author: SULLIVAN, PJ.

text:
    SILBERMAN & CO v ACME HOUSE WRECKING CO.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    No 9475.
    Decided Nov. 26, 1928
    Sol Edgert, Cleveland, for Silberman & Co.
    S. A. Finesilver, Cleveland, for Wrecking Co.
   SULLIVAN, PJ.

A more serious question would arise under the record in the case were the transaction not confined to chattel property only, but to an interest in real estate. It is claimed by counsel for plaintiff below that even though the contract for the disposal of the chattels related only to the building itself^ yet it was an interest in real estate inasmuch as the building was located upon and was part of the land itself.

We do not think that the authorities in Ohio recognize this principle. Under the facts in the case there is no question in our mind but that the subject matter of the transaction relates only ,and wholly to personal property, and was not in any sense of the law in any manner connected with an interest in lands. Therefore, the question can only be approached upon principles relating to the sale of personal property.

It is undoubtedly the law that even in relation to fixtures which are part and parcel of real estate that an agreement which designates the property in question as personal property, and excludes it from the field of permanent fixtures, will be sustained by the courts and the only possible question that could arise in a case of this character is whether the ultimate purchaser of the land is held to the restrictive agreement without notice.

The building in the instant case was bargained for, for the purpose of wrecking and for no other purpose connected with an interest in the land itself.

Prior to the wrecking of the building, G. L. Silberman & Co. plaintiff in error, was a tenant from month to month under a business relationship with the Nickle Plate Railroad Company and subsequently The Acme-House Wrecking, Co., purchased the building for the purpose of wrecking it, but no interest in the land was conveyed nor was it the intention so to do.

The New York Central Railroad Co., was the owner in fee simple and inasmuch as the Union Depot project was in contemplation it became necessary to take the building off and therefore the necessity of wrecking the same.

Thus it happened that the property was rented to plaintiff in error for a month to month tenancy, and a certain elevator therein having been destroyed by fire, a new one was installed by the tenant, upon the condition that it had the right to remove the same when the building was to be torn down. Before wreckage it was discovered that in conformity to this arrangement with the railroad company and the tenant, the elevator and the other fixtures in question over which the dispute arose, had been removed.

We think under the record in the case that the law applicable thereto is laid down in Thompson on Real Property, Vol. 1, p. 231.

Also 64th Am. Dec. p. 64.

The vital question at bar as herein noted is the sanctity of a special agreement between landlord and tenant regarding fixtures and it is our judgment, under the record, in the present case, that such an agreement supersedes the general rule of law and is binding upon any one succeeding to the rights of the landlord.

203 Mass. p. 493.

On the question of notice, we think there is some evidence even though it be but of an inferential nature, of constructive notice, even though there is no evidence of actual notice to the purchaser of the building, for the reason that in a building of the character of the one at bar which was necessary to remove in order to make way for coming improvements, the presence of the tenant or the occupant we think forms a sufficient basis at least to put the purcahser upon inquiry, especially where, as in the case at bar, the elevator itself was distinctly used for the prosecution of the business in which the plaintiff in error was specifically engaged. If, however, it is argued that no such inference arises as would put the purchaser upon inquiry, yet' we think that the absence of the elevator and its equipment was sufficient in itself to form an inference at least that would be a basis for inquiry, unless the elevator equipment was a fixture in the sense that it was a component and composite part of the building and if that was the case, surely its absence would be sufficient to make a purchaser inquire.

Holding these views the judgment of the lower court is reversed as being contrary, to law and final judgment is rendered for plaintiff in error for the reason that the ultimate fact is a concession of the agreement of the right to remove and therefore binding upon the successor of the landlord.

Vickery, and Levine, JJ, concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    ERNST v ERNST et
    Ohio Appeals, 6th Dist, Erie Co
    No. 294.
    Decided July 8, 1929
    J. F. McCrystal & A. F. Weichel, both of Sandusky, for plaintiff.
    King, Ramsey & Flynn, Sandusky, for defendant.
   WILLIAMS, J.

Under the decisions in Ohio the testator, by this language, attempted to engraft a remainder upon a fee, and the remainder over is void.

Trumbull vs. Stentz, 164 NE., 57; Budd vs. Klaiss, 28 Court of Appeals Opinions, 6th District, unreported, p. 214; Hull vs. Chisholm, 7 Ohio App., 346; Widows Home vs. Hippardt, 70 Ohio St., 261; Steur vs. Steur, 8 C. C. N. S., 71; Tracey vs. Blee, 22 C. C. N. S., 33; Peeler, Admr. vs. Cruit, Vol. 3 Law Abstract, p. 325; Carpenter vs. Carpenter, 24 Court of Appeals Opinions, 6th District, unreported, p. 238.

Philepina Ernst therefore took the re,al estate as devisee, absolutely and in fee simple/ Perhaps it is not of great consequence in determining this case whether Philepina Ernst w.as owner of a life estate in the premises in question or owned it absolutely in fee simple, for in either event the plaintiff would take the same interest in the real estate, whether under the will of Conrad Ernst, deceased, or as heir at law of Philepina Ernst. It does make a difference, however, in interpreting the contract of release executed and delivered by Conrad Enrst and Barbara Ernst to Philepina Ernst on October 13, 1908, and a power of attorney executed contemporaneously with the deed of May 8, 1918. The contract of release provided that' in consideration of the sum of $350.00 to be paid on or before February 1, 1909, by Philepina Ernst, Barbara Ernst and the plaintiff agreed to release, assign and quitclaim all right, title and interest in and to the estate of Conrad Ernst, deceased, to Philepina Ernst, and the so-called power of attorney makes reference to the provisions of this contract of release. By this contract of release the plaintiff did not agree to release any interest he might have in the estate of his grandmother, Philepina Ernst. The power of attorney referred to has no bearing on the real estate and affects the personal property only.

With reference to the quitclaim deed, in question, the testimony of the witnesses as to what happened ,at the time of its execution is contradictory. The plaintiff Barbara Ernst, the defendant Henry Ernst and an attorney for the defendants, Henry Sehoepfle, who is now deceased, were the only persons present. The plaintiff and Barbara Ernst testify that the d'eed was executed ,and delivered upon the understanding, agreement and condition that the plaintiff was to get his father’s share and that this was agreed to by the attorney Sehoepfle. This testimony is contradicted by Henry Ernst, who says that the deed was made to carry out the contract of release above referred to and that it was the wish of Conrad Ernst, deceased.

The remarkable thing about this transaction is that the plaintiff never received one penny for his interest in the estate which amounted to from $30,000 to $40,000. Truly, if defendant’s contention is well founded, the plaintiff sold his birthright for a mess of pottage and then to cap the climax he did not get the pottage, for even the one dollar which was named as a monetary consideration in the quitclaim deed was paid to his mother, It is true that after the death of Theodore Ernst, his widow, Barbara Ernst, was given a deed for the premises, then valued at $1,500, in which they had lived since 1889, and it is also true that in connection with the release agreement she had received from Philepina Ernst $300 or $350. But the vital fact is that the plaintiff was not a party to these transactions.

We are compelled to the conclusion that the deed in question was given to the other heirs with the express understanding that it was done to avoid trouble in setting up the estate and that the plaintiff should receive his father’s share of the estate. Of the property conveyed by 'the quitclaim deed, two parcels have been sold, for which a consideration of $9,800.00 was. received. The plaintiff is not entitled to’ relief in having the deed set aside, but a judgment and decree will be entered requiring the defendants to account for plaintiff’s proportionate share of the $9800.00 received for the real estate sold and interest thereon, and finding that the defendants hold the remainder of. said real estate subject to the agreement and understanding upon which it was conveyed to them. The defendants will also be required to account to plaintiff for his proportionate share of rentals received from the real estate. The remaining real estate should be sold by order of court and the .proceeds thereof accounted for.

In accordance with the practice of this court in cases of this character this cause is remanded to the court of common pleas for sale of real estate and for an accounting .

Lloyd and Richards, JJ., concur.


author: VICKERY, PJ.

text:
    UNION TRUST CO v TURANSKY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9890.
    Decided May 13, 1929
    Spieth, Taggart, Spring & Annat, Cleveland, for Trust Co.
    R. H. Finkle and Wm. H. Rosenfeld, both of Cleveland; for Turansky.
   VICKERY, PJ.

The Insurance Company appealed the case to this court and in argument the counsel for the Insurance Company franklv admits that, as against The Union Trust Company, it would not be entitled to be subrogated until the whole of The Union Trust Company’s mortgage had been satisfied, but it claimed that it had a priority over the second mortgage and that, of course, would depend upon the manner in which the rider which sought to divest the Goldsmith Brothers of their right to the Insurance Company, had been affixed to the policy.

If the Insurance Company was liable to The Union Trust Company for the loss, it would likewise be liable to the Goldsmith Brothers, unless the Goldsmith Brothers’ rights were changed by this later rider which we do not concede to be possible, when it was done without their knowledge or consent.

We think that the judgment of the court below was right and that The Union Trust Company has the first and best lien on this property for the amount that remains unpaid on its mortgage; that the Goldsmith Brothers have a second claim for the amount of their mortgage, and that the Goldsmith Brothers are entitled to a personal judgment for anv deficit that may appear against the owners of the fee, and as against the owners of the fee the insurance company is entitled to such sum not exceeding $3290.34, as may be remaining after The Union Trust Company’s mortgage is satisfied and after the Goldsmith Brothers’ liens are satisfied, but that these claims are prior to any right that the insurance company may have, and the balance, if any, to the owners of the fee; and a decree may be drawn embodying these ideas.

