of their petition.”

Defendant then re-filed his demurrer so that it would apply to the supplemental petition and amended supplemental petition.

On October 28, 1955, counsel appeared and said demurrer was argued and the Court overruled said demurrer giving in a written opinion his reasons for so doing. In this opinion the Court, on page 3, states that,—

“This Court is of the opinion that since Mr. Fullman died within the two year statute of limitations his death stopped the running of said statute and the plaintiffs had the right to present their claim to the Administrator at any time within four months after his appointment.”

The Court is now of the opinion that this was a misstatement of the law and since the Court’s decision of October 28th was based on this erroneous assumption the Court is re-considering his decision in regard to the defendant’s demurrers.

Following the Court’s decision of October 28, 1955, the plaintiffs, on November 14, 1955, filed a second amended and supplemental petition and caused summons to be issued and served upon the Administrator personally on November 15, 1955, five days before the two months limitation for suit on a rejected claim had expired.

On November 25th, 1955, the defendant filed his demurrer to the plaintiffs’ second amended and supplemental petition “for the reason that it was filed after the statute of limitations had run and should be stricken from the files, for the reason that no legal petition was filed which it could supplement, and further that the statute of limitations once having commenced to run was not suspended or stopped by the subsequent death of the defendant.”

The case was assigned for pre-trial April 16, 1956, at which time the defendant and counsel for all parties appeared. There was a conference and the Court stated to counsel that he was of the opinion that the statement in his opinion of October 28, 1955 that “this Court is of the opinion that since Mr. Fullman died within the two year statute of limitations his death stopped the running of said statute and the plaintiffs had the right to present their claim to the administrator at any time within four months after his appointment,” was in error; and since his decision had been based on that opinion the Court advised counsel that he would re-consider the defendant’s demurrers.

LAW:

When the collision of May 28, 1953 occurred, if the facts were as alleged by the plaintiffs, a cause of action arose in favor of the plaintiffs against Robert L. Fullum.

Sec. 2305.03 R. C. (§11218 GC) provides that:

“A civil action, unless a different limitation is prescribed by statute, can be commenced only within the period prescribed in §§2305.03 to 2305.22, inclusive, R. C. When interposed by proper plea by a party to an action mentioned in such sections, lapse of time shall be a bar thereto.”

Sec. 2305.10 R. C. (§11224-1 GC) provides that:

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

Sec. 2305.15 R. C. (§11228 GC) provides in part that:

“When a cause of action accrues against a person, if he is out of the state or has absconded, or conceals himself, the period of limitation for the commencement of the action as provided in §§2305.04 to 2305.14, inclusive of the Revised Code, * * * does not being to run until he comes into the state or while he is so absconded or concealed. After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought.”

It is to be noted that the above statute, designated “saving clause” does not include death as a cause of suspending the operation of the statute of limitation.

Sec. 2305.21 R. C. (§11235 GC) provides that:

“In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.”

Plaintiffs’ cause of action against Robert L. Fullum accrued on May 28, 1953, and the statute of limitations commenced to run against plaintiffs on that date. Robert L. Fullum died November 1, 1953, from causes having nothing to do with the accident.

Sec. 2113.06 R. C. (§10509-3 GC) provides as follows:—

“Administration of the estate of an intestate shall be granted to persons mentioned in this section, in the following order:
“(A) To the surviving spouse of the deceased, if resident of the state;
“ (B) ■ To one of the next of kin of the deceased, resident of the county;
“(C) To one of the next of kin of the deceased, resident of the state;
“If the persons entitled to administer the estate fail to take or renounce such administration voluntarily, they shall be cited by the probate court for that purpose, if resident within the county
“If there are no persons entitled to administration, or if they are for any reason unsuitable for the discharge of the trust, or if without sufficient cause they neglect to apply within a reasonable time for the administration of the estate, their right of priority shall be lost and the Court shall commit the administration to some suitable person who is a resident of the county. Such person may be a creditor of the estate.
“This section applies to the appointment of an administrator de bonis non.”

In the case of Granger’s Adm. v. Granger, 6 Ohio 35, paragraph 2 of the syllabus is as follows:

“Where the statute of limitations begins running in the lifetime of the debtor, it continues to run until the claim is barred, notwithstanding the death of the debtor, and no administration taken out on his estate. It is the party’s fault; he could take out letters.”

At Page 42 of the opinion Judge Wright says:

“Are the claims offered to be set off, barred by the statute of limitations? It is agreed by counsel, that E. Granger died in September, 1819. This suit was commenced in 1832, a period of 13 years after the cause of action accrued. The right to sue for such claims, is limited by our act to six years. The same limitation is supposed to apply to set offs as to actions. But it is urged, that the statute not having run to its completion in the lifetime of the intestate, was suspended by the death, and only commenced running again when administration was granted; since which, six years have not elapsed. We think it well settled, in ordinary cases, that where the statute of limitations once begins to run upon any subject, it continues to run to its completion, unless interrupted by some act of the party setting up the statute, which places the claim within some of the exceptions provided in the act. The death of the debtor is not such an act and does not interrupt the running of the statute; nor does a delay in taking out administration. If a creditor would save his debt from the statute bar, he should take out administration himself.”

I have checked the GRANGER case in SHEPARD’S and it has not been reversed and has been followed in many cases. It is still the law of Ohio, and must be considered to have been in the mind of the Legislature at all times when the Probate Code was revised since that opinion.

In the case Liggett Admrx. v Estate of Liggett, 3 O. N. P. n. s. 518, paragraph 1 of the syllabus is- as follows:

“1. The appointment of an executor or administrator under the laws of Ohio does not suspend the operation of the statute of limitations.”

This, of course, is not an opinion of the Supreme Court of Ohio but of the Probate Court of Union County. Nevertheless, since it deals directly with an issue in this case, it deserves careful consideration.

In the LIGGETT case Judge Brodrick at pages 520 and 521 of the opinion says,—

“In the state of New York it is expressly provided by statute that: ‘From the death of the decedent until the first judicial settlement of an account of his executor or administrator, the running of the statute of limitations, against a debt due from the decedent to the accounting party, or any other cause of action, in favor of the latter against the decedent is suspended.’ ”

The “saving clause” — §2305.15 R. C. — does not specify that the appointment of an administrator stops or suspends the running of the statute of limitations. There is no other statute that does so specify. No Ohio case has been cited to me, nor have I been able to find any that so holds.

Since a creditor or injured party has the right to bring about the administration of the estate of his debtor or injurer I can see no reason why he should not present his claim to such administrator within the time limited by the applicable statute of limitations.

Suffice it to say that there is ample reason and authority for the following quotation from 25 O. Jur. at pages 595 and 596:—

“EFFECT OF DEATH — It is a well settled rule in Ohio that when the statute of limitations begins to run against the intestate in his lifetime, it will run to its completion without interruption by the death. And it does not cease running during the period which may elapse between his death and the time in which a personal representative is constituted and duly qualified. Nor is it suspended by the appointment of an executor or administrator. Also, failure to appoint an administrator will not suspend its running.”

Apparently the plaintiffs did secure the appointment of an administrator for on May 24, 1955, F. W. McKee was appointed administrator of the estate of the said Robert L. Fullum, deceased. This was four days before the statute of limitations expired. There was nothing to have prevented the plaintiffs from presenting their claim to Mr. McKee immediately upon his appointment but instead of that they proceeded to file a petition against him and have him served with summons on May 26, 1955.

