author: By KINDER, J.

text:
    CLEVELAND TRUST COMPANY et, Plaintiff, v. McQUADE et, Defendants.
    Probate Court, Cuyahoga County.
    No. 494548.
    Decided November 16, 1955.

      Squire, Sanders & Dempsey, Cleveland, for The Cleveland Trust Company.
    C. P. Von Herzen, Los Angeles, California, for Virginia McQuade.
    Van Aken, Whiting, Arnold & Nash, Cleveland, for Charles George Newcomb and Madge Pentoney Newcomb.
    Arter, Hadden, Wykoff & Van Duzer, Cleveland, for Shirley Christine Newcomb Kelsey, et al.
    Baker, Hostetler & Patterson, Cleveland,.for Henrietta Morris Bonsai; Joseph C. Hostetler, Guardian Ad Litem of Stephen Bonsai, et al.
    Marshman, Hollington & Steadman, Cleveland, for Richard R. Hollington, Guardian Ad Litem of Cherie Irene Kelsey, et al.
   OPINION

By KINDER, J.

This is an action for a declaratory judgment brought by The Cleveland Trust Company in its several capacities as (a) trustee under a trust agreement, dated February 27, 1922, with Anne Baldwin Schultze, and (b) as executor and trustee under the will of Gouverneur Morris, who died on August 14, 1953, his will having been executed on April 2, 1952. The action involves the interpretation and legal effect to be given the Schultze trust agreement hereinafter called the Trust and the will of Gouverneur Morris of April 2, 1952, hereinafter called the Will and turns on the question of the effect, if any, of the Rule against Perpetuities in respect of these documents and the interests sought thereby to be created.

The case submitted on a stipulation of fact is this: The Trust became irrevocable upon the death of the donor on July 11, 1922. By its terms the trust estate was divided into two parts, one to be held for the benefit of donor’s nephew, Gouverneur Morris, and the other for the benefit of donor’s niece, Henrietta Morris Bonsai. The case concerns the Gouverneur Morris share and the Trust provided that upon the death of Gouverneur Morris, his share of the estate should “vest in and be distributed to his nominees and appointees by his last will and testament.” Morris died August 14, 1953, some thirty-one years after the death of the grantor of the Trust. His Will provided for (a) the disposition of the property as to which the Trust gave him the' power of appointment, and (b) the devise and bequest of his property otherwise.

The issues here presented relate to the testator’s disposition of the property as to which he had the power of appointment. The will provided:

“* * * In the exercise of such power of testamentary appointment, I hereby nominate and appoint to receive the share of said trust estate, or the balance thereof remaining, held for my benefit, The Cleveland Trust Company of Cleveland, Ohio, as Trustee, to be held by it upon the trusts and for the uses and purposes, and subject to the terms and conditions hereinafter set forth, to-wit:”

In so far as concerns the continuance or duration of the trust thus created, provision is made for its termination, as follows:

“The trust hereby created shall terminate when such of the following, to-wit: Virginia McQuade, Ralph Newcomb, Charles George New-comb, Madge Pentoney Newcomb, Doris Frick, Robert Frick, Jr., Shirley Kelsey and Charles Newcomb Kelsey, as were in being February 23, 1952, are all deceased, and upon such termination the principal then comprising the trust estate and any accumulated income shall be paid over and delivered as follows:”

The trust, after directing a limited income provision for life to four persons, provides for the disposition during the continuance of the trust of the remaining net income of the trust estate which is payable, share and share alike, to Charles George Newcomb and Madge Pentoney New-comb “so long as both of them shall live” and to their survivor so long as such survivor shall live. Thereafter follows elaborate provision for disposition after the death of these persons to numerous beneficiaries during the period of the trust of the income from the trust estate. It remains to be remarked that this trust contains in Item II (c) a provision against the pledge, encumbrance, sale, transfer or alienation by any beneficiary, in which event it is provided that any such respective interest “shall immediately cease and determine.” There then follows, as is usual in clauses of this kind, the provision which gives to the trustee discretion as to the matter of payments of income or principal to the beneficiary involved.

This disposition by Morris in the exercise of his general testamentary power is asserted to be invalid in whole or in part by reason of the Rule against Perpetuities the power to appoint having been created in July, 1922 and its exercise having occurred in August, 1953.

Enough has been said to indicate that the controlling question here presented is this: Is the period provided for by the Rule against Perpetuities for the vesting of interests i. e. life or lives in being plus twenty-one years, to be computed from July 11, 1922, the day on which the Trust became irrevocable by reason of the death of its donor or from August 14, 1953, the date of the death of Gouverneur Morris and therefore the effective date of the exercise by him of the testamentary power given by the Trust?

Precisely this question comes down to whether a general power exercisable only by will is of a nature and character as falls within the rule applicable to a general power to appoint by deed or will in which the period of the Rule is computed from the time of the exercise of the power or whether the period of the Rule must be applied as in the case of a special or limited power where the exercise thereof must for the purpose of the Rule be related back to the creation of such special power and to its date. This question, so far as the Court has been advised, has not been determined in this state. It has however been considered in other jurisdictions and the results are in conflict.

The Rule against Perpetuities in this state is contained in §2131.08 R. C., and is in part as follows:

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

The parties here concede that the provision in the Trust that real property of the trust estate “shall be treated as equitably converted into personalty” permits the Court to apply the Ohio Rule against Perpetuities and dispenses with any inquiry respecting the effect of the Rule in the several jurisdictions where the real estate affected by the Trust was located, e. g. Montana and Tennessee.

It is obvious that the Rule itself throws no particular light upon the matter under consideration as the point concerns the question of its interpretation having in mind the objects of the Rule and what it is designed to reach.

In Gray on the Rule against Perpetuities, 4th Ed. Sec. 526 (1942) the question is considered and the position taken by this leading authority is that while the question is not free from difficulty nevertheless on principle and weight of authority appointments general in scope but exercisable only by will must unlike powers to appoint by deed or will, be for the purpose of the Rule referred to the date of the creation of the power. Gray proceeds — Sec. 526.2 — to base his position upon the case of Powell’s Trusts, 39 L. J. Ch. 188 (N. S.) (1869) and upon the view that from the standpoint of the Rule a donee of a general testamentary power is not practically the owner of the estate in the same sense as a donee of a general power who can exercise it by deed or will. This view of Gray is, of course, entitled to a very great respect and has received wide and in some instances unquestioned acceptance in the courts. On the other hand, Gray’s view has been questioned, not only on the basis of the decisions referred to by him but also in respect of the nature and character of the right of the donee of a general testamentary power considered from the standpoint of the Rule.

In so far as concerns the decisions relied upon by Gray, it has been pointed out that Powell’s Trusts, supra, has been repudiated in subsequent decisions of the English and Irish Courts i. e. Rous v. Jackson, L. R. 29 Ch. D, 521 (1885), In re Flower, 55 L. J. Ch. (N. S.) 200 (1885) and Stuart v. Babbington, L. R. 27 Ir. Rep., 551 (1891). An examination of these cases confirms this and these latter decisions are important whether the result constitutes the common law of England on the point and therefore recognizable as such in this state—R. R. v. Keary, 3 Oh St 202 — or are treated as an authority having the effect of a well considered statement of the law.

Without attempting a detailed consideration and analysis of the conflicting cases on the point, it seems to the Court that the most discriminating treatment from the standpoint of the case law on the subject lies with the conclusion that in so far as a general testamentary power is concerned the period provided for by the Rule runs from the time of its exercise rather than the date of its creation. An example of a well considered authority to this effect is Miller v. Douglass, 192 Wis. 486, 213 N. W. 320. An example to the contrary is Minot v. Paine, 230 Mass. 514, 120 N. E. 167. The conflicting views of writers on the subject are evidenced in Gray on Perpetuities, supra, Sec. 526.2; Kales, 26 Harvard Law Review, 64 and Gray’s rejoinder thereto in the 4th edition of his work, Appendix L. Sec. 949, 950.

In so far as concerns the object of the Rule and the stated reasons for relating the exercise of a general testamentary power to the date of its creation, it seems impossible to conclude that such a power is in the nature of a special power which by reason of necessity must be related back to its creation. In the latter instance the hands of the donee are tied by the imposed conditions and his disposition of the property is therefore restricted by provisions representing the expressed intention of the donor. On the contrary in the case of a general testamentary power of appointment no such considerations exist because there is no restriction on the donee of the power so far as its exercise is concerned. While it is true that of necessity he cannot appoint to himself, he may appoint to his estate or whomsoever he chooses. The fact that such a donee cannot appoint to himself seems to be the only limitation that is said to distinguish the matter from the general.power to appoint by deed or will. But even the latter donee is not the absolute owner of the property. Gray regards him as only “practically the owner.” At all events we are here concerned only with the Rule against Perpetuities and from that standpoint why should a distinction be drawn between a power to appoint by deed or will and a power to appoint by will only? In the former case the donee may never exercise his power by deed, but exercise it by will or may never exercise the power at all. In the case of a testamentary power while the donee may exercise his power by will only it is not perceived why for the purpose of the problem under consideration the case should turn on a hypothetical possibility or event which in the case of the donee of a power to appoint by deed or will may never eventuate and this would be so if such donee possessed the power to appoint by deed only. Again from the standpoint of the Rule, one of the objects of which is to preclude the suspension of the marketability or transferability of property or interests, it is clear that the life interest of both kinds of donees would be computable in value, assignable in nature and reachable by creditors. When with the life estate there is coupled the power of appointment, the general power in either of these cases must be considered an incident to the estate granted and in either and any event it is not perceived but that a general power to appoint in either instance may not be controlled as to its future exercise either for the purpose of transfer or assignment as security for a loan to the donee. This merely poses a problem of safeguarding or insuring the control of the exercise of such power for the purpose of the transaction and seems to the Court a problem for which the ingenuity of counsel might be adequate. There thus disappears the objection that under the facts of this case the marketability or transferability of the property involved was suspended contrary to the Rule — an objection which as has been generally agreed the Rule was designed to prevent.

