author: By SKEEL, PJ:

text:
    WOMACK, Plaintiff-Appellee, v. HOLLON et, Defendants-Appellants.
    Ohio Appeals, Fourth District, Scioto County.
    No. 577.
    Decided April 23, 1951.

      Louis B. Bannon, Portsmouth, for plaintiff-appellee.
    Thomas L. Conlan, Miller, Searl & Fitch, Portsmouth, for defendants-appellants.
    (SKEEL, PJ, HURD, J, of the 8th District: DOYLE, J, of the 9th District sitting by designation.)
   OPINION

By SKEEL, PJ:

This appeal comes to this court on questions of law from a judgment entered upon the verdict of the jury in favor of the plaintiff.

The third amended petition of the plaintiff contains four counts. The first count, in effect, alleges that plaintiff, a resident of Texas, and sister of the defendant, Hollon, offered in writing, by a letter dated May 10, 1947, to sell to the plaintiff and her partner, Jack Kendrick, “The Chillicothe Franchise” to bottle and sell a soft drink known as “Dr. Pepper” in the Counties of Ross, Pike, Vinton, Jackson and Hocking, together with bottles, cases, bottling equipment and two trucks for about $28,000.00, which offer the plaintiff accepted on or about May 13, 1947.

Plaintiff further claims to have performed all the conditions by her to be performed but that the defendant has failed to transfer the bottles, cases, bottling machinery, franchise to the territory, and trucks as provided by the agreement; that she had a firm offer to sell said facilities for $37,500.00 which offer was referred to the defendant; that defendant failed to transfer the property provided for in the agreement first above referred to, either to such prospective purchaser or to purchase such property back from plaintiff at such price. That the plaintiff received certain machinery from defendant of the reasonable value of $5000.00, but has also incurred liability and expended money within the contemplation of the parties because of defendant’s wrongful refusal to perform his obligations under the contract to sell, in the sum of $4670.48.

The second cause of action sets forth the same allegations as to the written offer of May 10, 1947, to sell, accepted by the plaintiff, the breach by the defendant of his obligations thereunder, the receipt from another of a binding offer to buy out plaintiff’s agreement with defendant for $37,500.00, and defendant’s refusal to perform and the receipt of machinery valued at $5000.00 together with the incurring of a liability to the extent of $4670.48, and then alleging further that the plaintiff had accepted defendant’s offer to sell by paying him $24,833.32, none of which has ever been repaid.

The third cause of action _ alleges that defendants are indebted to the plaintiff in the sum of $29,503.80 which had been “paid, let out and extended for the use' of said defendants at their special instance and request” which was to be thereafter repaid, but that disregarding their promises and with intent to defraud plaintiff, have refused to return said money upon demand therefor.

The fourth count alleges that when the defendant sold the franchise to bottle and sell “Dr. Pepper” a soft drink, in the counties of Ross, Pike, Vinton, Jackson and Socking, together with machinery, trucks, bottles, cases and equipment, the defendant, Hollon, entered into an Indemnity Agreement that any time, within five years, he would, upon plaintiff’s request, purchase said business, paying plaintiff the total amount of money invested and pay outstanding obligations of said business. That on the 14th day of August, 1947, plaintiff made demand upon defendant to carry out such promises, which he refused or neglected to do. That the plaintiff invested $26,833.32 in said business and incurred liability to the extent of $2670.48.

The prayer of the petition was for $37,170.48, if judgment was returned on the first and second causes of action, or for $29,503.80 if judgment be returned either on the third or fourth causes of action.

The petition also alleges that the several causes of action are pleaded in the alternate because she is uncertain as to the precise grounds upon which she is entitled to recover.

The answer of the defendant puts in issue all of the material allegations of the plaintiff’s petition and further alleges that a condition precedent to the right of plaintiff to hold a franchise to bottle and sell “Dr. Pepper” carbonated beverage, required plaintiff to secure the' approval of The Dr. Pepper Company of Dallas, Texas, and that the plaintiff, with knowledge of this condition, filed a request with said company, which request was refused by said corporation in writing on July 16, 1947, and that plaintiff has not since said time acquired such approval from The Dr. Pepper Company and that the plaintiff could not become a bottler of “Dr. Pepper” without such approval.

Defendants further allege that during the months of May, June, July and August, 1947, plaintiff purchased from and through defendants equipment, supplies and merchandise designed for use in bottling and selling non-alcoholic beverages and that plaintiff purchased for re-sale, .merchandise from the defendants and that plaintiff borrowed money from one Wm. B. Harrison upon promissory notes which obligations have been assigned to the defendant and that the plaintiff took possession of bottles and cases which plaintiff still retains, the total amount of all of such properties not being known to defendant and therefore asks for an accounting fixing plaintiff’s liability to defendant and asks judgment therefor.

The plaintiff’s reply denied all of defendant’s affirmative allegations of defendant’s answer and cross-petition. •

Upon trial the evidence established that prior .to May 10, 1947 the plaintiff negotiated with her brother, Hollon, defendant herein, who had been a bottler of “Dr. Pepper” for a long time and was then connected in “Dr. Pepper” enterprises in Portsmouth, which enterprise served Adams, Scioto, Lawrence and Gallia Counties, known as the Portsmouth Territory, and also the Chillicothe territory which included Ross, Pike, Vinton, Jackson and Hocking Counties for the purpose of acquiring a business of that character. After some other prospects had failed, the defendant, Hollon, on May 10, 1947, wrote the following letter to plaintiff at her home in Texas:

“May 10, 1947.
Mrs. Kay Womack
3112 Homan Avenue
Waco, Texas.
Dear Kay:
1. I received your card and am sorry that the plant in Mt. Vernon has been sold. However, there will be more plants and I am sure you and Jack will be able to find one. I will see what I can find out about Bloomington and also about other locations. Will let you knoyy when I hear of anything.
2. After we received your card, Sally, Bill Harrison and I were discussing your and Jack’s disappointment and during this discussion we may have arrived at a solution, at any rate I will tell you what we talked about.
3. We have two territories here, Portsmouth and Chillicothe. The Portsmouth territory consists of the following counties, Adams, Scioto, Lawrence and Gallia, with a population of about 175,000 people. The Chillicothe territory consists of the following counties, Ross, Pike, Vinton, Jackson and Hocking, with a population of about 140,000 people.
4. Of course you know that our plant is in Portsmouth and we know that we are going to have to install a plant in Chillicothe as soon as sugar rationing is over. At present we are serving a portion of the Chillicothe territory from Portsmouth and have one truck operating there.
5. The results of our discussion are that we are offering to sell to you and Jack the Chillicothe franchise, two trucks, bottles and cases, bottles for you until you can get equipment and help you buy, overhaul and install the equipment.
6. I believe in this way you can get a good territory with 140,000 population, bottles and cases, bottling equipment and two trucks for a total investment of about $28,000.00. The territory will need one more truck and we could let you have one of the new ones we have on order when it is delivered. We also have a new body for the truck.
7. Bill said that he would be glad to help Jack on working over any equipment and installing same. Of course you know that I would help any way I can. By being this close to Portsmouth you could buy supplies with our plant and save money on crowns, caustics, tires etc. Also by being this close Bill could drive up to Chillicothe and help if you have machine trouble.
8. Kay, this territory will be under the old franchise and I do believe that you could get started in this territory with less investment than in any other. However, I would not offer it to you on a straight basis of sale. In the event you and Jack did not make a go of it someone might say that I took advantage of you and influenced you to buy some territory from me and then you lost your investment. You know all business is more or less of a gamble.
9. I will offer to sell you this territory on the basis that at any time within a five year period upon 90 days notice, I will buy the business from you and Jack for the amount of your investment on terms of sale to be agreed upon with the following exceptions. During the period of this agreement, or five years, any money drawn by you, Jack or Lollie in excess of a total of $1800.00 per year will be deducted from your investment. As an example, suppose you have invested $25,000.00 in cash and suppose that at the end of five years you were losing money and wanted to sell the business back to me. During this five years you had not drawn anything from the business but Jack and Lollie had drawn $3600.00 per year or $1800.00 per year to be deducted from the investment. This amount for five years would make a total of $9000.00 to be deducted from your investment of $25,000.00, leaving a new minimum price of $16,000.00 to be paid you and Jack. Jack should agree with you that, in the event of a sale of this kind, that he would take at least 75% of this loss as he would have drawn all the money. By making this agreement I am protecting you from any substantial loss in the business. Of course I would expect you to carry enough insurance to protect you from loss by fire and damage suits on liability.
10. If the above meets with the approval of you, Jack and Lollie, I am sure something can be worked out in a very short time. Of course we would supply you with syrup until Jack can get a veteran’s allotment.
11. Just received a wire, Mother will arrive at 12:09 A. M. tonight so we will have the pleasure of having her here for Mother’s Day.
MMH/lrv Lots of Love.”

A few days later, Hollon heard of some bottling machinery that was for sale in Charleston, West Va. He called his sister (plaintiff herein) in Texas and told her about it and 'asked if she wanted to acquire the Chillicothe territory. In all of the talks about Mrs. Womack engaging in the bottling business, it was contemplated that a young man named Kendrick would join in the venture. Plaintiff tried on one or two occasions to substitute a Mr. McEver in place of Kendrick, but Hollon would not consent to such substitution. After the telephone conversation and a return call in which McEver was suggested to take the place of Kendrick, which suggestion was turned down by the defendant, Kendrick wired Hollon that the deal was on and both Womack and Kendrick came to Portsmouth arriving there on May 16, 1947. In the meantime, Hollon had purchased the bottling machinery for his sister and her partner, the option being for $9000.00. The bottle equipment was shipped to Chillicothe and Kendrick proceeded to put the proposed plant of plaintiff and Kendrick in shape to be operated. Steps were taken to start to incorporate “The Dr. Pepper Bottling Company of Chillicothe,” but in the meantime the business was carried on as a partnership in which Kendrick was designated as manager. Between May 17, and June 12, 1947, $26,292.21 was paid to the defendants for the purchase of machinery and looking toward the acquiring of the franchise for the Chillicothe territory.

