author: By LOVE, J.

text:
    DORFMEIER, Gdn., Plaintiff, v. DORFMEIER, Admr. et, Defendants.
    Probate Court, Montgomery County.
    No. 125539.
    Decided June 19, 1954.

      William D. Dorfmeier, Dayton, Guardian of the Estate of Frances Hope Meeks, Incompetent, plaintiff and also defendant.
    Virgil Z. Dorfmeier, Dayton, Administrator of the Estate of Carl B. Meeks, Deceased, defendant.
    Pickrel, Schaeffer & Ebeling, Dayton, for defendant Citizens Federal Savings and Loan Association of Dayton.
    M. K. Margolis, Dayton, Guardian ad Litem for Marion Meeks, Mark Meeks, and Carolyn Meeks, defendants herein, and Trustee for the suit for Frances Hope Meeks, defendant.
    Jesse L. Jennings, Dayton, for Marion Meeks.
   OPINION

By LOVE, J.

This cause came on to be heard upon the petition of William D. Dorfmeier, the duly appointed guardian of the estate of Frances Hope Meeks, surviving spouse of Carl B. Meeks, for authority to elect to purchase the mansion house of the decedent at the appraised value on behalf of his ward. The administrator of the estate of Carl B. Meeks, the minor children of the decedent, and all others having an interest in said property are properly before the Court by service of summons or by pleadings duly filed. The answers filed by the guardian ad litem for the minor children of the decedent and by the trustee for the suit of the incompetent generally deny all allegations of the petition.

The evidence discloses that the principal asset of the estate of Carl B. Meeks, deceased, is an undivided one-half (%) interest in the real estate which the surviving spouse through her guardian seeks to elect to purchase and that the other undivided one-half (y2) interest is owned by the surviving spouse. The evidence further discloses that she has considerable credit against her deceased husband’s estate by virtue of her statutory exemption and years allowance and that she is also individually liable for the full amount of a mortgage on said property which she executed when she, was competent. The evidence does not disclose any additional liability to be incurred on behalf of the incompetent. The evidence further discloses that the tentative arrangements made by the guardian of Frances Hope Meeks following the purchase of the property will provide a home for this incompetent during trial visits from the Dayton State Hospital, will provide a home for the minor children of the incompetent, and will be a source of income for the support of the incompetent and her family. The evidence further discloses that the property sought to be purchased is a frame double house, one side of which was occupied by the decedent and his family during his lifetime. The other side is divided into two apartments, one on the first floor and one on the second floor which have been and still are rental units. The basement extends under both sides of the house and there is no garage on the premises. That side of the house which consists of the rental units provides a return of slightly in excess of five percent (5%) on the capital investment based upon present value.

Before considering the right of an incompetent spouse to purchase a mansion house at the appraised value, it must first be determined whether there is a mansion house to be purchased and the extent thereof. This fact is in issue because of the general denials which have been filed by the guardian ad litem and the trustee for the suit.

The statutory provision granting a surviving spouse the right to take land at the appraised value was enacted effective January 1, 1932. Sec. 10509-89 GC; 114 v. 320 (420). At that time the right to take included “the home and its contents.” Effective September 2, 1935 the sub-section was changed to substantially its present form as follows:

“(a) The mansion house, including the parcel of land on which the same is situated and lots or farm land adjacent thereto and used in conjunction therewith as the home of the decedent, and the household goods contained therein, at the appraised value as fixed by the appraisers.” (Emphasis supplied.)

The comment by the Probate and Trust Law Committee of the Ohio State Bar Association with reference to this change is as follows:

“We also suggest that the words, ‘the home and its contents’ which have received almost as many different constructions as there are probate courts, be changed to, ‘the mansion house, including the parcel of land on which the same is situated and lots or farm land adjacent thereto and used in conjunction therewith as the home of the decedent, and the household goods contained therein,’ in the hope that this language will avoid much of the present difficulty.”

See Addams & Hosford Ohio Probate Practice, 3d Edition, Volume 1, page 917. There is no reported Ohio decision on this subject directly in point with the problem under consideration. In Re Estate of Burgoon, 80 Oh Ap 465, 36 O. O. 200 (1946), the Court was deciding whether the right of the surviving spouse to elect to purchase the mansion house enabled him to purchase two other buildings rented for business purposes which were located on the same tract of land but physically and completely separated from the structure used as the home. The Court of Appeals of the Third District held in the negative, and on page 470 the following definition of “mansion house” appears:

“Consequently it clearly appears that the parcel of land on which the mansion house is situated must be used in conjunction with the mansion house as the home of the decedent in order to come within the purview of the subdivision, and the subdivision as a whole constitutes an adoption by the Legislature of the common-law definition of mansion house as including the curtilage only.”
“Curtilage” is defined in Bouvier’s Law Dictionary, Baldwin’s Edition, 1934, at page 261 as follows:
“The enclosed space immediately surrounding a dwelling-house, contained within the same enclosure. * * *
“It usually includes the yard, garden, or field which is near to and used in connection with the dwelling.”

In the case of Scobey v. Fair, 70 Oh Ap 51, 24 O. O. 371 (1942), the court was deciding whether the surviving spouse was entitled to the rent from other apartments under the same roof as the mansion house and was construing §10509-79 GC (§2117.24 R. C.). On page 53 the court commented on the “mansion house” as used in the aforesaid Section as follows:

“But what should be the rule under the statute, if the mansion house happens to be the upstairs rooms of a store building, or a single fiat in a two, four or ten-suite apartment? If the family occupies one apartment and rents other apartments under the same roof surely it was not intended or contemplated that a surviving spouse might be entitled to the year’s rental of all other apartments which were let for profit. The purpose of the statute was to preserve the home for the surviving spouse for the period of one year; and that which is used, possessed and occupied by the family as a home is the mansion house.”

Several definitions of “mansion house” appear in legal and judicial dictionaries. That from Bouvier’s Law Dictionary, supra, page 752, has been quoted by Ohio courts with approval and is as follows:

“The term ‘mansion-house,’ in its common sense, not only includes the dwelling-house, but also all the buildings within the curtilage, as the dairy-house, the cow-house, the stable, etc.; though not under the same roof nor contiguous.”

Reference to other definitions from such dictionaries shows that the term “mansion house” is quite often used interchangeably with “dwelling house” and “homestead.” Law Dictionary with Pronunciations, 2d Edition, Ballantine; Cyclopedic Law Dictionary, 3d Edition; Black’s Law Dictionary, Deluxe Edition; Stroud’s Judicial Dictionary, Third Edition. These definitions grew out of interpretations necessary in burglary prosecutions, homestead exemption matters, and, as in the case of Scobey v. Fair, supra, widow’s quarantine.

Under the facts as presented in the case of In Re Estate of Burgoon, supra, the premises sought to be purchased were physically separate from those buildings which were not occupied as the mansion house Under the facts of Scobey v. Fair, supra, the Court was deciding the right to the income from the premises and there was no necessity to consider the inability to separate the mansion house from the rental units. Similarly, those definitions which have evolved from burglary prosecutions and exemptions of homesteads from execution are not concerned with any physical separation of the premises, nor was there any necessity for deciding whether the entire premises were in fact a mansion house where such premises constituted a singlé nonseparable urban unit which was used as the mansion house as well as for income-producing purposes. It would not seem productive, therefore, to make a more detailed analysis of the definitions of “mansion house” nor of the decisions from which many were taken, for apparently there are no general principles to be drawn therefrom which could render any material assistance to the Court in the case at bar.

Sec. 10509-89 GC (§2113.38 R. C.) grants to a surviving spouse a valuable property right. What was the legislative intent behind such a law? In determining legislative intent it is necessary to ascertain the defect in the preexisting law, the remedies provided by the statute under construction, and the reasons for the remedies. A very ancient but still accurate rule is stated in Sutherland’s Statutory Construction, 3d Edition, Vol. 3, Section 5505, page 41, note one:

“Probably the best approach is found in Heydon’s Case, 3 Co. Rep. 7a, 76 Eng. Rep. 637 (Ex. 1584), where it was stated, ‘and it was resolved by them, that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:—
“ ‘1st. What was the common law before the making of the Act.
“ ‘2nd. What was the mischief and defect for which the common law did not provide.
“ ‘3rd. What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth.
“ ‘And, 4th. The true reason of the remedy.’ ”

It would appear quite logical that the “mischief or defect” sought to be corrected was the inability of a surviving spouse to retain the home for himself or herself and the other members of the family, as a matter of right. This defect was corrected by the present statute as well as its predecessors. Recognizing the rights of general creditors and other interested persons, the spouse must pay the appraised value of the property in order to complete the purchase. It would also appear that the present §10509-89 GC (§2113.38 R. C.), was enacted by the General Assembly to further extend the long-standing public policy of protecting widows, widowers, and minor children.