The matter may be viewed from another standpoint. As has been pointed out the Rule against Perpetuities developed as a rule restricting future interests in specific land. Simes — “Public Policy and the Dead Hand” — The Thomas M. Cooley Lectures, University of Michigan Law School (1955). But in the case at bar we are concerned with trusts dealing with personalty and this is so both as to the original Trust and the trust created by the Will of the donee in the exercise of his power of appointment. Here as Simes points out it does not follow that under such a form of distribution of property and interests therein such property becomes unproductive within the meaning of the Rule. In both the original Trust and the trust created by the Will of the donee the respective trustees are given the widest power of sale and investment. In this situation Simes observes in his “Public Policy and the Dead Hand,” supra, Pages 40 and 41:

“In the first place, the future interest with which the Rule against Perpetuities is concerned is nearly always an equitable interest in a trust. The modern trust instrument, if well drawn, will contain broad powers of sale and reinvestment. * * *

Moreover, not only is the trustee empowered by the terms of any well drawn trust instrument to sell and reinvest in productive property; the law requires him to do so. One of the duties imposed by law upon trustees is to use reasonable care in making the trust property productive.”

It is therefore open to say that if, as has been generally held, the Rule is inapplicable from these standpoints to a case of a donee of a power to appoint by deed or will, no possible reason under the facts of the instant case, remains for its application to a donee of the general power to appoint by will only. In addition to the foregoing considerations the courts have treated the two instances i. e. the case of a donee with power to appoint by will or deed and the case of a donee with power to appoint by will only, on a similar basis. In both cases it has been decided that the appointed property may be reached in equity by creditors in either case after the appointment. Brandeis v. Cochrane, 112 U. S. 344; Johnson v. Cushing, 15 N. H. 298. Donley’s Adm’rs. v. Shields, 14 Ohio 359 (1846) cited to establish that devisees under testamentary power of appointment take the estate unencumbered by the donee’s debts is not to the contrary. This was an action in assumpsit and not in equity and without undertaking a detailed analysis of the case it was held that such form of action did not lie and it was pointed out that if any action were appropriate it would be by way of a bill in chancery, the Court indicating:

“Were the fund needed, the proper way to reach it, if to be reached at all through the aid of the courts of this state, would seem to be by bill in chancery, bringing into court all the devisees, legatees, and heirs, so that a fair and just contribution of the burden might be made among them, and so that the legacies might be subjected according to the equities subsisting between the parties.”

Again in both instances the property conveyed under the power is subject to inheritance taxes as coming from the estate of the donee, Sec. 5731.03 R. C., Sec. D; United States I. R. C. Sec. 2041 (a), (b), a result inconsistent with the concept that in ease of a testamentary power of appointment its exercise must be related back to the original grant. 19 Columbia Law Review, 63.

The suggested distinction between the nature of the interest of a donee of a power exercisable by will only on the one hand, and the donee of a power exercisable by deed or will on the other, seems to the Court to be a shadowy one at best and whatever may have been the original basis of such distinction the result would be to impair, by what the Court considers as an unjustifiable technicality, the right of the owner of property to grant to a donee a valid right to exercise an unrestricted power of testamentary appointment and thereby to “disrupt the prudent dispositions of reasonable men.” The donor of such general testamentary power of appointment must be presumed as having intended the conveyance to the donee of a power of such extent. It is obvious that the application of the Rule against Perpetuities as it is here sought would thwart the obvious intention of the donor to give to the donee such unrestricted right to determine in whom, upon the donee’s death, the property should vest and to whom it should be distributed.

Further, in view of the increasing use in modern times of the provision for general testamentary power of appointment, it seems to the Court that such power, if it is to be considered as having any meaning or effect at all, ought, as already pointed out, to be considered as incident to the estate granted to the donee. To interpret the Rule as requiring that the exercise by a donee of a general testamentary power to be related back to the date of the creation of the power would seriously compromise such donee in the exercise thereof and thus defeat the expressed intention of the donor. This is so because counsel presently attempting to draft a will providing for the exercise of such power would out of caution and to remove the matter from all doubt, be compelled, in considering the effect of the Rule against Perpetuities, to so limit disposition of the property covered by the power as to satisfy the technical application of the Rule here pressed. This would mean in the instant case that a period of thirty-one years already passed from the date of the creation of the power would have to be taken into consideration so far as concerns the present disposition by the donee of the property in the exercise of his general testamentary power.

Finally, in view of the demonstrated similarity of the nature of the interest held by a donee of the power to appoint by deed or will- on the one hand and that of the donee a general testamentary power on the other, and in further view of the fact that the precise question here involved has not been determined in this state, it seems that the Court is free to declare what should be the interpretation of the Rule from the standpoint of judicial policy of the state. From that standpoint and as confined to the precise question, the Court holds that there is no difference between a general power to appoint by deed or will and a general power to appoint by will only and that in the latter case, as in the former, the period of the Rule is to be computed from the date the power is exercised. The Court concludes for this reason and other considerations heretofore expressed, that the exercise by Morris of his possessed power of appointment is to be dated from the time of its exercise and not from the date of its creation. Nor does the Court find from its examination of the authorities that its conclusion in this respect is contrary to the policy of this state as expressed either by way of statute or judicial decision.

In connection with the conclusion just expressed it may be remarked that the Rule against Perpetuities has from the standpoint of its relation to modern developments in respect of the use and distrfoution of property been the object of recent and highly critical treatment. Reference has already been made to The Thomas M. Cooley Lectures delivered by Lewis M. Simes at the Law School of the University of Michigan and published in 1955 under the title of “Public Policy and the Dead Hand.” These lectures will be found to contain his criticism of the Rule and his suggestion as to appropriate remedies. Mr. Simes is not alone in this criticism. W. Barton Leach, a recognized authority on the subject, considers the Rule in 65 Harvard Law Review, 721 (19521 and this under the title “Perpetuities in Perspective: Ending the Rule’s Reign of Terror.” Mr. Leach’s treatment of the Rule was also published in England in a companion article 68 Law Quarterly Review, 35, under the equally significant title “Perpetuities: Staying the Slaughter of the Innocents.” While the treatment accorded the Rule by Mr. Leach may be inferred from these titles, one of his comments seems here apprbpos:

“The Rule persists in personifying itself to me as an elderly female clothed in the dress of a bygone period, who obtrudes her personality into current affairs with bursts of indecorous energy. Time was when she stood at the center of family activity, necessary to the family welfare. A new generation with new problems has arisen; yet she persists in treating ancient issues as present realities and in applying her own familiar solutions. Asserting an authority derived from an earlier day, she insists that a stockade be built around the house to protect it from Indians even though the Indians are memories, * * *”

and again after pointing out that income and inheritance taxes have eliminated any threat to the public welfare from great accumulations of land or capital Mr. Leach observes:

“It does no harm to continue the Rule as a restraint on the whims of an occasional refugee from the nineteenth century, but we should make sure that it is limited to that cautionary function and does not disrupt the prudent dispositions of reasonable men.

“The old lady of our allegory must learn to sit by the fire and confine her activity to a few words of wise advise from time to time; she must forego this skittish activity that has caused such trouble and damage in the household.” 65 Harvard Law Review, 725, 727.

Compare also Rules against Perpetuities, 94 Trusts and Estates, 832; Simes, Is the Rule against Perpetuities Doomed?, 52 Mich. L. Rev. 179; Leach, Perpetuities Legislation, 67 Harv. L. Rev. 1349.

The foregoing is referred to not as authority for the decision here reached on the precise point considered but as justifying to a substantial extent the right of the Court to subject to scrutiny and to question the view of authorities founded upon economic considerations which, if valid at the time of the pronouncement of the Rule are in great measure non existent under modern conditions.

We turn now to the questions otherwise asserted as to the validity of the trust created by Morris in the exercise of his power of appointment. It is urged in effect that the trust estate created by him represents an unauthorized exercise or an exercise in its extent unauthorized by the power of which he was donee. But the Court finds the power granted adequate for its exercise. The Trust says that Morris’ share of the estate should “vest in and be distributed to his nominees and appointees by his last will and testament.” Giving these words their usual and ordinary meaning the power is unrestricted in scope. It seems beside the point that, instead of distributing the property outright to one or more persons, the donee accomplished the distribution by way of a trust i. e. with a trustee in whom was vested the property to be used for the defined benefits of a variety of persons in whom he apparently was interested. The trust in question terminates within lives in being at the effective date of the appointment. A trust is available for such a purpose. 1 Scott on Trusts, 137; Trust Company v. Claflin, 49 Abs 29; 73 N. E. (2) 388. Under the power Morris had the right of distribution and the right to determine the beneficiaries thereof and the extent of their respective interests. The Trust is elaborate and detailed but this does not, under the circumstances, render it invalid or in any way defective. Did he effect this distribution in a manner authorized by law? The Court holds that he did and finds nothing in the Rule against Perpetuities which would strike down the power of distribution exercised on August 14, 1953. It is again to be emphasized that the corpus of this estate is personalty as to which a trust under modern law is a convenient and appropriate method of distribution according to testator’s desire and intention. The Trust terminates at the end of specified lives in being at the time of the effective date of the will. All of the interests or estates created by the Trust vest within the life or lives in being on August 14, 1953. A permissible interpretation to that effect is the one which must be adopted. Tax Commission v. Oswald, 109 Oh St 36, 48; Linton v. Laycock, 33 Oh St 128; Wurst v. Trust Company, 37 Abs 393; Bolton v. Bank, 50 Oh St 290.

