author: CROW, J.

text:
    LEE v HEMPY
    Ohio Appeals, Third Dist, Seneca Co
    No 203.
    Decided Oct 25, 1929
    Ora R. Wade, Fostoria, for Lee.
    Jean E. Simpson, Forest, for Hempy.
   CROW, J.

No reported case in Ohio, had facts which raised the precise question; but it was held in 3 Ohio Appellate Reports 111, that the husband is not relieved from liability when he and his wife were living separate and apart and there was a written contract wherein it was stipulated that he was released from all claims his wife might have against him for her support and maintenance. The court also said that recovery could be had from either the surviving husband, or from the deceased wife’s estate.

The case in 21 Ohio Decisions, 726, decided that where husband and wife were living separate and apart and an allowance had been made to her of alimony pending suit, recovery could be had from the surviving husband.

It is so well settled as to require no citation of authority that at common law the surviving husband was primarily liable for the funeral expenses of his wife, and such is still the law unless the statute altering the status of women as regards their rights and obligations in respect to property, have abrogated the rule.

This feature was ably treated in 3 Ohio Appellate Reports, supra, and it was there decided that no such abrogation had been made. We fully sanction that holding.

The case of McClellan v. Filson, 44 OS. 184, settled the point that the statute directing the payment of funeral expenses may apply to the estate of the deceased wife, though she left a husband surviving, who had property. But the, funeral expense had been incurred by a son who became executor under the will of the deceased wife.

The learned judge who delivered the opinion forcefully discussed the reason underlying the statute and alluded to the. surviving husband’s liability “as between him and the undertaker,” and by other language, recognized the liability of such husband. Although what was said concerning that matter, must be regarded as dictum, inasmuch as the controversy was not between the' undertaker and the husband, it is readily apparent that the writer of the opinion strongly believed that the liability of such husband was primary. Indeed, some doubt was cast on the liability of the wife’s estate, for her funeral expenses in. the absence of special circumstances.

Whether, under facts such as those existing in the case before us, there could be a recovery by the husband from the estate of his wife, after payment by him, we do not discuss, but will merely refer to two cases directly in conflict, namely, 9 N. P (N. S.) 565, affirmed by the Circuit Court on the reasoning in the opinion of the trial court, which judgment of affirmance was affirmed in 82 OS. 403, and the case of Clawson, Administrator v. Briggs, 16 C. C. (N. S.) 225.

We hold that the common law liability of the surviving husband continues to exist, and therefore plaintiff was entitled to the judgment in his favor for the articles and services he furnished for the wife’s burial.

Before Judges Hughes, Justice and Crow.


source: Caselaw Access Project

author: HUGHES, J.

license: Public Domain

text:
    KENTON SAVINGS BK & TRUST CO v SMICK etc
    Ohio Appeals, 3rd Dist, Hardin Co
    No. 216.
    Decided January 6, 1930
    Mr. C. W. Faulkner, Kenton, for Savings Bk & Trust Co.
    Messrs. John H. Smick and Price & Price, Kenton for Smick etc .
   HUGHES, J.

The position taken by defendant is that it had no knowledge of the insolvency of the bankrupt at the time judgment was entered on its note. And that if this be true, the advantage procured by the levy and sale of the property thereafter, would not avoid the preference procured thereby.

It is .conceded in argument that if the defendant had knowledge of the insolvency of the bankrupt at the time this judgment was procured, and knew that by the steps contemplated thereunder it would receive ,a preference over other creditors, then under such circumstances the trustee would be entitled to recover.

The problems suggested: i. e., “that if the defendant had no knowledge of the insolvency of the bankrupt at the time its judgment was taken, then the after-procedings resulting in the sale and procurement of the proceeds of sale on its claim, cannot be avoided”, is not necessary or important to discuss because there was evidence submitted to the court upon the issue of fact as to whether or not the defendant had knowledge of the insolvency of the bankrupt before taking judgment, and was found in favor of the plaintiff.

The case of Dean v. King, 22 OS. 118, 134, applies clearly to this case because there is a square conflict touching this issue of fact, and a reviewing court is not at liberty to disturb a finding under such circumstances.

The witness for the plaintiff testifies positively that about two months before the sale of the property, he informed the defendant through its president, of the insolvent condition of the bankrupt and his effort to induce a creditor to put him into involuntary bankruptcy. The witness for the defendant admits having such a conversation, but says that it was about the time the property was being sold on execution. At page 26 of the record, a question was asked this witness, whether any knowledge came to him which would lead him to believe that the bankrupt was insolvent, to which objection was made and sustained and exceptions saved. But the record does not contain any offered proof, and hence we are not informed what the testimony would have been had it been received, and no error can be founded upon this exception. Motor Corporation v. Winter, 118 OS. 622.

Under these circumstances, it is clear that the judgment must be affirmed.

Before Judges Hughes, Justice and Crow.


author: MIDDLETON, PJ.

text:
    STERN v STATE
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided January 2, 1929
    Mr. A. R. Johnson, Ironton, for Stern.
    Messrs. Lee D. Andrews ana E. E. Corn, Ironton, for State.
   MIDDLETON, PJ.

The interpretation of the statute in question has been so definitely made by the Supreme Court in the case of Richards v. State, 110 OS. 311, that its scope and effect is no longer a matter of controversy unless a lower court should undertake to overrule the holding of the Supreme Court. The futility of attempting to avoid this opinion and the statute in question, either directly or indirectly, has been fully demonstrated in many reported cases in this state.

It is contended in the instant case that the exhibition in question was solely a musical entertainment. The evidence wholly fails to show that it was exclusively and entirely an entertainment of that kind or that it could fairly be said that it was intended for anything other than an ordinary moving picture show. While it is true that on page 65 of the record one Roy Murphy, the leader of the orchestra at the exhibition in question, first said that he considered it a musical entertainment he later stated:

“Well, as far as I remember, as far as the entertainment was concerned that was strictly a musical act. I cant say for sure, for I don’t remember”.
On the same page he further stated: “Well, of course, my music was to fit the picture.”
And again:
“My music was arranged to fit the picture.” That’s all I have anything to do with.”

This is the only evidence in the record reflecting on the musical character of the entertainment. On the other hand, the undisputed evidence in the record shows that at the instance of Joseph Stem the following advertisement of an entertainment was made in The Ironton Evening Tribune under date of December 30, 1928:

'“Marlow Theater. Continuous show today. Starts 1:30. Children 20c, adults 50c. ***
Corrinne Griffith in ‘Outcast’ with Edmund Lowe and Louise Fazenda. A First National Picture.
Special stage show. Cygi’s entertainers.”

What was actually shown under this advertisement as it appealed to an ordinary patron of the show was stated by a witness on page 89 of the record as follows:

“Well, I see her in the picture. I' don’t remember much about it, but I see her. One time she was thrown out of the building and lit on the sidewalk, and got up and walked down the street, and there was a sort of a love affair mixed up in it, and if I ain’t mistaken the man she loved got married to another woman, and the show went on ahead something like that.
I don’t just remember every picture or everything I see in it.