In the construction of laws relating to humane policies a liberal construction should be given by the courts. See 37 O. Jur., Statutes, Section 415, page 737:

“Statutes enacted in Ohio for the protection of human life, or statutes of equitable character and beneficient tendency, or statutes granting a valuable right and grounded upon principles of a humane public policy, have been given a liberal construction by the courts.”

Sec. 10214 GC (§1.11 R. C.) provides in part that the provisions of the Probate Code along with certain other provisions “shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.” Judge Wanamaker in State, ex rel. Maher v. Baker, 88 Oh St 165, 172 (1913), defined a liberal construction:

“The strict construction, however, must not squeeze out the life blood of the statute, nor should the liberal construction result in the exercise of the legislative power of amendment under the mask of so-called interpretation. In short, it is not the proper province of the court to add to or substract from the intended meaning and scope of the statute. In any case, the interpretation should be reasonable, consistent with the language used, and conducive to the purposes to be accomplished by the enactment of the statute.”

Under the facts herein presented the decedent and his incompetent spouse and their minor children lived in and occupied one side of the house as a home. It is not within the province of judicial statutory construction to deny the right of the spouse to purchase unless the premises were not the mansion house in fact or, once having been the mansion house, have lost that characteristic i The Court does not believe it would be justified in disqualifying a spouse to purchase solely because rent was received from a portion of the premises or for any other reason not specifically set out in the statute. It would appear, however, that the uses to be made of premises other than as a home and the extent of such uses for rental or commercial purposes could reach a point that the character of the home would be so changed that there would no longer be a mansion house.

It is the opinion of the Court that where a husband and wife occupy a non-divisible urban house as a home, the mansion-house character of the premises attaches and is not destroyed either in whole or in part by the fact that the husband and wife use part of the house for rental or other commercial purposes unless the commercial use becomes so pretentious that the occupancy as a home is merely incidental to the commercial use of the premises. In applying this rule to the case at bar, certain facts are clear: the entire premises are a “house,” a part of which the decedent and his wife occupied as a “home”; the premises are not physically divisible into commercial and mansion-house units; the amount of revenue received from the rental units is not pretentious; and finally, the commercial usage of the premises was not so extensive as to make the usage as a home only incidental to commercial usage and blot out the mansion-house character of the premises.

The next question for decision is: May a guardian for an incompetent surviving spouse, by a petition duly filed in the probate court, obtain approval and authority for the purchase of the mansion house of a decedent under the provisions of §10509-89 GC (§2113.38 R. C.)?

The Court has been favored with a persuasive brief filed by counsel for plaintiff which makes a distinction between the powers of a guardian in the exercise of economic as contrasted with personal rights of a ward in which he contends that the guardian has the authority, with approval of the Court, to make decisions for the ward that involve both economic and personal factors wherein morals or religion are not an issue and where the action to be taken is in the best interests of the ward.

An examination of the provisions of the General Code discloses several Sections that set out the powers and duties of guardians. Sec. 10507-15 (§2111.14 R. C.) provides;

“In addition to such other duties as are provided by law, every guardian appointed to take care of the estate of a ward shall have the following duties:
“1. Within three months after his appointment to make and file a full inventory, verified by oath, of the real and personal estate of his ward, with its value and the value of the yearly rent of the real estate. Failing so to do for thirty days after he has been notified of the expiration of the time by the probate judge, the judge shall remove him and appoint a successor;
“2. To manage the estate for the best interest of his ward;
“3. To pay all just debts due from such ward out of the estate in his hands, and collect all debts due to the ward; in case of doubtful debts, to compound them, to appear for and defend, or cause to be defended, all suits against his ward;
“4. To settle and adjust, when necessary or desirable, the assets which he may receive, in kind, from an executor or administrator, as may be most advantageous to his ward. Before such settlement and adjustment shall be valid and binding, it must be approved by the probate court, and such approval entered on its journal; with like approval, to hold the assets as received from the executor or administrator, or what may be received in the settlement and adjustment of such assets;
“5. To obey all orders and judgments of the proper courts touching the guardianship;
“6. When for the best interests of the ward, to bring suit in his behalf.”

Sec. 10501-53 GC (§2101.24 R. C.) provides:

“Except as hereinafter provided, the probate court shall have jurisdiction: * * *
“4. To appoint and remove guardians and testamentary trustees, direct and control their conduct, and settle their accounts; * * *
“The probate court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

The balance of’ the provisions of the Probate Code sets out other specific duties, none of which is dispositive of the questions here raised. These Sections above quoted, of necessity, are broad and general in their scope and do not specifically either include or exclude the right of an incompetent widow to make an election to purchase the mansion house at the appraised value; nor have any cases decided by courts of this State been discovered which resolve the issues herein raised. This matter is apparently one of first impression in this State. Mention should be made of the recent case of Zuber, Gdn. v. Zuber, 93 Oh Ap 195, 50 O. O. 496 (1953), wherein the Court of .Appeals of Cuyahoga County defined the duties and powers of a guardian as follows:

“2. Such guardian so appointed is not the ‘alter ego’ of the incompetent with power to carry on all the ward’s personal or business ventures in the name of the ward and in the same manner as such ward would be able to do except for the adjudication of incompetence.

“3. The office of guardian is to manage and conserve the ward’s estate and to provide for the care and protection of his person.”

Further clarification of the rights and duties of guardians has been gained by a re-examination of the origin of guardians at common law and the delineation of the powers and duties of such fiduciaries and the powers and duties of the courts having jurisdiction over them. While not all authorities or text writers agree as to the source of a guardian’s powers, it is now generally accepted that the common-law rights of guardians stem from the king as parens patriae and as the general protector of all infants, idiots, and lunatics. Woerner’s Guardianship, Pages 2 and 3. This authority was in turn delegated by the king to the chancellor under his sign manual as keeper of the king’s conscience, and pursuant thereto ,the superintendence of the trust became and “descended to the American courts of chancery as an inherent and traditional power, always ready to be exercised when the powers of the probate courts are inadequate” 25 Am. Juris., Judicial Appointment of Guardians, Section 23, page 21.

The persons so appointed by courts of chancery were the mere “bailiffs or servants of the court.” Woerner’s Guardianship, page 450. They had no title to the property of the lunatic, nor were they the representatives of the lunatic so as to sue or be sued as such. This concept of the guardian as the arm or instrument of the king or court does much to clarify the principles upon which the common-law decisions in this field were based. While under more recent enactments and decisions this doctrine has been substantially modified and guardians as such are clothed with certain statutory powers to be exercised under the supervision of the court, the guardian originally occupied, and in many respects still occupies, a position as agent of the court as contrasted with one who can exercise his own unlimited discretion. As has been pointed out, the office carries no delegation of authority so as to enable the gugrdian to act as the “alter ego” of the ward. Zuber, Gdn. v. Zuber, supra.

There is little doubt that the common-law aspects of the law in guardianships are still of importance today. See 89 Am. St. Reports 261:

“a. Present Importance of Subject.—The relation of guardian and ward has, both in England and in America, been made the subject of a very considerable amount of legislation. The general nature of the relation and of the powers and duties of the parties thereto, nevertheless, remains to a great extent the same as at common law. Much of the legislation referred to is merely declaratory of the law as it previously existed, and even where the effect' of the statute law is to change the common law of the subject, the latter has by no means lost its importance. For while, in so far as the statute governs any particular portion of the subject, it excludes the general law' * * * as to other matters it is well settled the common law still controls: * * * The practical importance, therefore, at the present day, of determining the powers with which a guardian was clothed by the common law, is both obvious and real.”

It should be emphasized that there was and is a distinction throughout our jurisprudence between the powers of guardians and the powers of the courts exercising chancery jurisdiction over such guardians.