The only condition which would tend to divest an interest of any one of the beneficiaries was the so-called spendthrift provision of the Morris Trust and this only at the discretion of the trustee as to time, amount and duration. Nowhere in this Trust is an express provision against vesting, a fact which distinguishes it from the cases which were brought to the attention of the Court on this point.

Under all the circumstances the Court finds that exercise by Morris of the power given him in the Anne Baldwin Schultze Trust was in all respects valid. An order may be drawn accordingly with exceptions to those deeming themselves thereby aggrieved.

      The question posed in the briefs and argument as to whether the donee here — Morris—exercised the power granted in a manner or to an extent authorized by the original Trust is later considered.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    ABDUL, Plaintiff-Appellant, v. ABDUL, Defendant-Appellee.
    Ohio Appeals, .Second District, Franklin County.
    No. 4912.
    Decided August 20, 1953.
    Horace S. Kerr, Columbus, for plaintiff-appellant.
    Maugan & Vacca, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

Submitted on motion of the defendant-appellee seeking an order dismissing the appeal for the following reasons:

1. Failing to file appellant’s brief in accordance with Rule VII.

2. No appeal lies from an order allowing expense money pendente life.

The record reveals that the order appealed from is one allowing expense money to the appellee pendente lite; that the Court had previously made an allowance of $500.00 for expense money and in the order appealed from an additional allowance of $250.00 was made. The question first presented is whether or not the order is an appealable one. We are of the opinion that it is not, for our Supreme Court has recently held in the case of McMahon v. McMahon, 156 Oh St 280, that an order for alimony pendente lite “is not a judgment or final order from which an appeal on questions of law may be taken.”

As to the first branch of the motion, it appears that more than 50 days after the filing of the notice of appeal an entry was journalized extending the time for the filing of the appellant’s brief. This entry was not approved by opposing counsel and the Court was not advised that the time for filing the brief had elapsed. It was therefore made under a misunderstanding of the factual situation, and the order should be vacated. This Court has consistently held that Rule VII must be strictly complied, with as to the time of filing bill of exceptions, assignment of errors and brief and upon failure to do so the appeal will be dismissed. Anderson v. Industrial Commission, 28 Abs 634, 135 Oh St 77; Nickerson v. Nickerson, 84 Oh Ap 516; Peck v. County Commrs., 28 Abs 702; Merrill v. Moore, 52 Abs 301.

The motion will be sustained upon both of the assigned grounds.

The appellee has also moved for an allowance of additional expense money incurred in resisting this appeal. Since this matter is to be referred back to the trial Court which has jurisdiction to make adequate allowance for all expenses incurred, we will overrule the same.

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


author: Per CURIAM:

text:
    BONGIORNO, Plaintiff-Appellee, v. BONACCI, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23452.
    Decided June 22, 1955.
    Sindell & Sindell, Cleveland, for plaintiff-appellee.
    Kuth & Meyers, Cleveland, for defendant-appellant.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, MIDDLETON, J, of the Third District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

In this appeal on questions of law, the principal question concerns the charge of misconduct of counsel in oral argument to the jury.

Counsel for the plaintiff-appellee, Carl F. Bongiorno, was so very anxious to castigate the insurance company and not to try the issue of damages that he went far afield in his oral argument, which was highly objectionable and of such a character as to constitute misconduct upon the part of counsel for the appellee. This Court does not condone such conduct and under ordinary circumstances, would have found such error prejudicial to the rights of the appellant, Anthony Bonacci, so as to require this Court to reverse and remand the case to the trial court for further proceedings.

Extraordinary circumstances, however, are found in the bill of exceptions which we have examined carefully, especially with reference to the testimony of the medical experts who gave evidence concerning the effect that even a slight injury would have upon the type of herniated disc which the evidence showed this plaintiff had.

The plaintiff claimed that he had a painless and non-disabling defect in his back before the accident, and that the accident aggravated this condition. All of the medical testimony (none of which is controverted), shows the above condition to be the situation herein. The accident and liability were admitted. The only question in the case was as to whether plaintiff suffered any injury, and, if he did, what compensation in damages should be awarded.

We should emphasize that the fact of insurance was not only admitted by counsel for defendant-appellant, but such fact was affirmatively stated in the opening statement to the jury and during the course of the trial. The only conflict in the testimony arose when the plaintiff-appellee, Bongiorno, denied that he made certain oral statements to the insurance adjuster. The insurance adjuster, the only witness for the appellee, Bonacci, who, it was admitted, was only the nominal party herein, testified in direct contradiction to Bongiorno, concerning the attempt to amicably adjust this matter out of court and also as to the nature and extent of the injuries Bongiorno said he received. It was from such a situation that the unusual oral argument developed.

We think the law in the situation herein has been clearly stated by the Supreme Court of Ohio in the case of Book v. Erskine & Sons, Inc., 154 Oh St 391, and in Plas v. Holmes Construction Co., 157 Oh St 95, but authority is also found for the following statement in 39 O. Jur., at p. 722, Sec. 136, under the subject of Trial:

«* * * There are, in fact, numerous cases wherein the misconduct of counsel, while condemned with emphasis and unqualifiedly, has not been considered fatal to the verdict rendered. This may be true, even though the trial court neglected its official duty in permitting it if it cannot be said that a different verdict would have resulted had the improper language not been used.”

In the present case, we do not believe the verdict is excessive or that the language used by counsel for Bongiorno had the effect which was sought to be produced by vilifying the insurance company.

We have examined all of the claimed errors, and while we do not approve an oral argument such as we find herein, we do not find error prejudicial to the substantial rights of the appellant and we do find that substantial justice has been done to the parties.

The judgment of the trial court is affirmed. Exceptions. Order see journal.

HUNSICKER, PJ, DOYLE, J, MIDDLETON, J, concur.


author: By DOYLE, J.:

text:
    DJUBASAK et, Appellees, v. TAYLOR et, Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23389.
    Decided September 14, 1955.
    Austin T. Klein, Cleveland, for plaintiff-appellees.
    Max Efros, Cleveland, for defendant-appellants.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District; MIDDLETON, J, of the Third District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J.:

This was an action founded on the law of deceit.

It was alleged in the amended petition filed in the Municipal Court of Cleveland that the plaintiffs, the Djubasaks, entered into a written contract with the defendants, the Taylors, for the purchase of a lot and “used house containing plumbing.” Among the representations made by the defendants which induced the contract of purchase, was that the plumbing included a “septic tank and septic system and field.”

Following the purchase of the property and the acquiring of possession, it was discovered that no septic tank or septic tank system served the premises, and that “raw, untreated sewage was emitted from the house.”

It was further alleged that the surrounding territory was not serviced by a. sanitary sewer, and that, when the defendants represented the existence of a septic tank and system, they did so with a full knowledge of its falsity, and with a reckless disregard of the truth, and with the intent to induce the plaintiffs to purchase the property for the sum of $14,400.

The amended petition continued with a prayer for damages in the amount of $700.

Issues were joined by the answer of the defendants and a reply of the plaintiffs. The answer, in addition to denying the claims of the plaintiffs, pleaded that in the purchase agreement there was incorporated the following provision:

“9. Upon acceptance, this offer shall become an agreement binding upon and accruing to the benefit of purchaser and seller and their respective heirs, executors, administrators and assigns, and shall be deemed to contain all the terms and conditions agreed upon, it being agreed that there are no outside conditions, representations, warranties or agreements.”

The answer further alleged that, because of this provision in the purchase agreement, “plaintiffs are without right of a cause of action against them for any statements, representations and opinions expressed by them prior to the entry of defendants into the agreement alleged, and that, by reason of said provision, all such statements, representations and expressions of opinion have completely merged into the purchase agreement and the conveyance of title by defendants to premises by deed subsequent to the execution of the purchase agreement aforementioned.”

Upon the issues made by the pleadings, a trial was had in the Municipal Court of Cleveland, and, at the conclusion thereof, a judgment in the amount of $500 was entered upon the verdict of a jury. From this judgment, we entertain the present appeal.

The appellants (the Taylors) pose the following question: “Can parol evidence be admitted to contradict, vary or add to the terms of a written contract, in the preparation of which all parties to it have participated?”

While the allegations in the amended petition are not as full as might be desired, they cannot be said to be too nebulous to be the subject of judicial inquiry. They set forth.facts which constitute an action for fraud and deceit.

It is well settled that one who has been induced to enter into a contract by fraudulent representations may elect to retain that which he has received under the contract and later bring an action to recover damages for the injury he has sustained from the deceit. Likewise, it has been long established that, where a contract has been induced by false representations, the representations and the contract are separate and distinct. By this is meant the representations are usually not regarded as merged in the contract, and, as a result thereof, when a misrepresentation is made, its falsity and deceit is not tolled by later formal expressions in a contract which, as in the case under consideration, states that the contract of purchase contains all of the terms and conditions agreed upon — to-wit, that the property sold “shall include the land, all appurtenant rights, privileges and easements, and all buildings and fixtures in their present condition * *

Parts of the court’s charge to the jury were erroneous, but said errors were in part induced by the appellants’ request of the court to charge the jury on the legal relationship of the provisions of the contract to the claimed misrepresentation.

