text:
    OWENS, Plaintiff-Appellant, v. OWENS, Defendant-Appellee.
    Ohio Appeals, First District, Hamilton County.
    No. 6997.
    Decided October 25, 1948.

      Samuel Plotnick, Harry Falk, Cincinnati, for plaintiff-appellant.
    Becker & Loeb, Cincinnati, for defendant-appellee.
   OPINION

By HILDEBRANT, J.:

In the trial court, plaintiff-appellant obtained a divorce from defendant-appellee for his aggression, and an alimony award of defendant’s undivided one-half interest in certain real estate, all household goods, government bonds, and money.

In the decree and final entry, overruling plaintiff’s motion for judgment notwithstanding the decree, 'the court found plaintiff had no legal or equitable interest in certain real estate held as tenant in common with defendant and his mother, and ordered plaintiff to convey same to the defendant.

Appellant claims the court exceeded its statutory jurisdiction in making the above order, and erroneously exercised a general equity jurisdiction, which it did not possess. With this claim, this court is in agreement. In DeWitt v. DeWitt, 67 Oh St, 340, it is stated in the first paragraph of the syllabus:

“Under Section 5699, Revised Statutes, as the same stood prior to the amendment of May 19, 1894 (91 O. L., 348), it is error for the court, having granted the wife a divorce for the aggression of the husband and awarded her alimony payable in money to attach to the payment of such alimony a condition that she quitclaim to the husband her interest in her own lands, and of dower in his lands, and surrender to him promissory notes which she holds against him.”

In Mark v. Mark, 145 Oh St, 301, at page 308, Turner, J., states:

“It should be borne in mind that this is a statutory divorce and alimony case and not a chancery case.”

In Miller v. Miller, 78 Oh Ap, 381, the court held in 3rd paragraph of the syllabus:

“Where the court grants a divorce to the wife, it has no power, in the absence of agreement between the parties, to divest the wife of any part of her title to her undivided one-half of jointly-owned real estate by giving the husband the first $1000 of the proceeds therefrom and then equally dividing the remainder.”

See, also: Fisher v. Fisher, 78 Oh Ap, 125.

The rule is stated in 14 O. Jur., 380, as follows:

“The granting of divorces is a matter which is regulated entirely by statutory provision, and while it has been said that an application for a divorce invokes the equitable jurisdiction of the court, such jurisdiction does not arise out of any inherent powers of. courts of chancery in such cases, but exists only by virtue of the provisions of the statutes- relating to the subject.”

It is argued that this court should modify the decree by striking out the order complained of and .affirm it in all other respects. To do so. would seem to deprive the trial court of an opportunity to exercise its judicial duty of allowing such alimony out of the husband’s property, as it deems reasonable, taking into account its lack of jurisdiction to order a conveyance of the plaintiff’s real estate. That this is a proper element for the consideration of the court, we quote from DeWitt v. DeWitt, 67 Oh St, 340, at page 353:

“We do not hold that the trial court may not, in fixing the amount of alimony, acquaint itself with the wife’s pecuniary condition, but we do hold that the court may not abrogate the statute.”

We, therefore, affirm that part of the decree granting divorce and reverse the entire decree granting alimony and remand the cause "to the trial court with instructions to make the alimony award in accordance with statute.

MATTHEWS, PJ, ROSS and HILDEBRANT, JJ, concur in the syllabus, opinion and judgment.


source: Caselaw Access Project

author: By HORNBECK, J.

license: Public Domain

text:
    UNDERWOOD, Plaintiff-Appellee, v. UNDERWOOD, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4222.
    Decided February 1, 1949.
    Frank H. Ward, Columbus, for plaintiff-appellee.
    Mary E. Prentice, Columbus, for defendant-appellant.
   OPINION

By HORNBECK, J.

The appeal, as we understand it. is based upon the claim that the Court erred in failing to grant a divorce to either the plaintiff or the defendant and in failing to make a determination of the property rights of the parties. A court may not by judicial decree divide and apportion the property of parties to a divorce action unless it first be determined that some one of the grounds for divorce or alimony has been proven.

Defendant-appellant may assign as error the refusal of the trial judge to grant a decree of divorce to him, but he may not properly assign as error the refusal to grant a decree to the other party.

This case presents the usual conflict in testimony which is found where parties join issue and go to trial. A reading of this record is convincing that although the plaintiff may not have sustained her claim of gross neglect of duty against the defendant, she clearly established her charge of extreme cruelty. As a matter of fact, the record discloses that the Court issued a restraining order against the defendant molesting, annoying or assaulting the plaintiff, and he was cited fpr contempt for a violation of this order. The defendant admits that he beat the plaintiff and no legal justification of the assault appears.

There is substantial doubt upon the record that defendant’s testimony, if accepted at full value, would support a charge of gross neglect of duty against the plaintiff, and it is even more doubtful if there is any corroboration whatever of such-charge.

The judgment entry in this case is very brief, denying a divorce to both parties. There are no special findings of law and fact as provided by the statute. Defendant takes certain portions of the trial judge’s oral opinion at the conclusion of the trial and attempts to predicate error upon some of them. They are not such legal pronouncements as will support an assignment of error even though they may contain unsound propositions of law or illogical conclusions of fact. However, the conclusion of the trial judge is a succinct and appropriate analysis of the whole matter.

The trial judge has very wide discretion in a divorce pro-, ceeding. It does not follow that because each party makes, proof of facts which would constitute grounds for a divorce, that upon the whole record the court is required to grant a decree to one or the other. Resolving this record as the trial judge had a right to do, he did not abuse his discretion in refusing a decree to both parties.

The judgment will be affirmed.

WISEMAN, PJ, and MILLER, J, concur.


author: By McClelland, pj.

text:
    COYLE, Plaintiff, v. UNDERWOOD et, Defendants.
    Probate Court, Franklin County.
    No. 127549.
    Decided August 9, 1948.
    Edward L. Coyle, Columbus, Executor of the Will of Nellie M. Underwood, dec’d.
    Dale Rapp, Columbus, for Edward K. Underwood.
    Vorys, Sater, Seymour & Pease, Hamilton & Kramer, Columbus, for Charlotte Meier and Arthur W. Meier.
   DECISION ON PETITION FOR DECLARATORY JUDGMENT

OPINION

By McClelland, pj.

This matter is presented to the Court in the form of a petition for a declaratory judgment relative to the ownership of certain property passing under the will of James W. Underwood, deceased, which property or the proceeds thereof, is shown in the inventory of the estate of Nellie M. Underwood, deceased, his widow. To the petition an answer was filed by Edward K. Underwood and also a cross petition, in which he alleges ‘that by the terms of the will of his father, James W. Underwood, Nellie M. Underwood, his surviving widow, took only a life estate in said property and that he took the property as remainderman. An answer and cross petition was also filed by Charlotte Meier and Arthur W. Meier who are devisees and legatees under the will of Nellie M. Underwood, deceased, in which cross petition these defendants allege that they are the owners of the property devised under the will of Nellie M. Underwood, and also claim that she took the fee simple title to certain property mentioned in the will of James W. Underwood, deceased. An answer was also filed by Edward K. Underwood to the cross petition of the two defendants hereinbefore named.

On examination of the pleadings three principal questions are raised. First, what was the character and extent of the estate which Nellie M. Underwood took under the will of her deceased husband, James W. Underwood? Did she take a fee simple estate, or did she take a life estate with a power of disposition? If she took a fee simple estate, it will not be necessary to construe any of the items of the will of Nellie M. Underwood. If she took a life estate in said property by the terms of the will of her husband, did she have the right to dispose of same by will? If she did have the right to dispose of same by will, did she exercise that right by the terms of her will which has been admitted to probate in this Court?

James W. Underwood died on March 25, 1944, survived by Nellie M. Underwood, his wife, and Edward K. Underwood, a son by a former marriage. He left a will which was admitted to probate by the Probate Court of Franklin County, Ohio, on May 1, 1944.

The will of James W. Underwood, after directing that his debts and funeral bill be paid, provided as follows:

“Item 11. All my property, that I may die seized or possessed of, both real, personal and mixed, I give, devise and bequeath to my wife, Nellie M. Underwood, to be hers absolutely with full power of disposition, as long as she remains my widow. In the event of her remarriage or death, 1 give, devise and bequeath to my son, Edward K. Underwood, all my said property, both real, personal and mixed, subject in the event of remarriage of my said widow, to any legal rights she may have in my estate under the laws of the State of Ohio.”

This will was executed on the 13th day of January 1934, ten years prior to the death of the testator.

Nelllie M. Underwood, his widow, and one of the beneficiaries under the will of her husband, died on January 26, 1948, leaving a last will and testament which was admitted to probate by the Probate Court of Franklin County, Ohio, on February 6, 1948. The will of Nellie M. Underwood provides for a number of specific bequests of personal property by Items 1 to XI of said will. Item XII contains the following language:

“All my remaining household goods and furniture, not heretofore bequeathed, now located at 2322 Sherwood Road, Bexley, Ohio, 1 give and bequeath to Charlotte Meier and Arthur W. Meier. In the event said Charlotte Meier and Arthur W. Meier do not accept any of said household goods and furniture, then I give and bequeath said household goods and furniture to Edward K. Underwood.”

Item XIII of said will provides as follows:

“1 give and bequeath to Fred W. Drayer of Bexley, Ohio, the sum of Five-Hundred ($500.00) Dollars in cásh, to be paid out of my savings account in the Allemania Savings Company, East Main Street, Columbus, Ohio. This savings account is my own money and is not a part of my deceased husband’s estate.”

Item XIV reads as follows:

“1 give and bequeath to Edith Drayer of Bexley, Ohio, the sum of Five Hundred ($500.00) dollars in cash, to be paid out of my savings account in the Allemania Savings Company, East Main Street, Columbus, Ohio. This savings account is my own money and is not a part of my deceased husband’? estate. This bequest and the bequest to Fred W. Drayer are in recognition of the services performed by said beneficiaries and of the close friendship existing between the testator and Mr. and Mrs. Drayer.”

