author: By MILLER, J.

text:
    SOUTH MAIN AKRON, INC., Plaintiff-Appellant, v. LYNN REALTY, INC. et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4639.
    Decided November 19, 1951.

      Robert Dow Hamilton, Columbus, for plaintiff-appellant.
    Vorys, Sater, Seymour & Pease, Columbus, for defendantsappellees.
   OPINION

By MILLER, J.

This is a law appeal from the judgment of the Common Pleas Court overruling the plaintiff’s motion for the appointment of a receiver. We have no bill of exceptions, but in lieu thereof counsel have agreed to the following stipulation:

“It is agreed between counsel for the parties that in the trial court, upon the motion for a receiver, the Court, after hearing the opening statements of counsel and without the taking of any evidence denied the motion for a receiver and overruled the same.”

The pertinent parts of the judgment entry recite the following :

“This cause came on to be heard on Plaintiff’s motion for the appointment of a receiver to take charge of leased premises and to collect the rents.

“This is an action for damages arising out of the sale of real estate by defendant Lynn Realty, Inc. to plaintiff on which there was a 99 year lease. The evidence discloses that up to the present time the lease rental has been regularly paid to plaintiff by the assignee of the 99 year lease, and the Court finds that until plaintiff has established a right to recover damages, the application for the appointment of a receiver is premature and overrules plaintiff’s motion.”

It will be noted that the entry recites:

“* * * that until plaintiff has established a right to recover damages, the application for the appointment of a receiver is premature.”

Counsel for the appellees admit that such a finding goes to the “entire merits of the plaintiff’s claim, not alone to the question of damages, but as to the sufficiency of the cause of action stated.” The finding is therefore tantamount to the sustaining of a demurrer to the cause of action. The real question therefore presented goes to the sufficiency of the petition. The portion involved in this appeal concerns an anticipatory breach of contract for the leasing of real estate, the petition alleging that Lynn Realty, Inc., was lessee of certain real property now owned by the plaintiff, for a period of ninety-nine years, a portion of which time has expired, and that the lessee has breached its contract by anticipatory repudiation by reason of its own dissolution and the distribution of its assets, thereby becoming incapable of performing the covenants under the lease. The record reveals that prior to dissolution the lease was assigned to Elizabeth H. Patton, a shareholder, but who did not assume its obligations; that all of the obligations of the lease were met up until the filing of the petition. However, the petition alleges the property has been subleased at a figure far in excess of that specified in the original lease; that this sublease has approximately ten years to run; that after the sublease expires the assignee intends to abandon the lease and since the lessee corporation has dissolved, the plaintiff will not be able to enforce the covenants of the original lease. A receiver is sought for the purpose of preserving the rent now being paid under the sublease as an asset of the dissolved corporation and which was assigned to one of the shareholders upon liquidation.

There can be no doubt that it is now generally recognized that there may be a recovery for damages for breach of contract arising by anticipatory repudiation by a promissor even though the time for performance has not yet arrived. 9 O. Jur. 573; Smith v. Sloss Marblehead Lime Co., 57 Oh St 518. The appellee seems to recognize the general’ doctrine but is contending that it has no application to leases of real property in Ohio.

This question has frequently arisen in this state in bankruptcy and receivership- proceedings, and which cases sup-v. Twenty-First St. Realty Co., 12 F. (2d) 237; In re Mcport the appellees’ contention providing the same rule is applicable to the case at bar. Among such cases are Wells Allister-Mohler Co., 46 F. (2d) 91; Golde v. Golde, Inc., 29 O. N. P. (N, S.) 419. These cases refer to the cases of Rawson v. Brown, 104 Oh St 537, and Taylor v. DeBus, 31 Oh St 468, as authority for their conclusions. Both of these cases hold that except as modified by statute the common law still prevails with reference to real estate. They do not purport to generalize as to the content of the “common law” beyond the questions immediately involved. They do not purport to limit the lessor’s remedies to a recovery of rent as it accrues. On the contrary, Taylor v. DeBus, supra, recognizes the contractual aspect of the landlord and tenant relationship, Judge Mcllvaine saying at page 471:

“The liability incurred by such express covenant does not depend upon any privity of estate between the lessor and the lessee; but exists by reason of the privity of contract between them. The ground upon which such obligation rests is essentially different from that of the liability to páy rent, where the covenant is only implied.”

We have a situation in the case at bar wherein the plaintiff is not suing for rent but is suing for an alleged breach of covenant existing by reason of the privity of contract, there being no privity of estate between the plaintiff and the defendant, Lynn Realty Company. The ground upon which the plaintiff’s action rests is also “essentially different from that of the liability to pay rent.” Taylor v. DeBus, supra. Though the liability of a tenant to a landlord for the payment of rent is double, there is both privity of estate and privity of contract. The tenant is liable for the rent as it arises out of the land, i. e., accrues, by reason of the tenure existing between himself and the landlord and solely as an incident of the law of real property. He is also liable by reason of the covenant to pay rents, i. e., because he has promised to pay it; and this liability arises under the law of contract. The classical exposition of this doctrine of the double aspect of the obligation of a lessee is in Walker’s Case, 2 Coke, 22 a. (1587) where an action of debt was held to lie against an original lessee for rent which accrued after an assignment by him — “for the privity of contract remains notwithstanding the assignment.” This analysis of the relation has not been questioned seriously since Walker’s Case and under such an analysis, while a lessee cannot be held for “rent” (in the property sense) which has not accrued, he nevertheless can be held for damages which have arisen from his breach of contract. Such damages are not the rent, although the amount of the reserved rent naturally bears on the determination of the damage, along with other factors. The question involved herein seems to have been passed upon several times in this state where the question of insolvency or bankruptcy was not involved.

In the case of Kirland v. Wolf, 7 O. D. Repr., 436, 3 W. L. B. 114 (1878) the defendant had contracted to lease property from the plaintiff for one year beginning June 1, 1874. On May 28, the defendant wrote that he would not perform. The plaintiff rented to another party on January 1, 1875, and, after June 1, 1875, brought an action for $2000.00 “damages” which was the amount of the reserved rent. A judgment for the defendant was reversed by the Superior Court of' Cincinnati. The court said:

“Upon the facts we think it is clear that after May 28, 1874, when the defendant refused to perform his contract, which was before he had any right to possession, and while the possession and legal right thereto were in the plaintiff, the plaintiff had the right to do any of three things:

“First — He might have elected to treat the contract as at an end, and if he had done so, neither party could have thereafter sustained an action against the other.

“Second — He might have tendered the lease, fixed up the store and built the addition according to the contract, let the premises stand subject to the defendant’s control and freed of his own, and have sued the defendant monthly for the rent.

“Third — He might do what he did, treat the refusal of the defendant as a breach of the executory contract, keep the premises, rent them to the best advantage to save both parties as far as possible from loss, and sue the defendant and recover the damages naturally and directly occasioned by such breach.”

This case probably is not a strong one for the applicability of the doctrine of anticipatory breach, except as approval of the doctrine may be implied from the language of the opinion, since (1) the repudiation by the defendant occurred before the term of the lease was to have begun and (2) the action was not brought until the term contracted for was ended. The opinion, however, does recognize the separate character of the lessee’s contractual liability as distinguished from his liability for rent.

Similarly, in Elsas v. Meyer & Co., 10 O. D. Repr., 518, 21 W. L. B., 346 (1889), the dispute involved a, repudiation of a contract to take a lease, which repudiation occurred before the time set for performance. Here, however, the action was brought before the end of the five-year term specified in the agreement and the Superior Court of Cincinnati, in an opinion by Judge Taft, held that the prospective lessor, upon showing compliance with the conditions to be performed by him, might maintain the action for damages. The defendant’s motion for judgment notwithstanding the verdict for plaintiff was overruled and the case was remanded for a new trial for error in the charge.

The most significant case, and a rather strong one in its facts, is Wrubel v. Muth, 11 O. C. C. 559, 5 O. C. D., 173 (1896), decided by the Circuit Court of Cuyahoga County. In 1891 the plaintiff, Wrubel, leased property for a period of five years to one Acnovich. Also a party to the lease was the defendant Muth who guaranteed the payment of the rent for the entire term. The lease further provided that if Acnovich should violate the obligations of the lease — “then this lease shall be null and void as far as said lease is concerned, and the said George V. Muth shall have full control of the same, and the said Muth alone being bound and being held as lessee.” (The court held that the emphasized word “lease” clearly was intended to be, and Ayas treated by the parties as though it were,' “lessee.”) After about one year of the five-year term Acnovich abandoned the premises. Defendant Muth then assumed possession and shortly thereafter he too abandoned repudiating the contract. The plaintiff-lessor brought the action in December, 1892, after only a little more than a year of the five-year term had elapsed. The trial court charged that the plaintiff-lessor could recover only for the rent which had accrued prior to the filing of the suit. The Circuit Court held this was error and reversed. The court said (pp. 561, 562):

“We think there was clearly error in that charge of the court. We think it clearly is a case where a suit could be brought for damages because of the repudiation of the contract by the defendant; that a single suit for the breach of that contract, not only could be, but was the proper suit to be brought, and therefore the court should not have limited the damages simply to that which accrued by reason of failure to comply with the covenant to repair and the rents accrued up to the bringing of the suit, but should have allowed the jury to inquire what were the entire damages of this plaintiff for breach of that contract.”