Referring to the Cygi entertainment this witness said:

“I don’t know much about the picture, but the vaudeville they had' there it was a neat little vaudeville. It was a farm play. They had farmer boys there, if I ain’t mistaken. Down on the farm, was the name of the vaudeville and it was a very neat little play. That’s just about as near as I can describe it. They had good music and the orchestra. They had dancing and singing, about what they have with the average vaudeville.”
It may be observed that Stem did not testify in the trial nor was any evidence offered in his behalf except as to some advertisements which were not material.
We find that the evidence describes an ordinary picture show with a vaudeville act included, and that there is no evidence whatever to support the contention that the exhibition was exclusively a musical entertainment.
The trial court followed very closely the case of Richards v. State, supra, and charged that a theatrical performance included a dramatic performance. This charge is complained of, but it is strictly in line with the opinion in the Richards case. The special instructions were properly refused. Number three states only an abstract proposition and, as we view the record, had no application to the instant case under the facts in evidence.
We find no error in the record and the judgment must be and is affirmed.

Mauck and Blosser, JJ., concur.


author: ROSS, J.

text:
    FRISCH et v AMMON et
    Ohio Appeals, 1st Dist, Hamilton Co
    No. 3518.
    Decided November 4, 1929
    Messrs. Leonard H. Freiberg and Maurice A. Thon, Cincinnati, for Frisch et.
    Messrs. Walter W. Helmholz and Moulinier, Bettman & Hunt, Cincinnati, for Ammon et.
   ROSS, J.

The statement made by the lienholder in question contained the remark, under the title “Material”, “All material taken out of stock”. The record affirmatively shows, in the cross-examination of the lienholder that material was used upon the job not taken out of stock, furnished by supply houses.

The pertinent portion of 8312 GC, is as follows:

“The original contractor shall x x make out and give to the owner x x x a statement under oath, showing the name of every laborer in his employ who has not been paid in full and also showing the name of every subcontractor in his employ, and of every person furnishing machinery, material or fuel, and giving the .amount if any, which is due or to become due to them, or any of them, for work done, or machinery, matreial or fuel furnished to him, which statement shall be accompanied by a certificate signed by every person furnishing machinery, material or fuel to him, x x x x”.

Under these facts the provisions of section 8312 were not followed, and the lien, under the provisions of that section, providing that no right of action or lien against the owner shall be maintained ufitil the statements were filed as required, was void against the mortgage.

It is claimed that if the material men were paid it is not necessary to list them. We construe the statute otherwise, and as requiring the listing of all persons for furnishing material whether paid or unpaid at the time of furnishing the statement.

For these reasons, the decision of the court of common pleas will be reversed, and there being no dispute as to the evidence, and the question being one purely of law, we hold that the lien of the A. M. ,-Lewin Lumber Company, by virtue of its second mortgage, is held prior to that of the lienholder,' George C. Ammon.

An entry may be presented accordingly.

Cushing, PJ., and Hamilton, J., concur.


text:
    In re MUCHINNIPPI CREEK etc FIRST NAT BK of WAPAKONETA et v WILDERMUTH et
    Ohio Appeals, 3rd Dist, Logan Co
    No 777.
    Decided April 6, 1929
    West & Campbell, George S. Middleton, Dittmer & Timmermeister, Elmer Godwin and A. Jay Miller, all of Bellefontaine, and Otto J. Boesel, Wapakoneta, for plaintiffs in error.
    F. G. Long, Bellefontaine, Mills & Doorley, Sidney and Dow Aiken, Bellefontaine, for defendants in error.

      Before Judges Hughes, Justice and Crow.
   Full Opinion will be published later. Watch Omnibus Index.


author: STRENICK, J.

text:
    LORAIN (City) v PETRALIA
    Municipal Court of Lorain, Ohio
    No. 17277.
    Decided March 21, 1929
    Messrs. Wesley L. Grills and Milton Friedman, Lorain, for City.
    Messrs. Chas. F. Adams and Ralph W. Weimer, Lorain, for Petralia.
   STRENICK, J.

The specific question claimed and .argued by the learned counsel for the defendant, to be at issue in this case, is that Ordinance No. 2780 is in violation and contrary to the powers given to municipalities in 3628 GC. In support of this contention defendant relies principally upon the decision in the case of Brannon vs. Wilmington (City) Ohio Appeals 1st., Dist., Clinton County, and 7 Abs. 136, and State vs. Ramey, Ohio Law Bulletin and Rep., Vol. 28, page 395.

That contention brings us to a decision of three elements: (1) Did the City Council have authority to enact the ordinance in question; (2) If it did have such power, from what authority was it delegated; (3) Is the ordinance in conflict with generál laws of the State and therefore void.

Under the Constitution of 1851 and prior to the amending of the Constitution in 1912 the organization of and government of Cities and Villages was delegated, by the Constitution, to the General Assembly of the State and the power to create Municipal Corporations necessarily implied authority to confer upon them such police powers as was necessary for their internal government and 3628 GC, was passed by the General Assembly of Ohio under authority given it by the constitution of 1851 and prior to its amendment in 1912.

Section 3628 GC reads as follows: “To make the violation of ordinances a misdemeanor, and to provide for the punishment thereof by fine or imprisonment, or both, but such fine shall not exceed Five Hundred Dollars and such imprisonment shall not exced six months”.

Sec. 3, Article XVIII, Ohio Constitution, provides: “Municipalities shall have authority to exercise all powers of local self government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws”.

Thus by virtue of the authority conferred by Sec. 3, Article XVIII, Ohio Constitution, as amended in 1912, Municipalities of the State have police power directly conferred by the people in all matters of local self government, and 3628 GC by the constitutional amendment of 1912 became inoperative and repealed. In support of this contention the Supreme Court has said in the case of Heppel vs. The City of Columbus, 106 OS. 107, the following:

“Broad and comprehensive power has been delegated to municipalities by the provisions of Sec. 3, Article XVIII, of the State Constitution, to adopt and enforce within their limits such local, police, sanitary and other similar regulations as are not in conflict with general laws, and a statute which would deny or abridge that right so conferred by the constitution of the state would be invalid.”

It is the opinion of this Court that under Sec. 3, Article XVIII, of the Ohio Constitution, Municipalities derive no authority from and are subject to no limitations of the General Assembly, in adopting local police, sanitary and other similar regulations, except that such ordinances shall not be in conflict with general laws. This principal has been pronounced by the Ohio Supreme Court in the case of

The Village of Struthers v. Sokol,

The City of Youngstown v. Sandela, 108 OS. 263, also

The City of Fremont v. Keating, 96 OS. 468.

In .answer to the third question presented is there such,, conflict between the City Ordinance and the General Laws of the State as to make the ordinance void?

The penal provisions of the ordinance read as follows:

“Any person who violated the provisions of this ordinance for a first offense shall be fined not less than $100.00 nor more than $1000.00, for ,a second offense he shall be fined not less than $300.00 nor more than $2000.00, for a third offense he shall be fined not less than $500.00 nor more than $2000.00 and be imprisoned in the jail of the City of Lorain for a period of six (6) months.”