This legal principle was recognized in the leading case of Van Steenwyck v. Washburn, 59 Wisc. 483, 17 N. W. 289, 48 Am. Reports 532 (1884), in an action for a will construction. The bill filed by the executors raised the question of whether the insane widow was to take under or against the will. The court held that the election could not be made by the widow since she was not competent, that it could not be made by her guardian, but that the court could and would make such election for her. In so holding the court used the following language at page 502 et seq.:

“The next inquiry is, How and by whom is the election to be made? The counsel for the executors say the right and duty of making an election are personal to the widow, and must be made by her alone.” * * *
“We are not aware of any direct authority which decides that the guardian of an insane widow may elect for her, in the absence of a statute giving him that right.
“It therefore follows, from these views, that the election made by the guardian of Mrs. Washburn was without authority of law, and can have no validity whatever.”
“Independently of the statute, probably no one would question the power of a court of equity, where the application was in time, to elect for an insane widow, or other person incapable from want of capacity of personally making it. Such a power has often been exercised by courts of chancery in England and in this country, and the jurisdiction is well established. Does, then, the statute which requires the widow to elect, limit or abrogate this jurisdiction, so that a court can no longer exert it on behalf of an insane widow? We perceive no sufficient grounds for saying that it does.”

On March 25, 1931 the Supreme Court of Ohio passed upon a similar question in the case of Ambrose v. Rugg, Admx., 123 Oh St 433, 175 N. E. 691, 74 A. L. R. 449 (1931). In the decision by Judge Matthias the Van Steenwyck v. Washburn case, supra, was examined and cited with approval. The case arose in the common pleas court and raised the question of whether or not an election to take under or against the will could be made for an incompetent widow where the election had not been filed within time. It was contended on behalf of the widow that the common pleas court, sitting as a court of equity, had the jurisdiction, power, and duty to make this election in the best interests of the widow. At page 436 Judge Matthias stated as follows:

“An election by her was impossible. In that event, should not a court of equity determine whether the provision made for her by law was more valuable and better than the provision made by will, and, if it so find, direct that election be entered in her behalf to receive the benefit of the provision which is more favorable to her interest? The mere statement of the proposition suggests that the rights and interests of a mentally incompetent person should be safeguarded, and that opportunity should be accorded to secure for her or her estate the same legal benefits and advantages as would accrue to a widow of sound mind. What is hers under the law should not be lost by reason of her mental condition. Surely the hand of equity may intervene for her protection.
“The doctrine of election of rights grew up independently of statute, * * *”

The Court held that, in the absence of some clear and convincing act evidencing an election by the widow, an election could be made for her. While this decision may have been affected by subsequent changes in the statutes being considered, the doctrine as set out would appear to be as valid now as then. Since the right of the widow to purchase the mansion house at the appraised value is analogous to the right of a widow’s election to take or not to take under the will of her deceased spouse, the foregoing cases are persuasive.

The decision in Ambrose v. Rugg, supra, was rendered prior to the enactment of §§10501-53 and 10501-55 GC, now §2101.24 R. C., which gave to the probate courts “plenary power at law and in equity fully to dispose of any matter properly before the court, * * *” Therefore, the principles which originally guided courts of chancery in the exercise of their equitable jurisdiction over guardians and wards are now equally applicable to probate courts of this State.

Largely based on the foregoing case, the following note appears in 74 A. L. R. 453:

“Upon the theory that the right of election is a personal right, there is no dissent from the proposition that, in the absence of express statutory authority, the guardian or commission of an incompetent cannot make an election, but such election must be made by or under the direction of a court having chancery jurisdiction over the person or estate of the incompetent.”

After an examination of the foregoing cases and text writers hereinbefore cited, it must be concluded that this Court, sitting as a court of equity, has the inherent power, independent of statute, to intervene and permit the guardian to exercise for this incompetent a right which would be otherwise lost to her because of her mental condition, there being no statute which gives the incompetent surviving spouse an adequate remedy at law.

Sec. 10507-15 GC (§2111.14 R. C.) provides that the guardian has a duty “To manage the estate for the best interest of his ward.” The Court is of the opinion that the action here contemplated is clearly in the best interests of this ward and necessary to conserve her estate which consists of an undivided one-half (%) interest and a vested interest in the other undivided one-half (%) received as a result of the death of her husband. The statutes of Ohio, if not an extension of the powers and duties of guardians as they existed prior to the enactment thereof, are certainly a recognition of the common-law duties of guardians of incompetents.

The Court is therefore of the opinion and holds that it would be in the best interests of the incompetent to permit and direct the guardian to make the election to purchase the mansion house at the appraised value. The Court is further of the opinion that the election can be made at this time under the pleadings as filed in this cause.

Counsel may prepare an appropriate entry.

Costs to the estate of Carl B. Meeks, deceased.


source: Caselaw Access Project

author: By HORNBECK, PJ:

license: Public Domain

text:
    LEFFERSON et, Plaintiffs-Appellants, v. BURNETT et Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2214.
    Decided December 5, 1952.

      Robert J. Stoecklein, Dayton, for plaintiffs-appellants.
    Harshman & Young, Dayton, Joseph H. Colvin, of Counsel, for defendants-appellees.
   OPINION

By HORNBECK, PJ:

This is an appeal from a judgment of the Common Pleas Court in favor of the defendants on their motion for a judgment notwithstanding the verdict.

The action was for damages claimed to have resulted to the plaintiffs by reason of fraudulent representations made to them by defendants and upon which they relied.

Plaintiffs had purchased a house and lot of defendants for which they paid $19,500.00. During the negotiations leading up to the sale of the property plaintiffs allege that the defendants represented:

“that the house had an ample and lasting water supply sufficient and fit for all household needs and sufficient and fit for watering the lawn and flowers around the house, and that said water supply was provided from a well existing upon said premises. Defendants further represented that said well was in good condition and approximately 105 feet deep;”

There are other representations pleaded which because of the state of the record may not now be considered. It appeared that the defendants had owned the premises .about 10 years prior to the sale. The deed was made on September 12, 1950. Defendants continued to live in the premises until September 27 when they vacated them and on October 4, 1950 plaintiffs moved in. It is further alleged that the representations of defendants concerning the sufficiency and continuity of the water supply and the depth and condition of the well were false and that defendants knew or should have known that said representations were untrue.

At the conclusion of plaintiffs’ case, motion of defendants for a directed verdict was overruled as was such motion at the end of the whole case. The Court submitted the case to the jury which returned a verdict for plaintiffs in the sum of $964.80.

There is but one question presented on this appeal, namely; did the Court err in sustaining the motion for judgment notwithstanding the verdict? The entry on the motion .does not state upon what ground it was sustained. However, an examination of the motion seems to indicate that there were three grounds:

(1) Failure of the evidence to prove that the representations made to the plaintiffs by the defendants, or either of them, were false.

(2) If the representations were shown to be false the plaintiffs failed to prove that they were known by the defendants to be false or were made by the defendants without actual basis or in reckless disregard for the truth.

(31 That proof of insufficiency of water supply was predicated on an inference upon an inference.

We state some well known principles controlling the action of the trial judge upon a motion to direct a verdict or on a motion for judgment notwithstanding the verdict. Upon either of such motions the trial jüdge must not only assume the truth of the evidence in behalf of the party against whom the motion is directed, Wells v. Van Nord, 10 Oh St 101, but must construe evidence most strongly in favor of that party, Gibbs v. Girard, 88 Oh St 34, or construe it in the most favorable light to said party of which the evidence is susceptible. New York Central Railroad Co. v. Krofta, 125 Oh St 126. It is only when no evidence has been introduced by the plaintiff tending to support the issue, that is, when on the evidence and no reasonable inference therefrom favor the instructed verdict, that the case can be taken from the jury. Jones v. Fields, 5 Abs 563. In general, if different inferences can be drawn from the evidence questions of fact are presented for the jury. If recovery can be based only upon one inference predicated upon another inference the inference thus raised is not sufficient to carry the case to the jury. Sobolovitz v. Lubric Oil Co., 107 Oh St 204; St. Marys Gas Co. v. Brodbeck, 114 Oh St 423; Thomas v. Black, 118 Oh St 412.

The foregoing principles are particularly applicable to test the correctness of the action of the trial judge in sustaining the motion upon the theory that the inadequacy of water supply was proven only by an inference upon an inference.

