text:
    MIAMI CONSERVANCY DISTRICT v SILVEY, et
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 983.
    Decided July 12, 1930
    U. S. Martin, Dayton, for Appellant.
    McMahon, Corwin, Landis & Markham, Dayton, for Mary O. Siivey, Appellee.
   ALLREAD, J.

The first question presented on appeal is that the judgment of the Court of Common Pleas, Division of Domestic Relations, is void for the reason that it involved jurisdiction other than that of the Domestic Relations.' This is a question upon which there has been considerable conflict in the cases. The Court of Common Pleas is one of the principal county courts as recognized by the constitution of the State of Ohio. In a county like Montgomery County where there is a large amount of business it has been usual to make a division of the duties consequently the chancery cases may be assigned to one Judge and the jury ,and other cases may be assigned to other Judges. These assignments, however, are not by virtue of the statute but by virtue of the inherent power of the Judges. In creating tv? addition?] judgeship of the Court of Common Pleas there was assigned in the statute to the judgeship the Division of Domestic Relations. This was intended by the legislature to cover a large number of cases which involved directly or indirectly the domestic relations. At the end of the statute there is a provision that in ease of the sickness or incapacity of the Judge of the Court of Common Pleas, Division of Domestic Relations one of the other Judges of the Court of Common Pleas should be assigned to that division. While we do not, in this opinion, decide that any kind of a case may be transferred to the Division of Domestic Relations the ease involved here is a case which grows out of that relation. The suit before Judge Baggott was clearly one in which the Court of Domestic Reflations could take jurisdiction. There may be some doubt upon the face of the petition but taking the case as a whole we are clearly of opinion that it fell within the jurisdiction of a Judge having the Domestic Relations Division to administer. No objection was made to the jurisdiction of Judge Baggott. He presided over the Division of Domestic Relations. We are clear, therefore, that Judge Baggott had jurisdiction over this action and was authorized to render the judgment of $2,000.00. We have no evidence before us that would tend to constitute a defense to the action of $2,000.00 tried before Judge Baggott. We are, therefore, to assume that the amount of that judgment is correct.

The next question relates to the averments of the answer in this case to the effect that the judgment before Judge Baggott was upon a cause of action trifling in its nature and that the judgment is irregular and void. Taking into consideration the nature of the Court to which the plaintiff appealed, we cannot escape the conclusion that these averments are not intended to raise the question of the validity of the judgment in a collateral proceedings but are those used in reference to a judgment to be opened up in the Court in which the case was tried. There are no statements of facts in the record in that case which would justify the conclusion that the judgment was void.

It is urged that the judgment was rendered by Judge Baggott after the death of the son, Thomas L. Siivey, and that at that stage the case involved the same cause of action as was decided in the case of Pretzinger v. Pretzinger, 45 Oh St, 452; nevertheless, it was an action growing out of the Domestic Relations, to-wit, the liability of the husband for the support of a deceased son of the wife. This was, therefore a case before the Division of Domestic Relations.

Another question is raised as to the failure to have before the Court the two necessary parties, to-wit, Catherine Siivey and Velma Thompson. Catherine Siivey, we find, was made a party in this case to the petition and was brought in by affidavit and publication. She is, therefore, constructively before the Court. Velma Thompson came in as an assignee of the Miami Conservancy District and is, therefore, in Court constructively as to s,aid judgment. She took the judgment of the Miami Conservancy District during the progress of the case and is, therefore, bound by the action of this Court unless she comes in and makes defense. She is in no sense a stranger to the record of the case. It is well settled that a party taking an assignment of an interest in a lawsuit is bound to come in and defend his interest. The litigants in any particular case are not bound to make new parties every time a judgment is assigned. That would be a burden not contemplated and not necessary in a case.

Upon full consideration we have reached the conclusion that the judgment was rendered by the Court having jurisdiction of the subject matter and that the allegations of the answer in this case do not tend to impeach the validity of the judgment and are not an equitable defense thereto.

We are, therefore, of opinion that this Court should uphold the validity of judgment of the Court of Common Pleas, Division of Domestic Relations.

Kunkle, PJ, and Hornbeck, J, concur.


source: Caselaw Access Project

author: KUNKLE, PJ.

license: Public Domain

text:
    STATE ex GUSMAN v EMELY

    Ohio Appeals, 2nd Dist, Montgomery Co
    No 986.
    Decided July 5, 1930
    Alfred Rothenburg, for State ex.
    Mills & Fowler, Dayton, for Emely.
   KUNKLE, PJ.

We assume this suit is brought under 12307 GC. which provides that:

“A person claiming to be entitled to a public office unlawfully held and ex-cersied by another, by himself, or an attorney at law, upon giving security for costs may bring an action therefore.”

One of the conditions precedent for the bringing of an action of this nature is that plaintiff must give security for costs.

The petition does not show affirmatively that this provision has been complied with.

The petition, on its face, shows that the relator received the number of votes next to the number of votes cast in favor of defendant.

This averment in the petition shows that defendant received a larger number of votes than the relator and the defendant is exercising the power and duties pertaining to said office. The reasonable inference to bo drawn from this averment is that the defendant has qualified and is acting as such officer.

It nowhere appears in the petition that the relator was duly elected to the office, but on the contrary it affirmatively appears that the defendant received more votes than did the relator.

The rule is well settled in Ohio that before a person is entitled to maintain an action in quo warranto under 13307 GC to recover a public office he must show not only that he is entitled to the office, but also that it is unlawfully held and exercised by the defendant. 92 Oh St 428. The statement in the petition that the defendant , is not eligible to hold the said office is a’ mere legal conclusion.

We cannot escape the conclusion but that the petition fails to state such facts as show that the relator is entitled to the office or that the defendant is unlawfully holding the same. Upon a consideration of the averments of the petition we are of opinion that the demurrer is well taken and should be sustained.

Allread apd Hornbeck, JJ, concur.


author: ALLREAD, J.

text:
    MINOR & SMITH v STATE
    Ohio Appeals, 2nd Dist, Clark Co
    No 280.
    Decided July 9, 1930
    Sully Jaymes, Springfield, for Minor & Smith.
    O. L. McKinney, Prosecuting Attorney, Springfield, for State.
   ALLREAD, J.

In this Court the following errors are claimed,

(1) Asjto the refusal of the trial court to grant the defendants a separate trial,
(2) As to the refusal of the trial court to compel the separation of the state’s witnesses,
(3) Misconduct of the prosecuting attorney in his questions to witnesses and in his argument to the jury.
(4) Error of the trial court in refusing to permit all the evidence offered by plaintiff to establish entrapment.
(5) In refusing to allow the defendant’s attorney to cross examine Officers Shuman and Weinbrecht as to their connection with the alleged entrapment.
.(6) In refusing to permit counsel to examine Calabreese as to his connections with Smith in respect to previous liquor transactions.
(7) As to the overruling of the motion for a directed verdict.
(8) and (9) As to the special charges given before argument especially those in relation to the alleged entrapment.
(10) The General Charge to the jury, and ____
(11) Other objections.

There are additional grounds set forth in other assignments of error. In respect to the first charge of error we are clear that the statutes as they existed at the time of this offense gave the trial court the discretion in respect to separate trials. We find that under the evidence here the discretion of the trial court was not abused in requiring all the defendants to be tried together. In respect to the order of the trial court for a separation of witnesses, the trial court allowed the state to have present during the trial one witness for conferences. We think this was entirely within the range of the trial court’s discretion and is per•missible. It is said in argument that even if Weinbrecht had been allowed by the trial court to remain in court for the purpose of advising with the prosecuting attorney he should have been first examined. There is some merit in this claim but we think the question is not raised in the record. After the trial court had reserved to the prosecuting attorney the right to retain Weinbrecht there was no request made for an immediaté examination. We think there was no error in the action of the prosecuting attorney as suggested by counsel for the plaintiff in error. The main question in the case is in respect to the evidence as to entrapment. We have carefully read the record ,as to this evidence. The law upon this subject was laid down by this court in the case of Deigle vs. The State, 14 C. C. (NS) 289, and has been in all substantial respects, followed by Judge Hough in his chrage to the jury in the Buckley ease. We think the trial court in the evidence as to entrapment followed this rule. In the special charges the trial court gave two charges which covered the subject of entrapment. There were other specific charges given but we think that none of those changed the rule as stated. The evidence of the state failed to prove the case of entrapment and we think the evidence of the defendants in the court below, by the most favorable construction, may have raised the right to have the evidence as to an entrapment to be submitted to the jury but much of the defendant’s testimoñy relied upon for that subject did not support this defense. The evidence of the two plaintiffs in error is that they undertook to accept the delivery of this liquor at the residence on South Lowry Avenue without any notice or knowledge of the action of the police officers in respect thereto. The most that we think can be claimed of the police officers in 'respect to entrapment is that having received information of this proposed delivery of intoxicating liquors that they secreted themselves in a favorable place and arrested the parties after the delivery was complete. At least the jury may have found this to be the fact on the subject of entrapment. We have considered all the assignments of error. .

We have carefully examined the other points made and reached the conclusion that there was no prejudicial error and that the judgment of the court of common pleas should be affirmed.

Kunkle, PJ, and Hornbeck, J, concur.


author: VICKERY, PJ.

text:
    CLEVELAND RAILWAY CO v TRONSTEIN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10780.
    Decided May 5, 1930
    Sauire. Sanders & Dempsey,' Cleveland, for Ry. Co.
    C. E. Gilden and R. H. Kaplan, Cleveland, for Tronstein.
   VICKERY, PJ.

