author: BY THE COURT

text:
    MIAMI CONSERVANCY DISTRICT v SILVEY
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 953.
    Decided September 6, 1930
    McMahon, Corwin Landis & Markham, Dayton for plaintiff.
    U. S. Martin, Dayton, for defendant.
   BY THE COURT

The Supreme Court had a Toledo case which was based upon an act of the legislature creating a Court of Domestic Relations and it is there held that no Judge of the Court of Common Pleas was authorized to act in the Court of Domestic Relations, but that a Judge of said Court of Domestic Relations must be elected by the people.

The next case involved a statute authorizing an additional Judge of the Court of Common Pleas in Summit and Mahoning Counties to act as Courts of Domestic Relations. These acts provided that the Judge so elected and designated shall exercise the same powers and have the same jurisdicdiction as is provided by law for Judges of the Court of Common Pleas.

The legislature subsequently passed an act authorizing the election in Montgomery County of an additional Judge of the Court of Common Pleas for the Court of Domestic Relations. This statute presents a little different proposition from either one of the Courts but in our judgment the Judge elected under the Montgomery County statute for Judge of the Court of Common Pleas, Division of Domestic Relations may, in his discretion ,act within the jurisdiction as prescribed for the Court of Common Pleas or may cdnsider the Court of Domestic Relations cases only. In other words having been elected as Judge of the Court of Common Pleas, Division of Domestic Relations, he may either act as Judge of Court of Common Pleas in its general realtions or iri cases that come strictly within those relating to the Division of Domestic Relations. If the Montgomery County statute contained the condition that the Judge elected under such statute should confine his jurisdiction to cases coming within the division of domestic relations, this question mip'ht be presented. But in the absence of such provision in the statute, we see no reason why if the Judge of the Court of Common Pleas, Divison of Domestic Relations should by reason of sickness or other disability require a substitute that another Judge of the Court of Commorí Pleas, Division of Domestic Relations might not be substituted in his place.

On the other hand suppose that in the future the business of the Court of Domestic Relations should be so reduced that a part only of the time of a Judge would be required to dispose of the same, might not said Judge be assigned to the general duties of the Court of Common Pleas. We can see no reason $hy such an assignment might not be proper. But in addition to these considerations; we reach the conclusion that the case here was so intimately associated with the Domestic Relations as to be a proper subject matter of said Court, and properly within the jurisdiction of the Court of Common Pleas Division of Domestic Relations.

The case was tried before the Court of Common Pleas, Division of Domestic Relations without objection and was decided. There was no question of jurisdiction raised until long after the judgment had been so rendered and after the case had recahed the lower court in this case and had also reached this Court. We are clear that the Court of Common Pleas, Division of Domestic Relations had jurisdiction and that its judgment, in the absence of objection at that time, would be valid and binding.

The celebrated case of Marbury v. Madison is cited. That case involved the jurisdiction of the Federal Courts. This jurisdiction is strictly construed. The jurisdiction of the State Courts particularly of the Courts of Common Pleas, which is a State Court of general jurisdiction is liberally construed. The case of Marbury v. Madison is no authority as to the jurisdiction of the State Courts and especially as to those of general jurisdiction.

We are therefore of opinion that so far as this Court is concerned a judgment may be entered in harmony with the former judgment.

Application for rehearing overruled.

Kunkle, PJ, Allread and Hornbeck, JJ, concur.


source: Caselaw Access Project

author: MAUCK, J.

license: Public Domain

text:
    MOUGEY v UNION CENTRAL LIFE INSURANCE CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10866.
    Decided Oct. 13, 1930
    Lamb, Vaughan & Krauss, Cleveland, for Mougey..
    Garfield, Cross, MacGregor, Daoust & Baldwin, Cleveland, for Insurance Co.
    Judges JUSTICE ,and CROW (-3rd Dist) and MAUCK (4th Dist) sitting.
   MAUCK, J.

It is not necessary here to recite the rights of the insured to extended insurance or paid up insurance after default as these matters are not in controversy in case it be determined that there was default.

The case has been so thoroughly briefed and opposing counsel are so familiar with the principles involved, that we do not think it incumbent upon us to enter into any extensive analysis of the terms of the policy or review of the authorities cited.

The provision above quoted indicates that it was the purpose of the Company in offering, and of the insured in accepting, the polciy, to give the insured the benefit of the lower rating he would be entitled to on August 17th as against the rating he would be entitled to at any time subsequent thereto. It seems clear that for the first premium the insured was in fact protected only from November 2nd, 1925 to August 17,1926, with the ..additional period of grace of thirty-one days prescribed in the policy, and it is equally clear that the only protection that he could have had by an earlier acceptance was protection from September 2nd, 1925 to August 17th, 1926, unless the policy can be so construed as to cause its provisions to so read that the first premium ran from the date of the policy, September 2nd, 1925, to September 2nd, 1926, and each payment thereafter to rim for one year ending on September 2nd. This the plaintiff in error urges ought to be done. It seems manifest that this contention of the plaintiff in error would require us to read into this policy something not found therein, or that by judicial decree we determine that the above quoted provision relating to consideration be read as though it provided for the payment of premiums on September 2nd rather than August 17th.

It was determined in an early Ohio case that insurance premiums must be paid at the time specified in the policy; that unless some rule of law or public policy prevent, the parties to a life insurance contract are at liberty to fix their own terms, and that the terms thus fixed by them determine their rights under the contract. Union Mutual Life Insurance Company vs. McMillan, 24 Oh St 67. No statute has been pointed out to us preventing the issuance of a policy by which the assured is for the first premium protected for less than one year and the case referred to shows that no public policy is violated by such a provision, for exactly that condition obtained in the McMillan case.

It is urged that a different view has been expressed in McMaster vs. New York Life Insurance Company, 183 U. S. 25. If that case undertook to lay down a rule of public policy different from that recognized by the Supreme Court of our own State, we would be compelled to follow the rule of the Supreme Court of Ohio rather than that of the Supreme Court of the United States. We are, however, unable to see that the principle on which the McMaster case was decided, if applied to the facts of this case, would avail the plaintiff. Some of the facts it is true bear close resemblance to the case at bar. In the McMaster case, however, fraud had been practiced upon the assured by making the anniversary of the policy differ from the real agreement made by the parties, and the court in that case held that the insured was not estopped from showing the real facts of the understanding between the parties and the terms by which they ought to be bound, and that by those terms the plaintiff w,as entitled to recover.

It appears, therefore, that the element of fraud presented in the McMaster case and absent in this case, distinguishes that case from the one now before us, and this view has been expressed by various federal courts where the authority of the McMaster case has been invoked in cases quite parallel with the case at bar.

Plaintiff does not bring her case within the fair and plain terms of the contract. The policy by its own terms termniated the right to recover the face of the policy thirty-one days after August 17th, 1927. The insured survived until September 23, 1927. Recovery was properly denied by the Common Pleas.

Justice and Crow, JJ, concur.


author: PER CURIAM

text:
    NAGY, et v JACKSON, et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10932.
    Decided Oct 3, 1930
    C. H. Potter and Cornelius Maloney, both of Cleveland, for Nagy, et.
    E. W. Valka, Cleveland, for Jackson, et.
   PER CURIAM

Plaintiff sues for recission and alleges in his petition that the defendant and the .agents representing him had misrepresented to Jospeh Nagy and his wife the value of the property owned by Jackson which was to be given in exchange for the property of the Nagys. Generally speaking, it is quite true that a buyer and seller of property are at arms’ length and neither has any right to depend upon the statement of the other as to the value of the property. There is, however, an exception to this rule, namely, that when the party making the statement occupies a fiduciary or; confidential relationship to the party to whom the statement is made, a full disclosure must be made as to all particulars, including the matter of value of the property.

This was a contract for exchange. The agents representing Jacks on approached the Nagys with a view of effecting an exchange of their property for that of Jackson. These same agents established a relationship of confidence and trust with the Nagys as their agents and therefore they owed to the Nagys the fullest disclosure as to all particulars in the transaction including the matter of the value of the Jackson property.

It is clear that in giving the value of the Jackson property, they exaggerated and over-stated the same and thus induced the Nagys to enter into the contract of exchange.

There is a side light which may be of some importance in this cas.e. It appears that one Adams approached the Nagys with a view of purchasing their property. The Nagys on that occasion refused to sell. We find, however, soon after, these agents representing Jackson effecting this exchange and almost immediately the same Adams with whom the Nagys refused to deal, becomes the purchaser of the Nagy property, it having been sold to him by Jackson as soon as the contract of exchange was signed, and we find also that Adams becomes the occupant of the property of the Nagys even though the Nagys refused to sell to him.

Viewing this case from the evidence presented in the record we are of the opinion that the Nagys were imposed upon and rescission is therefore ordered. A decree will be drawn accordingly.

Vickery, PJ, Levine and Cline, JJ, concur.


text:
    ROGERS ELECTRIC LABORATORIES CO v WALLICK, etc. et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10862.
    Decided Oct. 13, 1930
    Ven Svarc and W. H. Miller, both of Cleveland, for Laboratories Co.
    C. Butler and C. F. Franks, both of Cleveland, for Wallick, et.
    Judges JUSTICE and CROW (3rd pist) and MAUCK (4th Dist) sitting
   MAUCK, J.