We think that the insolvency cases cited should not be controlling for the reason that they present considerations of policy not present in the instant case. It is apparent that in the distribution of the property of an insolvent lessee the allowance of the full claim for anticipatory breach presented by the lessor may result in a very large, and perhaps inequitable, share of the property going to the lessor, to the detriment of other creditors of the lessee.

It is worthy of note that, since the cases referred to were decided, the Bankruptcy Act has been amended to make claims for anticipatory breach of leases provable in the bankruptcy of the lessee. Section 63a of the Bankruptcy Act, as amended 1934 and 1938, now lists among claims which are provable in bankruptcy:

(9) Claims for anticipatory breach of contracts, executory in whole or in part, including unexpired leases of real or personal property * *

The section then limits the amount allowance as a claim for damages for anticipatory breach by a lessee to an amount not exceeding one year’s reserved rent plus past due rent. This limitation was designed to prevent a lessor’s getting the lion’s share of the bankrupt’s property. 3 Collier on Bankruptcy (14th Ed., 1899).

It is further urged by the appellees that the doctrine should not be applied to lease contracts for the reason that it becomes unilateral after the lessee takes possession. It may be conceded that there can be no anticipatory breach of a unilateral promise where the promisee has fully performed, but such is not the case with leases even after the lease has taken effect as a conveyance; the landlord’s covenant of quiet enjoyment is a continuing one and the covenant to pay rent is dependent upon the covenant of quiet enjoyment, the breach of which by an eviction suspends all liability for rent, contractual or otherwise. As stated by the court in Hawkinson v. Johnston, 122 F. (2d), 724, 137 A. L. R., 420 (CCA 7th, 1941):

“The contract of the lease here was in part still executory on the part of plaintiff (lessor), since he was obligated by specific and continuing covenants to assure the quiet enjoyment of the premises during the term of the lease, and, also, at all times to defend the title. These covenants were in a sufficient sense interdependent with the lessees’ obligation to pay rent, since the payment of rent at any particular time necessarily was conditional on their continued performance.”

It is further urged by appellees that even though the doctrine is applicable to lease contracts it is not applicable here for the reason that Lynn Realty, having assigned its interest in the contract, is now only a surety. It is true that the lessee is a surety in a sense. The surety nomenclature, however, is descriptive only of the relation between the lessee and his assignee. None of the other consequences of suretyship are here present. As to the lessor the lessee is still a principal debtor. McHenry v. Carson, 41 Oh St 212. And the lessor upon a breach may sue either the lessee or the assignee at his election.

In Gholson v. Savin, 137 Oh St 551, the Court held:

“The express contract of a lessee fixes his liability to the lessor for the payment of rent for the whole term; but in case of assignment of the lease by the lessee the liability of the assignee to the lessor is limited to the rent accruing during'the continuance of the assignee’s interest; and the lessor may, at his election, sue either the lessee or the assignee, or both, for the nonpayment of rental accruing after assignment, but is entitled to but one satisfaction.”

The appellee also urges that even though we should find that there has been anticipatory breach, that the plaintiff has not elected to treat it as such. Citing Williston on Contracts (Rev. Ed.) Vol. 5, Sec. 1337, wherein it is said:

“The rights of a party to a bilateral ¡contract of mutually dependent promises upon an anticipatory repudiation by the other party will then.be: (1) To rescind the contract altogether and if any performance has already been rendered by the injured party, to recover its value on principles of quasi contract; (2) to elect to treat the repudiation as a breach, either by bringing suit promptly, or by making some change of position;' or (3) to awáit the time for performance of the contract and bring suit after that time has arrived. Even if the plaintiff thus elects to wait until the stated time for performance, he will be excused from the necessity of performing or being ready to perform on his own part unless the repudiating party withdraws his repudiation before a change of position by the injured party makes his performance more burdensome. Indeed, the injured party has no right to recover for subsequent performance if damages will be thereby enhanced.”

Also, in Section 1323 of Williston, supra, it is said:

«* * * hag been held that unless the repudiation is withdrawn it operates as a ‘continuing offer’ of a breach which may be taken advantage of at any time.”

Since the repudiation in the instant case was never withdrawn prior to the bringing of the action the plaintiff was entitled to treat it as a continuing breach.

We shall give consideration next to the question of whether or not the voluntary dissolution of the lessee corporation and the distribution of its assets to the shareholders constitutes an anticipatory repudiation giving rise to an immediate cause of action. We are of the opinion that the general law with respect to the acts constituting such an anticipatory repudiation are applicable to the facts in this case. Restatement, of Contracts, Sec. 318, as Amended, Supp. 1948, lists any of the following as constituting an anticipatory repudiation which is a total breach of contract:

“a. A positive statement to the promisee or other person having a right under the contract, indicating that the promisor will not or cannot substantially perform his contracted duties: “b. Transferring or contracting to transfer to a third person an interest in specific land, goods, or in any other essential for the substantial performance of his contractual duties.

“c. Any voluntary affirmative act which renders substantial performance of his contractual' duties impossible, or apparently impossible.”

It is generally held that the dissolution of a corporation is' a repudiation of its executory contracts, at least where said dissolution is voluntary, and that an action for anticipatory breach will lie. A leading case is Okmulgee Window Glass Co. v. Frink, 260 Fed. 150, cert. den., 251 U. S. 563, 64 L. Ed. 415, 40 S. Ct. 342. A corporation, being under contract to pay minimum patent royalties over a period of time, was voluntarily dissolved and its assets transferred to another company. It was held that the dissolution of the corporation was a breach, that its assets became a “trust fund” subject to the payment of the debts of the company and that personal judgments might be obtained against persons who had converted those assets to their own use. The cou.rt said (p. 163):

“A voluntary dissolution of a solvent corporation gives no relief frofn liability upon existing contracts and obligations. As to contracts partly or entirely executory the dissolution is regarded as a breach because ^.the corporation has voluntarily incapacitated itself to further perform. The other party to the contract is placed by such act of dissolution in the position of one to whom .further performance of the contract has been definitely and finally refused. He can recover for the resulting damage on the entire contract, executory as well as executed.”

In the case of Kalkoff v. Nelson, 60 Minn. 284, a.corporation which was lessee under a ten-year lease was dissolved and a receiver appointed. It was held that by the dissolution the corporation was disabled from performing the obligations of the lease; that the breach of the contract to pay rent for the unexpired term was total and final and that thereupon a cause of action accrued to the lessor for all damages, present and prospective, the court saying:

“s. * * In case a£ kar ^g corporation has, by its voluntary dissolution, practically committed suicide, and when its estate is administered it ceases to exist. Therefore, if, the corporation cannot be held liable for a total breach of its executory contracts, the law has armed it, and all other domestic corporations, with the power to repudiate all the obligations of their executory contracts by simply instituting proceedings by its stockholders for a voluntary dissolution. It is clear that the corporation must be held liable in damages for its total breach of its executory contract to pay the rent reserved in the lease for the full term.”

We are of the opinion that the petition states a good cause of action and that the trial court erred in holding that the application for the appointment of the receiver was premature, and that it was first incumbent upon the plaintiff to establish a right to recover damages. The appointment of a receiver is not a matter of equitable right; hence, no positive or unvarying rule can be laid down as to whether the court will or will not interfere by this kind of interim protection of the property. The question of whether or not a receiver will be appointed in a given case is addressed to the sound discretion of the court under all the circumstances. This discretion is not arbitrary or absolute but is a sound and judicial discretion taking into account all the circumstances of the case, exercised for the purpose of promoting the ends of justice and of protecting all the rights of the parties interested in the controversy and subject matter and based upon the fact that there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceedings. It must be governed by legal and equitable principles, the violation of which will amount to its abuse and must not be influenced by the technical legal rights of the parties but by all the equities of the entire case. 34 O. Jur. 948, Sec. 7. We are of the opinion that the legal principle announced -by the court required a higher, degree of proof of damages than is necessary to sustain the appointment. The court should have given consideration to whether or not there was reasonable probability that the plaintiff would ultimately succeed in obtaining the general relief sought. This required the production of evidence and which the court refused to hear and consider.

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

HORNBECK, PJ, WISEMAN, J, concur.


source: Caselaw Access Project

author: By MILLER, J:

license: Public Domain

text:
    STATE, Plaintiff-Appellee, v. POLHAMUS, Defendant-Appellant.
    Ohio Appeals, Second District, Miami County.
    No. 457.
    Decided May 21, 1951.