Now it is claimed that she was in a position to drive off of this track at any time and that she stayed there and in so doing she was guilty of such contributory negligence as would bar her, as ,a matter of law, from recovering.

Of course, she did not get on to the railroad tracks negligently for she had the right to go across the street in order to turn to go into her yard; and if she could have driven off the car tracks without any danger to herself and she let the car stand there in the face of oncoming danger when she could have avoided .a coilison by driving off, the proposition would undoubtedly be true and she would not be able to recover because of her contributory negligence.

Now, the evidence in this case shows that a street car coming as far up as Lee Road could have seen her. Apparently the motorman did see her for he r,ang his gong, but perhaps he did so because the taxicab was attempting to pass by the street car, but why he should ring his gong for that would not be clear. It would be clear, however, if he rung his gong for this woman who was sitting in her automobile on the tracks ahead of him. Of course, the motorman could not tell just why she stood there, as he probably did not see the taxicab that was coming alongside of him.

Now, the motorman apparently did not put on his brakes or sand until he got within forty feet of the plaintiff’s automobile, and that distance w,as too short in which to stop the street car and so it crashed into the automobile.

While in a measure the doctrine of last clear chance was not involved because, as already stated, she was not guilty of any negligence in going on to that track; if, however, she could have gotten off and did not, she would be guilty of negligence, and if the motorman on the street car could see her far enough away to have gotten his ear under control, anticipating that she was stalled or something had happened to her car, he could have easily stopped his car before he came in contact with this automobile; and so, upon an analysis,' the doctrine of last clear chance was involved in this case.

Of course, the excuse of the motorman was and undoubtedly is, that he saw this woman sitting in her automobile, that the motor was running and that all she had to do was to put on the gas to get out of his way. That was undoubtedly the theory which induced the motorman to go forward and not stop his car or put on the sand farther back.

But, under all the circumstances, we could not say that this woman was guilty of contributory negligence as a matter of law that would prevent her from having her case go to the jury. It seems to us that a jury question was fairly involved. Her explanations seems to explain the reason why she was there and, of course, she had the right to be there. It was ,a public street and she had the right to use it; and if she was there on the track long enough so that the Railroad Company, by the exercise of ordinary care under the circumstances could have prevented this injury by slackening the speed of the street car, it was its duty so to do, and if it did not do it, then it would be responsible for whatever injuries occurred, notwithstanding that she may have been originally guilty of negligence in going into a place of danger. In other words, it seems to us that the whole question was a jury question, and it having been submitted to the jury properly and the jury having found for the plaintiff in not a large sum, — we think the evidence shows that she was injured at least to the extent that the jury found her to have been injured and, inasmuch as the damage to the car. as already stated, was one hundred dollars and her personal injury damage was but four hundred dollars, — we do not feel that the jury was so f,ar wrong that we would be justified in disturbing the verdict.

There being no error in this record which would warrant us in reversing this case, the judgment will be affirmed.

Sullivan and Levine, JJ, concur.


author: LEMERT, PJ.

text:
    BOHUNEK v SMITH et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10527.
    Decided April 21, 1930
    E. T. Austin, Cleveland, for Bohunek.
    Garfield, Cross, MacGregor, Daoust & Baldwin and E. S. Lindemann, all of Cleveland, for Smith, et.
    LEMERT, PJ and SHERICK, J (5th Dist) and ROBERTS, J (7th Dist) sitting.
   LEMERT, PJ.

The defendants claim that the work of Feb. 2, 1928, had no relation to the original contract which had long before expired. The work which w,as done on Feb. 2, 1928, was a small repair job for which no charge was made, on plaintiff’s theory that he could connect it with the contractual obligation of guarantee for one year after installation.

If this bill for repair work had been charged to defendants, they would no doubt have been required to pay for it, but it is not the basis for the lien claimed herein which is entirely based on the work done raider the contract some fifteen months before. The plaintiff, therefore, is obliged to establish that this work was done pursuant to the original contract and as a part of the obligation imposed upon him under that contract. Bearing in mind that plaintiff’s contractual obligation went no further than to install the heating system and guarantee against leaks or other imperfections for one year after installation, it therefore follows that the defendants had no right to require the plaintiff to do anything in February, 1928, without charge, as a part of the original contract for which he was entitled to make no extra charge. It is equally true that plaintiff could not, by merely failing to make a charge or by asserting that in his opinion he was required to continue for an indefinite period of years making any repairs that might arise, the contract containing no provision to that effect, set up this work done in Feb. 1928, as the last item of the work which was completed under the contract in 1926.

Sec. 8310 GC providing for a mechanic’s lien, says that a contractor may have a lien for labor or material by virtue of a contract, express or implied, with the owner, etc., and that a sub-contractor may have such a lien on carrying forward, performing or completing any such contract. Thus it becomes incumbent upon plaintiff to show that the labor which he did in Feb., 1928, was done ,as a part of the contract made in 1925 and performed in 1926. Otherwise it was done on a separate arrangement or agreement and might have been the subject of a separate lien for that work alone. In fact the record before us shows that the original contract was made by Smith with Andrews who in turn contracted with Bohunek and there was 'no privity of contract between Smith and Bohunek. When, however, Bohunek was called upon to do the repair job in Feb., 1928, the arrangement was made directly with him and not with Andrews as would have been the fact under the original contract, and there was no suggestion by either party that the work was done under the original contract or was an obligation imposed by it.

As to the time for filing a lien, and whether or not the same is extended by doing a repair job after substantial performance of the contract, has been passed upon by the Supreme Court of Ohio and by the Court of Appeals of the 8th District in 50 Oh St 320.

Again, Higgins Mfg. Co. vs. Hinig, Case 10290, reported in 8 Abs 168, is in direct line with the case at bar, wherein it holds among other things, that where a sub-contractor who has accepted the notes of the general contractor in payment of his lien, and has .allowed time for filing of lien to elapse, cannot, by doing repair work revive his right to a lien.

The case of Koblitz & Son vs Arnold, 22 C. C. (NS) 410 is a case directly in point.

It has been decided in this state and other jurisdictions that even if the work done was by way of correction of a defective item performed under the contract, it could and would not extend the time for a lien. 126 performed after the installation, are done under separate contracts. 43 Neb. 559.

The rule seems to be well established that where a contract to furnish material is to be regarded as completed, a subsequent gratuitous furnishment of material in the nature of a substitution or replacement to remedy a defect in material originally delivered, will not operate to extend the time within which to claim a mechanic’s lien, the presumption being that repair items performed after installation, are done under separate contracts. 43 Neb. 559.

We therefore find, in the instant case, that the question presented is a simple and not a difficult one. In short, Smith, the defendant, contracted with Andrews on a general contract, including a heating system; Andrews sub-contracts with Bohunek who finishes the job, taking the notes of Andrews who has himself been paid in full by Smith; fourteen months after the job is completed, Smith calls, not on Andrews with whom his contract was made, but directly on Bohunek to do a small repair job; fifteen months after completion of the original contract, Bohunek files his lien. We do not believe that the mechanic’s lien law of Ohio was ever intended to permit a lien under such circumstances. If the owner, under such circumstances may be required to pay a sub-contractor .after he has already paid the principal contractor and has paid twice, surely the sub-contractor must show a liberal compliance with the law and must file his lien within sixty days and that w,as not done in the instant case.

We therefore find and ■ hold that the plaintiff was and is not entitled to maintain a lien against the property of the defendants, and a decree may be drawn for defendants. Exceptions may be noted.

Sherick and Roberts, JJ, concur.


text:
    KAUFFMAN v ZANGERLE, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10768.
    Decided June 2, 1930
    Herman Spielberg, Cleveland, for Kauffman.
    R. T. Miller and D. R. Hertz, both of Cleveland, for Zangerle, et.
   VICKERY, PJ.

Upon the strength of the plea of guilty in the U. S. Court and a fine and imprisonment sentence imposed upon him, the Auditor’s attention having been called to it he put the Dow-Aiken Law tax on the duplicate against the property of Bessie Kauffman; and the only question that this court needs .consider is whether she had any knowledge or notice of this man selling liquor on her premises. One can read this record from end to end and one will find nothing but denials both from the son and from the mother.

After this man had pleaded guilty, which surprised the wife, because he had told her he was not guilty, she declined to have anything further to do with him. She is not now living with him, and was not living with him. He never supported her. There is no evidence in this record that a drop of liquor was sold by him with her knowledge upon this property. The contrary is true, that if any liquor was sold there,— which is not clear from this record, except what might be inferred from the pie,a in the United States Court, in which court the property was mentioned, he having been charged with various charges and having-pleaded guilty generally to the same, — it was sold without her knowledge or consent.

The son now lives in Indiana. He came back and testified that neither he nor his mother had ,any information or knowledge in regard to what this man did until after the arrest, and then they learned that it was not on the .property but in the truck that he drove in there. Now to say that under such circumstances the owner of the property should be charged for the wrong deeds of another of which she had no knowledge, the accused having been fined and sentenced to imprisonment, — I s,ay, to impose upon her property a $1200 tax does not seem to be right or fair, nor is it warranted by the law.