It will be observed that this ordinance is almost identical with the Crabbe and Miller Acts with the exception that the State law imposes a much more severe penalty for a third offense. Whether there is a such a conflict as to bring the ordinance within the inhibition of the latter part of Section 3, Article XVIII, we think the court has fully answered that question in the case of the Village of Struthers vs. Sokol, 108 OS. 263, in which the Court said:

“In - determining whether an ordinance *is in conflict with general laws, the test is whether the ordinance permits or licenses that which the state forbids, and vice versa.”
“A police ordinance is not in conflict with a general law upon the same subject merely because certain specific acts are declared unlawful by the ordinance, which acts are not referred to in the general law, or because certain specific acts are omitted in the .ordinance, but referred to in the general law, or because different penalties are provided for the same acts, even though greater penalties are imposed by the Municipal Ordinance.”

We reach the conclusion that the General Assembly of Ohio cannot deprive a municipality of its constitutional rights, Sec. 3628 GC is clearly in violation of Sec. 3, Article XVIII of the Constitution of Ohio and void, and we therefore hold the ordinance valid within the authority conferred, upon municipalities by Sec. 3, Article XVIII of the Constitution of Ohio; that municipalities under the constitution derive no authority from and are subject to no limitations of the General Assembly in adopting local police, sanitary and other similar regulations, except that such ordinances shall not be in conflict with general laws. We further find that there is no such conflict as would make the ordinance void.

Defendant’s demurrer is consequently overruled.

Note: The Municipal Court was sustained in this case in the Court of Common Pleas of Lorain County, in December 1929, by Judge W. B. Thompson, without written opinion.


author: RICHARDS, J;

text:
    WINTERS v INDEMNITY INSURANCE CO OF N AMERICA
    Ohio Appeals, 6th Dist, Lucas Co
    No 2281.
    Decided Feb. 3, 1930
    S. N. Young, Toledo, for Winters.
    Tracy, Chapman & Welles, Toledo for Ins Co.
   RICHARDS, J;

The fact that the entire poicy is attached to the petition and marked as an exhibit, does not permit the court to examine or construe it in passing upon a demurrer to the petition.

Sobocinski vs. Beczkowski, 18 Court of Appeals Opinion, 6th District, unreported n. 181.

As we read the provisions of clause 9, set forth in the petition, the obligation of the defendant under that clause in the event of total and permanent loss of vision was to pay a sum equal to the weekly indemnity for 150 weeks. The petition avers that the defendant did pay to the plaintiff the weekly benefits provided by that clause for the period of one year, which would be 52 weeks, and that the company thereafter paid to the plaintiff in a lump sum the stipulated sum provided in the policy for a period of 98 weeks, thus making it apparent that the company has already paid to the plaintiff the payments provided for by clause 9.

If the defendant paid the stipulated amounts for 52 weeks before they were really due and payable, that certainly would not be to the disadvantage of the plaintiff, and the plaintiff having accepted the same and subsequently accepted the payment covering the remaining 98 weeks —the balance of the 150 — which the company by the provisions of clause 9 was bound to pay, the court is unable to see that he has any further claim so far as is shown by the averments of the petition.

For this reason the judgment is affirmed.

Williams and Lloyd, JJ., concur.


text:
    CINCINNATI BRUSH & MOP MFG CO et v WEBER
    Ohio Appeals, 1st Dist, Hamilton Co
    No. 3513.
    Decided December 9, 1929
    Messrs. S. Bruce Pollard and Clifford E. Frey, Cincinnati, for Brush & Mop Mfg Co et.
    Messrs. Burch, Peters, Geismer & De-Fossett, Cincinnati, for Weber.
   ROSS, J.

Section 8129 GC, provides that every negotiable instrument is deemed prima facie to have been issued for a valuable consideration. Section 8130 GC, provides that value is any consideration sufficient to support a simple contract. There was no evidence introduced by the defendant to meet the presumption of value or any evidence indicating that value, within the meaning of 8130 GC did not exist, but, on the contrary, the evidence showed a promise to perform the work by the payee of the note which promise could be and was the supporting consideration for the note.

There was some question raised as to the negotiability of the instrument, owing to the presence of the words “for unfinished work on bldg.”, appearing on the face of the note. Under 8108 GC, it is provided that: “ An unqualified order or promise to pay is unconditional within the meaning of this chapter, though coupled with: x x x x 2. A statement of the transaction which gives rise to the instrument.” The instrument was, therefore, negotiable, and clothed with all the presumptions accruing to a holder thereof. There being no evidencne introduced to show any infirmity in the inception of the note, or to meet these presumptions, the verdict was properly instructed, and the judgment is affirmed.

Cushing, PJ„ and Hamilton, J., concur.


author: PER CURIAM

text:
    AMERICAN ROLLING MILL CO v BURCH
    Ohio Appeals, 1st Dist, Butler Co
    No. 446.
    Decided December 30, 1929
    Messrs. P. P. Boli, Hamilton, B. F. Harwitz, Middleton, & S. S. Stewart, Columbus, for Rolling-Mill Co.
    Mr. C. W. Elliott, Middleton, for Burch.
   PER CURIAM

Under the law of this state, plaintiff in error was entitled to a trial and a review. The statutes provide the. method of review.

A proceeding in error in law is an action. It is commenced by filing in the court, having jurisdiction to affirm, reverse, or modify the judgment, a petition in error, and causing a summons to issue out of such court and be served on the defendant in error or his attorney, as provided in the statutes.

The burden of causing a summons to be issued is cast upon the plaintiff in error, B. & O. Rd. Co. v. Ambach, 55 Ohio St. 553.

In the case at bar, the petition in error was filed in the Court of Appeals, and the proper precipe was attached to it. The summons was then issued out of the court of common pleas. No authority is cited nor have we been able to find any decided case which authorizes a court to assume jurisdiction of a cause of action or the parties thereto, where the statutory procedure for bringing the action has not been followed. We, therefore, come to the conclusion that the motion to quash the summons in error must be granted.

Cushing, PJ., Ross and Hamilton, JJ., concur.


author: LLOYD, J.

text:
    CASLON CO v REPUBLIC TRUCK & SALES CORP
    Ohio Appeals, 6th Dist, Lucas Co
    No 2278.
    Decided Feb. 10, 1930
    Ritter & Brumback, Toledo, for Caslon Co.
    Marshall, Melhorn, Marlar & Martin, for Truck Co.
   LLOYD, J.

It will be observed that the paintiff denies that the proof of claim filed in the Michigan suit “set up a claim as alleged in the amended answer” and denies that by filing said proof of claim and accepting the pro rata share of the monies distributed in the receivership case, it elected to look solely to the Republic Motor Truck Company, Inc., for payments of its account. In our opinion these affirmations and denials create issues of fact as well as of law and that the court of common pleas erred to the prejudice of plaintiff in error in granting the motion of defendant in error for judgment on the pleadings.

This court must look to the pleadings to determine the issues involved and not to the exhibits attached thereto. The fact that plaintiff in its reply sought to make them part thereof by adding “and made a • part hereof” does not effect this purpose. The exhibits are not such as the code provides may or shall be attached to a pleading. State vs. Collins, 82 Ohio St., 240.

The judgment of the court of common pleas is therefore reversed and the cause remanded with directions to that court to overrule the motion for judgment on the pleadings and for further proceedings according to law.-

Williams and Richards, JJ., concur.


author: RICHARDS, J.

text:
    ELIZABETH HEIM v DEAN HEIM
    Ohio Appeals, 6th Dist, Lucas Co
    No 2249.
    Decided Feb. 3, 1930

      Calkins, Storey & Nye, Toledo, for Elizabeth Heim.
    DeWitt Fisher, Toledo, for Dean Heim.
   RICHARDS, J.