      James H. DeWeese, Pros. Atty., Piqua, for plaintiff-appellee.
    Scharrer, Scharrer & Hanaghan, Dayton, for defendant-appellant.
   OPINION

By MILLER, J:

This is a law appeal from the judgment of the Common Pleas Court finding the defendant, Clifford Polhamus, guilty of the charges of kidnapping and rape. He was also indicted for theft, which charge was dismissed. A jury was waived and at the defendant’s request he was tried by a three judge court.

The errors assigned are as follows:

1. Said decisions of the Court are contrary to law.

2. Said decisions are against the manifest weight of the evidence.

3. For admitting improperly in many instances throughout the trial, as shown by the record, testimony and evidence on behalf of the plaintiff-appellee, prejudicial to his rights and excepted to, by his counsel.

4. For admitting evidence on behalf of the plaintiff-appellee objected to by counsel for the defendant-appellant, the Court reserving its decisions on such objections but permitting the testimony to be introduced, thereby causing prejudicial error to him.

5. By permitting the prosecuting attorney direct examination, cross-examination and re-direct examination' of many witnesses on many collateral matters objected to by counsel for the defendant-appellant and prejudicial to his rights.

6. That the venue of the alleged crimes has not been established by proof beyond a reasonable doubt.

7. The decisions of the Court are contrary to the evidence.

8. That there is an absolute failure of proof of the alleged crimes of rape and kidnapping in these cases.

9. That the decisions of the Court are the result of extraneous information disclosed to it and not in the record in these cases, therefore prejudicial to his rights to a fair trial.

10. That the decisions of the Court are not sustained by sufficient evidence.

11. For all other errors apparent on the face of the record prejudicial to the rights of the defendant-appellant in both cases and excepted to by his counsel.

The appellant’s assignments ■ of error Nos. 2, 7, 8 and 10 will be overruled for the reason that an examination of the record discloses that substantial evidence was offered by the State in support of all of the elements of the crimes of rape and kidnapping, which evidence was of sufficient probative value to sustain his conviction. The prosecuting witness testified in detail as to facts which were sufficient to estab-' lish all of the essential elements of the crimes of kidnapping and rape. She was supported in her testimony by Paul McDorman, who was jointly indicted for the same three offenses, and who was an active participant in the entire transaction, either as a principal or aider and abettor. She was also supported in the rape charge by her own declarations made immediately thereafter and which were admissible as a part of the res gestae; by medical testimony and also the surrounding circumstances incidental to the automobile ride through the country. If credence were given to all of these facts it certainly could not be said that the evidence was insufficient to sustain the judgment.

It is urged by the appellant that the venue of the crime was not established by the proper degree of proof. On this question also there was conflict in the testimony which made it a factual question for the determination of the trial court.

Assignments Nos. 3, 4 and 5 all relate to the improper admission of evidence and will, therefore, be jointly considered. The record reveals that immediately upon her return home the prosecuting witness related to her husband facts concerning the criminal assault; that within an hour she was in a hospital where she made certain statements to the 'examining physician and to the sheriff. It is claimed by the appellant that all of this testimony was incompetent, improper and prejudicial. This evidence was properly admitted only for the purposes of corroboration and not as substantive proof of the crime. In Harrison Johnson v. The State, 17 Ohio, 593, the syllabus provides:

“In a prosecution for rape, the declarations made by the injured female as to the transaction, immediately after the offense was committed, may be given in evidence to sustain her testimony given in the court, but not as substantive testimony to prove the commission of the offense.”

At page 595, Hitchcock, J., says:

“If such testimony were to be entirely excluded when offered on the part of the prosecution, it would be extremely difficult to convict in any case. For, as a general rule, it would be dangerous to convict, unless immediate complaint was made by the female, to her friends or others. And that such complaint was made, and the substance of it, ought not to be withheld from the jury.”

See State v. Lasecki, 90 Oh St 10 at page 20. See also 34 O. Jur. 911.

It is urged also that the Court erred in permitting Charles Goode, who was jointly indicted and previously convicted on all three counts, and who testified on behalf of the defendant, to be cross-examined concerning his arrest and conviction for having defaced auto license plates on his car, for failure to register his car and for permitting an unlicensed operator to operate his car. It will be noted that these questions all related to misdemeanors and not felonies. The question presented is whether the credibility of a witness may be tested by such a cross-examination. We are of the opinion that the court did not err in its ruling.

In Harper v. State, 106 Oh St 481, the court held such evidence to be admissible. At page 484 Judge Wanamaker says:

“One of the big questions that every jury has to determine, where there is a conflict of material facts, is the credibility of the witnesses who testify before them. What is their character; their reliability for truth? What is their interest or bias, if any, in the cause on trial?

“In order to aid the jury and the judge in determining this question, to enable them to rightly and justly weigh the evidence, large latitude has been allowed in the cross-examination of those who are particularly interested in the result of a verdict or judgment, and, in all such cases, convictions of high crimes and misdemeanors, convictions of crimes under state and federal laws, have been considered by courts as competent when limited solely to the credibility of the witness, unless, of course, they bear some causal connection to the crime charged in the indictment upon which the instant trial is proceeding; or unless competent in chief to prove some specific intent.”

See also State v. Carter, 75 Oh Ap 545; Killian v. Cleveland Railway Co., 10 Abs 14. Since the court may permit counsel a wide degree of latitude in testing the credibility of a witness, we find no error in the crossrexamination of this witness with reference to the Elk’s card he had in his possession or as to his purchase of a certain piece of real property. Even if this were improperly admitted, it could not have been prejudicial as it was in no way connected with either of the offenses charged.

The record also reveals that one Henry Grise testified on behalf of the defendant as a character witness. Upon cross-examination he was asked, over objection, whether or not he knew that the defendant was arrested in 1945 for petit larceny, and in November of 1949 for kidnapping. He was also asked whether he knew that the defendant carries a gun, if he knew he was arrested in 1948 for fighting in the Doghouse Restaurant, and that the defendant had been arrested for numerous specific traffic violations. It will be observed that on page 350 of the record the witness testified as to the defendant’s good reputation for peace, quietness and morality. The questions on cross-examination it will appear were germane to the issue raised on the direct examination and it became appropriate to inquire as to whether the witness’ knowledge concerning facts on which he based his conclusions.

In Zeltner v. State, 13 O. C. C. (N. ,S.) 417, the third syllabus provides:

“A witness called by the accused to testify as to the reputation of the accused as a quiet, peaceable citizen may be asked on cross-examination if he had not heard of instances of trouble the accused has had with his neighbors.”

We think it proper that a character witness may be cross-examined as- to the ground of his knowledge or opinion, such as his acquaintance, with the person as to whose reputation he has testified, his opportunities for acquiring information, the number and names of those whom he has heard speak of him and what they said, and how long and how generally favorable reports have prevailed. In 58 Am. Jur. 363, it is said:

“A character witness for an accused may be questioned upon cross-examination with reference to his knowledge of the arrest or accusation of the accused for a crime, or as to whether he had heard of a previous conviction of the accused. So, too, the witness may be questioned to show his want of knowledge that the defendant was a regular violator of certain laws, or as testing the witness, to show that he did not regard the violations as a matter of impeachment.”

We find no prejudicial error in this cross-examination.

The record reveals that the trial court was extremely liberal with the defendant as well as the State in the admission of evidence, but nqt to the extent that the same was prejudicially erroneous. Since the case was tried before three judges and not before a jury a greater degree of liberality is permissible. This Court said, in State v. Mason, 85 Oh Ap 186, at page 189:

“It has been held that where a trial is had before the court without a jury, the admission of incompetent evidence does not necessarily constitute reversible error; especially is this true where the incompetent evidence is not considered by the trial judge or if there was sufficient competent evidence to support the judgment. 2 O. Jur (Pt. 2), 1278, Section 687; 3 American Jurisprudence, 583, Section 1037. It has been held that a conviction in a criminal case tried without a jury will not be reversed on appeal for admission of improper evidence unless prejudicial error is apparent. 3 American Jurisprudence, 595, Section 1041. (Cases cited.) In Ohio it has been held that greater freedom is afforded the court than the jury in hearing incompetent evidence.”

We find nothing in the record to support assignment of error No. 9 to the effect that the decision of the court was the result of extraneous information and not based upon the record. It is our conclusion - that this defendant received a fair and impartial trial, free from any prejudicial error, and the judgment will therefore be affirmed.

HORNBECK, PJ, WISEMAN, J, concur.


author: Per CURIAM:

text:
    MINTZER et, d. b. a. UNITED FIXTURE COMPANY, Plaintiff-Appellee, v. CHIN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21914.
    Decided December 4, 1950.

      E. W. Greenblatt, Cleveland, for plaintiff-appellee.
    A. W. Haiman, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

We find no error prejudicial to the defendant in any of the particulars set forth in the Assignment of Errors and argued in the briefs. Judgment affirmed at the cost of the appellant. Reasonable ground exists for appeal.

There is substantial and credible evidence shown by the record to support the verdict and judgment and the verdict and judgment are neither contrary to law nor against the weight of the evidence.