The defendants moved from the premises on the 27th of September. The plaintiffs moved in on the afternoon of the 4th of October which was the 8th day thereafter. That evening they used a little water although no baths were taken. The next morning, the 5th, Mrs. Lefferson discovered that no water was available in the house, called her husband and the next day R. J. Studer, a master plumber, was called. Mr. Studer was widely experienced and made a determined effort first to get the pump which was in the well to produce a flow of water. In this he was unsuccessful. He then placed a new pump into the well and was able to draw water therefrom only in small quantities and for a limited time. He made a complete and exhaustive investigation of the 'well, the casing, and the pump and gave the jury the benefit of his conclusions. He withdrew the pump, and the bottom part of the pump including the jet was offered as an exhibit. Without stating in detail the testimony of Mr. Studer, he concluded that the bottom of the old pump was so encrusted with foreign matter as to prevent any substantial amount of water being brought into it by suction and that the same condition clogged the jet of the new pump which he put into the well. He stated that the cause of the foreign matter in the water was electrolysis resulting from the grounding of a wire on the casing in the well. He concluded that the result which he observed was not brought about suddenly but gradually and probably over a long period of time, that the condition which he described would have been apparent for a long time prior to the date of his examination of the well. He explained that the ability to get water on the afternoon of the 4th of October probably resulted from a full tank of water which may have gradually been pumped into the tank. He also stated that the electrolysis which he found in the well could not have occurred within a week or 10 days. He also stated that from the condition of the pipe as he found it the operation of the pump in the well would have been cut down 75% of its capacity for a period of one or two months prior to his examination.

In our judgment the testimony of the plaintiffs and of the plumber was conclusive to the effect that the water supply on the 5th of October was wholly inadequate. The substantial question is whether the knowledge of defendants of this condition is proven without an inference on an inference. We are of opinion that it required but one inference to support the conclusion that, if the testimony of the plumber is true, the defendants must have known of the inadequacy of the supply of water from the well as it existed at the time of their representations to the plaintiffs. The plumber testified as an expert and if the jury accepted his conclusion this was a fact established by direct and substantive testimony. It should not be necessary to labor the point that if the well was in the condition testified to by the plumber its effect on the supply of water must have been known to the defendants and would have precluded its use to the extent to which defendants testified it had been used.

Of course, it is understood that upon the question raised on this appeal we are giving no consideration whatever to the defensive testimony which the jury had the right to resolve against the evidence of the plaintiffs. Plaintiffs testimony was of sufficient probative effect to require the submission of the question of the knowledge of the defendants of the inadequacy of the water supply to the jury.

It is urged that there is insufficient proof of the representations as averred and if made of their untruth.

Without discussing the testimony at further length we are satisfied to say that upon the testimony of the plaintiffs, the representations substantially as averred were shown to have been made.

The case of Drew v. Construction Co., 140 Oh St 1, is applicable to the facts here. In the cited case the false representations upon which damages were sought referred to a water supply, that it was ample for all household purposes; that it was inexhaustible, good for all time, plenty of water. It is contended by appellees that these representations were broader and different than those in the instant case. However, they differ only in degree and in particulars are like unto those asserted here.

Judge Matthias speaking of the representations said:

“The evidence proffered in this respect indicated positive statements of a fact with knowledge of the situation on the part of the plaintiff, and not the expression of a mere opinion or belief.”

So, here, it is obvious that if the statements alleged were made by the defendants they were positive statements of fact, the truth or untruth of which was known to them. The Court held in the cited case that evidence in support of the statements as pleaded was competent and should have been admitted.

Upon a careful reading not only of the testimony of the plaintiffs but the whole record, we are convinced that the trial court erred in sustaining the motion for judgment veredicto non obstante.

Upon the whole case there developed a substantial and marked conflict upon material issues but this situation is not involved on this appeal.

The judgment will be reversed and cause remanded.

WISEMAN and MILLER, JJ, concur.


author: By PHILLIPS, J.

text:
    LUTMAN, In the Matter of: Habeas Corpus, Petitioner.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3619.
    Decided October 16, 1953.
    Morris Mendelssohn, Youngstown, for petitioner-appellant.
    William A. Ambrose, Pros. Atty., Harold H. Hull, Asst. Pros. Atty., Youngstown, for appellee.
   OPINION

By PHILLIPS, J.

Petitioner was taken into custody by the Sheriff of Mahoning County on a warrant of extradition issued by the Governor of the State of Ohio, which was based on a warrant of extra-diction issued by the Governor of the State of New Jersey for the petitioner, in which state he was charged with the crime of desertion and non-support.

At the conclusion of an action in habeas corpus filed in the court of common pleas the trial judge said, and entered judgment accordingly:—

“The Court: Let the record show the applicant present in court with his counsel and the court now proceeds to dismiss the application for habeas corpus for the reason that the documents are in order from the State of New Jersey and from the Governor of Ohio and the charge is a charge under the law of New Jersey and the law of Ohio is not in conflict therewith and this court cannot inquire into the guilt or innocence of the applicant under the New Jersey law. The petition is dismissed and the petitioner is ordered delivered to the officer from New Jersey for transportation to the State of New Jersey. Exceptions to the petitioner.”

Petitioner appealed to this court from the judgment of the trial court on questions of law and fact. Since the appeal is not filed properly on questions of law and fact the words “and fact” were stricken from the notice of appeal and the appeal was retained, argued, submitted, and will be determined as one on questions of law.

The evidence discloses that petitioner, a cantor in a Jewish Synagogue at Woonsocket, Rhode Island, left that city, took his wife and child with him to the home of her parents in New Jersey, and thereafter on April 30, 1953, left for Youngstown, Ohio, leaving his wife and child at her parents home.

“Scope of Inquiry. The courts have no larger powers than the governor in extradition proceedings. They cannot try the question of whether or not the accused is guilty but can only pass on the questions as to whether or not a crime is charged under the laws of the demanding state, whether or not the identity of the accused is established, whether or not the accused is a fugitive from justice, and that the demand for extradition is made in good faith. The judge can and must hear testimony and determine whether the person in charge of the sheriff is or is not the person described in the warrant of the governor.

“The court starts with the presumption that the governor, in issuing the extradition warrant, found the necessary conditions; unless the evidence is sufficient to overcome this presumption the governor’s action will not be disturbed, and the court finds there is not sufficient evidence to the contrary in the record to overcome this presumption.” 18 O. Jur., Section 30, Page 957.

The finding, statement and judgment of the trial court are supported by the law and the evidence.

Finding no error prejudicial to defendant in any of the respects urged the judgment of the court of common pleas is affirmed.

GRIFFITH, PJ, NICHOLS, J, concur.


author: By McBRIDE, J.:

text:
    THATCHER et, Plaintiff, v. HOGAN et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 105535.
    Decided April 1, 1954.

      Couglin, Ogier & Lloyd, for plaintiff.
    Herbert S. Beane, City Atty., M. J. Gilbert, Dayton, for defendants.
   OPINION

By McBRIDE, J.:

The plaintiff claims that he has been eligible to participate in the fireman’s pension fund since March 24, 1930, as a member of the Division of Fire and seeks an order requiring the Pension Board to make statutory deductions from his salary. The requested separate finding of facts is incorporated in the decision, a copy of which is ordered filed.

Separate Finding of Facts

The Charter of the City of Dayton, adopted in 1913, provides for five separate departments, one of which is the Department of Public Safety. Section 52 of the Charter provides that “The Commission may by ordinance discontinue any department and determine, combine, and distribute the functions and duties of departments and subdivisions tnereof.”

Section 72 provides that “The Fire Chief shall have exclusive control of the stationing and transfer of all firemen and other officers and employees constituting the fire force under such rules and regulations as the Director of Public Safety may prescribe. The fire force shall be composed of a chief and such other officers, firemen and employees as the City Manager may determine.”

Section 48 (b) of the Charter provides:

“The powers and duties of the city manager shall be: . . . (b) To appoint and, except as .herein provided, remove all directors of the departments and all • subordinate officers and employees in the departments in both the classified and unclassified service; all appointments to be upon merit and fitness alone, and to be subject to the civil service provisions of this charter; . . . .”