The case seems to have been tried on the theory that she was responsible for her acts until the time she was committed to the asylum and not that she was relieved from responsibility from the time she became insane. This court can not assent to that view. The extreme cruelty, which is a ground for divorce, means voluntary or intentional extreme cruelty and can not be committed by a lunatic who does not understand the nature of her acts. Divorce may,' it is true, be granted as against an insane person, but only for acts committed while sane. Insanity is not a ground for divorce. The ten" causes for which divorce may be granted under the Ohio statute are as explicit as the Ten Commandments and can be changed by the legislature only.

The great weight of the evidence shows that the acts committed by her, of which complaint is made, were committed while she was insane and did not understand what she was doing, and they do not, therefore, constitute a cause for which divorce may be granted.

The judgment is manifestly against the weight of the evidence.

Williams and Lloyd, JJ., concur.


author: BY THE COURT

text:
    SHAHEEN v ANSARA
    Ohio Appeals, 6th Dist, Lucas Co
    No 2274.
    Decided Feb. 3, 1930
    Wm. F. & H. Henry Miller, Toledo, for Shaheen.
    C. J. Applegate and C. A. Hider, Toledo, for Ansara.
   BY THE COURT

No question of importance arises in this case except on the weight of the evidence. So far as the right to recover on the promissory not is concerned, we think the jury was entirely justified in finding that the note was executed and on sufficient consideration and that the amount of it was justly due.

Salem Shaheen had married the sister of Mary Ansara and for many years Mary Ansara lived in the family of her brother-in-law and sister as a member of the family. She assisted generally about the housework. The record discloses no express contract between her and the defendant to pay for board and room rent. It has long been the settled law of Ohio that where a family relationship exists, and the claimant resides with the family as a member thereof, no implied contract will arise to pay for board and room rent, but an express contract must be established by clear and convincing evidence. After Salem Shaheen’s wife died, his sister-in-law, Mary Ansara, was the sole housekeeper and as such received monies which she expended for groceries and general household supplies.

The court cannot say that the verdict and judgment are against the weight of the evidence. We find no error in the ■ record prejudicial to the plaintiff in error.

Williams, Lloyd and Richards, JJ., concur.


author: VICKERY, PJ.

text:
    HIGGINS MANUFACTURING CO v HINIG et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10290.
    Decided Jan 20, 1930
    Messrs. Frank & Graeff for Higgins Mfg. Co.
    Mooney, Hahn, Loeser, Keough & Beam, Cleveland for Hinig et.
   VICKERY, PJ.

That the Higgins Manufacturing Company did go back and do something about the weather stripping and fixed the screens may be true, and it is perhaps true that the owner asked them to come back. But does that show that this was a part of the original contract? Can any house that has been occupied for a period of eighteen months; a new house, escape the ravages of time in settling, and so forth, so that it may not be necessary to readjust the weather stripping, the .screens, doors and window sashes? If the weather stripping was out of place, even though it had been perfect when it was put in and everything was completed, as the evidence shows it was in this case, is it incredible to think that the owner in such a case, knowing who had put in the weather stripping and screens, should call upon the same man to readjust them. Can it be possible that that could be called a part of the original contract?

Now it must be remembered that there there was no contractual relation between The Higgins Manufacturing Company and the owners of this property. . They were simply subcontractors of the general contractor Hinig and Hinig had adjusted and settled with them and had given them a promissory note and had renewed it many times and then, unfortunately for The Higgins Manufacturing Company and perhaps for others, Hinig failed and went into' bankruptcy; and then eighteen months after this house had been accepted and the architect had certified that it was completed and had turned it over to the owners, then because they could not get their money from Hinig, they then go back and do ,a couple hours of work upon which they try to base a lien and compel the owner who has honestly and fairly paid the contractor to again pay the sum of $1100 when the subcontractor apparently trusted his employer, the contractor, fully and entirely; and only after he could not recover from the contractor, he seeks to do a little work on the property to keep his lien alive. If such a condition of things were permitted to exist, no matter how careful the owners of property might be, they could never escape paying for work done and material furnished on property twice or oftener. If this subcontractor could do that sort of thing, every other subcontractor could do it, and even though there had been no attention paid by the subcontractors they could, by going back on some trivial pretext or another, — if the door had sagged, or the weather stripping had got out of order, put it back into place, — revive a lien they might have had, had they taken proper steps.

Now this is in a court of equity and if any persons were ever guilty of laches this record shows the Manufacturing Company was guilty of laches in this case, but the truth of it is they, as they had been dealing with Hinig for a long period of time, had regarded him as perfectly solvent, and one of those- unfortunate circumstances occurred that has ruined many builders and contractors such as a slump in the value and sales of property and the inability of people to buy and pay for real property and the building thereon.

Now it is singular in this case that the Higgins Manufacturing Company had done like work on three or four other big jobs that Hinig had done for other persons and at just about the same time this same man who put in two hours work upon this place, went around to these various other places and did a couple hours of work on each. It looks as though it was done for the purpose of recovering against the owners of the various properties something that they had failed to collect from the contractor with whom they had their contract. The lien law though to protect subcontractors and furnishers of materials, must be strictly complied with, for the whole mechanic’s lien law is in derogation of the contractual rights that the owners of property had under the common law. Under the common law there would be no claim ■ whatever by the materialman against an owner of property who had made a contract with the principal contractor, and it is only by virtue of the statute that he can have any claim and it being in derogation of common law, must be strictly construed.

We do not put much faith in the arguments of the defendant in this action about the affidavit that was filed in this case. We think it substantially complies with the law, but we do think that the evidence clearly shows that all this work that was done, if it was done at all, was done as repair work and not as a part of the original contract. That work had been completed; it had been so stated by the parties and the general contractor. A bill had been rendered by them to the general contractor who had given his notes to pay for it and whatever work was done was simply repairing things which will get out of order around any new home, — or old home either for that matter, — and the wonder is if one can find any house that has been built for eighteen months and occupied where windows and doors or something do not need adjusting, and merely because the owner called in tfie party who put them up does not extend the life of the old contract and make it a part of the original contract. It was simply adjusting and repairing and we think that is all the evidence shows in' this case.

We, therefore, think that the plaintiff was not entitled to maintain a lien against the property of the defendants and a decree may be drawn for the defendants. O. S. J.

Levine, J., concurs. Sullivan, J., not participating.


author: WILLIAMS, J.

text:
    LAWLESS v RABBITT et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2242.
    Decided Jan 13, 1930
    Smith, Baker, Effler & Eastman, Toledo, for Lawless.
    Doyle & Lewis, Toledo, for Rabbitt, et.
   WILLIAMS, J.