In accordance with paragraph 9 of the letter of May 10, 1947, the partners entered into an Indemnity Agreement .as follows:

'“INDEMNITY AGREEMENT.
THIS AGREEMENT made and entered into this day of 1947, between Jack Woods Kendrick of Chillicothe, Ohio, first party Mrs. Kay Womack of Waco, Texas, second party, and Marshall M. Hollon of Portsmouth, Ohio, third party.
WITNESSETH.
WHEREAS, first party and second party have invested in the stock of THE DR. PEPPER BOTTLING COMPANY OF CHILLICOTHE, OHIO, and are its principal shareholders, and
WHEREAS, first party and second party have made loans to ' said corporation evidenced by negotiable promissory notes of said corporation and
WHEREAS, third party is desirous that possible losses, arising out of the operation of the business of said corporation, to first party and to second party jointly be minimized to the extent provided for herein, and
WHEREAS, third party is desirous of obtaining an option to purchase the investments of first party and of second party, jointly, in said corporation in the event that both elect to dispose of them jointly.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants herein contained and the payment of One Dollar ($1.00) by each of the parties hereto to each other party hereto, the receipt and sufficiency of which consideration is hereby acknowledged, it is agreed and covenanted’ by the parties hereto as follows:
1. In the event that first party and second party jointly desire to dispose of all of their stock holdings in said corporation, third party shall have. the option to purchase all' such stock at the highest price at which first party and second party jointly have a firm binding offer to buy all such stock. The third party’s option to purchase shall be for the period of forty-eight (48) hours after receipt by him of notice in writing of the price offered for all such stock, the name of the person making such offer, and the terms and conditions of such offer. The third party, if he chooses to exercise this option, shall notify first party and second party of his election to buy, in person, by telephone, telegraph, private messenger or mail. Third party shall have the option to make payment for all such stock under the same terms and conditions of the aforesaid-firm binding offer to purchase, or third party may elect to make payment for all such stock in cash within ten (10) days after notice of his election to purchase under this option.
2. Providing that first party and second party together own all of the outstanding stock of said corporation, at the option of first party and second party, jointly,' third party shall purchase from first party and second party, the entire stockholdings of such parties together with all outstanding obligations of said corporation to said parties as shall be evidenced by valid and enforceable negotiable promissory notes of said corporation, secured or unsecured, at a price not less than a sum arrived at as follows:
A. The total amount of money paid by first party and second party for their respective shares in said corporation plus the balance due the first party and second party respectively on loans to the corporation as shall be evidenced by valid and enforceable negotiable promissory notes of said corporation, secured or unsecured.
LESS: All sums paid by said corporation to the first party or to the second party in excess of $150.00 per month of the drawing account of first party, all interest paid to first party or second party, and all other distributions or payments of any kind whatsoever made by the corporation to first party or to second party which payments or distributions constitute income to . either of said parties reportable ' by either or both of such parties in filing respectively their Federal Income Tax Returns;
LESS: The total amount of liquidated, at the time of purchase by third party or unliquidated at such time but subsequently liquidated, actual capital losses or any other type of loss suffered by the corporation which could have been insured against but, either were not insured against at all, or were only partially insured against, by said corporation. The extent of a reduction of the purchase price based upon this consideration shall be computed as of the time of loss;
LESS: Conversion of capital assets to the extent distributed to the first or second party in excess of $150.00 of the drawing account of the first party and not resulting in a reduction of the principal amounts due by said corporation to either party or both on loans made to said corporation as aforesaid.
3. Upon the election of first party and second party to sell all of their stockholdings in said corporation to third party pursuant to the option hereinabove set forth in Paragraph 2 of this agreement, third party shall make payment for said stockholdings as follows:
One-third of the purchase price computed in accordance with Paragraph 2 above shall be pqid by third party to first and second parties within a period of sixty (60) days following the notice of election given to third party of said first and second parties’ election to sell to third party;
The balance of such purchase price shall be paid by third party within a period of one (1) year from the date of the cash payment with interest at four (4%) percent per annum upon the balance due after the cash payment;
Third party shall discharge his obligations to make payment by delivering checks, money orders or bank drafts to either party or to both parties payable to “Jack Woods Kendrick and Key Womack jointly” or make payment in any other manner agreed to by all of the parties hereto;
Third party shall have the right to withhold from payment of the total purchase price the full amount of any unliquidated claims against said corporation which could have been insured against but were not insured against at all cr were not fully insured against, until such time as the actual loss upon such unliquidated claims shall have been established; upon such establishment of actual losses, third party shall pay to first and second parties as aforesaid the difference between the amount withheld and the actual loss suffered by the corporation upon such claim or claims.”

At the very beginning, the defendant, Hollon, suggested that if Highland County could be added to the Chillicothe territory, that the dividing line between the Portsmouth territory and the Chillicothe territory should be State Route 124, which would add the south end of three counties first suggested as part of the Chillicothe territory to the Portsmouth territory. This change, although agreed to by Kendrick, was never determined or agreed to between Hollon and the plaintiff, as was equally true about what trucks were to be sold, their sale price and many other points of difference.

The plaintiff returned to Texas about June 12, 1947. She made application to be licensed as a bottler by the Dr. Pepper Company. This application was refused by letter dated July 16, 1947. The plaintiff, through her lawyer in Texas, at once wrote her brother that because she couldn’t get a license from The Dr. Pepper Co., she would place the business on the market for sale under the Indemnity Agreement. On August 15th, Hollon and plaintiff’s lawyer in Portsmouth negotiated a sale of her interest to Hollon. It was agreed that her investment was about $18,333.00 and Kendrick’s about $6500.00, although the accounting sheet showed her investment to be $13,333.32 and Kendrick’s about $11,500.00. It was proposed that Hollon pay the plaintiff $6000.00 in cash and the balance of $12,000.00 in one year. The record discloses that security was demanded for the $12,000.00 payment which was refused. There was no provision in the Indemnity Agreement for securing any unpaid balance. This seems to have ended the negotiations. Thereafter the plaintiff claimed to have a firm offer dated Aug. 28, 1947 from Leon Cohen of Chillicothe, Ohio, for said business for $37,500.00, $25,000.00 in cash with balance in sixty days. The plaintiff demanded that Hollen either transfer the business to Cohen or meet the offer which he did not do. The evidence concerning this offer was excluded by the trial court.

Later the defendant made a tender of $6600.00 claiming that was the balance due the plaintiff from cash received by the defendants after deducting all expenses and charges for machinery, equipment and merchandise, furnished for the operation, by the partnership of the Chillicothe Bottling business which it conducted from about May 26 to August 15th. This tender was refused. The plaintiff at all times was and remained in possession of the bottling machinery purchased for the plaintiff and her partner for which about $10,000.00 had been paid.

The jury returned a verdict for the plaintiff upon which judgment was entered in the sum of $26,833.32 from which this appeal is taken.

The errors claimed are as follows:

“1. The trial court erred in submitting construction of contract to the jury.
“2. The trial court erred in allowing counts 1 and 2 of plaintiff’s third amended petition to go to the jury.
“3. The trial court erred in its charge to the jury on count three and in 'failing to dismiss or direct as to that count.
“4. Count 4 should have been dismissed under the undisputed facts in evidence.
“5. The court erred in admitting evidence of assignment.
“6. Throughout the trial the trial judge consistently made errors in rulings upon the admission and rejection of evidence, which errors were prejudicial to the defendants.
“7. The trial court was in error in refusing to give defendants’ special findings to the jury and in refusing to compel plaintiff to elect as between defendants.
“8. The court’s general charge to the jury was inadequate and prejudicially erroneous.
“9. The court erred in refusing to permit the reading of all of Northchild’s depositions; and the court erred in sustaining plaintiff’s objections to portions thereof.”

The first two claims of error are concerned with the court’s treatment of the letter of May 10, 1947. The court in its charge to the jury directed them to determine whether such letter established an offer capable of acceptance.. This was done on the theory that the letter was ambiguous and it, was for the jury to determine the intention of the parties.

But an examination of the letter discloses no ambiguity. It was a simple statement that if the plaintiff was interested in buying the Chillicothe territory for bottling and distributing “Dr. Pepper” the defendant would make the territory available and help in finding bottling machinery and sell bottles, cases, trucks and whatever else was necessary in such quantities or amounts as might be needed to carry on such business, v/hich altogether would cost about $28,000.00. This was not an offer, which if accepted would result in a contract. The plaintiff’s evidence supporting her first and second causes of action having relied entirely on the letter as the complete offer of the defendant did not present facts sufficient to constitute a cause of action and the court should have granted defendant’s motion for judgment on the first and second causes of action. It was likewise error to submit the question of the sufficiency of the letter as an offer to contract to the jury. Defendants’ first two assignments of error are therefore sustained.

The third cause of action of plaintiff’s petition seems to be for money had and received. The court in explaining this cause of action said:

“In considering the third cause of action of plaintiff’s petition, if you come to that, you will consider whether or not the plaintiff has proven by a preponderance of all the evidence that defendants are indebted to her in the sum of $29,503.80 paid by the plaintiff to the defendants or extended for the use of the defendants at their special instance and request in consideration of which the defendants undertook to pay her said sum of money when they should be requested to do so.”

Neither the allegations of this cause of action nor the evidence would justify this part of the court's charge. This cause of action did not contain allegations sufficient to claim the right to the return of the money paid the defendants under the Indemnity Agreement, nor are there sufficient allegations to seek a recission of the claimed agreement to sell the territory and bottling machinery, bottles, cases, trucks and other equipment, it being admitted that the plaintiff had received property of considerable value which she retained. One cannot seek the return of what has been paid, alleging fraud as the basis of the action, without tendering back what was received in the performance of the agreement. Such a tender is a condition precedent to the right to recover what one has paid, even where all the other facts are at hand to justify a recission. Here the fact that the defendant was only the agent of the plaintiff in purchasing the bottling machinery would preclude the possibility of seeking relief upon the undisputed facts of this case under the allegations of the third cause of action. The court’s charge was clearly erroneous and prejudicial to the rights of the defendants and the court should have granted defendants’ motion for judgment on this cause of action.