Earle W. Wallick, trustee for the members of a partnership of which he was one, brought his action in the Municipal Court against the Laboratories Company for services rendered. In the progress of the case the trial court permitted an amendment to be made by adding the members of the partnership as parties plaintiff. This was objected to by the defendant below on the ground that Wallick, the trustee, had no interest in the subject matter of the action, and that there was, therefore, no case to be amended, and that the substitution of other plaintiffs for him was unauthorized by law. The contention of the defendant was overruled in the Municipal Court, and that forms the principal ground upon which reversal is sought in this court.

Plaintiff in Error has cited us to page ninety-nine of Bates Pleading and Practice, but the citation is not in point. That portion of the author’s text relates to joinder of defendants. The pertinent provisions in the book referred to will be found op page 135 and following, and on that authority and L. S. and M. S. Ry Co. vs. City of Elyria, 69 Oh St 414 and Van Camp vs. McCully, 89 Oh St 1, the contention of the plaintiff in error is denied.

The conclusion is reached thát the Municipal Court was acting within its powers in permitting the amendment to be made.'

The judgment was sustained by sufficient evidence. There are no other questions in the case to justify a discussion.

Judgment affirmed.

Justice and Crow, JJ., concur.


author: WILLIAMS, J.

text:
    N Y C & ST L RD CO v VANDORP
    Ohio Appeals, 6th Dist, Lucas Co
    No 2244.
    Decided Jan. 13, 1930
    W. A. Evérsman and Charles W. Racine, both of Toledo, for Railroad Co.
    Wm. Á. Finn and Edgar Norris, both of Toledo, for VanDorp.
   WILLIAMS, J.

Plaintiff’s car was a 1924 model Ford sedan. There is evidence tending to show that no bell nor whistle was sounded as the train approached the crossing and, as the engine of the automobile continued to run, the inference arises that the sound made by an automobile of that age and make would drown the ordinary noise made by the approach of a train so that the driver would' have great difficulty in hearing it.

Interrogatories were submitted to the jury at the request of defendant and the jury found by its answers thereto that the engineer did not blow the whistle and ring the bell as required by the statutes of the state of Ohio, that the headlight of the locomotive was not lighted at the time of the collision and that the plaintiff’s own negligence did not directly contribute in the slightest degree to the collision.

Plaintiff in error claims that the case of Railroad Co. vs. Rohrs, 114 Oh St., 493, is an authority here. In that case the collision took place in broad daylight. In the instant case, if the headlight was not burning and darkness had come on, the railroad crossing w,as not onlv a place of danger but became a trap at which, the careful and prudent might be caught in a collision. The instant case therefore stands on a different footing. It is more like the case of Robinson vs. Pennsylvania Railroad Co., 117 Oh St., 43. In that case the collision happened in the night time and the injured party was not familiar with the crossing. In the instant case the injured party was familiar with the crossing but was misled, according to the evidence adduced by plaintiff, by a failure to sound the bell and whistle ,and failure to have the headlight lighted. Whether the defendant was guilty of actionable negligence and whether the plaintiff was guilty of contributory negligence were questions for the determination of the jury. One looking for the approach of a locomotive in the night time naturally expects to see a headlight, and, if he looks both ways when looking will be effective and sees none, may well infer that no train is approaching. The trial judge did not err in refusing to direct a verdict.

There is much conflict in the evidence upon the various issues and it does not appear from the record that the verdict is clearly and manifestly ^ against the weight of the evidence.

Plaintiff in error claims the court erred in charging that the jury might consider whether defendant was guilty of negligence in the speed at which it operated its train. The defendant company also requested certain written instructions before argument which raised the same question. Counsel cites Railroad Co. vs. Kistler, 66 Oh St., 326. In that case it was held that in the absence of statute, negligence could not be predicated upon the speed at which trains were operated in the country. The collision in the instant case, however, occurred within the corporate limits of the village of Maumee at a point where there were many dwelling houses and, although there was not offered in evidence any ordinance regulating speed within the corporation, yet there was a duty on the part of the railroad company not to operate its train through the village at a greater speed than ordinary care warranted. There was no error in this portion of the charge.

Plaintiff in error claims that the court erred in charging the law as to failure to have the headlight lighted. The part complained of is as follows:

“Then in 8945-1 GC we have this provision: ‘Every railroad corporation operating a railroad or a part of one in this State shall equip each of its locomotives with a headlight of such construction ,and with sufficient candle power to render plainly visible at a distance of not less than 350 feet in advance of such engine, etc.’ Now the purpose of having the headlight on the engine is to use it when the circumstances demand its use. Briefly, one of the purposes of these signals, is to act as a warning to persons in using the highways at grade crossings. If the railroad observed those requirements no complaint can be offered. If it did not observe them, but violated one or more of the provisions of the statute referred to, that violation in and of itself constituted negligence on the part of the defendant, and if such negligence were the proximate'cause of plaintiff’s injury and loss the defendant would be liable therefor provided the plaintiff himself were not negligent in a manner which contributed to his own injury.”

Section 8945-1 GC referred to in the part of the charge quoted is of no binding force in view of the Federal Law. The original Boiler Inspection Act enacted by Congress had application to the boiler only, but that act as amended is a general one and extends to the design, construction and material of every part of the locomotive and tender and of all appurtenances. This act confers upon the Interstate Commerce Commission the power to specify the sort of equipment to be used and the fact that the Commission has not seen fit to exercise its authority to the full extent conferred has no bearing upon the construction of the act delegating the power and state legislation with reference to the headlight, which is an appurtenance of the locomotive, is precluded for the reason that the Boiler Inspection Act, as .amended, was intended to occupy the whole field.

Napier vs. Atlantic Coastline R. R. Co., 272 U. S., 605.

Since the passage of the amended act in question the Interstate Commerce Commission, by orders m,ade in pursuance of the amended act, the last of which is April 17, 1919, has covered the matter of headlights by Order No. 129(a), which reads as follows:

“129. Locomotive-used in road services, —(a) Each locomotive used in road service between sunset and sunrise shall have a headlight which shall afford sufficient illumination to enable a person in the cab of such locomotive who possesses the usual visual capacity required of locomotive enginemen, to see in a clear atmosphere, a dark object as large as a man of average size standing erect at a distance of ,at least 800 feet ahead and in front of such headlight: and such headlight must be maintained in good condition.”
Robert’s Federal Liabilities of Carriers, 2nd Ed., Vol. 2, page 63.

This court will take judicial notice of the orders of the Interstate Commerce Commission. Robert’s Federal Liabilities of Carriers, 2nd Ed., Vol. 2, page 1964, Sec. 1020.

While the federal law controls as to headlights, and not the state law, it will be observed that the order of the Commission relating thereto is more drastic than the provisions of 8945-1 GC.

We are not required to determine whether the court committed- error in giving the part of the charge above quoted ,as to headlights, for, if error was committed, it was not prejudicial.

As before stated in this opinion, the jury found that the headlight of the locomotive was not lit at the time of the collision. If it was not lighted it is apparent that it could not have shone ahead at all and therefore the jury never got to the inquiry as to the distance it shone ahead of the locomotive or what objects it disclosed.

We have examined all the questions raised by the plaintiff in error and find no prejudicial errors apparent upon the face of the record. For the reason given the judgment will be .affirmed.

Lloyd and Richards, JJ., concur.


author: VICKERY, PJ.

text:
    CLEVELAND REFRIGERATOR CO v COHEN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10784.
    Decided Sept. 29, 1930
    T. J. Coleman and Edward David, both of Cleveland, for Refrigerator Co.
    Morgenstern & Morgenstern, Cleveland, for Cohen.
   VICKERY, PJ.

Now arises a rather queer situation. I think this record shows that Estelle Mason had no interest in this store; that during the entire time Harry Mason was the owner and he really bought it and Estelle Mason gave the mortgage upon it for reasons that are not very creditable, for he frankly states on the witness stand that his credit was bad, and it was for the purpose of preventing his creditors from troubling him. One cannot read this record without coming 'to the conclusion that had the creditors of Harry Mason levied upon {¡he property as that of Harry Mason, — the subterfuge being so thinly disguised as to the ownership in Estelle Mason, — they could have seized this property as Harry Mason’s property, but that is aside from the question, Undoubtedly had the Refrigerator Company pursued its remedy on the chattel mortgage, Harry Mason would have been estopped from showing that this property belonged to the mortgagor Estelle Mason, and inasmuch as the second mortgage to Zingale and Mormino contained a provision that it was subject to a former mortgage of about Seven Hundred Dollars, they likewise would have been estopped, and one wonders why this remedy was not pursued. However the remedy the Réfrigerator Company did pursue was the obtaining of a judgment upon the cognovit note of both Estellé and Harry Mason and, as already stated, the property was sold under execution issued on said judgment .

Now so far as the lien was concerned in this lawsuit, the lien of the Refrigerator Company as purchaser under that execution sale dated only from the seizing of -the property under the execution. The mortgage had been abandoned.

One cannot help but come to the conclusion, after reading this record, that the title to this property was in Harry Mason and that he had the right to give the mortgage to Zingale and Marmino, and that that lien attached upon this property,— Harry Mason being in possession and running the business, — from the time of its being properly filed and recorded in the Recorder’s office of Cuyahoga County, in which County the goods were situated. That being so, the lien of the second mortgage preceded the lien upon which this property was transferred to the Refrigerator Company, and as against the Refrigerator Company under its lien secured on a cognovit judgment, the mortgage lien asserted by Cohen as assignee of Zingale and Mormino was prior. That being so, Cohen would have the right to enforce his claim by taking possession of the property under his chattel mortgage. The chattel mortgage contained the usual provision which authorized the taking of possession, and it having been detained and kept from him by the Refrigerator Company who purchased it at the execution sale, as against its lien under that sale, Cohen as assignee of the second mortgage which had become the first mortgage from the manner in which this was handled, had undoubtedly the right to the possession of that property, and he had the right to judgment in his favor for its possession and damages for its detention, which the court found to be five cents.

