author: By SKEEL, PJ.:

text:
    BLEWETT, d. b. a. CLEVELAND GLASSHEAT COMPANY, Plaintiff-Appellee, v. SULLIVAN et, Defendants-Appellants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24276.
    Decided November 15, 1957.

      Michael A. Picciano, Joseph H. Taddeo, for plaintiff-appellee.
    Beach & Warner, for defendants-appellants.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment entered for the plaintiff by the court (trial by jury having been waived), in the common pleas court of Cuyahoga County. The action is based on contract. It is the claim of the plaintiff that the parties entered into a contract on or about October 15, 1S53, whereby the plaintiff agreed to install certain “blown in insulation” in defendants’ new house then under construction and likewise to furnish certain electrical heating equipment for prices as alleged in plaintiff’s petition. It is further alleged that the plaintiff fully performed his agreement at the request of the defendants and that the defendants have refused and failed to pay the agreed price. The judgment entered was for $2810.00 and costs.

The allegations of the petition are, in brief, that the defendants were the owners of certain real estate in Moreland Hills, Ohio, upon which they were then in the process of constructing a home; that the defendants in the month of October, 1953, entered into a verbal contract with the plaintiff to furnish and install certain described insulation at fourteen cents a square foot on the sided walls and twelve cents a square foot for the ceiling coverage and to furnish electric heating equipment as described in the petition. By answer, the defendants put in issue all of the material allegations of the petition. There was a second cause of action set forth in the plaintiff’s petition seeking to foreclose a mechanic’s lien attempted to be asserted against defendants’ property. This cause of action was dismissed upon pre-trial so that we are here concerned only with the issues presented on the first cause of action.

The defendants set forth the following claims of error:

“1. The judgment is contrary to law and against the weight of the evidence.
“2. The court erred in excluding evidence offered by these defendant? tending to prove failure of performance by defendant, (sic)
“3. The court erred in taking judicial notice of improper matter.
“4. The court erred in refusing to grant defendants’ motion for judgment on the pleadings and the evidence.”

The evidence, while in direct conflict as to whether or not the defendants contracted with the plaintiff for the materials and services as alleged in his petition, does establish beyond doubt that the defendants were contemplating constructing a home early in the year of 1953 and that in February of that year, they contacted the plaintiff concerning the possibility of using electric “glass heat” as the means and method of heating such house; that the plaintiff did call on defendants a number of times, offering suggestions on insulation and using “glass heat” and quoting prices for his products and services; that the defendants did construct such home, the work beginning about June 1st, 1953; that there was installed in defendants’ house electrical “glass heat” furnished by the plaintiff and that the plaintiff also installed “blown in” fiber glass insulation. The defendants, in denying personal responsibility to the plaintiff by general denial, contended by their testimony that they employed a general contractor to build their house and that what the plaintiff did was as a result of an agreement with the general contractor and not as a result of a direct promise on their part to the plaintiff.

The third claim of error has to do with the court’s statement that it is authorized to take judicial notice of the way home insulation is measured for the purpose of fixing the price. The plaintiff had testified that his charge for “blown in” insulation was measured by the number of square feet of outside wall and ceiling surfaces in the house while the defendants, by cross-examination, had attempted to demonstrate that the quantity of a bulk item could not be measured in square feet. Objections to questions seeking to establish such fact were sustained by the court, the court saying:

“I know, but the court will even take judicial notice of the fact that these matters are dealt with in square feet. While they may be handled in other ways, but always, I think, these kind of things are in square feet. But you can divide the square feet by 9 and it will give you the square yards.”

Such a statement has no foundation in law or fact and was clearly erroneous to the prejudice of the defendants. While the side wall insulation, to be blown in as is shown by the evidence, was to fill up a space of two inches between the outside masonry wall and the plaster board, the plaster board being nailed to two inch furring strips whereby the quantity of the material used could be reasonably estimated after deducting window openings and the like, there is no means of establishing the quantity of insulation “blown” over the ceiling. It could have been a half inch thick or a foot thick, depending on the will of the plaintiff. Certainly no statement by him, to be found in the record, gave the slightest notion of what thickness of blown in insulation would be sufficient over the ceiling to meet or fulfill his claimed obligation to properly insulate the house. In all events, this assignment of error is sustained. A court cannot take judicial notice of the manner by which products Qf this type are sold.

The fourth assignment of error must be overruled. The state of the record at the conclusion of taking testimony was not such as would justify the granting of such a motion for the reasons advanced by the defendants. The motion was based on the provisions of §1311.04 R. C„ dealing with the creation of a mechanic’s lien. The provisions of the mechanic’s liens law were not intended to and do not affect the enforcement of direct contractual obligations.

The second claim of error is based on the rejection of evidence offered by the defendants to show nonperformance, in part, of the plaintiff’s claim for materials and services in insulating defendants’ house. The defendants offered to show that instead of 4520 square feet of ceiling and side walls, there was, in fact, only a total of 3438 square feet of such surfaces that could be insulated. This evidence was rejected by the court on the ground that the defendants denied that they had entered into a contract with the plaintiff and that questions of nonperformance of the denied contract could not be presented under the circumstances. In this the court committed error prejudicial to the rights of the defendants. The record on this question is as follows:

“Q. Mr. Sullivan, have you examined the insulation of your house insofar as you can, it being closed up, and as well as being completed?
“A. I have.
“Q. Will you tell us how you examined this —
“MR. PICCIANO: I object; there is a general denial here, your Honor.
“THE COURT: Yes, I think that is true.
“MR. McKIM: Your Honor, I am not attempting to show that the insulation is not insulation; I am attempting to show - -
“THE COURT: I know, but your defense is that you have no contract.
“MR. PICCIANO: That is right.
“THE COURT: That is your defense.
“If you have no contract it makes no difference here whether it is good, bad or indifferent.
“MR. KIM: But. your Honor, the contract called for in the petition specifies exactly what was to be done.

“THE COURT: 1 know, but you say you have no contract.” Thereafter the defendants proffered the evidence rejected. A defendant by a general denial puts in issue every material allegation of the plaintiff’s claim. The fact that by his opening statement and proffered evidence a defendant contends that there was no agreement between the parties does not deprive him of the right to introduce evidence to show that if, in fact, such contract is established, the plaintiff either failed to perform in whole or in part or that the damages claimed are in excess of what the plaintiff is, in fact, entitled to receive. The defendants were entitled to introduce the evidence proffered.

The record also shows that the court refused to receive in evidence the specifications found in the loan file of the Society for Savings Bank where the mortgage loan to finance the building of the house was obtained prior to the time construction was commenced. These specifications, together with the “contract” between the builder (Matthews) and defendants and the builder’s “cost estimate,” were tendered from the flies of the bank. The fact that these papers were a part of the loan file is not questioned. They were a part of the permanent records of the bank in this loan transaction.

When considered in the light of the testimony of the plaintiff, hereafter to be noted, there is no question but that the defendants were entitled, for the purpose of testing the plaintiff’s credibility, to identify and have received into evidence the building specifications.

The first assignment of error presents the question of whether or not the judgment is against the manifest weight of the evidence.