The plaintiff’s fourth cause of action is founded upon paragraph two of the Indemnity Agreement (supra). As indicated above, it is the plaintiff’s claim that on August 14, 1947, she called upon defendants to buy the business from her and assume to pay the outstanding obligations of The Dr. Pepper Bottling Company of Chillicothe. Aside from the fact that such corporation was never formed, the evidence shows that the demand of August 14, 1947, was that the defendants buy the undivided interest of Mrs. Womack, she claiming to have invested $18,333.00 in the then partnership. The evidence shows that defendants offered to pay plaintiff $18,000.00, $6000.00 in cash and the balance in one year. The demand of plaintiff for security for the unpaid balance seems to have been the stumbling block that concluded the effort to settle the plaintiff’s claim.

But the evidence thus presented could not be considered as attempting to invoke the provisions of the Indemnity Agreement as a means of selling the partnership business to the defendants. The Indemnity Agreement specifically states that defendant, Hollon, could and under some circumstances was compelled to purchase the joint interests of Mrs. Kay Womack and Jack Woods Kendrick. Paragraph 2 which is here involved provides in part:

“Provided that the first and second party, together own all of the outstanding stock of said corporation at the option of the first party and second party jointly, third party shall purchase from first party and second party the entire holding of such parties together * *

The defendant under the Indemnity Agreement could not be compelled to buy less than the whole or entire business. Considering the plaintiff’s evidence on this cause of action in its most favorable light, it must be concluded that it falls far short of supporting the material allegations thereof and the court should have dismissed such cause for failure of proof.

The defendant’s fifth claim of error has to do with the admission into evidence of a writing purporting to be an assignment of the interest of Kendrick in the partnership of Womack and Kendrick to Womack. The plaintiff produced a paper purporting to be an assignment and testified that she observed the said Kendrick sign the same. The paper was then offered and received in evidence over defendants’ objection. The effect of such assignment was to make Womack the sole owner of the partnership assets of The Dr. Pepper Bottling Company of Chillicothe and she thereby became the proper party to bring this action. The record shows that Mr. Bannon, counsel of record for plaintiff, was called as a witness in the matter of the offer to settle plaintiff’s claim for $18,000.00. He acted as the notary public on the foregoing assignment but no questions were directed to him about its execution.

In the case of Garrett v. Hanskire et al, 53 Oh St 483, the court sustained an objection to the introduction of the deed, the execution of which was testified to by the grantor who was not a party. The Supreme Court held this to be error and said:

“The execution of a deed or other written instrument other >than a will may be proven by either one or more of the subscribing witnesses, the officer before whom the instrument was acknowledged or the party who signed and executed the same.”

And at page 493 the court said:

“We think that the statutes requiring deeds to be acknowledged before an officer and permitting parties to testify have so enlarged the rules as to the iñanner of proving the execution of a written instrument having subscribing witnesses, as to abrogate the old rule and permit such execution to be proven alike by the grantor, the subscribing witnesses or officer before whom the acknowledgment was taken.”

This case would be conclusive of the right of plaintiff to identify the assignment of Kendrick’s interest in the partnership to her, were it not for the rule against self-serving declarations. The plaintiff failed to establish the execution of such instrument by the best evidence. Its admission into evidence constituted prejudicial error.

The seventh assignment of error is concerned with the failure to grant defendant’s motion to elect as to which defendant the plaintiff would proceed against for the reason that there was no evidence of joint liability and second for overruling defendant’s request for special findings.

The evidence as to .who the plaintiff was dealing with, whether Mr. Hollon, individually, or The Dr. Pepper Bottling Company of Portsmouth, is in' great conflict. The letter of May 10th was signed by Hollon as was the Indemnity Agreement. The checks except for one for $1500.00 sent by plaintiff and her partner to be used in purchasing the business, were all made payable to the corporation. The application for the bottling license for the Chillicothe territory was signed by The Dr. Pepper Bottling Company Inc., by M. M. Hollon, Auditor. The letters from Dr. Pepper Company of Texas, extending the application for bottling license agreement from 1944 to 1947, being five in number, were all addressed to both

Hollon and the Bottling Company of Portsmouth. There is no allegation of joint liability in plaintiff’s third amended petition, and even if this were so, there is no evidence that would support such a claim. As to each separate cause of action the court, upon defendants’ motion should have directed the plaintiff to elect as to which defendant she desired to proceed against. Failure to do so constituted error prejudicial to the rights of the defendants.

There were seven separate requests for special findings, all of which requests were refused by the court. As to all but Nos. 6 and 7, it is the opinion of this court that the ruling of the court was correct. Requests Nos. 6 and 7 are as follows:

“No. 6. You may find either for plaintiff or you may find for the defendants. If you find for plaintiff in any amount whatsoever, state on what cause or causes of action you so find and the amount.”
“No. 7. If you find for plaintiff in any amount whatsoever state on what cause or- causes of action you so find and the amount.”

One of these two requests should have been granted. The plaintiff had pleaded in the alternative. A findin'g for the plaintiff on any one cause of action would have precluded a finding for the plaintiff on any other cause of action. . The defendant had the right to know upon which count, if any, the jury rendered a verdict, against him. Requests Nos. 6 and 7 were cumulative and therefore it was only necessary to give one. The refusal of both constituted prejudicial error. It is also the opinion of this court that many of the errors claimed under claims of error Nos. 6 and 9 are well taken, particularly the refusal to permit the reading of Northchild’s deposition. However, we do not find such errors prejudicial to the other holding contained in this opinion.

The plaintiff throughout her case seeks to establish that she was misled by her brother and induced to enter th.e bottling business upon terms which were exorbitant. It is rather difficult to understand this contention by a consideration of all the evidence. In her first and second causes of action it is alleged that she received from another a firm offer to buy the partnership business for $37,500.00,- $25,000.00 in cash and the balance in deferred payments. These two claims are most contradictory. However, from an examination of the issues here presented and the uncontradicted evidence in this case, it is clear that one or the other of these defendants is indebted to this plaintiff, or to the plaintiff and her former partner, in a substantial sum. The deposit with them or either of them was paid and received by all concerned, for the purpose of acquiring for the plaintiff and her partner the right to bottle and sell “Dr. Pepper” in the Chillicothe territory. Such money was deposited and received in the belief and assurance that a license would be obtainable from The Dr. Pepper Company of Texas. .The money that was deposited was used and to be used to buy bottling machinery, bottles and cases, trucks and other equipment for the plaintiff and her partner, as well as for the territory or franchise which the defendant, Hollon, estimated to be worth $12,500.00. He testified as follows:

“Q. Now, Mr. Hollon, how much did you charge your sister for the franchise?
A. $12,500.00.”

Some of the money deposited was actually spent for machinery and equipment. (The books show an actual, expenditure for this purpose of $11,564.91.) Such property is now in the possession of plaintiff. She is now the owner thereof or she owns it in partnership with Kendrick. Upon the failure to obtain a license to sell “Dr. Pepper” by plaintiff and her partner, and their failure to tender the business to Plollon under the Indemnity Agreement, does' not deprive them or either of them of the right to the return of so much of the money as was not expended upon their authority or was necessarily expended to pay for merchandise and equipment used and not returned after the brief conduct of the business by the partnership. Such failure to get a license from The Dr. Pepper Company of Texas, made it impossible to carry on the negotiations and there must therefore be an accounting for the purpose of fixing the liability of either of the defendants for the return of the unused or unexpended deposit money.

This court will not, thérefore, enter final judgment for the defendants. The judgment is reversed for the reasons herein stated and the cause is remanded for further proceedings according to law. Exceptions noted.

HURD, J, DOYLE, J, concur.


source: Caselaw Access Project

author: By THE COURT.

license: Public Domain

text:
    COBB, Plaintiff-Appellee, v. COBB, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4214.
    Decided January 24, 1950.
    John J. Chester, Columbus, for plaintiff-appellee.
    George E. Tyack, Irving M. Gertner, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is. an appeal on law from the judgment of the Common Pleas Court of Franklin County, Ohio, granting a decree of divorce uto the plaintiff.

The questions involved are entirely factual. If the trial court believed the testimony of the plaintiff and placed on all of the evidence introduced a construction most favorable to the plaintiff, which it had a right to do, a judgment for the plaintiff was proper.

We cannot find that the judgment of the trial court was manifestly against the weight of the evidence or contrary to law. Judgment affirmed.

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


author: By PHILLIPS, PJ.

text:
    REEBEL, Jr., Admr., Plaintiff-Appellee, v. IGNAT et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3380.
    Decided December 29, 1950.
    Charles T. Vaughn, Youngstown, for plaintiff-appellee.
    Joseph E. Julius, Youngstown, for defendants-appellants.
   OPINION

By PHILLIPS, PJ.

In this opinion Richard G. Reebel, Jr., Administrator of the Estate of Anthony J. Loftus, deceased, defendants Mike Ignat and Mary Ignat, and plaintiff’s decedent, will be called plaintiff, defendants and decedent respectively.

In 1929 decedent sold and conveyed to defendants real property situated in Campbell, Ohio. Shortly thereafter defendants executed and delivered to decedent their promissory note in payment of the unpaid balance of the purchase price of such premises, which they secured by a purchase money mortgage thereon. In 1934 defendants refinanced such property through The Home Owners Loan Corporation, to whom they executed their note and first mortgage evidencing the loan made to them by such refinancing; and from the proceeds of such loan paid decedent $2255.16 to apply on the amount they owed on the original note executed to him, leaving a balance due thereon of $550.00. Subsequently they executed and delivered to decedent their promissory note for such $550.00 as evidence of the amount then due and owing by them on their original promissory note. Defendants secured that note by a second mortgage upon the property in question, which is recorded in volume 363, page 212, Mahoning County Records of Mortgage Deeds. That indebtedness was listed by plaintiff as an asset of decedent’s estate.