In reviewing this whole record we can come to no other conclusion than that the judgment of the Municipal Court was right, and „ven though in this present instance it apparently works a hardship, yet somebody erred in a choice of remedies. A remedy was chosen which eliminated the mortgage, which placed it subsequent to the second mortgage for, as already stated, this record shows conclusively that Harry Mason and not Estelle Mason was the owner of this store.

. The judgment of the court being right,— there being no error of law and it being in accordance with the evidence, — we can do nothing other than affirm the judgment.

Levine and Cline, JJ, concur.


author: FARR, J.

text:
    YOUNGSTOWN MUNICIPAL RAILWAY CO v CARTER
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided June 11, 1930
    Harrington, DeFord, Huxley & Smith, Youngstown, for Railway Co.
    John Ruffalo, Youngstown, for Carter.
   FARR, J.

Jospeh Phillips testifies practically to the same effect. Carter admits that he saw the approaching automobile, that it was coming rapidly, at about forty miles per hour; that Waller, the driver of the bus, was looking in the direction of the approaching automobile. He says that Waller stopped the bus abruptly almost up against the curb and that, was when he was injured, but Waller says the injuries were sustained when the automobile struck the bus. If it be true that Carter saw the automobile approaching, he saw the danger just as clearly and as plainly as Waller, the driver of the bus, did, and thefefore any warning by Waller to Carter would have been useless and unnecessary, because Carter was ,as fully advised in the premises as Waller.

The difficulty about the testimony in this case in behalf of the plaintiff is this, that he does not point out any particular in which the driver of the bus was negligent, except that he was running near the middle of the street, which would not be negligence unless there was a large amount of .traffic, which was not the case in the early morning. True, he says that the driver stopped abruptly but who shall say -that in case of an emergency of this kind that it was improper for Waller so to stop and avoid, if possible, a head-on collision of the two vehicles? Indeed, there isn’t anything disclosed by the Record that indicates that Waller did not act reasonably under all the circumstances that then surrounded him, and having done so he could not then be charged with negligence in the operation of the bus.

Extended discussion would not be profitable or needful in the instant case. It is sufficient to say that Carter charged Waller with negligence in that perhaps he was driving at a point near the middle of the road, and that when this emergency presented itself he stopped too quickly and threw him down. It seems clear from the Record that Waller exercised at least reasonably fair judgment, such as persons of ordinary prudence would have exercised under the same or similar circumstances, and that Carter’s injuries were caused by the reckless driving of the automobile and its crashing into the side of the bus. It is possible that Carter’s hand was cut from flying glass on the left side of the bus, and it would seem reasonable to conclude that the impact of the automobile and the bus would of necessity throw Carter from his place on the seat, whichever side it may have been; therefore, negligence is not shown upon the part of the driver of the bus.

For the reasons given the judgment is reversed; that is, because it is against the weight of the evidence.

Pollock and Roberts, JJ, concur.


author: LLOYD, J.

text:
    NOLAN, Exrx v KROLL
    Ohio Appeals, 6th Dist, Erie Co
    No 339.
    Decided Sept. 19, 1930
    H. L. Peeke, Sandusky, for Nolan.
    King, Ramsey & Flynn, Sandusky, for Kroll.
   LLOYD, J.

Funeral expenses are not, strictly speaking, debts of an estate, but the law humanely declares that the administrator or executor shall be obliged to pay them to the extent that the same are reasonable and there are .assets of the estate in his possession for administration. Whatever the law may be in other jurisdictions, in Ohio, real estate of a decedent descends directly to his heirs or devisees and is not assets of the estate to be administered by the executor or administrator except, that when “the personal estate in his hands will not pay all the debts of the deceased, with the allowance to support the widow and children for twelve months, and the charges of administering the-estate”, he is authorized by 10774, et seq., GC., to proceed to sell same and by 10809 GC, is directed as to the manner of the application and distribution of the proceeds of the sale. This section reads:

“The money arising from the sale of real estate shall be applied as follows:
1. To discharge the costs and expenses of the sale, and the percent and charges of the executor or administrator thereon, for his administration.
2. To the payment of mortgages and judgments against the deceased, according to their respective priorities of lien, so far as they operated as a lien on the esate at the time of his death; which shall be apportioned and determined by the court, on reference to a master or otherwise.
3. To the discharge of claims and debts, in the order mentioned in this title.”

It seems to us that language could not well be more explicit. It is evident that the words “to the discharge of claims and debts in the order mentioned in this title” refers to debts and to the order of payment specified in 10714 GC. These two sections appear in Title III of the code and obviously must be construed together and, so construed, particularly and definitely determine for the administrator or executor how he shall proceed in the payment of debts of an estate in process of administration.

We have examined not all, but many of the authorities cited by plaintiff in error but do not find them applicable to the administration of estates in Ohio. The statutes of this state are in our judgment unequivocal in terms and must govern.

The judgment of the court of common pleas is therefore affirmed.

Williams and Richards, JJ, concur.


author: RICHARDS, J.

text:
    CORNFELDT v RIHACEK
    Ohio Appeals, 6th Dist, Lucas Co
    No 2391.
    Decided Sept. 29, 1930
    Meek & Meek, Toledo, for Cornfeldt.
    Elmer E. Davis, Toledo, for Rihacek.
   RICHARDS, J.

The defendant further averred that the contract was made between the plaintiff as party of the first part and her husband and herself jointly, as parties of the second part, and she insisted that, being a joint contract, an action would not lie against her alone. It appears from the record that her husband died prior to the commencement of the action. Under the provisions of 10733 GC., the death of one joint contractor renders the contract in effect joint and several and permits an action against either the survivor or the administrator of the deceased party. Burgoyne, Admr. vs. Ohio Life Insurance & Trust Co., 5 Oh St, 586.

On the trial, the jury, by its answer to a special interrogatory, found that there was no damage due to the defendant under her crQss-petition. Thereupon the plaintiff filed a motion for a new trial and later filed a motion for ,a judgment notwithstanding the general • verdict, both of which motions were overruled. The state of the evidence is such that the plaintiff was not entitled to a judgment as a matter of law for the full amount claimed notwithstanding the answer to the special interrogatory, for some evidence was introduced against plaintiff’s claim on the issue made by the denial in the answer.

A careful examination of the bill of exceptions makes it apparent that the answer to the special interrogatory, finding that there was no damgae due to the defendant under her cross-petition was reached because of the failure of the defendant to prove specifically, except as to one item of $300.00, the amount of damages she claimed in her cross-petition. The verdict which was returned does not in any way respond to the issue made on the cross-petition.

• ■ Objection is made that this court can not review the judgment on the weight of the evidence because exhibit No. 1 is not made a part of the bill of exceptions. Although a witness was inquired of about Exhibit No. 1, the exhibit was not submitted to nor read by the jury, nor was it offered in evidence, and therefore was not required to be made a part of the bill of exceptions.

The finding of the jury that the plaintiff was entitled to recover no more than $1,000.00 is manifestly against the weight of the evidence. The judgment as rendered does not accomplish substantial justice between the parties as shown by the record and the judgment should be reversed and the cause remanded for a new trial on all the issues.

Williams and Lloyd, JJ, concur.


text:
    WEST SIDE LUMBER CO v SAYLOR
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 967.
    Decided Sept. 24, 1930
    Ozias & Ozias and W. S. Rhotehamel, all of Dayton, for Plaintiff in Error.
    I. L. Holderman, Kreitzer & Ratchford and Charles Dale, all of Dayton, for Defendant in Error.
   BY THE COURT

We And no conflict in the decision in this case with any former opinion of this ■ court.

On the application for rehearing counsel for defendant in error urged certain claims respecting the decision. Objection is made to the expressions' concerning the claim of waiver.

An examination of the opinion at page 3 discloses that by inadvertence certain errors appear. The term plaintiff in error is used where defendant in error was meant. We purposed to say that the contention of counsel for plaintiff in error concerning the burden of proof on the claim of waiver was upon him who asserted it, namely, the defendant in error, George W. Saylor, and that the Court, having found for Saylor, must have properly applied the rule of evidence relating thereto. However, the plaintiff in error can have no complaint against the holding of this Court concerning the claim of waiver because, as indicated in the opinion, we differed with the trial court on this question and would have held with plaintiff in error in its contention on this matter had it been controlling. We adhere to our former opinion concerning the claim that the judgment for money rendered by Judge White was not determinative of the issue presented between Saylor and the plaintiff in error touching the validity of the lien.

The money judgment for the plaintiff against Holtzmuller and Seibolt was based upon a determination that plaintiff had sold and transferred to them the ownership of the merchandise set up in the account attached to the petition; the place where delivered, though it may have incidently appeared, was not a controlling factor. To this judgment Saylor was not a party, and could not and did not make any defense.

The vital question in this case was whether or not the last delivery of lumber by the plaintiff in error to the building on the real estate described in the petition was made within 60 days prior to the filing of the affidavit. On this question of fact we held that the trial court had the right to determine the case as it did.