In our appraisement of the trial, we only say that most of the errors committed were errors of omission rather than commission; and that one error of commission was induced by the appellants and cannot be claimed by them as prejudicial. The jury found fraudulent representations amounting to deceit, from evidence which was amply sufficient. The jury likewise found damages in a reasonable amount.

We do not find error of a prejudicial nature which would justify this court in reversing the judgment.

Judgment affirmed.

HUNSICKER, PJ, MIDDLETON, J, concur.


author: By HORNBECK, J.

text:
    SKALL, d. b. a. H. & H. BAR, Appellant, v. STATE, DEPARTMENT OF LIQUOR CONTROL, Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4898.
    Decided October 13, 1953.
    ■ JEI. David Lefkowitz, Cleveland, Leonard J. Stern, Columbus, for appellant.
    C. William O’Neill, Atty. Geni., Robert B. Rady, George C. CcConnaughey, Jr., Asst. Attys. Geni., Columbus, for appellee.
   OPINION

By HORNBECK, J.

This is an appeal from a judgment of the Common Pleas Court of Franklin County, Ohio, affirming an order of the Ohio Board of Liquor Control which sustained the action of the Department of Liquor Control in rejecting the application of appellant for a renewal of her class D-l, D-2, D-3 and D-3A permits. The principal and practically the only error assigned and discussed in appellant’s brief is that the testimony before the Board did not support its affirmance of the order of the Department and that the testimony before the Court of Common Pleas, where some additional evidence was proffered, did not support the overall conclusion that the order appealed from was sustained by reliable, probative and substantial evidence which is the test to be applied under the Code providing for an appeal to the Common Pleas Court.

There was also argued in this Court the proposition that appellant was not accorded the right of a hearing before the Department at the time that it had under consideration appellant’s application for renewal of her permits. A careful examination of the record before the Board and in the Common Pleas Court fails to disclose that this question was at any time presented and urged; nor is it exemplified on the record. Manifestly, the Director had many substantial, probative facts before him upon which he predicated his order denying appellant’s application, and the record is silent as to whether or not appellánt was present or had the opportunity to be present when these facts were elicited, or that she did or did not have notice of them by order of the Director. Finally, we find no provision of the Liquor Control Act which assures to the applicant for a permit the right to be heard on the matter, but there is provision in the Administrative Procedure Act, §154-67 GC, which requires that,

“Every agency shall afford a hearing upon the request of a person whose application for a license has been rejected and to whom the agency has refused to issue a license, whether the same be a renewal or a new license, unless a hearing was held prior to the refusal to issue such license.”

It will be observed that this hearing is accorded only upon the request of the applicant.

Coming then to the specific findings in the order of the Department we observe that the affirmance of the Board is not an affirmance of every finding in the order. It is only an affirmance of the order itself. The record made before the Board on an appellate review affords no support for the second, third and fourth paragraphs of the findings, nor for that part of the first finding which relates to Knesseth Israel Congregation Synagogue and its location and occurrences that took place in the vicinity of the synagogue.

There is then left a number of findings which we test upon the claim that they, upon the record before the Board, together with the affidavit of appellant in the Common Pleas Court, are against the manifest weight of the evidence or do not support the order of the Board under the statute. Briefly, the charges upon which the Board must rest its affirmance are:

(1) That the place of business of permittee is in close proximity to the Columbia Public School. Evidence discloses that it is 153 feet from that school.

(2) That men habitually loiter in front of the permit premises indulging in indecent language and interfering with the comings and goings of the children attending the school.

(3) That persons urinated outside the premises in the rear thereof and otherwise improperly exposed themselves in the vicinity thereof and that such conditions constitute a danger to the children attending the school.

These findings are made the basis of the conclusion that Regulation 12, Section 3 of the Board was violated in that environmental factors surrounding the business operated by the applicant are such that the issuance of such permits would be prejudicial to public decency, sobriety and good order. That environmental factors may be the basis of a refusal to issue a permit has been held by this Court many times and in one case in particular even where the Board did not urge the rule here under consideration, Strohm, dba Railroad Restaurant, v. Board of Liquor Control of the State of Ohio et al, 57 Abs 378.

There is ample support in the record for all of the findings which we have heretofore set forth. As a matter of fact, the quality of the witnesses in this case is exceptional. They consist of a former president of the P. T. A. of Columbia School, the president and the vice president of P. T. A., the business secretary of the Cleveland Board of Education, a mail carrier who also was a minister, and others of unquestionable reputation.

The permit premises were located on one of the busiest corners of the City of Cleveland. The front entrance was about eight feet from a storage mail box. The mail man testified that, at times, in front of that box it was necessary to get a rake to move the accumulated bottles and that the stench of urine from the standard to which the box was affixed was obnoxious. It also appeared that in the early hours of the morning men were seen to be lying in and about the front of the permit premises in an intoxicated condition. At one time eight of the patrons of this place were seen to come from it, two of them in the midst of a fight, one with a bottle in his hand and the other with his head bleeding from a cut. On one instance near the open front door, two witnesses observed a woman on a stool with two men about her, one of whom was seen to have one hand under her dréss and the other hand at her breast and her body was exposed to her thighs. On one occasion- a drunken woman rushed out of the bar and observing a child with whom she lived, proceeded to upbraid her, knocked her down and kicked her and left her in a semiconscious state. It is claimed that this testimony is met by the affidavit of appellant offered in Common Pleas Court, but granting all that the affidavit establishes it does not refute the testimony of the witnesses as to the actual occurrence. All of these happenings were in the proximity of a public school and many of them took place while the pupils were on their way to and from school. To meet this proof the permittee took the stand and testified that she did not know of anything to which the witnesses had testified; that she did not frequent her own place of business; that she did not manage it and that she did not visit it.

It certainly should not be necessary to labor the proposition that such conduct as developed, by the testimony establishes beyond peradventure of doubt that the maintenance of such a place as was under consideration was a nuisance and its continued operation would be prejudicial to public decency, sobriety and good order.

There is no support whatever for any error assigned. The judgment will be affirmed and cause remanded.

WISEMAN, PJ, MILLER, J, concur.


author: By DOYLE, PJ:

text:
    STATE ex. GUNDERSON, Plaintiff-Appellee, v. SOUTH EUCLID (City) et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23366.
    Decided February 16, 1955.
    Davies, Eshner, Johnson & Miller, Cleveland, for plaintiff-appellee.
    Clifford H. Bernard, Cleveland, for defendants-appellants.
    (DOYLE, PJ, HUNSICKER, J of the 9th District; MIDDLETON, J, of 3rd District sitting by designation in the 8th District.)
   OPINION

By DOYLE, PJ:

The relator, Leonard M. Gunderson, instituted this action in mandamus against the City of South Euclid, Ohio, and various officials thereof, in the Court of Common Pleas of Cuyahoga County.

He pleaded that as the owner of a lot of land located on Temblehurst Drive in the City of South Euclid, he submitted to the building commissioner of the city proposed plans and specifications for the erection of a dwelling * * * together with a regular application fee for the issuance of a building permit; the plans and specifications were filed and “duly approved by the said * * * building commissioner,” but that on the same date of the filing and approval, the city officials refused to issue said building permit or sewer and water connections permit, unless there was paid to the city, in addition to the regular application fees, an additional sum of money claimed by the city to be an amount equal to the cost of the installation by the said city, of sewer and water on and for said lot, “notwithstanding. the fact that this court has heretofore held that said * * * lot * * *is not subject to any assessments or charges for said sewer and water improvements and has enjoined the city * * * from collecting, or attempting to collect the same.” (This decision was affirmed by the Supreme Court of Ohio in Gunderson v. City of South Euclid, et al, 157 Oh St 437.)

The relator continued by pleading that he had conformed with all of the regulations of the building code of the city, as well as with all other ordinances in force “in relation to the erection of structures,” and that if the respondent building commission is not compelled to issue a permit he will suffer irreparable damages. The petition concludes with a prayer for a peremptory writ of mandamus, directing the building commissioner to issue a building and sewer and water connection permit.

The respondents by way of answer admit various allegations in the petition and specifically plead “that the request of plaintiff for a sewer and water connection permit was refused because plaintiff failed to pay defendant the sum of one hundred seventy-four dollars and fifty-eight cents ($174.58) the pro rata cost of placing said improvements in the street abutting plaintiff’s property.” Further pleading, the defendants say:

“that ever since the 5th day of August, 1941, an ordinance of the City of South Euclid has been in effect which requires owners of property abutting on a street that has been improved at the expense of the city or financed through the issuance of bonds by the installation of sewer and water mains, to pay a proportionate cost thereof before an application to tap such sewers or water mains may be made; that the plaintiff has failed and refused to pay defendant the sum of one hundred seventy-four and 58/100 dollars ($174.58) same being his proportionate cost of the installation of water and sewer in Temblehurst Road and that by reason thereof, no duty devolves upon these answering defendants to issue a permit to connect with such sewer and water mains.”