Item XV contains the following language:

“All the remainder and residue of my estate, of every nature, description and kind, wherever the same may be situated or located, whether real, personal or mixed, after the above bequests, 1 give, devise and bequeath to Charlotte Meier of Columbus, Ohio, absolutely and in fee simple.”

James W. Underwood at the time of his death was the owner of an undivided one-half interest in a parcel of real estate situated in the Village of Bexley, which was the homestead of Mr. Underwood and his wife. Nellie M. Underwood was the owner of the other undivided one-half of said property. An inventory was filed by Nellie M. Underwood, the Executrix of the will of her husband, which inventory discloses that there was in the estate of James W. Underwood one Porto Rico Bond in the face amount of $1,000.00, another Porto Rico Bond in the face amount of $1,000.00, one Territory of Hawaii Bond in the face amount of $1,000.00, another Territory of Hawaii Bond of the face value of $1,000.00, a Land Trust Certificate evidencing 2/1850ths interest in the C. A. and C. building Site at Cleveland, Ohio, at a value of $840.00, certificate of stock of the Cleveland & Pittsburgh Railroad, of the value of $2312.50, another certificate of stock of the Cleveland & Pittsburgh Railroad, of the value of $2312.50, a checking account in the Gay-High Branch of The Ohio National Bank in the amount of $6,493.43, and a checking account in the Bexley Branch of The Ohio National Bank in the amount of $10,565.51. The undivided one-half interest in the real estate hereinbefore mentioned was inventoried at a value of $5,000.00. The household goods were invéntoried at $300.00 and a five passenger Packard Sedan was inventoried at $500.00. This property was all transferred to Nellie M. Underwood on the assumption that she took a fee simple estate in said property under the will of her deceased husband. Some of the property was sold during her lifetime and converted into other forms of investment. Schedule E of the inventory disclosing the interest in the real estate recites that the decedent, Nellie M. Underwood, was the owner of an undivided one-half interest in Lot 33 of Bexley Park Addition, which was the home property hereinbefore referred to. This inventory also discloses a savings account in the Allemania Savings Company in the amount of $1,000.00. The inventory also discloses the existence of a checking account in the Bexley Branch of The Ohio National Bank in the amount of $10,657.25.

An agreed statement of fact was submitted which contains the statements hereinbefore set out, together with many other statements which are not necessary to state in particularity in this decision.

It is the claim of the answering defendants, Edith Drayer and Fred W. Drayer, that by virtue of the two wills above mentioned, they are the owners of the real estate described in the petition, that Charlotte Meier is the sole owner of the stock certificates mentioned in the will of Nellie M, Underwood, that she is the owner of the money evidenced by the checking account in the Bexley Branch of The Ohio National Bank in the sum of $10,657.25, and that she is the sole owner of the household furniture and effects described in Item III of the plaintiff’s petition, and that she is the owner of all the remainder of the personal property not specifically disposed of by the will of Nellie M. Underwood.

It is quite obvious that the first question which this Court will have to decide is the character and extent of the estate which Nellie M. Underwood took under the will of her deceased husband. We will again allude to the will of James W. Underwood, and especially the language of Item II thereof, which reads as follows:

“All my property, that I may die seized or possessed of, both real, personal and mixed, I give, devise and bequeath to my wife, Nellie M. Underwood, to be hers absolutely with full power of disposition, as long as she remains my widow. In the event of her remarriage or death, 1 give, devise and bequeath to my son, Edward K. Underwood, all my said property both real, personal and mixed, subject in the event of remarriage of my said widow, to any legal rights she may have in my estate under the laws of the State of Ohio.”

It is the contention of Edward K. Underwood that Nellie M. Underwood by said language, took only a life estate in the property and that he took the remainder. It is the contention of the devisees and legatees under the will of Nellie M. Underwood that she took a fee simple estate under the will of her husband.

The polar star in the construction of a will is to ascertain the intention of the testator. The Court should put itself, if possible, in the position of the testator at the time he wrote his will to consider all the pertinent facts presented to the Court pertaining to his family and other matters which may reflect upon his intention. Counsel for' all of the parties have presented able and exhaustive briefs in support of their respective contentions, but this Court is compelled to say, as other courts have frequently said, that there are no two wills exactly alike, and when a Court reads the decisions of the courts of the various states construing various wills we are compelled to come back to the will being construed, read it from its four corners, and then try to ascertain the intention of the testator.

The will of Mr. Underwood contains what is apparently two inconsistent devises, one of which is apparently repugnant to the other, but upon reading the item carefully, the Court is forced to come to the conclusion that one part of this item is just as clear and definite as the other part. In the early part of the item he gives, devises and bequeaths to his wife, to be hers absolutely, with full power of disposition, all of his property, but only so long as she remains his widow. In the latter part of the item he, in just as clear and concise language, leaves the remainder at the death or remarriage of his wife, to his son, Edward K. Underwood. On the face of the will he apparently gives a fee to his wife, and then also gives a fee in the same property to his son. This is impossible. If one gives his entire estate to one person by his will, he cannot give the same thing by a subsequent language. But we must consider the entire will, not only a part of it. The rule which should be followed in a case of this kind is well stated in Volume 33 of American Jurisprudence, page 477, Section 15, reading as follows:

“The rule which now prevails is that a devise which otherwise would be of a fee may be restricted by subsequent expressions in the will and reduced or cut down to a life estate, provided the reducing words or expressions conform to the requirements of the law in respect of, clarity of meaning and testamentary intent. The principle is generally stated in the formula of clarity and from a negative standpoint, since many of the cases refuse to allow reduction of the fee devised. The underlying theory is that if an estate in fee is devised in one clause of a will in clear and decisive terms, it cannot be cut down or taken away by raising a mere doubt in some subsequent clause or by some other inference therefrom: to give such effect, the words of the subsequent clause must be as clear and decisive as are the words of the clause giving the estate in fee. It must be reasonably certain that reduction of the devise was the testator’s intention. Thus, while an express gift in fee will not be reduced to a life estate by mere implication from a subsequent gift over, this may be done by subsequent language clearly indicating such intent and equivalent to a positive provision. The authorities recognize a clearer indication of an intent to cut down a larger estate to a life estate where the remainder which would thus

be created would pass to a person in the testator’s line of descent than where such remainder would pass to a stranger, because the testator would have a stronger motive to prefer the former class than the latter.”

It is to be noted that Nellie M. Underwood was the second wife of James W. Underwood, the testator, and that Edward K. Underwood ‘is a son by a former marriage. The same principle is stated m 41 O. Jur., page 738, at Section 634:

“A fee simple estate granted in one clause of a will may be restricted to a lesser estate by subsequent provisions'thereof, but an express bequest or devise cannot be cut down by a subsequent clause of doubtful meaning. Therefore, a fee simple estate granted in plain and unequivocal language in one clause of a will cannot be lessened or cut down by a subsequent clause unless the language therein is as clear, plain and unequivocal as that in the first grant. Thus, an express and positive devise cannot be controlled by the reason assigned, or by subsequent ambiguous words, or by inference and argument from other parts of the will, or by implication, or by a subsequent clause expressing a wish, desire, or direction for its disposition after the death of the devisee, or by a construction of a subsequent clause which would make the word ‘heirs’ read ‘children.’ ”

The foregoing quotations contain a statement of the rule as deduced from the various court decisions referred to in the citations from which the quotation is taken. In considering the application of the rule to the case at bar, we must conclude that the subsequent language is just as clear and unequivocal as the preceding language which seems to create a fee simple estate in the widow. It is to be noted by the will of James W. Underwood that he devises “all of my said property, both real, personal and mixed, to my son Edward K. Underwood.” He refers, of course, to all the property of which he may die possessed, both real, personal and mixed.” We must also take into consideration the fact that Edward K. Underwood was not a stranger to the testator. He was the son of the testator by a previous marriage, and under the rule as hereinbefore announced, that is a circumstance of great weight in inducing the Court to believe that Mr. Underwood wished to give his wife merely a life estate and not a fee, but that the fee should go to his son. The quotation hereinbefore made from 41 O. Jur. contains citations of many Ohio cases supporting the contention of Edward K. Underwood. The first is that of Baxter v. Bowyer, reported in 19 Oh St, at page 490. In that case the testator used language which standing by itself would create a fee simple estate, but is followed by other language which is just as clear and explicit as the language above referred to. The Court held that the wife took only a life estate with the power of sale for the purposes mentioned in the will.

Another case relied upon by Edward K. Underwood is that of Johnson v. Johnson, 51 Oh St, at page 446. In that case the testator devised to his wife all of the remainder of his property after the payment of his debts, with full power to sell the same, and then provided that if any of the property remained unconsuined at the time of her death it should be equally divided between his brothers and sisters. The Court in that case held that the wife took only a life estate.

Another case relied upon by Mr. Underwood is the, case of Moeller v. Poland, reported in 80 Oh St, page 418. At page 434 the Judge writing that opinion, uses the following language:

“It was the judgment of both the common pleas and circuit courts that while item five of the will, if it stood alone, would vest absolute title to the whole personal estate in Mary L., after payment of the previous bequests, yet considered in connection with item six, and considering the entire will, taken up by its four corners, to use a common phrase, an intention on the part of the testator is manifest to give to his sister a life estate in the real estate and the use' of the personal property for life, with a remainder of the whole estate, personal as well as real, to Archbishop Elder and his successor in trust, for the St. Joseph’s Orphan Asylum. With this conclusion we agree.”

In the case of Fetter v. Rettig, 98 Oh St, page 428, we find that the testator devised to his wife as iong as she remained his widow, his entire property, both real and personal. He also gave his wife the power to sell the property and to execute deeds and convey a fee simple estate to the purchaser. The Court in that case held that the widow took a life estate only with power of sale.