The claim that the Court erred in its failure to instruct the jury on the law applicable to contracts and guarantees is, if error, an error of omission and as the defendant did not call the Court’s attention to the .omission and request it to charge on the subject-, the error, if any, was waived. Exc. O. S. J.


text:
    HALL, Plaintiff-Appellant, v. HALL, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2117.
    Decided December 29, 1950.
    Mason Douglass, Dayton, for plaintiff-appellant.
    Baggott & Johnston, Dayton, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to dismiss thé appeal on the ground that plaintiff-appellant failed to file assignments of error and brief within fifty days after- filing a notice of appeal as required by Rule VII.

This is an appeal on questions of law. Notice of intention to appeal was filed on May 15, 1950. At the time this motion was filed on October 26, 1950 no assignments of error or brief had been filed by the appellant.

This Court has consistently ruled that where the appellant fails to file assignments' of error and brief within fifty days after the filing of notice of intention to appeal, the motion to dismiss the appeal will be sustained. See State ex rel. Merrill v. Moore, 83 Oh Ap 525, 82 N. E. (2d) 323, and cases therein cited.

Motion to dismiss sustained.

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


author: By SKEEL, PJ.

text:
    KAMINSKI, Plaintiff-Appellee, v. ZASADZIENSKI, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22344.
    Decided October 22, 1951.
    McConnell & Coakwell, Cleveland, for plaintiff-appellee.
    Woodle & Wachtel, Cleveland, for defendant-appellant.
    (DOYLE, J, of the 9th District sitting by designation in place of HURD, J, of the 8th District).
   OPINION

By SKEEL, PJ.

On July 10, 1951, a judgment by default was entered in the Municipal Court of Cleveland evicting one Edward Zasadzienski from the premises in which he lived. On July 12, 1951, a paper entitled “Motion for new trial” was filed in the case moving “for an order vacating the judgment heretofore rendered * * * and granting the defendant a new trial, for the reasons set forth in the affidavit attached hereto and made a part hereof by reference.” On July 20, 1951, Judge Westropp, the presiding Judge in the action overruled the motion pursuant to examination of the grounds alleged in' the affidavit. The appeal is from this latter order.

In brief, the affidavit stated: (1) that the defendant “failed to appear because he had. an erroneous and improper idea of the law and his duties and obligations under the circumstances”; (2) that the summons was “slipped under the door of his home” and that “he had the erroneous opinion that it was not necessary for him to give it any attention because it had not been served upon him personally”; (3) “that examination of the paper disclosed that it bore the name which appears on the caption of this case (Edward Zasodzinski) which is not the correct name of this defendant, (the correct name is Edward Zasadzienski) and for that reason also, it is his opinion that he did not need to give it attention.”

It appears from the record that service of summons was properly made; that the slight mistake in the spelling of the defendant’s last name was of no consequence because certainly it is obvious to everyone including the defendant that the defendant living at that address was the person intended to be sued. The affidavit continues by setting out his own negligence and ignorance of the law.

Prom the above observations in the record before us it will be seen that none of the statutory grounds for granting a new trial or vacating a judgment appear. Proceeding then to the exercise of the Court’s discretion during term to grant a new trial or to vacate a judgment, it has never been held that a court abused its discretion in refusing to vacate a judgment when the reason for such vacation is predicated solely upon the defendant’s negligence or ignorance of the law.

We find the Court’s action in the respect complained of was within its power and authority and was not an abuse of discretion.

Judgment affirmed. Exceptions. Order see Journal.

DOYLE, J, THOMPSON, J, concur.


text:
    SPRINGFIELD (City), Plaintiff-Appellee, v. KENNEY, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 487.
    Decided September 21, 1951.
    Thomas D. Hodge, Law Director, Richard T. Cole, Asst. Law Director, Springfield, for plaintiff-appellee, and for the motion.
    ■ William T., Gillie, Urbana, for defendant-appellant, contra the motion. '
   OPINION

By THE COURT:

Submitted on motion of appellee to dismiss the appeal for failure to file briefs in this court in accordance with Rule VII.

Upon the somewhat unusual circumstances presented in the briefs of counsel which we accept to be in accord with the facts as we do not have the files, the motion would have to be sustained upon a strict interpretation of the letter of Rule VII. It will be noted, however, that the Rule has the proviso that “upon failure of the appellant to file his assignment of error, brief or bill of exceptions as herein required, unless good cause be shown to the contrary, the case will be dismissed for want of prosecution.” We are of opinion that good cause has been shown for the failure to file the briefs within time. No delay will result in the presentation of this appeal by the failure to file the briefs which are and have been ready and available to counsel for appellee since fifty days after the filing of the notice of appeal in the trial court.

The motion will be overruled.

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


text:
    SPRINGFIELD (City), Plaintiff-Appellee, v. KENNEY, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 487.
    Decided November 5, 1951.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Municipal Court of Springfield, Ohio, wherein the defendant-appellant was found to be indebted to the plaintiff-appellee in the sum of $69.00 and interest under the provisions of City Ordinance No. 4741, which is better known as the City Income Tax Ordinance. The case was submitted upon an agreed statement of facts which are a part of the record and will not be fully restated.

The first question presented is whether the defendant is a resident of the City of Springfield-, the ordinance in question having placed a one per cent tax on all salaries, wages, commissions and other compensation earned by residents of the City. It is admitted that the defendant lives within the corporate boundaries of the City of Springfield in a public housing project owned by the United States and operated as a Federal- Housing Area by the Public Housing Authority. The area within which he lives is known as Wheldon Park. We think that the answer to the question here presented is found in Section 106(2) of Title 4, Federal Code Annotated, which reads as follows:

“No person shall be relieved from liability for any income tax levied by any state, or by any duly constituted taxing authority therein, having jurisdiction to levy such a tax, by reason of his residing within a Federal area or receiving an income from transactions occurring or services performed in such area; and such state or taxing authority shall have full jurisdiction and power to levy and collect such tax in any Federal area within such state to the same extent and with the same effect as though such area was not a Federal area.”

The Supreme Court of Ohio has had occasion to pass upon this point in the case of Renner v. Bennett, 21 Oh St 431. The case involved the question whether the United States had exclusive jurisdiction over the asylum for disabled soldiers located within Ohio, upon the answer to which question rested the determination whether inmates were eligible to vote. The Court held that the United States did not possess exclusive jurisdiction and in syllabus one stated:

“Where the United States, without the consent1 of the State’ purchases and uses land for any of the purposes specified in Sec. 8, Art. 1, of the Federal Constitution, it acquires no jurisdiction over the land.”

In further support of the appellee’s contention we refer to Section 1547 of Title 42, Federal Annotated Code, which is part of the Federal Statute popularly known as the Lanham Housing Act. It provides as follows:

“Notwithstanding any other provisions of law, the acquisition by the administrator of any real property pursuant to this, act shall not deprive any state or political subdivision thereof ... of its civil and criminal jurisdiction in and over such property, or impair the civil rights under the state or local law of the inhabitants on such property. . . .”

In view of the foregoing authorities we hold that the City of Springfield was not deprived of its jurisdiction over the area in which the defendant resided and that he is- amenable to the provisions of the Income Tax Ordinance.

It is next urged that since the defendant’s income was earned entirely outside of the corporate limits of the City of Springfield, that he is not subject to the provisions of the ordinance. We held otherwise in the case of The City of Springfield v. Kurtz, No. 480, Clark County, decided by this Court on April 2, 1951. We adhere to our former ruling on this question.

It is next urged that the ordinance is unconstitutional for the reason that it excludes from taxation all persons having an income of $1040.00 or less for a year and does not grant this exemption to those whose income is more than the minimum. In other words, those having an income of more than $1040.00 per year pay the tax based upon the total income and not only upon the excess over and above the $1040.00. This, appellant claims, constitutes a classification which is “artificial, arbitrary, unreasonable and discriminates between those similarly situated.” If the appellant were correct in his factual conclusions we would agree with him that, the section of the ordinance under consideration is in violation of the Constitution. However, we differ upon the finding of fact. We are of the opinion that it operates equally upon each member of the class since it provides that all persons making less than $1040.00 per year are in one class and pay no tax, while all persons making more than $1040.00 per year pay a tax upon their total income. In considering whether or not the tax is arbitrary or unreasonable the burden of proof is upon the appellant and upon the record submitted we cannot come to such a conclusion. The presumption is that the City of Springfield in enacting the ordinance acted upon sound consideration of policy and until this presumption is overcome by the evidence it must prevail. It is well settled that hardship and administrative complexity may be considered by the court in its consideration of the constitutionality of the provision in question. 51 Amer. Jur. 242, Section 182. A leading case on this question is Carmichael v. Southern Coal and Coke Co., 301 U. S. 495, which involved .an Alabama Unemployment Compensation Act, which provided a payroll levy upon the payroll of certain employers while exempting others. It was contended on behalf of the petitioner that the Act was violative of the equal protection clause of the Constitution of the United States because it excluded employers who employed less than eight individuals and excluded certain particular classes of employers. The contention was rejected by the Court, Justice Stone saying at page 510:

“It is argued here, and it was ruled by the court below, that there can be no reason for a distinction, for purposes of taxation, between those who have only seven employees and those who have eight. Yet, this is the type of distinction which the law is often called upon to make. It is only a difference in numbers which marks the moment when day ends and night begins, when the disabilities of infancy terminate and the status of legal competency is assumed. It separates large incomes which are taxed from the smaller ones which are exempt, as it marks here the difference between the proprietors of larger businesses who are taxed and the proprietors of smaller businesses who are not.