The summons was issued, dated and served on May 26, 1955, two days within the two year statute of limitations. Was this sufficient compliance to come within the statute? I think not.

Sec. 2117.30 R. C. (§10509-138 GC) provides in part as follows:—

“No suit shall be brought against an executor or administrator by a creditor of the decedent or by any other party interested in the estate, until after nine months from the time of the appointment of such executor or administrator or the expiration of the further time allowed by the probate court for the collection of the assets of the estate, except in the following cases:—
“(A) On claims rejected in whole or in part?

There are other exceptions but they do not apply to this case.

The plaintiffs suit was, therefore, specifically prohibited by a valid statute.

This Court is of the opinion that under the law the plaintiffs had two years from May 28, 1953, to bring their suit against Robert L. Fullum or to present their claim to his administrator. Either of these actions would have stopped the running of the statute and would have been in compliance therewith.

Had the plaintiffs presented their claim to the administrator within the two year period of limitation as provided by §3305.10 R. C., and also within four months of the appointment ■ of said administrator they would have done everything that it was possible for them to do. Had the administrator then allowed the claim the matter would have been settled.

Until they had presented the claim to the administrator the plaintiffs by virtue of §2117.30 R. C. had no right to bring a suit against the administrator. Once they had presented their claim to the administrator there was nothing further they could do until the administrator acted.

Counsel for plaintiffs has gone to considerable length in his briefs to show how much time an administrator could take in acting upon a claim presented to him. Surely it is against the policy of the law to permit a person to be penalized by the actions of another person over whom he has no control. For this reason it seems to the Court that when a creditor presents his claim to the administrator within the period of the statute of limitations such presentation of the claim should stop the running of the statute.

If the administrator rejects the claim he starts in motion a new statute of limitations, to-wit, §2117.12 R. C., which provides in part that,—

“When a claim against an estate has been rejected in whole or in part but not referred to referees, or when a claim has been allowed in whole or in part and thereafter rejected, the claimant must commence an action on the claim, or that part thereof rejected, within two months after such rejection, if the debt or that part thereof rejected is then due, or within two months after the same becomes due, or be forever barred from maintaining an action thereon.”

Plaintiffs’ counsel contends that by filing suit and serving summons upon the administrator the claim was presented to the administrator. Counsel has cited no authority to sustain his contention.

The purpose of presenting a claim to an executor or administrator is to allow the executor or administrator the opportunity to examine the claim and then to allow or reject it. Service of summons gives him no such opportunity.

The suit being filed and the petition on its face showing that the claim was not presented to the administrator said petition showed that the suit was brought in violation of §2117.30 R. C., and the defendant properly demurred thereto. Beach v. Mizner, 131 Oh St 481. Since the claim was not presented to the administrator until after the two year statute of limitations had rim the supplemental petitions are also demurrable.

For the reasons stated the Court is of the opinion that the docket entry of December 23, 1955, overruling defendant’s demurrers should be set aside and that said demurrers should be sustained.

A journal entry in accordance with this opinion should be furnished by defendant’s counsel.

The opinion in this case as published in the Ohio Bar of May 7, 1956, and as 72 Law Abstract 350, is hereby declared to be in error and should be held for naught.


author: By THE COURT: By THE COURT: By MILLER, PJ:

text:
    MOTORISTS MUTUAL INSURANCE COMPANY, Plaintiff-Appellee, v. AUTO OWNERS MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 173.
    Decided October 31, 1955.

      Cummins & Boiler, Sidney, for plaintiff-appellee.
    Wiles & Doucher, Columbus, for defendant-appellant.
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal for the reason that the notice of appeal was not filed within the time limited by law

After judgment in this case and motion for new trial had been filed, the motion was overruled and entry journalizing the order filed as of May 7, 1955. On June 6, 1955, defendant moved the court to strike the entry of May 7th, and to reconsider the motion for a new trial. The entry journalizing the action of the court on this motion recites that it came on to be heard on the motion to vacate and set aside the entry “and the court, upon due consideration thereof, finds said motion well taken and it is therefore sustained.”

Continuing, it was adjudged that the order of May 7, 1955 should be vacated and set aside. Motion for reconsideration granted; “and the motion for new trial being further heard, it is ordered that the motion for new trial be overruled as of the 6th day of June, 1955.”

The motion to dismiss the appeal is based upon the claim that the effective order overruling defendant’s motion for a new trial was that of May 7, 1955, and that the order of June 6, 1955 was made without authority of law. If defendant’s contention is correct, the motion should be sustained.

The action of the court in vacating its order overruling the motion for a new trial of May 7, 1955 was taken during term. It follows that the court had wide discretion in determining if good reason appeared for the action taken. Bellar v. Cleveland-Akron Country Homes Co., 6 Abs 499. A presumption of regularity and validity of the order of the court attends.

Appellant undertakes to bring the question of the abuse of discretion of the court upon the record by affidavit, purposed to disclose that the only reason for the action of the court was to permit a showing that the motion of defendant for new trial was overruled as of later date than May 7, 1955, so that its notice of appeal could be made effective.

The question of procedure sought to be raised may not be brought to our attention unless the facts therein appearing are authenticated by the trial judge or brought onto the record by stipulation of the parties or in some other manner expressly authorized by statute. Ivins v. Elbinger Shoe Mfg. Co., 14 Oh Ap 289; Gaines v. Coile, 35 Abs 406; Schultz v. The State, 32 Oh St 276; 3 O. Jur. (2) 287, 288; First Natl. Bank v. Decker, 16 Abs 705; Mounts v. Eclipse Motor Lines. Inc., et al., 88 Oh Ap 211.

Decided December 7, 19551

Decided February 15, 1956.

It may also be observed that no objection is noted by defendant to the action of the trial judge vacating the first order overruling the motion for a new trial. Sec. 2321.03 R. C.

The subject matters of the affidavits pertinent to the motion to dismiss the appeal are not properly before this Court for consideration. The motion will, therefore, be overruled.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.

No. 173.

OPINION

By THE COURT:

Submitted on application of appellee for reconsideration of our holding in our opinion of October 31, 1955 for the reason that we did not give consideration to the Bill of Exceptions as enlarged upon motion of plaintiff for diminution of the record.

We have now examined the Bill, which discloses fully the proceedings at the time that the trial judge indicated a purpose to vacate the original order overruling defendant’s motion for a new trial. We find that although plaintiff did not affirmatively consent to the action of the court, neither did it object nor except in any manner, at the time nor in the entry journalizing the action of the court. We called attention in our original opinion to this fact, and cited §2321.03 R. C. In this situation, the plaintiff is not in a position to urge the error upon which it relies.

The application will therefore be denied.

MILLER, PJ, HORNBECK, J, concur.

WISEMAN, J, not participating.

No. 173.

(CONN, J, of the Sixth District, sitting by designation in the Second District.)

OPINION

By MILLER, PJ:

The question presented by this appeal involves the ownership of a new 1952 Oldsmobile which was being purchased by one Thomas Boyd from the Dick Helman Auto Sales Company. The automobile herein was involved in a collision and the liability of the defendant insurance company depends upon the ownership of the car at the time of the accident, all of the seller’s automobiles being covered in a policy of insurance with the defendant. If the ownership still remained in the Helman Auto Sales Company, then it is conceded that the plaintiff should prevail in this action; on the other hand, if the title had passed to the purchaser, then the judgment should be in favor of the defendant.