Defendants paid the first mortgage on the property in full, and fourteen years after its execution and the execution of their note of $550.00 to decedent, during which time they claim demand was never made upon them to pay it, or any part thereof, defendants learned, as they contend, from the Recorder of Mahoning County of their claimed indebtedness to plaintiff in the amount of $1031.25, the balance then due on the note allegedly executed by them in the amount of $550.00.

Plaintiff sued defendants in the court of common pleas to recover the balance due on the note of $550.00, which note they alleged had been lost.

Defendants denied the execution of such note, and by cross-petition alleged that it and the mortgage securing it were forged, and prayed the court to cancel both instruments and remove the cloud created thereby from their title to such real estate.

The trial judge found for plaintiff in the amount prayed for, dismissed defendants’ cross-petition, and entered judgment accordingly.

Defendants appealed from the judgment of the trial court on questions of law, and by assigned grounds of error contend that the trial judge erred to their prejudice “in admitting evidence offered by the plaintiff to which defendants-appellants duly objected and excepted; in excluding evidence offered by defendants-appellants to which rulings they duly excepted; in overruling motion of defendants-appellants at the conclusion of plaintiff’s case for dismissal of the action for insufficient evidence, to which ruling the defendants duly excepted; in overruling motion of defendants-appellants at the conclusion of the case for dismissal of this action for insufficient evidence to which ruling the defendants duly excepted”; and “in overruling motion of defendants-appellants at the conclusion of all the evidence for judgment for the defendants based upon the evidence adduced, to which ruling the defendants duly excepted.” Further by such assignments of error defendants contend “that the finding and judgment is not sustained by sufficient evidence and is contrary to the manifest weight of the evidence, and is, therefore, contrary to law”; that the trial judge erred to their prejudice in “overruling defendants’ motion for new trial, to which ruling the defendants duly excepted”; and that there are “errors of law occurring during the trial and apparent on the face of the record.”

The attorney, whose testimony we believe was received properly in the trial court, who was a witness to the recorded mortgage securing the note for $550.00, both of which instruments were purportedly signed by defendants, testified that he prepared such instruments; that defendants executed them; that he witnessed and notaried their signatures; and identified defendants as the persons who signed such instruments, which defendants denied signing.

Defendants objected to the introduction of the records of the Recorder of Mahoning County, to which reference is made, and which, as the result of careful study, we cannot conclude constituted prejudicial nor reversible error.

Defendants waived their right to rely on their claimed error that the trial judge erred in failing to sustain their motion to direct a verdict in their favor made at the close of plaintiff’s evidence when they accepted the ruling of the trial judge thereon, elected not to stand on their exceptions thereto, proceeded with their defense, and introduced evidence on their own behalf. See Halkias, Appellee, v. Wilkoff Co., Appellant, 141 Oh St 139.

The bill of exceptions submitted to us in the case we review has been read, and the conclusion reached that the trial judge did not err to defendants’ prejudice in overruling their motions for dismissal of plaintiff’s action, nor for the entrance of judgment in their favor made at the close of all the evidence, nor for a new trial upon the ground of insufficient evidence; nor that the finding and judgment of the court entered thereon “are contrary to the manifest weight of the evidence,” nor “contrary to law” by reason thereof.

Appellants’ counsel has failed to call our attention to “errors of law occurring during the trial and apparent upon the face of the record,” as alleged as a ground of error, nor to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

Having disposed of all of defendants’ assigned grounds of error it is apparent from what we have said that the judgment of the court of common pleas must be and hereby is affirmed.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: By HOOVER, J:

text:
    DOMINO, Plaintiff, v. DOMINO et al, Defendants.
    Common Pleas Court, Cuyahoga County.
    No. 620957.
    Decided June 20, 1951.
    Howell, Roberts & Stapleton, Wilson G. Stapleton, Cleveland, for plaintiff.
    Dan T. Miller, Lakewood, for defendant, Edward F. Carran, Sr.

      Roudebush, Adrion, .Sanborn, Brown & Corlett, Allen N, Corlett, Cleveland, for defendant, Clara J. Carran, et al.
    David J. Miller, Cleveland, for defendant, Edward F. Carren, Jr.
    Harry B. Olds, Jr., Cleveland, for defendant, Society for Savings.
    Kitchen & Messner, Charles Kitchen, Cleveland, for defendants, Florence B. and William Kwait.
   OPINION

By HOOVER, J:

Does the mere commencement of a suit for divorce and alimony by a wife, where the petition neither describes nor seeks a right against any specifically designated property of the husband but prays generally for divorce and alimony, constitute lis pendens as against the husband’s real estate so as to give any alimony that might ultimately be awarded, priority in such real estate over a lien of judgment taken by the husband’s creditor while such divorce and alimony suit was pending? That is one of the important questions here.

This is a partition suit filed Dec. 14, 1950, involving a two family house on Glencairn Road in Shaker Heights. Plaintiff, Paul Domino, and defendant, Edward F. Carran, Jr., were tenants in common of the disputed realty when partition was filed. The latter’s father, Edward F. Carran, Sr., is a defendant. We shall refer to them as “Junior” and “Senior.” Senior asserts a lien on the undivided one-half interest of Junior, arising out of cognovit judgment taken by Senior against Junior on September 18, 1950, and a certificate of lien filed the next day.

Junior’s wife is a defendant too. She denies the validity of Senior’s alleged lien as against her claim for alimony for the reason that she, three days prior to Senior’s taking the cognovit judgment, had in this court instituted a divorce and alimony suit against Junior and on the same day obtained personal service on Junior, namely, on September 15, 1950. She invokes the doctrine of lis pendens against Senior’s judgment lien. Moreover, she claims that the cognovit judgment is invalid because' it was fraudulently obtained, alleging that Senior and Junior conspired by means of said judgment to defraud her from obtaining a disposition of said realty in the divorce and alimony action, and further alleging that Senior obtained said judgment from Junior on a fictitious, non-existent debt.

Senior denies fraud, and claims that even though service had been made in the divorce and alimony action three days before he took the cognovit judgment, lis pendens did not apply because the divorce and alimony petition did not describe or seek remedy against the Glencairn property or any specific property.

There are other questions in the case, but this opinion is confined to the dispute between Senior and Junior’s wife, involving questions of fraud and of lis pendens.

We consider the fraud question first. The testimony shows that Junior wanted to buy a half interest in the disputed realty and did not have the money to do it; that he received $4,000 from Senior which was used in the purchase. Senior and Junior testified that it was a loan. To substantiate the loan, there were introduced in evidence (1) a check on the Central National Bank, dated November 25, 1946, in the amount of $4,000, on which Senior was maker and Junior was payee, and the back of which contains Junior’s endorsement and the stamp of the Central National Bank dated Nov. 25, 1946; and (2) a cognovit note, dated Nov. 25, 1946, in the amount of $4,000, on which Junior was maker and Senior was payee, payable November 25, 1949, and bearing interest at two percent. Senior and Junior testified that the check and note were both delivered on the date which they both bear, November 25, 1946. This note was the one on which the cognovit judgment was taken.

In his opening statement, counsel for Junior’s wife claimed that the note was not executed on the date that the note bears, but no witness was produced to support that statement. In fact, Junior’s wife did not produce any witness— she did not even testify for herself. She attempted to make her case out by cross-examining Junior and Senior and producing exhibits that mostly had to do with the divorce case and the cognovit judgment case.

If there are any facts to support Junior’s wife, it might be these. Senior never demanded payment of the note. Junior never paid anything on the note. Junior didn’t remember whether, after the note was delivered, Senior ever said anything to Junior about Junior owing him money. After Junior separated from his wife, the first he heard about the note was when he received notice of the lien. When Junior applied for a loan at the Society for Savings in connection with the purchase of the house, he did not disclose that his father was lending him $4,000. Senior knew Junior had an interest in this property. Senior and Junior were in regular close contact because they were in business together. Senior knew that Junior was having marital difficulties in 1950 and that he had separated from his wife in June, 1950. Junior had discussed his marital difficulties with Senior. They had talked about selling this house and giving Junior’s wife half of his net proceeds. Though Senior denied knowing that Junior had been sued and served in the divorce action at the time he took the cognovit judgment, he had known that the divorce was probably coming. However, he said he did not know but what they would get together again as they had before.

The first important question is whether the $4,000 was a loan. We think it was. There is no doubt that Junior received $4,000 from Senior that went into this house and that Junior gave him a note therefor. The note bears the same date of the day the money was advanced, Nov. 25, 1946. There is testimony that the note was delivered the same day. There is none to the contrary. Witnesses testified that it was what it purpored to be — a loan. None testified to the contrary. No one testified that it was a gift. There is testimony that Junior’s wife knew about the loan and note, and that Junior and his wife thanked Senior and said they would pay him back. Junior’s wife did not take the stand to deny it. True, Junior had paid nothing on the note and Senior had not demanded payment, but Senior explained the reason — Junior was not able to pay so Senior did not demand payment. Countless parents could match this same predicament. Does a debt suddenly become a gift because a parent does not crush a struggling child? Not only parents, but countless other creditors have been lenient with debtors unable to pay. Humanitarian forbearance does not wipe out a debt.

With a valid debt to Senior established, where is the fraud? Is it fraud for a creditor to seek payment or to go to court to enforce payment simply because some one else is trying to collect from the same debtor or has already filed suit against him? That is just as absurd as saying that Junior’s wife in suing for alimony is fraudulently trying to beat Senior out of his money — money that she knew was borrowed and went into this very house before she even thought of suing for alimony. Indeed, in discussing circumstances affecting allowance of alimony, it is said in 27 C. J. S., 957, Sec. 233:

“The obligations or debts of the husband should be considered, and deductions made from his income or property therefore, so that the rights of his creditors may not be defeated.”

See also, 56 A. S. R. 853, 865 (note). Even assuming that when Senior took the cognovit judgment he knew that service had been made in the divorce and alimony suit, we find no fraud here.