Prior to December 31, 1930, fire alarms, telegraph and traffic signals were handled by a separate bureau under the supervision of the Division of Fire. On December 31, 1930, the Commission of the City of Dayton adopted Ordinance No. 14394 providing for three divisions in the Department of Public Safety, Police, Fire and Telegraphs and Signals. The ordinance provided that “The Division of Telegraphs and Signals shall have the control and management of the Fire Alarm Telegraph and Police Signal Systems and the Traffic Signal Light and Systems and all electrical appliance and things necessary and appurtenant to said telegraph or signal systems, or signal lights or systems, or any of them,” Section 4 of the ordinance provided: “In organizing the Division of Telegraphs and Signals, and maintaining said division thereafter, the Director of Public Safety shall have the power to detail members from either the Division of Police or the Division of Fire, who are technically qualified to assume positions in the Division of Telegraphs and Signals, and any such transfer shall not prejudice the rights of a member of either the Division of Police or the Division of Fire for pension, and time during which a member so transferred from one of these divisions actually serves in the Division of Telegraphs and Signals, for pension purposes, shall be included the same as though such member had not been transferred and had remained in the Division of Police or the Division of Fire, as the case may be.” Section 5 of the ordinance abolished the Bureau of Alarms and Telegraph as a part of the Department of Public Safety and provided that “Such of the employees therein as may be useful in the Division of Telegraphs and Signals shall be eligible, subject to the rules and regulations applicable to employees in the classified civil service, for appointment to positions in said Division of Telegraphs and Signals.”

Some employees, who were originally qualified and appointed as firemen and policemen, were assigned, along with the plaintiff, to the former Bureau of Alarms and Telegraph and to the new Division of Telegraphs and Signals so established by the City of Dayton on December 31, 1930.

The court also finds that the rules and regulations of the Civil Service Board of the City of Dayton, Ohio, at all times herein in issue provided that applicants for the position of fireman in the Division of Fire shall in addition to the general requirements be “not less than twenty-one nor more than thirty-three years of age at the time of their examination” and shall meet other physical requirements specifically set forth in Rule 7 of the Civil Service Board.

The court finds that on February 26th, 1932, the trustees of the Firemen’s Pension Board adopted a rule identified as Section 8 which provided that “any member of the Division of Fire who at the time of his appointment to the fire service has passed the physical examination required of the fireman shall be entitled to the rights and privileges of the Firemen’s Pension Fund.” This rule has been in effect in the same or similar language since that date.

Plaintiff, Raymond W. Thatcher, at the age of forty-one, was employed by the City Manager of the City of Dayton by letter as a “lineman cable splicer” on March 24th, 1930, in the Bureau of Alarms and Telegraphs, which on December 31, 1930, by ordinance, became the Division of Telegraph and Signals of the Department of Public Safety of the City of Dayton, Ohio. The plaintiff did not take a physical examination required of firemen, did not perform services or ever become a member of any fire company of the city and was never engaged in fighting fires. Plaintiff was engaged and did perform services for the installation and maintenance of fire, telegraph and traffic light systems of the city and was “On call” and did serve during disasters and second and third alarm fires for the purpose of protecting the fire, telegraph and traffic systems of the city. His emergency services included such hazards as were assumed in the performance of his regular duties and did not include those of a fireman.

The court further finds that no deductions for pension purposes were ever made from the plaintiff’s salary. In 1943, the City Manager advised him in writing that he was hired as a “civilian cable-splicer” and that since he did not take a physical examination required of firemen as required by the Pension Board, he was advised that his status was never that of a fireman.

Finding of Law

The plaintiff relies upon an unrepórted decision of Judge Randall in the case of State ex rel. James G. Harkins v. Robert McClure, et al, No. 168,819 in the Common Pleas Court of Franklin County dated April 2, 1946, which was affirmed without opinion by the Court of Appeals on November 5, 1946. The pleadings, agreed statement of facts and the decision in that case were furnished the court. The Board of Trustees of the Firemen’s Relief and Pension Fund adopted a motion “directing the Secretary not to deduct the 2% applicable to the Pension Fund from any civilian employee employed on and after July 1, 1943.” Plaintiff was subsequently appointed as Superintendent of Fire and Police Communications and by ordinance, the City Council of Columbus, Ohio, fixed his salary and the court found “that in said ordinance the Superintendent of Fire and Police Communications was classified as a member of the Division of Fire . . . .”

Accepting the conclusion that the plaintiff was a fireman, whether from the agreed statement or other evidence we nave been unable to determine, the court proceeds to resolve the principal issue: ■

“It is the contention of the respondents, the Board of Trustees, that the above §4612-4 GC grants them powers to determine who shall be and who shall not be permitted to participate in the fund, and that the resolution enacted by said Board heretofore referred to excluding so-called “civilian employees” was a proper exercise of the discretion so vested in them under §4612-4 GC. With this suggestion we cannot agree.
“Since the Legislature in §4377 GC specifically granted to City Council the prerogative of determining what positions shall be deemed to be included in the Fire Department, the right of the Pension Board to make such a classification is clearly excluded.
“While in recent years Administrative Boards have been clothed in wide authority in many respects, that authority to be valid must not amount to a delegation of legislative powers.
“In our opinion the grant of powers to Pension Boards be the provisions of §4612-4 GC relating to determination of qualifications of members refers to qualifications other than the classification attempted by the resolution of the Pension Board. No doubt the Board under this section has power to make rules of general application as to physical requirements for admission to the benefits of the fund, and might enact rules, the violation of which would disqualify a member of the Fire Department from the right to participate in said fund, but in our opinion this grant of powers does not confer upon the Board the right to make an arbitrary classification of positions included in the Fire Department or Division of Fire by city ordinance whereby it excludes one from the benefits and grants to others the benefits of the fund.
“It will be noted that in the resolution passed by the Board of Trustees the words ‘Civilian employee’ are not defined, and no standards are set up by which it may be determined who are and who are not civilian employees of the Fire Department.
“The evidence in this case discloses that the relator assumed the same hazards as other members of the Fire Department by attending fires and taking measures to protect fire fighters by removing high-tension wires and other dangers during a fire. It was further shown that like other members of the Columbus Division of Fire the relator was subject to twenty-four hour call on duty under the Chief of-the Fire Department and Safety Director.
“In conclusion, we find that the respondents constituting the Board of Trustees of the Firemen’s Relief and Pension Fund, are without authority to determine who shall and who shall not be considered a member of- the Division of Fire, since the power to so determine has been delegated by the Legislature of the State of Ohio to the City' Council. We further find that the act of the Board of Trustees in excluding relator from his right to participate in the fund and to have deductions made from his salary as contributions to said fund was wholly without warrant of law, and an abuse of discretion, which requires us to sustain the contention of relator.
“A writ of mandamus may issue as prayed for in the petition requiring the respondents to accept deductions or payments by relator as a contributing member of the Firemen’s Relief and Pension Funds as of the date of his appointment as a member of the Columbus Division of Fire, May 7, 1944.”

This decision of the Common Pleas Court of Franklin County turned upon the lack of authority of the Pension Board to deny a pension to a fireman and not upon 'the issue in the instant case which is whether or not the plaintiff is a fireman.

It is also necessary to keep in mind that there have been many significant changes in the laws of this state since 1930 when the plaintiff, Raymond W. Thatcher, was appointed.

It is apparent from the finding of facts that the plaintiff was not eligible, qualified or appointed as a fireman His letter of appointment by the City Manager as a “lineman-cable splicer” at the age of forty-one in 1930 without a physical examination required of firemen by the rule of the Civil Service Board of the City of Dayton eliminates as a matter of fact consideration as a fireman, a position defined and classified in civil service. Sec. 143.1 et seq, R. C. (§486-1 et seq, GC). At the time of his appointment, §4378 GC required that “the police and fire departments in every city shall be maintained under the civil service system . . . .”

However, it is urged that plaintiff was required to perform and assume the same hazards as firemen. The evidence establishes that he was obligated to respond to second and third alarm fires and that he did so many times. His duties on such occasions were primarily to protect fire and traffic light wires and cables. This included both removal or repair as the circumstances required. It is argued that the performance of these duties, which included some of the hazards assumed by firemen, justifies the court in finding that plaintiff was a fireman as a matter of law in spite of the handicaps of both fact and law which disqualify the plaintiff from holding such position in classified civil service.

The status of fireman is determined by official acts of a municipal corporation and by the law of this state relating thereto and not by any judicial interpretation of the word “fireman.” It is the opinion of the court that in the absence of abuse of authority the duties and hazards of a city employee’s assignments are immaterial in determining whether the relationship of fireman exists.

Plaintiff cites decisions of courts of other states in which pensions were granted to other than firemen where the employee was a member of the fire department. The Los Angeles cases were based upon provisions of a charter which defined the eligible group as “all persons duly and regularly appointed in the Fire Department under civil service rules and regulations whose duty it is to prevent or extinguish fires . . . under whatever designation they may be described in any salary or departmental ordinance.” In allowing a pension for the secretary of the Board of Fire Commissioners, the court said:

“In ascertaining the intent and meaning of the Charter provisions a liberal construction should be indulged to carry out the beneficial purposes aimed at. The spirit of these provisions is to protect all members of the fire department in the benefits which the fund insures, and they should not be narrowed by any strict or technical construction, but should be interpreted on broad principles . .