We see no reason why we should not adhere to our former decision and this will be done. The motion and .application will therefore be overruled.

Kunkle, PJ, Allread and Hornbeck, JJ, concur.


author: LEVINE, J.

text:
    FOREMAN v HARVEY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10914.
    Decided Oct. 13, 1930
    Young, Meyers & Young, Cleveland, for Foreman.
    Stearns, Chamberlain & Royan, Cleveland, for Harvey.
   LEVINE, J.

There is much discussion in the argument on the sufficiency of the petition. In view of our former holding in the case of Pinchefsky vs Goldstone, 170 NE 657, we would be constrained to hold that the petition in this case, even as amended, is insufficient. There is, however, a more apparent ground for sustaining the judgment of the lower court. As above stated the action of the court followed statement of counsel. The statement of counsel is not contained in the bill of exceptions. We are not permitted to speculate or guess or to accept oral declarations as to what the statement of counsel consisted of. We must, of course, assume that there was something in the statement of counsel by way of an admission which undermined the plaintiff’s case. We are not therefore confined to a consideration of the sufficiency of the petition, since the .action of the trial court would be justified on the single ground that the statement of counsel as to what he expected to prove by way of substantiating the allegations of his petition, destroyed the plaintiff's cause of action.

In view of the state of the record, the judgemnt of the common pleas court will be affirmed.

Vickery, PJ, and Cline, J, concur.


author: JUSTICE, PJ.

text:
    EDMUND E BURKE v MARGARET BURKE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2389.
    Decided August 16, 1930
    Conn & Holloway, Toledo, for Edmund Burke.
    Fraser, Hiett, Wall & Effier, Toledo, for Margaret Burke.
    Judges JUSTICE, CROW and GARLING (3rd Dist) sitting.
   JUSTICE, PJ.

The trial court, over the objection and exception of the defendant received in evidence a certain conversation between plaintiff’s mother and defendant’s mother, which occurred without the presence of the parties and without their knowledge, but the substance of which was thereafter communicated to them. In admitting this conversation in evidence, the trial court erred, but not to the prejudice of the defendant, as the utterances of the plaintiff’s mother therein tend to impeach testimony theretofore given by her to the effect that the defendant had never told her he desired to live with his wife and child, apart from his wife’s parents.

Counsel have not invited our attention, either in argument or by brief, to other instances of claimed error in the admission of evidence. None, therefore, other than as aforesaid, has been considered. Section 12248 GC.

The other claim of error relates to the sufficiency of the evidence. In passing upon this assignment of error, we were compelled to, and have re,ad the entire record. It discloses the following facts:

Defendant is twenty five years of age. He is honest, upright, industrious, kind hearted and forgiving. He is a graduate of the industrial engineering department of the University of Michigan. He has an excellent reputation in the community in which he lives. He has an earning power of $3900.00 yearly. Plaintiff is an only child. She is well educ'ated, and has a good reputation. Prior to her marriage she was a school teacher. She is temperamental, domineering and self centered. Since their marriage, which occurred on March 18, 1926, the parties have lived at plaintiff’s insistence, with her parents. Defendant, for a long time prior to their separation, which took place on November 16, 1929, had been desirous ,of living with his wife and his child, who was born in December following the marriage, separate and apart from his wife’s parents. He frequently had so told his wife. She, however, would not leave her parents’ home.

The defendant’s parents live in the City of Toledo. They are respectable folks. In the early days of her married life, plaintiff would go to their home. They always treated her kindly. Long prior to the separation of the parties, however, plaintiff, without any reason or justification for so doing, not only ceased her visitations to defendant’s parents’ home, but insisted that he have nothing to do with them. Naturally, he refused to comply with such a wicked request. Occasionally, he would have luncheon with his mother, which would cause his wife to become enraged, and for days thereafter, she and her mother, would heap abuse upon him. On such occasions the plaintiff’s mother would usually end the tirade by ordering him to leave the house. He adores his wife, strange as it may seem, and dearly loves his child, and stood for such abuse just as long as it was humanly possible to endure it, and then he left. Prior to and after his leaving, he pleaded with his wife to go with him. He was financially able to care for her and his child, and was willing and anxious to do so. He went to a priest, his wife being a Catholic, and asked the good father to intercede in his behalf, which the father did. But, all was to no avail. The plaintiff was .adamant, and her answer to his entreaties to come and live with him in a house, which she could select, was this action for divorce.

There are, of course, other facts in this case, but they are not controlling and hence are not mentioned.

In the light of the foregoing facts, established, as we see them by the greater weight of the evidence, we are unanimously of the opinion that the judgment is clearly and manifestly against the weight of the evidence.

The judgment of the court of common pleas is obviously wrong. The defendant is the one who is aggrieved; not the plaintiff. He was kind to the plaintiff and considerate of her every wish. True, he refused to give up his people, especially his beloved mother. In so doing, however, he did absolutely right. He would have been entirely devoid of decency and manhood if he had done otherwise. He had the right to select the matrimonial domicile, and it was the duty of the plaintiff to submit to his determination and to follow him to the domicile of his choice, provided, of course, that he, in making the selection, acted in good faith and with due regard to her comfort, health, welfare, safety and peace of mind. That he did so act, is not questioned. Her parents live in the City of Toledo and all, that he asked of her was to select, in said city, a house within his means, and therein live with him and their child. Surely, such a request was reasonable. Volume 30 Corpus Juris, page 511.

It seems fitting to say in passing, especially in view of the record, that marriage is more than a mere civil contract between the parties. To some of us it is a sacrament, and to all of us it is a status which is not revocable at the will of the parties, but which can be dissolved only by authority of the state.

The grounds for divorce in Ohio are purely statutory. The marriage relation, therefore,' should never be dissolved until and unless some statutory ground exists. Incompatability, disappointments in social and financial aspirations and mutual desires of the parties to obtain their freedom from the bonds of matrimony, are not grounds for divorce in this state, and it is high time that the courts cease recognizing them as such. Society is not sub-served by the judicial destruction of homes.

It - will indeed be most lamentable if plaintiff does not recant and live out her days with her husband. Society, the interests of the child Gloria, and the teaching of plaintiff’s church require it. However, this court cannot make her be true to her plighted troth, but it can and does say that she shall not, in this cause, divorce and receive maintenance from one who has never wronged her.

Entertaining these views, it follows that the judgment of the court of common pleas should be reversed. Judgment reversed and cause remanded.

Crow and Garling, JJ, concur.


text:
    VITALE v EAST COLUMBUS (village)
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1918.
    Decided Sept. 30, 1930
    E. O. Ricketts, Columbus, for Vitale.
    Lee H. Kramer, Columbus, for Village.
   BY THE COURT

We have read the bill of exceptions with considerable care insofar as it relates to these alleged grounds of eror. A hearing was had upon the question of the bias of the Mayor. Considering all the testimony upon that subject we would not feel justified in finding that the judgment of the trial court upon that question w,as against the manifest weight of the evidence. The bias or absence of bias of a Presiding Judge is often to be determined, from the entire record. In this case the bill of exceptions shows three witnesses were called who testified to having bought from the plaintiff in error and paid to the plaintiff in error a certain sum of money for what is described as corn whiskey. The testimony of these three witnesses is not disputed by any one. Under the state of the record we find nothing which would warrant us in holding that the record showed any bias or prejudice on the part of the Mayor in trying the case. Under the record he could not possibly have done other than find the plaintiff in error guilty. The mere fact that the maximum fine was assessed instead of a smaller sum would not, in and of itself, show prejudice.

From a consideration of the entire record we find nothing therein which would warrant us in reversing the judgment of the lower court, and the same will, therefore, be affirmed.-


text:
    PERELMAN v MALLY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10876.
    Decided Oct 13, 1930
    Kenneth & Guild, for Perelman.
    R. W. Price and J. Ogrin, Cleveland, for Mally.
    Judges JUSTICE & CROW' (3rd Dist) and MAUCK (4th Dist) sitting.
   MAUCK, J.

It is enough to say, in disposing of two assignments of error, that the amount of the judgment is not excessive and that there was an abundance of evidence to carry the case to the jury, and there was no testimony on the part of the plaintiff that raised a presumption of contributory negligence against him..

The only substantial question in issue involves the charge of the court. Not all of the errors in the court’s charge are complained of in the brief or in oral argument, but the charge is clearly erroneous in several particulars. The Court erroneously brought into his instructions to the jury an ordinance relating to east and west traffic in contrast with north and south traffic, which undertakes to give east and west traffic the right of way at intersections. This ordinance was neither pleaded nor proved nor was the substance thereof urged as a ground of complaint by the plaintiff below. Reference to it in the court’s instructions was consequently error. If the ordinance had been properly presented to the jury, however, it should have been accompanied by the • saving provisions laid down in Heidle vs. Baldwin, 118 Oh St 375. No complaint has been made of these errors, but complaint has been made of the further charge by the court to the effect that violations of this and other ordinances referred to created a liability against the defendant. This was wrong. A violation of ah ordinance .creates a prima facie case of negligence, but not a prima facie case of liability. Schell vs. DuBois, 94 Oh St 93.

As the disposition of this case .requires a new trial, attention is called to a further error in the charge to the .prejudice of the defendant in error. The court erroneously instructed the jury that the plaintiff was bound to disprove contributory negligence. On re-trial this error - should be avoided. The charge is open generally to the criticism that it was entirely too long and that clarity was sacrificed to length.