“Administrative convenience and expense in the collection or measurement of .the tax are alone a sufficient justification for the difference between the treatment of small incomes or small taxpayers and that meted out to others.”

The record in the case at bar discloses that the additional administrative work required to service the returns of this excluded group would be increased approximately 30 per cent and the additional amount collected would in all probability produce little or no additional revenue, or may even cause a loss. The maximum amount that could be collected from this excluded class would be only $10.40 per year and in many instances it would no doubt be necessary to use pressure to enforce the collection or even to resort to suits at law. We are therefore of the opinion that the classification is reasonable and operates equally upon each member of the classes created. Even though the exclusion clause were unconstitutional it is severable from the other parts and would not invalidate the whole ordinance. The basic rule for determining this question is set forth in 28 O. Jur. page 496, Section 301, as follows:

“It is a general rule that where a by-law or ordinance c0.nsists of several and independent parts, having no general influence over each other, and a part is valid and a part is void, the part which is valid is operative and will be carried into effect.”

Whether the invalid provision is severable or not is largely a matter of legislative intent. 8 O. Jur. page 200, Section 99. Upon this matter the City Commission has spoken by including in the ordinance Section 16 which reads:

“This ordinance shall not apply to any person, firm, corporation, association, business, or to any property, as to whom or which it is beyond the power of the City Commission to impose the tax herein provided for. If any sentence, clause, section or part of this ordinance, or any tax against any individual or any of the several groups specified herein is found to be unconstitutional, illegal or invalid, such unconstitutionality, illegality or invalidity shall affect only such clause, sentence, section or part of this ordinance and shall not affect or impair any of the remaining provisions, sentences, clauses, sections or’ other parts of this ordinance. It is hereby declared to be the intention of the City Commission of the City that this ordinance would have‘been adopted had such unconstitutional, illegal or invalid sentence, clause, section or part thereof not been included herein.”

It is apparent therefore that the intent of the City Commission was that the ordinance would be adopted even without the exclusion provision.

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

HORNBECK, PJ, WISEMAN, J, concur.


author: By WEBER, J.

text:
    BRAUN et, v. CENTRAL TRUST CO., Exr. et.
    Common Pleas Court, Hamilton County.
    No. A-124213.
    Decided November 14, 1951.

      DeFosset & DeFosset, Steer, Strauss & Adair, Cincinnati, for plaintiffs.
    Smith & Smith, Starbuck Smith, Jr., Cincinnati, for The Central Trust Company.
    Dinsmore, Shohl, Sawyer & Dinsmore, Richard Todd, Cincinnati, for Cerise Eyre Shepard.
   OPINION

By WEBER, J.

This matter is before the court for the purpose of construing the will of Oscar F. Shepard, deceased, who died on May 26, 1950 and whose estate' is being administered in the Probate Court of Plamilton County, Ohio, No. 178746. The deceased was survived by his widow, Cerise Eyre Shepard, whom he married in 1946 and by two adult daughters, Ruth S. Braun and Jane S. Lowe. Pursuant to §10504-67 GC, plaintiffs requested the executor to file an action to construe the will, which request was refused. The plaintiffs then filed this action for the purpose of determining whether the provisions in Items 5 and 7 of the will are invalid because they violate the rule of perpetuities as defined in §10512-8 GC, the pertinent part of which reads as follows:

“No interest in real or personal property shall be good unless it must vest, if at all, not later than twenty-one years after a life ór lives in being at the creation of the interest. * * * It is the intention by the adoption of this section to make effective in Ohio what is generally known as the common law rule against perpetuities.”

The only items of the will which are in controversy are Items 5 and 7 which read as follows:

“Item 5. (a) If my wife, Cerise Eyre Shepard, survives me, I give, devise and bequeath to The Central Trust Company of Cincinnati, Ohio, and its corporate successors, property which shall be selected by my Executor which at the inventory value shall be equal to one-half (Vs) of the amount obtained by deducting from the total value of my estate as shown by the inventory of my estate as approved by the Probate Court in which my estate is administered all debts, funeral and administration expenses, and the year’s allowance for the support of my widow, but without deducting any estate, succession or inheritance taxes, state or federal; this trust being herein referred to as my Marital Trust; and in the selection as aforesaid of the assets for said Trust my Executor shall select only assets which qualify for the marital deduction in the Federal Estate tax;

“(b) In Trust, however, for the following uses and purposes: to pay to my wife during- her lifetime all the income from my Marital Trust in as nearly quarterly installments as may be practicable, and at least annually, and also to pay her at any time and from time to time during her lifetime such nart or parts of the principal of my- Marital Trust even to the extent of all thereof as my wife may deem necessary and suitable for her comfortable support and welfare; and upon her death to dispose of the then remaining principal if any of my Marital Trust as my wife may appoint by her last will in favor of her estate or any other appointee or appointees. Should my wife fail to exercise the power of appointment, then I direct that upon her death the then remaining principal if any of my Marital Trust shall be paid over share and .share alike to my two daughters, Ruth S. Braun and Jane S. Lowe; should either of my daughters predecease my wife leaving issue surviving my wife, such issue shall take per stirpes the share such deceased daughter would have taken if living. As used in this paragraph of my will the term ‘income’ shall include everything which may be required to allow said marital deduction.”

“Item '7. If my wife, Cerise Eyre Shepard, survives me, I give, devise and bequeath to The Central Trust Company of Cincinnati, Ohio, and its corporate successors, all the rest, residue and remainder of my estate, of every kind, real, personal and mixed, and wheresoever situated, of which I may die seized and possessed or of which I have the right to dispose at the time of my death, in Trust upon the trusts and for the uses and purposes as hereinafter set forth. This trust is herein referred to as my Residuary Trust.

“From the income collected from the residuary trust property, or from the principal if it deems best, the Trustee may pay any and all taxes which may be imposed upon the principal or income of the trust estate. The entire net income shall quarter-annually be paid to my wife as long as she shall live and the trust continue.

“At the death of my wife, or if she should remarry, my residuary trust shall end and the entire principal of the trust estate and accumulated income shall be paid over share and share alike to my two daughters, Ruth S. Braun and Jane S. Lowe; should either of my daughters predecease my wife leaving issue surviving my wife, such issue shall take per stirpes the share such deceased daughter would have taken if living.”

The claim that Item 7 is invalid is based upon the assumption that its provisions are dependent upon and are inseparable from the provisions of Item 5 and therefore the invalidity of the provisions of Item 5 renders invalid the provisions of Item 7.

The common law rule of perpetuities is a rule against remoteness of vesting of title. Its purpose is to locate, within the period prescribed, a complete vested title and thus prevent the removal of the property from the market for an unreasonable length of time. Consequently the rule applies only to indestructible contingent interests, which the rule renders invalid at the time of their creation if at that time it is possible that they may remain contingent longer than lives then in being and twenty-one years thereafter. With certain exceptions, not pertinent to this case, the rhle applies to and compels the vesting of the legal as well as the equitable title.

It is clear that the equitable titles created by the provisions of Item 5 and by the provisions of Item 7 comply with the rule of perpetuities and are valid. This is conceded by the plaintiffs. Likewise the general power of appointment given to the widow satisfies the rule; whether the estates which she may create by the exercise of the power will satisfy the rule cannot be determined until said estates are created and therefore that question is not involved in this case.

The primary question before the court is whether the legal title of the trustee of the trust created by Item 5 was contingent at the effective date of the will, i. e., the date of the death of the testator and, if so, whether at that time said title might possibly remain contingent for a period longer than the time permitted by the rule of perpetuities. It is contended that the legal title of said trustee is contingent because it is either a springing executory interest or a shifting' executory interest.

It is claimed that said title is a springing executory interest because its vesting depends upon the happening of conditions precedent, namely the completion of the selection by the executor of assets which qualify for the marital deduction in the Federal estate tax law, and also the prior payment of debts and the final administration expenses and the year’s allowance for the support of the widow, in order to determine that the assets selected equal in value one-half of the net inventory value. The law favors the early vesting of estates and consequently courts will not construe acts which are necessary to be performed in the administration of . the estate as contingent events upon the happening of which depends the vesting of estates created by the testator unless the testator has used language which compels such a construction. But the plaintiffs contend that the appointment of the executor, the payment of debts, etc., in this case are acts which must precede and, therefore, are a part of the act of selection of specific property interests, and that the selection is a contingent event which must happen before the legal title to the property can vest in the trustee. It is clear that the act of selection may be merely an act of identification for the purpose of distributing specific property to satisfy a property interest which has already vested.