Giving effect to the Los Angeles Charter, the court said that “it is clear that the civil service codes and departmental classifications on which the defendants rely are immaterial,” however, the facts indicate that the employee was “duly and regularly appointed under civil service.” McKeag v. Board, 132 P. 2d 198. The third syllabus in that case reads:

“The Los Angeles Charter provisions governing fire department pensions may be construed consistently with ordinance defining member of fire department, so as to create a class of ‘members of the fire department’ to whom pensions are payable, as distinguished from other employees of the department, who are not entitled to pensions of the department, who are not entitled to pensions because not appointed under civil service rules or not under duty to prevent or extinguish fires.”

See the companion case, Haas v. City of Los Angeles, 132 P 2d 201, which involved a painter-repairman who at times actually performed fire service and was similarly in a civil service status and also Knoll v. City of Los Angeles, 132 P 2d 203 in which a clerical worker who prepared statistical data on fires and who served under civil service rules was held to be eligible as within the class, defined by the Charter, whose duty it was “to prevent or extinguish fires.”

In all of the cases cited, those eligible for pensions included, by charter or statutory definition, a class of employees broader than the Ohio provisions which restrict benefits to firemen. Board v. State ex rel Hyatt, 46 N. E. 2d 595; Fickett et al v. Boston Firemen’s Relief Fund (1915), 107 N. E. 956.

It is argued that plaintiff’s assignment to the Bureau of Alarms and Telegraph, formerly under the Division of Fire, is sufficient to make him a fireman. The statutes of Ohio and the Dayton Charter both have recognized for years that the fire department is composed of both firemen and other employees. The distinction between firemen and other skilled and unskilled employees is set forth in the civil service laws and regulations and they must be considered in determining the eligibility of any employee within the fire department to receive a pension under laws which provide for firemen and not for all members of the fire department. An Ohio statute effective August 25, 1947, provides:

“Members of the fire department means any person who receives an original appointment as a fireman from a duly established civil service eligible list, or who is appointed to a position in a fire department pursuant to §737.22 R. C. (§4389 GC), or who, on September 25, 1947, was contributing two percent of his annual salary to a fireman’s relief and pension fund established pursuant to §741.02 R. C. (§4600 GC).” Sec. 741.01 (§4615-1 GC.)

Broadly stated, plaintiff’s contention is that all employees in the fire department, employed prior to August 25, 1947, are eligible for a pension provided for firemen. To accept this position would do violence not only to the express words of the pension statutes but also to the civil service laws and rules adopted years ago establishing qualifications for the position of fireman. Employees of the Division of Fire, or a bureau of such division, are not ipso facto firemen so as to become eligible for a fireman’s pension, unless first qualified and appointed as firemen as required by law.

In 1930, when plaintiff was employed, firemen were not required to contribute to their pension fund. Sec. 4609 GC. The statute, since amended, merely authorized the receipt of purely voluntary contributions thereby enabling each person to increase his pension. It is significant that, the fund for the pension was established by a tax levy which the legislative authority was authorized to make each year “. . . .to provide funds for the payment of all pensions granted to firemen under existing laws.” The beneficiaries of this tax were described as “firemen.” Sec. 4605 GC, subsequently amended.

Any doubt as to plaintiff’s status was removed in the instant case by the adoption of City Ordinance No. 14394 on December 31, 1930, which separated the bureau in which plaintiff initially served from that of the Division of Fire and created a distinctly new and separate division in which plaintiff was thereafter employed. Authority to make such change appears not only in Section 52 of the Charter but also in §737.08 R. C., formerly §4377 GC.

Ordinance No. 14394 is a determination by the municipal authority that employees of the Division of Telegraphs and Signals are not members of the fire department. The express reference in Section 4 of the ordinance protecting pension rights of police and firemen detailed or transferred to the new division excludes any intention on the part of the legislative authority of the city to include members of the new division in the fire department or to grant any pension or other rights to which only firemen are otherwise eligible. This ordinance did not create any new rights. It preserved and protected such individual pension rights as existed prior to the establishment of the new division.

Where the legislative authority established by ordinance a Division of Telegraphs and Signals separate and. apart from the fire and police divisions, an employee of the new division does not become eligible for a fireman’s pension unless such employee is otherwise qualified and appointed as a fireman as required by law.

Prior to the time when the General Assembly adopted the comprehensive firemen’s pension program, now in effect, the trustees of the pension fund had the very broad power, under former §4612 GC, of adopting “all rules and regulations for the distribution of the fund, including the qualifications of those to whom any portion of it shall be paid . . . .” The enactment by the Board of Trustees of the Firemen’s Relief and Pension Fund of the City of Dayton on February 26, 1932, when the plaintiff was not on pension, of the rule limiting the right to share in such fund to such employee, “who, at the time of his appointment, has passed the physical examination required of a fireman,” was within the authority imposea upon the Pension Board, no claim being asserted and no evidence shown that such rule was unreasonable or discriminatory. The adoption of such rule is approved in the Harkins case upon which the plaintiff has placed so much reliance. However, the authority of the Board of Trustees of the Firemen’s Relief and Pension Fund to adopt reasonable rules for participation in the benefits of the fund did not include authority to determine who shall and who shall not be classified as a fireman.

It is argued that if plaintiff was a fireman in 1929, the adoption in 1932 of a rule requiring a fireman’s physical examination deprived this plaintiff of a vested right to a pension. Plaintiff relies upon the “vested rights” statute enacted in 1937. Sec. 4828-1 GC. This section, now §741.15 R. C. provides that the granting of a pension shall operate to vest a right in such person, to receive such pension at the rate so fixed at the time of granting such pension. It is clear that in the instant case no pension was ever granted and that the date of employment as well as the date of the adoption of the rule were prior to the enactment of this statute. Further, the right to a pension vests upon the granting of the pension by the board and not at the inception of the employment. State ex rel. v. Hanrahan, et al, 161 Oh St 43, 52 O. O. 481.

* * * *

In conclusion, the court finds no basis either in the statutes or under the rules of the Pension Board for recognition of plaintiff’s claim. The plaintiff, Raymond W. Thatcher, was never qualified or appointed as a fireman and the Trustees of the Firemen’s Relief and Pension Fund properly refused to accept deductions from his salary or other contributions to said fund on his behalf. If it is plaintiff’s position that employees other than firemen deserve pension status because of occupational hazards, the relief sought relates to policy and may be granted only by legislative action. The court must determine individual rights under the law and may not create or extend privileges which require an act of the legislature for their existence as well as for their payment.

The writ of mandamus is denied.


author: By SKELL, J.:

text:
    UNGER, Plaintiff-Appellee, v. CHAVES, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22582.
    Decided February 16, 1953.

      R. A. Robbins, Louis Lanza, Cleveland, for plaintiff-appellee.
    Critchfield & Wolkoff, Cleveland, for defendant-appellant.
   OPINION

By SKELL, J.:

This appeal comes to this court on questions of law and fact. The action is one in specific performance. The plaintiff entered into a contract on September 12, 1950, to purchase a house and lot from the defendant located at 3874 Antisdale Avenue, South Euclid. Ohio. The purchase price was to be $18,200.00, the plaintiff giving the defendant a check on his commercial account with the Cleveland Trust Company for $500.00 as a down payment.

On September 27, 1950, the defendant, through her counsel, prepared signed and delivered by mail to the plaintiff escrow instructions setting forth in detail the obligations of each of the parties to the transaction. These instructions provided that the escrow was to be carried out by the Land Title Guarantee & Trust Company, the transaction to be consummated December 15, 1950.

