text:
    BURT FURNITURE COMPANY v SMITH
    Ohio Appeals, 8th Dist., Cuyahoga Co
    Decided June 24, 1929
    Messrs. Mooney, Hahn, Loeser, & Keough, Cleveland, for Furniture Co.
    Mjessrs. Anderson & Lamb, Cleveland, for Smith.
    JUDGES KUNKLE, ALLREAD & HORN-BECK (2nd Dist) sitting.
   KUNKLE, J.

Counsel for plaintiff in error rely principally for a reversal of t}fis judgment upon the ground that the record shows the injuries received by defendant in error were due to the contributory negligence upon his part. We have read the record in this case and have also considered the very helpful briefs which have been filed by counsel and in which not only many of the pertinent portions of the testimony are set forth, but in which the controlling decisions of our courts are cited and commented upon. We shall not attempt to quote from the testimony in detail, nor shall we undertake a discussion of the authorities. We deem the same unnecessary as counsel are thoroughly familiar with not only the evidence, but with the respective authorities relied on. We shall merely announce the conclusion at which we have arrived after reading the same.

We think there is evidence in the record which justified the finding of the jury, namely that plaintiff in error was guilty of negligence and that under the circumstances disclosed by the record the defendant in error was not guilty of contributory negligence.

This is not a case in which the injured person was required to open a door or a gate before injury could result as in some of the cases cited. The gates in question were up, and we think defendant in error had a right to assume that the elevator was in proper place at the floor landing, and that the passage way to the place where he was required to go was safe. The question of contributory negligence was an issue of fact fo~ the jury.

We think the trial court porperly refused the two special instructions requested by counsel for plaintiff in error. We are also of the opinion that the trial court in its charge to the jury fully and fairly presented the issues in this case for its consideration.

We have considered all of the errors urged by counsel for plaintiff in error in their brief, but finding no error in the record which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.

Allread and Hombeck, JJ, concur.


source: Caselaw Access Project

author: VICKERY, PJ.

license: Public Domain

text:
    CLEVELAND RAILWAY CO v KLIR
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided June 17, 1929
    Squire, Sanders & Dempsey, Cleveland, for Railway Co.
    Newcomb, Newcomb & Nord, Cleveland, for Klir.
   VICKERY, PJ.

It is claimed that there are two grounds upon which this verdict and judgment thereon should be reversed. One, and the main one is j;hat the injury, if any, was so slight that the verdict in the sum of $4000.00 is so excessive that it of itself shows passion and prejudice; and the other is that there was misconduct on the part of the attorney for the plaintiff below.

The record in this case does not show very grave injury to the plaintiff. It seems from the evidence that she was. on a car sitting on a seat toward the front end of the car which seat ran lengthwise; and the car in which she was riding was hit by another car which struck the front vestibule and broke the window in the vestibule but apparently nobody in the car was disturbed; and the evidence shows that a patrolman in the vicinity entered the car and inquired whether anybody had been hurt and there is some dispute as to whether plaintiff said she was. The patrolman, I believe, said that nobody made any claim for any injury.

The plaintiff apparently went about her work and went to Bedford the same day and on the day after she came to the court house and was granted her citizenship papers. She was doing work for two or three physicians and doing her own work. Subsequently I belive after the suit was started, she took a trip to Europe and was gone for several months. All this indicated that she was not injured so very severely; but the record shows that she had arthritis of the spine and in answer to several questions or to questions on cross-examination, the doctors admitted that such might come from trauma. The trouble in the instant case is that there was no evidence of any trauma; there is no evidence of there being any blow, or of coming, in contact with anything which would cause trauma. She of course says that she was knocked forward and in that manner strained her back or spine but that is not very satisfactory; and on the whole, the record does not make a strong ease for very extensive damages, and it is not much wonder that the trial court in the first instance set aside the verdict as being given under passion and prejudice. It is rather questionable whether the same ought not to have been done under the second verdict. However, there is some injury shown in this record that this woman claims to have suffered and the trial court had her before it and the jury had her before them and could see her demeanor and her actions better than we; and if there, was any injury, of course, plaintiff would be entitled to recover, she being a passenger and was owed the highest degree of care, and the two cars of the same company coming into collision is negligence from which a passenger, if injured, could recover.

So we have viewed this whole record and feel that the verdict is larger than we think the jury was warranted in giving. We hestitate to say that it was given under passion and prejudice and think it can be remedied by remittitur.

There is one other matter which we think should be mentioned, and that is the so-called misconduct of counsel for plaintiff and it grew out of the cross-examination by Mr. Green for the railway company in seeking to indicate who the plaintiff’s family were, how many composed the family, whether she was married, and whether she kept her own home and whether she had children, which was perfectly proper as bearing both upon the question as to whether there was a reason why she quit work because perhaps her work at home might have increased, and whether she was well enough to do her work; and so we think the cross-examination of Mr. Green on this matter was perfectly proper.

Subsequently the attorney for plaintiff asked many questions about her former marriage and whether all her children were by a former marriage, and I believe the record shows that she had a son 18 or 19 years old and that he was working for the Cleveland Electric Illuminating Company and apparently contemplated going to college, and the question propounded was:

“Q. And the reason he did not go to college was because you were injured was that it?”

An exception was taken to this and a motion was made to withdraw a juror, declare a mistrial, and continue the case. The motion was overruled and the court sought -to cure whatever damage there was, by admonishing the jury. Unfortunately such remarks before a jury cannot be cured entirely but the court did the very best it could and we doubt that the matter was of enough importance to declare a mistrial and discharge the jury, in view of the manner in which the court took care of this, but it undoubtedly showed the jury that this woman intended to give her son a college education and was prevented by her so-called injury, and it might have had an effect upon their deliberation. Anyway it was an improper matter to get before the jury and we think it had something to do with the excessiveness of the verdict; so we have come to the conclusion that we will not reverse the verdict but will order a remittitur in order to make the verdict conform more to what we think the evidence would warrant, and the judgment of this court is that a remittitur of $1500.00 from the verdict be made and if defendant in error will not accept such remittitur the verdict and judgment will be reversed because of misconduct and because of excessiveness of verdict. If the remittitur is accepted, the judgment will be affirmed in the sum of $2500.00.

Sullivan and Levine, JJ, concur.


author: JUSTICE, J.

text:
    QUIGLEY v CLEVELAND ELECTRIC ILLUMINATING CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided June 17, 1929
    Messrs. Howell, Roberts & Duncan, Cleveland, for Quigley.
    Mjessrs. Squire, Sanders, & Dempsey, Cleveland, for Illuminating Co.
    HUGHES and JUSTICE, JJ. (3rd Dist) and WILLIAMS, J., .(6th Dist) sitting.
   JUSTICE, J.

It is the claim of the plaintiff that the foregoing facts tend to prove the claimed fraud with its resultant damages and that in directing a verdict for defendant the trial court invaded the province of the jury and thereby committed such error as calls for a reversal of the judgment. With this contention we are not in accord.

Admittedly plaintiff had, prior to the meeting of November 17, told John Zimmer that he had shown the property to a representative of the defendant company. Mr. Zimmer was treasurer of the United Banking & Trust Co. and represented the owners of the property in looking after and caring for it. Manifestly his knowledge of plaintiff’s activities regarding the property is chargeable to the owners . of the property.

The fact that the representatives of the owners at the meeting of Nov. 17th had no knowledge of the part taken by plaintiff in the deal, is, of course of no consequence.

In Neal vs. Cinn. Union Stock Yards Co. 1st C. C. (NS) 13, the court held: “While the corporation only is chargeable with that knowledge which comes to each of its servants within the scope of the duties of each of its servants respectively, the corporation as the common head, brain center so to speak, must be held to have the composite knowledge which comes to it through the channels of its several servants. It is not necessary that any one servant should know all the facts. If it were, all a. corporation would have to do would be to limit the scope of the duties .of each servant and the corporation could never be held to know all about anything.”

In the instant case the owners in law knew, prior to the meeting of Nov. 17th, that plaintiff had exhibited the 'property to defendant company. It therefore is of no moment whether defendant through its president made or did not make the claimed representations at the meeting of Nov. 17th, as clearly the owners could not have been deceived by representations which they themselves knew to be false when made. Obviously plaintiff is not entitled to any relief whatsoever in the premises. ,

It occurs to us that further comment is unnecessary. True, there are other questions presented by counsel in their arguments and written briefs, — for example, whether or not plaintiff’s claim comes within the inhibition of Sec. 8621 G. C. and whether or not the admitted settlement is a defense to said claim; but as to them, we express no opinion. It is not necessary for us to do so in disposing of this case.

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

Hughes and Williams, JJ, concur.


author: VICKERY, PJ..

text:
    BAER et v WOLFE et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Decided July 1, 1929
    Messrs. R. A. Kennedy, Esq., and Quigley & Byrnes, Cleveland, for Baer et.
    Messrs. Bartholomew, Leeper & McGill and A. E. Emmerman, Esq., Cleveland, for Wolfe et.
   VICKERY, PJ..

The defendants below and defendants here admit that their building is built out within 28 feet on one side and 29 feet on the other side of the street line, but the evidence shows that other buildings, one immediately adjoining, which they themselves built, as it appears, was built 29 feet from the street line, and that plaintiffs did not object, or. at least did not make their objection known until that building had been erected; and it is, therefore, argued that the plaintiffs are estopped from preventing the erection of the present building in its proposed location. There would be more in this argument, if the building, immediately adjoining it had been built by some other person rather than by the defendant himself. The defendants seem to have been successful in erecting that building in violation of the restriction and so thought they could do likewise with respect to the building in the instant case.