In Rea v. Griffin, 21 O. N. P. (N. S.) 129, the court held the following devise valid:

“I devise unto Lida Douglass * * s for life one hundred acres of land, to be taken out of what is known as the Warner land, in the following shape * *

69 Corpus Juris, Wills, Section 1371, p. 359:

“Where a gift consists of a ■ definite portion of a larger quantity, it is not rendered void for uncertainty because of the failure of the testator to point out such portion specifically, but the devisee or legatee is entitled to select his portion.” In determining whether the act of selection by the executor of the specific property which is to constitute the trust res is a contingent event, the rule that the law favors the vesting of an estaté must be applied. Unless there is clear language which compels the conclusion that the selection is a contingent event which must happen before the legal title vests in the trustee, such act of selection must be treated merely as an act identifying the property to be distributed. The pertinent language of Item 5 is:

“If my wife * * * survives me, I give, devise and bequeath to the Central Trust Company * * * property which shall be selected by my executor which at the inventory value shall be one-half (%) of the amount * * :l-; and in the selection * * * of the assets * * * my executor shall select only assets which qualify for the marital deduction in the Federal Estate Tax;”

The gift is made by words in the present tense, “I give, devise and bequeath,” and then the testator provides a formula for ascertaining the one-half value and also a description of the kind of assets, i. e. such as qualify for the marital deduction. Regardless of the exact meaning of the word, “shall,” it is manifest that the selection must be made at some time after the death of the testator. But this is immaterial; there are no words, such as “after,” “when” or “if,” which would make the gift conditional upon the selection and which words would contradict the words “I give, devise and bequeath” which pass a present property interest.

In support of the contention that the gift to the trustee is ' contingent because it is in the nature of a springing executory interest, the plaintiffs cite the cases of:

Johnson v. Preston, 226 Illinois, 447:

“I give to my executor to have and to hold for the space of twenty-five years from and after the probate of this will.”

In re Lord Stratheden Chancery Division (1894) 3 Chancery 265:

“One hundred pounds to the London Rangers on the appointment of the next Lieutenant Colonel.”

Engels v. Mayer, et al., (1943) 1 All English Law Reports, 506:

A gift over was made “after the present war-is terminated.” These cases are not in point; in all of them the property interest vested only “from and after probate”; “upon the appointment” and “after the termination of war.”

In Item 5 of the-will under consideration, not only is there an absence of such words indicating that the property right is to vest in the future and upon the happening, of a contingency, but on the contrary the only words used vest the property right at once, postponing only the idéntification of the specific property, title to which vested at the death of the testator.

The alternative contention of the plaintiffs is that the legal title of the trustee to the assets in the marital trust is contingent because it must be acquired by way of a shiftingexecutory interest. This contention is based upon the claim that an implied trust is created in the executor for the performance of the act of selection, etc. It is a well settled rule that where the will imposes upon the executor a duty which is in addition to and distinct from the duties inherent in his office of executor, and the performance of such duty requires that the-executor have the legal title to property, an implied trust is created. If the legal title required by the executor to perform such duty is a fee or absolute title, any interest in said property given to another, even though by words of present conveyance, such as “I devise and bequeath,” must be by way of a shifting executory interest,' that is, the performance of the duty is a contingency the happening of which defeats the title of the implied trustee and vests the title of the other donee.

In support of this claim the plaintiffs rely upon the following authorities:

Rule XX of the Probate Rules of Practice. “Whenever the closing of an estate depends upon the happening of an event and the estate has been administered so far as possible pending such event, the court may excuse the fiduciary from further accounting pending the happening of such event, providing the fiduciary does not have the funds in his hands belonging to said estate. If he is required to hold funds pending such an event, the matter will be considered as a trust, and accounts will be required every two years.”

Rudolph v. Schmalstig, 9 O. O. 452:

“Wherein the executor was directed to pay certain legacies out of the income of the whole estate.”

And also, Dean v. Mumford, 102 Michigan 510:

“Wherein an annuity for life was given to the widow to be paid by the executor out of income.”

These authorities are not in point. In both cases the duty imposed upon the executor was clearly in addition to and distinct from the duties inherent in his office; also in both cases the duty of payment out of income could not be performed unless title was impliedly vested in the executor as a trustee. In the case under consideration, in view of the duties imposed upon the executor both by the statutes of Ohio and the Federal estate tax law, in connection with the payment of inheritance and estate taxes, it is doubtful whether the duty of ascertaining the one-half value of the net assets and making selection of assets which comply with the marital deduction is strictly in addition to and distinct from the duties inherent in the office .of executor. However, assuming that such is the character of this duty, the performance of it does not require the executor to have the fee simple or absolute legal title distinct from such title as he may take merely as an executor. The duty to select is a mere naked power which, unlike a power to appoint, does not create or destroy titles. As an illustration: A devises ten acres out of the center of a described one hundred acre tract and further directs that B, a surveyor, should determine the exact location of said ten acre tract. Surely B, the surveyor, is not compelled to acquire the title in the one hundred acres in order to perform the duty imposed upon him.

For the foregoing reasons the court holds that the title of the Central Trust Company as trustee to the property given by Item 5 vested immediately upon the death of the testator and the rule of perpetuities does not apply. ■

In view of the above holding it is not necessary to determine whether the period for the performance of the act of selection exceeds the period prescribed by the rule. of perpetuities. However, it is the .opinion of this court that while there is no definite period prescribed by the will for making the selection, the State statutes with reference to the administration of estates and the Federal estate tax law do prescribe periods for making the tax returns, which are within the period prescribed by the rule against' perpetuities.

Also in view of the holding with reference to the provisions of Item 5, it is clear that the provisions of Item 7 do not violate the rule of perpetuities. But it is the opinion of this court that if the provisions of Item 5 did violate the rule of perpetuities, said provisions would be void from the death of the testator and therefore said assets would fall into and become a part of the general residuum disposed of in Item 7.

The court holds that the trust created by Item 5 and the trust created by Item 7 do not violate the rule of perpetuities and are valid.


text:
    STATE, Plaintiff-Appellee, v. STEVENSON, Defendant-Appellant.
    Ohio Appeals, Second District, Fayette County.
    No. 265.
    Decided January 19, 1951.
    Clark Wickensimer; Pros. Atty., Washington C. H., for plaintiff-appellee.
    Hill & Hill, Washington C. H., for defendant-appellant.
   OPINION

By THE COURT:

This is a law appeal from a judgment finding the defendant guilty of embezzling the sum of $1000.00. ,

The record reveals that the prosecuting witness, Lora Post, became a patient at the rest home conducted by the defendant on August 9, 1947; that she was suffering from hemorrhage of the lungs, and being eighty-two years of age her physical condition was so impaired that she appointed the defendant as her agent to handle her banking and financial affairs; that on March 25, 1948, she withdrew the sum of $1025.00 from the checking account of the prosecuting witness upon a check signed by Lora Post, who testified that she thought the check was only for the sum of $25.00, and which amount was given to her by the defendant, although the defendant claims that she gave her the full amount, to wit, $1025.00. It was not until two years later when she had her account balanced that Lora Post learned of the $1000.00 shortage. A conference was soon thereafter had between Clark Wickensimer, the Prosecuting Attorney for Fayette County, the defendant Bess Stevenson and Richard P. Rankin, who was acting as the defendant’s attorney. The prosecution called attorney Rankin as a witness to establish the fact that a demand was made upon the defendant for an accounting and the return of the $1000.00, all of which' was refused. An objection to the question was sustained for the reason that the same was a privileged communication. Since the Prosecuting Attorney was the only other available witness at the conference he took the witness stand for the same purpose. The same objection v/as made to his testimony, which was overruled. The record then discloses the following, the Prosecutor being the witness referred to:

“THE WITNESS: As I stated, as I recall it was in the afternoon of April the 21st. We sat around Mr. Rankin’s desk in his office. He sat at the desk and Bess sat right between he and I. And she had there in her — strike that.

At that time I demanded, as agent for Lora Post, that she account for certain monies that she was short- in her accounts to Lora Post.

MR. HILL: Well, I object to that and ask that it be stricken. It is a self-serving declaration, in the first place.

THE WITNESS: If the Court please, there has to be a demand for an accounting.

THE COURT: Well, it is rather a conclusion. 'It is hardly usual conversation in that way.' The Court will not object to the showing of the conversation. ‘I made a demand,’ is a conclusion and will be ruled out. You may state what was said.

THE WITNESS: We had a considerable amount of discussion about figures with Mrs. Stevenson and Mr. Rankin, and copies and statements from the bank lay on the desk. And after going over the figures I stated to Bess Stevenson that, ‘You are short at least a thousand dollars if not more.’

MR. HILL: I object and ask that the jury be instructed to disregard it. It is conversation.

THE COURT: Well, because it is prejudicial is no reason for striking it out if it is material. Why isn’t it relevant and material?