In a separate finding of facts the court made the following findings which are pertinent to the issue presented:

“The Court further finds that Dick Helman Auto Sales, Inc., was an automobile dealer in Sidney, Ohio, and was the Oldsmobile distributor, and that on November 13, 1952, Thomas Boyd agreed to trade in his 1950 Oldsmobile on, and purchase, a new 1952 Oldsmobile from Dick Helman Auto Sales, Inc.; that on that day there was still a balance due from Boyd to The First National Exchange Bank, of Sidney, Ohio, secured by mortgage on the 1950 Oldsmobile, and that the 1952 Oldsmobile in Helman’s possession was also mortgaged to The First National Exchange Bank; that on the same day Thomas Boyd signed a note and chattel mortgage to The First National Exchange Bank, of Sidney, Ohio; that the amount of said note and mortgage was left blank; that on the same day the manufacturer’s certificate was assigned by Dick Helman Auto Sales, Inc., to Thomas Boyd, and Thomas Boyd signed an application for a certificate of title and gave it to Mr. Helman and, on November 14, 1952, Mr. Helman turned these documents over to The First National Exchange Bank in accordance with previous arrangements with the bank that they would make a loan to Mr. Boyd on the automobile to pay for it; that on the morning of November 15, 1952, all of the papers necessary to complete the loan and to complete the filing of the papers in the Clerk’s Office in the Court House, were in the possession of The First National Exchange Bank; that on November 15, 1952, before the First National Exchange Bank had advanced the money to Dick Helman Auto Sales, Inc., for payment of the 1952 Oldsmobile, Thomas Boyd was involved in an accident in which the 1952 Oldsmobile was damaged; at the time of the accident the automobile was in the sole possession of Thomas Boyd and was being operated on his own business, and that as a result of that accident, one Solomon Smith filed an action in the Court of Common Pleas, of Shelby County, Ohio, for damages as a result of injuries sustained therein; that a judgment was rendered against Thomas Boyd for One Thousand Dollars ($1,000.00) and costs.

The Court further finds that on November 15, 1952, Mr. C. M. Fogt, Vice President of the First National Exchange Bank, after learning of the accident, advised Mr. Boyd that the bank would go no further in the matter and would not advance the money for the purchase of the 1952 Oldsmobile; that the papers in the possession of the bank on November 15, 1952, were eventually returned by it to the parties and were never filed.”

In order to determine the ownership of this automobile consideration must be given to §§4505.03, .04, .05 and .06 R. C., which set forth the procedure which must be followed in order to acquire a good title to a motor vehicle.

Sec. 4505.03 R. C., requires that the seller of a motor vehicle deliver to the purchaser a certificate of title with such assignment thereon as is necessary to show title in the purchaser. Sec. 4505.04 R. C., provides that no person acquiring a motor vehicle from the owner thereof shall acquire any right, title, claim or interest to the same until he has had issued to him a certificate of title to said motor vehicle.

In the case of Workman, et al., v. The Republic Mutual Ins. Co., 144 Oh St 37, the same facts were presented as in the case at bar with two exceptions, (1) in the cited case the note and chattel mortgage had been filled out completely, while here the note and mortgage were signed in blank and therefore not completed; (2) in the cited case the application for a certificate of transfer of title had been signed by the purchaser and delivered to the seller for filing according to law, while in the case at bar the application for a transfer of the manufacturer’s certificate had been completed but the same was delivered to the seller upon the condition that the note and mortgage be completed by the finance company after which the seller was to file the application for a transfer. The third paragraph of the syllabus of the Workman case, supra, provides:

“Where the insured sold an automobile and delivered possession thereof to the purchaser who signed an instalment note for the purchase price, executed a chattel mortgage securing the same, signed an application for transfer of the certificate of title which the vendor had delivered to the purchaser, and redelivered same to the vendor for filing in an adjoining county within the three days permitted by law, actual ownership with complete possession and control passed to the purchaser. (Automobile Finance Co. v. Munday, 137 Oh St 504, approved and followed.) ”

At the bottom of page 48 of the aforesaid case Judge Matthias concludes the opinion with the following statement:

“Without deciding whether the legal title had passed, actual ownership with complete possession and control had certainly passed to Mrs. Rhodes, and if legal title had not been transferred as agreed, her right to a certificate of title was enforceable. Automobile Finance Co. v. Munday, 137 Oh St 504, 30 N. E. (2d), 1002.”

A later pronouncement by our Supreme Court is found in the case of Garlick v. McFarland, 159 Oh St 539, in which the entire sales transaction had been completed with the exception of the assignment and delivery of the certificate of title. These two cases were decided differently, but there is a material distinction between the facts. In the Workman case the right to a title had passed to the purchaser for the reason that the first procedural step in acquiring the legal title after completion of the sale had been taken, to wit, the application for a certificate of transfer had been filed with the seller who was required under §4505.06 R. C., to obtain a certificate of title upon application being made by the purchaser. This section provides:

“In the case of the sale of a motor vehicle by a dealer to a general purchaser or user, the certificate of title shall be obtained in the name of the purchaser by the dealer upon application signed by the purchaser. In all other cases such certificates shall be obtained by the purchaser. In all cases of transfers of motor vehicles, the application for certificate of title shall be filed within three days after the delivery of such motor vehicle.”

See also Automobile Finance Co. v. Munday, 137 Oh St 504. In the McFarland case the certificate of title had not been transferred to the purchaser; hence there was no attempt made to comply with the provisions of §4505.06 R. C. Therefore, the court held the purchaser had acquired no right to a title and the ownership had not changed. The third paragraph of the syllabus provides:

“Where an automobile is sold by the owner, with full payment of the agreed price and delivery of possession to the purchaser thereof but the assignment and delivery of the certificate of title are deferred, a change in the ownership of the automobile is not consummated in accordance with the provisions of the Ohio Certificate of Title Act and coverage of such automobile by an insurance policy issued to the owner thereof continues in force until the consummation of the sale by assignment and delivery of the certificate of title.”

In the case at bar since the note and mortgage had not been completed it was not possible to complete the application for a transfer of title under §4505.06 R. C. Sec. 4505.13 R, C., requires that all mortgages and liens upon automobiles be noted upon the certigcate of- title. Until this information was available a proper certificate of title could not have been issued. Therefore we conclude that no application for a title was pending at the time of the collision which would entitle the purchaser to a certificate of title. No right of title having passed to the purchaser it must follow that the ownership of the automobile remained in the seller.

We find no error in the record and the judgment will be affirmed.

HORNBECK and CONN, JJ, concur.


author: By THE COURT:

text:
    THURMAN, Plaintiff-Appellant, v. CITY RAILWAY CO., Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2338.
    Decided November 15, 1955.
    Myers, Mills, Boesch & Cline, Dayton, By James T. Cline, of Counsel, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, By Rowan A. Greer, Jr., of Counsel, for defendant-appellee.
    (COLLIER, J, of the Fourth District, sitting by designation in the Second District.)
   OPINION

By THE COURT:

This is a law appeal from a judgment of the common pleas court rendered in favor of the defendant upon instructions from the court at the close of the plaintiff’s case.