It is claimed that the court below erred in striking from plaintiff’s petition the third ground of negligence alleged by the plaintiff, namely, the allegation that defendants were, guilty of negligence in failing to give any warning or notice whatsoever to pedestrians, including the plaintiff, of the presence of said pipe on and along said sidewalk. The petition contained two other alleged grounds of negligence; first, that the defendants were guilty of negligence in permitting said pipe to’ obstruct the free and safe passage of pedestrians and, second, that they were guilty' of negligence in failing to provide a walk or platform over and across said pipe and in failing to erect a suitable barrier around and about said pipe. The plaintiff below excepted to the action of the court in striking out the third ground, but thereupon obtained leave of court to amend his petition and did amend it by erasing therefrom the allegations so stricken out. We do not think the court committed prejudicial error by striking out the matter referred to. There remained in the petition allegations to the effect that the defendants were guilty of negligence in placing the pipe there so as to obstruct passage and in not providing protection therefor. Whether the plaintiff had knowledge or was chargeable with knowledge of the existence of the iron, pipe, was an important inquiry upon the subject of contributory negligence. The tort of the defendants consisted of negligently placing and maintaining the pipe on the sidewalk so as to obstruct it and negligently failing to protect it so that pedestrians would not stumble over it. The tort of the defendants was complete, whether they gave notice of the wrong they had done or not. True, if the defendants had given warning or notice of the dangerous condition to the plaintiff, plaintiff having that knowledge and being conscious of that condition at the very time he approached the pipe and sustained his injury, would be guilty of contributory negligence which woud bar a recovery. On the other hand, if a child of such tender years as to be incapable of being guilty of contributory negligence had been injured by falling over the iron pipe, defendants could not escape legal liability for the tort committed by placing the pipe so as to be a source of danger, even though they also placed there an imposing sign by day and a glowing light by night. The allegation was immaterial and properly stricken from the petition.

At the conclusion of the court’s charge to the jury and just before its retirement, plaintiff’s counsel requested the court to charge the jury as follows:

“Plaintiff in proceeding from the car tracks of Cherry Street to the steps of St. Vincent’s Hospital, had a right to assume, in the absence of knowledge or notice to the contrary, that the way along which he w,as proceeding was reasonably safe for such use by plaintiff.”

The court refused so to charge and the plaintiff excepted.

The impress of the last words of the trial judge upon the mind of the jury is a good deal like the benediction that follows prayer. Having this realization, most judges taper off their charges with directions as to the form of the verdict and the concurrence of the jurors therein, and thus the charge, if otherwise of even tenor, becomes a balanced one. If counsel may reserve a trump card in the shape of a request which he steps forward and asks the court to give at the last moment before the jury retires, he may gain an advantage by having the principle which he seeks to have the jury apply, remain fresh in its mind. The court is not required to give a request to charge submitted after the general charge is complete if the matter has been fully covered by the court, nor is the court required to give it, if not so previously covered, in the laguage requested. In fact,’ the court should employ language of its own, if necessary, in order to state the law ap-r plicable. with fairness to all the parties.

The evidence is undisputed that the plaintiff had no actual knowledge of the existence of the pipe. From the language of the charge requested the jury might infer that the plaintiff, having no such knowledge, might proceed along the passageway and cross the sidewalk, without looking to the extent that ordinary care required, and still recover. This is not the law. Even though he had no knowledge of the existence of the pipe, he is chargeable in law with knowledge thereof, if he should have discovered its existence by the exercise of ordinary care. The charge requested was misleading and the ruling of the court in this connection was in accordance with established principles of law.

It is further claimed that the verdict is manifestly against the weight of the evidence. The jury would have been warranted in finding the defendant was guilty of negligence in placing the pipe where it did and leaving it there in its exposed condition. The plaintiff, however, knew that the repairs were going on and knew that the thoroughfare was more or less bestrewn with rubbish, debris and material, and coupled with this knowledge of the plaintiff was the all-important fact that the injury was sustained in broad daylight and the iron pipe in question was plainly visible. The question of contributory negligence was left to the determination of the jury and we cannot say the verdict is manifestly against the weight of the evidence.

We have examined all questions of law made by the plaintiff in error in his brief and there is no error apparent upon the face of the record prejudicial to the plaintiff in error. The judgment will therefore be affirmed.

Lloyd and Richards, JJ., concur.


author: HAMILTON, J. ,

text:
    ZEIDMAN v DAVIS
    Ohio Appeals, 1st Dist, Hamilton Co
    No 3503.
    Decided Dec. 9, 1929
    Charles C. Dornette and Charles C. Benedict, both of Cincinnati, for Zeidman.
    Allen C. Roudebush and Harry Tennenbaum, both of Cincinnati, for Davis.
   HAMILTON, J. ,

The suit was filed June 20, 1927.

Plaintiff contends that time is not of the essence of the contract and upon equitable principles she is entitled to have specific performance if she is able to present a good title at any time before the decree is pronounced in the case; that under the facts she was able to present a good title prior to ■ the pronouncement of the decree by the trial court. This right •asuo uoatS aqq. jo s^ouj aq^ Áq poqoijuoo sr Time may be made the essence of the contract by the parties, an unreasonable time may elapse, or circumstance arise to prejudice the rights of the parties.

In courts of law time is considered as of the essence of all contracts.

The equitable rule is stated in the syllabus of the case of Rummington v. Kelly, 7 Ohio, part II, page 97.

In the case of Schmidt v. Reed, 132 New York, 108, the 3rd paragraph of the syllabus is as follows:

“When, by the terms of such a contract the time for the performance is not of the .essence thereof, it may be made so by reasonable notice by either party, to the other, and the party giving the notice may then avail himself of the forfeiture on default.”

In Hermansen v. Slatter, 176 Wis. 426, the court says in the opinion:

“It was agreed that the conveyance was to be made and an abstract showing merchantable title was to be furnished on a given day, and there was a condition that a loan might be procured- on the premises payable on the same day. There was testimony that the vendee had sold his own farm, and.that he notified the vendor on July ílth and July 22nd of this fact; that he then gave notice that, as he had sold his farm and must give possession on November 1st, he must then get possession of'the premises involved in the contract.” And the court refused specific performance.

Considering the instant case under these rules stated in the decisions above referred to, we necessarily revert to the facts in the case. The evidence is in sharp conflict on the essential facts and turns largely on the veracity of the plaintiff and the defendant.

Defendant testifies that at the time he entered into the contract with Zeidman, he was in fact purchasing the property for one Levine; that on the same day he entered into the contract with Zeidman, he also entered into a written contract for the re-sale of the property to Levine; that he so informed Mrs. Zeidman and told her that he must have the title clear and the deed within the 60 days named in the contract, in order to hold Levine to his contract of re-sale. He is supported in this by the introduction in evidence of his written, contract with'' Levine, which called for the execution of that contract on or before 60 days. He further testified that he kept his automobile in the garage of Mrs. Zeidman, and saw her frequently, and that he told her several times that he must have the sale consummated within the time named in the contract, in order that he might hold Levine on his purchase. That he prepared to take over the property by securing a loan on other property of his own, in order to make the cash payment; that he did this in April, about 30 days preceding the time limit for the consummation of the sale to him; that a day or two before the expiration of the time limit of May 3rd, he again told Mrs. Zeidman he' must have the deed. This notice and these conversations were denied by Mrs. Zeidman, whose testimony was somewhat discredited by the fact that her son testified that he was present and heard Davis tell his mother or say something to her about the sale to Levine.