If they were living in that house and she and her husband were living together and the husband was trafficking in liquor, under such conditions that a person should know, the situation might be different. But here she did not live there; the husband did not live with her; he simply drove a truck in there ,and parked it there, and in that truck the officers discovered this liquor and that the husband had sold a half pint somewhere. It does not say where. Now to hold a person’s property under such circumstances would be the hazarding of everybody’s property because somebody, unconnected, — a workman for example upon a place, — might have whisky in his possession and he might sell it, and to hold the owner of the property responsible for that without any knowledge of his doing so, would be carrying the law very far.

We have held in this court that, notwithstanding a person may be fined and imprisoned criminally for the offense that if the owner of the property, even though the accused be the owner, or if the owner of the property has knowledge of the accused’s doings, the Dow-Aiken law tax may still be assessed against the property. But under circumstances such as this case, to allow this tax to stand would be doing a great injustice and without any foundation in law, for there is no evidence to show that this woman or her son had any knowledge whatever of what this rather worthless husband was doing, remembering always that he did not live in that house. The house was occupied by tenants. He did not have charge of the garage or shop but that was occupied and used by the son. He drove a truck in there and to hold the wife who had separated herself from him responsible, we think would be exceedingly inequitable and unfair.

We think, therefore, that the plaintiff is entitled to the relief she seeks and the decree of the court will be that the Auditor and Treasurer be perpetually enjoined from collecting this tax, and the decree may be for the plaintiff. O. S. J.

Sullivan and Levine, JJ, concur.


author: PARR, J.

text:
    EWERS et v COOK
    Ohio Appeals, 7th Dist, Belmont Co
    Decided Dec 13, 1929
    Attorneys not given.
   PARR, J.

Section 7764-1 GC became effective August 26th, 1921, and it provides as follows:-

“Boards of Education shall provide work in high school branches, as mentioned in 7648, GC, at some school within four miles of the residence of each such child, for those children of compulsory school age who have finished the ordinary grade school curriculum, except those who live within four miles of a high school, and those for whom transportation to a high school has been provided.”

This Section was repealed, 111 Ohio Laws, at page 123, and that repeal became effective on July 11, 1925.

Prior to that time, under the above Section, it was held in the case of State v. Beamer et al., 109 Oh St 133, at page 141, that it was the mandatory duty of Boards of Education to furnish transportation, or board and room.

To the same effect, was 7749-2 GC limiting it, perhaps, to board and room for a child residing within four miles of a high school.

This Section 7749-2 was enacted in 109 Ohio Laws, at page 290, and in State v. Beamer, et al., 109 Oh St, at page 133, and Sommers v. Board of Education. 112 Oh St, 177, these sections of the 'General Code were held to be mandatory, also in Board of Education v. Cox, 117 Oh St 406.

Section 7749-1 GC reads .as follows:-

“Wheri' Board may provide transportation to high school,—
The Board of Education of any district, except as provided in Sec. 7749, may provide transportation to a high school within or without the school district; but in no case shall such board of education be required to provide high school transportation except. as follows : -
If the transportation of a child to a high school by a district of a county school district is deemed and declared by the county board of education advisable, and practicable, the board of ' education of the district in which the child resides shall furnish such transportation.”

This Section was originally enacted, as shown in Vol. 19, page 290, and amended 111 of Ohio Laws, at page 123, and it became effective July 11, 1925.

' In the instant case, Cook applied to the County Board of Education for transportation for his children to the Bethesda High School. It was declined, and he also applied to the Board of Education of Goshen Township, where he resides, for transportation for his children.

It was declined, and then, the County Board of Education did not declare that it was “.advisable and practicable” for the Goshen Township Board of Education to transport these children to the Bethesda High School, and as provided in the above Section.

It will be observed that by the enactment of this Section 7749-1 GC, that the word “shall” was changed to “may”, making the provisions discretionary rather than mandatory.

There had been considerable dispute throughout the State with reference to the transportation of children. Mud roads had furnished a problem difficult to solve, so that evidently, it was the purpose of the Legislature to invest in Boards of Education a certain discretion with reference to the transportation of children, under the circumstances of a case like the case at bar.

The conclusion is that it is not mandatory or compulsory upon the part of Boards Of Education to furnish transportation &c.; that it was not mandatory upon the County Board to declare it “advisable .and practicable” for the Goshen Township Board to transport the children to the Bethesda High School, but that it rested in the disfection of these Boards, and, having reached that conclusion, and that the Section is no longer mandatory, it follows that the judgment in the instant case must be reversed, and it is so ordered.

Roberts and Pollock, JJ, concur.


author: SULLIVAN, J.

text:
    JANCHAR v CERKVENIK, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10700.
    Decided April 28, 1930
    Harry F. Glick, Cleveland, for Janchar.
    Boer, Arnold & Tobias, Cleveland, for Cerkvenik, et.
   SULLIVAN, J.

In determining this question it is well enough to keep in mind as bearing upon the contention that oral proof is incompetent, that the loss or destruction of the instrument of writing or defendants’ refusal to produce it, in no manner affects the validity or force and effect of the instrument of writing, for whose existence the secondary proof was offered and rejected. This instrument of writing could only be invalidated by mutual consent, by cancellation, or the final discharge of its terms. Therefore it must be admitted that the loss of the instrument or the refusal to produce it, in no way affected the mutual obligations under the terms thereof and if there is a foundation for the contention of defendants’ able counsel, then the statute of frauds would bar a recovery in all cases where the instrument of writing w,as not produced at the trial, notwithstanding there might be no question as to its execution.

It is well settled that the statute of frauds constitutes a rule of evidence. There can be no question about this and no issue can be taken against the proposition that the purpose of the statute of frauds was to secure the highest and most satisfactory species of evidence ,as was laid down in Crawford vs Edison, 45 Oh St 239 and in Cramer vs Patterson, 25 Oh Ap 130, as well as many other cases, and we are well aware of what Jones on Evidence says upon this question concerning the statute of frauds.

Counsel for defendants quote from Jones Commentaries on Evidence, Second Edition, under chapter, “Statute of Frauds” as follows:

“It will be observed that the statute does not affect the credibility or weight of testimony but absolutely excludes parol proof of a very large number of contracts. It is immaterial whether a large number of witnesses may have knowledge of the terms of a contract within this class or whether there are no witnesses to contpavert their statements. for the reason that these statements are denied all efficacy as evidence.”

We see nothing in this paragraph wherein the statute of frauds makes an exception to the rule that secondary evidence is admissible to prove a lost or destroyed instrument or one which is retained by an opposing party and who refuses to bring it into court, or who claims that it never existed. We think that the section which is quoted to support the contention of the defendants relates only to such cases where, as against the statute of frauds, recovery is sought by oral proof alone notwithstanding the provision of the statute which requires evidence in writing.

In the case at bar, when secondary evidence was offered, its purpose was to prove a written contract and the substance of the terms thereof and that this was sufficient to constitute a memorandum in writing under the claims of the petition and the proof, we think there can be no question, under the same reasoning which this court has advanced in other cases where a mere memorandum in an escrow as to a brokerage agreement was declared a memorandum in writing, notwitstanding there was no original contract as in the case at bar, executed by the parties or the parties to be charged therewith for the payment of the commission.

The proffer of secondary proof was noc to prove an oral contract but to show within the statute of frauds that there was a contract for the brokerage in writing and this secondary proof brought into existence as a legal entity in the trial below, in our judgment the written document itself in one of the two ways that is provided for furnishing evidence of a written contract.

The fallacy of defendants’ contention we think Ties in the theory that the secondary evidence was incompetent because its ultimate result was to show a verbal contract, whereas the prime purpose of such evidence was to restore the instrument of writing which was executed by the parties for the payment of brokerage, providing the services were performed under the terms of the agreement. These views we entertain are consistent with that theory of the rule of evidence that a document can be restored for the consideration of the court during the trial of an issue by evidence that it is lost or destroyed and by testimony as to the substance of its nrovisions. We know of no ruling that would make an exception as to the statute of frauds because the best evidence of which the nature of the case is susceptible is the rule which must be followed and in this sense the so-called evidence in the case at bar is not secondary evidence but primary evidence, because it is the best evidence under the record of which the nature of the case is susceptible.

Defendants, to bear out their contention, submit the case of Warner & Co. vs Brua, decided June 17, 1929 by the Court of Appeals of Hamilton County, reported in 168 NE. 571. Its applicability is claimed because it is asserted that under the evidence in the case at bar the services for which brokerage is sought, had been fully performed before the execution of the instrument upon which recovery is sought. We copy from page 571 of Warner supra:

“The law of Ohio reqiures a promise to pay commission for the sale of real estate to be in writing before an action can be maintained therefor. The situation then here is that the parties had performed all the services without any promise in writing and then sought at the time of the presentation of the contracts signed by the purchasers to bring themselves within the law by adding the promises in writing. The general rule is that past consideration will not support a promise. After the signing of the promises plaintiffs did nothing toward procuring buyers or toward the sale of the property. All this work had been done prior thereto. The facts bring the cases within the rule laid down in the case of Shields vs Sterrar, 77 N. J. Laws 404, 71 A. 1129. * * * There being no supporting consideration for the written promise to pay commissions the judgments (for the defendants) will be affirmed.”

We do not think this case is the controling law in the case at bar.

Holding these views the judgment of the lower court is hereby reversed for error in refusing to hear testimony and in sustaining the motion for judgment for defendants, and the cause is remanded for further proceedings .according to law.

Vickery, PJ, and Levine, J, concur.


text:
    KATZ v SILBERMAN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9860.
    Decided April 28, 1930
    M. A. Samolar and Simmons, DeWitt & Vilas, all of Cleveland, for Katz.
    Gott, Bloomfield & Orr, Cleveland, for Silberman, et.
   SULLIVAN, J.