The action was instituted in the Court of Common Pleas for Montgomery County, seeking to recover damages for injuries alleged to have been sustained by the plaintiff when she fell while alighting from one of the defendant’s trolley busses.

The question presented is whether there was any evidence in a substantial form from which a reasonable mind could draw a logical conclusion that the defendant was negligent in any respect, which could have been a proximate cause of the plaintiff’s injuries.

We have examined the entire bill of exceptions and find no evidence therein from which such an inference could be drawn. Negligence is never presumed, and the mere fact that an injury has been sustained does not give rise to a presumption or inference of negligence. Root v. The O’Brien Milling Co., 70 Abs 269, 128 N. E. (2d) 148. In order that any negligence might be established in this case it is necessary to base an inference upon an inference, which may not be done. Sobolovitz v. Lubric Oil Co., 107 Oh St 206; Hurt v. Rogers Transportation & Ford Motor Co., 66 Abs 106.

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

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


author: Per CURIAM. By PHILLIPS, J.

text:
    MILLS, Plaintiff-Appellee, v. DUTENHAVER, Admr., Defendant-Appellant.
    Ohio Appeals, Seventh District, Carroll County.
    No. 325.
    Decided June 12, 1954.
    Don R. Sharp, Carrollton, for plaintiff-appellee.
    Tom Richards, Carrollton, for defendant-appellant.
   OPINION

Per CURIAM.

On reviewing the record in this case the only serious error we find is where the court permitted Marie Mills, the plaintiff, to testify in violation of §11495 GC, to facts which occurred before the death of David M. Dutenhaver, deceased.

The trial court realized that some of the questions were “border line” inquiries (R. 24). While the questions were propounded for the purpose of determining the issue of “family relationship” (R. 26, 27) yet the statute provides she “shall not testify.”

The question “after your mother’s death, Marie, who took care of the household duties and other work around the home” was permitted, and the answer “I did” is error and should not have been allowed.

On pages 29 and 30 of the record other questions were asked of Marie Mills and answers permitted, all of which were rendered inadmissible by this section of the code.

However the plaintiff made out a valid claim against the estate by the testimony of outside witnesses, including Dr. and Mrs. Bennett, Elizabeth Rutledge, Harvey Rutledge, Milton Scott, Mr. and Mrs. Haugh, Mrs. Leroy James, and Mrs. Anna Cattrell, of whom counsel for the defendant, Mr. Richards, in his closing argument said:—

“They had a group of fine witnesses, people that I have known for many years, Harvey Rutledge from out on the Ridge, Mr. and Mrs. Haugh, here in town, Milton Scott, Dr. Dowell, we don’t have any quarrel who has performed these services.
“Our argument with them is, that is not with them, Mr. Sharp, our argument is that is a family and not as Mr. Sharp gives it to you in argument, but law as given to you by the Court. It is our contention under the law that this is a family.” (R. 88.)

In Mr. Richards’ closing argument (R. 92 and 93) he said:—

“The court will charge you according to the law and that question will be for you to decide as to whether these people are members of the family and whether a family relationship existed between them.”

The jury by special interrogatory after hearing a charge by the court-on the question of family relationship said such relationship did not exist. We do not think the defendant now can be heard to complain about the determination of that aspect of the case.

Sec. 2309.59 R. C. (§11384 GC), provides that a reviewing court must disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party.

Substantial justice requires that this plaintiff recover for services which she rendered, and that a modification of the judgment under review will do complete justice to the parties involved.

We feel, following the case of Tully v. Mahoning Express Co., Inc., 161 Oh St 457, that the court committed prejudicial error in permitting the plaintiff to testify as to facts before the death of the decedent, and that the judgment for that reason is excessive and must be reversed unless the plaintiff is willing to accept a remittitur of all of the judgment in excess of $2500.00 by reason of the introduction of incompetent testimony. Upon plaintiff’s acceptance of this remittitur the judgment is affirmed; otherwise the judgment is reversed and cause remanded to the Common Pleas Court for further proceedings.

GRIFFITH, PJ, NICHOLS, J, concur.

DISSENTING OPINION

By PHILLIPS, J.

Phillips, J., dissents from the judgment of affirmance “on condition that the plaintiff accept a remittitur of all in excess of $2500.00,” but concurs in the judgment that “otherwise the judgment should be reversed for error in the admission of incompetent testimony,” and believes that THIS case “should be remanded for a retrial by reason of the difficulty involved in attempting to use the process of a remittitur to cure the serious error in the admission of incompetent” testimony, which testimony violated the provisions of §11495 GC (§2317.03 R. C.). See separate opinion of the Chief Justice in Tully v. Mahoning Express Co., Inc., 161 Oh St 457 at 462.


text:
    CRABILL, Extrx., Plaintiffs-Appellees, v. MONTGOMERY WARD & CO., INC., Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 507.
    Decided May 22, 1954.

      Cole & Cole, Springfield, for plaintiffs-appellees.
    George B. Smith, Springfield, David L. Dickson, Chicago, Illinois, for defendant-appellant.
   OPINION

By THE COURT:

This is an appeal on questions of law and fact from a judgment rendered'in favor of the plaintiffs by the Common Pleas Court of Clark County, Ohio.

The parties agreed to submit the matter on the transcript of the record taken below. In their amended petition the plaintiffs, for their first cause of action, allege that on January 15th, 1941 plaintiffs, as landlords, leased to the defendant, as tenant, for a minimum period of 22 years and 3 months, certain property situated in the City of Springfield, Ohio, at an annual rental of six per cent of the purchase price paid for the property by the plaintiffs, to-wit: forty thousand dollars. Plaintiffs allege that by the terms of the lease the defendant agreed to rebuild and that the plaintiffs agreed to pay to the defendant the cost of rebuilding, or the sum of thirty-five thousand dollars, whichever would be the lesser sum; that the plaintiffs had the right to make payment direct to the defendant, or by furnishing to the defendant a binding commitment of a bank that said fund would be available for such purpose. Plaintiffs allege that they deposited securities of the value of $35,000 with the First National Bank and Trust Company of Springfield, Ohio, on or about February 20, 1941. and the said bank made the commitment, which was accepted by the defendant Plaintiffs allege that they made repeated demands on the defendant to rebuild, which the defendant refused to do, and that the plaintiffs gave notice to the defendant that they had cancelled the leasehold agreement.

Plaintiffs in their second cause of action allege that the minimum rental to be paid was fixed at 6% of the original purchase price paid for the property by the plaintiffs, and, also 6% of the aihount paid by the plaintiffs to the defendant for rebuilding, the additional rental to be paid on the first day of the month following the receipt of payment by the defendant of the money for such rebuilding. It is further alleged that plaintiffs made available, on February 20, 1941. said fund for rebuilding but that the defendant refused and continues to refuse to pay to the plaintiffs such additional rentals; that such rentals are due plaintiffs as damages.

Plaintiffs pray for an order of forfeiture of the lease, and immediate possession of the premises, and for damages in the amount of such overdue rent. After the trial the court permitted the plaintiffs to amend their petition by praying for an alternative remedy; that defendant be crdered to release the bank from its commitment to the defendant dated February 20, 1941, and to award damages to the plaintiffs for defendant’s wrongful detention of plaintiffs monies and securities held in escrow by the bank.