There is no evidence whatsoever that the seller Zeidman made any effort to have the mortgage's cancelled and the title cleared within the time fixed in the contract; nor did she make any tender of performance within a reasonabe time thereafter, unless the tender of a deed six weeks after the time fixed in the contract was such.

At the time of the tender of the deed, on June 14th, 6 weeks after the time limit of May 3rd, it is admitted the mortgages were not, paid and cancelled, and there w,as no showing that the seller was in a position to make good title at that time out of any purchase money. This tender was made at defendant’s home, at 8:30 o’clock at night. The agent had with him a witness, and the circumstances indicate that the tender of the deed was made for the purposes of this suit rather than a tender of performance in good faith.

The trial court had a right to believe this evidence, and if it did so, its duty was to refuse specific performance and render the judgment that it did, and the case being here on error, we can only affirm that judgment.

Cushing, PJ., and Ross, J., concur.


author: HORNBECK, J.

text:
    YOUNG v CLARK
    Ohio Appeals, 2nd Dist, Franklin Co
    No 1774.
    Decided Nov. 8, 1929
    Will J. Hays, Columbus, and Booth, Keating, Pomerene and Boulger, Columbus, for Young.
    F. S. Monnett and L. H. Godman, both of Columbus, for Clarke.
   HORNBECK, J.

From these facts it was permissible and logical for the jury to infer that the defendant was negligent in parking his car with inefficient brakes at the time, in the place, and under the circumstances existent and that in the exercise of ordinary care he should have known that such car might be released from, or given impetus causing it to leave, the curb with the proximate result of injury to some one, and that, under the circumstances, the plaintiff was not negligent in any way contributing to his injuries.

Pretentious and voluminous briefs are before us and with the law therein set forth we are in accord, but the judgment under consideration may be sustained, without doing violence to any legal principles advanced.

It is urged and many cases are presented holding that where an independent agency intervenes which sets; the object in motion causing the injury complained of it is the intervenor who is responsible. A typical case of the many cited is that of Berman vs. Schultz, 84 N. Y. Sup. 292. In that case the owner of the automobile had applied the brake and left the car in the street. Where upon some boys did something which released the brake or started the motor, permitting or causing the car to move forward and strike the plaintiff. The court held that the operator of the automobile was not liable. This case may'be distinguished from ours in that the driver of the automobile had taken every precaution which ordinary prudence demanded to prevent the automobile leaving the street where placed and was'therefore chargeable with no negligence. The mechanical appliances which he had put into operation were in no wise ineffective but were operative and would have accomplished the purpose designed had their position not been changed by a willful intervening human agency.

In the instant case it may be said that the brake would not and did not accomplish the result which it was designed to effect and though it cannot be said as a matter of law that the defendant should have anticipated that the event which happened would occur, the jury was properly permitted to say whether or not in the exercise of ordinary care the defendant should have anticipated that it would occur.

It is urged that it was the act of the operator of the Buick automobile in driving into and pushing the car of defendant which was the proximate 'cause of the injury to the plaintiff.

But as said in the case of Keifer v. Railway 30 O. C. A., 150, there may be more than one proximate cause of injury and the act of the driver of the Buick may have been a proximate cause but the failure to have effective brakes was also a proximate cause without which the auto-mile would not have run down State Street and caused injury to the Plaintiff:

In any event, the defense had advantage of their Special Request Before Argument, Number 2, which was given and accorded the defendant all the rights to which he was entitled in the event that it found that the auto was run into at the curb by ,a third person operating the Buick.

In the light of the testimony of the defendant that he had applied his emergency brake at the curb when parking his car, the testimony of plaintiff’s witness that the brake was found to be fully set immediately after it struck the plaintiff and that the car could be moved freely in that condition, the jury may have found that the brake was not in sufficient state of repair to do the work intended. On the other hand, the testimony of Mr. Baker and the defendant that when the emergency was fully set four men could not move it backward nor forward, tended to establish the fact that the brake was thoroughly effective, in which event there could have been but two possible causes of the collision, 1st: that the brake was not set at all or not securely set, or, 2nd: that though securely set, the impact of the Buick automobile partially released the brake mechanism and permitted the car to move. If the brake was not set or not properly set the allegations of the petition were sufficient to permit the jury to say that this was a negligent act of the defendant.

The only logical affirmative theory in our judgment, upon which the defendant could have avoided liability was that the first impact of the Buick automobile caused the brake, which had been improperly set, to partially release and the second impact started it down hill and thereafter there was nothing to hold it. This contention of the defendant was presented to the jury most effectively in the evidence by the testimony of Mr. Wine and the jury by its verdict said that it did not believe the accident was caused in that manner.

It is urged by counsel for the defense that the application of the rule of res ipsa loquitur does not apply. We do not find that the Court invoked this doctrine at any place in the trial of the action. The charge proceeds upon the theory of the necessity of the plaintiff proving one or more of the specifications of negligence asserted in the petition, and makes no reference whatever to any inference arising because of the’ mere happening of the accident. There was no motion for directed verdict, so that, the testimony of the defendant himself was available to the plaintiff.

Objection is made to the refusal of the Court to admit testimony on behalf of the defendant to the effect that for a long period of time prior to the date when the accident occurred he had parked his auto at about the same place on State Street, had applied his brake in the same manner and had put his car in about the same position as on the date of the accident. We do not think this was error. In any event, it was not prejudicial error.

It is urged that the testimony of the witness Jones, for the defense, was undenied and uncontradicted and, that giving credence to what he said, the verdict must have been for the defendant and that the jury should not be permitted to disregard this testimony. This position is not tenable, 1st, because all that Jones says may be true and the facts justify the jury in concluding, either, that the defendant was negligent in not providing effective brake, or, having provided it, failed to sufficiently set it and 2nd, there are many circumstances and facts from which inferences can be logically drawn which tend to refute his story.

There is no proof whatever tending to establish contributory negligence of the plaintiff. This is so obvious from the record that we do not deem it necessary to discuss it.

The defendant had the advantage in this case of fair trial insofar as the record disclosed. The jury resolved the evidence against him.

The judgment of the trial court will be affirmed.,

Kunkle, PJ., and Allread, J., concur.


text:
    CULLEN & VAUGHN CO v BENDER CO
    Ohio Supreme Court
    No 21887.
    Decided March 5, 1930
    Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    STATE v CHALIKER STATE v JERKOVICH
    Ohio Supreme Court
    Nos 22031 & 32.
    Decided March 5, 1930
    Kinkade, Robinson, Jones, Matthias, Day and Allen, JJ., concur.


text:
    MORRIS PLAN BANK OF CLEVELAND v VIONA et SEARS v OBERLANDER
    Ohio Supreme Court
    No 21802.
    No 21966.
    Decided March 5, 1930
    Decided March 5, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Day and Allen, JJ., concur.


text:
    STATE ex CROY v INDUSTRIAL COMMISSION
    Ohio Supreme Court
    No 21992.
    Decided March 5, 1930
    Kinkade, Matthias, Day and Allen, JJ., concur. Marshall, CJ., dissents.


text:
    CLEVELAND RY CO v GOLDMAN etc.
    Ohio Supreme Court
    No 21855.
    Decided March 5, 1930
    Marshall, CJ., Kinkade, Jones, Matthias, Day and Allen, JJ., concur.


text:
    CLARK et etc v P U C
    Ohio Supreme Court
    No 21972.
    Decided March 5, 1930
    Marshall, CJ., Kinkade, Jones, Matthias and Allen, JJ., concur.


text:
    STATE v REDD
    Ohio Supreme Court
    No 21963.
    Decided March 5, 1930

      Kinkade, Robinson, Jones, Matthias and Day, JJ, concur.


text:
    REEVES v THOMAS etc
    Ohio Supreme Court
    No 22133.
    Decided March 5, 1930
    Marshall, CJ., Kinkade, Robinson, Jones, Matthias and Allen, JJ., concur.


text:
    KNUTSEN MOTOR TRUCKING CO et v KIESSLING
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10289.
    Decided Jan 27, 1930
    E. A. Binyon, Cleveland, for Trucking Co.
    J. DeKaiser and M. C. Harrison, both of Cleveland, for Kiessling.
   VICKERY, PJ.