The reply of the relator challenges the constitutionality of the ordinance referred to in the answer, which he claims was enacted for the purpose of requiring property owners “to pay the assessed cost of water and sewer installations when special assessments could not be collected by the city, due to defects in procedure or the failure to obtain an assessment lien * The reply further alleges that the ordinance is void and of no effect as against relator for the reason that relator purchased the property at Auditor’s forfeited land sale;” the land is “torrenized or registered land,” and when the city started its proceedings' to improve the roadway on which the property, which is the subject of this action, is located, “No notice or list of lands were filed as mandatorily required by §8572-56 GC then and there in effect, nor was a memorial of any of the special assessments entered on the register of the certificate of title of relator’s land or on his owner’s duplicate thereof.” The reply continues by pleading a decree of injunction entered by the common pleas court (affirmed by the Supreme Court in 157 Oh St 437) “enjoining the collection of these assessments and holding the lands free from any lien thereof;” that the ordinance is an attempt to avoid the decisions of the courts enjoining the collection of special assessments and seeks to do indirectly that -which the courts have expressly forbidden, and is ineffectual and void.

At the conclusion of the trial in the Court of Common Pleas, the trial court entered the following order:

“This cause came on to be heard * * * upon the pleadings, agreed stipulation of facts, and the briefs of the parties, and upon consideration thereof, the court finds:

“1. That relator is the owner of sublot No. 44 * * * (the lot in question) :

“2. That this ■ court granted a permanent injunction against the City of South Euclid, Ohio, in case No. 586,304 * * * enjoining the collection of sewer and water assessments and holding the lands free from any lien thereof:

“3. That said injunction covered the special assessments and reassessments for sewer and water on sublot No. 44, Temblehurst Road,- in the City of South Euclid, Ohio.

“4. That the judgment of the Court of Common Pleas in case No. 586,304 was affirmed by the Supreme Court of Ohio in an opinion shown in volume 157 Oh St 437.

“5. That * * * relator submitted to respondent, Jacob Gallo, Building Inspector of the City of South Euclid, Ohio, an application for a building permit on sublot 44, Temblehurst Road, together with plans and specifications in all respects in conformity with the building code of the City of South Euclid, Ohio, and tendered the customary fees required for such building permit.

“6. That such plans and specifications were approved by the said Jacob Gallo, but that respondent refused to issue the building permit and the sewer and water connection permit until relator paid the additional sum of one hundred seventy four and 58/100 Dollars ($174.58) representing the cost of the sewer and water improvements for said sublot 44, Temblehurst Road.

“7. That on or about August 5, 1941, the City of South Euclid enacted an ordinance now known as No. 157.06 which provided that no permit shall be issued to tap sewer and water mains unless the abutting property owner shall have paid that portion of the cost of such sewer and water mains for which the property of said owner was formerly charged in the form of an assessment but which assessment the city has been unable to collect due to defects in procedure or the failure to collect an assessment lien.

“8. That such ordinance is void as against relator and that the refusal of respondents to issue to relator the. building permit referred to is a violation of the previous order of the court.”

The judgment continued by ordering the respondents to issue to relator a “building permit and (a) sewer and water connection permit.”

In this appeal we are not favored with a bill of exceptions but we do have before us the papers in the case, including a stipulation of facts which was duly filed in the trial court under the provisions of §2321.12 R. C.

In the light of the record before us, we determine that the conclusions and findings of the trial court from paragraphs 1 to 7 inclusive, as shown above, are proper. As to whether the ruling in paragraph 8 and the issuance of the writ is justified, we now direct our attention.

The ordinance in question reads:

“Where public sewers or water mains have been constructed and the cost thereof has been wholly or partly paid out of the funds of the City, or financed through the issuance of bonds, and the owner of any property abutting upon such sewers or water mains makes application to tap such sewers or water mains, no permit shall be issued to such abutting property owner to make such connection or connections, nor shall such abutting property owner make such connection or connections unless he shall have first paid into the city treasury or given security for such payment satisfactory to the fiscal officer of the city that portion of the cost of such sewers or water mains which the property of said owner for which a connection or connections are desired to be made was formerly charged in the form of an assessment, but which assessment the city has been unable to collect due to defects in procedure or the failure to obtain an assessment lien for such cost. Provided, however, that where a portion of the cost of such sewers or water mains to which connections are desired to be made has been assessed against such abutting property and a valid assessment lien imposed thereon for such cost, or where in the case of an invalid assessment or reassessment for such cost may be levied under and by authority of §3902 GC such permit shall be issued, provided the same conforms with the other regulations of said city.”-

Upon a consideration of the ordinance, we find that it is not void. It appears that it establishes a rule of uniform operation throughout the 'city and was adopted to require all who would use the sewer and water connections to bear a burden equal to that borne by other users of the utility. The rule is not unreasonable.

Our conclusions we find consonant with the principles announced in Herman et al v. State et al, 54 Oh St 505; State ex rel Stoeckle v. Jones et al, 161 Oh St 391. The cited case of State ex rel F. B. Co. v. Village of Beechwood, 46 N. E. 2d, 808, 37 Abs 366, is distinguished because it is obviously based upon an entirely different factual situation.

The judgment is reversed and final judgment entered for the respondent.

HUNSICKER, J, MIDDLETON, J, concur


author: By CECIL, District Judge:

text:
    SUNBEAM CORPORATION, Plaintiff, v. HORN et al, Defendants.
    United States District Court Southern District of Ohio Western Division.
    Civil No. 1959.
    Decided December 7, 1955.
    Landis, Ferguson, Bieser & Greer, Dayton, for plaintiff.
    Robert J. Kelly, William T. McLeran, Dayton, for defendants.
   OPINION

By CECIL, District Judge:

This case is before the Court upon a motion and a hearing for a preliminary injunction in favor of the plaintiff against the defendants to prevent them from selling the plaintiff’s products at prices below the established fair-trade prices.

The plaintiff has shown all the requisites necessary to entitle it to such an order, unless it should be denied by reason of the defense raised by the defendants. The defendants claim that they have an equitable defense and that by reason thereof, the plaintiff should be prevented from enforcing its fair-trade contract.

It is the claim of the defendants that there is a Post Exchange on the Government Reservation of Wright-Patterson Airforce Base, that this is within a few blocks of the defendants’ stores and that the Post Exchange sells plaintiff’s products at prices below the fair-trade price.

It is true that injunctive relief is an equitable remedy, but the Court in this instance is charged with the enforcement of a statute and does not have the discretion to grant relief on purely equitable grounds. Secs. 1333.06 and 1333.07 R. C., grant the right for manufacturers to enter into fair-trade contracts. Sec. 1333.08 R. C., provides for injunctive relief in case of violation of such contracts.

To hold that the contract between the plaintiff and the defendants is unenforcible upon equitable grounds would be to nullify the Fair Trade Act so far as this plaintiff is concerned. If the contract were unenforcible against these defendants, then the other dealers in Fair-born could claim that it was unenforcible against them and then it would spread from city to city to a point where it would have no effect in the State.

The question arises as to whether or not the plaintiff has violated the contract with the defendants for the reason that it permits sales to be made to the Post Exchange above mentioned. The Post Exchange is Government-operated on Government property. The Fair Trade Act, therefore, does not apply to the Post Exchange. Sunbeam Corporation v. Central House Keeping Mart, Inc., et al., Second Series, Illinois Appellant Court, 543.

If the plaintiff were to refuse to sell its products to a distributor who, in turn, sold it to a Post Exchange, for the reason that the Post Exchange sold at prices less than the Fair-Trade price, it would then be applying the Fair Trade Act to the Government on Government-owned territory. This, it cannot do. Government territory is not within the scope of the State Fair Trade Act. This answers defendants’ claim that paragraph 4 of the Distributors Fair Trade contract should operate to prevent sales by the distributors to the Post Exchange. The language “will not in turn advertise, offer for sale or resell such products within or for delivery in any State having a fair-trade law, for less then the minimum retail Fair-Trade Prices from time to time stipulated by Producer,” must be construed in the light of the jurisdiction of the State Fair-Trade law.

How far, if at all, and in what manner, the Post Exchange at Wright-Patterson Airforce Base is competing with private business is a question not now before the Court. The temporary injunction heretofore issued by the Court will continue in force until further order of the Court or until the case can be heard on its merits.


text:
    LAKE MANOR APARTMENTS, Inc., Plaintiff-Appellee, v. MARSH, Defendant-Appellant.
    Ohio Appeals, Eighth District. Cuyahoga County.
    No. 22656.
    Decided February 9, 1953.
    Sanborn, Nacey & Brandon, H. H. Jackson, Cleveland, for plaintiffappellee.
    Ronald M. Benjamin, Cleveland, for defendant-appellant.
   OPINION

Per CURIAM:

The defendant as tenant of the plaintiff on a month to month basis was paying the maximum rent under Federal Rent Regulations of $89.00 per month. In July, 1951, the plaintiff petitioned the Office of Rent Control for the right to increase the rent asking for $107.00 per month. In January the application was heard by the Office of Rent Control and at the conclusion of the hearing the plaintiff was given the right to charge $110.40 per month for the accommodations occupied by the defendant which order was by the Office of Rent Control made retroactive to the date of the application in July, 1951. The defendant paid the rent at the rate of $89.00 per month until the date of the new order in January, 1952, and then paid and has since been paying the full monthly rental allowed of $110.40 per month. This action, in addition to seeking the eviction of defendant for non-payment of the full rent from the date of the application for increase also seeks to recover the difference between the amount of rent paid and the amount of increased rent granted in January retroactive to the date of the plaintiff’s application with the Office of Rent Control.

There is no evidence in the record that the defendant ever agreed to pay any increase in rent retroactive to the date of the application which the plaintiff filed with the Office of Rent Control and since the order of the Office of Rent Control cannot have a retroactive effect upon the defendant’s contractual liability for the payment of rent to the plaintiff, the plaintiff is not entitled to such increase from the date of the application until the date such application was granted.