Another case which has been under discussion by all the parties in this matter is that of Home v. Lippardt, reported in 70 Oh St, at page 261. Upon examination of that decision the Court finds that the issue was whether or not the widow could or did convey a good title to the property under what appeared to be a power of sale. The Court held that she took a life estate with a power of sale and that she could convey a fee simple estate. The Court does, however, discuss many other phases of the will which are to a certain extent of assistance in the determination of the question now before the Court.

The last mentioned case is relied upon by the devisees or legatees under the will of Nellie M. Underwood, and upon first glance seems to support their contention that Nellie M. Underwood took a fee simple estate under the will of her deceased husband. There is a great similariity between that case and the case at bar; yet, there is some dissimilarity also. In that case the testator gave to the apparent remaindermen what was left after the wife had exercised her right to sell a portion or all of the corpus. In the case at bar Mr. Underwood first devises and bequeaths his property to his wife. Then, in just as clear and unequivocal language, he devises the same property to his son.

The Court has examined most carefully the briefs filed on behalf of the devisees and legatees of Nellie M. Underwood, but finds that many of the cases upon which reliance has been placed by them are cases of inferior courts. Some of the citations of the Superior Courts seem to support their contention, but in the consideration of this case the Court finds consolation in the statement of the Editor of the title “Life Estates, Remainders, Etc.”, reported in 33 American Jurisprudence at page 483, Section 20, where he uses the following language:

“In the ascertainment of the question whether a life estate of a fee simple is created by a gift with a power of disposal annexed, a detailed examination of the authorities discloses that in a few jürisdictions there are some cases which are apparently in conflict. This, however, is not due to any real inconsistency among the decisions of such jurisdictions, but to the well known characteristic of will cases (which comprise the great bulk of the litigation on this subject), namely, that each case is a law unto itself and is decided so as to give effect, if possible, to the testator’s intention as disclosed by the various provisions and expressions of the instrument and the circumstances of the parties. The basic reason for the diversity of result encountered in cases of this type has been well stated to be that ‘seldom, if ever, will two wills be found the exact counterpart of each other, either in language or circumstances. We may look to cases for general rules as guides, but after all, each must be decided upon the language used by the testator, and upon his intention, to be gathered from the whole instrument.’

“The only generalization which may safely be drawn from the cases which applies to all instances where it is necessary to ascertain whether a life estate or a fee has been created by a gift with a power of disposal is that it is always the purpose and duty of the courts in each case to ascertain the intention of the grantor or testator from the language employed by him as indicating the character of the estate created. These rules are in strict accord with the cardinal principles of construction of wills and deeds.”

Now going back to the will. As we have heretofore stated, Mr. Underwood gave what is apparently a fee simple estate to his wife. He gave in just as clear and unequivocal language. a fee to his son after the death of his wife. He cannot give a fee and then give the same fee again. We must reconcile the two apparently repugnant provisions of his will and the only reasonable reconciliation to which this Court can come is that Mr. Underwood wished his wife to have the full use and enjoyment of his property during her lifetime or until she should remarry and at her death or remarriage the property should then go to his son.

We therefore are impelled to hold that under the will of Mr. Underwood, his widow took a life estate and his son, Edward K. Underwood, took the remainder.

The next phase of the will which this court is called upon to consider is the phrase “with full power of disposition”. In considering this language the Court is confronted with a great volume of court decisions construing like or similar language. There is no question but that Mrs. Underwood had a right to dispose of the property during her lifetime. It is to be noted that the testator does not specifically give her the right to consume the property. He does say that she shall have it absolutely with full power of disposition; yet, in the same item of his will he devises “all my said property, both real, personal and mixed”. If he devises all of his said property, he certainly means the identical property which has been disposed of by him under the preceding language in the same item of his will. In the case of Johnson v. Johnson, reported in 51 Oh St, at page 446, the widow, who is the main devisee, was given the property with full power to dispose of same as she might think proper, and that at the time of her death if any remained undisposed of, it would to go the testator’s brothers and sisters and their children. The Court held that her right to consume was limited by her discretion as to what she might think proper, and the court held that the widow took only a life estate with power to sell and dispose of same for her personal consumption during her lifetime and if any remained she held it as a trustee for the remaindermen under her husband’s will. It is apparent upon reading Mr. Underwood’s will that he intended his wife to have the full right to dispose of the property, and, without doubt, he intended that she might use such a portion of it as was necessary for her support. This construction may seem to the interested parties that the Court is attempting to make a will for Mr. Underwood. The Court, of course, will refrain from going that far, but the Court must put itself in the position of the testator and ascertain from the language used in the will and the circumstances surrounding the testator at the time the same was made in order to ascertain his intention. He undoubtedly gave his wife the power to dispose of the property, but he did not specifically give her the right to consume it, But judging from the relationship, the size of the estate, and the character of his property, it is only reasonable to assume that she had the right to consume such a part as in her discretion was .necessary for her support. If she consumed it, no part of that which was consumed would remain, and we are therefore compelled also to hold that she had a power of sale and, if necessary, to convey a fee simple title to the portion which she might have sold, and that out of the proceeds of property sold she would within her reasonable discretion have a right to consume any portion of same and such portion as was not consumed she would hold as a trustee for the person who was entitled to the remainder.

The only question left undecided is whether or not she had a power to dispose of the same by will. This question has not given the court the difficulty the former two questions have given it. The language of the testator, in the mind of this Court, answers that question very definitely. Mr. Underwood, in clear and unequivocal language, provides that in the event of the remarriage or death of his wife, Edward K. Underwood is given all of said property, both real, personal and mixed. We have heretofore held that this language must be given effect in determining whether the widow had a fee simple or a life, estate. We must also consider it in determining whether or not Mrs. Underwood had a right to dispose of same by her will. If she would have a right to dispose of same by will, that would nullify the language above quoted. He cannot give it to his son and then provide that his wife may dispose of it by her will. In our opinion, there is no serious ambiguity in that respect and the Court is compelled to hold that although she had a life estate with power of disposition, she did not have a right to dispose of same by her will.

An order may be drawn accordingly.


author: By HORNBECK, J.: By THE COURT:

text:
    LIBERTY FOLDER CO., Plaintiff-Appellee, v. ANDERSON et, Defendants, and ANDERSON, Defendant-Appellant.
    Ohio Appeals, Second District, Shelby County.
    No. 149.
    Decided July 7, 1949.
    R. E. Boiler, Jr., Sidney, for plaintiff-appellee.
    Sidney G. Kusworm, Sr., Dayton, for C. R. Anderson, defendant-appellant.
    D. F. Mills, Sidney, for the receivers.
   OPINION

By HORNBECK, J.:

The appeal is from an order of the Common Pleas Court refusing to appoint special counsel for the receivers upon the application of appellant, C. R. Anderson.

The motion recites that the “receivers have done nothing-in behalf of the defendant in the defense of pending claims and litigation against him and his property and have indicated a desire to be relieved as such receivers of the duty and responsibility of preparing and presenting his defense to the alleged cause of the action of the plaintiff as set forth in its supplemental petition herein (which is not made a part of the transcript); also of the duty and responsibility of defending said defendant in criminal proceedings pending against him in the District Court of the United States for the Southern District of Ohio, and in the defense of claims for income taxes alleged to be due the United States Government.”

The motion further recites that the “hearing on the claims for income taxes alleged to be due to the United States Government has been assigned for trial on the 18th of April, 1949, and that it is imperative that appellant have immediate and continuous service of attorneys to advise and act for him in the matters aforesaid,” etc.

It would be sufficient to say that upon the motion and the record as it comes to us, it does not appear that the trial judge has abused his discretion in refusing to sustain the motion of the defendant. It is the function of the court in which the receiver is appointed to determine both the necessity for counsel and the compensation to be allowed them.

The general test of the obligation of a court to pay counsel for a receiver is that the services to be performed are necessary to produce, preserve or protect a fund which has, or may be, brought into the hands of the receiver and that such payment is to the interest of the receivership. As a general rule, equity does not sanction the employment by a receiver of the attorney of any of the parties or one whose interest is opposed to those of the parties in the receivership action, nor of an attorney for the debtor. 64 A. L. R. 1536, Keating v. Fuller, (Ga.) 105 S. E. 144. However, every case rests upon its own facts and, as indicated in the third syllabus of Pennsylvania Steel Company v. New York City Railway Company, 221 Fed. 441, the court may, “in a complicated controversy involving many different interests in the fund in the interest of receivers, appoint, * * *, counsel to represent an interest whose claims to be paid from the fund might not otherwise be fully presented.”

It may be conceded that all of the statements of fact in the motion of defendant are true but they are not enough to require this court to say the trial judge, who has available to him all of the knowledge of his receivers, who are an arm of the court, should appoint additional counsel for the receivers charged with the obligation of special representation of the appellant.

It appears that from the testimony of Judge Mills, who is of counsel for the receivers, that when the receivers were appointed by agreement of the parties and their counsel, three attorneys were named, one of whom was to represent the appellant, one to represent the plaintiff and the third to represent Mrs. Anderson. Whether or not this understanding was communicated to the trial judge and the appointment made upon that agreement and carried into the entry does not appear. However, the three attorneys suggested were appointed counsel for the receivers. Pursuant to that agreement, if it be carried out, Judge Mills is charged with the responsibility of representing the appellant. He says that he is “not physically able to represent Mr. Anderson and if the court should order the receivers to do so, and they should go ahead and defend it,” he shall ask to be relieved, and furthermore, “1 am not familiar with the facts, and do not know enough about them to go to trial on the 18th of April,” etc. Whether or not Judge Mills’ statement that he would ask to be relieved means that he would sever completely his relationship as counsel for the receivers, or that he would decline to represent the appellant, does not definitely appear. In any event, Judge Mills has not resigned and as the record now stands, he is still one of three counsel for the receivers. The receivers have made application to the «court seeking to be relieved from prosecuting and defending actions for or against the appellant individually but upon the record the court has indicated no opinion and made no order on this application. So that, it is entirely problematical whether or not the court will order the receivers and their attorneys, one or more, in the interest of the receivership to represent the appellant. Unless and until such order is made, it is purely conjectural whether or not there is any necessity for the appointment of additional counsel for the receivers.