For error in the court’s instruction to the jury the judgment is reversed and the case remanded .for a new trial.

Carr and Justice,- JJ, concur.


author: CROW, J.

text:
    SUPER-SERVICE STATIONS INC v GESLER-TATE PETROLEUM CORP
    Ohio Appeals, 8th Dist,. Cuyahoga Co
    No 10813.
    Decided Oct. 13, 1930

      Ben H. Davis, Cleveland, for Service Stations.
    R. H. Hunter, Cleveland, for Petroleum Corp.
    Judges JUSTICE and CROW (3rd Dist) and MAUCK (5th Dist) sitting.
   CROW, J.

There was no evidence tending to prove that the assignment to plaintiff was not made in good faith, nor was it contended that the amount appearing to be due was not correct.

It should also be noted that no evidence was introduced tending to prove the claimed breach of the contract, Consequently the defense, under the record here, must rest, if, at all, on the doctrine of res adjudicata.

It is unnecessary to discuss any feature of that doctrine in detail, hence we will content ourselves with the observation that one of its essential elements is the identity of persons save in certain instances, such as representation, privity, participation and so forth. Under some circumstances the doctrine is applicable to the relation of assignor ,and assignee, but no authority has been furnished to or found by us which sanctions such application, in the absence of ,a statute, to transactions occurring prior to the commencement of the suit which is claimed to be the adjudication. This principle is correctly and clearly stated and elaborated in 34 C. J. 1018.

We are not overlooking the universally recognized rule that the rights of the assignee rise no higher than the rights of his assignor, but in a case like the one in hand, the rights must be determined as of the time the assignment w,as made.

There was, of course, no reason why the breach could not have been pleaded and proved by defendant as against plaintiff, but as we have said, defendant did not choose to do that.

There being no reason for disturbing the judgment it must be affirmed, which will be done but without penalty.

Justice and Mauck, Jj, concur.


text:
    WEAVER, Admrx v MT. VERNON (city)
    Ohio Appeals, 5th Dist, Knox Co
    No 306.
    Decided April 23, 1930
    Huggins & Liggett, Columbus, and Wm. L. Robinson, Mt. Vernon, for Weaver.
    Robert J. Grossman, City Solicitor, and Harry W. Koons, both of Mt. Vernon, for City.
    FUNK, J (9th Dist) sitting by designation in place of HOUCK, J.
   Full opinion will be published later, watch Omnibus Index.


text:
    TAYLOR PARK LAND CO v BANTROLME
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10895.
    Decided Oct 6, 1930
    H. B. Howells, Cleveland, for Land Co.
    Charles F. Carr, Cleveland, for Bantrolme.
   PER CURIAM

The court is of the' opinion, construing the contract not by any one phrase but considering its four corners, that whatever right there was reserved in the decedent with reference to the buildings, was a right personal to him only and that it ceased at his death and that therefore his heirs have no right to remove said buildings.

A decree will therefore be ordered in favor of plaintiff and a journal entry will be drawn accordingly.

Vickery, PJ, Levine and Cline, JJ, concur.


text:
    ATKINSON, et v STATE
    Ohio Appeals, 4th Dist, Vinton Co
    Decided Oct. 8, 1930
    Louis M. Day, Chillicothe ,for Atkinson.
    C. O. Chapman, Prosecuting Attorney, McArthur, for State.
   BY THE COURT

The only contention made here is that the judgments of conviction were not supported by sufficient evidence. The bill of exceptions is not by any means satisfactory but it purports to contain substantially all the evidence and further states that it contains all of the evidence in each of the three cases prosecuted against the plaintiffs in error. Wé have carefully gone over this bill of exceptions and read the evidence as it appears therein. It is our conclusion that such evidence wholly fails to support the judgments of the court below. The rule is well established that when circumstantial evidence alone is relied upon for the conviction of a party charged with a criminal offense such evidence must be of a character that makes it wholly inconsistent with any other interpretation than that the party charged is - guilty of the crime.

The- incriminating circumstances in this case as to the two Freeman boys were that they were found by the arresting officer about one hundred and fifty yards from the property claimed to have been possessed by them for the manufacture of intoxicating liquor. There is no other evidence whatever in the record to connect them with the possession of this property. As to Atkinson it appears from the evidence of one witness that a path led from a shanty occupied by him to the place where the property in question was found and that the path began at his shanty and ended at the location of the still. There is no description of this path and nothing to indicate- how much or how frequently it had been travelled. The evidence further discloses that Atkinson was living alone without a family and usually- away from home during the day time.

Upon a consideration of - all 'the evidence we find ourselves unable to affirm the judgments and they are therefore reversed' on the ground that they are not supported by sufficient evidence.

Middleton, PJ, Mauck and Blosser, JJ, concur.


author: PARDEE, J.

text:
    VANDERMULLEN In Re
    Ohio Appeals, 9th Dist, Wayne Co
    No 872.
    Decided Oct. 9, 1930
    ■ Rodgers & Wendling, for Morris C. Vander mullen.
    Daniel C. Funk and Charles C. Jones, both of Wooster, for Charles & Mabel Sterling.
   PARDEE, J.

At the time the original order was made, on the 20th of August, 1929, in which the court found the averments of the complaint to be true, the child immediately became a ward of the court and remains such until she attains the age of 21 years, and the jurisdiction of said court over said child continues until such time. (1643 GC.) So, the subsequent applications .filed by the parties interested related solely to the question as to who should have the custody of said child, under the control and supervision of the court.

The power of the court to change said custody being continuous, the evidence that was taken at said Rearing related only to the matter of custody and not to the termination of the power of the court over said child. Therefore, the only matter before us for consideration and decision involves the question as to whether or not the decision of the court as to who should.have the custody of said child is manifestly against the weight of the evidence.

Upon that question we have fully read and considered all the evidence offered, and we are not. unanimously of the opinion that the judgment of the tri,al court is manifestly 'against the weight of the evidence.

But we do find that the part of the order giving the permanent custody of said child to Charles and Mabel Sterling is ■ unauthorized, as the child remains a ward of the court until she attains the age of 21 years.

The judgment of the trial court is therefore modified as to permanent custody, and no other prejudicial erorr in the record having- been found, the judgment of the trial court, as so modified, is affirmed.

Funk, PJ, and Washburn, J, concur.


text:
    CAMP v STATE
    Ohio Appeals, 4th Dist, Vinton Co
    Decided October 6, 1930
    Louis M. Day, Chillicothe, for Camp.
    C. O. Chapman, Prosecuting Attorney, McArthur, for State.
   BY THE COURT

Clinton Camp in this proceeding seeks to reverse a judgment of conviction for manufacturing intoxicating liquor.

The first error suggested is that the state failed to prove any venue of the offense charged. This suggestion is not well taken. The sheriff testified that he saw the accused on the Tarr Farm in Clinton Township, Vinton County, Ohio, on the 13th day of November and that he was then in the door of a building where a still or stills were being operated. It was thus clearly proven that whiskey was being manufactured in Vinton County at the time in question and in a building in which the .accused was found. Other testimony tends to show that all of the things testified to were on the Tarr Farm. There was no evidence of any Tarr Farm except the one in Vinton County to which the sheriff had testified. Venue was consequently proven.

The second complaint runs to the fact that the state did not put in evidence all of the exhibits that it might have used; that is to say, that the state showed certain parts 'of a still or stills but did not exhibit the entire apparatus that its evidence tended to show was being employed at the time and place in question. The claim is then made that the state had no right to prove that a still w,as in operation unless it introduced all of the component parts of the still as exhibits. There is nothing in this contention. The state is not bound to offer in evidence a pistol in order to prove that a homicide was committed by that pistol. The evidence in this case, without objection, showed that a still was in operation and the state was under no obligation to offer the still or any part of it if it did not so desire. The charge of the court to the jury in this respect was entirely correct.

Finally it is argued that the evidence of the guilt of the accused was not clear. It was for the jury to determine whether the guilt of the accused was shown beyond a reasonable doubt and we have no inclination to disturb its finding. That liquor w,as being manufactured is undisputed. That the accused was the only person present is likewise undisputed, and that he was actually testing the proof of the whiskey being distilled is testified to by witnesses for the state. This would have been sufficient to have warranted a conviction. In addition to that, the evidence shows that the accused when arrested stated to one of the arresting officers that he had formerly had a job elsewhere and continued: “I came down here and got to messing up with this liquor business. See where I am at.” It is difficult to see how any other verdict could have been rendered except that reached by the trial jury.

Middleton, PJ, Mauck and Blosser, JJ, concur.


text:
    DONAHUE v STATE
    Ohio Appeals, 4th Dist, Vinton Co
    Decided October 6, 1930
    W. J. Jones, McArthur, for Donahue.
    C. O. Chapman, Prosecuting Attorney, McArthur, for State.
   BY THE COURT

We have examined the record and find no evidence of the accused ever having been convicted of a first offense. Therefore, the judgment of the court finding him guilty as of a second offense is erroneous. This error alone, however, would only require a reversal of the judgment as to the sentence imposed and a remanding of the case to the trial court for resentence.

The testimony discloses that it is highly improbable that the several persons testifying for the defense could have ridden in the car of the defendant shortly before he was arrested without having discovered the liquor which the state claims was found on the floor of his automobile. The evidence presented by' the record raises such a grave doubt as to the defendant’s guilt that the judgment must be reversed as against the manifest weight of the evidence.

For the reasons indicated the judgment is reversed and the case remanded to the Court of Common Pleas.