Judgment reversed and final judgment for defendant. Exceptions noted. O. S. J.

SKEEL, PJ, HURD, J. KOVACHY, J, concur.


text:
    RUSH MOTOR SALES, Inc., Plaintiff-Appellee, v. SHOOK, Defendant-Appellee, and WEST, d. b. a. JAY WEST SERVICE STATION, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5189.
    Decided February 2, 1952.
    E. O. Gifford, Columbus, for plaintiff-appellee.
    James W. Huffman, Columbus, for defendant-appellee, R. L. Shook.
    David H. Thomas, Columbus, for defendant-appellant, Jay West.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment in favor of the plaintiff and against the defendant, Jay West dba Jay West Service Station, for $171.30 with interest and costs.

Five errors are assigned all of which may be resolved upon determination as to the correctness of the special findings of fact made by the trial judge at the request of defendant-appellant.

Two of the assignments of error are especially directed to Nos. 6 and 10 of the separate findings of fact. No. 6 is,

“Dr. Shook was advised by the said Jay West to have the automobile repaired and to send him the bill.”

No. 10 is,

“Jay West authorized said service manager to repair the automobile.”

The findings of fact are concise, complete and in our opinion well supported by the testimony developed in the trial. Of course, this case like most lawsuits developed conflicts in testimony, although not as marked as in many cases. The trial judge had the right to resolve the disputes of fact. So doing, the findings are well supported and justify and require the judgment as entered.

The first five findings define the occurrences upon which the action of plaintiff was predicated and from them it is developed that Dr. Shook, being the owner of a new Nash automobile, took it to the service station of defendant-appellant to have the oil changed. An employee of the defendant drained the oil from the hydromatic transmission instead of the crank case and the defendant did not replace the drained oil but put oil in the crank case instead.

Trouble developed in the .operation of the car éven before it was removed from the place of business of defendant-appellant, and thereafter, probably on the next day, Saturday, it was removed to the garage of plaintiff and there remained until Monday when it was discovered that by reason of the operation of the hydromatic transmission without sufficient oil, the moving parts therein had been burned and scored making it necessary to replace practically all of its parts. For these parts and the service in replacing them the account which is sued upon accrued.

Appellant asserts that nowhere is there any testimony that West orally or in writing assumed the bill. Thus it is contended that there was no contract whatever wherein he agreed to pay, and if there were, it was not in writing and in contravention of the statute of frauds.

Let us examine as briefly as possible, some of the statements of the witnesses on the subject matter of the special findings Nos. 6 and 10. At page 3 of the record, Dr. Shook, testifying, said that on Monday afternoon succeeding the day when the oil was changed at defendant-appellant’s station, having learned that the hydromatic had been burned out, called appellant at his office. This was the first of four or five conversations between these parties. The witness stated he (referring to defendant-appellant) said, “Send the bill out and I will straighten it out." At page 4 he stated that defendant-appellant said, “Send the bill out here and I will straighten it out,” and “that was the exact words that he used.” At page 37, on direct examination by counsel for Dr. Shook he testified to the foregoing statements for the third time. At page 9 of the record, the witness Leeper, assistant service manager of plaintiff’s garage, was testifying. He had said that after determining what he had concluded had occurred to cause the stoppage of Dr. Shook’s automobile, he called defendant-appellant, who said that it was Mr. West speaking, “and I (the witness) asked him if he would come up and look to see how much engine oil was in the crank case before we went ahead with any farther work on it,” to which he answered, “Well, that is not necessary.” And further, “then I said, well, do you want us to go ahead on it?” He said, “Yes, go ahead on the repair.”

And at page 13, after testifying that he had told appellant that “the oil was in the car and I would like for you to come up and see it so everybody would be satisfied that there is extra oil in the crank case of the engine.”

The witness again stated that succeeding this statement of the witness to appellant he said, “Go ahead.”

On the challenge to the finding of fact in No. 10 all the testimony that we have heretofore quoted is pertinent and in addition that of Shirley Tobin, the bookkeeper, who says at page 22 of the record that the charge was made to defendant-appellant.

From the testimony the question for determination was what was meant by defendant in his directions heretofore quoted and what did the plaintiff have the right to believe that he meant. The natural and probable construction to be put upon the statements was that he was directing the plaintiff to make the charge to him, that it was an original and direct request, and that the charge was so made. It is true that the bookkeeper made her ledger entries from the order sheet upon which the notation “Bill to Jay West Service Station” was made, not by the assistant service manager, but by the service manager himself. What may have been said to the service manager did not appear as he did not testify, but from what is in the record he would have been justified in making the notation on the order sheet.

Considerable is said about the insurance which defendant carried indemnifying him for damages which he might be required to pay because of negligence of his employee. There is no doubt that he mentioned insurance in his conversations with Dr. Shook although the Doctor says that no such mention was made during the first conversation that he had with defendant and upon which he relied.

It is true that the obligation of the defendant here is based on contract but it was assumed because of the conclusion of defendant that he should pay this bill because it was caused by the negligence of his employee. In no event would the insurance company under its policy have been obligated to pay Dr. Shook directly nor unless and until it was established that the defendant was liable to Dr. Shook because of negligence.

It is urged that the original charge was made to Dr. Shook. The trial judge had the right to find that no repair work had been done on the hydromatic transmission prior to the time when the defendant authorized the plaintiff to extend the credit to defendant.

The action as instituted lends some support to the contention that the charge was made against Dr. Shook. However, a careful reading of the petition discloses that although both Dr. Shook and West are named in the petition as defendants the petition says that there is due it from the defendant (singular) upon an account, and the prayer is that the plaintiff may recover a judgment against the defendant. Without any attempt to make the petition more specific, both defendants answered by general denials and the cause went on for trial upon the issues factually drawn.

Upon the whole record we cannot find any assigned error well made.

The judgment will be affirmed.

WISEMAN, PJ, MILLER, J, concur.


author: By MILLER, Presiding Judge:

text:
    JAFFE, Plaintiff-Appellant, v. PATTERSON REALTY COMPANY and WEBSTER CLOTHES, Inc., Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2285.
    Decided April 28, 1955.
    Pickrel, Schaeffer & Ebeling, By Virgil Schaeffer and Wm. H. Selva, of Counsel, Dayton, for plaintiff-appellant.
    Smith, Schnacke & Compton, By Murray Smith, of Counsel, Dayton, for defendant-appellee, Patterson Realty Company.
    Kusworm & Kusworm, By Sidney G. Kusworm, of Counsel, Dayton, for defendant-appellee, Webster • Clothes, Inc.
   OPINION

By MILLER, Presiding Judge:

This is a law appeal from a judgment of the Common Pleas Court decreeing that the plaintiff was entitled to have specific performance of a certain contract entered into on or about April 7, 1947, whereby the plaintiff’s assignor and the defendant, Patterson Realty Company, agreed to enter into a proposed lease for a certain storeroom located in the Callahan Building, Dayton, Ohio, and which was owned by the said defendant; that the lease of the defendant, Webster Clothes, Inc., for the same premises was subservient to that to which the plaintiff was entitled. The record reveals that in the summer of 1946 the Patterson Realty Company purchased the Callahan Building, and soon thereafter Mr. Lawson Jaffe, the plaintiff’s assignor, contacted Mr. Patterson about leasing the storeroom in question, advising him that he was seeking a location for a jewelry store being operated by Bohlender and Royston, Jewelers, Inc., under the trade name of Royston’s, and of which he was the principal stockholder; that the Royston lease expired in June, 1946, but that he had an oral extension for one year and that thereafter the rental was to be on a monthly basis, as the building was to be torn down and a new one erected, but the plans were indefinite as to just when the work would be started. The storeroom at the time was under lease to Chasebrook Clothes, Inc., which was operating a clothing store therein under the trade name of “Kibler Clothes.” This lease was to expire on December 1, 1946, but it contained a clause providing for a five-year renewal which would extend it to December 1, 1951. Jaffe informed Patterson that he was attempting to purchase this lease, but as yet had been unable to come to terms. From all his representations it appears that Jaffe desired to obtain the room as soon as possible. Soon after the second meeting between Jaffe and Patterson, Jaffe turned over the negotiations for said lease to his agent, Mr. Clair Sammons, who had numerous conferences thereafter with Mr. Patterson and the manager of the building at which the terms and conditions of the lease were fully discussed, including certain alterations Jaffe was going to make on the premises. As a result of these conferences a copy of a proposed lease was mailed to Mr. Jaffe, which was complete in all details with the exception of the date of its execution and of its beginning and termination. The lease was accompanied by the following letter, which is the basis of this action:

“April 7, 1947

“Mr. Lawson Jaffe,

“Mayor’s Jewelry,

“Third and Main Streets,

“Dayton 2, Ohio.

“Dear Mr. Jaffe—

“This will confirm our verbal agreement with respect to the leasing of the store room and space now occupied by Kibler’s Clothing Store in the Callahan Building, Dayton, Ohio, now under lease to Chasebrook, Inc. to November 30, 1951.

“It is our understanding that you are now negotiating to secure an assignment of the Chasebrook, Inc. lease. Upon your acquisition of this lease and the vacation of the premises by the present tenant, or upon the expiration of the present lease, we agree to enter into a lease with you, substantially in the form attached hereto as ‘Exhibit A,’ which lease you may assign to the Bohlander — Royston Jewelries, Inc. without however releasing yourself from the obligations of the lease.