Their argument so far as this building is concerned, is not tenable, but there does not seem to be much reason if the defendants were permitted to build the other building, to now stop this particular one, because whatever view of the street was obstructed by the erection of the other building, this building does not interfere any more with the view than the building that has been erected, which, it is admitted, the plaintiffs stood by and saw erected without interference, although it is said they did not know that restriction was being violated.

But there is a more serious objection than that, and. that is that the record shows that the plaintiffs’ own building, is built out 35 feet to the street line. In other words, the plaintiffs themseives have violated the restriction, and are seeking to hold the defendants strictly to the set back line of forty feet while they themselves have built out five feet over that line: and the record in this case shows that of the seven houses built on this area, at least four of them are built out into the restricted strip, and the plaintiffs are of these offenders, and so we have the two questions: one that they permitted the defendants to build a double house out 29 feet, about the same distance that the present building is being erected, which is adjoining it; and the other fact, that they are estopped from pleading a strict living up to this building line restriction because the plaintiffs themselves violated it, and ,are now violating the set back line for they have built at least five feet over the line towards the street; so the plaintiffs are in no position to invoke the principle of equity to compel the other party to live strictly up to the set back line.

We have no hesitancy in saying that, if the plaintiffs had kept their own building back in its proper position, that it would hardly be tenable for the defendant to plead their own wrong in building out the one property that had been built before. over the set back line.

But taking, the whole record together, we can come to no other conclusion than that because of the violation of the restriction by plaintiffs, they are in no position to enforce it.

The decree of the court will, therefore, be for the defendants. Order see journal.

Sullivan and Levine, JJ, concur.


author: PARDEE, J.

text:
    LEONARD v CLEVE ELEC ILLUMINATING CO
    Ohio Appeals, 8th Dist, Lorain Co
    No. 493.
    Decided October 4, 1929
    Messrs. Webber & Symons, Elyria, for Leonard.
    Messrs, Fauver & Fauver, Elyria, for Cleve Elec Ilium Co.
   PARDEE, J.

We have examined the petition and the evidence offered thereunder in the preliminary hearing, in the Probate Court, and we find that the petition does contain sufficient allegations as to the necessity for said appronriation, and that said necessity, so alleged, is a public one, and that the evidence offered upon the trial to sustain said allegations was sufficient.

As to the second error, the bill of exceptions shows that a letter written by the company to said plaintiff in error was offered, which shows that the company offered the plaintiff in error a certain sum of money as compensation and damages for the property of the plaintiff in error taken by said company. Said letter contains a provision that-if said offer is not accepted by said plaintiff in error by a certain time, it would be considered by said company as a refusal by said plaintiff in error to accept its offer.

The plaintiff in error claims that this was an insufficient showing of inability to agree with said plaintiff in error; but with this contention wé do not agree. This letter shows upon its face that it was an original duplicate of a letter given to said plaintiff in error by said company, and is some evidence of inability to agree with said plaintiff in error; and in fact, there was no evidence to the contrary. The trial court having found, upon this state of the record, in favor of said company, we are unable to say that said finding, is manifestly against the weight of the evidence.

We are therefore unanimously of the opinion that the errors alleged by the plaintiff in error and relied upon by him for a reversal of the judgment, are insufficient to justify a reversal. The judgments of the Probate Court and of the Common Pleas Court are therefore affirmed.

Funk, PJ, and Washburn, J, concur.


author: WASHBURN, J.

text:
    McALLISTER et v HOLOWECKI
    Ohio Appeals, 9th Dist, Lorain Co
    No. 504.
    Decided October 4, 1929
    Messrs. Stetson & Butler, Elyria, for McAllister et.
    Messrs. J. W. DeCumbe,' Cleveland, and Anthong Nieding, Elyria, for, Holowecki.
   WASHBURN, J.

It is apparent that the action is one at law to recover damages for the breach of a contract, and it is fundamental that Holowecki’s right to recover on such a cause of action depended upon his ability to prove that he had duly performed all of the conditions upon his part to be performed, and that the contract was breached by McAllister.

On June 11, 1927, the parties met and Holowecki decided to purchase the farm from McAllister and paid $50 to bind the bargain, receiving a receipt therefor signed by McAllister; and then on June 13, 1927, the parties again met and Holowecki paid to McAllister $450, and a formal contract was entered into, in which Holowecki agreed to pay the balance of the purchase price, $7180, on July 1, 1927, at which time McAllister agreed to deliver to Holowecki a deed and abstract of the property. The parties did not meet on July 1, nor until July 6, when McAllister had the abstract and had made arrangements with a notary public to draw the deed, and on that day Holowecki appeared at the home of McAllister prepared to pay the balance and close the deal. He had with him a real estate broker who was to pass upon the sufficiency of the abstract for him. The broker did not approve of the abstract and suggested that McAllister furnish a certificate of title or a title insurance policy from the Guarantee Title & Trust Co., and that suggestion being agreeable to the parties, it was agreed that they should meet again after such certificate had been obtained.

While at this time Holowecki was ready to pay the money and take the property if the abstract was satisfactory, there was no breach of the contract by either party. McAllister had a good title and was willing to convey it and accept the money, but Holowecki was not satisfied with the abstract, and their conduct and agreement at that time was such that neither party could claim that the other had breached the contract.

Thereafter, McAlliste" sent word to Holowecki that he had the certificate of title, and on July 14 Holowecki wrote a letter to McAllister acknowledging receipt of that information and asking that the certificate of title be transmitted to him to determine whether or not the same was satisfactory.

On July 28, McAllister and Holowecki and their wives and the brother of Holowecki met at the office of Holowecki’s broker, and McAllister produced the certificate of title, which the broker pronounced satisfactory, and Holowecki, being informed that McAllister was there, ready, able and willing to execute the deed and carry out the contract, said that he did not want the property then — that he had changed his mind; and he thereupon demanded the return of the $500 which he had paid, which was refused, and he later brought this action.

Upon Holowecki’s own testimony, it is apparent that there was no breach of contract by McAllister at the July 6 meeting, and there is no claim that he breached the contract at the July 28 meeting. Holowecki having failed to establish a breach of the contract by McAllister, cannot, of course, recover damages for _a breach which did not occur.

Can he recover any part of (the money paid, upon the theory that tliere was a rescission of the contract?

It is a sufficient answer to such a claim to say that this is not an action to recover money paid upon a contract which has been rescinded; there is no claim in the pleadings, nor is there any evidence tending to prove, that there was a rescission, mutual or otherwise, of the contract; Holowecki’s refusal to close the deal and request for the return of his money may be construed as an offer to rescind but such offer was promptly rejected by McAllister.

Holowecki, then, cannot recover in this action for a breach'which did not occur, nor upon a recission which did not take place.

It is claimed, however, that because of certain terms in the contract, McAllister has no right to retain more than $50 of the $500 paid, and that therefore Holowecki is entitled to recover back $450, even though McAllister did not breach the contract and Holowecki did. That provision of the contract reads—

“And it is further agreed, between the parties hereto, that the party that shall fail to perform this agreement on their part, shall pay to the other the full sum of $50, as liquidated damages.”

While we do not regard the mere use of the words “liquidated damages” as necessarily limiting the party’s right to recover damages to the amount of $50, still, if that be the effect of the use of such words in this case, and Holowecki, if sued, could be made to pay only $50 for his breach of the contract, how does that enable him to recover from McAllister, in ,an action for damages? And if it does give him a right to recover damages, is he not limited to the $50 stipulated as liquidated damages?

We do not think that said provision of the contract enables Holowecki to recover damages in any amount in an action at law for ,a breach of the contract, where there is no breach, except by himself, nor does it enable him to recover in an action as upon rescission when no rescission is claimed or proved.

The pleadings presented issues triable to a jury, and if the case had been tried to a jury, the trial judge would have had to charge the jury that if Holowecki failed to prove that McAllister had breached the contract, the verdict should be for McAllister, and such should have been the judgment when the case was tried' to the court.

For error in rendering judgment for Holowecki, when it should have been for McAllister, the judgment of the Common Pleas Court is reversed; and proceeding to render the judgment which that court should have rendered, the petition of Holowecki is dismissed at his costs.

Funk, PJ, and Pardee, J, concur.


text:
    ELWORTHY-HELWICK CO v LORIG
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10,125.
    Decided October 7, 1929
    ~ Messrs. White, Hammond, Brewer & Curtiss, Cleveland, for Elworth-Helwick Co.
    Mr. A. W._ Heinrich, Esq., Cleveland, for Lorig.
   VICKERY, PJ.

Now there is nothing in this record to show that Mrs. Lorig consented or agreed that the balare of the money that was due her should be applied in that manner. It is true, as it was argued, that the papers were all signed in her presence, but if one reads her testimony, it will show that it was not explained to her what the transaction was, or what the papers that had been signed were, nor did Helwick anywhere claim that he informed her that the balance of this money was to be used up in lots that her husband had purchased or was to purchase, nor is there anything in the record to show that she had agreed that this money might be so used, and if it was used, according to this record, it was used without her knowledge or consent. But the record shows that the lots were sold to her husband by contract, after she Jaad demanded her money upon this deal. There was not much purpose in her making a sale of this property if the entire proceeds of it should go to Elworthy-Helwick Company by way of commissions or payments upon other lots which have since been re-claimed by the company because the payments were not made. As a matter of fact the contract was taken in the name of an employe of The Elworthy-Helwick Company.