The brief of the appellee recites many circumstances and facts connected with and particularly pertinent to the status of the appellant in the receivership, most of which, as is contended by counsel for appellant, are not in this record. However, ail of the subject matter, if true, is pertinent upon the question for the trial judge to determine, namely, whether or not counsel for the receivers should represent Mr. Anderson in any of his personal suits or transactions. These facts and all others germane to the question should, and no doubt will be, or have been considered by the trial judge upon the question presented, namely, the necessity and advisability of naming counsel either in the place of Judge Mills, if he resigns, or in addition to his appointment if he does not resign.

All that we have said, and much more that could be stated, is merely confirmatory that upon the facts as projected in the record in this case it clearly appears that the trial judge did not, at the time that he acted, abuse his discretion in refusing to appoint additional counsel for the receivers charged with the responsibility of representing Mr. Anderson individually in cases and matters to which he was a party.

The order will be affirmed.

MILLER, PJ, and WISEMAN, J, concur.

ON APPLICATION FOR REHEARING

No. 149. Decided July 30, 1949.

By THE COURT:

Submitted on application of appellant for rehearing.

The present rules of practice of the Courts of Appeals make no provision for application for rehearing. However, we have examined the two grounds set out in appellant’s application and are satisfied to say that our original opinion, if carefully read, in our judgment answers the contention of counsel and sufficiently presents the opinion of this court on the action of the trial court on the motion of counsel for appointment of additional counsel for the receivers.

The application will be denied.

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


author: By McNAMEE, J:

text:
    FLEMING et, Plaintiffs-Appellees, v. JACKSON et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21374.
    Decided October 10, 1949.

      H. R. Bonaparte, C. B. Berry, for plaintiffs-appellees.
    Parker. Schackleford & Dixon, Beach & Warner, Cleveland, for defendants-appellants.
   OPINION

By McNAMEE, J:

Appellants complain of the action of the Common Pleas Court in dismissing their petition to vacate a judgment sustaining the last will and testament of Mary Diehl, deceased.

The will of Mary Diehl, deceased, was probated on August 13, 1946. Within six months thereafter a suit to contest the will was instituted by the plaintiffs, Lettie Fleming and Emma Brown, sisters of the testatrix. Named as parties to the action were the executor and legatees and devisees under the will. One of the legatees, Richard Garner, also an heir of the testatrix, was named as a party defendant and service by publication was had on him within six months after the probate of the will. All of the other heirs of Mary Diehl, deceased, including these appellants, Lee B. Murray and Cornelius Buhl Simmons, children of a deceased sister of the testatrix, were omitted as parties to the action to contest the will. In their petition to contest the will, plaintiffs alleged that they were the only heirs of Mary Diehl, deceased.

On March 23, 1948, the case came on for hearing before a jury in Common Pleas Court. Shortly after the commencement of the trial, plaintiffs and defendants agreed upon terms of settlement and after the presentation of sufficient evidence to make a prima facie case for the valadity of the will, the jury was instructed to and did return a verdict sustaining the will. On the same day judgment was entered upon the verdict.

At a subsequent term of court, on September 4, 1948, the appellants, Murray and Simmons, filed their petition to vacate the judgment and requested leave therein to intervene as parties to the action. On motion of the original defendants, the petition to vacate was stricken for the reason that the averments therein contained did not constitute sufficient cause for the vacation of the judgment after term. Whether the trial court erred in striking the petition to vacate is the sole issue presented by this appeal.

In addition to the facts hereinabove recited, the appellants in their petition to vacate, alleged that plaintiffs and certain of the defendants “in collusion and in fraudulent cooperation * * * conspired to and did deprive the appellants and others similarly situated of their rights and interest in said cause to contest the purported will of Mary A. Diehl, deceased.” Also, in the petition to vacate, it is alleged that prior to the time plaintiffs instituted said action and during the pendency of same, they agreed with appellants herein to protect the interests of the latter and of all other heirs of the deceased “in the proceedings to contest the will.”

In support of the petition to vacate and the request for leave to intervene, it is urged that the absence of these appellants and the other heirs of the deceased as necessary parties to the action renders the judgment sustaining the will invalid and that the allegations of fraud of the plaintiffs and certain of the defendants states a cause of action within the purview of §11631-4 GC.

■ Recognizing that their right affirmatively to contest the will has been barred by the six months period of limitation, appellants seek a reinstatement of the case as a pending action. They contend that in such event under the rule of Dreher v. Walter, 130 Oh St 92 the timely service upon Richard Garner would be efficacious to permit service at this time upon all other heirs including the appellants as “co-defendants united in interest” with Garner.

The right to contest a will is of statutory origin. It may be enforced only upon compliance with the qualifying conditions imposed by the legislature. McVeigh v. Fetterman, 95 Oh St 292. One of such conditions is the requirement that suit be instituted within six months after the probate of the will. Secs. 12087 and 10504-32 GC.

Another condition appears in §12080 GC which provides:

“All the devisees, legatees and heirs of the testator and other interested persons, including the executor or administrator, must be made parties to the action.”

It is essential to the maintenance of a suit to contest a will that the plaintiff bring in all necessary parties.

Berg v. Merchant, 15 Fed. (2d) 991; Berg v. Merchant, 15 Fed. (2d) 1013; Case v. Smith, 142 Oh St 95.

“It is not the duty of an executor or the proponents of a will to lend aid and comfort to those who would contest and set it aside.” Meyer v. Hogue, 45 Oh Ap 336.

While it is true that all heirs and the other classes of persons designated in §12080 GC, are necessary parties without whose presence in the action no determination of the controversy can be had, this does not mean that a final disposition of a suit to contest a will cannot be made until all necessary parties are brought into the action. Sec. 11262 GC provides in part:

“* * * when such determination cannot be had without the presence of other parties, the court may order them to be brought in, or dismiss the action without prejudice.”

Nor do the mandatory provisions of §12080 GC require the re-opening of the case after the period of limitation has expired where a judgment sustaining the will has been rendered without the presence of all necessary parties to the action.

Plaintiffs in this case who failed to bring in all necessary parties designated in §12080 GC were not entitled to maintain the action to contest the will. Notwithstanding such failure on their part, the case proceeded to trial and resulted in a judgment sustaining the will. Under these circumstances, plaintiffs are bound by such determination. To hold otherwise would be contrary to established principles of law. The alleged fraudulent conduct of plaintiffs and their dereliction in failing to bring all necessary parties into the case effectually forecloses any action that would permit them to resume their status as contestants of the will in a pending action. True, appellants seek no relief for the plaintiffs. They desire a vacation of the judgment only in the interest of themselves and the other heirs who were omitted as necessary parties to the action. But the vacation of the judgment inevitably must result in a reinstatement of the case as a pending action and a restoration of the rights of all of the original parties thereto as of the day before trial.

Syllabus 2 in Beachler v. Ford, 77 Oh Ap 41, reads:

“The vacation of a judgment as to one party in a will contest proceeding or in an action to set aside a testator’s will conveying his realty has the legal effect of vacating such judgment as to all parties.”

Appellants are in the unhappy position of seeking relief which cannot be obtained without conferring an unconscionable advantage upon plaintiffs. Unless plaintiffs’ petition be restored as a pleading in a pending action there can be no revival of the service upon Richard Garner, as an heir and consequently there would be no basis for the claim that the action was commenced against appellants at the time of such service.

In essence the appellants petition to vacate the judgment is a request for judicial permission to contest the will. The request comes too late. In McVeigh v. Fetterman, 95 Oh St 292, there was a judgment sustaining the will. Fetterman, a party to the action, who had been served by publication, invoked §11832 GC which permits a party against whom a judgment was rendered by publication to have the case opened up within five years. In denying the right of the petitioner to a vacation of the judgment, the Supreme Court speaking through Matthias, J., at page 296 of the opinion said:

“Surely the defendant in error, who now seeks opportunity to attack the validity of the same will, though by way of a so-called answer in the former proceeding, is in no different or better situation than if no such action had previously been instituted; nor can she have any greater rights than if she had not been made a party at all. The rights of one not a party ‘stand wholly unaffected by the proceeding’ (Holt et al v. Lamb et al 17 Oh St 375). The only right the defendant in error possessed as an heir of the testator was the right conferred by statute to maintain an action to contest said will, provided she proceeded within the time specified. She has not been deprived of that right; but she failed to assert it within the proscribed period and the probate of the will became ‘forever binding.’ ” (Emphasis ours.)

The foregoing pronouncements are pertinent and decisive here. The cases of Sears v. Stinehelfer, 89 Oh St 163; Beachler v. Ford, 77 Oh Ap 41 cited by appellants turned upon a different principle. In both the Sears and Beachler cases, a party claiming under a will sought an opportunity to sustain the validity of a will which had been set aside. As pointed out by Judge Matthias, in McVeigh v. Fetterman, supra, there is a vital distinction between an action by one claiming under a will who seeks to vacate a judgment setting it aside and an attempt to challenge the validity of a will that has become “forever binding.” The statutory limitation of six months which bars an action to challenge the validity of the will, has no application in a case where a beneficiary of a will seeks to vacate a judgment setting the will aside.

Nor is the case of Bradford v. Andrews, 20 Oh St 208 in point. There it. was held that the contest of a will could not be defeated by the dismissal of a petition and that the case might proceed to judgment on a cross-petition filed within the statutory period of limitation.