We come now to lis pendens. Briefly stated, it is the rule that while an action is pending no one can acquire an interest in that action’s subject matter to the prejudice of a litigant therein, whether that other person be an assignee, purchaser, lessee, mortgagee or other lienee. Junior’s wife contends that her divorce and alimony action was pending at the time Senior took his cognovit judgment and acquired his lien on the Glencairn realty; that the Glencairn realty was the subject matter of her action; and that therefore, applying lis pendens, Senior’s lien is inferior to her right of alimony in such realty.

Two tons of authority, falling like a high-drop or skull cracker in a steel plant, break her contention into a thousand pieces, for the reason that her petition in the divorce and alimony suit neither describes nor identifies nor seeks a right specifically against the Glencairn property. There is but a general prayer for alimony.

The general rule is that in order for lis pendens to apply to a particular piece of property in any kind of an action, that property must be specifically identified or described in the pleadings. 25 O. Jur. 671, Sec. 12; 34 Am. Jur. 379, Sec. 21; 54 C. J. S., 575, Sec. 6; 2 Pomeroy’s Equity Jurisprudence (5th ed.) 743-744, Sec. 634 c; 1 Freeman on Judgments (1925) 1145, Sec. 535.

The handicap of lis pendens, like any contest, has its own rules. To win you must pick out a particular bird, then pick off that same bird. To discharge your blunderbuss at the whole flock without first naming a particular bird doesn’t count.

The same requisite of particularity holds true in divorce and alimony cases. As stated in 2 Pomeroy’s Equity Jurisprudence (5th ed.) 748, 749, Sec. 635:

“Among the most familiar instances in which the rule applies are * * * actions for divorce and alimony, where the disposition of property is involved, provided the complaint describes specific property and asks that it be set aside to the complainant; otherwise such action does not bind the property that may eventually be decreed as alimony.”

Also: 1 Freeman on Judgments (1925) 1144-1145, Sec. 534; 17 Am. Jur. 431, Sec. 529; 54 C. J. S., 578, Sec. 11; Bennett on Lis Pendens (1887) 267-268, Sec. 219; Wade on Law of Notice (1886) 196, Sec. 352; 56 A. S. R. 853, 864-865 (note); Ann. Cas. 1913 D 950-951 (note); 14 Amer. Dec. 774, 777 (note); 166 A. L. R., 406, 413-415 (anno); 66 A. L. R., 1473 (anno); 102 A. S. R., 700, 705-706 (note).

We have tried to track down every Ohio divorce and alimony case dealing with lis pendens and find that Ohio follows the general rule. In every case where lis pendens has been recognized the petition has described particular property. Cook v. Mozer, 108 Oh St 30; Tolerton v. Williard, 30 Oh St, 579; Elmwood Place Loan & Bldg Co., v. Cincinnati Concrete Co., 6 Oh Ap, 43; Delaplane v. Delaplane, 84 Oh Ap, 165; Shively v. Shively, 88 Oh Ap, 7; Stone v. Equitable Mortgage Co., 25 Oh Ap, 382, 388-389; Green v. Green, 23 C. C., 323; Fletcher v. Fletcher, 15 C. C., 271; John v. John, 12 C. C., 328, Tripplehorn v. Cambron, 15 O. L. R., 76; Parsons v. Ohio Pail Co., 6 C. C., N. S., 116; Hamilton v. Rudy, 4 N. P., N. S., 427; Fourman v. Fourman, 20 O. O., 54; 8 Univ. Cin. Law Rev. 80, 86 (note). In every case where no property was specifically described in the pleadings lis pendens was not recognized. Hamlin’s Lessee v. Bevans, 7 Ohio (pt. 1) 161; Conrad v. Everich, 50 Oh St, 476. Counsel has cited and we have found no case recognizing lis pendens wherein no property was specifically identified in the pleadings.

Junior’s wife relies on the following three statutes:

“Sec. 11300 GC. Lis pendens in general. — When the summons has been served or the publication made, the action is pending so as to charge third persons with notice of its pendency. While pending, no interest can be acquired by third persons in the subject of the action, as against the plaintiff’s title.”
“Sec. 11990 GC. Divorce for aggression of husband. When a divorce is granted because of the husband’s aggression, the court shall, if the wife so desires, restore to her any name she had before such marriage, and allow such alimony out of her husband’s property as it deems reasonable, having due regard to property which came to him by marriage and the value of his real and personal estate at the time of the divorce.”
“Sec. 11991 GC. Alimony in such cases. Such alimony may be allowed in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross or instalments, as the court deems equitable.”

The answer to this contention is that because the divorce and alimony petition did not describe the Gleneairn property that property did not become the subject of this action. True, if alimony were ultimately awarded it would be paid out of Junior’s real or personal property; but so would any paying kind of judgment in any kind of case. If we were to declare every case lis pendens wherein the judgment would be satisfied out of real or personal property, then most cases automatically would be lis pendens, and lis pendens as we have known it would be as extinct as the dodo. To be protected by lis pendens, property must be directly, not indirectly, affected. 56 A. S. R., 853, 864 (note). This point is well stated in a note in 102 A. S. R., 700, 705-706:

“Effect of Mere Commencement of Suit. — The question what effect the commencement of a suit for divorce has with respect to constituting notice that the property of the husband and wife is in litigation is naturally one involving the doctrine of lis pendens. ‘In order to bring the doctrine of lis pendens into effect, it is indispensable that the litigation should be about some specific thing which must necessarily be affected by the termination of the suit. It does not apply to an action for divorce and for alimony to be paid out of the husband’s estate because such a suit does not apply to any specified part of the husband’s estate, real or personal. The judgment which may be obtained may, from the docketing thereof, constitute a lien on certain property; but in this, as well as in all other respects, it no more constitutes a lis pendens or a claim to particular estate than a suit upon a promissory note or any other sufficient cause of action. It is not sufficient that the judgment, unless otherwise paid, will be satisfied out of the sale of certain real estate. A mere suit to recover a money judgment does not prevent alienations by the defendant pendente lite unless it is in the enforcement of a lien on, or otherwise is directed against the title to, specific property;’ Freeman on Judgments, sec. 196; Brightman v. Brightman, 1 R. I., 112; Hamlin v. Bevans, 7 Ohio, 161, 28 Am. Dec., 625; Feigley v. Feigley, 7 Md. 537, 61 Am. Dec. 375; Sapp v. Wight-man, 103 Ill. 150; Daniel v. Hodges, 87 N. C., 95; Houston v. Timmerman, 17 Or. 499, 11 Am. St. Rep. 848. 21 Pac. 1037, 4 L. R. A., 716; Almond v. Almond, 4 Rand. (Va.) 662, 15 Am. Dec., 781.

It is argued that by reason of the above statutes, a pending suit for divorce and alimony automatically apprizes the world that plaintiff is going to seek satisfaction out of any and all of defendant’s real estate, — and the world - is warned to keep hands off of all of it. There are answers to this. It does not so apprize or warn the world any more than does a simple action for money judgment, yet lis pendens is not recognized as to the latter. Moreover, if by reason of these statutes lis pendens were automatically to apply to all of Junior’s realty even though none is specifically described, then, by the same reasoning, lis pendens would apply to all of Junior’s personal property on hand when suit was commenced. Must every bank inquire from every depositor who wants to withdraw money whether he has a divorce and alimony case pending against him? Must every shoe shine boy take a quarter from Junior at his peril?

Assuming that Senior knew that this divorce and alimony suit was pending at the time he took the cognovit judgment, the result would be no different. If lis pendens applied, it would apply even if Senior didn’t know it. Lis pendens does not depend on actual notice. Cook v. Mozer, 108 Oh St, 30, 36-37. Besides, even if Senior had read the petition it would apprize him only of the fact that a divorce and alimony suit had been brought which neither described nor sought redress specifically against the Glencairn property.

Junior’s wife relies most heavily on Cook v. Mozer, 108 Oh St, 30, and its second syllabus, which reads:

“The doctrine of lis pendens has appropriate and special application in an action for divorce and alimony, especially, where the property directly involved and claimed is specifically described in the pleadings. (Tolerton v. Williard, 30 Oh St, 579, approved and followed.)”

She attaches great meaning to the word “especially;” interprets the syllabus to lay down the general proposition that lis pendens applies to divorce and alimony cases even where there is no specific description; and claims that the “especially” clause but indicates that the general proposition is merely given additional weight if the additional but dispensable fact of specific description is present. Analysis shows that the Cook case does not support such contention. Note that the syllabus says that the “doctrine” of lis pendens applies to divorce and alimony cases. That doctrine is a concept definitely known to the law and having definite and requisite component parts one of which is specific description. When the Court talks about the “doctrine” being applicable, it means the doctrine with all its components. This syllabus doesn’t purport to set forth all the essential components of the doctrine of lis pendens. It merely emphasizes one of them for a reason we shall later note. The syllabus uses the “especially” clause in the same sense as an “especially” clause is used in a situation where a prospective passenger inquires of a conducter “Can I take this bus to the Public Square?” and the conductor replies, “Yes, especially if you pay your fare.” That wouldn’t mean that it could also be done without paying fare. The “especially” merely places a little additional emphasis on a thing that’s necessary anyway.

Besides, as is so aptly stated in Williamson Heater Co. v. Radich, 128 Oh St, 124, 126:

“It is of course true that the syllabus of a decision of the Supreme Court of Ohio states the law of Ohio. However, that pronouncement must be interpreted with reference to the facts upon which it is predicated and the questions presented to and considered by the Court. It cannot be construed as being any broader than those facts warrant. When obiter creeps into a syllabus it must be so recognized and so considered.”

The proposition for which counsel contends was not presented or considered in the Cook case. There the property was specifically described. Nothing in the opinion supports counsel’s contention. The Court not only emphasizes the fact that the property was “fully described in her petition” (p. 39) but it points out the way the Tolerton case distinguishes the Tolerton case from the Hamlin’s Lessee case (p. 38):

“In that case (Hamlin’s Lessee, supra), the court observe that the petition for divorce alleged no claim to any specific tract of land.”