Several errors are urged as to why this judgment should be reversed, one being that the court erred in his charge to the jury. An analysis of this so-called error will resolve itself to the fact that in its charge the court read the petition to the jury which set up the various grounds upon which the plaintiff claimed the right to recover and the court, after reading the petition, told the jury that if the plaintiff proved any one of these grounds and that that was the proximate cause of the injury, then the plaintiff would be entitled to recover.

Now the error complained of is that there was no evidence to show intoxication of the driver, for example, and perhaps other claims of negligence alleged in the petition. It is claimed that it was the duty of the court to advise the jury that there was no evidence upon any of these grounds. We do not so understand the law. Generally speaking the question is submitted to the jury and it is a rather ticklish thing for a court to say to the jury that there is “no evidence” upon any one ground, for there may be a scintilla, and then the court would commit error; and so when he read these various charges of negligence to the jury and stated to the jury under proper instructions that if the plaintiff proved by a preponderance of the evidence that any one of these was the proximate cause of the injury and that the defendant was negligent in this respect, then the plaintiff might recover such damages as he suffered.

Now it must be noted that the learned counsel for the plaintiff in error, the defendant below, did not ask any special requests in this respect. He in no wise directed the court’s attention to any particular allegations of negligence in the petition nor did he ask the court to tell the jury that there was no evidence to sustain such charge or charges of negligence. We think that it was incumbent upon counsel for the defendant below to have aided the court in this respect and to have pointed out particularly to the court why the court should especially eliminate any of the charges of the petition. As the matter was submitted to the jury, we do not see that there was any error in it,- and so far as this ground of error is concerned, we must, sustain the ruling of the Common Pleas Court.

Another ground of error is alleged which is the more serious one and that is that the verdict was so excessive that it shows evidence of passion and prejudice on the part of the jury, and we must confess that a $20,000 verdict is rather a high verdict for personal injuries. But in reading the record in this case, the wonder is that the plaintiff escaped with his life. His car was smashed to bits, which is conceded by admitting that $1100 damages was done to the car. One whole side of the automobile was crushed in and the plaintiff had his skull fractured and a piece of the bony structure of the skull was taken out by the surgeon, and he was otherwise injured and he suffered loss. Whether he suffered to the extent that he- claimed he did is not very material. He suffered a grievous injury and the case was submitted to a jury, and there was evidence to sustain the extent of his injury. I believe his index finger on his left hand waá practically made useless and his face was scarred and he was otherwise bruised and' wounded; and he was in the hospital for some period of time, and then went to work again, but the evidence shows that he was not able to do the same amount of work that he did before.

Now we cannot say that this verdict is so excessive that it would at once suggest passion and prejudice upon the part of the jury. The case was tried by Judge Clevenger, one of the ablest of the out of town judges that come here to try cases, and he has had much experience with juries and with litigation, and when a motion for a new trial was made and the whole matter was reviewed before him his remarks upon the question were embodied in the record and we have the benefit of his judgment; and we think this record shows, as did Judge Clevenger, that the injuries were grievous and the negligence was patent.

The driver of this truck, whether sober or intoxicated, was driving at a high rate of speed and put the brakes on as he was going down hill and the trailer swayed and swung over to the wrong side of the street and injured this plaintiff in the court below when he was upon the right side of the street and apparently was guilty of no negligence whatever. The drivers of these trucks and their owners who permitted them to be driven upon the road, must recognize the rights of other drivers upon the roads to an equal right on the road, and if they insist on driving a trailer at such a speed that it will slide and skid across the street and injure persons, they can only expect to be held liable for the damages.

We think that the judgment of the court below is sustained by sufficient evidence; that this amount does not show passion and prejudice upon the part of the jury and that the court did not commit any error in the manner in which he submitted the case to the jury. In other words, there is no error in this record that would warrant this court in reversing the judgment and it will, therefore, be affirmed.

Sullivan and Levine, JJ., concur.


author: SHERICK, J.

text:
    BURNS v WESTERN & SOUTHERN LIFE INS CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9953.
    Decided Dec 9, 1930
    Melville W. Vickery, Cleveland, for Burns.
    Cannon, Spieth, Taggart, Spring & Annat, Cleveland, for Ins Co.
    LEMERT, PJ and SHERICK, J., (5th Dist) sitting.
   SHERICK, J.

Exhaustive briefs have been furnished and our attention has been called to many authorities and coming now to the law applicable to the question involved, it seems quite well settled that by the terms of the clause in the policy known as the facility payment clause, that the company is given thereby the option to pay to anyone of the persons having the qualifications named in the clause. This option of itself necessarily excludes any right on the part of the plaintiff to enforce payment, for it is conclusively shown by the testimony of the plaintiff in error that she does not come within any given class named in the policy.

The following cases are directly in point:

Mazurley vs. Metropolitan Insurance Co., 79 N. J. Law, 271
Lewis vs. Metropolitan Life Ins. Co.,
178 Mass. 52
Wokal vs. Belsky, 53 App. Div. 167
65 N. Y. Supplement, 817
202 Mo. App. 124.

The- plaintiff in error holds the view that because she paid certain premiums that of itself entitles her to recovery on the policy. It is stated in the Lewis case supra, that payment of the premiums on the policy of another gives the person so paying them no interest in the policy as the payments are presumed to have been made on behalf of the insured ,and we believe this to be a correct statement of the law.

We also note that the Fourth District sitting by designation in this County in the case of Coyne vs Metropolitan Life Insurance Company considered a like question and its finding is in harmony with the finding in this case. Should this court adopt such a rule as is claimed by the plaintiff in error, ,and carrying it to its logical conclusion, situations might develop where one upon the death of an insured under one of these industrial policies might secure possession of the policy and there might then ensue a race between distant relations, neighbors or strangers to secure and turn into the company the policy and premium books and proof of loss, and thereby in many instances fraudulently seek to obtain that which rightfully should belong to another.

We hold the view that the plaintiff in error is not entitled to recovery on the policy in question and that the trial court rightfully found in favor of the defendant company.

It is, therefore, the judgment of this court that this cause be affirmed. Exceptions.