We think it is organic in the law that one who is primarily responsible is not entitled to rights by way of subrogation and our judgment is, under the allegations of the petition, that the obligation is a primary one, and this conclusion becomes clear after an examination of the Negotiable Instruments Law which in our judgment makes inapplicable the case of Toronto Bank vs Hunter, 4th Bosw. (N. Y.) 648 upon which the plaintiff in error relies. In other words he contends that when there is an acceptance of a bill for the accommodation of the drawer, that between him and the drawer he becomes a surety and upon the payment of the bill he insists he may be subrogated to the rights of the holder regarding any securities of the drawer in the hands of the holder for the security of payment.

The Toronto Bank case supra, it is claimed, supports this theory, but it is our conclusion that it is not a deciding case as against the rights of the parties as fixed by the Negotiable Instruments Law, and a leading case that sustains this proposition is Richards vs Bank, 81 Oh St 348 and Judge Spear, who is a very learned Judge and who sat upon the Supreme Court Bench of Ohio, wrote the opinion, an excerpt from which we copy:

“The evident intent of the General Assembly by the negotiable instruments act was to revise the general subject of the law of negotiable instruments and where, specific provisions are made in the act in respect to a special subject-matter, such provisions must prevail. So where it is declared, as it is here declared, that a party to such an instrument who is absolutely required to pay the same is primarily liable and can be discharged from liability in certain specified ways and for certain specified causes, the reasonable conclusion is that the purpose was to enact that such party can not be discharged in any other way or for any other purpose.
The act further provides that an accommodation party may be a maker without himself, receiving value, that he engages that he will pay the instrument according to ite tenor ,and may be held liable to the holder, though that party knew him to be only an accommodation maker, thus classifying him as one primarily liable, and in a subsequent section the act further purports to embody all the law as to release of parti's ‘primarily liable’ on negotiable instruments by providing for the discharge of the instrument itself.”

Plaintiff, by the face of the instrument itself, was undoubtedly obligated primarily and thus because of that there is no foundation for translating the liability into one of a secondary nature and thus it must follow that he Is not entitled to subrogation.

Syllabi 1, 2, 3, are worth quoting to substantiate our views and they are as follows:

“1. One who signs a promissory note on the face thereof, and who in that way becomes a surety for the principal maker, is, by force of Sec. 3178a, Revised Statutes, primarily liable for the payment of such note.
2. Section 3175j. Revised Statutes, relating to the discharge of negotiable instruments, provides in what manner, and for what causes, such instruments may be discharged, and, by force of the rule ‘expressio unius est exclusio alterious’ sureties upon such instruments who are primarily liable thereon cannot be otherwise relieved from responsibility for their payment.
3. The rule of the common law that ,any agreement between the holder of a promissory note and the principal, which varies essentially the terms of the contract by which a surety is bound without the consent of such surety will work his release from liability, is no longer in force as one who has signed on the face of the instrument, such rule having been in effect abrogated by section 3175j, Revised Statutes.”

We find the same holding in many other authorities and quoting from Spire vs Spire, 104 Kansas, 501 we read:

^‘The maker of a promissory note, in fact surety for a co-maker, is not entitled, on paying the note, to be subrogated to chattel security held by the payee, to the prejudice of other liens on the chattel held by the payee to secure other obligations of the co-maker.” Quoting from Royal Arcanum vs Cornel-

ius, 198 Pa. 46 we read:

“In the well-considered opinion in the case of Royal Arcanum vs Cornelius, 198 Pa. St. 48, cited in support of a portion of the text quoted from Cyc., it is said: ‘The object of subrogation is to place a charge where it ought to rest, by compelling the payment of a debt by him who ought in equity to pay it. In short, the doctrine of subrogation is that one who has been compelled to pay a debt which ought to have been paid by another is entitled to exercise .all the remedies which the creditor possessed against that other, and to indemnify from the fund out of which should have been made the payment which he made.
(Sheldon on Subrogation, Paragraph II). Nor will subrogation ever be enforced * * * to the prejudice of the legal or equitable rights of others.”

The conclusion to be reached from these authorities is that the plaintiff cannot claim subrogation to the rights of The National City Bank, and consequently there is no cause of action against these defendants for the reasons obviously appearing in these authorities, but the real defect of the petition, and .which makes it demurrable, in our judgment, is that it is not shown by way of allegation that the whole liability of the company to the bank has been satisfied. It is clear that until the obligation is satisfied the security could not be disturbed for if the bank was entitled to the full security for its entire indebtedness it would be entitled to the possession and use for security purposes of any portion thereof.

From an-examination of the petition we find that payment in full has not' been alleged. It is not sufficient to say that payment has been made to the bank on the liability. The object sought is subrogation pro tanto, equivalent to the contribution of the rights of the bank. The pleading is not complete without an allegation of the payment of all of the indebtedness. Then and thereupon subroagtion may be claimed.

We think paragraph 2 of the syllabi in Fisher vs Columbia Building & Loan Co. 59 Miss. Ap Rep. is authority:

“When Operative: Creditor’s Assignment. As between the creditor and the surety, the latter has no right of subrogation upon a patrial payment. But when the .creditor consents to the surety’s subrogation pro tanto, to such subrogation the principal debtor and other creditors can make no objection. As to them it is immaterial whether the surety has or has not completely satisfied the debt.”

Again, quoting from 69 Tenn. Rep. 584 in the case of Motley vs Harris, we find the following language from the opinion very applicable to the case at bar:

“This right, however, is not one which can be exercised against the essential interests of the cerditor, whose rights, by virtue of the securities or funds in his hands, are paramount. If the creditor has been paid, he is to remain paid; if only secured, he is to remain secured. We recognize this as the general rule and unquestionably sound.”

This position is also' well analyzed in paragraph 127 of Sheldon on Subrogation which is as fllows:

“The right of subrogation does not arise in favor of a surety until he has actually paid the debt for which he is liable as surety; the right does not accrue from a partial payment by the surety until the creditor is wholly satisfied. Even if a surety is liable only for a part of the debt, and pays that part for which he is liable, he cannot be subrogated to the securities held by the creditor until the whole demand of the creditor is satisfied. Where the surety is allowed by bill in equity after the debt has become due to compel the creditor to enforce his demand against the principal debtor, yet he cannot be subrogated to the creditor’s lien, securities and equities for the debt until he has actually paid it. So, the indorser of a promissory note which is payable on time and secured by a mortgage of the principal’s real estate, who has been compelled by the mortgagee to p,ay the interest which has become due thereon, cannot enforce the mortgage for his indemnity, while the note remains the property of another holder, and the principal sum is still due thereon. The payment need not be in one sum, but may be made at different times; nor need it be wholly or at all in money, if the creditor accepts something else, though as has been already stated, if it be not in money, the surety’s right will extend only to his reimbursement for the real value of what he has paid. It has been held in Missouri that a surety for part of the indebtedness of the principal becomes entitled, by paying the part for which he is liable, to a pro rata or proportionate share of the proceeds arising from a sale of the debtor’s property, and m,ay be subrogated accordingly to the rights of the other creditors, so as to have the benefit of all their securities; but this is contrary to the general doctrine. But if the effect of the surety’s subrogation would be to give him a lien upon the property of the creditor- himself, so that he would be entitled to immediate repayment from the creditor’s property, then, to avoid circuity of action, the right may be enforced in the creditor’s suit against the surety, without waiting for actual payment.”

We deem it unnecessary to quote any more authorities, but there are many.

While we have recourse to the citation of authorities, yet our judgment is that the doctrine at issue is so elemental that even the authorities cited were unnecessary and certainly it would be supererogation to cite any more. The bank could not be disturbed in its security until full payment, whereupon it would lose its rights to the same and immediately the doctrine of subrogation would come into being.

Thus holding the judgment of the lowei court is hereby affirmed.

Vickery, PJ, and Levine, J, concur.


author: JUSTICE, J.

text:
    OHIO POWER CO v FETTRO, Admrx, etc
    Ohio Appeals, 3rd Dist, Hardin Co
    No 219.
    Decided May 1, 1930
    Pri.ce & Price, Kenton, and Herbruck, Shettler, Melchoir & Rooeh, Canton,, for Power Co.
    Roy Warren Roof, H. D. Lease, Carter Schwemmer, all of Kenton, for Fettro.
   JUSTICE, J.

Many claims of error are presented. A large number of them, however, relate to the same subject-matter, being merely couched in different language. It therefore seems proper to group them, which we have done, and as follows:

1. Refusal of the trial court to order stricken from the amended petition, certain allegations.

2. The sustaining of The Suburban Power Company’s motion for a directed verdict.

3. Damages excessive, appearing to have been given under the influence of passion and prejudice.

4. Misconduct of the jury.

5. Rejection of certain demonstrative evidence.

6. Verdict and judgment contrary to law.

7. Verdict and judgment not sustained by sufficient evidence.

8. The charge.

The first five claims of error, as grouped, are e.asily disposed of. No prejudicial error appears by reason of either the claimed misconduct of the jury, or the refusal of the trial court to strike the said allegations from the amended petition. Hence said claimed errors are of no moment here.

As to the second claimed error. The action sounds in tort. The defendants are jointly sued. A judgment, therefore, may be rendered either against both of them or against one of them. 26 Oh St 48, 19 Oh St 55. This claimed error is, therefore, not tenable.