The defendant, in its answer, admits entering into the lease but denies that it was required to rebuild. Defendant admits the commitment by the bank, but denies it received any money from the Dank for the purpose of rebuilding. Defendant admits that it has not elected to rebuild to date; and denies that plaintiffs notified the defendant of the cancellation of the lease. The defendant further denies that plaintiffs are entitled to possession of the premises, or that there is anything due plaintiffs as additional rental, or as damages.

The evidence shows that immediately after the lease was executed and the commitment given by the bank stating that it held $35 000.00 for payment to the defendant for rebuilding cost, negotiations opened between the parties relative to plans, costs and prospects for rebuilding. These negotiations continued into 1942. Due to the onset of World War II material for construction was difficult to obtain. It is apparent that the difficulty in obtaining material caused the defendant to delay making a decision on the question of rebuilding. From 1942 to 1946 negotiations between the parties with respect to new construction were • suspended. In a letter dated March 17, 1942 the defendant stated to the plaintiffs that the matter of doing construction work was deferred and “nothing will be done for several months, and possibly not until the end of the War.” Thereafter it appears that the parties, by common consent, dropped the matter during the war years. In the early part of 1946 negotiations were re-opened. On June 19, 1946, the defendant wrote the plaintiffs as follows: “Due to present Government restrictions all work pertaining to the enlargement of stores has been stopped.” In October, 1948, plaintiffs, for the first time, retained counsel and thereafter negotiations were carried on largely by counsel for the plaintiffs.

At this juncture plaintiffs began to press for a modification of the terms of the lease, releasing the plaintiffs of the obligation to contribute toward the cost of rebuilding which suggestion was rejected by the defendant. Other modifications of the lease were suggested by the defendant, which plaintiffs rejected. The record shows that Mr. Crabill held a conversation in Chicago on July 16, 1948 with Mr. Brown, who was employed by the defendant in its real estate department, in which Brown stated that the defendant would not build on the lot. Mr. Crabill testified on direct examination, “and I told him that I see no reason why the money shouldn’t be returned to me. And he said he didn’t see why it shouldn’t be, either.” On cross-examination Crabill testified that Brown said the defendant would not build at any time, and gave the reason, and that he (Crabill) believed Brown was telling the truth. Again Crabill held a conversation in Chicago on March 3, 1949 in which Mr. de Young, agent for the defendant, stated to Crabill that the defendant would not build and that the funds should be returned.

During this entire period of time the securities or money deposited with the bank by the plaintiffs were changed from time to time by the plaintiffs with the approval of the bank, but without the .knowledge or consent of the defendant. The plaintiffs received the return by way of interest or dividends on the securities deposited with the bank. The deposit at all times was subject to the control of the plaintiffs, and the record reveals that the plaintiffs exercised such control from time to time. It does not appear that plaintiffs at any time made a demand on the bank for the release of the deposit, although the defendant stated several times to the plaintiffs that they could withdraw the deposit. Plaintiffs contend that they were obligated to maintain the deposit with the bank and that by reason of the delay the plaintiffs suffered the loss measured by the difference between the income received from the securities on deposit and 6% on $35,000.00, as additional rental. The lease gave the plaintiffs the option to either (a) deposit the $35,000.00 with the defendant, or (b) furnish the defendant a binding commitment of a bank, trust company, or insurance company. If the plaintiffs had exercised their option by depositing $35,000.00 with the defendant, under the terms of the lease, the defendant would have been required to pay the plaintiffs six per cent on said deposit from the date the deposit was made. But plaintiffs did not choose to deposit the $35,000.00 with the defendant, but decided on a bank commitment. But the issue for determination is: The plaintiffs, having elected to furnish a bank commitment, and the bank having required the plaintiffs to make the deposit, are the plaintiffs entitled to damages by reason of the length of time said deposit remained in escrow?

The principal issues in this case as made by the pleadings are determined by the provisions of the lease with respect to the obligation of the defendant to rebuild. The lease does not state the time within which the defendant shall rebuild. In fact, the lease does not require the defendant to rebuild. The defendant, under the terms of the lease, had the option to rebuild, or not rebuild. The plaintiffs contend that since the lease does not, by its terms, state the time within which the defendant is required to rebuild, the law would require defendant to do so within a reasonable time after the execution of the lease. This contention assumes that the defendant was required to rebuild, which is not the case here.

The evidence shows that the defendant entered into possession, under the lease, and has paid $2,400.00 per year rental, as required by the lease, being 6% on $40,000.00, which was the purchase price paid for the property by the plaintiffs. The evidence does not show a breach of the terms of the lease by the defendant. Consequently, plaintiffs are not entitled to a cancellation of the lease and possession as claimed in its first cause of action; neither are they entitled to recovery as damages the difference between the income received by the plaintiffs from the securities on deposit and 6% on $35,000.00, or any other amount, as damages. It is clear that now the plaintiffs are entitled to withdraw the deposit from the bank, since the defendant has stated, not only in this action but prior to the commencement of this action, that it did not intend to rebuild. Whether the plaintiffs were entiled to withdraw the deposit at any earlier time, it is most certainly true that they were entitled to withdraw the deposit on the date the defendant stated it would not rebuild. To maintain the deposit with the bank thereafter was a voluntary act of the plaintiffs, for which the defendant cannot be made to respond in damages.

After giving due consideration to the terms of the lease with respect to the defendant’s right to rebuild, it is questionable whether the defendant was required to exercise its option to rebuild or not to rebuild within a reasonable length of time. Section 8a of the lease in part provides:

The Tenant at its own expense may make from time to time any alterations, additions and improvements in and to the premises which it may deem necessary or suitable for the conduct of business therein, sjs s{: * J»

Section 26 of the lease in part provides;

“It is understood that the Tenant may, pursuant to but without limitation of the privileges granted to it by Section 8a hereof, alter, improve, remodel and decorate the demised premises as it desires to make them more suitable for its use. * * *
“The Landlord agrees to pay to the Tenant the cost of the work performed pursuant to this section, or Thirty-five Thousand Dollars ($35,000.00), whichever shall be the lesser sum.”

The character of the option given the defendant under the provisions of the lease just quoted, indicates an intention to give the defendant the right to do the things therein mentioned at any time the defendant found it feasible and convenient.

The fact that plaintiffs were required by the bank to make the deposit of $35,000.00 in order to furnish a bank commitment, soon after the execution of the lease, does not deprive the defendant of its right to exercise its option at any time it chooses to do so. This provision may be considered harsh but the plaintiffs are bound by their contract. It has been held that a court will not relieve a party competent to contract from the harsh provisions of an agreement in the absence of fraud or bad faith, Ullmann v. May, 147 Oh St 468, 477; 72 N. E. (2d) 63. See also Vol. 19, Am. Jur., page 148, Section 147; Vol. 30, C. J. S., page 410, Section 62.

After giving due consideration to all of the evidence, the negotiations between the parties, the difficulty in securing material for construction during the War years, and for a time thereafter, if the defendant was required to exercise its option to rebuild within a reasonable length of time, we cannot say that the defendant failed to do so. This notice was given as early as July 16, 1948. We find no basis in law or in equity for allowing damages to plaintiffs for maintaining the deposit with the bank, after the defendant gave notice of its intention not to build. When the defendant notified the plaintiffs of its intention not to build, the obligation of the plaintiffs to furnish a commitment terminated. In keeping the commitment alive after that time, the plaintiffs acted voluntarily and the defendant cannot be held to respond in damages.