Lemert, PJ., concurs. Houck, J., not participating.


text:
    ROSENBERGER v HEARSNIP
    Ohio Appeals, 6th Dist, Lucas Co
    Decided Feb. 10, 1930
    Chares W. Davis, Toledo, for Rosenberger.
    Miller, Miller & Brady, Toledo, for Hear-snip.
   WILLIAMS, J.

Plaintiff in error maintains that the court below should have directed a verdict for the plaintiff and that final judgment should be entered in this court in favor of the paintiff in error for the amount of the rental, but does not urge the matter of damages pleaded in the plaintiff’s petition.

It is well settled that a lessee is not relieved from his obligation to -pay the stipulated rental by the mere assignment of the lease to a third party, even though the lessor assents thereto.

16 R. C. L., 843, Sec. 343;
36 C. J„ 371, Sec. 1227;
Taylor vs. DeBus, et al., 31 Ohio St., 468;
Harmony Lodge vs. White, et al., 30 Ohio St., 569;
Blosser vs. Enderlin, 113 Ohio St., 121.

The defendant below offered evidence tending to show that when Meals sold out to Zoller they went together to see the paintiff Rosenberger and that they had a conversation there in which Meals asked the plaintiff Rosenberger about letting Zoller have the place and that the plaintiff stated that the lease was void and that if Zoller wanted to rent the store by the month he would rent it to him and would make a lease later on, and that thereupon the plaintiff rented the premises to Zoller at $85.00 per month. Defendant below also offered evidence tending to show that after the .above conversation and alleged agreement, Zoller occupied the premises and paid rent to the plaintiff.

Did this conversation and alleged agreement amount to a defense? When the defendant assigned the lease to Meals and Meals took possession, the defendant no longer retained any interest or estate in the premises. From that time on the leasehold estate and all rights under the lease belonged to Meals and Meals was obligated ifi the first instance to pay the rental, although there was a secondary liability still resting on the defendant. When Meals went with Zoller to see the plaintiff, Meals was the only one who could cancel the lease and surrender the premises, and the evidence tends to show that Meals assented to the alleged new agreement for rental of the premises made between the plaintiff and Zoller and to the termination of the old lease. The defendant could not prevent the cancellation of the old.lease as he had assigned it to another, nor was defendant’s consent to cancellation and surrender necessary. It is true the lease between Zoller and the plaintiff w,as verbal, but Zoller had possession and occupied the premises, under the verbal agreement of lease and it became binding and enfnor’ceable. If the jury believed the evidence adduced by the defendant, it was warranted in finding that there was a cancellation of the original lease and surrender of the premises and that a new lease was entered into, which was binding and valid, and that the defendant was not liable for rental under the old lease after cancellation and surrender. We are unable to say that the finding of the jury in favor of the defendant is against the weight of the evidence, and as the evidence tended to establish the defense made by defendant, the court committed no error in refusing to direct a verdict in favor of the plaintiff.

We have examined the charge complained of, which reads as follows:

“Now the law of landlord and tenant requires this in a case of this kind,— if the tenant leaves premises leased before expiration of term, the landlord is bound to use ordinary and reasonable diligence to rent place to another for-the best terms he can secure, and in the event tenant leaves property and landlord does use reasonable diligence to secure new tenant, or does secure a new tenant at less amount, then.original tenant is liable to landlord for full sum of rent accruing during term of lease, but less whatever the landlord was able to secure, — * * *

This statement of the law was erroneous. In White vs. Smith, 8 Ohio App., 368, the law is correctly stated in the syllabus as follows:

“Where a tenant abandons the leased premises, the landlord is under no legal obligation to relet such premises, and in an action to recover the rentals accruing after such abandonment the tenant can not interpose as a defense want of reasonable diligence to rerent the same.”

The charge as given precluded the plaintiff from recovery if he did not use reasonable diligence to re-rent the premises. This charge was not only erroneous but was also clearly prejudicial to plaintiff in error and compels a reversal of the judgment. For such prejudicial error the judgment will be reversed and the cause remanded for a new trial.

Lloyd and Richards, JJ., concur.


author: WASHBURN, J.

text:
    SUMMIT COUNTY OIL CO v KILLIAN etc.
    Ohio Appeals, 9th Dist, Summit Co
    No 1647.
    Decided Dec. 20, 1929
    Commins, Brouse, Englebeck & McDowell, Akron, for Oil Co.
    Sheck, Stevens & Hargreaves, Akron, for Killian.
   WASHBURN, J.

As we view the evidence, the transaction was not a sale by “description,” nor was it a sale of a specific article under its. patent or trade name, and the statements made did not purport to be the “salesman’s opinion only,” but constituted, if not an express warranty, at least an implied warranty that the gasoline sold was reasonably fit for the purpose for which it was sold, and the evidence amply establishes that Killian relied upon such warranty and that said gasoline was not suitable for the purposes for which it was warranted that the loss suffered by Killian was due solely to that fact; and consequently, we find there was no prejudicial error in the rulings of the court on the admission of evidence or in the charge of the court, unless it be in referehce to the question of damages.

The consumption of said mixture in said manufacture covered a period of about the last two-thirds of the month of December, 1926, and the loss occurred by reason of the fact that the manufacture resulted in ,an abnormal quantity of rubber goods known as “seconds” and “scrap,” the latter of which is of very little value; and Killian attempted to prove, as his measure of damages, the manufacturing cost of said seconds and scrap during the period when such gasoline was being used, ,and when the Summit County Oil Co. had a representative present assisting in directing affairs so as to demonstrate the suitableness of said gasoline.

The court charged the jury that in event the finding was for Killian—

“He is entitled to recover such sum as would fairly compensate him for his loss, and this is to be determined by the cost which he was put to in the manufacture of this rubber goods which proved to be seconds and scrap, in an amount more than would have been seconds and scrap had he not used this rubberline.”

In said manufacturing business, even with the most suitable gasoline, there are seconds and some scrap, and the records kept by Killian were not such ,as made it easy to prove with exactness the abnormal quantity of seconds and scrap manufactured during said period.

Evidence was offered to prove the actual quantity of seconds and scrap manufactured during said period, and then to establish the normal quantity of seconds and scrap manufactured, proof was offered and received showing the quantity of seconds and scrap manufactured under exactly the same circumstances and conditions, except that Standard Oil Co. gasoline was used, for the period of April, May and June of 1927, records not being available for the time immediately before and just after the period in question. Objections were made to the introduction of this evidence and exceptions saved, as well as an exception to the charge of the court on the subject of damages. Before this evidence w,as offered, there had been evidence introduced, without objection, to the effect that the quantity of seconds and scrap during the period of the use of such gasoline was very much greater than the evidence to which objection was made showed it to be.

We think that the evidence established special circumstances showing proximate damage greater than the difference between the value of the goods at the time of delivery and the value they would have been if they had been as warranted, and that the court did not commit any error to the prejudice of the • Summit County Oil Co. in the charge on the measure of damages.

We hold .also that under the circumstances shown by the record in this case said evidence was not incompetent because too speculative. As we view the record, the right of Killian to recover was fully and clearly established, and the jury allowed him as damages only the amount which he agreed to pay for the gasoline which he purchased of the Summit Oil Co. and while it is difficult to exactly measure and ascertain said damages, we think the damages allowed are certainly no more than should have been allowed.

Judgment affirmed.

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