Sullivan and Levine, JJ, concur.


text:
    WALKER et v RESCH et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9454.
    Decided March 11, 1929
    John J. Moore and Jesse Stephens, both of Cleveland, for Walker.
    Allison M. Gibbons, Cleveland, for Resch.
   SULLIVAN, PJ.

Prom an examination of the evidence it is clear that Mrs. McBurney was the broker who negotiated the transaction concerning the lease between Mary Resch and the plaintiffs. This fact is largely determinative of the issue as to whether plaintiffs had any knowledge of the prior execution of an unrecorded lease from Mary Resch to Mrs. McBurney. The conclusion is irresistible, from the record, that during the negotiations of this lease, Mrs. Mc-Burney, with the plaintiffs present, made no mention of what she now claims, to-wit, that a prior lease for a portion of the rear of the lot had been executed to her. Prom such a situation it became imperative on the theory of self-preservation at least that the plaintiffs should have been made aware by the broker who herself had full knowledge, of her own prior right in the disputed territory. It is hard to account for the non-disclosure by the broker of such a paramount fact because the necessity of the occasion required that the existence of the prior lease be exposed as a fact to the plaintiffs; otherwise the plaintiffs might have refused to have gone forward to a conclusion of the negotiations.

Another element which is determinative to a large degree, of the issue in the case, is the fact that the attorney for Mary Resch, who drew the papers made memoranda of all exclusions and exceptions, excepting the reservation of the territory claimed by the prior lease. This able counsel drew the lease between Mary Resch and the plaintiffs and there is no mention of the exclusion of the disputed territory in the lease, even though counsel was meticulous in respect to all other qualifications and exceptions growing out of the mutual understanding. In addition to these two weighty circumstances the plaintiffs themselves positively deny that there was any understanding or knowledge on their part as to the exclusion from their lease of the building and premises, of the property claimed to be eliminated in the rear of the building.

Prom the record there is no basis for the claim of mutual mistake. This doctrine can only apply providing the record furnishes the proof that notwithstanding, the conflict in the testimony, that the plaintiffs and Mary Resch originally made a mutual mistake which they asked the court to correct.

The sanctity of a written instrument such as the leasehold to the plaintiffs, is of such a character that it stands impregnable as against proof which falls short under the entire record, of being clear and convincing.

Under GC. 8543, where the plaintiffs had no knowledge of the existence of the former instrument, they have the protection of the statute which provides that all instruments of writing for the conveyance or encumbrance of lands, shall be recorded in the office of the Recorder and until so recorded they shall be deemed fraudulent so far as they relate to the subsequent bona fide purchaser having at the time of purchase no knowledge of the existence of such formal deed or instrument. That this section also applies to leases there can be no doubt.

In the discussion of this case we do not forget that the defendant, McBurney in addition to no record of her lease, was not in possession of the premises and there was no source of information but from the owner of the property or the contending lessee, for the protection of the plaintiffs.

Of course there is no question but that an instrument of writing containing an erroneous description will be reformed but only when the evidence clearly shows such a mistake.

Broadwell vs Phillips, 30 OS. 255.
3rd Longsdorf’s Notes 528.
“Reformation will be granted only on clear and convincing evidence.” Geiss vs Shepherd 1st Dayton Forms Rep. (Iddings) p. 90.

On the question of mutuality of mistake, in order to reform a deed a preponderance of the evidence is not sufficient. There must be clear and convincing proof, and the supreme court will examine the record to ascertain if the necessary quantity and quality of the evidence has been submitted to the court.

Stewart vs. Gordon, 60 OS. 170.
4th Longsdorf Notes 781.

Thus holding a decree may be entered in favor of the plaintiffs. Order See Journal.

Vickery, PJ, and Levine, J, concur.


author: LEVINE, J.

text:
    STATE ex SPIRA v CUYAHOGA CO COMMISSIONERS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10082.
    Decided May 13, 1929
    Farrell & Edwards, Cleveland, for State.
    Ray T. Miller, and E. P. Westenhaver, both of Cleveland for Commissioners.
   LEVINE, J.

Two questions of law are presented upon the record. First, can the power of the Board of County Commissioners to make an appointment as an assistant to the clerk, and the validity of the appointment, be determined by a consideration other than the law which authorizes the appointment and the resolution of appointment? In other words, can regard and consideration be given to the subsequent events which took place after the appointment was made, and can the duties assigned to the appointee after the appointment, be taken as a basis for invalidating the appointment? Second, are the duties of the clerk and his assistants limited to purely clerical duties, and is the Board of County Commissioners without authority to assign to the clerk or his assistants duties other than those purely clerical, enumerated in 2406 GC.

The appointment of the relator was made from the unclassified list of the civil service commission of Ohio, by authority of Sec. 486-8 under the heading of “Positions in unclassified service****.”

We must of course look to other sections in the Code with a view of determining whether the Board of County Commissioners was empowered and authorized to appoint the relator. Sec. 2409 deals with the apointment of a clerk to the County Commissioners and his assistants.

We are referred to the case of State of Ohio ex rel Landis v. Board of County Commissioners of Butler County, 95 OS. 157. In that case the validity of Sec. 2409 which authorizes the appointment of. a clerk to the County Commissioners was the only question, and it was contended that the clerk was a public officer within the meaning of Sec. 2, Art. 10 of the Constitution and therefore could not be appointed. In that case the court held that the position of clerk did not involve the exercise of continuing, independent political or governmental functions.

In addition to holding that the clerk of the Board of County Commissioners is not engaged in duties which involve the exercise of continuing, independent political or governmental functions, this case holds that the Board of County Commissioners has such powers and jurisdiction and only such as are conferred by statute. We must look therefore to Sec. 2409 GC. and from its language determine whether the board of county commissioners may impose upon the clerk or his .assistants, duties other than purely clerical duties such as are enumerated in Sec. 2406. Note the language, — **“Such clerk shall perform the duties required by law and the board.**” As to what are the duties required by law of such clerk, the same is fully set forth in Sec. 2406 but it was clearly the intention of the legislature that the duties of the clerk may be made, at the discretion of the Board, more numerous and greater than merely those required by law.

In the case of Slinguff v. Weaver, 66 OS. 621, the Supreme Court in clear language set forth rules of guidance for the construction of a statute.

In order to give full effect to the language used in Sec. 2409 we are led to the conclusion that the words “such clerk shall perform the duties required* *by the board” were inserted intentionally for the reason that the legislature felt that in view of the many responsibilities, varied and divers duties which are imposed on the board of county commissioners, that it would be conducive to more efficient administration if the county commissioners are empowered to add to the duties imposed upon the clerk and his assistants by law and so as to assist the commissioners to more efficiently perform their duties.

It is not, in our opinion, unreasonable for the Board to require of the clerk or his assistants, or both, that they investigate claims arising against the county.

There is anothér important consideration which aids us in reaching our conclusion and that without regard to the interpretation of the language used in Sec. 2409. We are inclined to the opinion that the duties assigned to an employee after his appointment cannot be inquired into, for the purpose of determining the validity of the appointment. Once it is found that the appointing power has authority by law to appoint the employe to a designated employment the subsequent events following the appointment cannot be considered in determining the validity of the appointment when made.

The legal status of the relator is to be determined by inquiring whether the appointing, power at the time the appointment was made had authority to appoint him as assistant to the clerk and whether they exercised that power by actually appointing him to such position. No doubt whatsoever can be expressed but that the board may appoint such necessary assistants to the clerk as it deems necessary. By the adoption of the resolution of appointment, the board determined that such assistant was necessary. The courts are not endowed with visitatorial nowers to approve or disapprove the manner in which the county commissioners exercise the powers conferred upon them by Sec, 2409. The power of the court is limited to one inquiry, namely, was there lawful authority vested in the county commissioners to make the ' appointment of the relator at the time the appointment was made? But the court cannot, and will not exercise control or direction of the duties to be performed by such employe after the appointment is made.

We hold that the court of Common Pleas committed error in denying the writ. Judgment of the Common Pleas Court will therefore be reversed, and a judgment entered granting the writ. A journal entry may be drawn accordingly.

Vickery, PJ. and Sullivan, J, concur.


text:
    NATIONAL BENEFIT LIFE INS CO v DAVIS, Admr.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9999.
    Decided May 13, 1929
    John E. Roundtree, Esq., Cleveland, for Insurance Co.
    Harry E. Davis, Esq., Cleveland, for Davis.
   VICKERY, PJ.

Now the right of the plaintiff to maintain this action is based first upon the decision of our Supreme Court in the case of Filmore vs. The Metropolitan Life Insurance Company, 82 O. S. 208.

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

Fortunately we are not left to conjecture unon this subject for' the question has been decided many times.

We quote the following from 25 Cyclopedia of Law and Procedure, P. 295.

(Here follows quotation)

This seems to be an authority exactly in point with the facts in the instant case, and in 37 Corpus Juris, P. 576, we find this.

(Here follows quotation)

In Cooley on “Insurance”, 2nd Edition, Volume 6, page 5229, the author says.