The defendant, Gulbert G. Sullivan, was called for cross-examination by the plaintiff and testified that in early 1953, he contemplated building a home in Moreland Hills and because gas was not available, decided to investigate advertisements he had observed with respect to electric glass heat and for that purpose called at plaintiff’s place of business on Neff Road in Cleveland and explained his situation. After a demonstration by the plaintiff, the plaintiff later sent one of his salesmen to defendants’ residence to further press the advantages of electric glass heat. The defendants then deliverd to him a set of plans to estimate the job. The estimates were, in the judgment of the defendants, too expensive and plaintiff’s salesman was so advised. The plaintiff was also advised that defendants’ general contractor had a bid for the use of oil heat which was cheaper. This witness further testified that the plaintiff thereafter, by personal calls, continued to press the use of electric glass heat. A written sales contract was submitted which he requested defendants to sign which request was refused with the statement that defendants “had a general contractor — that he would have to sign any papers.” The witness also testified that he was told of the necessity of blown in insulation for the successful use of “electric glass heat,” and that while some prices were submitted, he did not order for his own account either the insulation or the glass heat equipment.

The plaintiff testified about his calls on the defendants to interest them in using “glass heat” .in their proposed home. He examined the blueprints and prepared a contract for them to sign. The proposal was too high and a second proposal in writing, using “electromode units” instead of glass panels, was submitted “which was considerably lower than our original proposal.” The plaintiff then testified that there were several meetings between the parties but at these meetings “Mr. Sullivan didn’t accept or didn’t sign any contract.” He further testified, after explaining the items of cost in the first proposal calling for 20 glass panels, 10 master relays, 9 thermostats, a terminal control cabinet, circuit brakers, relays, the installation of “complete wire for a total price of $2022.50” less a “builder’s discount” of $172.50, that “Mr. Sullivan said he had not decided to go ahead with the job.” This witness also testified that the defendants told him that Mr. Matthews (the general contractor) was not favorable to electric heat and he (Blewett) requested the privilege of meeting the contractor on the job and that such a meeting was had in July when the job was half finished. Conversation about insulation was thereafter testified to by this witness (said to be in June or July) when the Sullivans were told that blown in type insulation was the finest insulation for electric heat wherein the defendant (Mr. Sullivan) said: “Well, if that is the insulation we have got to have,” he said, “we have no alternative; go ahead and figure on that type of insulation.” This is the last conversation the plaintiff claims to have had with the defendants until October 15, 1953, when it is claimed a contract was concluded with the defendants for both insulation and electric heating by the defendant (Mr. Sullivan) calling the plaintiff and advising him that he should proceed with the insulation. The defendant’s (Mr. Sullivan) version of this telephone call, is that he, at the request of the contractor (who claimed he could not reach the plaintiff and the plaintiff’s failure to install the insulation was holding up the job) called plaintiff to tell him the contractor wanted him to proceed with the work of installing the insulation. It is not claimed that anything was said at this time about “glass heat” but this call is pleaded as defendants’ acceptance of plaintiff’s offer on this subject.

It should be noticed that the electric heating equipment alleged to have been sold, as set forth in plaintiff’s petition, is not in complete accord with the estimate which plaintiff produced and introduced into evidence. Twenty glass panels at $67.50 is the proposal found in the estimate, while nineteen such panels at $69.50 are pleaded. No mention in the petition is made of “builder’s discount” or “installation costs.”

The plaintiff denied in his testimony ever dealing directly with the defendants’ general contractor, yet the contract price for the building of defendants’ house included both the installation of insulation and heating equipment. This fact is supported by plaintiff’s evidence admitting he was told that hot water heating units installed around the baseboard, heated by oil, was first contemplated. This was the competition plaintiff had to face in trying to sell electric glass heat and the subject of insulation, other than that designated, was given consideration. The record disclosed that the defendants informed the plaintiff that if any agreement was reached, for him to supply “electric glass heat,” the general contractor would have to sign the contract and in the written proposal furnished by the plaintiff, a builder’s discount of $172.50 was set out. The plaintiff testified that his method of doing business was upon written order designating the services and equipment to be furnished. This action is pleaded as based on an oral agreement.

The plaintiff testified that defendants had not decided on glass heat in June or July, yet the specifications filed with the Society for Savings before any work was commenced on the house, provided on page 5, (i):

“Heating - -
“Shall be electric panel radiant heat and installed in accordance with the recommendations of the heating contractor.”

The specifications in paragraph (e) Carpentry — sub-paragraph 13 - -

“Wallfurring — All concrete block walls shall be furred with 2 x 2’s for installation of rock lath.”

Sub-paragraph 14 — “Insulation—Entire side wall and ceiling area are to be insulated with Johns Manville long fiber paper — felt rockwood blanket insulation installed so as to provide proper air space on each side of the insulating material. In addition to the exterior walls, all partitions surrounding the bathroom are to receive insulation.”

The plaintiff testified that when he saw the plans (once or twice referred to by him as “specifications”), the insulation called for was balsam wool. He also told the defendants by his testimony that the outside wallfurring should be two by two strips. He had undoubtedly examined the plans before making this statement, indicating a change in furring strips, as then indicated by the plans, was necessary.

It should also be noticed that the books of the plaintiff, recording his transactions with the construction of defendants’ house, were not produced. Instead of producing the best evidence as to the state of his account with the Sullivan house, the plaintiff refreshed his recollection by a statement mailed to defendants three and one-half months after the insulation was installed and about two months after delivering the heating equipment to the job. In most business transactions, invoices almost immediately follow the rendering of a service or delivery of material and are followed by monthly billings. There is no mention in the record whether the general contractor, whom the plaintiff knew as such at the very beginning of his negotiations (who shortly thereafter went into bankruptcy), was billed in the regular course of business.

For the foregoing reasons, we must conclude that the judgment is against the manifest weight of the evidence, thus sustaining the first claim of error.

The judgment is, therefore, reversed for the foregoing reasons and the cause remanded for further proceedings.

HURD, J, KOVACHY, J, concur.


source: Caselaw Access Project

license: Public Domain

text:
    TREES, Plaintiff, v. LOOMIS, Mayor et, Defendants.
    No. 20378.
   ENTRY

The Second District Court of Appeals having, on 14 September 1957, dismissed the appeal from the judgment of this Court and having remanded the same for further proceedings according to law; and it appearing that no appeal has been perfected within the time as prescribed in §2505.07 (A) R. C.; it is therefore considered and adjudged that the cause be ordered to record to the following extent:

1. The Second Amended Petition;

2. The Answer of the Ohio National Bank, Trustee;

3. The Demurrer of the Ohio Edison Company;

4. The Demurrer of the Mayor, Clerk and Members of Council of Plain City, Ohio;

5. Common Pleas Judgment Entry dated 15 May 1957; and

6. The within Entry.


author: By BAYNES, J.

text:
    TREES, et, Plaintiff, v. LOOMIS, Mayor et, Defendants.
    Common Pleas Court, Madison County.
    No. 20378.
    Decided May 15, 1957.

      Waite, Schindel & Bayless, Cincinnati, Jackman, Nichols & Grubbs, ■Local Counsel, London, for plaintiff.
    John R. White, D. Bruce Mansfield, Akron, for defendants Ohio Edison Company.
    Gilbert Kirby, Plain City, for defendants The Farmers National Bank and Village of Plain City.
    William S. Culp, West Jefferson, for defendants Ohio National Bank of Columbus, Ohio, Trustee.
   OPINION

By BAYNES, J.