Finally, the opinion in the Cook case quotes 25 Cyc. 1459:

“Ordinarily a suit for divorce or to compel support, being of a personal nature, is not lis pendens; but a suit for divorce and alimony is lis pendens where the complaint describes specific property which is sought to be set apart to the complaining party or charged with the payment of the sum claimed, and where such relief may be granted' in a proper case.”

Since the Cook opinion labors so long over that distinction, it is no wonder that the specific description point was the only component of lis pendens that was given a special salute in the syllabus.

After Senior’s lien had attached, Junior’s wife filed an amended petition in her divorce and alimony action which for the first time specifically mentions the Glencairn property. The amendment locked the bam too late. Senior’s lien had already run away with the Glencairn horse. In 54 C. J. S., 575, Sec. 6, it says:

“* * * a description of property in an amended petition does not relate back to the commencement of the action so as to affect intervening rights.”

Also: 34 Am. Jur. 384, Sec. 29; 2 Pomeroy’s Equity Jurisprudence (1941) 745-746, Sec. 634 d.

The Court holds that lis pendens does not apply and that Senior’s lien is senior to the alimony claim.


author: By MILLER, PJ:

text:
    BUYDDEN, Plaintiff-Appellee, v. MITCHELL, Admrx. et, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2128.
    Decided January 4, 1951.
    Irvin Carl Delscamp, Dayton, for plaintiff-appellee.
    Harold E. Smock, Dayton, for defendants-appellants.
   OPINION

By MILLER, PJ:

This is a law appeal from the judgment of the Court of Common Pleas ordering the rescission of a land contract entered into on June 7, 1944, for the sale of certain real estate, and also ordering restitution of the premises to the plaintiff.

The evidence discloses that two prior contracts had been entered into by the parties to this action, each for a lesser purchase price, but that they were merged into the final contract of June 7, 1944, which is the basis of this action.

The pertinent parts of this contract aré:

1. Purchase price, $2400.00, $400.00 cash in hand, balance of $2000.00 payable in monthly installments of $20.00 per month on the 6th day of each and every month until fully paid, with interest at six and one-half per cent per annum.

2. All taxes and assessments becoming due and payable after the date of said contract were to be paid by the plaintiff and the same were to be repaid to him with interest at seven per cent per annum before delivery of the deed upon demand after the deed according to the contract is ready for delivery.

3. That if any payment be not paid when due the contract shall be forfeited on the part of the defendant and the plaintiff may retain all payments made as liquidated damages.

The issue raised by the pleadings was whether or not the defendant was in default in payments and also whether or not the plaintiff was a claimant within the meaning of §10509-112 GC, it being admitted that no claim was filed with the administratrix in compliance with this section of the Code. The evidence discloses that the purchaser, Luella Byrd, died on May 27, 1946, and that Catherine Mitchell, one of the defendants, is the only heir-at-law and administratrix of the estate. Catherine Mitchell was called as a defense witness. On cross-examination she identified a receipt book in which Mr. Buydden, the plaintiff, and who was also deceased at the time of trial, entered her payments. This book was offered in evidence as Plaintiff’s Exhibit No. 2. An examination of this exhibit reveals that between June 7, 1944, and April 22, 1946, the sum of $480.00 was paid on this contract. There is nothing in the record which controverts these payments. The defendant offered the following receipts for taxes and conservancy assessments, all signed by Wade J. Buydden, and the same were properly admitted in evidence:

1. Exhibit B, dated August 1, 1945, $41.41

2. Exhibit C, dated August 1, 1945, 41.41

3. Exhibit D, dated April 22, 1946, 40.99

Total, $123.81

Mr. Shell, a deputy county treasurer, testified from his records that the following taxes and assessments were paid on said property up to the time of the death of Luella Byrd:

March 17, 1945, $24.62

August 20, 1945, 24 65

February 27, 1946; 25.93

Total $75.20

From these figures it will be noted that $48.61 was paid by the purchaser in excess of the taxes and assessments paid by Mr. .Buydden. This excess must be credited to the purchase account, and which when properly credited makes total payments on the purchase price, $528.61, or more than 26 monthly installments. This would account for all payments through the one falling due on July 7, 1946. Therefore, when Luella Byrd died on May 27, 1946, she was not in default on her contract.

The next question presented is whether it was necessary for the plaintiff to file a claim with the administratrix in accordance with §10509-112 GC. This section in part provides: “All claimants shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated * *

It should be noted that this is not only an action for the rescission of a contract, but is also one for damages, the petition alleging: “Plaintiff says that according to the terms of said contract, if any payments, either principal or interest, be not made when due, said contract shall be forfeited on the part of the said Luella Byrd, and said plaintiff may retain in his hands the payment or payments then made and possess all improvements placed upon said premises, as the stipulated damages for the nonfulfillment of said contract, and said plaintiff shall be entitled to the possession of said premises * * *. Wherefore, plaintiff prays for a rescission and cancellation of said contract and that he may retain all moneys according to the terms of said contract as and for stipulated damages for the nonfulfillment * * Since the plaintiff is claiming damages we are of the opinion that the statutory requirements must be met. Prior to the effective date of §10509-112 GC, to-wit: August 22, 1941, the statute used the word “creditors” instead of “claimants.”

In the case of Pierce v. Johnson, 136 Oh St 95, it was held in syllabus 1:

“A person having an unliquidated claim for damages arising out of tort is a creditor within the meaning of §10509-112 GC, requiring presentation of claims by creditors to the executor or administrator within a specified time.”

In the case of Prudential Insurance Co. v. Joyce Building Realty Co., et al., 143 Oh St 564, syllabus 2 provides:

“The requirements of §10509-112 GC, that ‘creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment’ are mandatory and may not be waived by him.”

See also Holmberg, et al., v. Third National Bank & Trust Company, 27 Abs 58. Failure to plead such presentation and rejection is a ground for general demurrer. First Trust & Savings Bank of Canton, et al. v. Fulton, 12 Abs 17, 29 O. N. P. (N. S.) 445. The case at bar is different from those in which a lienholder is seeking to enforce a lien on property; therefore the holdings in such cases can be of no assistance in the instant case. The plaintiff in this case is not asserting a lien on the real property involved herein but is seeking the rescission of a land contract and the recovery of damages. He cannot recover his damages without meeting the requirements of the statute and if he is not entitled to the payments made on the contract as liquidated damages a rescission of the contract may not be had without a restoration of the consideration paid or a tender of it. 9 O. Jur. 595, Section 341. A party will' not be permitted to retain the benefits of a contract and at the same time repudiate it. The Ignition Co. v. Unit Coil Co., 93 Oh St 128, 112 N. E. 199.

The judgment entry recites that the court “finds no evidence in the record to show that the amount of money paid by Luella Byrd is disproportionate to the value of the use of the premises by the defendants, and that the plaintiff is entitled to retain the money so paid in accordance with the terms of said contract.” This brings the case within the exception to the general rule and therefore a return of the consideration was not necessary in order to rescind the contract. Highby v. Whittaker, 8 Ohio 198. But the Court by this entry allowed the plaintiff’s claim against the decedent’s estate, which we think may not be done without complying with §10509-112 GC.

The record discloses further that the trial court failed to rule on the defendant’s cross-petition by which specific performance of one of the contracts dated prior to the one which is the subject of this action was sought. This error could not be prejudicial for the reason that the defendants were not entitled to this relief on the contract which they pleaded. The trial court properly held that the only valid existing contract between these parties was the one entered into on June 7, 1944. None of the other assignments of error are well made.

It is our conclusion that the judgment is contrary to law and the same is ordered reversed and remanded with instructions that the petition and cross-petition be dismissed and that judgment be rendered for the defendants for their costs.

HORNBECK and WISEMAN, JJ, concur.


text:
    STATE ex MOORE, Plaintiff-Appellee, v. FERTIG et, Defendants-Appellants.
    Ohio Appeals, Seventh District, Portage County.
    No. 185.
    Decided September 11, 1950.
    Guy Showalter, Kent, for plaintiff-appellee.
    Clyde K. Rhein, Edmiston, Boldizar, Schneider & Zellmer, Cleveland, for defendants-appellants.
   OPINION

By PHILLIPS, PJ.

In this opinion plaintiff in the Juvenile Court of Portage County, will be called plaintiff, and defendants there, Edward Fertig and Lloyd Fertig, as defendants accused and surety respectively.

Defendant accused, Edward Fertig, was found guilty on November 9, 1949, in the trial court of being the putative father of plaintiff’s illegitimate child born May 13, 1947, at which trial he was present.

At the time of the arrest of defendant-accused defendant-surety Lloyd Fertig entered into a recognizance with the State of Ohio in the sum of $300.00 binding the defendant-accused to appear at the next term of the Juvenile Court of Portage County to answer the complaint lodged against him in that court and to abide the order thereof.

At a subsequent hearing held on January 24, 1950, which defendant-accused did not attend, but at which he was represented by counsel, who advised the trial court that plaintiff waived his right to be present in person and requested him to find the amount due plaintiff from defendant-accused, and which appearance he contends the trial judge excused, he was ordered to pay plaintiff’s lying in expenses and to support her child. He failed to comply with that order.

On March 4, 1950, the trial judge notified defendant, at his last known place of residence, to appear on March 13, 1950, to pay such amount found due plaintiff, supercede it with a bond, or abide such other lawful order of the trial court as might be made under threat of forfeiture of such bond. Such notice reads as follows:—

“Whereas, on the 24th day. of January, 1950, the Court made an order finding that the sum of One Thousand Thirty Five Dollars ($1035.00) is due the Plaintiff for the support of the child of which you have been found to be the father, you are therefore ordered to appear in this court on Monday, the 13th day of March, 1950, at ten o’clock, A. M., to pay the amount of said order, give bond guaranteeing its payment as provided by law, or abide by such other order as the Court may make.
“Upon failure to appear as ordered, your appearance bond may be forfeited.”

Defendant Edward Fertig made no further appearance in the trial court, although his counsel and defendant-surety did appear and objected to the forfeiture of such bond, and demanded that his cash deposit be returned on the ground that the final order in the case we review was made on January 24, 1950, and that forfeiture thereof after final order was illegal.