MR. HILL. To have the Prosecuting Attorney get up there and say to her in front of the jury that she is short a thousand ■ dollars, Judge.

THE COURT: Well, no. He is stating what the conversation was.

MR. HILL: And he is stating it before a jury.

THE COURT: What is your objection?

MR. HILL: My objection is it is objectionable because as an officer of the Court he has to prove his case by his evidence, and that conclusion—

THE COURT: Wait just a moment. The State must show a demand. By whom has the State proved a demand here, Mr. Hill?

MR. HILL: By whom have they proved a demand? By no one.

THE COURT: All right. Now, that would be relevant, wouldn’t it?

MR. HILL? I.am objecting to the language.

THE COURT: Well, the. language may not have been all that it should have been.

MR. HILL: That is inflammatory to the jury, ‘short a thousand dollars.’

THE COURT: Well, the objection will be overruled.

MR. HILL: Exception to the ruling of the Court.

THE WITNESS: And she stated to me at that time' that she would refuse to pay any money back.

At that time she laid on Mr. Rankin’s desk this check, State’s Exhibit H, a thousand and twenty-five dollars. And I ask her what she was doing with this check in her possession, and she did not answer. I asked her, ‘Mrs. Stevenson, did you get this thousand and twenty-five dollars from the Washington Savings Bank?’

She said, ‘Yes, I did.’

I said, ‘What became of that money?’

Her answer was, T put it in Lora’s poeketbook just before ■I took her out to Mrs. Malone’s — before she went out to Mrs. Malone’s.’ ”

The first assignment of error relates to the admission of this testimony as being prejudicial and that the Court erred in overruling the objection to it. We find no error in the admission of this testimony. The record discloses that the money came into the hands of the defendant lawfully. Therefore it became incumbent upon the State to prove that a demand for a return was made and that the same was refused in order to complete the crime of embezzlement.

In Shelley v. State, 19 C. C. (N. S.) 164 (affirmed without opinion, State of Ohio v. Shelley, 85 Oh St 481), the Court said:

“The nature of the crime of embezzlement is such that although money may be received by an agent or servant from time to time as it comes into his hands lawfully, there may be no completed crime of embezzlement until, having thus received several sums at different times he finally refuses or is unable to account for the aggregate amount.”

The appellant is particularly urging that the statement of the Prosecutor “You are short at least $1000.00 if not more” is highly prejudicial since it came from the Prosecuting Attorney and that nothing the defendant could say would erase this proposition from the minds of the jury. But this statement was the actual conversation had with the defendant and being such it was admissible as being necessary for the full understanding of the answer she gave thereto.

The appellant further contends that the verdict is not sustained by the evidence. It will be observed that the prosecuting witness denied most emphatically0 having ever received the $1000.00 from the $1025.00 check. The appellant contends that her testimony is unreliable because of her advanced age and physical condition. The determination- of this question was a function of the jury and not of a reviewing-court.

We have carefully examined the entire record in this case and are of the opinion that the same amply sustains the verdict. Since all of the elements of the offense were fully established the verdict is not contrary to law.

The judgment will be affirmed.

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


author: By SKEEL, PJ.:

text:
    HARRIS AND LEWIS, Plaintiffs-Appellees, v. BALLACHINO et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22315.
    Decided December 24, 1951.
    Kuth & Meyers, Cleveland, for plaintiffs-appellees.
    Louis A. Perry, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, PJ.:

This appeal comes to this Court on questions of law from a judgment of the Municipal Court of Lakewood, overruling the defendants’ petition to vacate a judgment entered against them on a cognovit note. The judgment by confession, without the-service of process upon the defendants was entered by the court September 20, 1950. The petition to vacate the judgment was filed on June 25, 1951 under the provisions of §11631 GC which section sets forth the grounds upon which a judgment may be vacated after term. The grounds set forth in the petition were that the judgment was obtained on a warrant of attorney for more than was due when the defendants were not summoned or otherwise legally notified of the time and place of the taking of judgment under paragraph 9 of said section.

The defendants, Paul and Louis Ballaehino, by their petition, further allege that they were minors when they signed the note on July 9, 1942; that they were inducted into the service of the Army of the United States and were unable to give notice of disaffirmance. The petition further alleges that the defendants first knowledge of the judgment was in June, 1951, when an action in foreclosure was instituted on the basis of said judgment and that they now disaffirm said obligation because they were minors when the note was signed.

They further claim that the plaintiffs are assignees of the note upon which judgment was taken, the action being instituted by plaintffis as a partnership, in a fictitious name, without first having filed a certificate with ‘the county clerk as provided by §8104 GC.

The claim that the plaintiff as a partnership had no legal right to bring the action without registering as provided by law is completely disposed of by the case of Czatt v. Case, 61 Oh St 392. The syllabus provides:

“Where the firm name in which a copartnership transacts business in the state contains the surnames of all the members of the firm, and none other, it is not a fictitious name or designation not showing the names of the persons who constitute the firm within the meaning of the statute requiring a certificate to be filed with the clerk showing the full names of such persons.”

This case is cited in the note following the case of Kusnitzky v. Ins. Co. 281 S. W. 47 (Missouri Sup. Ct. 1926) 45 A. L. R. 189 at page 258, as supporting the weight of authority.

The claims of error that the court should have vacated the judgment because the amount thereof was for more than was due and that the defendants were minors when the contract was made and that they now disaffirm the same, must be overruled. If the allegations of the petition were supported by credible evidence, there could be no question but that the failure to order a new trial would constitute prejudicial error. The only way such error can be demonstrated, however, is by a bill of exceptions. No such bill was filed as provided by law and this Court is, for that reason, unable to determine whether the overruling of the defendants’ petition to vacate constituted prejudicial error.

For the foregoing reasons the judgment overruling defendants’ petition to vacate plaintiff’s judgment must be affirmed. Exceptions. Order see Journal.

HURD, J, THOMPSON, J, concur.


text:
    GUARANTEE TITLE & TRUST COMPANY, Trustee, Plaintiff-Appellant, v. ERNER & HOPKINS COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4451.
    Decided November 10, 1950.
    Clarence M. Addison, Columbus, for plaintiff-appellant.
    Henry L. Scarlett, George E. Landis, Columbus, for defendant-appellee.
    Paul J. McNamara, George L. Breithaupt, Columbus, Amicus curiae.
   OPINION

By THE COURT.

This is an appeal on questions of law from a judgment of the Common Pleas Court “finding on the issues joined for the defendant” and dismissing plaintiff’s petition. (Emphasis ours.)

The authority of the plaintiff is based on a trust. instrument wherein it holds, as Trustee, the rights of George L. Gugle by the leases and assignments hereinafter discussed, wherein Gugle is a party.

As a part of the recitation in the bill of exceptions, it is stated:

“the Court found in favor of the defendant, and against the plaintiff, as appears from the written decision filed herein on the 7th day of January, 1950 and entered up judgment on said finding as appears from the entry filed herein on' the 20th day of January, 1950.” (The judgment entry heretofore mentioned.)

The trial judge in his opinion held against the defendant on the first and third defenses of the answer and with the defendant on the second defense predicated upon the 15-year statute of limitations. The first defense is the claim of a merger of the rights of Gugle and Gugle and associates with those of defendant and a termination of the building covenant of defendant of date May 31, 1929, and a general denial.

The third defense is estoppel by reason of failure of plaintiff and Gugle to urge its claim at the time of and subsequent to the dissolution of defendant corporation in March, 1932, and upon other facts set up in said defense.

The written opinion, treated as findings, formed the basis for a judgment accordingly but the judgment, as entered, was general in its terms and had the effect of a finding for the defendant upon all of the issues joined. To justify a reversal of the judgment we must say that no one of the defenses is supported by the record or that plaintiff has not made its case -as against a general denial.

We are satisfied that- the conclusion of the trial judge as to the first and third defenses of the answer is sound and without further comment we hold in accord therewith. The plaintiff has established its right to a judgment subject only to the bar set up in the second defense of the answer, the statute of limitations.

The trial judge was of opinion that, by the terms of the lease of April 30, 1923, from Gugle and others to Taylor, the lessee was to erect on the leased premises “a modern business building to' cost not less than Thirty-five Thousand Dollars ($35,000.00) and that construction was to begin not later than November 1, 1925; that the time was not extended to erect the building described and that the action instituted in November, 1945, was barred by the statute of limitations.

Appellant asserts that it is suing on the covenant in the 99-year lease, Baker to Gugle and associates. By this covenant Gugle and associates, as lessees, were bound to erect within four years from April 1, 1916, “a fireproof building not less than four stories in height to cost not less than $35,000.00.” Unless extended the right of lessor to enforce this covenant was subject on April 1, 1935, to the bar of the statute of limitations. The benefits of this covenant passed to Gugle who succeeded to the rights of the lessor, Baker, by assignment, of April 1, 1916.

The assignment of lease from Gugle and associates to The Erner & Hopkins Company of May 31, 1929, purported to pass only the title of Gugle and associates, as lessees, under the lease of April 1, 1916, Baker to Gugle and associates. The assignment expressly excepted the rights of the lessor.