We make like rulings, on the admission and exclusion of the evidence, as was done by the court below.

Judgment for the defendant.

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


author: By CONN, J.

text:
    SCOTT et, Plaintiffs-Appellees, v. WILSON, Defendant-Appellant, and SCOTT et, Defendants-Appellees.
    Ohio Appeals, Second District, Fayette County.
    No. 279.
    Decided November 8, 1955.

      Carrington T. Marshall, Columbus, for plaintiffs-appellees.
    Brownfield & Malone, Columbus, for defendant-appellant.
    (CONN, J, of the Sixth District sitting by assignment in the Second District.)
   OPINION

By CONN, J.

This is an appeal by defendant on questions of law from a judgment rendered by the common pleas court in favor of plaintiffs-appellees and against defendant-appellant.

. This action was brought to quiet title to a parcel of real estate consisting of 47.033 acres in Union Township, Fayette County, adjoining the city limits of Washington Court House, and described in plaintiff’s petition by metes and bounds. Issues were raised on the petition, the answer and cross-petition of defendants and the reply of plaintiffs.

Plaintiffs allege that they are now and for a long time have been in possession of said real estate; that they have title in fee simple to said iand as tenants in common; that defendant claims an undivided one-third interest therein, which claim of defendant is without any right whatever.

Plaintiffs pray that their title and possession of said property be quieted and that defendant be forever barred from having any right, title or interest therein.

The claims of possession and fee simple title set forth in the petition of plaintiffs are specially denied by defendant.

In the second and third defenses, as designated, defendant alleges that at the time plaintiffs began their action there was another action pending wherein the identical issue in this case must and will be determined.

Defendant further alleges that on or about July 9, 1917, Estella M. Scott, et al. filed her petition in the common pleas court, cause No. 14696, and that in said action it was adjudged by the court that Estella M. Scott (now deceased) held a life estate in the premises described in plaintiff’s petition and that Flossie M. Scott, Esther Scott and Eárl E. Scott held the remainder estate in said property in fee simple. It is further alleged in substance that Flossie M. Scott married one Clarence E. Wohlheter (defendants’ predecessor in title); that Flossie Scott Wohlheter died testate on November 20, 1941, and by the terms of her will she devised to her husband an undivided one-third interest in fee simple in said real estate; that thereafter Clarence E. Wohlheter conveyed by deed an undivided one-third interest in fee simple to the defendant herein.

That said judgment in cause No. 14696 was entered on the merits of the case; that the interests of the plaintiffs herein and defendant’s predecessor in title in the real estate described in the petition in said cause, including the premises described in plaintiffs’ petition here, constituted the sole issue in said action and that said judgment is res judicata and binding on the parties hereto.

Defendant in his cross-petition alleges he is seized in fee simple of an undivided one-third of said real estate and seeks an accounting for rents and profits.

The affirmative allegations in defendants’ answer are denied by plaintiffs in their reply. The further averments therein are argumentative and evidentiary in character and do not appear to raise any affirmative issues.

The evidence offered at the trial is almost exclusively documentary and free from conflict.

The evidence discloses that one John R. McLean (unmarried) conveyed by deed to his daughter, Estella Scott, also known as Estella M. Scott, a life estate in a large tract of land in Union Township, Fayette County, Ohio, including the premises described in plaintiffs’ petition, and the remainder to the heirs of her body, their heirs and assigns. The language creating the life estate and the limitation over is found in both the premises of the deed and in the habendum clause.

January 2, 1917, Estella M. Scott, Flossie M. Scott, Esther Scott and Earl E. Scott, a minor by Estella M. Scott, his next friend, as plaintiffs, brought an action to quiet title to said lands in the common pleas court, cause No. 14696, against Mary E. McLean, D. R. McLean as executor of the estate of John B. McLean, Benjamin R. Barbee, as executor of the estate of John R. McLean, deceased, Barzillai O. McLean and Zenas B. McLean, as defendants.

A transcript of the case was introduced and received in evidence upon the trial in the instant case. The finding and judgment are set up in the third defense of defendants’ answer herein.

The record is lengthy and includes the pleadings, amendments thereto, motions and special demurrer addressed to plaintiffs’ petition, as amended, and the finding and judgment of the court.

In view of plaintiffs’ contention, we deem it necessary to set forth in some detail the issues raised on the pleadings and evidence. The allegations in plaintiffs’ petition, material here, are as follows: Plaintiffs allege that on April 3, 1906, John B. McLean, unmarried, conveyed by duly executed deed a life estate in certain lands in Union Township, Fayette County, including the premises described in plaintiffs’ petition in the instant case, to Estella M. Scott for life and to the heirs of her body an estate in remainder therein in fee simple; that subsequently to the execution of said deed, John R. McLean intermarried with one Mary F. McLean; that John R. McLean died May 26, 1916, leaving a last will and testament dated July 24, 1914, in which he devised the real estate in question to Estella M. Scott for life and the remainder to her children in fee simple; that said will was duly admitted to pro-late and recorded in the probate court of Franklin County, Ohio; and that defendant Benjamin R. Barbee was appointed executor of said estate.

That thereafter said John R. McLean sustained a serious head injury, and became incapacitated and was adjudged an imbecile; that a guardian was appointed and thereafter, on December 29, 1915, said ward executed a paper writing which was admitted to probate and recorded in the probate court of Fayette County, as the last will and testament of said John R. McLean; that Item IV of said will purports to give and devise to Mary F. McLean for her natural life 47 acres of land, known as the Washington Court House Fair Grounds, and after her death to the three grandchildren of deceased, Flossie Scott, Esther Seott and Earl Scott, and to their heirs and assigns; that Item V of said .pretended will purports to give 230 acres of land to his daughter, Estella M. Scott, during her natural life, and at her death to her three children absolutely and in fee simple.

It is further alleged that plaintiff Estella M. Scott is the owner of a life estate in said land and in possession thereof, and that plaintiffs Flossie M. Scott, Esther Scott and Earl E. Scott are owners of the estate in remainder; that each of said executors claim the right to administer said estate; that defendants, Mary R. McLean, et al., claim some interest in said lands as beneficiaries under said respective wills; and that all of the claims of said defendants are adverse to the rights of plaintiffs and constitute a cloud upon their title to said real estate.

It further appears that service of summons was made on each of said defendants; that leave was granted plaintiffs to file an amended petition making The Fayette County Fair Co., and Charles Sargent parties defendant, and setting up certain claims for rentals, which are not important h.ere.

Other proceedings were had in making up the issues in the case, containing eight specifications to strike and to separately state and number, which motion was overruled.

Thereupon, defendants Mary F. McLean and D. R. McLean, as executor, demurred specially to plaintiffs’ petition and amendment thereto, alleging among other things that the petition of plaintiffs does not state facts constituting a cause of action. The trial court found the demurrer not well taken and overruled same.

Thereupon “said cause was submitted to the court upon the pleadings and the evidence, and representations and admissions of fact on behalf of said parties.” • The court found in favor of plaintiffs “and that they are entitled to the relief asked for in said petition.” Judgment was entered quieting the title of plaintiff Estella M. Scott in and to said lands, for the term of her natural life, and in said plaintiffs, Flossie M. Scott, Esther Scott and Earl E. Scott in fee simple in remainder, against the claims of said defendants. The Fayette County Fair Co. and Charles Sargent were enjoined from asserting any interest in said real estate.