The trial court sent defendant-accused notice of a hearing to be held on March 13, 1950, and at that hearing defendant-accused did not appear, and has not appeared subsequently.

Thereafter the trial judge ordered the recognizance executed by defendants forfeited.

In his appeal to this court on questions of law defendant-surety contends that the trial court’s order of January 24, 1950, released him as surety on such recognizance, and that the trial court’s order of forfeiture of such recognizance was contrary to law and null and void.

The question presented by defendant-surety’s appeal is answered by the decision of the supreme court in the case of Neininger v. State, 50 Oh St 394, upon the authority of which we affirm the judgment of the trial court.

NICHOLS, J, GRIFFITH, J, concur in judgment.


author: By HILDEBRANT, PJ.:

text:
    DUGGINS, Plaintiff-Appellee, v. UNITED BROTHERHOOD OF CARPENTERS et al, Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7443.
    Decided July 2, 1951.
    Norman F. Hoover, for plaintiff-appellee.
    Harry N. Routsohn, Dayton, for defendant-appellants.
   OPINION

By HILDEBRANT, PJ.:

This appeal on questions of law is from a judgment of the Common Pleas Court, arrived at without the intervention of a jury, allowing recovery to plaintiff, a widow, of the death benefits provided for in the Constitution of the Brotherhood —defendant—following the death of her husband, a member of Local Union No. 1602, affiliated with the defendant Brotherhood, an unincorporated Association, international in scope.

In recognition of the principle declared by the courts, including this one, that the legal relationship between the membership and the Union is contractual in its nature, plaintiff claims to be entitled, ex contractu, under the death benefit provisions of the Brotherhood Constitution.

Pertinent provisions of that Constitution are:—

“Paragraph C, Section 44, Page 37:
“Each beneficial Local Union shall pay to the General Secretary $5.00 on each new member admitted, excepting apprentices, also One ($1.00) Dollar per month for each member in good standing, Sixty-five (65c) Cents of which shall be used as a fund for the general management of the United Brotherhood and payment of all death and disability donations prescribed by the Constitution and Laws of the United Brotherhood, together with all legal demands made upon the United Brotherhood. The balance of Thirty-five (35c) together with monies received from new members, to be placed in a special fund for ‘home for pension purposes.’ ”
“Paragraph A, Section 45, Page 39:
“A member who owes the Local Union two months dues shall be notified by mail at the last known address by the Financial Secretary during the third month of said delinquency that if said arrearages are not paid before the last day of the third month he will be suspended from benefits of death and disability donation, the right to a pension or admittance to the Home until he squares up entirely all of his indebtedness (including dues for the month in which he squares up his arrearages) and furthermore that he will not be entitled to any benefits during the time of such arrearages or for a three month period from the date of squaring up same. A member in arrears must square up all arrearages in full within one year or stand suspended.”

Paragraph B. Section 45, Page 39:

“A member owing a Local Union a sum equal to six months’ dues shall have his name stricken from the list of membership without a vote of the Local Union, and shall be so notified at the last known address by the Financial Secretary of the Local Union during the sixth month of his delinquency

Paragraph A, Section 48, Page 42:

“On the death of a member in good standing, if married and living with his wife, the claim shall be paid to the widow; * *

Paragraph A, Section 49, Page 43:

“A beneficial member to be entitled to donations must be not less than seventeen and not over sixty years of age at the time of admission to membership, and, when he joined, must have been in sound health and not afflicted with any disease or subject to any complaint likely to endanger his health or cause permanent disability.”

Paragraph B, Section 49, page 43:

“A beneficial member will be entitled to the donations as prescribed in the Constitution and Laws of the United Brotherhood; provided, he is over one year a contributing or financial member in good standing, and when three months in arrears he shall be debarred from all donations until three months after all arrearages are paid in full, including the current month.”

Paragraph C, Section 49, page 43:

“Donations for journeymen between the ages of twenty-one and fifty years shall be:
One years’ membership______________________$100.00
Two years’ membership______________________ 200.00
Three years’ membership_____________________ 300.00
Four years’ membership_____________________ 400.00
Five years’ membership_____________________ 600.00 ”

All of the evidence before the Court was adduced by and on behalf of the plaintiff, who is consequently bound thereby. It consists of the testimony of the plaintiff and the financial Secretary of Local 1602, together with certain exhibits, including the Constitution of the Brotherhood and the dues record of plaintiff’s decedent from November, 1945, the time of last joining the Union and the last entry of July, 1949, the month in which he died.

The financial Secretary testified in substance that on learning of the illness of plaintiff’s decedent, the local Union stepped in as they were wont to do in hardship cases and agreed to advance his dues payments necessary to prevent his being dropped from the Union, in order that he be not required to pay another initiation fee to join again, he to repay such advancements, after, on his anticipated recovery, he returned to work. He testified:

“A. I think this October 9, 1947, was our first payments.
“Q. Yes. When you did that were you paying him up so that he would be, his widow would be entitled to funeral benefits?
“A. No.
“Q. Will you explain that to the court why you say no?
“A. We called on Shevlin Duggins at the hospital and we agreed with Shevlin, inasmuch as he was on his back, to continue his dues payments to keep him a member of the Union, so it was our understanding at that time from the Doctor that was attending him that he would regain his health in a period of one year and be able to go back to work. We were making an effort to keep him a member of the Union so that when he went back to work he wouldn’t have to pay another initiation fee.
“Q. You were merely keeping him a member so that he wouldn’t be dropped from the membership roll, is that right?
“A. That is right.
“Q. You were not keeping him a member so that he would be entitled to benefits, or his widow would be entitled to funeral donations? A. No.
“Q. And you understood it that way? A. Yes.
“Q. Did he understand it that way?
“A. We left him thinking he understood it that way, at least.”

The record shows that while the local advanced the dues sufficient to prevent plaintiff’s decedent from being dropped from membership in accordance with their agreement, the payments were not made in a manner to keep him eligible at all times for death benefits. The record further shows that he was kept informed of his status with reference to the payment of dues.

The testimony shows further that in July, 1949, when it became apparent decedent couldn’t recover, the local obtained from plaintiff’s decedent the following written statement:

“Cincinnati, Ohio, July 4, 1949.

“In consideration of dues paid for me by Carpenters local union No. 1602 as a loan of money therefore paid by me in accordance with the insurance provisions of said local union and for such insurance, and which money has not been repaid by me.

“I hereby give and gave to the said local union a lien upon any benefits payable or which may become payable, to undersigned or to my beneficiaries, for the amount due upon such loan to me or paid by the organization for me upon said insurance.

“Witness my hand this 4th day of July, 1949.

SHELVEN DUGGINS /s/

Witness: signature

Mrs. M. Duggins /s/

Mrs. Ray Pyles /s/ Trustees

E. L. HUBER /s/

JOS. FLINGEMAN /s/

HENRY BUSCH, Jr. /s/”

At that time, anticipating eligibility for death benefits for the first time, the local union advanced the dues necessary to square up plaintiff’s decedent within the meaning of the Constitutional provision quoted above.

The financial secretary testified:

“Q. Now, the next payment was paid when?
“A. The next payment was paid June 23, 1949.
“Q. Now, when you paid June 23, 1949, for what months did you pay? A. Paid for April, May and June.
“Q. So you did pay for the first time the current month?
“A. That is right.
“Q. In June of 1949? A. That is right.
“Q. And then he became squared up, as you call it, is that correct? A. That is right.
“Q. For the first time in twelve months? A. Yes, sir.
“Q. Now, under the Constituton how long would his widow have to wait before she could, how long would he have to live before his widow would be entitled to a funeral donation under the Constitution? A. Three months.
“Q. Mr. Heimbrock, lets get down to real facts, when you first started to pay his dues for him in October of 1948, you said you had an understanding that all you would do was to keep him from being taken off the rolls, is that right? A. Yes, sir.
“Q. And he understood it that way and you understood it that way? A. Yes, sir.
“Q. Were you at that time expecting him to get well?
“A. That is right.
“Q. So that when it came down to June of 1949 and you saw he was not going to get well it was then for the first time that the Local took the action to square him up, is that true?
“A. Yes, I would say yes.
“Q. And it did it purposely so that his widow might be entitled to funeral benefits, is that correct? A. Yes.
“Q. Had he lived three months after you squared him up then the scheme of the Union would have been fulfilled and she would have been entitled to those benefits after he died, after three months, is that correct? A. That is correct.
“Q. So that, in other words, you were trying to do something for him and perhaps had a selfish reason for it because you had an investment in it at that time, at least, your Local did?
“A. That is right.

Since plaintiff’s evidence shows the dues were squared up on June 23, 1949, and the death occurred on July 23, 1949, only one month later, it is apparent that the three months provision of the Constitution applies and under its terms decedent’s estate was not entitled to benefits.

The legality of this provision has been upheld in U. B. of C. & J. v. Smith, 110 Colo. 47, with which this court is in accord. It would seem to be a complete answer to attack on the legality of that provision to say, that in joining the member agreed to it.

The trial court found that the local union agreed to keep plaintiff’s decedent in good standing, which finding is contrary to the testimony that they agreed to advance dues sufficient to keep him from being dropped from membership. It is further pointed out that he could be in good standing, but still be out of benefit for a three months period after having acquired good standing by a squaring up of dues. The court further found upon principles of ostensible agency that the defendant Brotherhood was estopped to deny liability for the acts of the local union, and apparently that its conduct amounted to a waiver of the provisions of the Constitution.

It is sufficient to say that the application of those principles are not available to plaintiff under either the pleadings or proof. Even though counsel’s opening statement for plaintiff be held sufficient against motion, the motion of defendant for judgment, at the close of plaintiff’s case, should have been sustained.

The judgment is, therefore, reversed and final judgment may be entered for defendant.

HIL,DEBRANT, PJ, MATTHEWS & ROSS, J.J, concur.


author: By DOYLE, J:

text:
    SEITZ, Plaintiff-Appellee, v. SEITZ, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22067.
    Decided February 26, 1951.