(Here follows quotation)

In Joyce on “Insurance”, Volume 2, page 1827, the author states.

(Here follows quotation)

From these authorities ,and probably many more are to be found, we must come to the conclusion that, although the named ben'eficiary cannot recover because of the felonious and wilful killing of the insured, yet the insurance is still recoverable, and it is then for the benefit of the estate, and in this case H. E. Davis was appointed administrator, and as such administrator brings this suit.

It is not right that the insurance company after receiving the premiums should be able to avoid responsibility upon the policy. It has got what it contracted for and it is only fair and right that the estate should get the results of the insurance policy; and that the person who caused the death of the husband incidentally gets something is no legal reason why the estate should not recover.

We have gone over this whole record and heard the arguments of counsel and satisfied ourselves that there is no error in this record that would warrant us in disturbing the finding of the court.

The judgment of the court will, therefore, be affirmed.

Sullivan and Levine, JJ, concur.


author: HAMILTON, PJ.

text:
    SUBURBAN REAL ESTATE CO v SILVERTON (Village)
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3254.
    Decided Jan. 28, 1929
    Eltzroth, Maple & Maple, Lebanon, for Real Estate Co.
    Hunt, Bennet & Utter, Cincinnati, for Village.
   HAMILTON, PJ.

"The plaintiff in error, The Suburban Real Estate Company claims its right to recover, from the defendant, compensation for the water mains, pipes, etc., first, under favor of sections 3966, 3967, 3968, and 3969 of the General Code of Ohio; and, second, for the reason that the defendant in error, the Village of Silver-ton, has appropriated for its own use the water mains, etc. in question, and, that, by reason of such appropriation, the Village should be required to make restitution or compensation.

The sections of the Code in question provide for the extension of water mains by municipal corporations outside the corporate limits, on the written request of citizens living outside the corporate limits, and provide the terms under which water shall be furnished to such citizens.

These sections are in pari materia and must be construed with reference to each other. The plaintiff is not within the provisions of these sections.

Section 3969 does provide:

“ x x x x x in case of annexation to the corporation of such territory, the corporation shall pay to such person or persons a just compensation therefor and shall thereupon become the owner of them.”

But this only applies to the extension of mains under preceding sections 3966, 3967, ,and 3968. In the instant case, the Village had nothing to do with the installing of the mains and pipes in the subdivision. Its first connection with the case was the sale of the water to the plaintiff company through a meter. It is not a case of municipal extension of water mains outside corporate limits.

We are, therefore, of the opinion that the sections do not give a statutory right of recovery of compensation for the water mains in question.

This leaves but the proposition of the right to compensation by reason of the appropriation of the water mains by the Village.

At the outset it may be well to state that the only connecting acts on the part of the Village were the annexation of the territory on the .application of the Suburban Real Estate Company and the furnishing of water through the , mains, which mains, by reason of the annexation, became located in the streets of the municipality. There was no special legislation, arrangement, contract, or reservation with reference to these water pipes and mains.

It is true the Village continued to furnish water to the inhabitants of the subdivision, now a part of the municipality, through the mains that had been laid by the Real Estate Company. This use would not necessarily mean appropriation or conversion of the mains and pipes.

Several cases are cited by counsel none of which are decisive of this case. We have before us, however, the case of The Ford Realty & Construction Co. v. City of Cleveland, decision by the Court of Appeals, reported in 164 N. E. Reporter, page 62; (30 Oh Ap 1; 6 Abs 496).

Moreover, the Village of Silverton could not contract for the purchase of such property, or construct such an improvement without specific legislation therefor. The Village could only act through Council, and Council has only such powers as are conferred by statute and can only proceed under statutory authority.

Annexation, upon application, is not legislation providing for the purchase or construction of an improvement. In the absence of statutory authority, no relief can be had against the' Village, on the ground of conversion.

Section 3966, et seq, not furnishing relief, as stated elsewhere in this opinion, there is no statutory relief afforded, and the judgment of the court of common pleas will be affirmed.

Cushing and Ross, JJ, concur.


author: SULLIVAN, J.

text:
    SKILLICORN v McCORMACK et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9834.
    Decided March 24, 1929
    Harry Efros, Cleveland, for Skillicorn.
    Packler & Woods, Cleveland, for McCormack et.
   SULLIVAN, J.

It would appear from the case of Cleveland Produce Company vs. Dennert, 104 Oh St, page 149, that the statutory requirement is mandatory.

An error requiring a reversal must be prejudicial as against the face of the entire record, and unless it is so, a reviewing court finds authority .in the doctrine so repeatedly laid down, that the ultimate question is whether, under the •entire record, substantial justice has been done. In the instant case it is our judgment, after a consideration and examination of the case upon its merits, as submitted finally to the court below, that the judgment of the lower court is substantiated by the record.

It is our judgment that the application made at the close of plaintiff’s case should have been renewed at the close of the case itself, or should have been made any time between the closing of the case and prior to the rendering of the judgment, or at least immediately upon the rendering of. judgment. The cause is here upon a bill of exceptions, and yet, the record is minus any exceptions or any refusal.

However, it is argued, that the neglect of the court is tantamount to a refusal, but we do not hold the same view, for the reason that the application at the end of plaintiff’s case was not followed up by a similar application at the close of the entire case. Counsel for plaintiff in error, in quoting the case of Cleveland Produce Company vs. Dennert, supra, ignores the fact, in the attempt to make that case applicable to the ease at bar, that counsel furnished the court fifteen written interrogatories which the court disregarded, and in the instant case nothing of this sort was attempted.

Another element worthy of consideration, of which the court can take judicial knowledge, is the fact that, inasmuch as the judgment sought in the court below was less than One Hundred Dollars, the Municiapl Court was acting as a Justice Court, and while there is a holding that Section 11470 applies to Municipal Courts, there is an absence of any holding which makes the statute applicable to Justice Courts, and the Municipal Court, by reason of the nature and amount of the case, must be considered as a Magistrate Court, in the sense that it was acting in the same capacity as the Justice of the Peace.

Another feature of thé case at bar is that the request of counsel upon which he relies, was couched in the following, language: “If judgment is to be rendered against plaintiff in this case. I will ask the Court to state in writing the facts and the law.” We do not think, even if the statute applied to the instant case, that this is ,a proper request and one in conformity to the statute, because it is conditional and is capable of the interpretation that it w,as intended as an impetus to the court to find favorable for the plaintiff, and thus its character is out of countenance with the provisions of the statute.

It will be noticed from the statute that the court, on proper request, “shall state in writing the conclusions of fact found separately from the conclusions of law.” In other words, the conclusions of fact must be in writing. Now when we turn to the record, we find that as to the conclusions of fact -the court said: “I will hold that it is not sufficiently shown that they were Trustees at the time the obligation was incurred. I find that as a matter of fact.” There is the fact and the conclusion therefrom which merged in the judgment of the court, and while it is claimed that the opinion of the court embodied in a record is not equivalent to a finding of fact and conclusions of law under the statute, yet when we come to consider the merits of the case, it is an aid in determining the righteousness of the judgment of the court upon the merits of the case, and the lack of prejudice by the claim of denial of a substantial right.

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

Vickery, PJ, and Levine, J, concur.


author: LEMERT, J.

text:
    BISHOP v JONES et
    Ohio Appeals, 5th Dist, Licking Co
   LEMERT, J.

It will be noted from a careful examination of Item 3, hereinbefore quoted, that there are no words of survivorship, and no residuarv clause in said Item 3, or any other part of the will, which would include any interest of Samantha Bishop, and the devise was not to a class, but of separate shares to individuals.

It must be remembered that a will should be construed with reference to the words of the whole will, taken in connection with the circumstances at the time of the making of the will, and not with conditions at the time of the testator’s death.

Therefore, notwithstanding a testator, if his will had been made subsequent to the death of his brothers, would probably have given the property to his sisters, rather than his heirs at law, the fact that he gave the property to his brothers, who were then living, and his sister, without any other disposition of it, shows that to have been his intention, clearly and unmistakably expressed; and it can make no difference with the construction of the will that the heirs at lav? obtained a share thereunder.

We find that none of the conditions mentioned in 10581 GC necessary to prevent the lapse of this devise, were fulfilled, and, therefore, said devise to Samantha Bishop fails, and Lucretia Bragg Smith is intestate as to the one-fourth undivided part of lot 115 in the Village of Granville, Ohio.

As this property came to the testatrix by devise from her husband, George Bragg, said intestate portion would be governed by 8577 GC and there being no issue of the parties, said property would pass one-half to the brothers and sisters of the intestate, and one-half to the brothers and sisters of such deceased husband from whom said real estate came, or their personal representatives.

The same judgment will be entered in this Court as was entered in the Court below.

Exceptions may be noted.

Houck, J, and Sherick, J, concur.


author: WASHBURN, J.

text:
    CARDEY v FISHER et
    Ohio Appeals, 9th Dist,. Summit Co
    No 1608.
    Decided May 24, 1929
    Frank A. Ream, Akron, for Cardey.
    May & May, Akron, for Fisher, et.
   WASHBURN, J.

It is conceded that if all of said materials were furnished pursuant to a single contract between Wentink, the contractor, and Fisher Bros., then said lien is valid for the full amount claimed, $1718.53 and interest.

Thus there is presented for determination a question of fact as to whether said materials were furnished under one contract or under two separate contracts.