Middleton, PJ, Mauck and Blosser, JJ, concur.


author: PER CURIAM:

text:
    HOWE, et v SPITZER
    Ohio Appeals, 9th Dist, Medina Co
    No 103.
    Decided Oct. 13, 1930
    C. W. Sickafoose and L. A. Pelton, both of Medina, for Howe, et.
    Van Epp & Porter, Medina, for Spitzer.
   PER CURIAM:

This is a suit upon a note and was tried by the court, a jury being waived. The defense interposed was that the note had been altered.

The court found that the alterations had been made with the consent of the makers. That was a disputed question 'of fact, and we do not find that the finding of the trial court upon that issue is manifestly against the weight of the evidence.

So finding, the judgment should be affirmed, unless the defendants are right in the further contention which they make, to the effect that the alteration was not made according to the special erms of the consent but extended beyond it, and the rule is that the alteration of a negotiable instrument makes it void even though consent to an alteration be given if the alteration which is made is not strictly in accordance with the alteration to which consent was given.

The trouble with this contention is that the transaction in question did not constitute the alteration of a negotiable instrument. At the time the change was made there had been no delivery of the instrument so as to create an obligation on the part of the makers thereof; it was then no more than an offer to the Finance Company, and any change made in it was not an alteration of a negotiable instrument but a making of an original instrument, and the rule contended for has no application.

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


author: FUNK, PJ.

text:
    VACHA, et v LATIMER, et
    Ohio Appeals, 9th Dist, Medina Co
    No 105.
    Decided Oct. 13, 1930
    Lorman, Robb & Quallich, Cleveland, and Van Epp & Porter, Medina, for Vacha,- et. Ba»nett & Lerch, for Latimer, et.
   FUNK, PJ.

Assuming that these requests, given before .argument, may be correct as abstract propositions of law, we are of the opinion that they had no application to the facts in this case and were confusing and misleading to the jury, and that it was error prejudicial to the defendants to give said special requests to charge, for the reason that the courses and distances given in the description of the premises conveyed are not inconsistent with natural and well-known boundaries.

It will be noted that the boundaries or streets referred to in the description were definitely located in reference to certain monuments, and lot lines by distances given. The question at .issue in this case was, therefore, not ,a question of variance between natural and well-known boundaries with courses and distances, but was a question as to whether or not defendants had included in the description in their deeds lands which they did not own. The land described in the petition is a corner lot, 40.03 feet wide on the south side of Merkle avenue, by 143.85 feet in depth along the westerly side of 54th street in Parma township, Cuyahoga county, Ohio.

The record clearly shows that prior to the execution and delivery of the deed to plaintiffs, the county had appropriated a strip 13.87 feet wide off the easterly side of said lot for street purposes, to widen said 54th street, and had paid defendants or their predecessors in title therefor.

While such a strip of land might not be material in the description of ,a large tract of farm land, it is apparent that it is very material when taken off the width of a lot only 40 feet wide.

While it was the contention of plaintiffs that defendants, well knowing' that said strip of 13.87 feet had been appropriated by the county and had been paid for. conveyed the whole of said lot to plaintiffs without disclosing the fact that said strip had been appropriated and that at the time they bought the lot the public authorities had done nothing by way of physically taking possession of the land and that there was nothing to indicate that said strip had been appropriated for street purposes, the real question at issue was wehther or not defendants had conveyed and warranted title to lands they did not own.

The record further clearly shows that the deeds executed and delivered • by defendants in the chain of title, including the deed to plaintiffs, did include said strip of land and warranted the title thereto: and there is no evidence in the-record to show any defense to the petition in the absence of the • reformation of the description in said deeds by an action in equity.

It being thus apparent that the special requests to charge given before argument had no application to the case, it was error for the court to give them, and the judgment will therefore be reversed for error in giving said special requests. Cause remanded for further proceedings according to law. '

Pardee, J, and Washburn, J, concur.


author: ALLREAD, J.

text:
    DAVIS v EYLER
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1890.
    Decided Sept. 27, 1930
    Schanfarber & Walsh and Robert L. Mellman, all of Columbus, for Davis.
    J. L. Porter and Thomas H. Bennett, both of Columbus, for Eyler.
   ALLREAD, J.

The question here is whether the six year statute or the fifteen year statute applies. If the six year statute applies the action is barred. If the fifteen year statute applies, then the .action is not barred. This question depends upon a reading and interpretation of 11,221 and 11,222 GC.

Section 11,221 provides that: •

“An action upon a specialty or agree.ment, contract or promise in writing, shall be brought within fifteen years after the cause thereof accrued.” Section 11,222 provides that:
“An action upon a contract not in writing, express or implied, * * * shall be brought within six years after the cause thereof accrued.”

- The Court of Common Pleas relied upon the case of Deering v. Miller, 9 C. C. (N. S.) 392, affirmed by the Supreme Court without opinion in the 64th Oh St 548.

In that case there was an account stated and the Court held that ,a promise to pay was necessarily implied.

c The instant case is stronger. The written obligation is a due bill. Davis signed the writing acknowledging that there is due Eyler the sum of $150.00. There is a definite and distinct acknowledgement from the writing itself that Davis owes Eyler the sum of $150.00, and from that acknowledgement, there would be ,an obligation for the payment thereof. This would follow from the definition of the word “due”.

Webster thus defines the word “due”.
“That which is owed, debt, that which one contracts to pay or to do to or for , another; that which belongs or may be claimed as a right.”

We have no hesitancy in finding that there was a valid written obligation from which it may be expressly inferred that Davis owes to Eyler the sum stated.

The judgment of the Court of Common Pleas must, therefore, be affirmed.

Kunkle, PJ, and Hornbeck, J, concur.


author: BLOSSER, J.

text:
    MILLIRON v STATE
    Ohio Appeals, 4th Dist, Athens Co
    Decided October 6, 1930
    Woolley & Rowland, Athens, and Edwin D. Ricketts, Logan, for Milliron.
    R. D. Williams, Prosecuting Attorney, Athens, for State.
   BLOSSER, J.

The trial court committed no error in refusing to require the state to elect upon which transaction it relied for a conviction because they were all parts of a single transaction.

As to the second alleged ground of error, that the court erred in defining possession and what constituted possession, there was no error in the general charge of the court in that respect. However, when the jury asked for further instructions the court told the jury that if the defendant threw the whiskey away to hide it or keep the officers from finding it then it was in his unlawful possession. This instruction was not correct and was an invasion of the province of the jury. The court should have said that if the defendant threw the whiskey away to hide it or keep the officers from finding it the jury from such evidence might infer that the defendant had the liquor in his unlawful possession. Such facts are evidence only of unlawful possession. But in view of the fact that the defendant admitted that he had temporary possession of the whiskey for the purpose of taking a drink of it and throwing the remainder away he in substance admitted his guilt and had no defense, and therefore the action of the court was not prejudicial.

Finding no prejudicial error in the record the judgment is affirmed.

Middleton, PJ, and Mauck, J, concur.


text:
    BOCSI v PENNSYLVANIA & OHIO COACH LINES CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10690.
    Decided Sept. 22, 1930
    Gillis, Ames & Smith, Cleveland, for Bocsi.
    Bulkley, Hauxhurst, Jamison & Sharp, Cleveland, for Coach Lines Co.
   VICKERY, PJ.

It seems that there were three questions before the court below and they are before this court, to-wit:

First: Was the defendant below guilty of any negligence which proximately caused the accident?

Second: Was the plaintiff as a matter of fact injured to any extent, or did she suffer any damage?

Third: Was the plaintiff guilty of such contributory negligence as would pervent her from recovering?

We think that we can safely eliminate the last question.

Plaintiff was a passenger with her husband who was driving the car, and the only negligence that was charged against the husband was that the automobile which he was driving had only one light. Now there is nothing in the record to show that the plaintiff had knowledge of this or even that the husband had, or how long it had been in that condition, and inasmuch as plaintiff was a passenger, even though the husband was negligent, his negligence could not be imputed to her; and she would have to participate in the negligence or have such knowledge of the absence of the light that she would be guilty of negligence in riding with her husband. Now, I say, there is nothing in this record which indicates any negligence on her part in that respect, so that may be dismissed.

Now as to the question of negligence of the defendant company: If would seem from the record in this case that it was giulty of some negligence which may have proximately caused the damage, if plaintiff suffered any; and if the jury had found for' the plaintiff, a reviewing court could not have disturbed the finding because there would be evidence to sustain it, and the verdict would not be manifestly against the weight of the evidence; but the jury having found generally as it did, we do not feel called upon to disturb the verdict upon this ground.

The most serious question, and the one probably which-determined the jury to find for the defendant, is whether the plaintiff was injured at all. In reviewing the record it is difficult to find from it any evidence of any injury to this woman. She sat in the car; she was not disturbed; she was not struck; there were no marks of violence upon her body or any part of it, and she said at the time of the accident that she was not hurt.' The automobile was damaged and broken, but there was nothing-in the car which jammed her- in ,any way and she sat there apparently undisturbed. She went into a neighbor’s house and stayed there a long time, after which she rode on a bus to Cleveland; went to her sister’s house and stayed up visiting for some time; never complained at all; went to bed, and she claims that, while she was riding on the bus from Chagrin Falls to Cleveland, a miscarriage started to take place and that during the night that she was at her sister’s house a miscarriage did take place. None of the family knew anything about, it. She got up the next morning at eight, o’clock and went to see a lawyer and the lawyer immediately called in a physician, or sent her to a physician, and the physician examined her but could find no evidence of trauma, but I think did find some evidence, that at some time there had been a disturbance that might have been caused by a miscarriage, and his testimony along that line was largely expert testimony.