As to the third claimed error. Fred Fettro, the deceased, was forty two years of age. He was in good health. He was a plumber, with an average annual net earning of at least fifteen hundred dollars. He was the sole support of his wife and children with whom he lived. The amount of the verdict is fourteen’ thousand dollars. With such facts before us, we are of the opinion that the verdict is not excessive. It is claimed, however, that the verdict was given under the influence of passion and prejudice. It is enough to say that the record does not sustain this contention.

As to the fifth claimed error. The utter impossibility of performing the experiment upon facts and under circumstances substantially similar to those in issue, clearly made the evidence offered, inadmissible. The trial court did right in excluding it. Jones’ Commentaries on Evidence, Second Edition, Volume 2, Section 734, Page 1369.

It is urged, however, by counsel for The Ohio Power Company, as their sixth claim of error, that the verdict and judgment are contrary to law for that no actionable negligence on the part of their client was proven; and, if proven, then plaintiff’s own evidence raised, as a matter of law, such a clear presumption of contributory negligence on the part of the decedent, which was not counter-balanced by any evidence, as to have required the trial court to have sustained their motion at the close of all the evidence for a verdict in favor of their client. With these contentions we are not in accord. '

Admittedly, The Ohio Power Company knew of Johnson’s electrocution; the broken pole; the sagging wires; the voltage carried; the public highway and the close proximity of said wires to said highway. With such information in its possession, without sending a servant or employe to examine, repair or guard the line at the point of the accident, it turned on the current. That such conduct under such circumstances and conditions tends to constitute negligence, is patent. Was the decedent, however, guilty of negligence as a matter of law? Manifestly, he had a right to be .upon the public road at the point of the accident. It was natural for him to go to the place where Johnson was electrocuted. According to defendant’s contention, the place was not apparently dangerous. In fact, it contends, and its evidence tends to prove, that a traveler upon said highway could have safely passed by said wires if he had remained upon the traveled portion of the highway. In such a state of the record, the trial court did right in overruling defendant’s motion for a directed verdict in its favor. Had the trial court done otherwise, it would have clearly invaded the province of the jury.

It is insisted by counsel for The Ohio Power Company, as their seventh claim of error, that the verdict and judgment are not sustained by sufficient evidence. In order to pass upon this assignment, we were required to read the record. To comment at length on the evidentiary facts, will serve no useful purpose. Counsel and the parties are thoroughly acquainted with them. Suffice it to say, a sharp conflict exists in the oral testimony upon the issue of contributory negligence. Different minds, in weighing it, might readily come to different conclusions. We, therefore, under the well recognized rule enounced in Dean v. King, 22 Oh St 118, 134, must not disturb the verdict upon this ground unless we find it to be manifestly against the weight of the evidence. This we do not find.

The last assignment of error, as grouped by us, relates to the charge. No exceptions were taken at the trial, to the charge of the court. One of the grounds of the motion for a new trial, however, was “the court erred in its charge to the jury.”

In Railroad v. Powers, 32 Oh St 328, our Supreme Court held:

“Where no exception is taken at the trial, to the charge of the court to the jury, the judgment will not be reversed, on error, upon the mere ground of error in the charge, without reference to the merits of the whole case. Where, however, the whole evidence is made part of the record and it appears that the verdict is contrary to law, the overruling of a motion for a new trial on that ground, may be reviewed, on error, though no exceptions were taken to the ruling of the court.”

In Baker v. Pendergast, 32 Oh St 494, our Supreme Court held:

“Where the overruling of a motion for a new trial is assigned for error, and all the evidence offered on the trial, together with the charge of the court, is properly brought up by bill of exceptions, a reviewing court will, in connection with the evidence, look to the charge of the court, whether excepted to or not; and if there is reason to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial.”

We have before us, a bill of exceptions containing all the evidence offered at the trial, together with the charge of the court. One of the many claimed errors is the overruling of the motion for a new trial. We, therefore, ax;e squarely confronted with the following inquiries: Is the charge erroneous; and, if so, is the verdict the result of such erroneous charge?

We have carefully examined the charge, giving special attention to those portions of which complaint is made, and are unanimously of the opinion that the charge of the court, when construed as a whole, is free from" prejudicial error. 61 Oh St 608. Howevex*, if we are wrong in our conclusion, still it is undoubtedly true that the rule of law enounced in the case of Baker v. Pendergast, supra, and kindred cases, has no application here, as manifestly the verdict is not contrary to law and is not the result of the instructions complained of.

Upon the whole case, we are unanimously of the opinion that The Ohio Power Company had a fair trial.

Holding these views, it follows that the judgment of the court of common pleas should be affirmed.

Hughes and Sherrick, JJ, the latter of the Fifth District, concur.


author: MAUCK, J.

text:
    OHIO PUBLIC SERVICE CO v PRIEST, et
    Ohio Appeals, 5th Dist, Ashland Co
    Decided May 7, 1930
    C. H. Henkel, Mansfield, and M. V. Semple, Ashland, for Public Service Co.
    Dover & Dover, Ashland, for Priest, et. ‘
    MIDDLETON, PJ, MAUCK ,& BLOSSER, JJ (4th Dist) sitting.
   MAUCK, J.

The first question raised is that the trial court erred in not sustaining the plaintiff’s challenge of certain jurors who were called to the box. Mr. P. C. Fritzinger is the husband of one of the owners. He conducts an insurance agency in the city of Ashland and a number of the prospective jurors were found to have policies of insurance issued by his office, and this it was claimed constituted sufficient ground for challenge for cause.. Section. 11051 GC, providing specially for jurors iñ appropriation cases, requires the probate judge to personally inquire of each juror offered

“whether he is interested in any way in any of the property, rights or interests sought to be appropriated, or in the corporation which filed the petition either as owner, stockholder, agent, attorney or otherwise.”

It is further provided that if such person answers in the .affirmative or it be otherwise shown to the judge that the proposed juror is so interested he shall be excused from service. It is quite clear that the fact that a proposed juror has taken out insurance with the husband of one of the owners of real estate does not make him a person interested in any way in that real estate. If the competency of the jurors be tested by Section 11437 GC, fixing the grounds for challenge generally in civil cases, there is likewise no hint in the statute indicating that the ground suggested constitutes a sufficient reason for excusing the juror. There is nothing in the record suggesting that the purely business relations between the jurors and Mr. Fritzinger were such as to warrant the challenge and th,e trial court was right in overruling the same.

Questions of evidence arose during the progress of the trial in regard to the way in which the value of the appropriated property, should be determined, the plaintiff' insisting that as the land in question was nothing but a farm its value should oe based soley upon its value as a farm, that is, its value for agricultural purposes, and now argues that to allow any other factor to be introduced in the case is to'permit the value to be predicated upon mere speculation. We, of course, agree that the jury was bound to find the value of the property as it was at the time the appropriation was made and not what it might' be at some time in the future when under favorable circumstances its value might be greatly enhanced. One of the things, however, that gives value to property, and especially suburban property, is that the probability of its future use for some other purpose gives it a present market value greater than its present use would indicate. In other words,the immediate use to which the property might be put may be purely agricultural but its market value may be much more than its agricultural earnings would justify because a prospective purchaser finds it to be worth more on account of the probability of its use for other purposes. We find no serious error in the admission of evidence.

Plaintiff in error complains of the failure of the trial court to give its special request number three as an instruction to the jury before argument. This instruction is as follows:

“I further charge you, ladies and gentlemen of the jury, that if you find that any witness testifying in this case as to the value of the defendants’ lands at the present time and value thereof after the transmission line is completed haá taken into consideration, in arriving at such value so testified to, in whole or in part, .any remote, speculative or future use or purpose to which such lands might be put, and there being no demand, public or private, at this time for any such use or purpose, or has considered any element of fear or danger to the person or property of the defendants or their successors in title, after said transmission line is completed, then you shall disregard and not consider any such witness’ testimony as to values for the reason that the law does not permit you as jurors to speculate and guess as to values.”

The meaning of the first proposition in this proposed instruction is not clear. Its obscurity lies in the phrase “and there being no demand, public or private, at this time for any such use or purpose”. This would apnear to be equivalent to saying that there is no demand at this time for any such use or purpose. If the instruction had been conditioned on the jury finding that there is no demand, .public or private, for any such use or purpose that at this time affects the market value of the property we think that so much of the charge would have been proper, but as it was drawn its meaning was too obscure to require its being given.

The second proposition in the requested charge w,as also faulty. The measure of damages is the difference in the market value of the property affected without the appropriation and the value of the same property after the appropriation. When a witness testifies to his opinion of the market value of the property .after the improvement it is entirely competent to elicit the grounds for that opinion and his answer is not rendered irrelevant because his judgment is predicated upon what others might deem to be unsound premises. If it develop that his judgment is based on speculations and fancies the jury will disregard that judgment. This instruction, however, was erroneous in directing the jury to entirely disregard the testimony of any witness who “considered any element of fear or danger to the person or property of the defendants”, thus saying that as a matter of law the apprehensions of those who might consider the presence of highly charged electrical wires a menace to abutting property, and therefore capable of affecting the value of that property, were remote and speculative. With this we do not agree. Sutherland on Damages, Section 1036, Hayes v. Trustees, 6 C. C. (n. s.) 281. The instruction was properly refused.