On this important issue, there are but two witnesses: Wentink, the contractor, and a Mr. Hoehn, a representative of Fisher Bros.; and there is no material difference in their testimony as to what occurred.

Wentink had built many buildings, the lumber for which had been furnished by Fisher Bros.; after he had entered into the contract with Cardey for the building of said house and garage, he prepared a statement of the materials which would be necessary for the house, but. did not prepare a statement as to the materials for the garage, for the reason that the garage was to be similar in size to others built by him and he “knew approximately or within a few dollars of what the cost of material for a garage w,as.”

He took the statement of the materials necessary for the house to Mr. Hoehn at the office of Fisher Bros, and informed him that he had a contract with the Cardeys for a house and garage on certain premises and submitted to Fisher Bros, the statement of materials for the house and requested that they give him a price therefor.

Fisher Bros, entered the list of materials contained in said statement upon one of their bill heads, upon which was printed, “We agree to furnish only the articles represented on this statement for $......,” ,and inserted the amount they agreed to furnish the materials for in said blank and gave the same to Wentink.

Thereafter they delivered said materials to Wentink, on the premises, from time to' time as desired, together with a few extras, the last of said materials being, delivered on June 3, 1927, and later, on June 30, 1927, Wentink went to the office of Fisher Bros, and gave to an employee a list of materials for the garage without having a further conversation with Fisher Bros, in reference thereto; said materials for the garage were delivered by Fisher Bros, the same day and all of the materials furnished by Fisher Bros, were used in the construction of said buildings. Mr. Hoehn testified that at the time Wentink told him that he had a contract to build this house and garage and submitted his statement of the materials for the house, he said that he had not made up a list of materials for the garage “because he knew what the cost was,” and it is apparent that the parties understood that the garage was to be just the ordinary and usual type of garage, with which both parties at that time were familiar; when Wentink was asked what was said at that converstion about the garage, he answered, “None other than that eventually a garage would be built on the premises, and that the material would be furnished by Mr. Fisher for the particular job.”

Counsel for Cardey suggest that the answer to the question whether or not there was a single contract for the materials for both buildings depends upon whether Fisher Bros, would have had a right of action against Wentink for breach of contract if he had purchased the materials for the garage of some one other than Fisher Bros.

We do not think that such test is determinative of the question in this case; within the meaning of the mechanic’s lien law, the contract is not always required to be an entire contract in a strict and technical sense, such as is suggested by said test.

Choteau v. Thompson, 2 OS. 114.

Considering what was said and done by the parties in connection with the surrounding circumstances, we are of the opinion that Wentink did not have, within the meaning of the mechanic’s lien law, two separate and distinct contracts with Fisher Bros, for the furnishing of said material.

The fact that the materials for the garage were furnished in the usual course of business, without any further negotiations, indicates that both parties intended the initial arrangement to include the materials for the garage.

A decree may be drawn embracing the matter determined by us upon this appeal, finding the lien of Fisher Bros. Lumber Co. valid for the full amount thereof and ordering the premises sold to satisfy the same, and remanding the cause to the Common Pleas Court, with directions to it to execute the decree of this court the same as if made by said Court of Common Pleas, and to carry out its judgment and decree except so far as the same is in conflict herewith.

Funk, PJ, concurs. Pardee, J, not participating.


text:
    G. & R. MORTGAGE & INVESTMENT CO v LEVINE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9840.
    Decided May 27, 1929
    Suggs Garber, Cleveland, for Mtge. Co.
    Harry F. Glick, Cleveland, for Levine.
   SULLIVAN, J.

We are inclined to support, after an examination of the two cases, the contention of defendant below.

It will be seen from a reading of the order and acceptance in the case at bar that the acceptance is conditional and of course without the acceptance the instrument is worthless as a binding obligation and for the same reason it is just as lifeless in its legal character if the conditions attached to the acceptance are of such a nature that the acceptance is inoperative excepting upon the fulfillment of the impositions and burdens of the conditions attached thereto. This order and acceptance reads as follows:

“July 6, 1927. Mr. Harry Robbins, c|o G. & R. Realty Co. Cleveland, Ohio. Please pay to the order of Charles Levine the sum of $1500.00 for finishing pluimbing work in the single houses on sublots Nos. 144-145-146-151-153-154-193-194 on Winston Road. The Max Saltsman Rlty & Constr. Co. By Max Saltsman, President, July 6th, 1927.
We hereby accept the above order and will pay the money to Charles Levine, according to the schedule of inspection and the order of The Max Saltsman Realty Co. The G. & R. Mortgage & Invest Co. By H. Robbins, Vice President.”

It will be observed that the order is addressed to The G. & R. Realty Company as of June 6, 1927, that the amount is $1500.00 and the character of the work is designated by the following language.

“For finishing plumbing work in the single houses on sublots ***” and these sublots, eight in number, are designated. This is signed by Max Salts-man, President, on the same date, and appearing at the head of the order. It is clear from a reading of this order that the order was independent and absolute and had no connection with the fact that the defendant below .was an investment company and that the drawer of the order was the owner and mortgagor that raised the money which was to be distributed in the construction of the houses as will be seen by a perusal of the acceptance, according to the schedule of the inspection, and the order of The Max Saltsman Realty Co., and therefore the contention of plaintiff below that the order and acceptance were of such a character that they bore no relation to the scheme of building and the construction loans thereon, fails by reason of the import of the language of the order and acceptance, and the record itself which shows that the defendant in error was a plumber and that he was to receive the money due him for work and material upon the single houses from The Max Saltsman Realty & Construction Company, mortgagor, and owner, through The G. & R. Mortgage & Investment Co., upon the order of the Construction Co.

At the time that the acceptance was executed it was anchored irrevocably to those provisions upon which the acceptance was based, namely, that there would be payment only according to the schedule of inspection and in addition to that and without which the acceptance was of no effect, that the order óf The Max Saltsman Realty Co., was in the nature of a condition precedent to the payment of the money upon the acceptance. Therefore, in order to recover it would have to bf=> shown by a preponderance of the evidence not only that the order was given but that the conditions upon which the order was accepted and payment promised, were fulfilled, or at least that there was a substantial compliance with the terms. It is our judgment that the record fails to disclose this character of proof and therefore it is • insufficient as a foundation for recovery on the part of the plaintiff below against defendant below in this action, based solely and only upon the conditional order and acceptance.

Upon the question of the invalidity of the order and acceptance upon the non-fulfillment of the conditions, we find sufficient authority for our views in 23 Ohio App. 407, which adheres to the principle that one is only bound by the words of the contract which means in the case at bar that the conditions of the contract had to be fulfilled and in order to recover, proof of their fulfillment was necessary.

Thus holding it is our judgment that the evidence is insufficient in law under the record, to sustain the judgment below and it is our further judgment in view of the statutes above cited and the relationship of the parties that the judgment is contrary to law, especially in view of the contention that even if the suit would lie under the order and the acceptance, and the proof, there could be no recovery by reason of the relationship of the parties that would be out of joint with the schedule of payments, because then a preference would be given to plaintiff below to the detriment of all others in similar situations with repect to the properties which were under construction, and never completed .

Therefore the judgment of the lower court is reversed ,and the cause remanded for further procedings according to law.

Vickery, PJ, and Levine, J, concur.


text:
    BRACKEN et v STEWART
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10057.
    Decided May 27, 1929
    Francis Cook, Esq., Cleveland, for Bracken.
    Hyre & Hyre, Cleveland, for Stuart.
   VICKERY, PJ.

The question before this court is: Did the petition state a cause of action against the defendant below, defendant in error here? We think it did. We do not think it is necessary to allege insolvency, — only so far as to show that the receivers had the right to maintain the suit, — nor the financial standing of the corporation. For wu-m they allege that it was a corporation authorized to issue stock under the laws of Ohio, and the stock had been subscribed for by the defendant and that there was a sum remaining due and unpaid on said subscription, we think that the plaintiffs have stated a complete cause of action, and it devolves upon the defendant to show a defense by answer or other means, a reason why he should not be called upon to pay this, and that is something other than the insolvency of the corporation. ’

If a person subscribes for stock in a corporation, he creates an obligation which can be enforced against him either by the corporation itself or by the duly appointed and qualified receiver of the corporation. If that were not the law, it would be manifestly unjust to those persons who had lived up to their obligations and paid into the corporate funds of the company the money due for the shares for which they had subscribed. I say, it would be unjust to those who paid their subscriptions voluntarily if, after a corporation became involvent, other men who subscribed, perhaps at the same time, could, by refusing to comply with their obligation, be released entirely from responsibility. This right to recover does not depend upon the question whether it is necessary for this stock to be collected for the payment of the debts of the corporation or not. If there are no debts of the corporation, the stockholders that paid in, when the property realized from those stock subscrip-, tions had been exhausted, which, if ex-’ hausted, would pay all the debts of the corporation, would still be entitled to have the recalcitrant stockholders forced to pay in their share, so that if there is any fund left it could be distributed amongst all the stockholders including, the recalcitrant stockholders.

The receivers have the legal right, nay it is their duty under the law, to recover the unpaid subscriptions to the stock of a corporation, whether insolvent or whether it is solvent, whether it is necessary to have this money to pay the creditors of the company or whether it is not; and it is not a condition precedent that it be shown that the corporation is insolvent and that there is not enough money, without the money sought to be obtained by suits for the unpaid subscriptions, before they could recover. Hence, it would follow that it is not necessary to make these allegations in the petition and, therefore, in our judgment, the statement of claim, or petition, states a good cause of action.