Now from the plaintiff’s own statements of what she did, the manner in which she went down town after this so-called miscarriage in the middle of the night, and about which none of her relatives in whose house she was staying knew anything, and the fact that she had stated to the witnesses that she was not hurt on the night of the accident; and from the course of her conduct from the time of the collision down ' to the time of going to the lawyer, it seems almost incredible that she should have received such an injury j:hat would have resulted in a miscarriage.

There were six women on this jury and six men, and the only thing that one can say is that the jury did not believe that she had suffered any injuries and so brought in a verdict for the defendant.

Now it being a general verdict there is nothing to show upon what issue the jury, brought in this verdict, and even though there was one or two issues upon which they might have brought in a verdict in plaintiff’s favor, yet if there were others upon which they could bring in a verdict for the defendant, we would not be able to tell what issue governed the jury in their verdict.

There is some talk of error in the charge of the court. From an examination of the whole charge as given, the excerpts criticized do not seem to be very serious.

On the whole, as already stated, the only question that is before the court is whether this verdict was so manifestly against the weight of the evidence that a reviewing court' would be warranted in disturbing it. We do not think so. The case was tried by one of the ablest Judges who comes to this City to try cases, namely, Judge Clevenger, and he reviewed the evidence on a motion for a new trial and overruled it.

Finding no error in this record that would warrant us in disturbing the verdict, the judgment of the lower court is hereby affirmed.

Levine and Cline, JJ, concur.


text:
    FLEMING, Ex Parte
    Ohio Supreme Court
    No 22507.
    Decided Oct. 29, 1930

      Marshall, CJ, Kinkade, Robinson, Jones, Matthias and Allen, JJ, concur.


text:
    SCHOLL v SCHOLL
    Ohio Supreme Court
    No 22177.
    Decided Oct. 29, 1930
    Kinkade, Robinson, Day and Allen, JJ, concur.


author: CLINE, J.

text:
    EISMONT v HANRATTY
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10730.
    Decided Sept 22, 1930
    O. D. Eschelman, Cleveland, for Eismont.
    Ray T. Miller, Cleveland, for Hanratty.
   CLINE, J.

The sheriff claims that because the “taxes” which he failed to pay were levied for local assessments, that the word “assessments” is not included in the word “taxes” and therefore the plaintiff has no cause of action.

The petition alleges that “the sheriff was ordered to pay all taxes and assessments then owing upon the property” and that therefore the petition, to which we are solely relegated to determine this question, having alleged that the order of sale provided for the payment of taxes and assessments, the demurrer cannot be sustained upon that ground.

While it is not necessary to the decision of this action to determine whether or not it was the duty of the sheriff to pay “assessments” as such under the particular order, it seems that the question has been determined by the Supreme Court in the case of Makley vs Whitmore, 61 Oh St 587, which was a case in which the question arose whether or not certain local assessments for street and sewer improvements should have been paid out of the proceeds of a judicial sale.

The court overruled the demurrer to the petition of plaintiff and held that “assessments are a species of taxes and are included in the generic term “taxes” unless for some special reason they are excluded. * * *” That assessments are a species of taxes has been frequently decided by the Supreme Court of Ohio and such is the settled law of the state.

Hill vs Higdon, 3 Oh St 243.
Reeves vs Treasurer, 8 Oh St 303.
Cleveland vs Wick, 18 Oh St 358
Sessions vs Crunkilton, 20 Oh St 358
Chamberlain vs Cleveland, 34 Oh St 551
Raymond vs Cleveland, 42 Oh St 527

We are therefore of the opinion that assessments legally levied should have been paid by the sheriff out of the proceeds of the property which was sold.

It is further claimed that the plaintiff, Eismont, is not the proper'party to the action but either the State of Ohio or the prior owner of the property is the person who would have .the right to maintain such an action.

The order of the court obligated the sheriff to pay the taxes out of the funds received by him from the sale of the property and this placed an obligation upon the sheriff to pay it for the benefit of the purchaser of the land. He could not discharge his duty to the court nor to the plaintiff unless the taxes levied against the property were properly paid and the only person who could benefit would be the plain-tiff.

The prosecutor suggested that an. action might properly be maintained against the Auditor by Eismont, if the assessment had not been properly placed on the duplicate, or as against the mortgagee of the premises who received the money to which he was not entitled.

It may be that when this case goes back for retrial that the proper parties may be brought into the action and their rights there determined, but the right of plaintiff to recover from the Sheriff for failure to carry out the orders of the court would not be destroyed by the fact that there may be another remedy against some other person.

Hoglen vs Cohen, 30 Oh St 441 answers the argument of the sheriff that the state alone would have the right to collect. The court says:

“It was scarcely necessary to declare such .a lien for the sole purpose of protecting the interests of the state, since under our general system of taxation the payment of taxes legally assessed against real property could not be successfully resisted'. It would follow the land like a covenant of title into the hands of all successive owners. The payment of state taxes without this express lien, could only be jeopardized when the taxes levied on the land exceeds its value and • the owner is found to be bankrupt.”

We hold that since the sheriff was under the obligation to sell the property, and to pay from the proceeds the taxes levied against the property, that his failure to do so gave rise to a cause of action by the plaintiff against him.

It is further objected by the sheriff that on December 2, 1928, the date of the sale of the property in this case, the duplicate of the Auditor did not disclose the amount of the taxes to be paid and therefore he was under no authority to determine the amount of the taxes not on the duplicate.

The petition makes no allegation that the taxes were not carried on the Auditor’s duplicate nor was there any necessity for the petition to so state, for if the taxes were owing upon the property, the minis^ terial act of the auditor in failing to place them there would in no manner discharge the obligation. Such an allegation by the sheriff is defensive matter and should be set up in an answer to the petition, if at all.

It is not necessary for us at this time to decide that question, but inasmuch as this case will go back for retrial we may state that it is our opinion that it was not necessary that the taxes due for the current year be actually written on the auditor’s duplicate.

Hoglen vs Cohen, 30. Oh St 343
Makley vs Whitmore, 61 Oh St 587
State ex rel Donahey, Auditor vs Roose,
Auditor, 90 Oh St 345.

It was the duty of the .auditor to place on the tax list of the county the amount of taxes levied. This is a ministerial duty specifically enjoined by law and in the discharge of this duty the County Auditor has no discretion.

The law provides that “the duplicate of taxes shall be delivered into the possession of the County Treasurer on or about October first annually, and it is his warrant for authority to collect the levies made together with penalties accruing thereon.

From the date that the duplicate is delivered into the hands of the treasurer, each parcel of land is charged with the payment of taxes levied against it. This is not changed in .any degree and as stated in the case of Hoglen vs Cohen the taxes levied against the lánd are so far due and payable on the first day of October annually that they should be discharged out of the proceeds arising from a judicial s,ale.

If the taxes levied are not properly certified within the time allowed by law this does not defeat.the levy nor destory the lien upon the property.

As stated by Donahue, J., in State ex rel Roose supra, “the same conditions would have arisen had he failed to place any other levy for state or local purposes upon the tax lists within the time and manner provided by law, and yet the state or any political division of the state cannot be permitted to become bankrupt merely because of the default of a ministerial officer in the performance of a plain duty specifically imposed upon him by law.”

We therefore hold that if there were an assessment legally levied, the sheriff was in duty bound by virtue of the order of sale under which the property was sold, to ascertain and determine the amount of taxes then owing upon the property and pay it from the proceeds or to withhold the proceeds until the same could have been determined.

The judgment of the common pleas court is reversed and the cause remanded with directions to the common pleas court to overrule the demurrer.

Vickery, PJ, and Levine, J, concur.


text:
    NESBIT v GAZELL
    Ohio Appeals, 2nd Dist, Montgomery Co
    No 963.
    Decided August 11, 1930
    Mattern & Mattern, Dayton, for Nesbit.
    A. H. & O. B. Scharrer, Dayton, for Gazell.
   ALLREAD, J.

The burden is upon the plaintiff to prove the facts necessary to constitute a cause of action by clear and convincing evidence. We have reached the conclusion that the proof did not amount to clear and convincing evidence upon any feature of the relief sought except that which related to the flow of excess water from the cistern. Defendant having built the cistern and provided the overflow pipes, was bound to see that the overflow pipe was sufficient and that it would carry the excess water so that it would not inconvenience or damage the plaintiff’s premises. The failure to do so would amount to a cause of .action in favor of plaintiff for whatever damages were caused by the failure to install as sufficient excess water pipe to carry the water to the alley in the rear of defendant’s property. The fact that at the time the action was brought and for some time thereafter the defendant had constructed and maintained about three feet of the cement wall upon lands of the plaintiff and drained the excess water pipe from the cistern onto the plaintiff’s land and onto the apron of the plaintiff’s garage is a sufficient breach of the defendant’s duty to justify a judgment for, damage.

In view of the change in the location of the cement wall madé during the pendency of the' suit, this court would not be justified in ordering a change in the location of s>aid cement wall. The change, however, having been made by the plaintiff during the pendency of the action, this court can only . render a judgment for incidental damages. We .think that these incidental damages may be fairly estimated at the sum of $100.00. We believe this court has jurisdiction, under the facts developed in this case' to render judgment for the amount of said damages. A'judgment is, therefore, rendered for the sum of $100.00 and costs of this action.