Whether appellants have a cause of action against plaintiffs we need not inquire. But for the reasons hereinabove stated we are of the opinion and hold that the action of the trial court in striking the petition to vacate was correct.

Judgment affirmed. Exc. Order see journal.

SKEEL, PJ, HURD, J, concur.


author: By MILLER, PJ. By HORNBECK, J.

text:
    NAGY, Plaintiff, v. ALVIS, Defendant.
    Ohio Appeals, Second District, Franklin County.
    No. 4283.
    Decided June 1, 1949.

      Cecile Shapiro, Columbus, for plaintiff.
    Hon. Herbert S. Duffy, Atty. Geni., Walter R. Hill, Asst. Atty. Geni., Columbus, for defendant.
   OPINION

By MILLER, PJ.

This action comes before the Court upon a writ of habeas corpus upon the petition of John G. Nagy. The record discloses that the plaintiff is in the custody of Ralph Alvis, Warden of the Ohio State Penitentiary, having been committed under authority of a sentence by the Common Pleas Court of Cuyahoga County, to serve a sentence of one to twenty years for automobile stealing. Prior to this conviction the plaintiff had been arrested and convicted in the State of New York, having been released on parole. On April 18, 1949, he was paroled from the Ohio State Penitentiary the same to become effective when called for by the authorities of the State of New York which had issued and served upon the defendant a warrant for Nagy’s arrest as a parole violator from that State. The warrant was issued under the provisions of the “Compact for Mutual Assistance” between the several states and which is defined by §108-1 GC.

The plaintiff is contending that he has served his full sentence under the laws of the State of New York and therefore cannot be a parole violator; that the facts set forth in the warrant are not true. The defendant is contending that the warrant as issued for the retaking of the plaintiff is sufficient authority for the state of New York to retake him as a parole violator. In other words, the question as to whether or not he is a parole violator is one which must be decided by the State of New York and is not subject to review in Ohio. The defendant’s views seem to be well supported by §108-1 GC, which provides:

“The governor of this state is hereby authorized and directed to execute a compact on behalf of the state of Ohio with any of the United States legally joining therein in the form substantially as follows:

“A compact entered into by and among the contracting states, signatories hereto, with the consent of the Congress of the United States of America, granted by an act entitled ‘An Act Granting the Consent .of Congress to any two or more States to enter into Agreements or Compacts for Cooperative Effort and Mutual Assistance in the Prevention of Crime and for other purposes’, passed June 6, 1934. (48 Stat. 909.)

“The contracting states solemnly agree:

“3. That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving state: * * (Emphasis ours.)

It will be noted that the statute provides that the decision of the sending state shall be conclusive upon and not reviewable within the receiving state. This clearly deprives the courts of this state of- jurisdiction to inquire into the matters set forth in the warrant. The plaintiff can only be heard on this subject in the courts of New York. This -is a question of first impression in this state and plaintiff cites no authorities to support his views. The record discloses that all the requirements of §108-1 GC have been met by the state of New York, and it is therefore entitled to the custody of the plaintiff. The application will be denied.

WISEMAN, J, concurs.

CONCURRING OPINION

By HORNBECK, J.

I concur in the judgment with my associates, but upon a somewhat different theory.

I am in agreement with the claim of the plaintiff that if the plaintiff is not on parole from New York State, then the Compact for Mutual Assistance, §108-1 GC, has no application, and if the plaintiff has served the full period of his sentence, then he is not amenable to any condition of parole. The act assures to the officer from the sending state that no question affecting violation of the terms of the parole shall be adjudicated in any other state than the state from which the parolee has been committed. No such claim is made here, the basic contention being that the plaintiff has fully served his sentence and therefore may not be considered as ‘“any person on probation or parole”.

But the action seeks an order of this court against the Warden of the Ohio State Penitentiary and the Sheriff of Franklin County, removing the right of custody of the plaintiff from both of them. It does not clearly appear that, under the conditions of the release by the state of Ohio to the state of New York, if satisfactory arrangement be not made for the prisoner’s return to New York, the release of the plaintiff would be effective. In this situation the relief prayed cannot be granted even though we would hold that plaintiff may not be returned to New York on the warrant for his arrest.


author: By PHILLIPS, J.

text:
    McCUEN, Plaintiff-Appellant, v. EAST LIVERPOOL BUS TERMINAL CORP., Defendant-Appellee.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 664.
    Decided 1949.
    Ben H. Berman, East Liverpool, for plaintiff-appellant.
    Tobin '& Tobin, East Liverpool, for defendant-appellee.
   OPINION

By PHILLIPS, J.

Plaintiff appeals on questions of law from a judgment of the court of common pleas entered upon a verdict directed for defendant, a corporation, in her action filed therein to recover damages from it for injuries sustained when she stepped on “a kind of hoop”, “about ten inches” in diameter, about “1/4 of an inch thick”, about “as thick as the lead in a pencil”, allegedly laying in a terminal operated by defendant, after she alighted from a bus unloaded therein as she testified, but as the driver thereof testified on a public highway of the city of East Liverpool adjacent thereto, about 11:30 o’clock on the night of May 10, 1946, and had walked a short distance, “fifteen feet 1 recon”, along the “sidewalk” thereof, where “there is no question you could see”, and where and at which time she was walking fast.

Plaintiff charged defendant with negligence in failing to light its terminal so that she could see obstacles laying in her path; in permitting debris, among which was the “hoop” over which she allegedly fell, to accumulate and remain on and across the sidewalk and platform of its terminal in excess of an hour; in failing to remove such hoop and debris, and to notify her of its presence when it well knew or in the exercise of ordinary care it should have known it was laying there; although she never notified defendant, its agents, servants nor employees, that she had fallen.

Plaintiff claims that “the court erred as a matter of law in directing said verdict”, which she contends “is against the manifest weight of the evidence” and “contrary to law” and “based upon an erroneous conclusion of law, not sustained by the law nor the evidence”, and contends that there are “other matters of law and evidence appearing on the record” in which the trial judge erred to her prejudice; and by brief states that “concisely the question involved in this case is was the object over which plaintiff fell there a sufficient length of time for the defendant, in the exercise of due care, to have had notice of its presence, and, being under the duty to keep the premises in a reasonably safe condition, had time to remove it?”

At the conclusion of counsel’s argument on defendant’s motion to direct a verdict the trial judge said:—

“1 will say this to you that if 1 overrule this motion, I think in all probability that if the plaintiff gets a verdict I will set it aside. I think 1 will let the choice up to you whether you want me to sustain it now or overrule it and then take the very almost certain chance that if you get a verdict 1 will set it aside.

“So that I make myself clear, I do feel that 1 should direct a verdict for the defendant in this case but there is always some doubt in the court’s mind in taking a case from the jury and directing a verdict and for that reason I did give the plaintiff her choice of proceeding with the case or accepting a directed verdict at this time. If I proceed with the case and the evidence is not changed in this regard, I feel that even if the plaintiff got a verdict I would be compelled to set it aside. Of course, if there should be some change in the evidence when the defendant puts on its evidence, or on cross-examination there should be something that would show a lack of care on the part of the defendant and a verdict is given to the plaintiff, if it can be sustained on the evidence, naturally it would not be set aside, but 1 feel that there has been a failure of proof on that particular point.”

Counsel for plaintiff declined to make any choice, and stated that the matter should be determined by the court. Whereupon the trial judge recalled the jury and directed a verdict in defendant’s favor as stated supra.

We have read the reasonably lengthy bill of exceptions submitted to us for review, and while the evidence, which need not be recited further, is in conflict as to whether plaintiff fell in defendant’s terminal or in an alley or public highway off its premises, which presented a jury question on that issue, yet concluding as we do that plaintiff proved no negligence of defendant in permitting such hoop to be and remain in its terminal at the place designated or elsewhere, and find no evidence of any negligence on the part of defendant nor any of its agents, servants nor employees, in any of the respects charged by plaintiff, we conclude that the trial judge did not err in failing to submit, plaintiff’s case to the jury.

In our opinion reasonable minds could arrive at no conclusion from the evidence contained in the bill of exceptions but that defendant nor no agent, servant nor employee of defendant owned, controlled, dropped nor placed that hoop where she said she stumbled and fell over it, nor any other place, or ever saw it prior to the time plaintiff allegedly fell over it; and that if some person other than such defendant corporation, its agents, servants or employees dropped or placed it there that such agents, servants or employees were notified and thereafter failed to remove it before she fell as she alleged; nor that such hoop was where she said it was for a sufficient period of time to charge defendant with knowledge of its existence, and failure to remove it.

In our opinion the jury would have had to deal in unwarranted inferences to return a verdict for plaintiff if the case had been submitted to if by the trial court. See Sherlock, Appellee, v. The Strouss-Hirshberg Co., Appellant, 132 Oh St 35, for a discussion of inferences.

We find no error prejudicial to plaintiff in any of the respects urged by plaintiff stated supra upon which we pass.

Plaintiff has not called our attention to “other matters of law and evidence appearing on the record” which operated to her prejudice and to comply in respect thereto with the provisions of Rule VII of this court that their 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 question arose, together with a statement of the authorities relied upon. Accordingly, we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

CARTER, PJ, NICHOLS, J, concur in judgment.


author: By THE COURT.

text:
    FARRAND, Plaintiff-Appellant, v. STATE MEDICAL BOARD, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4031.
    Decided July 5, 1949.

      Joseph W. Adkins, Jr., Cireleville, Collis Gundy Lane, Richard Huggard, Columbus, for plaintiff-appellant.
    Herbert S. Duffy, Atty. Geni., Joseph F. Ford, Asst. Atty. Geni., Columbus, for defendant-appellee. <
   OPINION

By THE COURT.