“If tlie foregoing correctly states our verbal agreement, and the attached form of lease is satisfactory to you, will you please sign a duplicate of this letter and return the same to us and it shall constitute our contract.

Very truly yours,

PATTERSON REALTY COMPANY

(Signed) Robert Patterson

PRESIDENT”

Within thirty days after the receipt of this letter, Mr. Jaffe approved the same by signing in duplicate and forwarding it to Mr. Patterson. Nothing further was done thereafter except the fact that Jaffe continued his negotiations to acquire the Kibler lease, but in this he was not successful. Then on August 12, 1948, Patterson Realty Company sent the following letter to Mr. Jaffe:

“August 12, 1948.

“Mr. Lawson Jaffe,

“Mayor’s Jewelry,

“Third and Main Sts.,

“Dayton 2, Ohio.

“Dear Mr. Jaffe:

“We are anxious to proceed with some remodeling of the Callahan Building and before doing so would like to have you confirm our view that neither we nor you are any longer obligated under our exchange of letters on April 7, 1947, relating to the store room occupied by Kibler’s Clothing Store. More than a year has passed and you have not acquired the existing lease, nor have you evidenced plans to negotiate, therefore: we consequently presume that you have abandoned your plans for the use of this corner.

“If you have any different views, we shall be glad to discuss them with you.

Yours very truly,

PATTERSON REALTY COMPANY.

(Signed) Park Wineland

Building Manager.”

In reply to this letter Mr. Jaffe called Mr. Wineland on the telephone and told him that he had been working hard to acquire the Kibler lease but that even though he was unsuccessful, he still had a right to the lease under the contract. Later the Kibler Store was sold to Webster Clothes, Inc., and the lease was duly assigned to it. On October 12, 1949, an agent of the plaintiff wrote a letter to Webster Clothes, Inc., advising it of the plaintiff’s contract for a fifteen-year lease at the termination of their lease expiring on December 31, 1951, and stating that Mr. Jaffe was desirous of negotiating with them with reference to obtaining possession prior to the expiration of their lease. Webster Clothes was also advised that the contract of April 7, 1947, as well as the proposed lease, was recorded in the Recorder’s Office, Book No. 51, page 419, and upon its later request a photostatic copy of the recorded instruments was sent to Webster Clothes. With full knowledge of all these facts Webster Clothes entered into a new lease with Patterson Realty Company for a term of five additional years, making its lease expire on December 31, 1956.

The record also discloses that in accordance with the letter of April 7, 1947, Mr. Jaffe assigned all of his right, title and interest in the lease to Bohlander and Royston Jewelers, Inc., and who are now the plaintiffs in this action.

The lower court, in a well considered opinion, held that there was no mistake or patent or latent ambiguity in the agreement made on April 7, 1947, and therefore it was not subject to modification by parol evidence. It was of the further opinion that there was no condition precedent expressed in the alleged agreement because of the use of the conjunction “or” in the following sentence:

“Upon your acquisition of this lease and the vacation of the premises by the present tenant, or upon the expiration of the present lease, we agree to enter into a lease with you, 4 *

The court was also of the opinion that the defendant, Webster Clothes, had actual knowledge of the plaintiff’s claim to a lease, and therefore its lease was subservient to that of the plaintiff’s. We are in full accord with the court’s legal and factual conclusions, and the reason for the same given in a well considered opinion; hence, a further discussion of these questions would serve no useful purpose.

The defendants are urging, however, that from all the evidence presented, the court should have found that the acquisition of the existing lease was a condition precedent and since it was never acquired the agreement of April 7, 1947, never became effective. We have scrutinized the record most carefully on this point and find no evidence to support the defendant’s claim that there was a meeting of the minds in that the plaintiff was to first acquire an assignment of the present lease. The only evidence on this question requires us to conclude that representations were made that Mr. Jaffe wanted to acquire the premises at the earliest date possible. This falls far short of constituting an agreement that it would be done before the alleged contract would become effective. A statement made by Judge Matthias in the case of Montgomery v. Board of Education, 102 Oh St 189, at page 193, seems most appropriate to the facts presented on this issue, to-wit:

“The contingency which here occurred was one which might well have been foreseen and provided against in the contract, but was not. The law will not insert by construction for the benefit of one of the parties an exception or condition which the parties either by design or neglect have omitted from their own contract.”

This Court, in Goodman v. Sullivan, 94 Oh Ap 390, held that a condition precedent may not be implied when the same might have been foreseen and provided against by express agreement. Likewise, we cannot give such implication from the facts presented in the case at bar.

The record reveals that the answer of the Patterson Realty Company prayed that the alleged contract be declared void and of no legal effect, or, in the alternative, that the court reform said agreement so as to conform to the intention and understanding of the parties, to-wit: That Mr. Jaffe be obligated to spend not less than $50,000.00 for improving the interior and exterior of the premises. The lower court ordered the reformation to be made, holding that there was a mutual mistake or inadvertence on the part of both the plaintiff and defendant, Patterson Realty Company, in omitting as one of the clauses of the proposed lease that the plaintiff herein, before taking possession under the fifteen-year lease, would expend for his own benefit and the benefit of Bohlander and Royston a minimum of $50,000.00 for the improvement of the front entrance of the building and the storeroom. The only provision in the lease relating to remodeling, found after the enumeration of sixteen specific conditions to the same, entitled “The Conditions of This Lease,” is as follows:

“IT IS UNDERSTOOD that upon taking possession under this lease the LESSEE intends to remodel the premises. Detailed plans of the alterations are to be submitted by the LESSEE to the Lessor for suggestions and final written approval before the work is started. All such alterations and changes shall be made in a high-grade manner and by expert workmen and at the expense of the LESSEE. At the time the alterations are made, the Lessor agrees to improve the front entrance of the facade and doors and to erect a new modernistic cigar stand, at the expense of the Lessor. The LESSEE shall have the privilege of a small recessed window display in the lobby of the office building, the size and design of which are to be subject to the approval of the Lessor. During the period of alterations the LESSEE shall be entitled to the abatement of one (1) month’s rent.”

It is to be noted that the lease makes no mention of the minimum cost of the remodeling, but the only requirement is that the detailed plans be submitted to the Patterson Realty Company “for suggestions and final written approval before the work is started.” In order that reformation may be had on the grounds of mistake the standard of proof required is that the evidence must be clear and convincing. 16 O. Jur. 174, and cases cited. We find no evidence in the record tending to sustain Patterson’s contention that it was mutually agreed by the parties that $50,000.00 would be spent on the remodeling. It does show, however, that the cost of repairs was discussed, Mr. Jaffe stating that it might cost as much as $60,000.00. It appears to us that it is not the cost of repairs that is of prime importance here, but rather that the plans and specifications be in accordance with the representations made by Jaffe as to the remodeling that he would do after acquiring the lease. Since it is silent as to the nature of the work to be performed, this may be established by parol evidence. Mr. Jaffe and his associates are bound by these representations and failure of performance on their part would constitute a breach.

We cannot, however, on the facts presented order that the terms of the lease be modified as requested; otherwise, our judgment will be the same as that of the Common Pleas Court.

HORNBECK and WISEMAN, JJ, concur.


text:
    JAFFE, Plaintiff-Appellant, v. PATTERSON REALTY COMPANY and WEBSTER CLOTHES, Inc., Defendants-Appellees.
    No. 2285.
    Decided July 21, 1955.
    Pickrel, Schaeffer & Ebeling, Dayton, for plaintiff-appellant.
    Smith, Schnacke & Compton, Dayton, for defendant-appellee, Patterson Realty Company.
    Kusworm & Kusworm, Dayton, for ■ defendant-appellee, Webster Clothes, Inc.
   OPINION

By THE COURT.

Each of the defendants has submitted motions seeking a new trial and in which we find the only new matter presented is whether the Court exceeded its jurisdiction when it ordered that “the said Webster Clothes, Incorporated, shall upon demand by plaintiff forthwith vacate said premises.”

The equitable principles applicable to the factual situation presented herein seem to be clearly set forth in 16 O. Jur., 74, Section 30 as follows:

“The procedure of equity, and the nature and operation of its decrees, enable it to settle and adjust, in one suit, rights and interests which in courts of law result in various issues requiring numerous actions and trials, sometimes between different parties. The maxim is, ‘equity abhors a multiplicity of suits’; and the chancery courts were disposed to exercise their powers to that end in order to relieve against the anomaly of repeated trials of the same issue, and the consequent vexation and expense visited upon the party thus exposed to the multiple actions, if this could be done without substantially sacrificing the material interests of any of the parties. The principle that equity strives to avoid a multiplicity of suits has a double application. In the first place, it governs courts of equity in the administration of their remedies, where their jurisdiction attaches on other grounds. Thus circuity of action is dispensed with, in securing the ultimate equitable relief to which the plaintiff shows himself entitled; and jurisdiction, once obtained, is retained until the full justice is done between the parties. So, as to parties, the old rule was that suits must be prosecuted by the real parties in interests, and that all who were united in interest must be joined; also, that all persons materially interested, either legally or equitably, in the subject-matter, ought to be made parties to the suit, either as plaintiffs or as defendants, so that there might be a complete decree which should bind them all and terminate litigation.”