This cause came on for consideration on the demurrer of the Ohio Edison Company and demurrer of the Village of Plain City to plaintiff’s second amended petition. The plaintiff seeks to have the sale and conveyance of the village’s electric generating and distribution system declared void and seeks equitable and declaratory relief, apparently, in the form of a mandatory injunction.

The grounds of the demurrers are:

“1. It appears upon the face of the petition that the facts therein contained do not constitute a cause of action in favor plaintiff and against the defendants.
“2. It appears upon the face of the petition that plaintiff has not legal capacity to bring this action.”

For purposes of the demurrers the admitted facts are:

The plaintiff, resident of the Village of Plain City, is a taxpayer and user of electric energy formerly supplied by the village and now supplied by Ohio Edison. He brings suit on behalf of the village and other residents and users of electric energy similarly situated.

That the village has never adopted a Charter form of Municipal Government as authorized by Section 7, Article XVIII, Ohio Constitution. That the village operated an electric generating and distribution system. That on 18 June 1956 the village council adopted an ordinance, declared for reasons stated therein, the system was no longer needed for municipal purposes. It directed the Clerk to advertise for bids to sell the system, other than land and buildings, for two consecutive weeks in the village newspaper. Section 5 of the ordinance provided:

“The Mayor and Clerk are directed to sell the property so advertised to the highest and best bidder therefor, provided such bidder shall first have furnished satisfactory information as to its generating facilities and other sources of power supply, its transmission facilities generally and particularly in the Village of Plain City, its equipment and resources for providing and maintaining electric service, its financial ability and resources, its special services for its customers, the terms and conditions upon which it will provide electric service, and generally as to its ability to provide adequate and satisfactory electric service to the village and to its inhabitants both now and in the future.”

The legal notice among other things, stated that bids would be received until 6 July 1956, required a payment of 25% of the cash amount of the bid and reserved the right to reject any and all bids. The legal notice was published 20 June, 27 June and 4 July 1956. Ohio Edison submitted the only bid in the amount of $410,000.00. On 9 August 1956 the Mayor and Clerk on behalf of the village executed a “Sale Agreement.”

On 20 August 1956 plaintiff requested the Village Solicitor to bring an action for injunction against the Mayor, Clerk and Members of Council to restrain them from executing any contract under the ordinance which he claimed was illegal. The Solicitor refused on the same day to bring any action.

Plaintiff filed his petition on 6 September 1956 naming only the Mayor, Clerk and Members of Council as defendants, who were served with summons on 7 September 1956. No temporary restraining order was prayed for. On 14 September the village received the balance of the purchase price and conveyed to Ohio Edison, its electric generating and distribution system, other than land and buildings. It immediately began furnishing electric energy from power sources other than the generating facilities purchased.

It is also admitted that the management of the village electric generating and distribution system was under the Board of Trustees of Public Affairs; (see 8735.28 R. C. e. s.). As indicated, this board took no part in the sale of the electric generating and distribution system and the ordinance did not refer to the board; (see §§721.01, 721.03 and 721.15 R. C.)

Some preliminary observations should be made with respect to the allegations of the second amended petition.

There is no allegation that the ordinance was:

1. “Ultra vires” or without any authority in law;

2. Conceived in fraud or that there was fraudulent inducement or fraud in the execution;

3. An abuse of discretion on the part of the village legislative authority; I

4. Inadequacy, unfairness, or unreasonableness of consideration; or

5. That the defendant Ohio Edison Company, since the sale, has failed to provide adequate or satisfactory service, or that its service is below the standard of the village service; or

6. That the rates for electric service, now furnished by Ohio Edison, are higher than the village rates or that the company rates are unfair or unreasonable; and

7. That the rates have not been established by ordinance of the village legislative authority.

In addition, it being elementary that a demurrer admits only such facts as are well pleaded and not legal conclusions or pleaders’ conclusions based on facts alleged, the following allegations are subject to comment.

First, the allegation that the village is “governed by the General Laws of the State of Ohio,” as it has no -particular or specific meaning with respect to particular statutes. Some statutes may be applicable or inapplicable and some may be ineffective or without meaning, as applied to the facts of this case.

Second, the 16th paragraph of the second amended petition alleges:

“The foregoing acts of the defendants will result in great damage and loss to said village, to taxpayers and electric users, consumers and electric rent payers, for which there is no adequate remedy at law.”

As will be observed from the above numbered seven items of un-alleged facts, neither plaintiff, or the class he purports to represent, allege any amount or any particular damage or loss arising out of the Ordinance, or its execution.

Whether or not it is proper or improper, necessary or unnecessary, in a case such as this, to allege that plaintiff has no adequate remedy it law, such inadequacy must appear from the allegations. It cannot ce considered a well pleaded fact, at least standing alone, for purposes Df testing the demurrer.

Under the first ground of the demurrer that the facts do not state a cause of action proponents claim:

1. That within the (self executing) provisions of Article XVIII, Ohio Constitution the Village had plenary power to make the sale without limitation, control or restriction of any statute.

2. There is no requirement that the Ordinance of Sale must include provisions for franchise and schedule of rates of service.

3. That the petition alleges no damage to plaintiff or anyone else.

Under the second ground of demurrer that plaintiff lacks the legal capacity to maintain the action because he alleges no special interest because his property rights are,'or have been placed, in jeopardy.

In addition to these objections it seems to the Court that there are other grounds, under the heading that the facts do not state a cause of action. First whether or not plaintiff has an adequate remedy at law and second whether on the facts plead, estoppel or laches lies.

We construe the second amended petition as raising no question of the substantive power of the village to dispose of its electric service utility. Section 4, Article XVIII, Ohio Constitution, provides that municipalities may acquire any public utility. This section makes no reference to a constitutional power to dispose of a public utility. Constitutionally, or otherwse, the power to dispose has never been questioned.

Section 2, Article XVIII provides that general laws shall be passed to provide for the incorporation and government of cities and villages. Title VII of the Revised Code of Ohio has been generally enacted under this Section. Chapter 721 of the Title sets forth the manner in which sales or leases of municipal property shall be carried out. It does not, in terms, refer to sales of utility property, except by implication, if at all; see 28 O. Jur. 100, 104, Secs. 63, 65; McQuillin Municipal Corporations 3d ed. v. 12, 638, 677, Sec. 35.27, 35.35. Assuming, but not deciding, it applies to proprietary property, it does not aid plaintiff.

As to both sales of real and personal property, not needed for municipal purposes, §§721.03 and 721.15 R. C., provide that it must be authorized by legislative authority and approved by the Board or Officer having supervision of it. Clearly this means, and can only mean, that the supervisor of the property has only ministerial duties in connection with the sale. Furthermore, that these sections, in this ministerial aspect, are directory and not mandatory. As to utility property, here involved, we so hold.

Whether or not Section 4, Article XVIII, taken in conjunction with Section 3, the Home Rule Section, is self executing; or whether the power of sale must be exercised within the terms of Section 2, Article XVIII and Chapter 721 R. C., we do not find it necessary to decide. Despite counsel’s voluminous Briefs, we perceive no Constitutional question in the determination of this case whatsoever.

It may be profitable to refer to one case, cited by neither counsel, to support this conclusion. Geiger v. Kobe, 60 Abs 555, 102 N. E. 2d 481, appeal dismissed and motion to certify overruled 156 Oh St 189 (1951), 101 N. E. 2d 501, 46 O. O. 59, cited McQuillin Municipal Corporations 3rd ed, v. 12, 683, Sec. 35.36, cum, Sup. n. 35 involved the sale of Berea’s antiquated electric generating and distribution system.