On November 8, 1950, the defendant, through her counsel, wrote the following letter to the plaintiff:

“ Nov. 8, 1950
Under date of September 27, 1950, escrow instructions in connection with premises located at 3874 E. Antisdale So. Euclid, Ohio, belonging to Mrs. Esther Chaves were mailed to your attorney, Mr. Bertram Robbins. In view of the fact that we never received properly executed copy of said instructions, and since no escrow has been established, in behalf of my client, Esther Chaves, I am rejecting your offer for purchase of said premises and returning your cheek dated Sept. 14, 1950, in the sum of $500.00.
Very truly yours
Maurice Wolkoff”

The plaintiff’s petition alleges the contract of September 10, 1950, and the terms upon which the property was to be purchased, were contained in the escrow agreement of September 27, 1950. He further alleges that he has performed all of his obligations imposed upon him by the purchase agreement and was then and still is ready, willing and able to perform all and singular the terms and conditions on his part to be performed; that the defendant has refused and still refuses to execute a warranty deed to him or in any other way carry out her obligation under the said agreement to sell plaintiff the house and lot located at 3874 Antisdale Avenue. The petition then prays for specific performance and asks $10,000 damages for delay in defendant’s performance of the contract.

The answer of the defendant admits ownership of the property at 3874 Antisdale Avenue; alleges that there was no binding contract between the parties to convey said property to the plaintiff; denies that plaintiff performed the conditions on his part to be performed; denies that he had the necessary money to complete the agreement.

By way of affirmative defense the defendant alleges that the written agreement was too vague and indefinite to be performed and that the plaintiff was guilty of laches in failing to commence escrow proceedings.

The defendant further denies that plaintiff has been damaged. The evidence of the plaintiff is that he signed the contract and escrow instructions; that he had $7,800.00 in the Cleveland Trust Company and owned a residence, free and clear of all incumbrances known as 1148 East 114 Street and $1,000.00 in cash, which he used for business purposes; that the defendant asked him not to put the money up until November 15th, because she did not want to pay him rent and that he signed the escrow agreement in his lawyer’s office and further that he procured the approval of a real estate loan for $12,000.00 on the two properties from The Central National Bank of Cleveland whereby he was at all times prepared to pay the full purchase price of the property.

The defendant’s evidence was to the effect that she did not' receive a copy of the escrow instructions signed by the plaintiff and that between September 28, when she signed the escrow instructions and November 8th, when she authorized her lawyer to send the letter withdrawing the property from the market she made any requests for the plaintiff to put up the required money with the escrow agent which request was not complied with; that the reason she withdrew from the transaction was the failure of plaintiff to deposit his money with the escrow agent and that at no time did she request the plaintiff to withhold the deposit until November 15th. There is no evidence in the record that the defendant ever signed a deed for the property or deposited such deed with the escrow agent.

It is the first contention of the defendant that the memorandum is not sufficient to make out an enforcible contract. Such contention might be successfully argued as to the writing signed on September 10, 1950, which provided as follows:

“ 9/10/50
Received of Louis Unger, deposit of $500.00 toward purchase of residence at 3874 E. Antisdale. Sale price $18,200.00, which includes all fixtures, carpeting, drapes. House is to be clear of any liens or mortgages. Possession by buyer by Dec 15, 1950. It is understood there are no realty agents involved in this deal.
Esther Chaves.”

But, after the signing of this writing the defendant, through her lawyer, prepared escrow instructions which covered every detail of the agreement. The defendant signed these instructions and mailed it to the plaintiff’s lawyer. These two papers when put side by side, show without the aid of parol evidence that they refer to the same transaction, and together make a complete and sufficient memorandum of all the terms of the sales agreement between the parties.

In the case of Thayer v. Luce & Fuller, 22 Oh St 62, the Supreme Court had for consideration almost the identical question here present. Thayer’s agreement to purchase did not contain the description of the property involved. On the day such memo was signed, the defendant signed a deed which contained the description, the plaintiff inspecting such deed and approving it although it was not delivered. The first two paragraphs of the syllabus provide:

“(1) Several writings, though made at different times, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in writing and signed by the party to be charged therewith.
“(2) If some only of such writings be so signed, reference must be specifically made therein to those which áre not so signed; but if each of the writings be so signed, such reference to the others need not be made, if, by inspection and comparison, it appear that they severally relate to or form part of the same transaction.”

We must conclude therefore that a complete memorandum signed by the party to be charged was made sufficient to take the case out of the statute of frauds and was in all respects an enforcible agreement.

It is further claimed by the defendant that the plaintiff was not only in default in making the necessary money deposit with the escrow’s agent and in failing to return the signed escrow agreement promptly, but also failed to tender performance and keep such tender good upon description of the property involved. On the day such memo was signed, the defendant signed a deed which contained the description, the plaintiff inspecting such deed and approving it although it was not delivered. The first two paragraphs of the syllabus provide:

“(1) Several writings, though made at different times, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in writing and signed by the party to be charged therewith.
“(2) If some only of such writings be so signed, reference must be specifically made therein to those which are not so signed; but if each of the writings be so signed, such reference to the others need not be made, if, by inspection and comparison, it appear that they severally relate to or form part of the same transaction.”

We must conclude therefore that a complete memorandum signed by the party to be charged was made "sufficient to take the case out of the statute of frauds and was in all respects an enforcible agreement.

It is further claimed by the defendant that the plaintiff was not only in default in making the necessary money deposit with the escrow’s agent and in failing to' return the signed escrow agreement promptly, but also failed to tender performance and keep such tender good upon the filing of this action. It is also claimed that t’he petition does not allege a tender of performance and therefore does not state a cause of action.

The contract was entered into September 10, 1951. The escrow agreement was mailed to the plaintiff by defendant September 28th. It provided the transaction was to be consummated on December 15th. No time was fixed for the plaintiff to make the necessary deposit of money with the escrow agent, or, for the defendant to deposit his deed. All that would or could be required under the contract was that both parties act within time so that the transaction could be closed on the day fixed. There is not one word of evidence that at the time the defendant withdrew her property from the market and notified the plaintiff she would not proceed with the sale, there was then insufficient time to carry out the terms of the contract. We can conceive of no reason why the purchaser should be required, without some provision of the contract declaring it, to lose the use of his money far in advance of the time necessary to fully carry out his obligations under the agreement. Certainly the defendant felt no obligation on her part, up and until she mailed her withdrawal from and repudiation of the transaction, to prepare and file her deed with the escrow agent.

Where one party to a contract commits an anticipatory breach, there is thereafter no obligation on the other party when seeking specific performance, to tender performance of his obligations as a condition precedent to his right to maintain such action. The refusal of the seller to be further bound under his contract makes a tender of performance unnecessary and all that is required of the party not in fault is to show that he is ready, willing and able to perform or that he will be when time for performance arrives. The Supreme Court in Brock v. Hidy, 13 Oh St 306 said in the second paragraph of the syllabus:

“(2) As a general rule, a vendee of land, seeking to enforce a specific performance by the vendor, must tender or bring into court the amount due on the purchase money; but where the vendor denies the obligation of the contract, attempts to rescind it, resumes possession of the land, and is in the receipt of the" rents and profits thereof, he may maintain his action without such tender.”

See also, Whitacre v. Hoffman, 50 Abs 493, 79 N. E. (2d) 373; Pomeroy’s Specific Performance, 3rd Ed., page 721, paragraph 326, page 763, paragraph 361.

In George Wiedemann Brewing Company v. Maxwell, 78 Oh St 54, the Supreme Court said in the second paragraph of the syllabus:

“(2) The general rule is that a party seeking specific performance of a contract must show performance on his part, yet there are clearly defined exceptions and one of them is that when the other party repudiates and makes it certain that he does not intend under any circumstances to comply, a showing of readiness and ability on the part of the complaining party to then and there perform his part communicated to the other party and accompanied with a demand of compliance by such other party, is sufficient compliance without an actual formal tender.”

We hold, therefore, that the allegations of the petition stated a cause of action and that there is substantial uncontradicted evidence in support of each material allegation.

This leaves but one question, was the plaintiff ready, willing and able to carry out his obligations to purchase defendant’s property under the terms of the sales agreement? Upon this point the evidence is sufficient to show that he was financially able to meet his obligations and will be able to pay the purchase price when ordered to do so under a decree of specific performance.

We find, however, that there is no evidence supporting plaintiff’s claim for damages in defendant’s failure to consummate the transaction on the day provided by the agreement. The plaintiff’s prayer for damages is therefore dismissed.

A decree may therefore be entered for specific performance as prayed for. Exceptions noted. Order see journal.