From the reasoning that we apply to this sort of case we do not think it makes a bit of difference whether the corporation is insolvent or whether it is not insolvent, whether it has money enough to pay its debts or whether it has not. Stuart entered into a contract which he has not complied with; and the receivers of the corporation can recover upon it without showing that it is necessary to collect it, in order to pay the debts of the corporation for, as already stated, it would only tend to put the stockholders upon a parity, and.if there is any distribution of the assets of the corporation among the stockholders upon its final dissolution, after its debts are paid, the stockholders who subscribed and renigged would be in the same position as the stockholders who subscribed and naid up.

We think the court was clearly wrong in sustaining this demurrer and the judgment of the court will, therefore, be reversed and the case remanded to the trial court with instructions to overrule the demurrer.

Sullivan and Levine, JJ, concur.


text:
    STALLEY v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co

      No 9254.
    Decided June 17, 1929
    John F. Wilson, Hillsboro, and Harold F. Gorman, Cleveland, for Stalley.
    Ray T. Miller and E. J. Hopple, both of Cleveland, for State,
   SULLIVAN, J.

From an examination of the language used over the telephone it is our unanimous conclusion, forced by the record, the inferences therefrom, as well as the circumstances, that there is no other motive apparent from the language excepting to create a favorable impression upon the juror of the testimony given by, plaintiff in error, or, to create an inducement in the way of possible business favor upon which the juror might act in his deliberations. In other words, searching in vain for a legitimate motive, if there could have been one, the conclusion is irresistible from the language employed, that the purpose of the telephone call and convesation was to influence the juror with respect to the testimony given by the plaintiff in error in the appropriation case.

Under 12136 GC. a court or a judge at chambers may summarily punish a person guilty of misbehavior in the presence of the court or judge, if its tendency is to obstruct the administration of justice, and under 12138 GC. if written charges are made and a hearing had, the court has power to sentence as in the case at bar, ,and from a reading of Corpus Juris Vol. 13 p. 22, Sec. 67, we read what is undoubtedly the law of the land that all wilful attempts improperly to influence jurors in the impartial discharge of their duties is contempt, whether it be by conversation, over the phone or in the presence of each other or by attempts to bribe, and in Goldner et al vs State of Ohio, 19 O. C. C. (NS) 317, we quote from the syllabus as follows:

(Here follows quotation)

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

Vickery, PJ, and Levine, J, concur.


text:
    KUELLMER v KUELLMER, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9984.
    Decided June 3, 1929
    J. C. Logue, Esq., Cleveland, for plaintiff.
    A. H. Martin, Esq., Cleveland, for defendants.
   VICKERY, PJ.

Now assuming that the evidence upon this question is true, that he did accept this option, it seems to be the claim of counsel for the defendant Ward that this made him the owner of the property. We do not understand that any acceptance of an option has such drastic effect as to transfer the title to the property. It simply gives the acceptor of the option a right to comply with the terms of it, in order to have the property transferred to him. It surely does not give him the right to keep this property as his without performing or without offering to perform the terms that are on his side to be performed.

If we understand the contention of counsel for the defendant Ward, it is that he having accepted this option became the owner of the property and he having invested certain money, the amount of which is uncertain, he was. entitled to get this money ,all back on an accounting; and so he asked for specific performance of. this contract without tendering or offering to tender, but admitting frankly in court that he could not at this time; and judging from the evidence, he has never been in a nosition prior hereto to perform or carry out the terms on his part to be performed under this contract; and yet, he claims that, although he occupied this property between four and five years and received all the proceeds from the rooms that were rented out to his customers, — and the amount of the proceeds of those rooms was largely increased by reason of the added facilities by the addition of many rooms to the hotel, — I say, he has received all this money and has not paid the water rent, not paid the taxes, not paid the insurance, has not paid the owners, in other words, for the use of this property for a long period of time.

Now he was to rent this property at $125 a month and that together with the $1600 that they admit that one of these co-parceners paid into this property in re-fixing it, together with the accumulation of the taxes which he was to pay if he was the owner of this property and the water rent and the insurance, would more than eat up any equity that he might have in this property even if the proof was clear that he put in any large sum of money.

We think that the plaintiffs are entitled to the return of this property. We do not think that the defendant has shown any equities in his favor that would overbalance the amount that he should have paid for the use of this property. In other words, we think that the decree of the court below was proper in ah respects and we will enter the same decree in this court.

Decree for plaintiffs, order see journal.

Sullivan and Levine, JJ, concur.


author: ROBERTS, J.

text:
    MARKOVIC v STATE ZAGG v STATE VASSO v STATE
    Ohio Appeals, 7th Dist, Mahoning Co
    No 1583.
    Decided June, 1929
   ROBERTS, J.

In regard to the first specification of alleged error above quoted, it is claimed that in these cases the defendants below should have been arraigned and have pleaded guilty or not guilty preliminary to a hearing upon the merits.

These contempt proceedings were brought by virtue of 13195-3 GC.

It is claimed by counsel for plaintiffs in error that contempt proceedings are criminal in nature, and that the provisions of Section 13629 of the General Code providing for arraignment of accused are applicable thereto. No authorities have been cited however, and we have found none to the effect that an arraignment and plea are necessary ■ as in regular criminal proceedings where the defendant is accused of the commission of a wrongful or criminal act. A contempt proceeding is one for the purpose of punishing a person found guilty of interfering, with the regular legal and ordinary juridicial proceedings.

Cornelius on Search and Seizure, Section 542.

Vol. 13 C. J„ page 73.

The conclusion is reached that irrespective of the fact as to whether or not an arraignment was made in these cases, that arraignment- and plea was not necessary or essential.

Concerning the second ground of alleged error it seems to assume that the action in which the contempt proceeding is alleged to have occurred, grew out of a restraining order, under what is commonly known as the pad lock law, was based upon a violation of the liquor law. and that the convictions which the petition sets forth were based upon a city ordinance governing the possession of intoxicatinp- liquors, which ordinance this court has heretofore found to be illegal and void by reason of penalty provided for in excess of that authorized by statute.

An examination of the pleadings, journal entries ,and evidence in these cases does not indicate that they are based upon a violation of a municiml ordinance or upon conviction of intoxicating liquor violations. The petition of the law director alleges the use of the place as a business place where intoxicating liquors have been bartered and sold and possessed and kept for sale to the extent of constituting a nuisance, the abating of which was the purpose of the actions. Specific violations of law are not alleged nor charged as a substantive offense in these actions.

Allen v. U. S., 278 Fed., 429.

Lewinsohn v. U. S., 278 Fed., 421.

We find no preiudicial error in these cases and the judgment of the Court of Common Pleas in all of them is affirmed.

Pollock and Farr, JJ, concur.


author: HUGHES, J.

text:
    WAGNER v TROTT
    Ohio Appeals, 3rd Dist, Seneca Co
    No 197.
    Decided July 5, 1929

      Charles A. Strauch, Fostoria, for Wagner.
    Mark L. Leister, and Niles & Peters,.all of Tiffin, for Trott.
   HUGHES, J.

Over the objection of the defendant, the plaintiff was permitted to introduce evidence of promises of the defendant, made before the proceedings in bankruptcy were started, that he would pay this note. This was clearly erroneous. Evidence of promises to pay a debt, made before the proceedings in bankruptcy, is clearly inadmissible.

At the close of the evidence and before the arguments began, plaintiff requested the court to give to the jury, two special requests. The first request is not approved by us as law. While the second request may be insufficient to be called a proposition of law covering any issue in the case but rather an attempt to procure another ruling upon the admission of this evidence referred to, still it was notice to the court that the defendant was seeking to have the jury instructed that they should not consider this incompetent evidence that had been offered, and under - the rule of practice, the court, in its general charge, should have so directed the jury. This, however, is covered by the same reasoning that makes the evidence incompetent. The court declined to give these charges solely upon the ground that the special requests were made without any notice to the court, ,and without any opportunity given counsel on the other side to examine the same. Of course this was not Sufficient reason for refusing to give a proper request made at the time these requests were made.

Inasmuch as the evidence is clearly inadmissible, the judgment recovered by the plaintiff upon his eleven hundred and thirty five dollar note must be reversed, and the cause remanded for trial upon this issue and this issue only.

The judgment for the defendant, recovered upon his cross petition for wages is attended by no error, -nd hence must be affirmed.

That we may not be misunderstood, we reiterate that the judgment in favor of the plaintiff on the one hundred and fifty dollar note, and the judgment in favor of the defendant upon his cross petition, are affirmed; and the judgment in favor of the defendant upon his eleven hundred and thirty five dollar note is reversed, and this much of the cause is remanded for a new trial. Exceptions may be noted by both parties.

Before Judges Hughes, Justice & Crow.


author: RICHARDS, J.

text:
    LAKE SHORE ELECTRIC RAILWAY CO v CHRISTIANSEN
    Ohio Appeals, 6th Dist, Ottawa Co
    No 113.
    Decided May 27, 1929
    Messrs. True, Crawford & True, Port Clinton, and Harry Rimelspack, Fremont, for Railway Co.
    Messrs. Stahl & Price, Toledo, for Christiansen.
   RICHARDS, J.