There is nothing in this record which will show that the plaintiff below either consented to the use of her money in the way that it is claimed it was used, nor were the transactions under such circumstances that she would be estopped. It is very difficult to learn just what did take place. Apparently she signed one paper, the deed, because the title was in her. The record undoubtedly shows that at the time this transaction was completed and this note was turned over to The Elworthy-Helwick Company, the company owed the palintiff below $635.75, as was figured by them then and there.

This action was brought to make The Elworthy-Helwick Company account for the money and the^ claimed that they had accounted for it all in the manner that has already been outlined, by the purchaser’s assumption of the mortgage of $5000, by the commission that was paid' to the company, the costs of escrow, and so forth, and by the balance of the money being applied upon these lots that were purchased ..from The Elworthy-Helwick Company by John Lorig, the husband of this woman; bu£, as already stated, inasmuch as there was no evidence, either express or implied, that she consented to this sort of an arrangement, The Elworthy-Helwick Company could not appropriate her money to the payment of lots which her husband had bought of jhem, even though it had been done prior to her demanding the money.

We think the court below arrived at a correct and proper conclusion in this lawsuit. There being no errors in this record, the judgment will be affirmed.

Sullivan and Levine, JJ, concur.


text:
    AUTOMOBILE HOSPITAL CO v GRISSOM et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9868.
    Decided October 7, 1929
    Mr. S. J. Friedman, Esq., Cleveland, for Auto Hosp Co.
    Messrs. Hole, Jeremiah & Jewitt, Gross-man & Grossman, C. W. Swartzel, Esq., and Ford, Taylor & Hasselman, all of Cleveland, for Grissom et.
   VICKERY, PJ.

Now the statement of facts submitted to the court in this case shows that when Grissom bought this land and gave his note for the full amount of the purchase price, Mrs. Grissom also signed this note. Subsequently this note was put in judgment and a levy was made upon her land. Now under the admissions of counsel for Mr. Buehler, we do not see how the judgment of the Common Pleas Court could have been rendered. We also think another equitable principle might be invoked, for even if the vendor’s lien existed, the vendor having additional security, the equitable doctrine would be invoked that where one party, the plaintiff in this action, has but one security, to-wit, the security of the land in question and the vendor has two securities, — the vendor’s lien, if he had not waived it and the additional security of the wife of the vendee, — that he would be compelled to exhaust the wife’s property before he could resort to the property upon which the plaintiff had secured its lien, but under the frank admissions of counsel in this case that principle is not necessary to be invoked. It is admitted in this court or proven that Buehler did not rely upon his vendor’s lien; that he took additional security, that is, the signature of the wife of the vendee, and the attorney representing Buehler admits that that destroys the vendor’s lien.

Under those circumstances we think that a proper judgment in this case should be: The first and best lien upon this property, or the funds realized from its sale, is the plaintiff’s judgment; the second is Buehler’s for the unpaid portion of the purchase price; and the third, The Union Trust Company’s mortgage, after satisfying two prior small lienholders. A journal entry may be drawn to this effect.

Decree, order see journal.

Sullivan and Levine, JJ, concur.


author: SULLIVAN, J.

text:
    MALLO et v DOVER (Village) et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9688.
    Decided April 29, 1929
    R. G. Curren, Cleveland, for Mallo et.
    Gilbert Morgan, Cleveland, for Dover (Village) et.
   EPITOMIZED OPINION

When property is appropriated for public use it is essential that the owner have notice thereof in order to render an assessment therefore valid, and there must be strict compliance with statutory provisions before the court may obtain jurisdiction. So held in an action for an injunction to restrain the collection of a special assessment for the construction of a storm and sanitary sewer along a road in a village, wherein it appeared that the assessment was by front footage on acreage property, that such property would not be benefited since the sewer was higher than the property, and that, in any event, there would be no immediate benefit, but rather a benefit in future.

Opinion by

SULLIVAN, J.

VICKERY, PJ, and LEVINE, J, concur.


text:
    DEIBEL v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9987.
    Decided June 28, 1929
    Geo. W. Spooner, Cleveland, for Deibel.
    Ray T. Miller and P. L. A. Lieghley, for State.
   SULLIVAN, J.

This reviewing, court does not have to determine the question as to whether plaintiff in error is guilty or innocent of the crime charged. Its only province and duty is to ascertain whether the record is free and clear from any error which is prejudicial to the rights of plaintiff in error and with this purpose in view we observe that as to the question of the unlawful manner or speed at which the automobile was driven, and as to whether plaintiff in error was in a state of intoxication or under the influence of alcohol, that there is a conflict in the evidence, and we search it for the purpose of ascertaining whether there is evidence of a credible nature under the rules of criminal law, to satisfy the mind beyond the existence of a reasonable doubt, of the guilt of plaintiff in error under one or more of the charges upon which he was tried. It is unnecessary to review the record in detail other than to say that in our judgment we do not find on the question of the weight of the evidence any error of a prejudicial nature which warrants a reversal of the verdict.

We have examined the assignment of error as to the admission and exclusion of evidence, and we have come to the conclusion that the court below committed no prejudicial error in its ruling thereon and for this reason we find no ground for the reversal of the verdict of the jury and judgment of the court.

On the question as to the charge of the court, from an examination of the same, we have come to the conclusion unanimously that there is no prejudicial error and thus no cause in this respect to disturb the verdict. The charge of a court must be taken as a whole; that sentences may be clipped therefrom which, standing alone, appear as error, is a condition which attaches to the expression of language in any form and instructions to jury are no exception to the general rule. As to whether there is prejudicial error in a charge is not to be determined by an excerpt therefrom. It must be determined from the entire charge. The same principle that applies to the construction of a contract, the interpretation of a will or other instrument of writing, may be applied to the question as to whether there is error in the instructions which a court may give to the jury. The specific complaint made by learned and able counsel for plaintiff in error with respect to the charge, is that the court omitted the words, “prima facie” in one sentence or paragraph, bearing upon the charge under 12603 GC. which is known as the “speed limits” section. We find however, from a reading of the entire charge that the court repeatedly used these words in question, not only when he read them from the statute itself, but when he undertook to explain in specific detail in his own language the meaning and significance of the statute. We find in these various references where the court repeatedly uses these words, that there could have been no question in the jury’s mind but that the words “prima facie” must be considered by them in the determination of the issue as to speed, which was submitted to that tribunal. That there could have been any misconception as to the wording of the law and the interpretation given it by the court on the part of the jury, with respect to these words, there can be no question, because the stress and emphasis of the court bearing upon this language under discussion, places the question beyond any doubt.

From a reading of the charge by a layman there could be no other deduction but that the term “prima facie” must be applied and the meaning to be gathered from a reading of the charge by a layman is an idication that the same significance would be given to the instructions of the court when the charge was delivered to the jury.

The decision of the supreme court that where a court charges right in one instance, and_wrong in another instance in the same charge, that there is no way of determining which method the jury follows, has no application to the case at bar, because there is no such situation in the instructions given by the court. The language in the instant case is of such a nature that there is no other conclusion excepting that the jury thoroughly understood that the court meant that it should understand that the words “prima facie” were applicable in their consideration and determination of the evidence in the case, relating to the violation of what is known as the “speed limits” law, to-Wit, Sec. 12603-1 GC. '

We have searched the record for prejudicial error in respect to the assignments of error charged, and in all other indications of any possible error, but we are unanimously of the opinion that none exists, in the' sense upon which a reversal can be founded, to-wit, error prejudicial to the rights of plaintiff in error.

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

Vickery, PJ, and Levine, J, concur.


text:
    WEENINK & SONS CO v WELDY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9855.
    Decided September 16, 1929
    Arthur P. Gustafson, Cleveland, for Weenink & Sons Co.
    Carl D. Aigner and F. D. Bishop, Cleveland, for Weldy.
   SULLIVAN, J.

Our interpretation of the language of the mortgage precludes any reference on the part of this language to computations on defaulted interest because no interest had been paid and reference could only be had by the use of this language, to the principal named in the notes. If the mortgage so read that it referred to overdue interest then we think there would be some ground for the holding of the court below because there w,as no provision in the notes as to any payment excepting six percent for defaulted interest and it might reasonably be said from the record that the language of the mortgage having reference only to interest was not repugnant to any clause or provision contained in the notes.

It is impossible to exclude the importance of the notes from the transaction even though the suit is upon foreclosure of the mortgage because if the notes had been disposed of certainly upon s.uit there could be no recovery for more than six percent notwithstanding the clause in the mortgage for eight percent because figuring it at eight percent would produce an amount that was more than a computation of the interest on the principal of the notes warranted or demanded. In order to recover for more than the amount of interest named in the notes it would not only have to be shown that the transaction was simultaneous but that no situation arose that would make the notes repugnant to the mortgage on such a vital proposition as the rate of interest. The mortgage was the security for the. indebtedness. The indebtedness consisted of notes and the total amount due thereon would have to be figured according to the contents of the notes unless it would áppear that the transaction was one in entirety and that the parties agreed to the opposing terms but even then it is our judgment that the figuration could not be at eight percent because of the aforesaid repugnance. A reasonable construction of the clause in the mortgage referring to 8% is that the person who drafted it used the term “overdue payments” when from the circumstances in the case it referred to principal instead of interest and it is clearly as reasonable to conclude that when the language “overdue payments” was used, by an error of expression, the word “interest” was not included and if it had been, the notes and mortgage might have been considered harmonious and the clause in the mortgage as to eight percent on defaulted interest instead of payments would probably be enforceable although we do not pass upon this question excepting by way of obiter dictum at this time.

We think a case that applies to our views of the situation is McClelland v. Bishop, 42 OS. 113.