A taxpayer’s suit sought to enjoin the Mayor and Director of Public Service from executing a sale, exclusive of land and buildings, ordinance enacted by initiative petition. The trial court, affirmed by Court of Appeals, held that such a sale requires legislative authority and that the initiated method was proper.

Secondly, that the sale ordinance did not have to provide for a franchise to the successful bidder. (Emphasis ours.)

The Court of Appeals said at page 558 (Abs.):

‘•'We also find that plaintiffs’ contention that the initiated ordinance passed under authority of Article II, Section 1(f), Ohio Constitution violates the provisions of §3698 ((now §721.81 R. C.)), §3699 ((now §721.03 R. C.)), and §3703 GC ((now §721.15 R. C.)), is not well taken. We affirm the finding of the trial court on that question for the reasons seated in the opinion of the court.”

An examination of the original papers, in the office of the Clerk of the Supreme Court of Ohio, discloses the only essential difference between the Geiger case and the instant case is that the Berea Ordinance provided that the Director of Public Service was to sell the property rather than a Board of Trustees of Public Affairs; (Appellee’s Brief p. 38). Section 2, (Appellant’s Brief p. 72), did not provide for the Director’s approval or consent, it provided:

. . he hereby is authorized and directed to advertise . . . and to sell the same to the person, firm or corporation submitting the highest bid substantially in accordance with such specifications.”

In addition Section 3, (9) of the ordinance reserved the right, in City Council, to reject any and all bids. (Emphasis ours.)

Nothing in these original papers indicates any contention was made that the sale need be approved by the Director. The Director in effect was given no power to exercise judgment as to the wisdom or lack of wisdom of the ordinance. He acted solely as a ministerial and not a policy making officer, the same as the Mayor and the Clerk of Plain City in the instant case.

We do not construe §§721.01, 721.03, 721.15 or 735.29 R. C., as vesting the Board of Trustees of Public Affairs with any policy authority whatsoever with respect to whether a municipal corporation shall continue to operate any public utility or to acquire or dispose of any public utility. That power, among others affecting the operation and duties of the Board of Public Affairs, rests solely with the Village Legislative Authority.

Two cases are cited by plaintiffs in support of their contention that the power exercised by the Village Legislative Authority was by an invalid ordinance, because it did not provide for approval of the Board of Public Affairs. One is, Village of Manchester v. Shriver, 113 Oh St 171, 148 N. E. 697 (1925). This case enjoys the dubious distinction of never being cited in any subsequent state report.

It was an action in mandamus to compel the Board to execute a contract of sale of the electric generation and distribution system provided by ordinance. There is no syllabus. The question of the case is stated at page 174 (Oh St):

“. . . whether the facts set out in the amended petition show . . . the board . . . are refusing to perform a duty specially enjoined upon them by law.”

The law of the case is stated at page 175 (Oh St):

“Before municipal authorities are authorized, much less required, to sell any property belonging to a municipality, it must appear that such property is not needed for any municipal purpose. There is no such averment in the petition.” (Emphasis ours.)

The court’s statement as to the controlling statutes §§3698 and 3699 GC (now §§721.01 and 721.03 R. C.) is pure dictum.

The reason why it must appear that property ordered sold is not needed for municipal purpose is not necessarily because the statute says so, but because to sell otherwise would be without reason and an obvious abuse of legislative or ministerial discretion, so as to amount to fraud or wrongdoing and a violation of established common law principles.

Plaintiff quotes extensively from Case No. 17,962 Common Pleas Court of Clinton County, Ohio, styled Village of Sabina v. Board of Trustees of Public Affairs, decided 4 February 1957. No report citation is given.

The action was one for declaratory judgment on the ordinance passed to provide for sale of the village electrical and water system. The Board refused to execute the ordinance.

The opinion relies on the Manchester case dictum, which we have discussed. It also relies on Morris v. Roseman, 162 Oh St 447, 123 N E. 2d 419, 55 O. O. 255. Both parties relied on it in the Sabina case, as the parties seem to in this case. It suffices to say that we do not find the Sabina case persuasive.

Irrespective of whether we are correct on our failure to find a constitutional question in this case and our interpretation of the provisions of Chapter 721, it is the opinion of this Court that the petition fails to state a cause of action because plaintiff has failed to bring his case within principles under which equitable relief may be granted.

Equity suits against a municipality are viewed within the usual rules of practice. They are proper only for the purpose of supplying a deficiency of legal remedy. If there is, or was, an adequate remedy at law equity will not intervene. The fact, if it is a fact, that an ordinance is invalid is not, per se, a basis of equity jurisdiction. McQuillin Municipal Corporations 3d ed., v. 17, 271, Sec. 49.50.

“The general rule is that no act of a municipal corporation, within the sphere of its powers, which is free from fraud or collusion, and which involves the exercise of administrative or legislative discretion on the part of the municipal authorities will be restrained by injunction, unless there is an abuse of discretion resulting in damages or oppression to an individual or his property or his rights therein.

“. . . There should be a showing of special injury: . . . the writ will be denied if the act sought to be enjoined has become an accomplished fact.” (Emphasis ours.) ibid 275, Sec. 49.51.

A taxpayer’s suit stands on no higher ground than a suitor in equity generally. To support a taxpayer’s action it must appear that the act complained of is illegal, or that there exists fraud, corruption or wrongdoing; McQuillin, Municipal Corporations 3d, v. 18, 23 Sec. 52.07.

“It is generally held that a taxpayer’s suit does not lie if there is an adequate remedy at law, and the inadequacy of the remedy at law is often relied on as a ground for equitable relief. . . .
“A fundamental principle governing exercise of equitable jurisdiction is that equity will not act where the remedy at law is adequate, where a full measure of relief is available through mandamus.” (Emphasis ours.) ibid, 23, Sec. 52.08.

Where is there any allegation that plaintiff has exhausted or even attempted any legal remedy? Equity follows the law, and its remedies were never intended to be used, or are they used, to extend the time in which an act should or must be done.

At the same time (3 September 1912), the other present Sections of Article XVIII, Ohio Constitution, were adopted there was also adopted Section 1 (f), Article II:

“The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law.”

Secs. 731,28 e. s. R. C., implement this provision and any ordinance except appropriations for current expenses, street improvements assessed against abutters according to the benefits and an emergency measure, is not effective until after 30 days following its passage and approval. It requires only ten per cent of the voters who voted at the preceding general election for governor to invoke the referendum provisions. In the case of Plain City this would have required only 69 valid signatures. The fact that referendum provides a legal remedy has been frequently recognized; see e. g., Youngstown v. Aiello, 156 Oh St 32, 37, 100 N. E. 2d 62, 45 O. O. 45.

Mandamus as a proper legal remedy has been frequently recognized; see e. g. State v. Milan, 133 Oh St 499, 14 N. E. 2d 772, 11 O. O. 187, McQuillin Municipal Corporations 3d ed., v. 6, 53 Sec. 20.24. An action in mandamus to test the ordinance could have been brought any time between 18 June and 9 August 1956.

Of course, by 6 September it was too late for the plaintiff to exercise either of these legal remedies. This failure violates the well established equitable rule that, “Equity Aids The Vigilant.” This principle operates not only negatively, but also affirmatively; 20 O. Jur. 2d 154, Sec. 73.