On the first trial of this case the plaintiff testified that he had no recollection of what he did after his car stalled. On the present trial, when inquired about this, he testified as follows:

“I tried to start to get out of there; tried my best to get my engine going to get out of there, and I know I got it started and it stalled again for me, and I started again; tried again; I tried my best.”

This is the only difference in the testimony of the plaintiff between that given by him at the first trial and that which he gave on the last trial. It will be observed that this testimony does not indicate that he used any efforts to save himself from injury. Indeed he states elsewhere in his testimony that, after his car was stalled, he did not look for an approaching .interurban car and did not hear .any whistle, although his engine was not running. This additional evidence on his part indicates that he was attempting to start his car and not to save himself from imminent danger.

The motorman, in approaching the crossing, and seeing the automobile also approaching, could assume that its operator would proceed across the track, until such time as it became evident that he would not or could not proceed' and the plaintiff was bound in law to know of this right and to use ordinary care for his own safety. The plaintiff could not assume that he would be seen by the motorman to be in a perilous position in time for the interurban car to be stopped and a collision avoided. The qiotorman testifies that he gave the regular crossing signals and’ as soon as he discovered that the automobile was stalled he gave warning signals, and the undisputed evidence shows that all reasonable efforts were made to stop the interurban car as soon as the motorman discovered that the car was in a place of peril. The approaching interurban cars were, in fact, stopped at a point where the back end of the rear car was at the crossing. However, the interurban car may have come over the elevation to the east after the car became stalled, and whether, the motorman used ordinary care to prevent a collision as soon as he saw or should have seen the peril in which the car was situated was a question for the jury. In other words, this court is not disposed to disturb the verdict and judgment in so far as it involves a finding that the railroad company was guilty of negligence.

So far as the contributory negligence of Christiansen is concerned, we think his own evidence shows that he used no care whatever for his own personal safety. We think that the doctrine of the “last clear chance” can have no application to this case for the negligence of Christiansen continued to the very time of the collision, and, in connection with the negligence of the company, was the proximate cause of his injury. Pennsylvania Co. vs. Hart, 101 Ohio St., 196. See also Cleveland Railway Co. vs. Wendt, Supreme Court decision of March 20, 1929, Law Bulletin of April 29, 1929. Paraphrasing a sentence of the opinion in that case, it is clear that the plaintiff, according to his own testimony, hazarded his life to save an automobile of the value of $200.00, and took upon himself a risk in the presence of a danger known to be imminent.

The uncontradicted testimony shows the automobile just before the collision w,as worth $200.00, and that it was totally destroyed. Separate —Mions for directed verdicts were made as to the damage to the car and the personal injuries. We are of the opinion that a directed verdict should have been ordered as to the personal injuries but not as to the damage to the car. Following the course pursued by this Court in Lake Shore Electric Railway Co. vs. Kellar, already cited, the judgment of the court of common pleas will be modified ,and reduced to $200.00, as of the'date of the judgment, and as so modified will be affirmed.

Lloyd, J, concurs. Williams, J, votes to affirm judgment.


author: HUGHES,-J.

text:
    NORTH ELEC MFG CO v SHELLEY
    Ohio Appeals, 3rd Dist, Crawford Co
    No 1185.
    Decided July 10, 1929
    Charles Gallinger, Bucyrus, for Mfg Co.
    B. J. Cattey, Crestline, for Shelley.
   HUGHES,-J.

The petition does not allege facts sufficient to constitute a cause of action in that it contains no averment that the garnishee actually owed money to the judgment debtor. But, no objection was made to the introduction of evidence upon this ground at the trial, which was before the court, a jury having been waived.

The bill of exceptions shows that plaintiff had recovered a judgment of seventy-five dollars ,and costs against McBerty; that the defendant here had been duly served as garnishee. ,p-d as a matter of fact was indebted at that time to McBerty in the sum of four hundred dollars.

While the order to pay in, made by the justice, is in...... dollars, as above indicated, it was in fact an order to pay dollars and cents sufficient to discharge plaintiff’s judgment, provided, of course, the garnishee was indebted in that amount to the judgment debtor. The order made by the justice of the peace is not an adjudication between the plaintiff and the garnishee. It is but an assignment of the claim from the debtor to the creditor in attachment, to the amount of his judgment, and is notice to the garnishee that the claim that he owes. to the judgment debtor, has been assigned to the judgment creditor in an amount equal to his judgment. If he fails to pay into court or to the attaching creditor, the amount of his claim, he is liable to him in a civil action.

The proceedings had before the justice of the peace simply authorizes the plaintiff in attachment, to take the place of the defendant and sue in his own name if the order is not complied with.

Our interpretation of this order in this case is that it was a notice to the defendant here of plaintiff’s claim to the amount of the judgment and that McBerty’s credit had been assigned to the plaintiff. Ignoring the order, he was liable in this action.

The failure to object to the introduction of evidence, made it proper for the trial court to adjudicate the issues supported by evidence, regardless of the pleadings, and it is too late now for the defendant to object to the insufficiency of the petition.

Bacon v. Daniels, 37 OS. 279 at 281.

Before Judges Hughes, Justice & Crow.


text:
    HAMILTON Exr et v FIRST NAT BK of PANDORA
    Ohio Appeals, 3rd Dist, Allen Co
    No 516.
    Decided June 24, 1929

      T. R. Hamilton, Lima, for Hamilton, Exr.
    Lippincotf & ,Lippincott, Lima, for Bank.
   HUGHES, J.

There is no question of fact presented to us. It becomes solely a question of whether, under these circumstances, the executor is entitled by law to recover possession of this collateral security now in the hands of the Pandora Bank, without first discharging the obligations due to the bank from the estate of Emanuel M. Ridenour.

We have no direct authority in Ohio for the support of this claim made by the executor in this case, but the case of Lingler v. Wesco, reported in the 79 OS. 225, is urged upon us as enouncing a principal applicable to the facts involved here. In that case, a chattel mortgage was given to secure an obligation of the mortgagor, but the possession of the chattels mortgaged was retained by the mortgagor who died without paying off his obligation and his administrator, upon qualification, took possession of all his property including the chattels covered by this mortgage. In an action brought by the mortgagee to replevin the mortgaged goods, the court therein held that replevin would not lie against such administrator then in possession of the goods under such circumstances, but that the interest of the mortgagee in the property is transferred to the fund arising from the sale by the administrator.

Judge Price in his opinion, as the opening premise upon which this judgment is founded, states that there is nothing in the petition to indicate that the chattel mortgage involved in that case conferred any snecial powers, such as power to sell or make other disposition of the mortgaged property. And then at page 236, he says further, that the netition discloses no duty on the part of the mortgagee in respect to the property. It does not appear that he was authorized by the mortgage to sell at either public or private sale, nor does it appear what shall be done with the proceeds in case a sale should be made. This at least, is an intimation that had there been some special powers conferred upon the mortgagee by th' mortgage, the judgment would be otherwise than there pronounced.

In the case at bar, however, the collateral security contract does give special powers and authority and explicit directions regarding the surplus resulting from any sale of the property. Also, in the case at bar the collateral security is found in the hands of the creditor at the death of the debtor.

By the debtor’s own c"u tract, made during his lifetime, the rights of the bank are defined. It is not claimed by the plaintiff that had Emanuel M. Ridenour lived he could have under any circumstances other than discharging his obligations to the bank, demanded the possession of this collateral security. His executor has no higher or greater rights than the deceased. He could not be charged, as executor, with any more than the balance of this security that came to his hands after it had been used for the purpose for which it was given. While the plaintiff may now have the general ownership of the property, yet this is subject to the conditions of the pledge and until a redemption is consummated, he would have no higher rights than the decedent whose place he now takes. To hold otherwise would be to create a new and different contract between the bank and its debtor. The petition must therefore be dismissed.

Before Judges Hughes, Justice & Crow.


author: FUNK, J.

text:
    WALTERS et v SMITH et
    Ohio Appeals, 9th Dist, Summit Co
    No 1483.
    Decided Jan. 9, 1929
    Commins, Brouse, Englebeck & McDowell, Akron, for Walters, et.
    Roetzel & Olds, Akron, for Smith, et.
   FUNK, J.

The only issue before the jury was, What was the correct amount due plaintiffs on the contract?

Defendants offered in evidence some seventy-eight receipts which they had received from plaintiffs for claimed payments on said contract. Plaintiffs admitted they had signed all these receipts and that they had received the money for all of them except seven. It clearly appears throughout the record, including the charge of the court, that the real and only issue before the jury was whether or not the seven receipts were given for money then received or were given as duplicate receipts for wrong amounts or for the purpose of showing what part of certain amounts previously paid were interest and what part were principal.

The court charged “The burden of proof is on the defendant to show that he made the payments which he claims to have made over and above what the plaintiffs admit they received.”

Counsel for defendants contend that iff view of the pleadings and these receipts offered in evidence, the burden of proof was upon the plaintiffs to show that the receipts were not what they purported to be and that the court should have so instructed the jury, and that this is especially so since the receipts themselves, with plaintiffs’ admissions that they signed them, made out a prima facie case and that defendants, by backing up the receipts with their verbal testimony that they had paid the money represented by them, thus made out more than a prima facie case, and that the burden was therefore upon plaintiffs to show that said receipts were not what they purported to be by showing that payment had not been made on the receipts and that they were duplicates given for wrong amounts or given for some other reason, as claimed by them.