Thus holding the judgment of the lower court is modified, and judgment will be entered as modified on the ground that the judgment is excessive under the figuration of the rate of interest inserted in the mortgage.

Vickery, PJ, and Levine, J, concur.


author: HUGHES, J.

text:
    OBERLANDER v SEARS et
    Ohio Appeals, 3rd Dist, Crawford Co
    No 1198.
    Decided July 17, 1929
    Charles F. Schaber, Bucyrus, for Ober-Iander.
    J. Dudley Sears, Bucyrus, for Sears et.
   HUGHES, J.

Section 11738 GC was formerly Section 5441 of the Revised Statutes, and any personal property, including money and credits, up until 1925, could be held exempt under this statute in lieu of a homestead not exceeding five hundred dollars in value. There was a provision, however, that such selection and exemption shall not be madff. by the debtor or allowed to him from any money, salary- or wages due from any person, partnership or corporation as against any claim, debt or demand for necessaries, excepting to the extent of ninety per cent of such money.

By the amendment of this Section in 1925, found in Volume 111 Ohio Laws at 383, it will be observed that the phraseology has been changed to read that such selection and exemption shall not be made by the debtor or allowed to him from money, salary or wages due to him from any person, and so forth. But nothing is now included.in this Section regarding necessaries, so that the statute now reads, this exemption shall not be made to the debtor out of ,any money, salarv or wages due him from any person. Hence, the court below was in error in allowing this money as exempt from execution, and the judgment is reversed.

Before Judges Hughes, Justice and Crow.


text:
    AMERICAN SHIP BLDG CO v HUDZIECZKO
    Ohio Appeals, 9th Dist, Lorain Co
    No. 499.
    Decided October 4, 1929
    F. M. Secrest, Cleveland, for Ship Bldg Co.
    Cerrezin & Wilson, Cleveland, for Hudzieczko.
   WASHBURN, J.

There was no evidence that said records were kept in the usual course of business or as to how said records were kept, or that the witness kept the same and refreshed his recollection therefrom, or that he had any personal knowledge in reference to the matter; and in the absence of some such evidence, said records were clearly mere hearsay and incompetent, regardless of whether or not the “best evidence” rule applied.

We hold that the record does not disclose any error in said ruling of the trial court. If there was error, it clearly appears that it was not prejudicial, because the company, without objection, had the full benefit of the witness’s testimony as to what the records which he had looked up, showed.

Under the rules governing reviewing courts, we find that the verdict is not manifestly against the weight of the evidence and is sustained by sufficient evidence.

Funk, PJ, and Pardee, J, concur.


text:
    LINK et v KURITSKY et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9297.
    Decided October 7, 1929
    H. J. McGinness, Esq., Cleveland, for Link et.
    Messrs. Davis, Hartstein & Cole, Cleveland, for Kuritsky et.
   VICKERY, PJ.

It is claimed, and the basis of this action by the plaintiff below was, that when the goods had been sold November 5th, an arrangement was entered into whereby for $235 Link would release the plaintiff from further obligations on the store and would re-pay Three Hundred Dollars - which he had been paid in advance. It is claimed, I think, and the proof shows, that the plaintiff vacated the store and Link took possession of it and gave it over to someone else, either for rent pr otherwise. Link apparently had control of it, so that it could be used foj the storing of Christmas trees. The record shows that he received something like Twenty-five Dollars for it; but that does not make much difference. He apparently assumed control of the store and the court below must have found that in order to reach its judgment.

The court- had the parties before it, heard all the evidence and found that the agreement between the plaintiff and defendant had been entered into and had been acted upon; that the store had been surrendered; that the landlord had taken possession; that the promise to repay the money was made, and so he entered up a judgment for that amount of money.

Now it is claimed that such a promise was within the statute of frauds, and, it being verbal, would be unavailing. This might be so if the defendant had retained the property and had not, as a matter of fact, surrendered possession to the plaintiff. In other, words, if the contract had been executory, it may have been within the statute of frauds and according, to the citation of the case by the plaintiff in error that would seem to be the law; but in this case the contract had been executed on both sides and the statute of frauds never applies to executed contracts. There is no reason why it should, and so the doctrine that the plaintiff- in error seeks to invoke has no application. The only questions were whether the contract was made; whether the $235 had been paid; whether the property had been vacated and whether the defendant below, the plaintiff in error here, had promised to repay the $300; and the court finding all those facts in favor of the 'plaintiff below, we cannot say that the finding is so manifestly against the weight of the evidence that we would be warranted in interfering.

There being no error in this record, the judgment of the court below will be affirmed.

Sullivan and Levine, JJ, concur.


text:
    ODENKIRK v VRETMAN et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10,004.
    Decided October 7, 1929
    MIessrs. Wheeler & Adrion, Cleveland, for Odenkirk.
    Messrs. Orgill, Maschke & Wickham, Cleveland, for Vretman et.
   VICKERY, PJ.

It seems that the court below treated this whole matter as an option; that is, if the defendants had organized this corporation, such corporation would have had the right to have had an assignment of this patent, upon the giving or tendering of its promissory note, and the plaintiff would have been compelled to assign this patent, it having been an accepted option by performing the things the defendants were to do, the corporation being formed in accordance with contract, and it paying, or tendering payment of the money or securities that the parties had agreed should be paid or given; and if the corporation failed to perfom the other part of its contract, that is, to sell enough of the product of the patented article to insure a royalty of Five Hundred Dollars per month, then the. plaintiff might have cancelled his contract.

In this case there never was any body in existence to accept the option. It was contemplated by these parties that a corporation, not the defendants as individuals, was to perform the terms of the contract. They were simply “go-betweens”, and if they had formed a corporation and it had agreed by performance of the conditions of the option, then the other party would have been obligated to perform. But this was not done and there is nothing in this contract to show that the individuals intended to contract for themselves personally. It might be that they were not even to become members of the corporation. They were simply acting as “go-betweens.”

Now that was the situation when this case was reached for trial. The statement of counsel for the plaintiff in this ease showed that he cancelled this contract, or, to use exact words, “in July, 1926, about nine months after this agreement was entered into, plaintiff himself cancelled the contract and is bringing this action for damages.” Whether this was an inadvertent statement to make, it was surely unwise, and if the court acted upon that statement, the plaintiff had no right of action. If he cancelled the contract he surely could not have brought damages for its breach. Up to that time, the date when the plaintiff could cancel the contract had not yet arrived, even if the corporation had been organized in accordance with the agreement, because it was only two months after the seven months from the date of the contract, and after the seventh month the corporation still had six months before the plaintiff had the right to cancel his contract, if the contract had been entered into, and so he was premature in cancelling, his contract.

Now he claims the right to maintain this action on the ground that there had been a breach of the contract by the two defendants in refusing to go forward and announcing to him that they would not do anything further in regard to it. It must be remembered that the contract was not with them. A contract was to be made with a -corporation that was not in existence, and there is nothing in writing by which the defendants obligated themselves to be bound by the terms of this contract. Of course, if they had contracted intending to bind themselves and had repudiated the contract, or, in the words of the law books, renounced the contract, the renunciation could be treated as a breach and would, excuse the offer of performance upon the other side. These two men were not to pay any Ten Thousand Dollars. These two men were not to guarantee a royalty of Five Hundred Dollars each month after the seventh month. They were simply and merely “go-betweens” to provide a corporation that would enter into'such an agreement.

The difficulty surrounding the situation is that such a contract could not be made that would be binding" upon anybody. How could two men make a contract that would bind a corporation which must have at least five directors in Qhio? Even if the two men owned all the stock except the qualifying shares for the directors, .the directors could turn down and refuse to make such a contract, and the attempt to bind a corporation that was not in existence, in my judgment, is contrary to public policy and ought not to be tolerated and, in my view, the courts do not tolerate such, contracts.

Now, inasmuch as there was no .liability shown against these two defendants, nor was any liability intended to be assumed by them other than to provide a corporation, it amounted simply to an option which if performed would have ripened into a contract.

An option is nothing more than a unilateral contract. It binds one .side but does not bind both sides, and until the party who has the option does what he has agreed to do and offers to conform to the agreement proposed by the other side, he can withdraw from- it at any time.

Now with this view of the situation, we do not think that the petition stated a cause of action and certainly with the statement of counsel that the plaintiff himself had cancelled the contract, there was nothing ‘ for the court to do other than he did do. There being no error in this record, we can do nothing, further than to affirm the judgment of the court below. It will, therefore, be affirmed.

Sullivan, and Levine, JJ, concur.


author: FUNK, PJ.

text:
    KUSHINSKY v STORCK
    Ohio Appeals, 9th Dist, Lorain Co
    No. 497.
    Decided October 4, 1929
    Robert H. Rice, Elyria, for Kushinsky.
    A.W. Cinniger, Lorain, for Storck.
   FUNK, PJ.

Our Supreme Court has said at least three times that the language used by the court, to wit, “to the satisfaction of the jury,” means more than a preponderance of the evidence and is prejudicial error.

Kelch v. State, 55 OS. 146, at pp. 152-153.
B. & O. R. R. Co. v. Linn, 77 OS. 615.
C., H. & D. Ry. Co. v. Frye, 80 OS. 289.

The Supreme Court has also gone further and held, in the case of Montanari v. Haworth, 108 OS. 8, at p. 14, that such error cannot be ignored under the substantial justice rule.

However, counsel for plaintiff contends that there was no contributory negligence on the part of plaintiff and that there could be no contributory negligence on the part of plaintiff, because he was confronted by an emergency caused by the negligence of defendant, and that he was not guilty of negligence in trying to extricate himself if he acted in such manner as an ordinarily prudent person might act in such a position, even though he did not make the wisest choice that could have been made, and that hence the charge on contributory negligence is not material even if the same is open to the criticism made by defendant.