In the instant case, further documentary evidence was received as follows: a certified copy of the will of Flossie Scott Wohlheter. dated August 13, 1930, wherein it appears that said testatrix devised all her real estate, including her share in the John B. McLean farm to Clarence E. Wohlheter; also the certificate of transfer of said real estate to said devisee; also a certified copy of the quit claim deed of Clarence E. Wohlheter to the defendant Herbert Wilson, for the real estate described in plaintiffs’ petition; also the assignment to said grantee of certain rents and claims; certified copies of said wills of John B. McLean were introduced in evidence. Some further documentary evidence was received in evidence, but we do not regard it as being material in the determination of the issues presented on the record.

Alleged errors of the trial court are assigned and chiefly relied on by defendant in oral argument and brief are grounded on the claim that its judgment amounts to a collateral attack on the judgment in the earlier action cause No. 14696, and that said judgment is res judicata: also that the court erred in finding that defendant has no interest in said property and in dismissing defendant’s cross-petition.

We have given careful consideration to the issues raised on this appeal, and particularly to the claim that the trial court’s judgment is a collateral attack on the judgment in cause No. 14696.

The evidence discloses, and it is not disputed, that the court had jurisdiction of the subject matter of the action and of the parties. The evidence discloses no irregularity in the proceedings and none is claimed.

For purposes of the demurrer, it admitted all facts well pleaded. No application was made to plead further, and thereupon the cause -was submitted and the court adjudicated the issues in favor of plaintiffs and entered judgment as prayed for. As already pointed out, the court determined that Estella M. Scott had an estate for life in said lands and that plaintiffs, Flossie M. Scott, Esther Scott and Earl E. Scott, had remainder estates in fee simple.

No appeal was taken from this judgment, nor does it appear that said judgment had ever been subject to direct attack. Under these circumstances, defendant claims that the rule inhibiting collateral attack against judgments regularly entered is applicable, and that on the whole record no successful attack on the validity of the judgment can be made in this action.

Plaintiffs contend that in view of the character of the proceedings in the earlier case, cause No. 14696, the trial court was without authority to ñnd and adjudge that plaintiffs Flossie M. Scott, Esther Scott and Earl E. Scott had fee simple estates in remainder; and that the doctrine of res judicata does not apply. The predicate for this claim, as presented by the distinguished counsel for plaintiffs, deserves careful examination.

Three answers are suggested to defendant’s contention and it is claimed that any one is conclusive.

First, Flossie, Esther and Earl were neither necessary nor proper parties. We will first consider the merits of this claim of plaintiffs.

The Code provides that an action must be prosecuted in the name of the real party in interest (§2307.05 R. C.), and that all persons having an interest in the subject matter of the action may be joined as plañir ' tiffs (§2307.18 R. C.).

This latter section in its terms is not mandatory, as it relates to persons who are not united in interest but who have any legal or equitable interest in the subject of the action and in obtaining the relief demanded.

See Clark, Exec. et al, v. The McLain Fire Brick Co., 130 Oh St 110; 30 O. Jur. 750, Sec. 36.

We call attention to §5303.01 R. C., which authorizes a person out of possession, who claims an interest in remainder or reversion to maintain an action to determine his interest therein. The joinder of the life tenant and her children as parties plaintiff accords with this section of the Code.

It is in point to note that an issue of defect of parties may be raised by demurrer. As pointed out above, the demurrer of defendants was overruled. The court by its judgment determines issues. Issues are raised on the pleadings and the evidence. In the instant case, the trial court not only had before it the deed of John R. McLean, but also his subsequent will (the validity of which was not challenged), which devised to the three children of the life tenant estates in remainder in fee simple. In our opinion, the children of the life tenant were necessary parties to the action in cause No. 14696, in view of their interest in the subject matter, and the contention of plaintiffs should not be sustained.

Assuming that the contention of plaintiffs were sound and that said children of the life tenant, 'under the limitation in the deed, had an expectancy, a mere possibility only, such conclusion would not be decisive as the trial court had before it the valid will of John R. McLean, wherein said testator had devised to said three children estates in remainder in fee simple.

In view of our conclusion that the children of the life tenant were .proper and necessary parties in cause No. 14696, and that the pleadings and the evidence put in issue the right, title and interest of said children respectively, each having an equal share in and to the estate of their grandfather, John R. McLean, it follows that, the second and third questions, to wit: that no issue was joined between Flossie and her sister and brother and that §10512-4 GC (now §2131.04 R. C.) did not become effective until after the death of Flossie, are each unrelated to said judgment in the early case and are untenable.

It is also contended by plaintiffs that the quiet title suit brought by Clarence E. Wohlheter against the defendant, Estella M. Scott, June 23, 1934, cause No. 18145, wherein the court found that said defendant had a life estate in said property and quieted her title thereto against plaintiff is decisive of the case at bar. The remainder interests were not involved in this action.

Plaintiffs also claim that any possible claim of Wohlheter and of defendant in the instant case was barred by the statute of limitations. If our conclusion be correct that the judgment in cause No. 14696 is not subject to collateral attack and is res judicata, said claims of plaintiffs are clearly untenable.

It is our conclusion that the judgment of the trial court in cause No. 14696 adjudged the right, title and interest of plaintiffs respectively in that action; that the remainder interest in fee simple of each of the three children was vested, and that said judgment is res judicata.

In view -of our conclusion, no consideration need be given to other assignments of error.

Without extending this discussion further, and in view of the whole record, the judgment of the trial court should be reversed and this cause remanded to the trial court for further proceedings according to law.

Reversed and remanded.

MILLER, PJ, HORNBECK, J, concur.


author: By CROSSLAND, J:—

text:
    TROUT, Plaintiff, v. TROUT et, Defendants.
    Common Pleas Court, Muskingum County.
    No. 39899.
    Decided February 16, 1956.

      Victor F. Schmidt, Columbus, for plaintiff.
    Jay B. Zellar, Donald P. Jones, Zanesville, for defendants.
   OPINION

By CROSSLAND, J:—

The only determination legally authorized in a habeas corpus proceeding directly between parents concerns illegal restraint of liberty, which in turn depends upon evidence of a superior right to the children on the part of the other spouse, this Court not having jurisdiction over the matter of legal custody in any such case except as incidental to a divorce or alimony action. (In Re Corey, 145 Oh St 413; §3105.21 R. C.)

Analogous to considerations concerning custody, when husband and wife are living separate and apart from each other they stand upon an equality regarding possession of their children, as far as parenthood is concerned, the Court taking into account from evidence in a hearing that which would be for the children’s best interest, in deciding between the parents. (Sec. 3109.03-4 R. C.)

In so far as this Court may be authorized to act at all in this particular proceeding, as well as generally in all other cases properly before it, this Court is not disposed to separate children of the same parents from each other.

“When the circumstances of a case will permit such a course, the courts will decline to allow the children to be separated from one another, particularly when they are of tender age or of about the same ages.” (Nelson on “Divorce,” Vol. 2, page 194, Sec. 15.18.)

The fact that the father, defendant Edgar Dwight Trout, presently separately possesses his two small sons, and has since July 9, 1955, while creating no presumption favorable thereto, does require from the mother, plaintiff Phyllis M. Trout, evidence of a superior right on her part to them, determinable on the basis of consideration of said sons’ own best interest.