Counsel for defendants quote the syllabus and from the body of the opinion on page 127 of the case of Ginn v. Dolan, 81 OS. 121, in support of their proposition.

In that case the court held that the defense that a note was given or obtained without a valuable consideration was not an affirmative defense, and that the burden of proof was upon the plaintiff at every stage of the case to show a consideration for the note.

We call attention to the last paragraph of the opinion in that case, on page 129.

While this paragraph is perhaps obiter dicta so far as that case is concerned, when considered in connection with the rest of the opinion it clearly appears that the Supreme Court therein considered the distinction between a want of consideration and a failure of consideration, by pointing, out that a failure of consideration and payment are affirmative defenses requiring, defendant to prove them by a preponderance of the evidence, while a want of consideration is not' an affirmative defense and leaves the burden upon plaintiff to prove that there was a valuable consideration.

It is thus apparent that said case of Ginn v. Dolan does not support the contention of counsel for the defendants, but rather sustains the court in its charge upon the burden of proof as to the payments claimed by defendants for the seven receipts, and that the court did not err in its charge as to the defense of payments claimed and not admitted by plaintiff.

Finding no prejudicial error, the judgment is affirmed.

Washburn, PJ, ,and Pardee, J, concur.


text:
    TERRY & CO v HYDE COUNTY, NORTH CAROLINA
    Ohio Appeals, 6th Dist, Lucas Co
    No 2151.
    Decided Feb. 11, 1929
    Doyle & Lewis, Toledo, for Terry & Co.
    Ralph Emery, Toledo, for Hyde County.
   WILLIAMS, J.

The first question for our determination is whether Hyde County, North Carolina, can be sued in the state courts of Ohio, its funds tied up under attachment by notice to garnishee and jurisdiction of the person obtained through service by publication. At the common law a county could neither sue nor be sued, and the authority for the action by or against a county must be found in statutory enactments. 15 C. J. 663, Sec. 376. The statute of North Carolina quoted .above provides that the county is authorized to sue and be sued in the name of the county. The Supreme Court of North Carolina has held that, under the law of that state at that time, an action against a county must be brought in the county sued. Jones vs. Statesville, 86 N. C., 86, 88. Cecil vs. High Point, 165 N. C., 431. It has generally been held that enabling statutes of this character only authorize suit against a county to be brought within the county.

15 C. J., 666, Sec. 380;
Shaver, Commissioner vs. Lawrence County, 44 Ark., 225, 229.
Lehigh County vs. Kleckner, 5 Watts & Sergeants Reports (Pennsylvania), 181, 182;
Supervisors of Kane County vs. Young, 34 Illinois, 194;
McBain vs. People, 50, Illinois, 503;
Schuyler County vs. Mercer County, 9 Gilman’s Rep.- (Illinois), 20.

It has even been held that where the statute authorizes a suit against a county “in any of the courts of this state”, that such a provision was not intended to change the rule that suits against the county must be brought in the courts of the defendant county. Clement County vs. Blount County, 160 Ala., 319.

We think that the statutes which authorize a suit to be brought against a county situated within the state, only change the common law rule, which forbad such an action entirely, so as to permit an action to be brought against the defendant couny within that state, .and can not be construed to authorize a suit in a foreign state. Such statutes have no extraterritorial force or effect.

There are other salutory reasons why in the instant case the attachment should be dissolved and the service quashed. These reasons are well stated in the opinion in Parks vs. City of Decatur, 138 Fed., 550.

Are school funds subject to levy, attachment or garnishment?

Counsel for plaintiff in error rely upon Van Horn vs. Kitties County, 59 N. Y. S., 883.

A careful reading of the opinion in that case shows that it is an authority for the conclusion which we reach. A good' ground for dissolving the attachment in the instant case is that the funds were school funds in transit to the treasury of the defendant county and were not subject to execution, attachment or garnishment. 15 C. J., p. 669, Sec. 386 and cases cited.

It is further claimed by plaintiff in error that the defendant county entered its appearance. Where a person flies a motion to dissolve ,an attachment and by the terms of the motion itself enters his presence only for the purpose of objecting to the jurisdiction of the court, such action does not constitute an entry of appearance in the cause of action upon its merits. Adams vs. Trepanier Lumber Co., 118 Ohio St., 298. The same rule would apply to the motion to quash service. The court below properly dissolved the attachment, and as the court had no jurisdiction through service by publication if the attachment was invalid the service fell of its own weight, and the court properly quashed service. It is clear that the defendant did not enter its appearance in the court below, except for the purposes specified in its motions.

For the reasons given the judgment of the court below will be affirmed.

Lloyd and Richards, JJ, concur.


author: VICKERY, J.

text:
    ROYAL INDEMNITY CO v BUCKEYE BRICK CO. BUCKEYE SHALE BRICK CO v INDEPENDENCE INDEMNITY CO ROYAL INDEMNITY CO v GILES GILES v INDEPENDENCE INDEMNITY CO ROYAL INDEMNITY CO v VAN VALKENBERG
    Ohio Appeals, 8th Dist, Cuyahoga Co
    Nos 9219, 9334, 9318, 9333, 9320
    Decided Feb. 4, 1929
    Orgill, Maschke & Wickham, Cleveland, for Plaintiff in Error.
    Robert E. Roehm, Esq., Baker, Hostetler & Sidlo and Farrell & Edwards, all of Cleveland, for Defendant in Error.
   VICKERY, J.

In reviewing this record we find that, on December 19th, by resolution of the Board of County Commissioners, estimate No. 21, being the final estimate on this job, was passed, and the Auditor was authorized to pay this final estimate. It is perhaps unnecessary to saq but we will say it, that the money never was paid until it was paid into court by the County Commissioners when they filed their interpleader, but it is claimed by the plaintiff in error that no attested accounts were filed within ninety days from that date, and that is true. On June 16th, 1926, six months thereafter, there having been, so far as the records of the County Commissioners show, no acceptance of this work, a resolution was passed by the Board of County Commissioners reciting the necessary things for it to recite as provided by the statute, and by that resolution it is shown that this road was completed and accepted by the County as of the date of' June 16th, 1926; and within ninety days from that time these attested accounts were filed. But it is claimed by the plaintiff in error that the allowance and ordering the payment of the final estimate was an acceptance of this road as improved and, therefore, the attested accounts were filed too late. So the whole controversy turns upon the question as to whether or not the allowance of the final estimate is an acceptance of the improvement within the meaning of the statute.

An examination of the resolution authorizing the payment of the final estimate will at once show that it is far short of containing the necessary thing for the acceptance of an improvement. The statute 2463-3 GC seems to require that the Commissioners pass a formal resolution accepting the improvement, after an examination by the County Commissioners and upon certificate of the County Engineer, that the work is completed.

Now it is admitted that what the statute required the people holding these claims to do had been done within ninety days after the resolution accepting, this improvement was passed by the County Commissioners on the 16th day of June, 1926.

Can one say that the passage of a final estimate is an acceptance of the road? It is true that the final estimate ought not to be paid or passed perhaps until there had been an acceptance, but there are many things done by public officers * which ought not to have been done. The 'statute of Ohio undoubtedly had in mind a resolution as to the improvement so that it would be definite and determined .when those who claimed liens against it ¡could determine the time when they must file their claims or be former barred. The allowing of a final estimate does not mean the acceptance of a street, nor does the acceptance of a street necessarily mean payment of the final estimate. In other words, the acceptance of ^ street and the estimates of payment of a street, either final or otherwise, are not synonymous terms.

Acceptance in the language of Judge Marshall means what it says: “to accept”. It does not mean the passing of a resolution authorizing the payment of estimates either temporary or final. In the case of Southern Surety Co. vs. Schmidt, et al, 117 OS. 28, we think this question is fully determined by the Supreme Court.

Such compliance with the law was not made by the County Commissioners in these cases until the 16th of June 1926 and we think, therefore, that the court below was right in its judgment and committed no error in appropriating the sum of money that had been paid in by the County to the various claimants for the amount; and the judgment of the court below will be affirmed.

Sullivan, PJ, and Levine, J, concur.


author: BY THE COURT

text:
    GALLIPOLIS (City) v CANADY GALLIPOLIS (City) v HEALEY GALLIPOLIS (City) v MILLS GALLIPOLIS (City) v GARLINGTON
    Ohio Appeals, 4th Dist, Gallia Co
    Nos 124, 125, 126, 127.
    Decided July 15, 1929
    Mr. R. M. Switzer, Gallipolis, for City.
    Mr. H. W. Cherrington & Mr. A. J. Greene, Gallipolis, for Defendants.
   BY THE COURT

The above entitled cases have been submitted upon the record made in the Common Pleas with some additional testimony in this court. The testimony taken in this court does not materially affect the cases, however. As our conclusions are in harmony with those of the Common Pleas we adopt the scholarly opinion of Judge Whit-craft in the Common Pleas as our own and direct that entries be made in the several cases accordingly.

Decree for plaintiff.

Mauek, Richards and Lloyd, JJ, concur.


author: WHITCRAFT, J.

text:
    GALLIPOLIS (City) v. MILLS GALLIPOLIS (City) v. CANADY GALLIPOLIS (City) v. HEALEY GALLIPOLIS (City) v. GARLINGTON
    Ohio Common Pleas, Gallia Co
    Nos 8419, 8420, 8422, 8425.
    Decided March 18, 1929.