We cannot agree with this contention of counsel for plaintiff, for the reason that under the pleadings and claims of the parties it is a question of fact to be determined by the jury 'from all the evidence whether or not an emergency was suddenly created by the negligence of defendant, whereby plaintiff was compelled to act instantly, and whether, in view of all the facts and surrounding circumstances, including an emergency, if one existed, plaintiff acted as an ordinarily prudent person would have acted, or whether the collision was caused by any contributory negligence on the part of plaintiff or by the sole negligence of plaintiff.

As to the other four errors complained of in the charge, it will be noted that if they are errors at all that they are all errors of omission rather than of commission, and that while the charge in the particulars complained of may not be as complete and clear as it perhaps should have been and thus subject to some complaint, the record does not show and there is no claim that counsel for defendant called the court’s attention to any of these omissions he now complains of.

As to the verdict being against the manifest weight of the evidence.

We find the conflict in the evidence is such in this case that a reviewing court would not be warranted in reversing on the weight of the evidence, whether the verdict was for either party or a general verdict for the defendant.

Finding that there was error prejudicial to defendant as to the quantity of evidence necessary for defendant to produce on the question of contributory negligence on the part of the plaintiff, the judgment is reversed for that reason and the cause remanded for further proceedings according to law.

Pardee, J, and Washburn, J; concur.


text:
    CHERMENDY v HAZLETT STORAGE BATTERY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9882.
    Decided October 7, 1929
    Mlessrs. Davis, Young & Vrooman, Cleveland, for Chermendy.
    Messrs. Squire, Sanders & Dempsey, Cleveland, for Hazelett Storage Battery Co.
   VICKERY, PJ.

Inasmuch as both questions are argued, I have taken the trouble to read the record in this case as well as the briefs of counsel, to determine whether the court was wrong in directing a verdict, and after reading the entire record of the testimony, it does not seem ,as though the court could have done anything other than he did do, from the manner in which the case was presented.

Whether such a contract was made or not, it surely was not made with the corporation. It was made with the Sales Manager of the corporation, and there is nothing in the minutes of the Board of Directors of the corporation which would bind the corporation, or to show that the Sales Manager had authority to. make any such contract. That is a point that has not been discussed, but to the writer of this opinion it seems to be a salient point.

But aside from that, plaintiff’s own testimony shows that the transaction and sale of a franchise was to be a cash transaction, and he was to receive his pay after -and when the franchise and equipment had been paid for by the purchaser. Now his testimony in the record shows that this had not been done. On the contrary, it shows that it never had been done. It shows that thé defendant company, acting through the man that he claims made the contract with him, refused to accept and fill these orders, for the reason, as the plaintiff gave in his testimony, that the company had entered into an arrangement with some Akron syndicate which apparently had been under discussion before this so-called contract between the plaintiff and this defendant was made through its' sales manager, if such a contract was made.

Now, we do not want to be understood as saying that this plaintiff would have no remedy, because if he went out and secured orders which the company was bound to accept ,and it refused to accept them and to fill them, he might have an action for damages for breach of contract. I am not saying that he would have it in this case, but that would be the form of his action, but he could not, under the testimony in this action, sustain the suit that he had planted against the defendant company in the manner in which he planted it.

After the court had announced his intention of sustaining the motion, which, according to the decision of the Supreme Court in the case of Jacob Laub Baking Company vs. Middleton, 116 OS. 106, was a submission of the case to the court, the court having announced his intention of directing ,a verdict, or sustaining the motion, held that it was then too late for the plaintiff to dismiss his action. Of course, we recognize the right of the plaintiff to dismiss his action at any time before submission to the court or jury, but we ourselevs have held in several- cases that after a motion by the defendant has been made and the court has announced his intention to sustain the motion, it is then too late for the plaintiff to dismiss his action.

We think the court below was right in refusing, to permit the plaintiff to dismiss his action without prejudice after he had announced that he intended to sustain the motion for a directed verdict, and our decision is based upon 115 OS. supra, and a recent decision of our own court, — opinion written by Judge Levine in case No. 9682, Freeman Fiske vs. Annette Bernstein, Feb. 11, 1929.

As to the authority for the court’s position about directing a verdict, we cite the case of Phans vs. Hamburg, et al, 82 OS. page 1.

Therefore, we do not think the court committed any error in directing a verdict, nor in refusing to permit the plaintiff to dismiss his petition after he had announced his decision upon the motion to direct a verdict.

There being no error in this record, the judgment of the court below will be affirmed.

Sullivan and Levine, JJ, concur.


author: MAUCK, J.

text:
    REEVES v STATE
    Ohio Appeals, 4th Dist, Athens Co
    Decided Oct. 9, 1929
    Messrs. Woolley & Rowland, Athens, for Reeves.
    Mr. R. D. Williams, Prosecuting Attorney, Athens, for State.
   MAUCK, J.

The offense charged was that the act complained of occurred on August 22, 1928, and the evidence shows that if committed at all it was committed at that time. The prosecuting witness, a child under the age of sixteen, w,as pregnant at the time of the trial on May 29, 1929, and until after the record in this case was made up. It is agreed that the pregnancy was not the result of the rape claimed to have been consummated by the defendant on August 22. Considering the condition of the prosecuting witness and the sympathy likely to be engendered thereby the defendant vigorously protested against going to trial at the time he did and now assigns as an error that he was forced to trial under these circumstances.. We find no error in this respect. It may have been a misfortune for the accused but the processes of the criminal law ought not be halted because an incident of this character might possibly result in a disadvantage to the accused.

Further complaint is made about a sentence in the general .charge of the court near the bottom of page 161. We are inclined to the view that the only trouble with the sentence complained of is that the word not is used twice where it should have been used but once. The general charge was so clear, however, upon the point involved in this sentence that no prejudice resulted to the accused. It was fairly clear that the sentence referred to, together with the context, charged that the first count of the indictment, that is the count charging rape with force, inr eluded three other crimes, to wit: assault with intent, assault and battery, and assault, and that the defendant might be found guilty of any of these.

The defendant requested that the instruction be supplemented by charging that the jury might find a verdict of assault and battery or assault under the second count of the indictment as well as under the first. This the court refused to give, and this was error. Snyder v. State, 92 OS. 167. In giving an instruction relating to included crimes the court is bound to consider the record for the purpose of ascertaining whether a verdict for a lessor offense might be warranted by the evidence. In the instant case the trial court was evidently of the view that a verdict for a lessor offense might be returned under the first count of the indictment, and it is impossible to see why if such a verdict were good under the one count a like verdict would not be good under the other count. In this case the prosecuting witness was practically the only witness for the state. She is a girl of very weak mentality or without any moral sense at all.. The jury must have known that she was capable of lying, and had lied outrageously in this case either against Reeves or against other parties who had been involved in the trouble. The jury might have been willing to have believed a part of her story without believeing it all. Indeed the record shows that the jury did actually believe a part of her story and found that in part her testimony was untrue. If the jury had taken the testimony of the prosecuting witness as entirely true it' would have found the accused guilty of rape by violence. It seems to follow that as the jury rejected part of the prosecuting witness’ testimony under an instruction that properly permitted them so to do it might have rejected still more of it and have found that penetration did not ensue and that the accused was guilty of some lesser offense than rape by consent if the instruction authorized by the Snyder case had been given. While we do not disturb the verdict upon the ground that it was opposed by the weight of the evidence we feel such doubt in the case that we are constrained to the view that the accused ought to have had the benefit of every avenue open to him under the law, and that includes a charge for the lesser grades of crime embraced In the charge of rape.

For failure to so charge as requested the judgment is reversed and the case remanded for a new trial.

Middelton, PJ, concurs. Blosser, J, not sitting.


author: KUNKLE, PJ.

text:
    EUCLID STORES CO v. WILLARD et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10,242.
    Decided July 1, 1929
    Messrs. Stanley & Horwitz, Clveland, for Euclid Stores Co.
    Messrs. Garfield, Cross, MacGregor, Daoust, & Baldwin, Cleveland, for Willard et.
    KUNKLE, PJ, ALLREAD & HORNBECK, JJ, (2nd Dist) sitting.
   KUNKLE, PJ.

It appears from the evidence that the railroad tracks in the re,ar of the property in dispute were elevated; that there is a cement retaining wall some seven or more feet in heighth on the line between the property in question and the railroad. Frgjn one of the exhibits introduced in evidence, there was shown a sign stating that the property there located was the property of the railroad company. The record shows that such sign and the cop.cr.ete retaining wall were in their present '’ondition when the lease was executed in 1920.

The secretary of the plaintiff admits that he saw the sign and concrete retaining wall prior to the transfer of the lease. It appears from the evidence that the defendants Willard and Babin entered into a contract for the execution of the lease in question on July 9th, 1920, and that under such contract the defendant Babin was to pay to Willard $10,000 as a consideration for the execution of the lease and in such contract Babin asknowledged that he had examined and approved an abstract of title to said property and which abstract contained, a similar description of the premises. The record shows that plaintiff in error was incorporated July 16th, 1920, and that on July 24th, 1920, the plaintiff agreed to purchase the lease in question from the defendant Babin for the consideration of $15,000, and that the defendants Willard consented to such an assignment by Mr. Babin on July 27th, 1920. We think the evidence shows that the execution of the lease in question represents a transaction between the Willards and the defendant Babin and that the plaintiff was not a party to such original contract for a lease.