      S. C. Rex, Clifford Bruce, Cleveland, for plaintiff-appellee.
    B. J. McCluskey, for defendant-appellant.
    (DOYLE, J, of the 9th District sitting by designation in place of McNAMEE, J.)
   OPINION

By DOYLE, J:

On September 8, 1948, in the Court of Common Pleas of Cuyahoga County, a decree of divorce was granted Ruth R. Seitz appellee herein, against her husband, Harold Seitz, appellant. Theretofore, the parties had entered into an agreement of separation and property settlement in which specific provision was made for the custody and maintenance of the children born as the issue of the marriage. This provision appears in the following terms:

“Both parties hereby agree that an order of permanent support made by the Court upon the granting of an absolute divorce in the amount of THIRTY-FIVE DOLLARS ($35.00) per week to be paid through the Court, would be fair and equitable for the three children, Warren Rogers, Patricia Rogers and Barbara Jane. The husband shall so pay for the support, maintenance, care, custody and education of the children of the marriage, until they respectively reach the age of twenty-one years, or sooner die or marry. No provision is made herein for higher education of said children, it being the intent of the parties that the husband shall provide the same if he is able to do so.”

In the judgment entry, the following language appears:

“It is further ordered, adjudged and decreed that the custody of the minor children, aforesaid, be and is hereby awarded to the plaintiff, and the defendant pay to the plaintiff for the support of said minors the sum of thirty-five ($35.00) dollars per week until the further order of this Court.”
Subsequent to this provision in the judgment entry the following appears:
“The Court further finds that the parties to this transaction have entered into an Agreement of Separation and Property Settlement, under date of August 6, 1948 which the Court finds to be fair, just and equitable.'

It is further ordered, adjudged and decreed that this Agreement should be and hereby is incorporated in the Journal, as if fully rewritten, as part of this Decree, and the terms of this Agreement are ordered into execution as an order of this Court the same as if fully rewritten herein, and the Court reserves jurisdiction in this cause for the purpose of compelling either party to perform the Agreement or any part thereof on his or her part to be performed. Said Agreement is attached hereto and marked Exhibit A.”

In the year 1950, a motion was filed in the case by the former husband, Harold, in which he asked for a modification of the order for the support and maintenance of the children made in the divorce decree. He gave as his reasons a substantial decrease in his income;

“that he does not earn more than $60.00 per week; that he is unable to comply with the order of the court and that at the present time he is compelled to live upon the generosity of others.”

When- the motion came on for hearing before a branch of the court other than the one which entered the original judgment for divorce, property settlement and support, this court entered the following order:

“Upon consideration, the Court find that a separation agreement was entered into by and between the parties hereto on August 2nd, 1948, and that the same was approved by the Court on September 8, 1948, and incorporated in and made a part of the decree of divorce granted to the plaintiff herein.
“The Court further finds that it does not have jurisdiction to modify the order of the Court made September 8, 1948, as prayed for by defendant in his motion.
“WHEREFORE, it is ordered that the motion be and is hereby denied. It is further ordered that the defendant pay the cost herein.”

In the appeal to this court from this judgment entered on the motion there is presented the claimed error of the court in refusing to hear evidence on the theory that the court lacked capacity to order a modification under the circumstances.

At the threshold of our consideration of this appeal we encounter Tullis v. Tullis, 138 Oh St 187. The syllabus is as follows:

“A decree in a divorce action, unconditionally fixing the amount and method of payment by the husband for the support of a minor child pursuant to and in accordance with a previous contract of separation between the husband and wife providing for a complete property settlement and support to their minor child, which contract is specifically approved by the court and made a part of the decree, may not, in the absence of fraud or mistake, be subsequently modified by the court so as to lessen the amount of support for such minor child.”

From the statement of facts and events as shown in the record here under consideration, it appears that the court approved the contract and made it a part of the judgment. If the court had stopped there and had not further made provision for the childrens’ support, the rule in Tullis v. Tullis, supra, would apply and a modification could not be made lessening the amount of payments. But the court went further and ordered the payment of Thirty-Five Dollars ($35.00) per week until further order of this Court.

In construing the provisions of this judgment we must apply the usual canons of construction. If a judgment is susceptible to two possible interpretations because of the words and phrases used an interpretation will be adopted which gives effect to the judgment in its entirety rather than an interpretation which would eliminate a part.

It is presumed that the court, when approving the original journal entry here under attack, had before it the case of Tullis v. Tullis, supra, and intending to maintain the right of the court to modify the order of support for the minor children, if conditions changed, inserted specific language to accomplish this purpose even though such language in part was a duplication of the language in the incorporated contract. In other words, it was the intention of the court to approve and adopt the entire contract, excepting only the legal effect of such, under Tullis v. Tullis, supra, which was specifically rejected by a reservation retaining jurisdiction in respect of the terms of support of the minor children by the use of the language “until further order of this court.”

Under this construction of the provisions of this judgment, we are of the opinion that the court erred in refusing to try the issue presented by the motion to modify because of the reserved continuing jurisdiction. The judgment will be reversed and the cause remanded for hearing.

Judgment reversed and cause remanded. Exc. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By MILLER, J.

text:
    SPITLER, Plaintiff-Appellant, v. MONTGOMERY WARD & COMPANY, INC., Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4523.
    Decided March 9, 1951.
    Donald S. McNamara, Columbus, for appellant.
    Watson, Davis & Joseph, Carl Gaeton Nappi, of Counsel, Columbus, for appellee.
   OPINION

By MILLER, J.

This is an appeal on questions of law from the final order of the Court of Common Pleas, Franklin County, Ohio. The order sustained the motion of the defendant to strike the third amended petition from the flies for the reason that the same failed to state a cause of action. Upon the request of the plaintiff the Court treated defendant’s motion as a demurrer, sustained the same and the plaintiff not desiring to plead further judgment was rendered for the defendant. The Court did not err in treating the motion as a demurrer as we find this is permissible. Heim v. Deshler-Wallick Hotel Co., 35 Abs 395.

The next question presented is whether the third amended petition stated a good cause of action. The specifications of alleged negligence set forth in said petition are as follows:

“Plaintiff’s injuries were the direct and proximate result of the negligence of the defendant in the following particulars, to wit:
1. Defendant maintained said floor immediately adjacent to the elevator in a highly smooth and slippery condition when it knew that persons alighting thereon from the elevator must do so without an opportunity to observe or inspect the condition of said floor.
2. Defendant failed to maintain a rubber or other non-slippery mat on the floor immediately adjacent to the elevator when it knew that said area is congested with customers who obscure each other’s view of said floor upon leaving the elevator.
3. Defendant’s employee who operated said elevator at the above mentioned time failed to warn plaintiff of the slippery condition of the floor onto which she must step upon leaving the elevator.
4. Defendant so waxed or polished its floor as to allow it to become slippery in spots and not uniform in its entirety.
5. Defendant so lighted its store as to cast shadows over its counters and floor, and prevent plaintiff from observing an irregular pattern of slippery spots on the floor.”

We think that the law of this state is well established that the mere waxing of a floor is not sufficient to constitute a good cause of action. There must be the further allegation that the defendant was negligent in the materials used or in the manner of application.

In the case of Bonawitt v. Sisters of Charity, 43 Oh Ap 347, at page 348 it is said:

“An owner in treating a floor may use wax or oil or other substance in the customary manner without incurring liability to one who slips and falls thereon, unless the owner is negligent in the materials he uses or in the manner of applying them. If a recoveiy is to be had, something more must appear than that the floor has had such treatment as is ordinarily applied in the care of floors.”

In the case of J. C. Penny Co. v. Robison, 128 Oh St 626, the Court also laid down the rule that it is not negligence per se to have an oiled floor, but the plaintiff in the 4th specification of negligence alleges that the surface of the floor was waxed or polished in such a manner that it was not uniform in its entirety; that the defendant was negligent in the preparation and maintaining of the floor so “as to allow it to become slippery in spots.” In the Penny case, supra, the Court quotes with approval from the case of Dimarco v. Cupp Grocery Co., 88 Pa. Sup. Ct., 449, and from which it quotes the following at page 633:

“It is not negligence per se to have an oiled floor in a store * * * nor to apply an oil dressing to a floor if it is done in a proper manner and so as not to leave it in any different condition than is usual with oiled or polished floors.”

The specification of negligence here set forth, we think, states a condition that is not usual with waxed floors, smooth only in spots. The same duty is defined in the second syllabus of the Penny case, which says that the owner is required to exercise “ordinary care in the application of the oil to the floor, and the maintenance of the floor thereafter.”

The appellant also cites the case of Frazier v. Mace-Ryer Co., 232 Mo. Appeals, 811, 114 S. W. (2d) 150. At page 153 the Court says:

“The distinguishing feature in the case at bar is the fact that when evidence most favorable to plaintiff is considered, we are confronted with the evidence that the floor in defendant’s store was not uniform as to its surface, in that an entirely different condition existed at the place (of the accident) where plaintiff slipped and fell. In other words, at the place of the accident there was a spot, and from the evidence an inference may be drawn that the wax on the floor at this particular spot had not been rubbed down or polished, thus presenting a different or changed condition from that which existed on the other parts of the floor where, plaintiff had been walking.
“We conclude that the evidence of the above tenor and effect is sufficient to make a submissible case for the jury and therefore must conclude that the court did not commit error in refusing defendant’s peremptory instruction in the nature of a demurrer.”

We think the facts in the case of Molnar v. Scott-Burr Stores Corporation, 33 Abs 142, are quite similar to those in the case at bar, the second syllabus of which provides:

“A patron of a store may recover damages for injuries resulting from slipping and falling, caused by the negligent manner of applying oil to the floor and caring for it, where the evidence shows that the oil was splotchy in spots, on the floor in excessive amount, wet in some places, recently placed there, and the floor was allowed to continue in such unusual and dangerous condition after store officials should have known of its existence ”

It is our conclusion that for the foregoing reasons the petition stated a good cause of action and that the Court erred in sustaining the demurrer. The judgment will be reversed and cause remanded.

HORNBECK, PJ, and WISEMAN, J, concur.