A taxpayer may be estopped to bring a taxpayer’s suit because of his acquiescence or other conduct; McQuillin Municipal Corporations 3d ed. v. 18, 42, Sec. 52.15.

Although it is not alleged in the petition, it is a matter of. common knowledge that plaintiff, a resident of Plain City for thirty years, is, and has been, a member of the Board of Trustees of Public Affairs for many years. As a matter of judicial notice the Village population in the 1950 census was 1715.

In Town of Augusta v. Smith, 117 Ark. 93. 174 S. W. 543, in a case involving a sale and conveyance of the town’s light and water plant in January 1913, taxpayers in December 1913 attempted to intervene in a pending action (by a creditor) against the plant purchaser and operator alleging that the prior sale was void, asked that it be set aside and possession be restored to the town. The Chancellor dismissed the intervention for want of equity. The Supreme Court of Arkansas on affirming the trial court said at page 545 (S. W.):

“. . . the contract was entered into in perfect good faith and within the knowledge of all the citizens and taxpayers of the town. . . . We are of the opinion that the doctrine of estoppel applies, not withstanding the fact that the sale was unauthorized. (Emphasis ours.)
•\ . . Where the property owners acquiesced in the transaction, they are in no position to come into a Court of equity to ask the Court to undo that which has been done within their knowledge, and acted upon the prejudice of the other party.”

Ohio has long recognized the principle of estoppel where one party with knowledge of the facts has stood by without asserting his rights while others have incurred large expenditures or detriment by reason of such silence, which will be wholly or partially lost if such rights or objections are subsequently given effect; 20 O. Jur. 2d 515, Sec. 51; cf., Vollmer. Taxpayer v. Village of Amherst, 140 Oh St 257, 261, 43 N. E. 2d 236, 23 O. O. 461.

This principle has particular application in matters of public concern, as in the instant case, where equitable relief is sought. Plaintiff was bound to know the financial and operational problems faced by the village in the continued operation of the electric utility. His failure to name Ohio Edison as a party to the suit on 6 September 1956, when the transfer of the utility took place on 14 September and the acceptance of its offer of purchase being effective on 9 August 1956, and in fact not naming them as a party until 7 December 1956 and then only at the insistence of the Court, is illustrative and finds no favor in a Court of equity.

Plaintiff’s failure to avail himself of his remedies at law has imposed a hardship on the Ohio National Bank as Trustee. The Bank received $110,235.00 of the purchase price to pay the principal and interest on the Village Light Plant First Mortgage Revenue Bonds. How many of the bonds have matured in the interval or interest payments come due we do not know.

In consequence the bank on 14 September 1956, as Trustee, under a mortgage indenture, released two real estate and two chattel mortgages which were first liens upon the real and personal property used in generating and distributing electricity by the Village.

The Farmers Bank of Plain City merely holds the balance of the purchase price under a depository contract and has been required to answer, although it hás no interest in the proceedings whatsoever.

No. 235.

Decided July 27, 1957.

In conclusion, courts may not substitute their judgment for that of Legislative Authority; 28 O. Jur. 195, Sec. 106.

Counsel for the Ohio Edison Company is directed to promptly prepare an Entry accordingly, submitting it to other counsel and the Court, finding that the demurrer should be treated as a motion to dismiss the petition and ordering it to be sustained in that the facts alleged state no cause of action, the Ordinance being found valid; that plaintiff failed to pursue his legal remedies; and that plaintiff is estopped to seek equitable relief. Further it is sustained for failure of operative facts from which special injury to plaintiff or others in his class or general injury to the Village might be found — by reason of the execution of the provisions of the ordinance — so that plaintiff has no legal capacity to maintain the suit. Costs should be taxed to plaintiff and his exceptions noted.

Ohio Appeals, Second District, Madison County.

OPINION

By THE COURT:

On May 29, 1957, a notice of appeal was filed from a judgment of the Court of Common Pleas, signed by Waite, Schindel & Bayless, and Herbert Shaffer; Jackman, Nichols and Grubbs as attorneys for appellant. On June 13, 1957, Leslie R. Trees, Appellant, applied to this Court for an order dismissing him as a party and discharging him from liability from costs or any other liability as a result of the appeal filed. He accompanied the application with an affidavit substantially to the effect that affiant on or about June 5, 1957, wrote a letter to Waite, Schindel, Bayless and Schneider or Jackman, Nichols and Grubbs, to the effect that it was appellant’s impression that the decision in the Common Pleas Court was final; that he had learned that a notice of intention to appeal the case was filed; that he was not consulted in the matter before it was done and that it was not his desire to carry the case to a higher court; that he desired to serve notices on the firm of Waite, Schindel and Bayless that it should no longer represent him; that notwithstanding the notice and its receipt by the attorneys who represented him, they nevertheless on June 10, 1957, filed in this court assignments of error and brief and that affiant does not desire to appeal; that he has no intention of doing so and that it was filed without any consent on his part.

It appears that the letter to which reference is made in the affidavit was not received by the firm of Jackman, Nichols and Grubbs. An affidavit of Herbert Shaffer has been filed under date of June 22, 1957, to the effect that he is a partner in the law firm of Waite, Schindel, Bay-less and Schneider. That affiant employed D. H. Jackman, London, Ohio, as associate counsel who has acted as such at the time of the filing of the original petition and ever since with the understanding that Mr. Trees would not be personally liable for services rendered by Mr. Jack-man in this taxpayer’s litigation; that by numerous acts, Mr. Trees has ratified this employment of associate counsel; that the employment of affiant and his firm was to bring and prosecute the taxpayer’s action on behalf of the village of Plain City to prevent the sale of the municipal electric utility of the village under an ordinance which was set forth in the petition; that the said employment was broad and general and not limited or restricted, * * * with the understanding and agreement that Mr. Trees would not be personally liable for any attorneys fees for services rendered; that the affiant understood said employment gave him implied authority to take all steps and to do all acts necessary or incidental to the regular and orderly prosecution or management of the litigation until the final adjudication of the legal questions involved in the courts of Ohio.

An unsigned memorandum is filed under date of July 22, 1957, and with it a letter from the firm of Jackman, Nichols and Grubbs by Mr. D. H. Jackman to the effect that if the letter to the Cincinnati firm “is effective to discharge him as counsel for plaintiff, it is not effective to discharge me as counsel for the reason that my name was not mentioned in the letter and I have not, at any time, received a letter of dismissal from the taxpayer. However, my original employment was through Mr. Shaffer as associate counsel and I do not know definitely my own status in the case.”

Mr. Jackman asserts that he is willing to sign the memorandum as counsel for appellant.

The gravamen of the affidavit is that when the notice of appeal was filed, Mr. Jackman had no notice that he was no longer to represent appellant. It is urged that attorneys of record for the plaintiff in the trial court by their general employment in the taxpayer’s litigation, had the authority to file the notice of appeal in carrying out the purpose of such litigation. It is urged that the real matter in controversy is the authority of municipal officers to sell public property of the village “in disregard of statutes of Ohio prescribing the procedure for the exercise of such power.”

It is further urged that the case directly concerns the public interest and public property and that this court has the power to grant or deny dismissal or to dismiss upon certain conditions. It is insisted that the appeal should be retained upon the ground of public interest for the purpose of passing upon the validity of the ordinance and the sale.