While we find no error in the record that as a matter of law justifies the reversal of the judgment under a sufficient showing of facts we can not reconcile the verdict and judgment with the facts proven. The easement covers practically six acres. The probability is that the six acres covered by the easement has some value, but assuming that it has none the compensation can not exceed the value of the property taken. With the exception of the testimony of one of the owners, which for obvious reasons can not be taken into serious consideration, all of the evidence on behalf of the owners was that the property taken was worth from two hundred to two hundred and fifty dollars an acre. We are, of course, bound by the rule that the verdict of a jury can not be disturbed upon the weight of the evidence unless manifestly wrong, but we are also bound by the rule that when it is manifestly wrong it must be reversed. This record shows to a demonstration that the property covered by this easement is worth not more than twelve hundred to fifteen hundred dollars and that the verdict for thirty two hundred dollars is consquently manifestly wrong. It is not so clear that the amount of damages awarded for the loss suffered by the owners on the remainder of their lands is too large because that is not capable of mathematical demonstration. It seems to us that slight damages ought to have been allowed for so much of the land as lies south of the transmission line already running across the lower part of this farm. The verdict could not possibly have reached anywhere near the amounts returned by the jury except on the theory that this property was of ,a peculiar value for allotment purposes, and that this, value would be destroyed by the construction of the transmission line. If the effect of the transmission line is to destroy the value for allotment purposes of all the land lying south of the transmission line then so much of it as lies south of the old transmission line has already been destroyed. Inasmuch as the record demonstrates that the verdict is wholly unreasonable as to the six acres we more readily reach the conclusion that the verdict as to damages, returned by the same jury upon the same facts, must likewise be too high. We consequently reverse the iudgment herein because it,is manifestly contrary to the weight of the evidence and remand the case to the probate court for a new trial.

Middleton, PJ, and Blosser, J, concur.


text:
    SHANGLE, in re Estate of
    Ohio Appeals, 5th Dist, Perry Co
    No 182.
    Decided March, 1390
    "W. A. Hight, Thornville and J. E. Powell, New Lexington, for complainant.
    Meyer & Crossan, Zanesville, for defendant in Error.
    LEMERT, PJ and SHERICK, J (5th Dist) and ROBERTS, J (7th Dist) sitting.
   LEMERT, PJ.

Complaint is made that Shangle disposed of these Certificates in his will. We do not believe this contention is well taken. He could only dispose of such property as was his at the time of his death. He had by his act, conduct and direction, disposed of. these Certificates and the money represented thereby before he made his will. Having thus disposed of them, they could, not pass under his will as they would not then become or be assets of his estate; or, in other words, they were the joint property during the life of Shangle of him and his wife and at his death became the property of his wife.

This case was argued at length ' orally and well prepared and exhaustive briefs have been filed’ herein and we have examined them with a great deal of interest and care. It is not necessary to herein repeat at great length the claims herein made.

First, with reference to the question of possession. The last word on such ,a question as herein presented is to be found in 120 Oh St 542, wherein it is held;

“Where a certificate of stock in a corporation is issued in the joint names of two persons, by their agreement and consent, the delivery of the Certificate to one is a delivery to both, and the possession of one is the possession of both.”

We believe that rule is applicable in the case at bar.

In the case of Osterland, Administrator, vs. Schroeder, the facts were very similar to the case at bar. The account was in the name of both wife and husband; the wife died: and in a suit brought by the administrator the Court held that the title of the property was in the survivor, towit, the husband. Part of the syllabus of that case is:

“Where a decedent deposited moneys in Savings Bank, notation adding S’s name to account and that either, or in case of death of other survivor, may draw part or whole, and that either may draw balance at death of either, payable to survivor; held; sufficient to convey title thereto to S.”
22 Oh Ap 213.

In 114 Oh St 241, without quoting at great length in that case, suffice it to say that on page 248 of the Opinion the Court say:

“The bank book was left at the bank, where, as the record shows, payment would have been made to Mrs. Richardson during Green’s lifetime if she had .appeared to make a withdrawal. Being joint owner of Green’s choses in action against the bank, with a right equal to Green’s, at Green’s death Mrs. Richardson was entitled to possession of the money due upon the account as against the Administrator.”

The case of 'the Trust Company vs. Scobie, 114 Oh St, we find to be an exhaustive case, well treated and analyzyed and in point with the case at bar. A vast number of cases have been referred to in that case by Judge Allen in deciding the same, found within our own as well as other jurisdictions. The Supreme Court in the Scobie case, in a general summing up; holds:

“That the authorities do not ground their conclusions upon the proposition that a bank book must be left in the possession of a third party in order to create a joint interest in the deposit in a transaction of this kind. It is generally held that delivery of a bank book is not a prerequisite to-the creation and transfer of a joint title in a savings deposit, and further, that a deposit of money in bank to the credit of the depositor or his wife, or the survivor of them, operates as. a gift to the wife, though she never had possession of the pass book.”

In this same Scobie case the Supreme Court of Ohio held that upon the death of the person creating the account the property passed and vested in the one in whose name the joint account was created .as against the Administrator of the estate.

It is claimed on behalf of Counsel for complainants in this case that Judge Allen in the Scobie ca>se does not base her decision on the authorities cited. It will be noted that in the Opinion of the Court in the Scobie case, at page 254, is the follow-in glanguage:

“The joint interest created by the opening of such an account was always subject to the right of the person who opened the account to determine and revoke the authority to withdraw.”

In the case of the Desmond account this right was exercised. Not being exercised before Green’s death in the Richardson account, Mrs. Richardson was entitled to possession and ownership of the balance of the deposit as .against the Administrator.

114 Oh St 254.

We believe that a similar condition exists in the instant case — that is, that these certificates created ,a joint interest in the husband and wife, in both while they lived.

As to the contention of counsel for complainants in claiming that Judge Allen in the Scobie case based her decision on a contract, we believe that these certificates in the instant case were contracts — that is, that Shangle contracted with the banks to hold his money and to pay it to himself or wife, and further contracted that in the event he died, his wife was to have the money arising from the certificates.

This same rule has been followed in the case of Saba, Administrator, vs. The Cleveland Trust Company, 23 Oh Ap 163.

In the 27 Oh Ap, page 284, a very interesting case is to be found in the case of Bank vs. LeBeau, where was the evidence of an intent to make a gift by a father, who deposited in the bank a fund to the account of himself and his daughter, jointly, the certificate of deposit giving to either the power to draw on his order or her individual order during their joint lives, and the balance, upon the death of either, to be long to the other. The Court held that from this evidence was indicated an intention on the' part of the father to create in his daughter ■ a personal estate in the fund equal to his own, together with a sole right to such fund in the case of his death.

This case is to be found in 161, N. W., 974.

It* is further noted in this case that the Vice President of the bank, with whom Le-Beau left the money, testified that when the deposit was made, the instruction was given that in case of the depositor’s death the proceeds of the deposit were to go to the daughter. The Court held:

“A personal gift is affected by a man’s depositing in the bank a fund to the account of himself ,and his daughter jointly, with power to either to draw on his or her individual order during their joint lives and the balance upon the death of either to belong to the other.”

In the instant case or the case at bar we have Shangle giving the same instructions when the several deposits were made. So in the instant case the declarations of Shangle when the deposits were made and the ■ certificates were issued were a part of the res gesta and as such are a part of the transaction and they clearly show this intention and purpose. Manifestly these certificates became, on the death of Shangle, and were, the sole property of Elizabeth Shangle and she had the lawful right to so treat them. The record shows that there was no element of secretion or embezzlement about any of her transactions. It was all done openly ,and aboveboard. She concealed nothing. There was no misappropriation, for it was her own property, and she had the absolute right to the certificates and to make such disposition of them as she wished.

The Probte Court having heard the testimony and the evidence and construing the law, found in favor of the executor and dismissed the complaint. Said Court found that the question of survivorship in Mrs. Shangle was clearly established.

We find and hold that the judgment of the Probate Court was fully warranted by the evidence and the law. It therefore follows that the finding and judgment of the Probate Court will be and the same is hereby affirmed.

Exceptions may be noted.

Sherick, J, and Roberts, J, concur.


author: MIDDLETON, PJ.

text:
    SWANEY et v WILES et
    Ohio Appeals, 4th Dist, Ross County
    Decided May 29, 1930
    J. D. Withgott, Chillicothe, for Swaney, et.
    John P. Phillips, Jr., Chillicothe, for Wiles, et.
   MIDDLETON, PJ.

It is contended by the plaintiffs that there was no contract which was sufficient under the statute of frauds to create any liability on the part of the deceased to give to her sister the property in dispute in this case. In support of this contention the plaintiffs rely chiefly on the case of Cling, Admr. v. Bordner, 65 Oh. St 86. If this contention was well founded in other respects we would not regard that case as controlling for the reason that it was an action at law and the case before us is one in equity for specific performance. While the Bordner case may furnish some assistance in determining the rights of the parties it is not by any means conclusive.

The defendant relies on the letters quoted as affording a sufficient memorandum of a written contract to meet the requirements of the statute of frauds. If we felt compelled to rely solely on this construction of the letters we would hold that they are within the doctrine applied to memorandums which when signed by one person only are held to be sufficient. It must be remembered that a memorandum signed only by the party to be charged is specifically provided for by 8621 GC. In respect to such provisions of statutroy law and the character of such memorandums it is said in Ruling Case Law, Volume 25, page 674:

“According to the weight of authority, a written offer signed by the party to be charged, if orally accepted by the person to whom it is made, may itself constitute a sufficient written memorandum of the contract, binding the person by whom the offer is made tho the other party may successfully plead the statute. In such case if the memorandum is otherwise sufficient, when it is assented to by him to whom the proposal has been made, the contract is consummated by the meeting of the minds of the two parties, and the evidence necessary to render it valid and capable of enforcement is supplied by the signature of the party sought to be charged to the offer to sell or buy.”