Under the facts disclosed by the record, we are of the opinion that the right of action to secure a .cancellation of this lease is personal to Mr. Babin and will not accrue to plaintiff. We think the decision of our Supreme Court in the 60 OS. at page 540 is decisive of this question.

We also think the record fairly discloses from the description contained in the lease and from the physical characteristics of the property itself that neither Babin ñor the plaintiff when it secured a transfer of the lease from Babin could have been misled as to what constituted the property they were receiving under the lease. The property was turned over to plaintiffs; they went into possession and were continuously in possession thereof for about seven (7) years before making any complaint about a defect in the description.

We think this case falls within the reasoning of our Supreme Court in the case reported in the 45 OS. page 368 and other cases cited by counsel.

The case at bar is one in which the equity side of the court is invoked for the purpose of securing a cancellation.

We are of the opinion that the plaintiff cannot accept a property where the boundaries complained of are marked physically and occupy the same for substantially eight years and then seek a cancellation of the lease on the ground that they were misled as to the boundaries of the property so used for that period of years.

It will be noted that in the case at bar in order to give the boundary line in question the length of 62 feet, it will be necessary to disregard the length and location of the northerly boundary line stated in the lease as well other points established by the lease.

From a consideration of the entire evidence, we are of opinion that the same decree should be rendered in this court as was rendered in the court beloyr. Decree accordingly.


author: LEVINE, J.

text:
    PECK v CLEVELAND TRUST CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9639.
    Decided June 17, 1929
    Messrs. Wilkin & Wilkin, Cleveland, for Peck.
    Messrs. Luther Day and R. E. Williams, Cleveland, for Trust Co.
   LEVINE, J.

It will be seen that in order to have returned a verdict in favor of Edwin O. Peck and John Taylor Peck, infant, that the jury must have found that the decedent was guilty of actionable negligence in the driving and operation of his car and with that finding on the part of the jury it would necessarily follow that John A. Peck was likewise entitled to recover unless it was found by the jury that he was guilty of contributory negligence. The court submitted to the jury the question of contributory negligence on the part of John A. Peck in the instructions given to the jury before argument and also in the general charge. To justify the action of the court we must look to the record and from that determine whether there was any evidence whatsoever upon which the claim of contributory negligence on the part of plaintiff in error could be predicated.

It is well settled that there is no “imputed negligence” known to the law of Ohio. A passenger who has no interest in the operation of an automobile and no control over the driver is answerable only for his own acts or omissions. The jury apparently found that John A. Peck was guilty of contributory negligence in that he failed to remonstrate with the driver of the car. As we understand the law, the fact that a passenger or guest in on automobile must exercise ordinary care to discover danger or avoid danger, does not compel him to become virtually a driver or to assist in driving when a person properly in charge of the ear assumes control of its operation. A passenger may safely assume that the driver knows how to handle his car and that he is drivirig it in a proper manner and is able to take care of it. He is not called upon to constantly remonstrate with or talk to the driver. It is not his duty to interfere with the driver in the way of making suggestions or otherwise unless something occurs which would make it his duty to do so. Logan County vs Bicher, Admr. 98, OS. 432.

It is very often the case that interference upon the part of a guest in an automobile will create and excite danger rather than prevent it. If a danger appears to the eyes of the guest then the circumstances may call for the guest and passenger to warn the driver. An examination of the record as disclosed by the testimony of John A. Peck indicates that decedent was going aiong satisfactorily until he attempted to pass the car ahead of him. At" that very moment, Edwin O. Peck called attention of the driver. All would have turned out satisfactorily except that decedent lost control of his car. Were John A. Peck to have remonstrated or warned the driver as he was actually passing the car ahead it would have accomplished nothing. The remonstrance of Edwin O.. Peek did not avail him. It all happened quickly and in our opinion under the circumstances any additional ’ warning or remonstrance on the part of John A. Peck would not have availed any.

There is ample law covering the duty of a guest. The case of Cleveland Railway Co. vs Heller, 15 App. 346 is very explicit.

See also Schlosstein vs. Bernstein, (Cal) 142 Pac. 324.

Gordon v. Opalecky (Md) 137 A. 299.

Brown v. Davis (Cal) 257 Pac. 877.

Leclare v. Doudreau, (Vt) 143 A. 401.

In view of the settled law on the subject we hold that there is no evidence presented in this case which justifies the action of the trial court in submitting to the jury the question of contributory neglignece on the part of John A. Peck. We further hold that the finding of the jury in holding that John A. Peck was guilty of contributory negligence and thus preventing a recovery on his part is manifestly against the weight of the evidence.

Holding as we do the judgment of the common pleas court is reversed and the case remanded for further proceedings according to law.

Vickery, PJ, and Sullivan, J, concur.


author: YICKERY, PJ.

text:
    CARPENTER et v WARNER et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9861.
    Decided September 30, 1929
    Messrs. F. G. Carpenter, Esq., and M. L. Locher, Esq., Cleveland for Carpenter et.
    Messrs. Simmons, DeWitt & Vrooman, Cleveland, for Warner et.
   YICKERY, PJ.

Of course, if there was an abatement of commissions already earned, that would discharge the obligation to pay commission, and there would be no reason why the rest of the contract should provide for the re-payment of this money.

It seems, from the guarded way in which the language was used, that there was some ulterior purpose in having this contract drawn as it was. Apparently the purpose was well known to the parties and the words in the contract recited “for reasons that are well known to the parties”, which we can only assume, in view of the fact that apparently there was not to be any real abatement, that it was but a lending of this money that was after-wards to be recovered by the defendants in error, by allowing them the entire five dollar membership fee until the whole $1040 had been repaid to them out of the one dollar extra bonus.

Now the suit apparently was brought upon this contract and the question was whether that contract was ambiguous, so that parol testimony could be introduced. The plaintiffs below claim that this matter simply covered a loan of $1040, defendants claiming that it was an abatement of commissions, as is suggested in the argument, that had been embezzled or not accounted for by the agents of the plaintiffs below. On the other hand, it is claimed that these guarded words, “on account of sales conditions understood between the parties”, might apply to the fact that the conditions of sale were so bad that the company had not realized enough money to pay a dividend, and that if a dividend was not paid, it would be impossible to make further sales. One theory would apply as well as the other and inasmuch as it i§_not possible to read in this contract altogether that this $1040 was to be a gift, or was not to be accounted for in any way, we cannot help but think that the contract was very ambiguous indeed and the parties had a right to explain what this contract meant, what the purpose of it was, and what the consideration was for the advancement of this money; and apparently the matter was ,all submitted to the jury and the jury found for the pláintiffs.

Now in 1927, after the consolidation of these two companies under the name of The Penn Continental Savings Association, the plaintiffs in error, Frank G. Carpenter and Milton Locher, were appointed liquidating trustees, and this suit was brought against them. Apparently they had some money in their possession, but the condition of the association is unimportant for us now to discuss.

It is urged by the plaintiffs in error that the court refused to permit them to introduce certain evidence that they offered to show what this contract meant, but there is no statement as to what they expected to prove by such evidence and, therefore, it is not important; but they urged that the contract was unambigubus. Of course, if it was unambiguous it would be improper for them, as well as the other side, to introduce any evidence, but if anyone can read that contract and know what it means without explanation or parol testimony, they have much more leg.al acumen than I have, for I confess that to me it is perfectly blind, unless there be evidence to show what the purpose was.

We have gone over this record, heard the arguments of counsel and familiarized ourselves with the briefs, and we can come only to one conclusion, and that is, that the parties below loaned this money and were to be repaid in the manner set out in the contract, but because of the legal impossibility of performing that contract, it took away the obligation of the plaintiff’s below to perform their part of the contract. In other words, their performance of this contract was made impossible by the legislative act and, therefore, they were relieved from performing it. In that event $1040 of. their money had been loaned to the plaintiffs in error, or the companies which they represented, and there would be no reason why it should not be recovered from the liquidating trustees: in other words, that the verdict of the jury and the judgment of the court thereon was correct, and we finding no error in the record, the judgment will be affirmed.

Sullivan and Levine, JJ, concur.


text:
    SHIELDS v BARNER-MEAD LUMBER CO.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10,048.
    Decided October 7, 1929
    Mr. O. F. Goudy, Esq., Cleveland, for Shields.
    Messrs. Hole & Jeremiah, Cleveland, for Lumber Co.
   VICKERY, PJ.

A defense was put up to the effect that this note had been paid, but an anaiysis of the testimony in this case will show that it is paid only argumentatively; that is, — and the whole testimony seems to sustain this point, — that after this note was made Shields and Company, Inc., paid The Barner-Mead Lumber Company more than the face of the note and, therefore, it is claimed by the plaintiff in error that all of this money, or so much of it as would discharge the note, should have been credited upon the note, whereas The Barner-Mead Company did not credit it upon the note, but applied the money to the payment of .current bills.

Now the rights of the parties are determined by what took place between them. Here was something like ,$2100 which had been in a measure secured by giving a promissory note of a third person, and immediately upon the giving of this note, The Barner-Mead Lumber Company commenced to deliver other material; and the testimony of Mr. Mead, which is uneontradicted in the record, is to the effect that, after this note was given, Shields and Company, Inc., were to be given further material for which they were to pay as they received it, as said company claimed to have made some financial arrangement whereby it was going to discount its bills henceforth; and all the money that was paid by Shields and Company — and I guess there is no dispute as to the amount that was paid — was credited upon the current bills, but not upon the past bills which were secured by the note.