The court has authority in taxpayers suits in the interest of justice to refuse to dismiss an appeal where others qualified to institute the action'and who will be adversely affected by the dismissal, as well as the nominal plaintiff have with the knowledge of the court intervened in support of the cause of action of petitioner. However, in this case, no person other than Mr. Trees, as a taxpayer, is named as party plaintiff and no one has appeared in this court other than counsel who have represented Mr. Trees to urge the cause of the class for whom the action is claimed to have been instituted.

There is no issue as to the purpose of the plaintiff to dismiss the appeal. Although the action of Mr. Jackman in filing the notice of appeal was not in violation of any instruction from his client, it now appears, and has so appeared from the formal notices of Mr. Trees to this court, that neither the Cincinnati firm nor Mr. Jackman is authorized to represent him on the appeal. Nor does it appear that any individual has sought to intervene in behalf of the class which Mr. Trees as plaintiff sought to represent.

Although taxpayers in the village of Plain City are affected by the judgment appealed from, we may not assume that any taxpayer considers himself adversely affected unless and until he by some action so indicates. As the record comes to us when the plaintiff dismisses his appeal, there is no known taxpayer of the village of Plain City who desires to be substituted as party plaintiff.

In this situation, we find no compelling reason to attach any condition to the dismissal of the appeal requested by the plaintiff.

There is a case, Berheim, et al v. Wallace, Judge (KyJ, 8 A. L. R. 938 and annotation, which throws some light of adjudication upon our question. The first syllabus of this case holds:

“1. A minority stockholder of a corporation, suing on behalf of himself and other minority stockholders, may dismiss the action without prejudice at any time while it is pending on appeal, before decision is handed down, both as to himself and all whom he represents.”

It is said in 17 Am. Jur., Page 63, paragraph 11, Dismissal and Discontinuance :

“It seems clear that after a plaintiff institutes a representative suit in behalf of himself and other persons and some one or more of the persons on whose behalf such suit is brought intervene in the action, the original plaintiff cannot dismiss the entire action.”

The request for a conditional dismissal will be denied and an order dismissing the appeal on behalf of the plaintiff may be entered.

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


author: By McALLISTER, Circuit Judge.

text:
    HASSELBRINK et, Appellants, v. SPEELMAN, Appellee.
    United States Court of Appeals, Sixth Circuit.
    No. 12916.
    Decided June 25, 1957.

      Richard W. Todd, Cincinnati (Clifford R. Curtner, Curtner, Brenton & O’Hara, Dayton, Dinsmore, Shohl, Sawyer & Dinsmore, Cincinnati, on the brief), for appellants.
    Hugh H. Altick, Dayton (Altick & McDaniel on the brief), for appellee.
    Before ALLEN, McALLISTER and MILLER, Circuit Judges.
   OPINION

By McALLISTER, Circuit Judge.

The sole issue in this personal injury case is whether the trial court was in error in refusing to charge the jury on the degree of care required of a motorist confronted by a sudden emergency.

Paul E. Hasselbrink and Eva G. Hasselbrink, appellants, on July 28, 1952, were returning, in their automobile, from a vacation spent in Michigan, and were proceeding to their home in Ft. Thomas, Kentucky. At Celina, Ohio, Mr. Hasselbrink, who had been driving, stopped for a soft drink, after which, Mrs. Hasselbrink drove the car, continuing in a southerly direction at a rate of between 30 and 35 miles per hour, on the westerly half, or her side, of the highway designated as Route 127.

Appellee Speelman was driving his automobile at the same time in a northerly direction approaching appellants. Mrs. Hasselbrink first observed Mr. Speelman approaching at a rate of speed of between 30 and 35 miles per hour on the easterly half, or his side, of the highway. It was about 4:30 in the afternoon of a very hot, humid day. It was getting dark, and looked as though it would storm any minute.

Mr. Speelman, the appellee, says that as he was going north, it was windy, and “a gust of wind took my car.” Before he had seen the Hasselbrinks, he had felt the wind hit his automobile. As he came up to the point of the accident, he says that he could feel the wind blowing against his car, in the impending storm. At that time the Has-selbrinks were on their side of the highway and Mr. Speelman was on his side. He says that when he was 200 feet away from the other car, the rear end of his car blew over a little; that he was blown to the left, but that he turned his car back; and that at that instant Mrs. Hassel-brink turned over toward him. He testified that a gust of wind made his car go “a little bit over”; that when his car moved to the left, he was not over the center line, and that the next thing he knew, she curved in front of him and he turned to his right. As he came north, he testified, he had difficulty with the car’s weaving “a little bit” on one occasion. He stated that he had maintained a steady speed, until his car made that sudden move to the left, and then he cut back to the right side of the road, and put on his brake a little, which caused him to go slightly to the left again. Mr. Speelman further testified that when the Hasselbrink car turned to its left he was only about a car length away; that he turned his car to the right first, and then Mrs. Hasselbrink turned her car to the left, in front of him; that when the collision occurred, both cars were turning; that when he had swerved to the left, his left front wheel was close to the center line — “was right on the center line.” He did not think it had passed over the line. He finally said that he did not know whether his left rear wheel got on any part of the center line; but that the left rear wheel had gone farther over than his left front wheel. He concluded by saying that his car had first weaved to the right and then to the left; that when the wind blew his car, he put on his brakes “a little bit,” and the rear end of his car “slid over” — it threw him a little more to the left — and then he saw Mrs. Hasselbrink coming across the road at him and that is all that he remembered. There is a considerable element of confusion, if not contradiction, in various parts of Mr. Speelman’s testimony.

Mrs. Hasselbrink testified that there was practically no wind blowing, and that appellee had been approaching on his side of the road, until “I saw him suddenly turn over into our lane, and he was so close to me that I had just a split second to turn to avoid a head-on collision, and almost simultaneously, he hit the right door of our car; he was right in front of my car in my lane. * * * He was as much in my lane as I was myself coming in the opposite direction. * * * I had just a minute’s time to avoid a head-on collision. That is why I turned the car very quickly, jammed on the brakes * * * and just as I did, there was almost a simultaneous impact. * * * I was in the car trying to avoid a head-on collision, death itself. I might have reached the center line (of the highway) * * * maybe the bumper may have been over the line, but I know that I couldn’t possibly have gotten any farther until he hit me and turned me completely around.”

Mr. Hasselbrink testified that “at the last minute I could see [Mr. Speelman] was attempting to pull to his right”; that the collision happened practically simultaneously as his wife turned to the left and Mr. Speelman turned to the right; that the collision was in the center, or just over into the east half of the highway; that the left front of the Speelman car hit the right front of the Hasselbrink car.

Negligence consists of doing something which a reasonable person, or one of ordinary prudence and care, would not have done, or omitting to do something which such a person would have done, under the same or similar circumstances, Baltimore & P. R. Co. v. Jones, 95 U. S., 439, 24 L. Ed., 506; Interstate Circuit v. Le Normand, 5 Cir., 100 F. (2d), 160, 161.