Submitted on motion by the appellant seeking an order setting down for hearing and to proceed with the determination of the undecided assignments of error in this case in accordance with the mandate of the Supreme Court of Ohio entered on March 23, 1949. The record discloses that the judgment of this court was reversed as to our ruling on the first assignment of error and the case was remanded to us for consideration of the other errors assigned and not passed upon. The application for a further oral hearing will be denied as one hearing has been given the appellant on all of the other assigned errors.

The appellant further moves the court for an order granting leave to file a supplemental brief raising the question that §154-73 GC is in violation of the Fourteenth Amendment to the Constitution of the United States. The appellant is raising this question in view of the decision of the Supreme Court in this case. In other words, the appellant is asking this court to determine the constitutionality of a decision of the Supreme Court of Ohio. We are of the opinion that this question should have been urged in the Supreme Court and should not be considered here. This motion will be overruled.

The remaining errors assigned all relate to the sufficiency of the evidence to support the ruling of the State Medical Board. On this question we find the evidence submitted to the Board was competent and relevant to the issues and was sufficient to warrant the conclusions therein announced. We find no further error in the record and the judgment is affirmed.

MILLER, PJ, and WISEMAN, J, concur.

HORNBECK, J, concurs in judgment.


author: By MILLER, PJ.

text:
    STATE, ex rel. DREXEL, Plaintiff, v. ALVIS, Defendant.
    Ohio Appeals, Second District, Franklin County.
    No. 4268.
    Decided July 20, 1949.
    Hon. Herbert S. Duffy, Atty. Geni., Walter R. Hill, Assist. Atty. Geni., Columbus, for defendant.
   OPINION

By MILLER, PJ.

This is an application for a writ of habeas corpus. The record discloses that on September 17, 1946, the plaintiff was sentenced to the Ohio State Penitentiary for a term of from one to fifteen years on a charge of burglary. This conviction being his third made him subject to the penalty prescribed by the habitual criminal act, §13744-1, -3 GC. He was later indicted under the terms of this section, convicted and sentenced on October 23, 1946, to a term of fifteen years in the Ohio State Penitentiary. Sec. 13744-3 GC provides that upon conviction under this section the previous sentence shall be vacated. This was not done and the plaintiff is now serving in the Ohio Penitentiary under both sentences. The plaintiff is urging that this constitutes double jeopardy and therefore the second conviction is illegal.

Granting for the purposes of argument, but not deciding, that the plaintiff is correct in his contention, the plaintiff is still not entitled to his release as he is lawfully committed under the burglary conviction of September 17, 1946. He is, therefore, not being illegally restrained of his liberty and is not entitled to the relief sought. However, in fairness to this plaintiff, we are of the opinion that the record should be corrected and the same will no doubt be done upon proper application to the trial court.

The application is denied.

HORNBECK and WISEMAN, JJ, concur.


text:
    STATE, ex rel. TUCKER, Plaintiff, v. ALVIS, Defendant.
    Ohio Appeals, Second District, Franklin County.
    No. 4282.
    Decided July 6, 1949.
    Hon. Herbert S. Duffy, Atty. Geni., Walter R. Hill, Asst. Atty. Geni., Columbus, for defendant.
   OPINION

By THE COURT.

This is an application for a writ of habeas corpus. The record discloses that on the 24th day of April, A. D. 1946, the plaintiff was found guilty of murder in the first degree with a recommendation of mercy. The ground relied upon by the plaintiff for the relief sought is that none of the witnesses who testified against him at the trial was sworn. , The plaintiff testified that during the course of the trial his counsel questioned whether or not the witnesses had been sworn and the prosecutor answered in the affirmative. The plaintiff now insists, however, that none of the witnesses was sworn and for this reason he was denied due process of law and that he is entitled to his release. When .a defect such as alleged here is known at the time, the defect must be taken advantage of at once and the failure to do so is such acquiescence in the -testimony as will preclude objection after the verdict. See 28 R. C. L. Section 177, page 585. Since the ground upon which the relief is sought is inadequate it will not be necessary for us to pass upon the truth of the charge made.

The application will be denied.

MILLER, PJ, HORNBECK and WISEMAN, JJ, concur


author: By SKEEL, J.

text:
    DAVIS, Plaintiff-Appellee, v. HARPER, et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21129.
    Decided April 18, 1949.
    Harvey E. Elliott, Cleveland, for plaintiff-appellee.
    C. A. Wilmot, Chardon, Green, Woods, Lausche & Wilmot, Cleveland, for defendants-appellants.
   OPINION

By SKEEL, J.

This cause comes to this court on questions of law from a judgment and decree of the common pleas court. The action began as one in foreclosure wherein the plaintiff executrix sought judgment on a promissory note of the defendant, Ida Harper, and to cause the sale of defendant’s property upon which the plaintiff held a mortgage so that the proceeds of such sale could be used to liquidate such judgment.

This appeal, however, was brought by the defendant, Ida Harper, to reverse that part of the decree in which the court finds for the defendant Jackson, upon his cross-petition wherein he seeks to set aside an agreement of settlement of a judgment held by him against the defendant, Ida Harper, it being alleged that the said defendant, Ida Harper, induced such settlement for less than the full value of the judgment by falsely representing that the mortgage lien against her property held by Davis was a valid and prior lien to this defendant Jackson’s judgment lien when in truth such mortgage lien was given to defraud the creditors of Ida Harper.

The date of the execution and delivery of this note and mortgage to Davis was December 9, 1939.

The defendant, Ida Harper, by answer admitted the delivery of the note and mortgage to William J. Davis, now deceased, but alleges that there was no consideration given for the note and that said note and mortgage was delivered to the deceased by the defendant so that other creditors would not attempt to subject such property to the payment of their claims and when the danger of having such property subjected to the payment of her debts had passed he would cancel the mortgage and return the note.

An examinsftion of the evidence conclusively sustains the contention of the defendant, Ida Harper, upon this issue and the court by its decree ordered the mortgage cancelled of record and entered judgment for this defendant on the note.

There was one other judgment lien against the property of Ida Harper which was held by defendant, Carolyn Morrow as assignee of a judgment in favor of defendant Ralph T. Alger which judgment became dormant on August 5, 1944.

The dates upon which these obligations became record liens on the defendant, Ida Harper’s property was as follows:

Alger judgment for $4,299.66, subsequently assigned to Carolyn Morrow — Aug. 1, 1939.

Mortgage lien of mortgage signed by defendant, Ida Harper, to William J. Davis for $4,575.00 recorded December 12, 1939.

Judgment lien of judgment of Herbert E. Pelton for the sum of $4,060.00 in the common pleas court of Geauga County April 11, 1940 and filed as a judgment lien in Cuyahoga County on May 16, 1940 which judgment was thereafter assigned to the defendant Everett Jackson.

It being conceded that the Davis mortgage was given without consideration for the pretended purpose of protecting the defendant, Ida Harper, against executing creditors, such circumstance would constitute a fraud upon any creditor who was induced to settle his claim against her for less than the true amount of the debt, who relied upon such mortgage as truthfully affecting her financial ability to pay. It is the contention of the defendant, Ida Harper, that the defendant Everett Jackson and his attorney knew that the Davis mortgage was void for want of consideration at the time the compromise of defendant Jackson’s judgment on June 6, 1944. This claim is denied by Jackson and his lawyer, Mr. Wilmot. It therefore becomes a question of fact as to whether or not the defendant Jackson knew or through his attorney is' charged with knowledge of the fact that the Davis mortgage was void at the time he compromised his claim against Ida Harper.

The trial court concluded that they did not have notice of such fact and that such compromise was therefore induced by fraud. We cannot say that such finding is manifestly against the weight of the evidence.

For the foregoing reasons the judgment and decree of the trial court is affirmed. Exc. Order See Journal.

MORGAN, PJ, HURD, J, concur.


author: By McNAMEE, J: SKEEL, PJ

text:
    BENES, Plaintiff-Appellant, v. HICKOX BLDG. CO., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21340.
    Decided October 17, 1949.
    J. J Tetlow, W. J. Tetlow, Cleveland, for plaintiff-appellant.
    Krueger, Gorman & Davis, Cleveland, for defendant-appellee.
   OPINION

By McNAMEE, J:

The parties will be referred to as they appeared in the common pleas court.

This is an appeal on questions of law from a judgment of the common pleas court in favor of the defendant, entered at the close of plaintiff’s evidence._ Six assignments of error have been filed but a determination of the principal issue, whether the trial court erred in holding that plaintiff failed to establish a prima facie case for damages for breach of contract, will be dispositive of this appeal.

Plaintiff’s suit is for loss of profits claimed to have been occasioned by the defendant’s alleged wrongful repudiation of a building contract after the plaintiff had commenced work thereunder. The facts essential to an understanding of the decision herein reached, are:

Plaintiff is a building contractor; defendant is the owner of premises located at the northwest corner of Euclid Avenue and East Ninth Street in the City of Cleveland upon which formerly was situated the Hickox Building. At the time the contract between plaintiff and defendant was executed, and pursuant to the terms of a long term lease between the defendant as lessor and Bond Stores Inc., (hereinafter referred to as “Bond”) as lessee, the Hickox Building was being razed to permit the construction of a commercial building specially adapted for the use and occupancy of Bond. By the terms of the lease the defendant and Bond each were to bear a portion of the cost of the construction of the new building. On March 22, 1946, plaintiff and defendant entered into a written contract for the construction of the commercial building in question. The contract which was prepared and drafted by defendant, provides that plaintiff as contractor “shall furnish all necessary labor and materials required to perform and shall perform all of the work shown on the drawings entitled ‘Building for Bond Stores, Inc., Euclid Avenue and East 9th Street, Cleveland, Ohio’ (except such portions of the work as arc specifically excepted from the scope of this contract by the provisions of Section 1 of Article I thereof) as prepared by Walker & Weeks, Architects, hereinafter called the ‘Architect’ whose address is 1240 Huron E.oad, Cleveland, Ohio.”