The general rule is well stated in Ann Cas. 1913A, page 1042:

“Under a statute of frauds which provides that the memorandum required thereunder need be signed only by the party to be charged, it is generally held that an oral acceptance of a written offer is a sufficient memorandum to satisfy the statute if the person making the offer is the party to be charged and the written offer contains all the terms of the proposed contract.”

We are not, however, without direct authority in this state on this question. _ In Furnace Co. v. Railroad Co., 22 Oh St it is said:

“A written proposal containing the names of the contracting parties and all the terms of the proposed agreement, signed by the proponent or some other P'-rsm thereunto by him lawfully authorized, when accepted and assented to by the party to whom the same is made, is sufficient to take an action against the proponent founded thereon out of the operation of the statute of frauds; and the delivery of such instrument as a proposal and the acceptance thereof and assent thereto by the party to whom it is made may be proven by parol testimony.”

In the instant case not only is it established by oral testimony that the defendant accepted the proposal of her sister as contained in the letter under date of February 19, 1922, but that she fully performed the conditions specified thérein as they should have been performed. This letter refers to a former proposal by the writer and reaffirms that proposal in this language: “I told-you that my property and things in the house would be yours when I was done with them if you come and stay, and there will be money left when I am done with it to pay you for your work taking care of me.” We are persuaded that the expression quoted is sufficiently specific and definite to make plain the terms under which the defendant was to come and live with her sister.

An effort is made by the plaintiffs to raise some doubt in respect to what the term “property and things” was intended to include by the- deceased sister. It must be remembered that the writer was an aged woman and wholly ignorant of any technical terms by which various classes of property should be designated. In the light of the oral testimony it is apparent that what she intended was all of her possessions of every kind and description.

We conclude that if the determination of this case rested entirely on the interpretation that should be given to the letters in question we would hold that they complv sufficiently with the provisions of the statute of frauds. But this case does not depend upon whether there was a contract between these parties which met the requirements of the statute of frauds. It is shown by oral testimony and the letters in question that there was a contract, what that contract w,as and its full performance by the defendant Etta Wiles. Moreover, it was a contract for services, the value of which could not be measured in money or satisfied by a money judgment. The old lady was appealing to her only sister, not only for the latter’s services but for her society and presence in'the former’s home. In the case of Emery v. Darling, 50 Oh St, 160, 167, Judge Minshall settles this whole controversy with one sentence:

“The value of the society of one sister to another is incapable of measurement in money.”

The observation of another court on this particular phase of this case is very pertinent and is found in the case of Svanburg v. Fosseen, 75 Minn. 350, 74 Am. St. Rep. 490, wherein the case of Emery v. Darling, supra, is referred to. It is said by the court in the Minnesota case:

“The Fosseens were childless. They took these children as members of their own household. A strong affection grew up between the sisters and their foster parents. For many years they rendered faithful services to their uncle and aunt, doing household work of every kind as well as outdoor work, *** The value of such society and services to their uncle and aunt is incapable of measurement in money.”

It is our conclusion that the evidence in this case, including the letters, makes it one for a decree of specific performance. In reaching this conclusion we do not consider the testimony of the defendant Etta Wiles.

A decree may be entered in favor of the defendant Etta Wiles the- same as was made in the Court of Common Pleas.

Mauck and Blosser, JJ, concur.


author: HAMILTON, J.

text:
    LEWIS, Auditor v BALL
    Ohio Appeals, 1st Dist, Warren Co
    No 147.
    Decided Feb. 24, 1930
    Howard W. Ivins, Lebanon, for Lewis.
    Maple & Maple, Lebanon, for Ball.
   HAMILTON, J.

The quetsion therefore turns on whether or not a Board of Trustees of Public Affairs of a Village, which manages, controls, and conducts the water works, electric' light and artificial gas plant of the Village, can perfect a lien upon the premises to which the same have been furnished, by certification to the Auditor of the amount so furnished, under favor of 4361 GC.?

If, under 4361 GC, the trustees of Public Affairs can create a lien on real estate to collect rental for light and gas furnished to said premises, whether used by the owner or other persons in possession, the demurrer to the answer should have been overruled.

It is argued that to enforce the payment of the claim through tax collection as a lien upon the premises would violate the constitutional rights of the plaintiff.

It is the law that statutes should be given effect, if possible. If the facts are as alleged in the amended petition, the placing of the claim upon the tax duplicate against the property of the plaintiff would violate her constitutional rights. This plaintiff was not the owner of the premises sought to be subjected to the payment of the claim through the process of tax collection at the time the rentals accrued except a small part thereof. The facts as shown by the petition are, that she became the owner on July 14, 1924. The certification was made on February. 13, 1929. Substantially all of the claim had accrued prior to the plaintiff becoming seized of the property as the owner. Further, at no time was notice given of any claim of the kind in question, or the intention to certify the same to the auditor.

While the statute does not provide for the giving of notice of such intention, it is provided in the statutes in all other cases of .assessment or taxation that notice shall be given either personally or by publication, and it had been held under these sections that the failure to give notice, either personally or by publication, is fatal to any assessment. Notices are required to preserve constitutional rights.

In line with those provisions of the statutes and the decisions, we are of opinion that no lien could be created as against the plaintiff without the giving of notice of the claim and the intention to certify. On the question of the lien and of notice, the case of Western Reserve Steel Co., et al v. Village of Cuyahoga Heights, et al., 118 Oh St., 544, at page 547, is illuminating. This case grew out of ,an attempt to enforce the payment of back water rents by refusing to turn on water for the benefit of the new owner. On page 547, the court said:

“Neither the city nor the village, prior to the purchase of the premises by the plaintiffs in error, had asserted or perfected a lien upon the premises for the unpaid water rent of the Hunter Crucible Steel Company, and no lien upon the premises had been created by contract, and, unless such unpaid water rent became a lien upon the premises by operation of law, no lien existed.

“The plaintiffs in error, prior to the purchase of said premises and prior to their contract between themselves, had no notice or knowledge that the Hunter - Crucible Steel Company had not paid for the water used by it upon the premises.”

And the Court in that case held that, the provision in the contract which provided that if the City (which furnished the water under contract to the Village) should turn on the water without notice, the claim of the City would be null and void, and that the provision was unreasonably discriminatory, and violated sections 2 and 19 of Article I of the Constitution of Ohio, and the “due process” provision of the Constitution of the United States, .and, in so far as it attempted to subject the property of a subsequent owner to the payment of an indebtedness of a prior owner without the perfection of a lien thereon, is void, and granted a mandatory injunction, requiring the water service to be given.

So it will be observed that in the decision in the case of Steel Co. v. Village of Cuyahoga Heights, supra, the Supreme Court recognized that a lien for water rents, in this case, light and gas rents, could be created by a Board of Trustees of Public Affairs, but that if such lien were not perfected at the time the property passed into the possession of a subsequent purchaser, that no lien could thereafter be created upon such premises, and, further indicates that notice was necessary. This decision further holds that the mere accumulation of unpaid bills for water rent, in this case, gas and light does not become a lien upon the premises by operation of law, but requires a perfecting of the lien by the Board of Trustees by certification.

The petition in the instant case states that the plaintiff was a non-resident of the State of Ohio, and that she had no notice or opportunity to be heard with reference to the claim, pleads the bar of the statute, sets up the defense that she became the owner after the rentals in question had accumulated, and other matters.

The answer claims repeated demands upon the owner of the premises, or upon the occupant thereof.

This indicates disputed questions of fact, put in issue by the petition and the answer. The answer, therefore, presented a defense, and the court erred in sustaining a demurrer thereto.

Wirle reversing the judgment, for error in uie sustaining of the demurrer to the answer, it may be well to state that under the law there can be no perfecting of a lien for .any claim arising prior to the taking of the title by the plaintiff on April 14, 1924.

The judgment will be reversed, and the cause remanded for further proceedings according to law.

Cushing, PJ, and Ross, J, concur.


text:
    POLISH NATIONAL ALLIANCE OF U S OF NORTH AMERICA v CROWLEY, etc, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10708.
    Decided May 12, 1930
    John M. Pindras and Jesse Stevens, both of Cleveland, for Polish Alliance.
    Clarke & Costello, Cleveland, for Crowley, etc, et.
   SULLIVAN, J.

It is argued that the clause quoted is part and parcel of the contract of insurance as it is a clause from the constitution and bylaws of the plaintiff in error. There can be no question about this but the real question is whether, under this clause there is any stipulation that prevents the minor children or the estate from recovering the benefits of the insurance policy. There can be no question but that the clause noted, by contractual effect bars the beneficiary, the widow, but the provision ends there and the policy, so to speak, hangs in the air because there is no provision which voids or lapses the policy or makes any provisions whatsoever for the disbursements of the insurance fund, and certainly it cannot be claimed that the contract was made for the benefit of the plaintiff in error, inasmuch as the premiums that had been paid up to the time of the death of the insured were contributions to its property which formed a basis for the payment of the insurance fund under the stipulations of the policy. If the policy, through the by-laws or other stipulation, had incorporated a provision which rendered the policy void because of acts designed upon the life of decedent to secure the mortuary benefit then, of course, by contract the policy lapsed and then and thereupon became void as to not only the beneficiary but to all others, heirs or' otherwise.