Did Mrs. Hasselbrink do something which an ordinarily prudent person would not have done, or omit to do something that an ordinarily prudent person would have done, under the circumstances? The evidence on behalf of appellants is to the effect that Mrs. Hasselbrink quickly turned from her right side of the road to the left when appellee had suddenly driven over the line into the lane of her on-coming car, and that appellee had then turned his car to the right almost simultaneously with Mrs. Hasselbrink’s turning hers to the left. Mr. Speelman admits that immediately prior to the collision, the front end of his automobile swerved over, so that its left front wheel was on or near the center line, and that its left rear wheel went over a little farther than the left front wheel. A part of the body of the Speelman’s car, then, must have been, according to appellee’s testimony, on Mrs. Hasselbrink’s side of the highway immediately before the collision. As Mrs. Hasselbrink said, “I don’t know how the back can get over on the other side and the front stay there.” Mr. Speelman testified that Mrs. Hasselbrink did not change her course, or move to her left, until after he had swerved to her side of the highway. Mr. Speelman testified that the collision occurred two feet over the center line and on his side of the highway. Mr. Hassel-brink said that it occurred in the center or just over in the easterly, or Mr. Speelman’s, side of the highway. Mrs. Hasselbrink said she couldn’t tell the exact point; that she had just barely turned; that her car might have reached the center line, or just over the line. “I was headed out of his way. * * * I was in my lane when I turned; and it was just a split second when I turned. * * * He was in my lane completely and he must have been when he hit my car. Naturally I couldn’t stay right there in that same spot.”

Appellants’ evidence sustain their claim that just before the collision Mrs. Hasselbrink was confronted by a sudden emergency. If the driver of a motor vehicle is suddenly confronted by the wrongful act of a third person, the emergency doctrine applies. It is held that where a bus was being driven along the proper side of the road, and an automobile was approaching on the wrong side of the road, so as to create a danger of collision, an emergency was created as a matter of law. Morrow v. Southeastern Stages, 68 Ga. App., 142, 22 S. E. (2d), 336. In the above case it was held that where the evidence was conflicting as to whether the automobile or the bus was being driven on the left side of the highway as they approached each other, the trial court properly charged the jury that the bus driver had the right, if on the proper side of the highway, and faced with impending collision, to cross to the left side of the highway in an attempt to avoid the collision. Where motorists were proceeding in opposite directions and each was on his proper side of the highway, when one suddenly made a left turn just before an intersection, an emergency was created for which the motorist attempting to make a left turn was solely to blame. The emergency rule, when properly applied, excuses inaction on the part of an innocent driver in his proper lane of traffic, when suddenly confronted with an automobile on the wrong side of the road. Gross v. Gross, 7 Cir., 169 F. (2d), 199.

If the collision occurred on Mrs. Hasselbrink’s side of the highway, it was for the jury to say whether, when appellee drove into her lane, she did what a reasonably prudent person would have done under similar circumstances, or omitted to do what such a reasonably prudent person would have done. Should she have turned to the right, or to the left, or continued in the same direction? If the collision occurred at the center line of the highway, should she have turned to the right, or continued on in the direction she was going? If the collision occurred on the easterly side of the highway, or on Mr. Speelman’s side, was she justified in turning to the left after he had come directly into her path, and then at the last instant attempted to turn right again?

We must accept appellants’ testimony, for the purpose of determining whether their proofs justified a charge on the issue of “sudden emergency.” Mr. Speelman’s car had been weaving down the highway as he approached them; the wind had carried him over to the left; and an instant before the accident, according to Mrs. Hasselbrink, he had driven his car completely over into the lane of the on-coming car of appellants. Just before they collided, all parties and witnesses to the accident say that, as Mrs. Hasselbrink suddenly turned to the left, Mr. Speelman also suddenly turned in the same direction. Such proof presented the issue whether Mrs. Hasselbrink was confronted by a sudden emergency, and whether she acted as an ordinarily prudent person would have acted when confronted by a like emergency.

We cannot say, under the record in this case, that because the collision may have occurred one foot or two feet across the center line of the highway, or appellee’s side of the road, that the requested instruction, as to “sudden emergency,” was based upon a hypothesis unsupported by evidence, or contrary to the theory upon which appellants founded their complaint. Here two cars approached each other, each at a speed of 35 miles an hour. Suddenly, according to appellants’ evidence, appellee’s car turned directly into the path of their oncoming car. When only a car length apart, both cars turned almost simultaneously, and collided almost immediately. It challenges belief that under such circumstances, either driver would know the exact point of impact, since both were intent upon the other. Enough appears to present the issue of “sudden emergency.” If the collision took place on appellee’s side of the road, the question whether plaintiff was excused from complying with the statute requiring one to drive his car on the right half of the roadway (with certain exceptions not here relevant), would be for the jury. See Williams v. Powers, 6 Cir., 135 P. (2d), 153

It is submitted by counsel for appellee that the court should not be required to charge on an issue not pleaded and not supported by substantial evidence. It is true that the issue of “sudden emergency” was not pleaded by the plaintiff appellants; but without discussing the question whether such emergency should be pleaded by plaintiff, it is the rule that when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendments as may be necessary to cause them to conform to the evidence and to raise these issues may be made, upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. Rule 15(b) of the Federal Rules of Civil Procedure, 28 U. S. C. A. In J. J. Theatres v. Twentieth Century-Fox Film Corp., 2 Cir., 212 F. (2d), 840, in reversing the judgment of the District Court on such an issue of pleading, the Court of Appeals held that in an action for conspiracy, where the evidence was sufficient to sustain the claim based on a certain theory not set forth in the pleadings, the case should be submitted to the jury as though the complaint were sufficient to state such a claim, since the complaint may be deemed amended to conform to the proof, even where such holding results in a reversal of the judgment of the District Court. Rule 15(b), allowing amendments to conform to the evidence, permits amendments to be made by any party and is not limited to successful litigants. Bauler v. Pressed Steel Car Co., D. C., 81 F. Supp., 172. In Katz Drug Co. v. Katz, D. C., 89 F. Supp., 528, 536, the court said: “Though laches was not pleaded, the evidence in the record clearly establishes such a defense. Under Rule 15(b), Federal Rules of Civil Procedure, 28 U. S. C. A., the issue may be treated as though it were properly raised.” As we have said, the proofs on the part of appellants disclosed that Mrs. Hasselbrink was confronted by a sudden emergency. Were it necessary to plead the emergency, as an excuse for an act that might otherwise constitute contributory negligence, the pleadings, in the light of the evidence adduced, are deemed to be so amended.

As to appellee’s claim that appellants failed to save for review the question of the trial court’s refusal to instruct on the issue of emergency, by reason of neglecting to object to the instructions as given, counsel for appellants stated at the conclusion of the court’s charge: “Plaintiffs object to the refusal of the court to charge on emergency, as an admission, as previously submitted to the court.” The inclusion of the phrase, “as an admission,” in the objection, makes for some obscurity. Counsel suggests that it means “as an excuse.” However, there seems no question that the objection informed the court that plaintiffs were complaining of his failure to charge on the issue of emergency. It is stated in appellants’ brief, and not denied, that the trial judge, after receiving the submission of special requests to charge, stated that he would consider them until the next day, at which time he requested counsel to appear in chambers when he informed them that he was not going to include in his charge an instruction on the issue of “sudden emergency.” Further, in denying a motion for a new trial, the court stated that all of the questions that had been raised therein, had been argued and discussed during the progress of the trial, and that counsel for plaintiffs especially stressed the claim that the court was in error in not giving an instruction on the issue of emergency. Where the record discloses that the point urged on appeal was called to the attention of the trial judge in such a manner as clearly to advise him as to the question of law involved, that is sufficient as against the contention that objections were not formally made to the instruction as given. Williams v. Powers, 6 Cir., 135 F, (2d), 153. The purpose of exceptions is to inform the trial court of possible errors, so that it may have an opportunity to reconsider its rulings, and, if necessary, correct them, and when there has been a full discussion of the point raised which adequately informed the court as to what the plaintiff contended was the law, the entry of a formal exception to his charge in that regard is a mere technicality. Sweeney v. United Feature Syndicate, Inc., 2 Cir., 129 F. (2d), 904. Because of counsel’s objection to the charge as given in the instant case, and the full discussion and consideration of the point during the progress of the trial, appellants are not precluded from raising the claim of error on the part of the court in declining to instruct, as requested, on the issue of “sudden emergency.” We have held that the instruction requested by counsel should have been given.