The items specifically excepted from the scope of the contract are:

1. Plumbing work

2. Heating and Air Conditioning work

3. Electrical work

4. Elevators

5. Pneumatic tube system

6. Sprinkler system

The defendant, however, reserved the right to include any part or all of these excepted items within the scope of the work to be performed by the contractor. It was further provided that in no event was the contract to include:

(a) The demolition of the existing structure known as The Hickox Building

(b) Furnishing of the structural steel

(c) Furnishing and installation of the store fixtures and equipment.

Article II of the Contract under the caption “Commencement of the Work and Time for Completion thereof” provides in part as follows:

“The Contractor shall commence work on the foundations at once and shall proceed with the same as rapidly as permitted by the progress of the work of demolition of the Hickox Building. The Contractor shall commence the balance of the work covered by this Contract forthwith upon the approval of this Contract by Bond, and the deposit with the Disbursing Agent, in accordance with the provisions of Section 3 of Article I of the aforesaid lease, of the cost of the new building.

All work covered by this Contract shall be completed by the Contractor within one hundred (100) working days after the first delivery by the Owner to the Contractor of structural steel. * *

The provisions for payment to the Contractor are upon a “cost plus” basis. By the terms of the Contract plaintiff was to receive reimbursement for the funds expended by him for the cost of the work, together with a fee for his services. The governing provisions in respect to the contractor’s compensation read:

“Section 1. The owner shall pay the contractor for the performance of this contract, in current funds as .follows:

(a) The cost of the work performed by the contractor hereunder as such cost is defined and restricted by the provisions hereinafter contained in Section 2 of this Article III; and

(b) The Contractor’s fee which shall be Twenty-Five Thousand Dollars ($25,000.00) plus an amount equivalent to Five Percent (5%) of the cost as defined and restricted in Section 2 of this Article III, of such of Items (1) to (8) inclusive, as set forth in Section 1 of Article I hereof, as the Owner, in accordance with the provisions of said Section, causes to be included in the work covered by this Contract; provided, however, in no event shall such additional fee of the Contractor exceed Ten Thousand Dollars ($10,000.00) and provided, further, anything in this Contract to the contrary notwithstanding, if this Contract is not approved by Bond, then the Contractor’s fee shall not exceed Five Percent (5%) of the cost as defined and restricted in Section 2 of this Article of the work performed by the Contractor hereunder.”

At the end of the contract appear the following:

“New York, New York, 1946

The foregoing Contract is hereby approved.

BOND STORES INCORPORATED

By-----------------------”

It does not appear that the contract was approved by Bond.

At the trial, plaintiff introduced the contract in evidence and by his own testimony established that he commenced work on the foundation forthwith. After performing a small part of the foundation work, plaintiff was required to discontinue the same because of danger to workmen, occasioned by the razing of the Hickox Building.

Pursuant to the terms of the contract, plaintiff billed defendant for the cost of the work performed on the foundation, amounting to $161.01 plus five percent or a total of $171.16. This amount was paid by the defendant.

No claim is made that this stoppage of work on the foundation was due to any breach of the contract by plaintiff. Immediately following the suspension of the work on the foundation, plaintiff and the president of the defendant company visited the offices of the Civilian Production Administration where a conference was had in respect of the manner of complying with the regulations of the C. P. A. At that conference, plaintiff was introduced by the president of the defendant company as the “contractor on the job.” Following this .«plaintiff made the necessary calculations and preparations for a resumption of the work. Plaintiff was at all times ready, willing and able to proceed with the work, but defendant denied him access to the premises and refused to permit plaintiff to proceed with the performance of the contract.

On or about July 15, 1946, defendant entered into another contract with The Higley Construction Company for the constructiion of the same building. The building was completed by Higley at a cost of $909,641.44. The sum of $910,000.00 was deposited with the Disbursing Agent. $400,000.00 of this amount was deposited by defendant on July 15, 1946, and the balance of $510,000.00 by Bond at various times during the progress of the construction of the building by Higley.

Bond’s failure to approve the contract is the only reason assigned by defendant for its action in preventing plaintiff from completing the construction of the building. ' Plaintiff claims that the failure of Bond to approve the contract did not impair or defeat his contractual right to construct the building, but merely limited his stipulated fee of $25,000.00 to a sum not in excess of five percent of the cost of the work performed under the contract. He relies upon the contract in its entirety but particularly upon the following language in Section l-(b) of Article III:

“* * * and provided further, anything in this Contract to the contrary notwithstanding, if this Contract is not approved by Bond, then the Contractor’s fee shall not exceed five percent (5%) of the cost as defined and restricted in Section 2 of this Article of the work performed by the Contractor hereunder.”

Defendant also relies in large part upon the same provisions of the contract as justifying its refusal to permit plaintiff to perform the balance of the work, contending that Bond’s non-approval of the contract operated to prevent plaintiff from proceeding further with the work and rendered defendant liable for no more than five percent of the cost of the work actually performed by plaintiff on the foundation. A correct answer to the question — What effect upon the contractual rights of the parties resulted from Bond’s failure to approve the contract? — will resolve the issue here presented.

The cardinal rule of construction of written cbntracts is. to ascertain the intention of the parties from a consideration of the language used by them. 9 O. Jur. 393, Sec. 170.

Words in a written contract are to be interpreted according to their ordinary, common and usual meaning. 9 O. Jur. 395, Sec. 172.

As stated by the Supreme Court in Cincinnati S & C. R. Co. v. Indiana B & W. R. Co. 44 Oh St 287:

“In construing a written agreement in which the parties claim the words and expressions contain their true intent and meaning, and there is no claim of fraud or mistake, there should be given to each word and expression that plain and obvious meaning which the context and the whole instrument require to make each part consistent with the whole and which will secure and carry into effect the object of the parties.”

The object of the parties to the contract here considered was to secure, within the limitation of time and upon the terms therein set forth, the construction of a large commercial building designed and adapted to the use and purposes of Bond. The contract bears the marks of expert draftsmanship. It is notable for its clarity and preciseness of expression. Exceptions, reservations and provisos therein are set forth in clear and unambiguous terms. This is true also in respect of those provisions that declare the effect of the contingency of Bond’s non-approval of the contract.

In the body of the contract there are but two references to its approval by Bond. In Article II, the approval of the contract by Bond and the deposit with the Disbursing Agent of the cost of the building are events fixing the time of the commencement of the “balance of the work” by the contractor. Nowhere in the contract is it expressly provided that Bond’s approval thereof is a prerequisite to the effectiveness of the contract. Indeed any such provision would be inconsistent with the requirement that the contractor was to commence work on the foundation “at once.” Nor may the language of Article II fairly be construed as meaning that Bond’s approval of the contract was a condition precedent to plaintiff’s performance of the “balance of the work.” The absence of any prohibition against commencing the “balance of the work” — or the construction of the superstructure— prior to Bond’s approval forbids such a construction. The evidence discloses that after a long period of negotiation the parties entered into a contract providing that plaintiff, with stated exceptions and reservations, was to do all the work necessary to construct a complete building costing hundreds of thousands of dollars. To suppose, that without Bond’s approval, this contract was effective only as to the foundation work, is an unreasonable assumption, entirely at variance with the expressed intent of the parties. Nor can it fairly be implied that Bond’s approval was a condition precedent to the- contractor’s right to perform “the balance of the work.” Any such presumed implication is completely negatived by the provisions in Article III of the contract which explicitly spell out the effect of Bond’s failure to approve the contract as merely limiting the contractor’s fee to an amount not to exceed five percent of the cost of the work performed by the contractor thereunder.

Defendant’s argument that in the event of Bond’s non-approval of the contract plaintiff was not to proceed with the balance of the work, and that in such event plaintiff’s compensation was limited to five percent of the cost of the work done on the foundation, is in conflict with the express terms of Article III of the contract.

The first sentence of Article III reads:

“The Owner shall pay the Contractor FOR THE PERFORMANCE OF THIS CONTRACT in current funds as follows: * * (Emphasis ours.)

Section 1-(a) of Article III provides for payment to the contractor of the cost of the work performed thereunder. Section l-(b) of Article III fixes the fee to be paid the contractor in the definite amount of $25,000.00; then follows the proviso that if any or all of the excepted items are included in the contract by the owner, the contractor shall receive an additional fee of five percent, which in no event is to exceed $10,000.00. The balance of Section 1-(b) of Article III is addressed to the contingency of Bond’s failure to approve the contract and the effect of such event upon the contractor’s fee. Nothing therein contained suggests that the parties intended to terminate their contractual relationship if Bond did not approve the contract.

The words “anything in this contract to the contrary notwithstanding” and the phrase “then the contractor’s fee shall not exceed five percent (5%) of the cost * * * of the work performed hereunder * * *” relate to and are a limitation upon the stipulated fee of $25,000.00 which was to be paid in the event Bond approved the contract. These' clauses, together with the other language contained in Section 1-(b) of Article III elaborate the general obligation of the-defendant to pay the contractor for “THE PERFORMANCE' OF THIS CONTRACT.” (Emphasis ours.)

In the absence of qualifying language indicating a contrary intent, the words “work performed by the contractor hereunder” as used in connection with the amount of the-contractor’s fee in the event of Bond’s non-approval, must be considered as having the same significance as the identical words appearing in that part of Article III which relate to the payment of the cost of the construction. In both instances, the words “work performed’ are to be considered in the sense of work done in PERFORMANCE OF THE CONTRACT. They cannot fairly be considered as referring merely to work actually done by the contractor on the foundation.