HURD, PJ, KOVACHY, J, concur.


author: By HORNBECK, PJ: By THE COURT:

text:
    STOVER, Plaintiff-Appellee, v. YOAKUM, Defendant-Appellant.
    Ohio Appeals, Second District, Clark County.
    No. 496.
    Decided November 1, 1952.
    William E. Bailey, Thomas E. Hackett, Springfield, for plaintiff-appellee.
    Herman O. Abele, Fred M. Cole, James P. Wilson, Springfield, for defendant-appellant.
   OPINION

By HORNBECK, PJ:

This is an appeal from a judgment of the Common Pleas Court for the sum of $19,388.66 in favor of plaintiff and against the defendant on an action for damages for personal injuries. The injuries arose by reason of a collision of a Dodge Sedan which plaintiff was driving with a Studebaker truck which Ray Ward, an employee of defendant, was driving.

The collision occurred on June 5, 1950 at an intersection of the Middle Urbana Road with the Villa Road. The Plaintiff was driving north on the Middle Urbana Road and defendant’s driver was moving easterly on the Villa Road. On the latter road there was a stop sign at the intersection.

The petition set out four specifications of negligence, namely; failure of the driver to stop for the stop sign before entering the intersection, failure to keep a look out, to yield the right-of-way and to keep the truck under control. The defendant answering admitted certain formal averments of the petition, that there was a stop sign at the intersection; “that plaintiff was injured in said collision and admits that the injuries to the plaintiff were and are set forth in the petition, denies that said injuries damaged plaintiff in the sum alleged.” Generally denied any negligence and set up four particulars in which it was claimed that the plaintiff was negligent, namely; excessive speed, failure to keep a look out, failure to yield the right-of-way and failure to keep the motor vehicle under proper control. The reply was a general denial of the answer. The judgment was entered on the verdict of a jury.

Appellant assigns five grounds of error. The first three of which relate to the admission of certain testimony. The fourth is directed to the general charge and the fifth is the claim that the damages were excessive and induced by passion or prejudice.

The first assignment of error is .that the Court erred in admitting, over the objection of defendant-appellant, evidence of the arrest of defendant-appellant’s driver. The second assignment is that the Court erred in admitting evidence of a bail forfeiture by defendant-appellant’s driver and the third assignment is that the Court erred in refusing to direct and instruct the jury upon request of defendant-appellant to disregard any and all evidence of the arrest of defendant-appellant’s driver and to the fact that he did or did not forfeit bail.

On cross-examination of Mr. Ward, defendant’s driver, he was required to answer the question, over objection, whether or not he had been arrested as a result of the accident. He was also asked whether he had been convicted which was not answered and inquired of whether or not he had forfeited a bond, and he said that he had. Upon the admission of the testimony respecting the bond the Court said

“I don’t think so many questions are necessary. You are attempting to prove that at the time of the hearing the man failed to appear and forfeited his bond. * * * That would be competent. It is the same as any other admission against interest.”

On cross-examination Cecil Carter, an employee of defendant who was riding in the truck with Ward, was permitted over objection to answer the question “as a result of this accident do you know whether or not he (Ward) was arrested?” To which he answered in the affirmative. At the conclusion of the case on the evidence, counsel for defendant moved the Court to direct the jury to disregard any and all evidence of the arrest of Ward and any and all evidence in regard to the fact of whether he did or did not forfeit bail which motion was overruled and exception noted.

The extent to which either of these witnesses could properly have been interrogated on cross-examination respecting the commission of a criminal offense would have been to inquire whether or not he had been arrested and convicted of an offense. The purpose of such examination to affect the credibility of the witness if it appeared that such witness had been arrested and convicted. The rule as to the admissibility of proof of conviction or acquittal of a criminal offense in a civil action, is set out in an annotation to Interstate Dry Goods Stores v. Williamson, 31 A. L. R. 261 and the rule is stated that by the great weight of authority

“a judgment of conviction or acquittal rendered in a criminal prosecution cannot be given in evidence in a purely civil action, to establish the truth of the facts on which it was rendered.”

There are some authorities that hold that a conviction based on confession of guilt may be so admitted, although, in Ohio, it has been held that even such a conviction of guilt is not conclusive. Clark v. Irvin, 9 Ohio 131, Hendricks v. Foller, 16 O. C. C. 597.

It is only where the conviction is based on confession of guilt that the evidence may be said to be in the nature of an admission against interest. It may be this principle which the trial judge had in mind when he permitted the testimony of the arrest upon that theory.

This Court in April of this year in the case of Barge v. House, Darke County, 63 Abs 555, 94 Oh Ap 515, reversed a judgment for damages for personal injuries partly because the plaintiff was permitted to ask a highway patrolman if he had made any arrest as a result of a collision out of which the action arose and he testified that he had arrested the defendant.

Judge Williams in Wolfe, Admr., v. Baskin, 137 Oh St 284 at page 289 says

“It is a general rule that in a civil action the question of arrest is immaterial. * * *. The same rule has been applied to non-arrest. * * *. Of course there may be instances in which the fact of arrest might be so closely identified with the transaction as to be part of the res gestae and therefore admissible in evidence.” This conclusion is carried into the second syllabus in this language.—
“The arrest or non-arrest of a party unless a part of the res gestae is not admissible in evidence on the issue of negligence.”

It is clear then that the admissions of the testimony of Ward that he had been arrested and the testimony of Carter to like effect and the refusal of the Court to instruct the jury to disregard such testimony was erroneous. It likewise was improper to admit the testimony respecting the forfeiture of the bond.

If evidence affecting credibility of a witness must be restricted to proof of arrest and conviction it is obvious that proof of an arrest and forfeiture of bond would not meet the test of admissibility. Many reasons might attend which would explain the choice of a defendant to forfeit his bond rather than to appear and go to trial and which would not constitute an admission of his guilt of the offense charged.

It appearing that the evidence was improperly admitted was it prejudicial to the defendant? When error is shown to have intervened it is presumed to be prejudicial. Siccora v. Bauer, 8 Abs 530; Henkle v. McClure, 32 Oh St 202; Sherer v. Piper and Tenney, 26 Oh St 476.

An examination of the record is convincing that, in probability, the principal issue between the parties related to the claimed failure of defendant’s driver to stop his truck as he entered the intersection where the collision occurred.

There was testimony of two disinterested eye witnesses, as well as the plaintiff, to the collision that Ward did not stop before he entered the intersection and of a Deputy Sheriff who investigated the accident soon after it occurred that Ward had told him he did not stop but slowed down. How„ever, the driver and Mr. Carter, who was riding along side him in the truck, stated that Ward did come to "a complete stop as he entered the Middle Urbana Road. When, then, in addition to the testimony of witnesses against the defendant’s contention the jury also was improperly permitted to consider the arrest of Ward and his forfeiture of bond as it reflected on his negligence, it may have had weight in convincing the jury to return the verdict against the defendant.

It is suggested by counsel for appellee that the arrest may have been a part of res gestae. There is nothing whatever in the record which would support this conclusion and it is not probable that any officer was at the scene of the accident or so identified with it that it could be found that the arrest was a part of the res gestae.

We are required to hold that upon the record and the controlling authorities in Ohio and elsewhere the first three errors assigned are well made.

The fourth assignment is that the Court erred in saying to the jury that

“the plaintiff might recover if he proved by a preponderance of the evidence that his injuries and damages occurred as a proximate cause of the accident.”

This, of course, was not correct but we would not hold that it was prejudicial in the light of the charge in its entirety and it can be corrected if the cause is retried. It is also asserted that the Court erred in saying to the jury that the defendant admitted the injuries alleged in the petition but denied responsibility therefor. This was not an exact statement of the position of the defendant in his amended answer upon which he went to trial although it would have been correct under the original answer. However, it could not have been prejudicial to the defendant because it may have required plaintiff to produce testimony which otherwise would not have been required.

The fifth assignment is that the damage was excessive and given under the influence of passion or prejudice. The verdict and judgment are substantial but the injuries were severe and permanent and plaintiff was a young man with fine earning capacity. The cause was tried without any suggestion of undue feeling and nothing whatever, unless it would be the amount of the verdict, suggests undue influence upon, or passion or prejudice on the part of the jury. The amount of the verdict does not require such conclusion.

The judgment will be reversed upon the first three errors assigned.

WISEMAN and MILLER, JJ, concur.

Decided December 30, 1952.

ON MOTION TO CERTIFY RECORD

No. 496.

OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to certify the record in this case to the Supreme Court of Ohio because the decision in this Court is in conflict with a decision of the Court of Appeals of Hamilton County in the case of Sweeney v. Schneider, 73 Oh Ap 157.

We find no conflict in the law of the cited case with any principle of law enunciated or followed in the decision in the instant case.

The motion will be denied.

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