Had the payments which had been made by Shields after the giving of this note been directed by Shields to be applied upon that note, that, .is, had he directly expressed to The Barner-Mead Lumber Company that the payments should be thus applied, under the Law The Barner-Mead Lumber Company would be compelled to so apply the payments. If, on the other hand, the payments were to be applied upon the current bills, or if there was no agreement between the parties as to where the payments should be applied, and The Barner-Mead Lumber Company had credited the payments upon the current bills, that would be a good payment of the current bills and the note would still be outstanding.

In the instant case it is not necessary to go into the law as to how payments should be applied in case the debtor had neither directed how the payments should be applied nor the creditor had applied them, because in the instant case the evidence is uncontradicted that there was no direction upon the part of the debtor to have this money applied on the note. It is true that Mr. Shields in his deposition said that he “intended” that the payments should be so applied, but what his intentions were could not be known to the other .side unless he expressed what his intentions were, and there is nothing in his evidence to show that he directed Mr. Mead to apply any of the money that he paid to the extinguishment of this note. On the other hand, it is conceded that the money was applied to the current bills and Mr. Mead’s testimony is unanswered and unequivocal, that the money that Shields paid after this note was given was to be applied upon the current bills. So it is not necessary for us to determine where the law would apply this money in case it had not been applied at all, for the writer of this opinion asserts, without fear of contradiction, that the law is universal that a debtor may direct the money to be paid upon a particular debt that he owes and, in the absence of such direction, the creditor may apply the payments to any item he desires, and in the case of such an application the law will regard that as properly applied.

But in addition to that, in this case, according to the testimony of Mead, it was applied in accordance with the understanding between Shields and himself when this note was taken and further credit extended to Shields and Company, Inc. We need not discuss the common sense and reasonableness of this proposition. That would be the ordinary course of business. The Barner-Mead Company had a note, apparently signed by a responsible person, and a concern that had so lost the confidence of its creditor company that further credit had been refused surely would not expect to be furnished with lumber, and that the payments that were subsequently made should be applied to pay off the claim that was amply secured by a note given by a good security. So not only the law but the common sense of the matter favors the judgment of the court below.

We-do not think there is any errror in this judgment and that the evidence fairly warrants the conclusion the trial court came to. There being no error in the record, the judgment will be affirmed.

Sullivan and Levine, JJ, concur.


author: MARSHALL, CJ.

text:
    SALEM (city) v HARDING
    Ohio Supreme Court
    No. 21359.
    Decided Oct. 23, 1929
   Syllabus by

MARSHALL, CJ.

MUNICIPAL CORPORATIONS

(360 P4g) Where water mains which supply domestic water to a city are laid in the same street in which a sewer is constructed and parallel thereto, the officers and agents of the city in making changes in the sewer must exercise ordinary care to prevent contamination of the water supply.

(360 G) The construction of sewers by a city is the exercise of a governmental function, and a board of health in the discharge of its duties acts in the exercise of the police power of the state, but in the maintenance or destruction of a sewer or any part thereof the city is nevertheless liable for the negligence of its board of health whereby a nuisance is created.

(360 P4k) A munieipalitv which supplies water to its citizens for domestic use is not a guarantor that the water is fit for such use but is only held to the exercise of ordinary care.

Kinkade, Jones, Matthias, Day and Allen, JJ., concur.


author: DAY, J.

text:
    STATE ex Hollo v INDUST COMM.
    Ohio Supreme Court
    No. 21903.
    Decided Oct. 23, 1929
   Syllabus by

DAY, J.

EMPLOYER & EMPLOYE

(250 lb) While an award made under the Industrial Commission Act for an injury . to an employe and an additional award made for violation of a specific requirement causing such injury, are separate and distinct awards, yet, growing out of the same probative facts and affecting the same parties, they are to be regarded as so interdependent that the Commission, under the discretion given it by 1465-86 GC, may make ■ such modifications or changes with reference to either of said awards as in its opinion are justified.

Marshall, CJ., Kinkade and Matthias, JJ., concur. Robinson and Jones, JJ., not participating.


text:
    STATE ex BARNER v MARSH et
    Ohio Supreme Court
    No. 21356.
    Decided Oct. 23, 1929
   Syllabus by

MARSHALL, CJ.

COURTS

(180 Jm) The Supreme Court of Ohio is without jurisdiction to entertain a suit originally filed therein to determine the validity of a judgment entered in any court of inferior jurisdiction, the validity of which is challenged on the ground of alleged fraud in procuring, the' same.

(180 A) By virtue of section 6, article IV, of the Ohio Constitution, the judges of the Courts of Appeals are elected by districts, and each judge holds office and serves primarily in the district of his residence. That section further provides that each judge shall be competent to exercise judicial powers in any appellate district of the state. Judges properly designated may hold court in any district, and when so holding court are not required to be physically present within such district.

The procedure for assignment of a judge of the Court of Appeals for service in a district other than that of his residence is regulated by statute and any irregularity in following such procedure does not defeat the jurisdiction of such judge or render void a judgment in which he participates.

The chief justice of the Court of Appeals is not required to evidence his assignment or designation by a written order.

(180 Ja) The jurisdiction of a judge of any Court of Appeals while serving in a district other than that of his residence cannot be challenged on the ground of irregularity of the procedure whereby he was designated for such service by collateral attack upon the judgment rendered. (Ex Parte Strang 21 Ohio St., 610; State v. Gardner, 54 Ohio St., 24; Steiss v. State, 103 Ohio St., 33, approved and followed.)

TRIAL

(590 Jo) Where party has received and accepted the fruits and benefits of a judgment in his f,avor, he will not be heard to challenge the validity of such judgment without first restoring or offering to'restore such fruits and benefits to the adverse party.

Kinkade, Jones, Matthias, Day and Allen, JJ., concur.' Robinson, J., concurs in propositions one to five, inclusive, of the syllabus, and in the judgment.


text:
    BODAMER et v BLISS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9913.
    Decided September 23, 1929
    Mr. G. O. Farquharson, Cleveland, for Bodamer.
    Messrs. Collister, Stevens & Gillis, for Bliss.
   SULLIVAN, J.

Now if, from the record, it was apparent that the agent of the plaintiff and the defendants below clandestinely was acting for both parties for hire, then the McConnell case supra would rule. If, however, on. the contrary it appears on the record that there is evidence of a substantial nature, even though conflicting, which shows that the broker divulged his connection with both Darties, then it would follow, if the deal was consummated and ratified especially, that Tghatever was done was by the consent and knowledge of both parties and when such a state of facts exists then we have the case of Colley vs Sampson et al. O. App. 2nd Dist. Franklin County, No. 1497, Dec. Feb. 18, 1927, which reads as follows:

“In an action to collect a real estate commission, where plaintiff’s evidence shows a double agency, it is incumbent upon plaintiff to prove that double agenc'y was fully disclosed to defendants and that both parties to contract consented to and approved double agency.”
“Court may direct for defendant where evidence shows double agency contract with failure of notice, even though double agency issue is not raised in pleadings.”

From a reading of the record in this case there is substantial evidence tending to show that both parties knew that the agent in question was acting in a dual capacity;, that hq was receiving commission from each side as there were two pieces of property which he was to sell, all of which forms a. foundation bearing out the truth of the evidence just referred to, that if one p&rtv was to pay a commission for the sale of his poreprty it would not be repugnant to the situation that the other party should .assume the same responsibility by way of commission for the sale of his property.

It cannot be disputed from the record but that there was a contract that the defendants below, agreed to pay the plaintiff below a commission amounting to the áum of $900.00; .that there was a written agreement to this effect, and a provision for an exchange of properties, and that plaintiff was the procuring cause cannot be disputed. Neither can it be denied from the record that the parties went to the Cleveland Trust Co., and executed final instructions.

The controversy .arises as to the good faith of the agent, C. P. Bliss, in the conduct of the business. The contract for the sale and exchange of the properties was signed by Van Curen, the president of The Curen Realty Co., in the presence of the defendants and othey persons, and immediately subsequent thereto it is apparent from the record that he executed the agreement to pay the plaintiff a commission for the sale of the Lakewood property, in the sum of $1075.00. Now that there is evidence in the record tending to show that this double agency was discussed by the parties on various occasions, and especially in an automobile while on the way to visit one of the mortgagees, the issue transforms itself into a question of fact more than a question of law because in order to have the law, which able counsel for plaintiffs in error cite in the McConnell case supra, apply, it would have to be clear from the record that there was no disclosure of double agency. This situation was corroborated at the time the escrow agreement was executed and left with The Cleveland Trust Company in its main, office. There were present at the time, the owners of both properties and other persons and it appears then and there and thereby that there was not only no concealment of double agency, but no other interpretation but a divulgence of the transaction can be claimed from the record. A joint escrow was executed providing for the instructions to guide the bank. It provided for the transfer of the Van Curen property and for the payment of the Van Curen commission. There was also a provision that this particular escrow was to form a part of another escrow which related to the property of plaintiffs in error. This escrow after it forms its combination, closes with the signature of both parties.. Escrow known as No. 21897 has a provision for the transfer of the Bodamer property and for the payment of the Bodamer commission. Likewise there appears the language, “this escrow is to form a part of escrow No. 21896,” which likewise closed with the signature of the parties. Thus it seems to us impossible to come to the conclusion that the transaction was not in good faith and that the double agency existed without the knowledge, consent and ratification of the parties to the transaction. The commission orders, there is testimony to show, were read over and there was no objections made for the receiving of the commission from Van Curen and likewise Van Curen made no objection.. The combined instruments were read aloud and no objections were raised and thereupon they were executed as a joint escrow.

When the plaintiff in error was being pressed at the trial as to his knowledge of the commission, one of his answers was, “I have nothing to say under oath,” and the testimony of the other principal was just as indefinite, uncertain and indifferent.