Gugle, as the assignee of the lessor, Baker, had the right to enforce the covenant which defendant made with him and associates as lessees, in the aforesaid assignment of May 31, 1929, which provided, “and that it will observe, perform and comply with all of the terms, conditions and covenants contained in said 99-year lease.” The 99-year lease spoken of is the lease from Baker to Gugle and associates, specifically referred to in the assignment, as the lease dated April 1, 1916. We readily agree that the promise of The Erner & Hopkins Co. will avoid the operation of the statute of limitations if that is the intendment of the covenant which it made. 37 C. J. S. Í098.

What were the applicable covenants in the Baker lease which The Erner & Hopkins Company agreed to perform? They were to erect a fireproof building of not less than four stories in height, at a cost of not less than $35,000.00 and to comply with this obligation within four years from the date of the lease, namely, by April 1, 1920. The Erner & Hopkins Company assumed to comply with the covenant just as it was written in the Baker lease. Manifestly, the covenant to perform within the time provided had- been breached and The Erner & Hopkins Company assumed the status of Gugle and associates, who were liable upon any action to which Gugle might resort by reason of the breach.

There is an extender of the time provided in the Baker lease within which to build until November 12, 1930 in an agreement between Gugle and Gugl§ and associates, plaintiff’s Exhibit 9, but it is not shown to have been recorded and actual knowledge of the defendant of its provisions is not shown.

We do 'not subscribe to the theory of the plaintiff, that under the assignment of May 31, 1929, The Erner & Hopkins Company covenanted to erect the building mentioned in the Baker lease within four years from the date of the assignment of the lease, viz., on or before May 31, 1948. Nor, can we agree that the five year extender of time within which to build in the instrument of November 7, 1925, The Erner & Hopkins Company to Gugle and associates and Taylor, had application to the covenant in the lease of April 1, 1916.

The language of the extender of time agreement of November 7, 1925, is substantially:

Whereas, lessee covenanted and agreed to and with lessors, their heirs and assigns, and all persons succeeding to their title * * ”, that said lessee would within five years from November 12, 1920 make additions and improvements on and to the present building located on the premises herein demised, to cost not less than the sum of $35,000.00;

Whereas, it is desired by said lessors and lessee to further extend the period of time within which said additions and improvements may be made for a period of five years from November 12, 1925; * * * the period of time within which said additions and improvements on and to the present buildings located upon the premises above described may be constructed or made, shall be extended and continued for a further and additional period of five (5) years from the 12th day of November, 1925.

Counsel for appellant says in his brief, “In 1923, the syndicate executed a lease to Taylor, but that has no bearing on this case.” In this lease Taylor, the lessee, did not covenant with Gugle and associates to “make additions and improvements on and to the present buildings.” He covenanted to “erect on said premises a modern business building.” It is urged in the brief amicus curiae that the language “additions and improvements on and to the present buildings” may be liberally construed to apply to the covenant of April 1, 1916, to erect a four-story, fireproof building. It is possible that such construction could be given to this language, if it clearly appeared that it referred to that covenant but Taylor, as lessee, did not at any time covenant to erect á four-story, fireproof building. There has been no suit to reform. The language in the extender, if it may be given reference to any covenant, must relate to that one appearing in the lease from Gugle and associates to Taylor, of April 30, 1923. There is disparity in the dates. No provision has been made in any of the covenants for a building to be erected five years from November 12, 1920, although the first lease of November 12, 1915, provided that the improvements were to be made within four years or on or before November 12, 1920. The building to. be erected under the lease of April 1, 1916, was within four years from that date. The building to be erected under the lease of April 30, 1923, was to begin not later than November 1, 1925.

The right of Gugle to sue the Erner & Hopkins Company under the assignment of lease from Gugle and associates of May 31, 1929, was barred by the statute of limitations, possibly on April 1, 1935, but in any event, not later than May 31, 1944, therefore the action here instituted on November 7, 1945, was too late.

The second defense of the answer was proven.

The judgment will be affirmed.

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


author: By. HORNBECK, J.

text:
    ROYER, Plaintiff-Appellee, v. SHAWNEE MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4395.
    Decided September 27, 1950.
    Hylas A. Hilliard, Columbus, for plaintiff-appellee.
    Williams, Reynolds, Murray & Deeg, Gordon E. Williams, of Counsel, Columbus, for defendant-appellant.
   OPINION

By. HORNBECK, J.

This is a law appeal from a judgment of the Municipal Court for plaintiff against defendant in the amount of $547.06 and costs upon trial had to a judge of that Court.

Seven errors are assigned but one only is urged.

Plaintiff on September 8, 1948, was the owner of a 1947 club coupe Cadillac automobile and on that date through a Mr. Sidney Franklin, representative of Sanshuck Insurance Agency, Cleveland, Ohio, was issued a policy of insurance by the defendant company covering certain personal injuries and damages to and by the automobile as specified in the policy. The term of the insurance was for 6 months on and after September 18, 1948. On that date and after the issuance of the policy the insured car was involved in an accident resulting in damages thereto for which claim was made by the insured to the defendant company and payment made covering the loss. The Cadillac named in the policy was taken to a garage for repairs which were not completed until sometime succeeding December 4,' 1948.

On September 28, 1948, the plaintiff purchased another Cadillac automobile, and within thirty days thereafter notified Mr. Franklin, through whom he had placed his insurance, of his purchase and made inquiry of him if the-Cadillac which he had last purchased was covered by his policy with the defendant company. In response to this notification Mr. Franklin called the Sanshuck Insurance Agency and later informed the plaintiff that the second Cadillac which he had purchased was covered by his policy with the defendant company. Subsequent to this notice, on December 4, 1948, the plaintiff was involved in another collision in which the second Cadillac which he had purchased was damaged. The first Cadillac, at all times from the time of the collision in which it was involved until after the date of the second collision, was in a garage for repairs which repairs were delayed because of inability to secure parts. Plaintiff made claim for damages to the Cadillac by reason of the second collision, which claim was refused and suit was instituted by the plaintiff upon the policy.

It is claimed by the plaintiff that the defendant company is obligated by the terms of its policy to pay to him the damages resulting from the collision in which the second Cadillac was involved. It is the claim of the defendant company that at the time of the second collision the Cadillac which was damaged was not insured. It further appears that in one of the conversations between the plaintiff and Mr. Franklin the plaintiff stated that he intended to sell the Cadillac described in the policy, but he did not sell it until after the second accident.

The question presented requires construction of the applicable provisions of paragraph 9 of the policy, headed “Automatic Insurance for Newly Acquired Automobiles” and reading:

“If the named insured who is the owner of the automobile acquires ownership of another automobile and so notifies the company within 30 days following the date of its delivery to him, such insurance as is afforded by the policy applies also to such other automobile as of such delivery date:

“(a) if it replaces an automobile described in this policy, but only to the extent the insurance is applicable to the replaced automobile, or

“(b) * *

The question is further narrowed down to the meaning in bracket (a) of the language, “if it replaces an automobile described in this policy.” If the second Cadillac replaced the Cadillac named in the policy then the judgment was properly entered in the trial court. It is our conclusion that under the facts appearing the second Cadillac acquired did replace the Cadillac described in the policy. We make this determination upon the language of the policy itself independent of the statement of Mr. Franklin to the plaintiff that the second automobile acquired was covered.

The term “replace” means to take the place of. The first Cadillac was insured to be used by the plaintiff for “business and pleasure.” Manifestly an automobile which was inert and could not be operated and which was laid up in a garage for repairs ceases to serve the purpose of the automobile which the defendant insured. Collision insurance is of no value on such a car. The second Cadillac was acquired for and did serve the insured as an automobile for business and pleasure. In the common acceptation of the term “replace” it replaced the automobile which was named in the policy. .The fact that the insured retained the title to the Cadillac named in the policy and the second Cadillac purchased does not change the application of the terms of the policy because the use to which the second car was put clearly indicates that the purpose for which the second Cadillac was employed was to replace the Cadillac named in the policy.

Counsel say to the Court that they have found no cases paralleling the facts developed in the instant appeal. We assume that this is true and have made no intensive search of the authorities. However, we do find that the situation developed here was anticipated and clarified in the language of the policy issued by the defendant insurance company in Dean v. Niagara Fire Ins. Co. (Cal.), 68 Pac. (2d) 1022. There paragraphs 2 and 3 provide:

“2. If the Company does not cover all automobiles owned by the named insured at the date of such delivery, (of the policy) the insurance shall be applicable only to such other automobile described in this policy.

“3. The insurance afforded by this policy shall automatically terminate upon the replaced automobile at the time of such delivery.”

We do not have the question in this case whether or not the automobile named in the policy was insured during the period that it was replaced by the second Cadillac, but we are satisfied that the second Cadillac was covered by the policy and that the judgment for the plaintiff was properly entered.

Judgment affirmed.

MILLER, PJ, WISEMAN, J, concur.