Decree accordingly.

Kunkle, PJ, and "Hornbeck, concur.


text:
    VANDENBARK et v DICK et
    Ohio Appeals, 5th Dist, Muskingum Co
    No 422.
    Decided August 23, 1930
    John C. Bassett, Zanesville, for Vandenbark et. ;
    L. M. Soliday, Prosecuting Attorney, Zanesville, for Dick, et.
   ALLREAD, J.

There were a number of grounds urged in the Court of Common Pleas in favor of the plaintiffs. In the Court of Appeals, however, the questions are practically narrowed down to one, that is, whether the Board of Education in locating the Building and in making the order therefor was guilty of a gross abuse of discretion.

It is clear that both by the Constitution and by the acts of the General Assembly the Board of Education has been given power and authority over the determination of the site of a school building, and that this power of the Board of Education is not absolute, and may be reviewed in the courts, either for fraud or for a gross abuse of discretion.

In the brief of counsel for plaintiffs their ground of contention is thus stated:

“It is contended by plaintiffs that it is an abuse of discretion on the part of the Board when á site is selected and a bulding proposed to be erected thereon for the benefit not of the people of the district, but for the benefit iii pur-. suance of a plan to induce such people to become a part of the district; and it is like abuse of discretion.where bonds are authorized to be issued for a high school by a vote of the people to use the proceeds of such bonds for the erection, in violation of the vote of the people of a combined grade and high school.”

This, in substance states the claim of plaintiff.

In reference to the first proposition, that the site is selected in the interest of persons outside the district, we are not satisfied by the necessary weight of evidence that the Board of Education was controlled by the consideration of persons living outside the district. There was at one stage some consideration for the Brownsville people, but at the time that the site was selected, we are clear that the evidence is not sufficient to justify that this consideration was one which moved the Board of Education in the selection of its site. The evidence shows that it was agreed by all parties that the new building must be located on or near the National Road, which traverses the entire district. It is shown that there are very few. available sites along the National Road at this point, for the reason that the land is hilly, and is otherwise unsuitable.

There are two sites suggested with propriety. One is the Rankin tract, which was selected, and the other is a tract farther east near the small town of Hopewell. We think the tract actually selected forms an ideal one from every standpoint, except the population of the district. It is level and can be made available for a new school building. There is another site farther east which is not as level, and which is also along the National Road. It is not so available for all purposes as the Rankin tract. It was, however, the duty of the Board to decide between these two tracts, and while this court might consider the Hopewell tract as the most available, still we think it is not justified in holding that the Board of Education was guilty of a gross abuse of discretion in selecting the Rankin tract. It may be remarked that Frank Vandenbark, one of the plaintiffs, and who was then a member of the Board of Education, voted for the John Rankin location. He says he did so to forestall a movement to take the location still farther west.

It is urged in argument that the Rankin tract is less available to the people who live off the National Ro,ad in Muskingum County. That is true at the present, but as stated by the learned Judge in the court below, when the schoolhouse is built the roads will, in all probability, be improved, so as to obviate this objection. The modern method of carrying pupils to a high school building is by buses and other similar conveyances,” so that while the number of miles in this district is large, it will be reduced by this method of transportation.

It is urged that the fact that the members of the Board of Education lived in the neighborhood of the Rankin farm may be considered and this fact will be presumed to raise an inference of bias in favor of the present location.

There is no statute requiring the members of said Board to be located in any particular section of the school district nor is there any persumption of fact arising out of the fact of their reisdence. This fact must be resolved like any other fact on the questoin of gross abuse of discretion.

As to the second ground, for abuse of discretion that the Board is building a combined grade and high school building, instéad of a high school, as indicated .in the call for the election to approve the building. In an election of this kind the limitation is The ¿mount of money called for and .approved by the electors. This limitation was fixed at $89,000, and was approved by a vote of the people. The Board of Education is therefore limited to this amount in the erection of the school building. The resolution upon which the people voted called for a high school building, but that requirement was not absolute, but was more for enabling purposes, that is, to enable the Board of Education to build a building so as to accommodate the high school. The Board of Education might still use its discretion and make it adatable for grade schools as well. We c,an find no reasonable or fair objection to this method of procedure.

The proposed new school building was evidently intended for all purp'oses of educating the children of that district, and there was therefore- involved in the high school proposition not only the education of the high school pupils, but all the education of the district. We think the Board was justified in making provision in the building for the grade .as well as the high school.

There are many items urged by counsel for the plaintiffs which tend to question the regularity of the formation of the district. We think these are not to be considered in this case. The district was legally established, and is in existence. It was the duty of the Board of Education to provide for a building to house its schools, including the high school. They submitted to the voters the question of issuing bonds for the purpose of building of a high school, and it was approved. The amount allowed was $89,000. The Board of Education was proceeding to construct the building within the limits of this appropriation, or at least they have funds to that extent approved by the electors, from the sale of bonds. It is claimed that Mr. C. W. Maston, the county superintendent, together with some members of the Board, have approached the State Department of Education with a view to obtaining from them the sum of $10,000 as an aid to the funds furnished by the electors of the school district. Much is made by counsel for the plaintiffs of the negotiations between the local officers and the State officers, and it is even urged that the procedure in this respect was improper. We do not so regard it. It is the right of a State officer to help out in the construction of this building, if in his opinion, circumstances justify it. It is .also the right of the local members of the Board to apply to him for that purpose. We see no impropriety in this regard, and the sum of $10,000 if it should be offered and accepted by the local Board would be available in addition to the funds provided for by the electors of the school district.

We are clear that there is no sufficient proof of a gross, abuse of discretion on the part of the local Board, and the judgment will therefore be for the defendants.

Injunction refused and petition dismissed.

Kunkle and Hornbeek, JJ, concur.


text:
    YALOWITZ v CUYAHOGA AMUSEMENT CO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10294.
    Decided Feb. 3, 1930
    Ben P. Rabb, Cleveland, for Yalowitz.
    Alexander H. Martin, Cleveland, for Amusement Co.
   VICKERY, PJ.

Now the question is: Did the court commit any error that would warrant a reviewing court in reversing the judgment in this case? We do not think -so. We have read the statement of claim, the lease and the indemnity bond, and that indemnity bond clearly indicates that these two men Rogers and Wills were mere sureties on that bond and the rights of the sureties could not be changed or enlarged ■ or their liability transferred to another person without their consent. An examination of the terms of the bond will show that the condition of the bond did not run to Hooper and his assignees, but simply to Hooper, and there might have been a reason why they would be willing as sureties to guarantee the contract to Hooper, because from this lease it was evident that the man who owned this p,ark and was entitled to the rents from it, which rents were to be paid out of the proceeds of the game to the extent of twenty percent of the gross receipts, and that Wills and Rogers knowing Hooper was that kind of a man might be willing to guarantee the Amusement Company's rent to him because, as already pointed out, he had certain duties to perform with respect to collecting the receipts from each game at the end of the game.

Now while the lease provides that it shall not be assigned to a third person without the consent, in writing, of the parties, even if there were an assignment of this lease by the lessor, he could not affect the rights of the sureties which were personal to him. It is singular, but the lease itself provides for ,a different indemnity, — not a bond to be given, — but a sum of Three Hundred Dollars which was to be put up, and I do not think the lease anywhere refers to a bond that shall be given. The bond is something extraneous and outside, ,and while it insures the performance of the contract to Hooper, it did not insure the performance of the contract to any other person.

Now it will be noticed that this bond contains a provision that if the rents are not collected as they become due, or there has been an extension of time in the payment of these rents, that shall not affect the liability of one Hicks, who was a signer of that bond, 'in addition to the Amusement Company and the two defendants involved in this case. Now that provision apparently meant nothing. It did not reserve the rights against Wills and Rogers in case there had been an extension of time by the lessor or, if you please, his assigns, but only referred to the liability of Hicks which shall not be affected. Of course; the liability of .the Amusement Company would not be affected ,and apparently Hicks was in such relation that his liability was not to be affected by the lessor -or his assignee neglecting to collect the rents or for an extension of time for the payment of - the rents, since the rights against Hicks, who was the Secretary of the Amusement Company especially reserved in order to make him liable personally, ,and thus inferentially stated that in case there had been an extension' of time for the payment of rents, or there had been a neglect by the lessor or his assigns to collect the rents, the , sureties to the bond other than Hicks would be' released by such extension of time or neglect "oh the part of the lessor or his assigns. ■

But aside from that, the sureties had the right to say for what they were to be bound and to whom they were to be bound and this contention is supported by. the case of Black vs. Albery et al, 89 Oh. St 240. This is' only in accordance with the general law 'of suretyship.. As already stated, these sureties might be perfectly willing to guarantee, rents to Hooper because they knew he was the kind of man who was alert and would see to it that the rents were collected, but to guarantee anyone else who might not be alert and not see to it that the rents were collected, with whom they had no contractual relation, whom they did not know, would be extending the doctrine of suretyship very greatly, we think.

Now that being so, and none of these things having been set up in the statement of claim, we think the court was right in sustaining the demurrer to the statement of claim, that it did not state a cause of action, and that fact was a good ground for the court in having vacated the judgment and a good ground for entering a judgment on the demurrer.

There being no error-in the record, the judgment will be affirmed.

Sullivan and Levine, JJ, concur.