      Mr. R. M. Switzer, Gallipolis, for City.
    Mr. H. W. Cherrington & Mr. A. J. Greene, Gallipolis, for Defendants.
   WHITCRAFT, J.

The determination of the rights of the parties in these cases so far as the several tracts of land located within the limits of the original town of Gallipolis is concerned depends upon whether there was a dedication to public use of the so-called blank or undesignated space appearing upon Exhibit I and an acceptance thereof by the public. What is required to constitute ,a dedication either at common law or by statute and the acceptance thereof by the public is too well settled to require the citation of authorities at length. It may be stated as a general rule that to constitute a valid dedication there must be an intention on the part of the owner to devote his property to the public use, and this intention must be clearly and unequivocally manifested, but the intention to which the courts give heed is not an intention hidden in the mind of the land owner but an intetion manifested by his acts. 13 Cyc. 452 and cases cited; Fulton vs. Mahrenfeld, 8 OS. 440; Wright vs. Oberlin, 3 C. C. (N. S.) 242. No formal acceptance was required by the public, nor is it always necessarv that it be accepted by the city council or other public authorities but it may be accepted by the general public. 13 Cyc. 465. And the general public accepts by entering upon the land and enjoying the privileges offered; in other words by user.

It is significant that the proprietors in laying out the town of Gallipolis clearly expressed an intention to withhold from the public the strip of land between the southeasterly side of Front Street and the top of the river bank where it was of sufficient width to be of any practical purpose or appreciable value and divided it into “garden lots.” A strong presumption, therefore, follows that where there was little or no land between the street line continued in the same direction to the town limits and the top of the bank of the river, it was not withheld for private purposes, but, on the contrary, was dedicated to public use Moreover, the lots were sold with reference to this blank or undesignated space; the public has used it, or so much thereof as was necessary for travel and other street purposes for more than a century without interruption; and there being no evidence that the proprietors or their successors in interest have at any time ever asserted any title thereto, it would appear that there can be little doubt as to the intention of the owners to dedicate this strip to public use and its acceptance by the inhabitants of the town of Gallipolis.

We are not, however, left to conjecture in determining the questions involved here, for the Supreme Court of the United States and many other courts of last resort have been called upon to meet like situations.

The pioneer case is that of Barclay et al vs. Howell’s Lessee, decided by the Supreme Court of the United States and reported in 6 Pets. 498.

In the instant cases it should have been stated that if the southeasterly line of Front Street had been continued to the town limits, leaving a strip of land between it and the river, the rule laid down by our own Supreme Court in McLaughlin vs. Stevens, 18 OS., page 94, would apply.

The doctrine laid down in Barclay et al. vs. Howell’s Lessee, supra, was reaffirmed in the very interesting and instructive opinion of Mr. Justice Thompson in the case of Cincinnati vs. White, decided by the Supreme Court of the United States and reported in 6 Pets., page 431. It might be well to note that such eminent counsel as Storer, Webster, Ewing and Clay appeared.

The rule was followed and the the same principle applied by the Supreme Court of the United States in New Orleans vs. U. S. 10 Pets. 662, and McConnell vs. Lexington, 12 Wheat. 582.

In the case last cited above the opinion was written by Chief Justice John Marshall.

It is only necessary to refer to one other case upon this subject. In Parish vs. Stephen, decided by the Supreme Court of Oregon, and reported in 1 Or., pag.e 62, we have a case with the facts very similar to the ones under consideration here.

I am clearly of the opinion, therefore, that the blank space appearing upon Plaintiff’s Exhibit No. 1 was dedicated to public use by the proprietors of the town of Gallipolis and that the evidence clearly discloses an acceptance thereof on the part of the public.

It is equally well settled that the public would take title to the newly formed land or accretions thereto.

As to all of the premises in controversy which are situate within the limits of the town of Gallipolis as originally laid out, the finding and judgment will be for the plaintiff and the cross-petitions of the defendants will be dismissed.

As to the part of the premises involved in the above cases which is situated in Section 29 and outside the limits of Gallipolis, as originally laid out, more difficulty is encountered. Neither the city nor defendants claim to have any record title to such premises, nor has plaintiff shown any dedication of same to public use other than that included within the limits of the street or highways; nor has any occupation by the city of any more of said premises been shown. As to that part which is southeasterly of First Avenue, no title or right of possession is shown by plaintiff, and therefore, the city must fail as to that part of said premises. The descriptions set out in the petition with the aid of the evidence do not afford sufficient information to enable the court to go further than to say that as to the parcel of land situated in Section 29, southeasterly of First Avenue, the City has shown no right of possession and must fail in its action.

Coming now to the issues made üp by the cross-petitions and replies thereto, so far as the same relate to the premises situated in Section 29 the defendants have likewise failed to make out their case as I conceive the law to- be upon the admitted or proven fact. These premises were not entered by the present owners or their predecessors in title under a deed or grant defining the boundaries of the lands they claim and in controversy in these actions, nor is any record title claimed. Moreover, only a part of the premises was actually tilled, and this part was the high ground made by the river. It has only been in existence for a few years comparatively speaking, and was used solely for gardening. Mrs. Healey set some posts close to the line of the street after the 1913 flood, and later made requests of the municipal authorities to take steps to prevent further erosion. She complained when they neglected or refused so to do. I am, therefore, of the opinion that the defendants did not enter under color of title, and the rule announced in Humphreys vs. Huffman, 33 OS. 395, applies. It is there held:

“Where the entry is without color of title or upon a paper title, which is void for want of a description of any land, this presumption does not attach (constructive possession), and the adverse possession only extends to that part of the land actually occupied and improved.”

Manifestly none of the defendants actually occupied more of the lands they respectively claimed than was used for gardening purposes, which was a part only of the tracts described in their cross-petitions, that is, the elevated part of the newly made land. This is not definitely described in the cross-petitions, nor does the evidence afford sufficient information to enable the court to make a decree quieting their alleged title. The cross-petitions will, therefore, be dismissed.


author: FARR, J.

text:
    LUDWIG HOMMEL & CO v WOODSFIELD (Village)
    Ohio Appeals, 7th Dist, Monroe Co
    Decided May 1, 1929
    Messrs. Moore, Devaul & Moore, Woods-field, for Ludwig Hommel & Co.
    Messrs. Matz & Matz, Woodsfield, for Village.
   FARR, J.

The title to these meters remains in the Ludwig Hommel Co., but that is not the precise question which presents itself now to this Court. Attention is called to an opinion of the Attorney General of Ohio, and some communications addressed to him with reference to a purchase by township trustees of certain material.

The first proposition of the syllabus of the opinion reads as follows :-

“Where township trustees purchase road machinery without complying with the provisions of 3373 GC, and a finding is made against the seller, said seller is entitled to receive back the property so attempted to be sold and actually delivered upon return of the money, or evidences of indebtedness to the township.
2. Authority to compromise claim of seller for damages to property discussed in view of the specific facts considered herein.”

There certainly can be no question but what if the township trustees had entered into an arrangement with some machinery company,' by which certain machinery was obtained, and that afterward, the contract was found to be invalid, that the seller would be the owner thereof, and that is the principle that the Attorney General announced in his opinion.

There is another case of interest in this jurisdiction, and which is controlling in Ohio from the date it was decided until the present time; it is Buchanan Bridge Co. v. Campbell et al. Commissioners, 60 OS. 406.

The principle announced in this syllabus is bro,ad, and it is to to the effect that no recovery can be had against the county for the value of such bridge, and, in the instant case, no recovery can be had for similar reasons against the village of Woodsfield for the electric metrs installed.

There are pertinent observations by Burkett, J. to this opinion that are of considerable interest, pointing out the reasons why statutes of this kind must be upheld and adhered to; that such statutes are notice to the world of the existence of the limitation of the power of the commissioners, and the Bridge Company was bound by such notice. That being true, the statute involved here was notice to the world and to Ludwig Hommel & Company, and likewise to the Council of the Village of Woodsfield that a contract made in violation of such satute would not be enforceable.

Perhaps nowhere are the views of Burkett, J. better epitomized than in the closing paragraph of the opinion at page 426, as follows:-

“The answer to this is that the commissioners have no power to bind the county in that way, and to allow such a course to be pursued would permit the evasion of the statutes.”

That is the proposition in the instant case. If Ludwig Hommel & Company could prevail in this action, it would simply mean the circumvention of the statute enacted for the protection of the taxpayers of the village of Woodsfield. It would only be necessary to violate that statute, send on the supplies, permit them to be installed, and then, begin a suit to recover for the conversion of the same, which is sought to be done in the instant case.

Again, in the opinion it is said:.-

(Here follows quotation)

So that is the situation in the instant case, if the foregoing is still the law in Ohio, then, the parties, the village of Woodsfield and Ludwig Hommel & Company are left just where they placed themselves. No doubt Ludwig Hommel & Company are still the owners of these meters, but they delivered them here and permitted them to be installed; it was a chance they took.

The question of their right to remove the meters is not determined, but to permit a recovery for them would, under the circumstances, certainly be to nullify this statute. For the reasons given, the judgment is affirmed.

Pollock and Roberts, JJ, concur.