Thus it seems that every step in the transatcion was in writing and read in the presence of all the parties concerned, which precludes the idea of the existence ■of double agency by any clandestine or fraudulent process. Therefore, instead of the McConnell case supra and the Colley case supra being authorities supporting the contention of plaintiffs in error we think that they are consonant with the record in the case and especially upon the doctrine which projects from the record that upon the issues raised they present a question of fact more largely than one of law and these facts were properly submitted to thé tribunal below who held for plaintiff.

Where there is an exchange of property instead of a straight sale, the question naturally arises where there is but one agent why one party, for the sale of his property, should pay a commission and the other party for the sale of his property should not pay a commission. It is true that the McConnell case supra seems to hold against such a situation but we are inclined to believe that where there is no fraud the agent who sells two properties for two individuals by way of exchange is entitled to a commission according to the contract payable by each of the owners of the properties and this we think is not in violation of the McConnell case supra where there is nothing in the record to show a tendency to defraud or that the transaction was not in good faith. The reason for our conclusion is that if a common broker sells A’s property and also sells B’s property, there is just as much reason for charging commission for the sale of one as for the other, unless the transaction is tainted with suspicion or fraud which has a material effect upon the transaction itself.

Holding, these view the judgment of the Common Pleas court i§ hereby affirmed.

Vickery, PJ, concurs. Levine, J, not participating.


text:
    MOSBY v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10,138.
    Decided Oct. 14, 1929
    Thomas M. Frey and L. J. Pridgeon, both of Cleveland, for Mosby.
    Carl Shuler, Cleveland, for State.
   VICKERY, PJ.

We think the evidence in this case is conclusive that this woman was an occupant of this- place and used the rooms that she .occupied for the purpose of prostitution and she was so engaged when the officers entered the house and arrested her.

One of the errors complained of in this case is that there was “no evidence except the confession to prove the corpus delicti.” We are quite familiar with the rule that corpus delicti cannot be- proven by the confession of. the accused alone, but we are also quite familiar with the rule that it is not necessary to conclusively prove the corpus delicti by other evidence, excluding the confession: If there is corroborative evidence which with the confession proves the corpus delicti, it is sufficient; in other words, it is ¡not erroneous to supplement the corroborative proof by the confession to prove the corpus delicti. In this case we think there is ,an abundance of corroborative proof.. The attitude of this woman, her relation with the visitor and all the circumstances tend to corroborate the officer’s testimony and her confession.

We think the evidence warrants the judgment of the court below and we do not see any error in the record that would warrant us in disturbing, the judgment of the court. It will, therefore, be affirmed.

Sullivan and Levine. JJ, concur.


text:
    MAY v YUREK
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9377.
    Decided March 4, 1929
    Joseph L. Stern, Esq., Cleveland, for May.
    Messrs- Locher, Green & Woods, Cleveland, for Yurek.
   EPITOMIZED OPINION

Plaintiff, a girl weighing about 125 pounds, engaged with a doctor, weighing 185, in some gymnastic exercises claimed to be of value in reducing weight. In some manner the doctor threw plaintiff over his head, dislocating plaintiff’s neck. There were two trials, each resulting in verdicts for the plaintiff, the latter being in the sum of $2,000.. It was held that the court properly charged the jury as to the negligence pf the .doctor; that the latter, although he may not have intended to injure the plaintiff, was liable for such injury which was the result of his own act; and the verdict was sustained by the evidence.

Opinion by

VICKERY, PJ.

SULLIVAN, J, concurs.

LEVINE, J, dissents.


text:
    THE GREAT A & P TEA CO v REDMOND
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10146.
    Decided October 14, 1929
    Byron D. Kuth, Cleveland, for Great A & P Tea Co.
    I. R. Winsper, Cleveland, for Redmond.
   SULLIVAN, J.

Upon the question of the weight of the evidence we do not think the judgment is clearly and manifestly against the same because it is of a conflicting nature and there is credible evidence to support the judgment and it is not the duty of the reviewing, court in cage of conflict to exercise its own judgment as to the facts excepting there .appears in the record a situation which shows that a serious mistake has been made in fact or in law, and we do not find such a situation in this record and there being credible evidence upon all the essential elments of the case it is our judgment that the reviewing court has no right to interfere and that the judgment should stand.

Coming to the question as to whether the court erred in refusing to grant request No. 3 before argument, by instructing the jury thereon, it is our conclusion that no substantial error was committed in this respect and this request is as follows:

“If you find from a preponderance of the evidence that the floor in the entrance of the store in question was oily or slippery or in a dangerous condition or that one of the boards in the floor of said store was broken as .alleged in the Plaintiff’s amended petition I instruct you as a matter of law that the Plaintiff must further prove by a preponderance of the evidence that the Defendant knew of the oily, slippery or dangerous condition of the floor or that one of the boards was broken or that one of these conditions existed long enough to raise the implication that the Defendant bad such notice before you would be justified in returning a verdict in favor of the Plaintiff and against this Defendant.”

There is one reason, at least, which appears sufficient on its face to warrant the court in the action which it took in refusing to give the instruction and that is, before the instruction could be followed out by the jury it would be necessary for the jury to read the amended petition and interpret it, and from the interpretation which they might give it, undertake to follow the instruction of the court in connection with the allegations of the amended petition. It was the court’s duty to construe the amended petition and not the jury’s, and in this respect we think the instruction was fatal and that the court committed no' error in refusing to give it.

Another weakness We think appearing from the record, is'that the instruction left out what is apparent from the record that if the allegations of negligence as to the defective floor have any foundation in the evidence, then it would appear that it was the plaintiff in error itself, that caused the changes and this in and of itself would be sufficient knowledge that the plaintiff j” error knew the condition of 'its own floor. That circumstance is not a- part or parcel of the instruction and if this circumstance existed then any other notice as to the condition of the floor as indicated by the instruction requested is unnecessary and we do not see any error in the refusal of the court to give this charge.

Now we come to the first request as we understand, in plaintiff’s brief which is as follows:

“Ladies and Gentleman of the Jury, as to the claims of the Plaintiff' — I am' not saying that they are or are not sustained by the evidence — but the claims of injury made by the Plaintiff are reduced on this hearing to the injury to the left knee and left' ankle and the pain suffered as the result thereof, if ,ariy, and the costs of hir^ ing help "in the rooming'house made necessary by the Plaintiff’s incapacity as the result of said injuries, if any, all other claims of injury or damage are unsupported by competent evidence which has been now introduced and are to be disregarded.”

We think the court was correct in refusing this charge because it' is ambiguous "and uncertain in its nature, whereas on the contrary, it should be clear, concise and explicit. Again, it leaves to the jury, without any specific instruction, all claims for injuries or damages which are unsupported by competent evidence. The intention of course was that the court should say that all other claims excepting those enumerated shoüM not be considered, but we think that in a written charge before argument in writing there should be specific instructions so that the jury would not wonder in its investigations and conclusions, as to just what damages or injuries the court had reference to when it delivered the instructions. For these reasons we think there was no error in refusing to give this charge.

We have examined the other claims of error and have come to the conclusion that there is nothing prejudicial to the rights of plaintiff in error.

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

Vickery, PJ., and Levine, J, concur.


text:
    TRESHANSKY et v NORTHERN OHIO LUMBER CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9795.
    Decided September 16, 1929
    Messrs. B. A. Feldman and J. Moldaver, Cleveland, for Treshansky.
    Mr. Paul Howland, Cleveland, for Lumber Co.
   VICKERY, PJ.

We have gone over this record, we have heard the arguments of counsel and we have familiarized ourselves with the briefs, and we cannot say that the court erred. Is it possible that a man having a note that he receives in the regular course of business for a valuable consideration, makes himself responsible, if he puts that note in judgment, for malicious prosecution, abuse of process and slander of title, or because the judgment becomes a lien upon the lands owned by the judgment debtor lying within the county? To promulgate such a doctrine would make it very hazardous indeed for anybody to seek the aid of the courts in collecting anything that might be due him or claimed to be due him.

It is claimed that this note upon which judgment was taken, as a matter of fact was never delivered to Kerman; that it was an uncompleted deal and that the note was stolen from the desk of Mr. Blythin. Of course, if that was so, it might and it might not be a defense against the pérson to whom the note was given, and into .whose hands the note ultimately fell for value before maturity depending entirely upon, the circumstances. Usually the non-delivery of the note is a defense to the note, but unless the evidence in this record would show that the defendant in error in this action, the defendant below, was a .party to that and connived at it, or knew of the situation and then maliciously and wilfully, to injure the plaintiffs, put this note in judgment when they knew the circumstances, there would be no right of action for relief such as sought for in this petition. It might be a complete defence to the action and. grounds for vacating and setting aside the judgment but would not make the defendant liable for an action as is sought to be maintained here.

The evidence falls short of showing that the defendant knew that this note was stolen or had not been properly negotiated. The evidence on this is to the contrary.

There is some evidence to show that plaintiffs suffered some damage by the judgment being a lien upon their property. That is one of the things that follow a judgment, but there is nothing to show either malicious prosecution or abuse of process. The dismissing of the first suit is accounted for because it was prematurely brought; the dismissal of the last suit is accounted for because the claim for Which this note was given as collateral had been satisfied and paid by Kerman. Consequently defendant had no interest in it. It had nothing to do but dismiss its action and everything certainly was regular in every way, so far as it appears, and there was an abundance of cause for it to bring this suit and there is no evidence of malice or abuse of process and for that reason we can do no other than to affirm the judgment of the common pleas court.