Each parent is a fit and suitable person to rear their two children, equally sincere in their respective religious beliefs, genuinely actuated by honest conviction in behalf of the proper rearing of their two young sons, concerning which the Court is not called upon to 'make any finding or determination whatever, excepting only to recognize the fact that, the wife’s persistent interest and activity as a Jehovah Witness directly occasioned her husband’s separation from her and thereby accounts for the absence from her of these two young sons.

The initiation by one parent of differences between them, creating disagreement occasioning separation, regardless of the nature or quality of the unilateral action taken, imposes a corresponding responsibility, at the very outset, of first seeking to ascertain that any such unilateral action does not provoke or arouse disharmony in the home or threaten to disrupt the marriage, despite one’s own personal opinion, individual persuasion or self-justification.

While there are disadvantages and handicaps to the rearing of small children by either parent alone, which should always be the primary concern of the parents themselves, the Court finds and considers, upon the facts and circumstances of this particular case, that there is greater assured necessary future care for the two children in their present home during times of their father’s employment than is assuredly available for them in a home with their mother during her work absences.

The Court also considers that a father’s discipline and direction, as well as masculine companionship for his young sons over the years ahead, is exceedingly important to their assured well-being, which should also be the recognized concern of the boys’ mother, which she herself can neither supply nor assure.

The Court concludes that the best interest of each of these two small boys is to be and remain in the home of their father, subject to reasonable visitation by and with their mother, and plaintiff is denied a writ of habeas corpus, at her costs, the Court invoking, under the facts of this case, the following rule of law:

“Since the father is the natural guardian, is entitled to the custody and services, and is responsible for the tutelage, discipline and support of the child, the domicil of the father is in legal contemplation the domicil of his minor children.” (17 Am. Jur. 625, Sec. 57.)

Exceptions to plaintiff.


author: By MILLER, PJ.

text:
    MAZZEO, d. b. a. FISH BOWL CAFE, etc., Plaintiff-Appellant, v. BOARD OF LIQUOR CONTROL, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5288.
    Decided October 6, 1955.
    Feighan & Feighan, John T. Feighan, Jr., of Counsel, Cleveland, for plaintiff-appellant.
    Hon. C. William O’Neill, Atty. Geni., Kiehner Johnson, Asst. Atty. Geni., Columbus, for defendant-appellee.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court affirming an order of the Board of Liquor Control suspending the appellant’s Class C-2, D-l and D-2 liquor permits. The appellant was charged with the sale of beer and wine on the permit premises in violation of §4301.22 R. C., and of the Regulations of the Board of Liquor Control.

The sale is not denied: hence, credence must be given to the testimony of the two investigators for the Department, both of whom testified that they purchased and consumed beer on the premises on Sunday, March 21, 1954, and one of whom also purchased a bottle of wine. The bottle was offered in evidence as the Defendant’s Exhibit C, which bore a label identified as Department’s Exhibit A, containing the following information:

“ROMA. Alcohol 20% by vol. California Sherry. Bottled at our winery in California. Made and bottled by Roma Wine Company, Fresno, California.”

At the hearing before the Board a report containing a chemical analysis of the liquors involved was offered and admitted in evidence as “Department’s Exhibit D” upon the ground that it was made by the Department’s chief chemist who was an alleged officer of the state. This was submitted under the authority of §2317.42 R. C. The Common Pleas Court sustained the appellant’s objection to this exhibit for the reason that it had not been properly identified and the person submitting the report was not a state officer. No appeal has been prosecuted from this ruling; hence, the order must stand. The trial court held, however, that there was still sufficient evidence before the Board to sustain its finding.

The question now presented is whether an alcoholic analysis of the liquids offered in evidence is required in order to sustain the finding of the Board. We find from the evidence that the bottle of alleged wine was properly admitted in evidence at the hearing. It was also properly identified as “wine” by the inspectors whose testimony as to the contents of the bottle was not controverted by any evidence offered by the appellant. It was sold as “wine” and this fact is not denied by the bartender who made the sale. Had there been a denial of the contents by competent testimony a different situation would exist. The label on the bottle is clearly a representation by the seller of its contents and until it is repudiated it must be considered as competent evidence of the contents. Wine has a precise legal definition under §4301.01 R. C., to wit:

“(B) As used in §§4301.01 to 4301.74, inclusive, R. C.:
“(4) ‘Wine’ includes all intoxicating liquor containing not less than seven per cent of alcohol by weight and not more than twenty-one Der cent of alcohol by volume, which is made by the fermentation of the juices of sound, ripe, and undried grapes and fruits and includes pure wine, fruit wine, and compound wine as defined in §§4311.04. 4311.07 and 4311.18 R. C., and not exceeding the alcoholic content provided in this division for wine.”

Under the same section, paragraph (A) (1) intoxicating liquor is defined to include:

“all liquids and compounds containing more than three and two-tenths per cent of alcohol by weight which are fit to use for beverage purposes, * *

It therefore clearly appears that wine is an intoxicating beverage, the sale of which is controlled by §4301.22 (D) R. C.

“Sec. 4301.22 R. C. Sales of beer and intoxicating liquor under all classes of permits and from state liquor stores are subject to the following restrictions, in addition to those imposed by the rules, regulations, or orders of the department of liquor control:

* * * * £

“(D) No sales of intoxicating liquor shall be made after two-thirty a. m. on Sunday or on election day between the hours of six a. m. and seven-thirty p. m. * * *”

In the ease of Hare v. State, 21 Abs 453, the court found that whiskey was an intoxicating beverage, without requiring an analysis of its alcoholic content, in a criminal case where the defendant was charged with selling intoxicating liquor without a permit. The court stated at page 455:

“That the word ‘whiskey’ means an intoxicating liquor is so notorious as to require judicial notice of the fact; that is to say proof of such fact is unnecessary. Bouvier’s Law Dictionary, Rawle’s Third Revision, 1739. Lewis’ Sutherland Statutory Construction, Second Edition, Sec. 466. 280 S. W. 703, 705.
It is also common knowledge requiring judicial notice that whiskey always contains much more alcohol than 3.2 per centum by weight. 278 Federal Reporter, 415, 418, and that it is fit for use for beverage purposes, and when used the use is generally as a beverage. 280 S. W. 703, 705.”

The case of Wereb v. The State of Ohio, 22 Oh Ap 512, was also a criminal case in which the defendant was charged with the unlawful possession of intoxicating liquor. Here the contents of the bottle were identified as being whiskey but there was no chemical analysis of the same. The court held in the syllabus, paragraph 2:

“Evidence that liquid in bottle was whiskey, based on its odor, held sufficient to warrant conviction for unlawful possession of whiskey.”

In 20 Am. Jur. 116, Section 103, the author states that the court will take judicial notice of the intoxicating character of well known beverages which have a fixed reputation for being intoxicating. The rule is summed up on page 117 in the following words:

“Thus, to sustain a conviction for selling intoxicating liquor, the state must, if the beverage is not well known, introduce evidence as to its intoxicating effect.”

It is our conclusion that in this state wine has such a reputation by way of common knowledge of being an intoxicating beverage that the Court will take judicial notice of the same in addition to the legal definition defining it to be such a beverage.

We find no error in the record and the judgment will be affirmed.

HORNBECK and FESS, JJ, concur.