Continuing further at page 88, Section 34, it is said:

“The disposition to avoid circuity of action and multiplicity of suits induces a court of equity which has once assumed jurisdiction of a cause on any equitable ground to take cognizance of and determine all phases of the subject-matter in controversy, and to retain jurisdiction until these are completely disposed of, though this may involve the determination of legal issues and the granting of legal remedies. On this principle, often expressed in the maxim, ‘equity delights to do justice, and not by halves,’ the ultimate equitable relief indicated by the facts pleaded and found will be awarded, though primary relief of another character may be the principal object of the suit. So, upon the reformation of an instrument evidencing an executory obligation running to the plaintiff, the court may, if circumstances require, retain control and award specific performance. Of, if the ultimate relief is the recovery of money, but a primary equitable remedy, such as the one mentioned, is necessary to clear the way for the recovery, the suit will be retained, the amount due as debt or damages ascertained, and a decree therefor given, all without the intervention of a jury, and without altering the chancery nature of the case, under present Ohio statutory and constitutional provisions.”

In Railroad Co. v. Steinfeld, 42 Oh St 449, the Court held that in the same action a written instrument may be reformed and decreeing its specific enforcement. Citing White v. Denman, 1 Oh St 110; Davenport v. Sovil, 6 Oh St 459; and Insurance Co. v. Williams, 39 Oh St 584. The same legal principle is defined in the case of Gelman v. Holland Furnace Co., 59 Abs 539, paragraph 3 of the syllabus:

“The cause of action for cancellation on the ground of fraud and deceit properly invokes the equity powers of the court, and when the invalidity of the lease on legal grounds is asserted, based on the provisions of §8510 GC, coupled with the claim of equitable relief, the court has before it a proper case in which to invoke the rule of equity that the entire case be retained in order to proceed to a final determination of all matters at issue.”

Each of the motions will be overruled.

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


author: By THE COURT:

text:
    JAFFE, Plaintiff-Appellant, v. PATTERSON REALTY COMPANY and WEBSTER CLOTHES, Inc., Defendants-Appellees.
    No. 2285.
    Decided August 11, 1955.
   OPINION

By THE COURT:

Submitted on applications of Patterson Realty Co. and Webster Clothes, Inc. requesting this Court to find from the evidence and state on the record the facts upon which the errors alleged in the motion for new trial arise, and the facts which may be material in determining whether error has intervened. The applications were filed pursuant to the provisions of §2505.30 R. C.

Thé entry filed in this case contains the findings on all material issues and is a sufficient compliance with the requirements of above section.

Applications overruled.

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


author: By CASE, J.

text:
    SPENCER, Plaintiff, v. HENDERSON et, Defendants.
    Common Pleas Court, Fayette County.
    No. 21752.
    Decided March 4, 1955.

      L. R. Cousineau, Dayton, for plaintiff.
    Charles S. Hire, Washington C. H., for defendants.
   OPINION

By CASE, J.

On February 23, 1954, plaintiff filed his petition herein which reads as follows:

“Plaintiff says that he and the defendants entered into an agreement whereby he was to do certain improvements upon the property of the defendants and for such work and materials furnished by said plaintiff, defendants agreed to pay him the sum of $2765.00 and thereafter on December 8, 1953, said defendants delivered to plaintiff their promissory note in that amount conditioned on the completion of the job and as a further part of said contract it was agreed by the parties that the defendants should make application for a mortgage to be placed upon said property in sufficient amount to pay plaintiff for the working labor that was to be performed in the improvement on the property.

“Plaintiff further says that in pursuance to said contract that he began the work upon said property and did furnish certain materials and thereafter the defendants did refuse to make application for the mortgage as provided in the contract or to pay said plaintiff any monies whatsoever. Plaintiff thereupon did notify defendants that he was willing, ready and able to complete his part of the contract and defendants thereafter refused to comply with their contract, and by the refusal of said defendants, plaintiff was unable to complete the work.

“Plaintiff says that as a result of the refusal of defendants to perform the terms of their contract plaintiff was unable to do the work on which he had already expended $275.00 in labor and materials and that he was further damaged in reasonable expectation of profit in the amount of $725.00 and therefore he has been damaged in the sum of $1000.00.

“WHEREFORE, plaintiff prays judgment against the defendants in the sum of $1000.00 and for costs herein expended.”

On March 27, 1954, defendants filed their answer thereto which reads as follows:

“For answer to plaintiff’s petition defendants deny that the agreement of December 8, 1953, set forth in said petition was in existence on and after the 26th day of December, 1953, the same having been superseded by contract between the partis hereto upon said date.

“Defendants further say that under the agreement of December 26, 1953, no payment was to be made to plaintiff until completion of the work in accordance with said contract; that plaintiff was to procure financing for defendants upon completion of said work; that plaintiff has failed and refused to complete the work in accordance with said contract and has failed and refused to procure financing on the Real Estate of defendants herein, in accordance with said agreement of December 26, 1953.

“WHEREFORE, defendants pray the plaintiff’s petition be dismissed and that they recover their costs herein expended.”

On October 22, 1954, Plaintiff filed his reply to defendants’ answer, and said reply reads as follows:

“Now comes the Plaintiff herein and for his Reply to Defendants’ Answer admits that on the 26th day of December, 1953, there was a modification of the contract of December 8, 1953.

“Plaintiff further admits that payment was to be made on the completion of the work but Defendants refused to permit Plaintiff to complete the work and ordered the workmen of Plaintiff to leave the premises.

“Plaintiff replying further to the Answer of Defendants says that the modification of the contract was only pertaining to certain work that was to be done by defendants themselves and that the deduction in price upon said contract was a credit for such work that was to be done by defendants.

“Further replying to the Answer of Defendants, Plaintiff says that at no time were they to procure financing for the defendants and denies such allegations in the Answer of defendants.

“Further replying, Plaintiff says that as a result of the refusal of the defendants to permit plaintiff to complete his contract, he has been damaged in the sum of ONE THOUSAND DOLLARS ($1,000.00) and renews his prayer for ONE THOUSAND DOLLARS ($1,000.00) as judgment against defendants and for costs herein expended.”

On October 29, 1954, defendants filed their motion to strike said reply, and said motion and memorandum in support thereof read as follows;

“Now come the defendants, by their attorney, and move the Court to strike, and dismiss reply to plaintiff filed in the above entitled action for the following reasons, to-wit:

“1. That same is a departure from plaintiff’s petition and sets up a new cause of action.

“2. That said reply is not consistent with and in accordance with provisions of §2309.24 R. C., of State of Ohio.”

“MEMORANDA

“Defendants cite as authority in support of the above motion §2309.24 R. C, State of Ohio; the case of Durbin v. Fisk, 16 Oh St 533; Bowman v. Railway, 1 C. C. 65 and Kehm v. Insurance Company, 12 D. 231.”

The files and records in this cause fail to show that any memorandum contra said motion has been filed on behalf of said plaintiff.

In 31 O. Jur., at pages 797 and 798, Section 214, it is stated in part as follows:

“ ‘Departure’ is the term usually applied where the reply of the plaintiff departs from the cause of action stated in the petition.

“New matter set up in a reply, by the terms of the Code, must be consistent with the petition — must be connected with the cause of action set out in the petition. It is not the province of a reply, nor is it permissible for it, to introduce new causes of action; this must be done, if at all, by amendment to the petition. A plaintiff can recover only on the cause of action stated in his petition, and not on a cause stated in the reply. In other words, a reply which is a departure from the cause of action set forth in the petition and sets forth a new cause of action, is not permissible.

“Under the authorities, if a petition alleges performance of a contract, and the reply admits non-performance and alleges an excuse for non-performance, there is a departure.”

“A proper test of departure is whether evidence of the facts alleged by the reply is admissible under the allegations of the petition. * * *”

See. 2309.24 R. C., reads as follows:

“When an answer contains new matter, the plaintiff may reply to it, denying generally or specifically each allegation controverted by him. He also may allege, in ordinary and concise language, new matter, not inconsistent with the petition, constituting an answer to such new matter.”

Plaintiff’s petition clearly alleges a contractual agreement reached and entered into between the parties on December 8, 1953; and the cause of action therein set forth is bottomed solely upon the obligation so created and alleged to exist by reason of the contract so made and entered into. In other words, the cause of action set forth in plaintiff’s petition is based solely upon certain contractual relations and obligations as they existed on a date certain namely, December 8, 1953.

On the other hand, defendants’ answer denies “that the agreement of December 8, 1953, set forth in said petition was in existence on and after the 26th day of December, 1953, the same having been superseded by contract between the parties hereto upon said date” (said date being December 26, 1953). Plaintiff’s reply to defendants’ answer “admits that on the 26th day of December, 1953, there was a modification of the contract of December 8, 1953,” and further alleges that “Defendants refused to permit Plaintiff to complete the work and ordered the workmen of Plaintiff to leave the premises,” and “that as a result of the refusal of the defendants to permit plaintiff to complete his contract, he has been damaged in the sum of ONE THOUSAND DOLLARS * *

Therefore, it appears that plaintiff’s reply clearly admits a departure from the contract alleged in plaintiff’s petition and that plaintiff’s reply sets forth a cause of action on a new and different contract and raises issues not mentioned and set forth in plaintiff’s petition.

Upon due consideration of the authorities cited in defendants’ motion and memoranda in support thereof and the law hereinabove quoted from 31 O. Jur. as follows:

“* * * A plaintiff can recover only on the cause of action stated in his petition, and not on a cause stated in the reply. * * *” the court finds that defendants’ motion to strike and dismiss plaintiff’s reply herein is well made and should be sustained in its entirety.

The court further finds that counsel for defendants should prepare an entry accordingly with appropriate notation therein of exception on behalf of plaintiff and thereupon submit same to counsel for plaintiff and to this court for approval within ten days.