If there was a provision in the by-laws or by way of stipulation independent thereof that the policy would lapse upon the loss of life by a member of the plaintiff in error, by reason of murder, then under the contract the policy would lapse and no one would have any more right to recover the insuarnce but not because the beneficiary named in the policy could not recover but because of the mutual agreement, as insurance contracts are similar to any other and must be interpreted accordingly. However, upon the lapsing or the voiding of the policy the premiums paid ought to have been tendered but in the case at bar no such tender is claimed so that the status is that the plaintiff in error is voiding the policy without making the tender of the premiums.

We think that the instant case is in line with a former decision of this court in the case of National Benefit Life Insurance Co. vs Davis, Admr. published Sept. 30, 1929 in the Ohio Law Bulletin and Reporter, page 270, (7 Abs 477) and we quote therefrom as follows, for the purpose of showing the similarity in the record:

“The question then arises whether this policy becomes uncollectible because the sole beneficiary being in a position where she cannot collect, is to indirectly have the benefit of any part of this policy .and the insurance. It might be that the policy had been carried for a great many years, and there have been a large amount of premiums paid on the policy, and manifestly it would be wrong to permit the insurance company to avoid payment and keep the premiums ,as they had been paid, for we .assume that there was no provision in this policy which makes it void upon the felonious killing by the benficiary of the insured. It then must be a contract in force and it must be for the benefit of somebody. Manifestly it cannot be for the benefit of the insurance company. Its benefit came from its premiums and its liability to pay accrued upon the death of the insured, unless there be some reason why the policy became void.
Fortunately we .are not left to conjecture upon this subject for the question has been decided many times.”

Cooley on Insurance, 2nd Ed. Vol. 6, page 5229 is authority for the- doctrine that the insurance liability in cases like the one at bar is not absolutely ended but holds that the policy will be enforced for the benefit of the heirs or estate of the insured.

In Joyce on “Insurance” Vol. 2, p. 1827, it is held that the beneficiary who feloniously kills the insured cannot take but that the policy may be enforced by the administrator on the theory of a resulting trust for the benefit of the estate. There are many other decisions of similar character.

In Schmitt Admr. vs Insurance Co. 51 L. R. A. 141, we cite ,the following which we think is applicable to the case at bar:

“Decedent’s wife was the named beneficiary in his life insurance policy. After the issuance óf the certificate, the wife feloniously caused the death of her husband, the insured. The deceased husband’s administrator claimed the proceeds of the policy on behalf of the estate.”
Held: “The wife cannot recover because it is contrary to public policy to allow her to enforce the claim. But public policy does not extend so as to defeat all claims on the policy. It is well settled law that when there has been no designation, or a designation of a person as beneficiary who dies before the insured, or an illegal designation, the insurance company holds the fund in trust for the benefit of the estate of the insured.”
“Following this doctrine to its logical conclusion it seems to us that, when the beneficiary named is prohibited from taking because of her own wrong, a trust arises. This trust is created in favor of the insured’s estate and takes effect by reason of the crime of the wife which destroys the trust in her favor. Insofar as she is concerned, the trust is destroyed by her crime, and in consequence a resulting trust in favor of the insured’s estate is allowed. If the designation of a beneficiary is treated as a kin to a bequest, the same result follows: For ,a lapsed legacy descends to the heirs of the” testator. The proposition follows the- general principle that whenever property is produced by payments made by one, that are to be held in trust for another, and that trust fails or is satisfied, a resulting trust arises in favor of the party making the payments or his estate. The celebrated case of Cleavor vs Mutual etc., association, 1 Q. B. 147 is in point. It was there held that notwithstanding Mrs. Maybrick, who murdered her husband, was named as beneficiary in his insurance policy, and could not recover the proceeds, still the insurance money formed a part of the insured’s estate, and could be recovered by his administrator.”

Another section of the by-laws of the plaintiff, page 83, Article 4, Subsection (A) provides as follows:

“To whom payable: A motuary benefit after the deceased member shall only be paid to the family, legal beneficiaries, blood relations, affiant’s wife, or affiant’s husband, or to persons dependent upon the deceased member for support, incorporated public charitable institutions or equivalent institutions permitted by law, with the concurrence of the central government.”

There is nothing in the above language that voids the contract but simply stops its non-payment to the beneficiary.

Sections 9393-9394 and 9467 GO have application to the question at bar but there is no language in any of these sections which is an inhibition against the insurance company paying the benefits to the minors of the beneficiary even though she herself is barred from recovery.

In 196 Iowa 857; 195 N. W. 603; 205 Mo Ap. 87; 205 S. W. 286, cited by counsel for plaintiff in error, these may be distinguished from the case at bar for the reasomthat the policy or by-laws in these cases contain provisions declaring void the policy upon the arising of certain contingencies. In the case at bar there is no provision in the insurance contract or the constitution and by-laws that declare the policy void or stipulating the loss of the premiums by their retention by plaintiff in error. We do not think that Fillman vs Metropolitan Life Ins. Co. 82 Oh St 208 has any application to the instant case for the reason that it holds that a beneficiary, under circumstances like those at bar, cannot recover when the death is caused by an intentional and felonious act of the beneficiary. There is no contest upon this point in the instant case because it is conceded that the beneficiary under no circumstances can recover.

It is our judgment that unless otherwise provided by the by-laws or the policy, fraternal insurance policies do not lapse solelly because the beneficiary caused the death of the insured, and in such a case it is our judgment that, a resulting trust arises in favor of the dependents and under 9394 GC it appears to us that the guardian of the minor children has a legal foundation for the claim she makes in the record.

Holding these views the judgment of the lower court is hereby affirmed.

Vickery, PJ, concurs in .judgment, Levine, J, not'sitting.


author: ROSS, J.

text:
    CINCINNATI OAKLAND MOTOR CO v MEYER
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3587.
    Decided Feb. 24, 1930
    Hightower, O’Brien & Porter, Cincinnati, for Motor Co.
    Clark & Robinson, Cincinnati, for Meyer.
   ROSS, J.

The lease attached as an exhibit contains no covenant on the part of either landlord or tenant to repair, except in the case of the tenant as the same may be inferred from the following language: “and at the end of said term it” (the tenant) “will deliver up said premises in as good order and condition as they now are or may be put by the said lessor, reasonable use and ordinary wear and tear thereof and damage by fire or other unavoidable casualty, condemnation, or appropriation excepted.”

In the absence of statute, ordinance, express stipulation, or covenant, the lessor is not bound to make repairs to the leased property. 36 Corpus Juris, Landlord & Tenant, section 766, page 125; section 769, page 130. 16 R. C. L. page 1030, Landlord & Tenant section 552. Goodall v. Deters, 121 Oh St 267 (Ohio Law Reporter, Jan. 27, 1930). Shindelbeck v. Moon, 32 Oh St 264.

It appears from the stipulation that there was no contractual obligation upon the landlord to make repair of the heating plant.

In the absence of express stipulation, covenant, statute, or ordinance, the tenant’s obligation is not to repair generally, but is in effect an implied agreement against volluntary waste and to return the premises to the landlord in substantially as good condition as when received, reasonable wear and tear excepted. 36 Corpus Juris, 128, Landlord & Tenant, section 767.

“This is, however, the extent of the tenant’s obligations and if the landlord wishes to impose on the tenant the duty of making repairs beyond these, he can do so only by express covenant in his lease to that effect.” 16 R. C. L. 1086, Landlord & Tenant, section 603.

As the matter was presented to the court, the question raised was upon whom fell the burden of repairing the furnace. Under the stipulation, the fact that the landlord made the repairs is not to be considered in fixing the obligations of the parties. There is no obligation upon the landlord to repair the furnace, and there would be no obligation upon the tenant if the failure of the furnace to function was due to reasonable wear and tear. The heating plant had been in operation a little more than eight years. There is nothing in the record to show what was the normal period of usefulness of such a furnace as was involved. There is nothing to show that the repairs were made necessary by reason of normal deterioration; nor, on the other hand, is there anything to indicate that the furnace had been damaged by any act of the tenant which would constitute waste. But as the tenant is bound to put the premises in substantially the state in which they were received, and the effect of wear and tear constitutes an exception to this obligation, it must be shown that the necessity for repairs is due to reasonable wear and tear, in order to release him from the burden. The furnace men found that the necessary repairs would be as expensive as a totally new furnace. It is contended that the repairs amounted to a replacement, and were structural, and thereforé, within the obligation of the landlord. We cannot see how even such a view would avail the tenant, for, unless the landlord were directly instrumental in producing the necessity for replacement, he would still be under no obligation to' replace even a structural failure. Corpus Juris, Id. 769.

It is manifest that the tenant required a heating plant for the continued convenient occupation of the premises. There 'would have been no reason otherwise for the agreement between the landlord and tenant, that same shoulld be installed. The plant was installed for his convenience. It is true the landlord’s premises were thereby enhanced, but this creates no liability upon him. The stipulation being wholly silent as to the cause of the defective condition of the plant, the burden being on the tenant to repair .and replace, unless excused by a showing that reasonable wear and tear had caused the defects, we are constrained to hold that the installation was for the tenant’s benefit in fulfilling his duty, and must be at his cost.

While we consider the foregoing decisive of the rights involved, even if it were shown that the failure to function was due to ordinary, reasonable deterioration, there being no liability, express or implied, upon the landlord to repair, we would still be compelled to hold that the repair must be at the cost of the tenant.

The judgment of the court of common pleas is affirmed.

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