It clearly appears that the parties intended the contractor’s fee of $25,000.00 to be subject to Bond’s approval. This was a just and reasonable requirement, entirely consistent with the object of the contract. Bond was to bear a substantial, if not the greater part, of the cost of the building which presumably included the contractor’s fee. It was, therefore, but fair that Bond, although not a party to the contract, should have the right to approve the. payment of the stipulated fee of $25,000.00, or by withholding its approval, to limit the amount of that fee to a sum not to exceed five percent of the cost of the work performed under the contract. We find no language in the contract reasonably susceptible of* the construction that Bond’s failure to approve the contract was to have any other effect.

The foregoing conclusions are based upon a consideration of the language of the contract without reference to ’ the terms of the lease which are not in evidence. Whether upon a consideration of the pertinent provisions of the lease the effect of Bond’s failure to approve the contract may be found to be otherwise than now appears from an examination of the contract alone, cannot here be determined but upon the evidence in the record we are required to hold that the trial court erred in granting defendant’s motion for judgment at the close of plaintiff’s case.

Finding the contract to be free of ambiguity it is unnecessary to apply the subsidiary rule of construction of written contracts holding that a contract is to be construed most strongly against the party who prepared and drafted it, and for the same reason there is no occasion to rely upon the application of the firmly established rule of procedural law "that upon motion for judgment at the close of plaintiff’s case the evidence must be considered in the light most .favorable to the plaintiff.

It is suggested that plaintiff failed to prove damages and that in asking for $45,000.00 he is in effect claiming a greater amount for not doing the work than he would have received had he performed the contract including the excepted items. In the latter event his fee would not have exceeded $35,000.00. The fact that plaintiff may have prayed for an excessive amount of damages does not constitute adequate warrant for entering judgment against him.

This is an action for loss of profits arising from the defendant’s alleged breach of contract. The rule of damages that governs in such cases is stated in the recent case of Allen, Heaton & McDonald Inc., v. Castle Farm Amusement Co. 151 Oh St 522 (decided June 15, 1949) wherein the Supreme Court held:

«* * * such damages may include the further compensation plaintiff would have received under the contract if it' had been performed less the value to plaintiff of his being relieved of the obligation of completing performance. (James v. Allen County, 44 Oh St 226 approved and followed.)” (Part of syllabus 1.)

And in paragraph 3 of the syllabus of the cited case, the court said:

“3. In such a case plaintiff has the burden of alleging and proving not only (a) what he would have received under the contract from the performance so prevented, but also (b) what such performance would have cost him (or the value to him of relief therefrom).

Unless he proves both of these facts, he cannot recover as damages the profits he would have earned from full performance of the contract:”

Plaintiff testified in substance that being relieved of the performance of the contract had no value to him. Also he attempted to establish that a portion of his general office expense properly was chargeable against the performance of the contract but was prevented from introducing such evidence by the trial court. The evidence submitted and proffered by plaintiff in this regard conformed to the rules laid down in Allen, Heaton & McDonald Inc. v. Castle Farm Amusement Co. Inc. supra.

Also it is argued that plaintiff’s testimony on the subject, of damages is incredible and unworthy of belief. This argument relates to the weight of the evidence which is not involved in- this appeal. Whether plaintiff was entitled to-nominal damages or an award in a substantial sum is not a matter for determination here.

For the reasons stated, the judgment of the common pleas court is reversed and the cause remanded for further proceedings according to law. Exceptions. Order see journal..

HURD, J, concurs.

SKEEL, PJ, dissents (see dissenting opinion).

SKEEL, PJ

(DISSENTING):

The action of the plaintiff is one based upon a contract between the parties under which plaintiff was to act as general contractor in building a “Building for Bond Stores-Inc. at Euclid Avenue and East 9th Street, Cleveland, Ohio.’” The contract provides in part:

“In general, the work covered by the contract contemplates, a completed building, ready for use by Bond Stores Inc., hereinafter called ‘Bond’ as lessee of the owner under a certain indenture of lease dated as of June 1, 1944, and hereinafter called the ‘Lease’ but in no event shall the work covered by. this contract include the following items: * *

Then follow the items excluded from the operation of the-contract which included the demolition of the building then on the property, the purchase and execution of the steel work and the installation of the store fixtures. With regard to-the following six items the owner reserved the right to procure proposals and could include or withhold such work, within or outside of the contract. Such items were:

1. Plumbing

2. Heating and Air Conditioning work

3. Electrical work

4. Elevators (2) and sidewalk lift

5. Pneumatic tube system

6. Sprinkler system.

The building was to be built in accord with plans and specifications prepared by the Architect and approved by the parties which specifications and plans were made a part •of the record.

The contract then provides:

“The Contractor shall commence work on the foundation at once and shall proceed with the same as rapidly as permitted by the progress of the work of demolition of the Hiekox Building. The Contractor shall commence the balance of the work covered by this Contract forthwith upon the approval of this contract by Bond and the deposit with the Disbursing Agent in accordance with the provisions of Sec. 3 of Article I of the aforesaid Lease, of the cost of the new building * * *.”

Article 3 Section I of the Contract, entitled “The Contract Sum” then provides:

“(a) The cost of the work performed by the Contractor hereunder as such cost is defined and restricted by the provisions hereinafter contained in Section 2 of this Articlle III; and

(b) The Contractor’s fee which shall be Twenty-Five Thousand Dollars ($25,000.00) plus an amount equivalent to five percent (5%) of the cost as defined and restricted in Section 2 of this Article III, of such of items (1) to (6) inclusive, as set forth in Section 1 of Article I hereof, as the owner, in accordance with the provisions of said section, causes to be included in the work covered by this Contract: provided, however, in no event shall such additional fee of the Contractor exceed Ten Thousand Dollars ($10,000.00) and provided further, anything in this Contract to the contrary notwithstanding if this Contract is not approved by Bond, then the contractor’s fee shall not exceed five percent (5%) of the cost as defined and restricted in Section 2 of this Article of the work performed by the Contractor hereunder.”

The plaintiff alleges that the defendant refused to permit him to carry out his obligations under the contract, whereby he was damaged in the sum of $45,000.00 which he alleges to be the fair value of his profit, benefits and rights under said contract.

The plaintiff also testified in substance that if he had been permitted to carry out his part of the contract he would have been put to no expense that was not otherwise incurred by him and that the time that would have been consumed would not have interfered with any other work he either did or could have done and that the damage suffered would therefore be five percent of the total cost of the building. There was no other evidence on the subject of damages.

The record shows that Bond’s did not approve the contract and that the building was actually built by another contractor, except for the footages that were constructed by the plaintiff for which he was paid at the contract rate. The evidence also shows that the total cost of the building was $909,641.44 which included $70,707.96 expended for steel construction.

The plaintiff’s claims of error are as follows:

Í. The finding, judgment, ruling and decree of the trial court is contrary to and against the manifest weight of the evidence.

2. The finding, judgment, ruling and decree of the trial court is not sustained by sufficient evidence.

3. The sustaining of defendant’s motion at the conclusion of plaintiff’s testimony and dismissing plaintiff’s- amended petition was against the weight of the evidencé and is. contrary to law.

It was an essential part of plaintiff’s case that he produce the contract upon which his claim was based. The provisions, which are determinative of the issues presented to the trial court have been above set forth.

It is true as argued by plaintiff that the contract contemplated a completed building. But it is equally true that the-building was to be constructed for a special purpose and for a particular lessee, Bond Stores Inc. Before the plaintiff was granted the right to perform the major part of the work contemplated by the contract, the contract required the approval of “Bonds.” The provision as above quoted clearly provided under Article III is:

“* * * and provided further, anything in this contract,, to the contrary notwithstanding, if this contract is not approved by Bonds, then the Contractor’s fee shall not exceed five percent (5%) of the cost as defined and restricted in Section 2 of this Article of the work performed by the Contractor hereunder.”

Until therefore “Bond” had approved the contract the only-work which he was called upon to do was with regard to the foundation for which he was to be paid the cost of the materials and labor, plus five percent. The plaintiff’s own. evidence, taken in its most favorable light, in supporting the issues contended for, by the plaintiff, shows clearly that under the facts as thus established he was not entitled to recover.

One other question is presented, and that is whether there is any evidence of damage which, if our interpretation of the contract be not correct would entitle plaintiff to recover more than nominal damages.

The plaintiff’s evidence is that even if the building had been constructed by him, no duties were imposed upon him that require the expenditure of money or create costs which would be saved if he did not do the work and that his time would not have been engáged sufficiently if the work had been done that would have in any way interfered with his doing any other work of the same kind during the period of construction.

It is inconceivable that these statements could possibly be true. To say that a contractor could build a $900,000.00 building within a period of 100 working days without expense or cost to him, that could not be avoided if he did not do the work, or. that his own time for which he was to be paid up to $35,000.00 if he did the work, would not consume time that could otherwise be gainfully employed if he did not do the work, just is not worthy of belief and should be entirely disregarded.

In the case of Black v. City of Berea, 137 Oh St 611 at pages 626-7, the supreme court, by Turner, J., quotes with approval from Cyclopedia of Automobile Law and Practice, Vol. 10, page 146 as follows:

“Where facts testified to are opposed to all natural laws and common experience, so that it is inconceivable that any such thing could have occurred, courts will refuse to believe it, on the ground that they will take judicial notice of its incredibility.”

The rule that upon a motion for directed verdict or for judgment at the end of the plaintiff’s case the evidence was to be construed most favorably toward the plaintiff cannot be extended beyond the realm of reason.

For the foregoing reasons the judgment should be affirmed.


author: Per CURIAM.

text:
    VAUGHN, Plaintiff-Appellant, v. VAUGHN, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4284.
    Decided October 13, 1949.
    Coughlin, Ogier & Lloyd, Columbus, for plaintiff-appellant.
    Cowan & Adams, Paul W Martin, Russ Bothwell, Columbus, for defendant-appellee.
   OPINION

Per CURIAM.

Finding no error in the record prejudicial to the appellant, the judgment is affirmed.

See also 54 Abs 563.

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