In accordance with the foregoing, the judgment is set aside, and the case is remanded to the district court for a new trial.


text:
    BOTNICK, d. b. a. HOUSEHOLD SALES CO., Plaintiff-Appellant, v. PACE, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24246.
    Decided November 27, 1957.
    Blum & Blum, Hyman J. Blum, for plaintiff-appellant.
    Betty M. Bunin, for defendant-appellee.
   OPINION

By SKEEL, PJ.:

This appeal comes to this court on questions of law from a judgment for the defendant entered by the Municipal Court of Cleveland on defendant’s petition to vacate a default judgment entered against him in the case and to dismiss the action for want of jurisdiction.

The plaintiff filed his petition in the Municipal Court of Cleveland seeking judgment for an alleged debt due for furniture claimed to have been purchased by the defendant. Mail service was had on the defendant at his residence in the City of Cleveland Heights. The transcript shows that the petition was filed August 13, 1953; summons returned — mail service — August 14, 1953. Defendant having failed to answer or demur, a default in the pleading was entered on September 9, 1953, and the case was “set for trial on the active list.” The transcript further shows that on September 16, 1953, a leave to plead slip was filed by a lawyer allegedly acting for the defendant granting leave to the “plaintiff to file answer by September 26, 1953.” The leave slip was signed by Hyman Blum, Attorney for Plaintiff and Albert A. Vito, Attorney for Defendant.

The plaintiff demanded a jury on September 18. On October 19, a letter was received by the Clerk of the Municipal Court from Albert A. Vito withdrawing as attorney for the defendant and on the same day, the transcript shows the following entry: “Case called, plaintiff in court — defendant not; trial had; court finds for and renders judgment in favor of plaintiff in the sum of $2847.10 and costs” which entry was journalized on that day.

On April 6, 1956, the defendant filed a petition to vacate judgment and summons was issued for service on the plaintiff, which summons was served by the bailiff on April 9, 1956, the return, as shown by the transcript, is as follows:

“On April 9, 1956, I served this writ on the within named Lester Botnick, dba. by leaving a true and certified copy thereof with all endorsements thereon at the office and usual place of business with Marvin Neben, Trustee in Bankruptcy.”

A second petition to vacate was filed April 13, 1956 (when service was attempted by publication) which petition, in brief, alleged the record of the default judgment, that mail service was shown on the halfsheet; on March 11, 1954, a certificate for a judgment lien was delivered to Marvin Neben, Trustee in Bankruptcy, which he filed for record on the lien docket of the Common Pleas Court of Cuyahoga County. It is further averred that service was attempted to be made on the defendant at his residence in the City of Cleveland Heights, and that, for that reason, the Municipal Court of Cleveland was without jurisdiction of his person and that such judgment was absolutely void. It is also alleged that the plaintiff knew that he never had had any business relations with this defendant and that he, the defendant, did not purchase the goods and was, to his knowledge, not indebted to the plaintiff, and that the judgment was procured on false testimony.

On April 24, 1956, a motion to amend the entry of September 16, 1953, to show that the defendant was given leave to plead, was filed and on May 21, this motion came on for hearing and was overruled by the court. A bill of exceptions was filed on the evidence taken on the motion to correct the record. An appeal to this court was then taken, claiming the overruling of such motion as error. This appeal was dismissed by this court holding that the entry refusing leave to amend the “leave to plead” slip was not a final order. Thereafter, the petition to vacate the judgment was heard. The court granted the prayer of the petition and vacated the judgment and dismissed plaintiff’s petition for want of jurisdiction. The court journalized its judgment, its findings of fact and conclusions of law, on June 17, 1957.

The errors complained of are:

“1. The Trial Court abused its discretion when it overruled the plaintiff’s motion to amend and correct an entry by nunc pro tunc order.
“2. The Court erred in overruling the plaintiff’s motion to amend and correct an entry by nunc pro tunc order.
“3. The Trial Court abused its discretion and erred when it overruled the plaintiff’s motion to quash service of summons by publication with reference to the petition to vacate as filed by the defendant.
“4. That the Trial Court erred in vacating the judgment of the plaintiff, and that the Trial Court.further erred in dismissing the plaintiff’s petition, which is contrary to law and contrary to the weight of the evidence.
“5. That the plaintiff was precluded from having a fair trial for the reason that the Trial Court objected and sustained its own objections during the entire trial, all as referred to in the Bill of Exceptions.”

It will be noted that the judgment of the court is supported by evidence which is not contradicted in the record. An examination of the bill of exceptions shows that this defendant testified that he did not know the plaintiff, that he had never dealt with him, and he denied categorically that he ever was indebted to the plaintiff in any amount or that he authorized his brother, “Jerry” Pace, to purchase furniture on his credit. He also testified that he did not know or authorize a lawyer to appear for him or enter his appearance in the case.

The plaintiff did not testify. It is also true that the lawyer who signed the consent to plead slip was not called as a witness so that there is no direct contradiction in the evidence of the defendant’s denial of any obligation owing the plaintiff or that a lawyer was either hired or authorized to represent him in defense of the action.

The trial court, in its findings of fact, found:

“On August 13, 1953, the petition was filed and summons were issued in this case. The defendant at that time resided and ever since that time always resided in Cleveland Heights, Ohio. The attempted service was made by mailing him a copy of the petition at his residence in Cleveland Heights, Ohio. The Court further finds that a brother of the defendant, one Jerry Pace, upon learning of the filing of the original action, without authority from the defendant, without his knowledge and consent, has enagaged an attorney, one Albert Vito, to look into this matter. The defendant never met Albert Vito, never engaged him, never did he authorize him directly or indirectly to represent him in the original action. Thereafter the said Albert Vito had contacts with plaintiff’s attorney and filed some pass slips in the case without the defendant’s authority, consent or knowledge. Subsequently he withdrew from further representing defendant’s brother.”

From the foregoing record of this case, this court can come tó no other conclusion but that the failure to order a correction of the wording in the leave to plead slip, which wording while obviously incorrect, had no part in influencing in any way the final judgment entered for the defendant on his petition to vacate the default judgment or in any way prejudiced the rights of the plaintiff in the trial of this case. The plaintiff was not limited in presenting all the evidence he cared to offer on the subject of whether or not Attorney Albert A. Vito was or was not authorized to act for the defendant. The court’s conclusion that he was not is supported by credible evidence. The other errors claimed are likewise not supported by the record.

The judgment for the defendant, vacating the default judgment against him, and the dismissal of the case for want of jurisdiction, is affirmed. Exceptions noted.

HURD and KOVACHY, JJ, concur.


author: By THE COURT:

text:
    CORBIN, d. b. a. CORBIN REALTY COMPANY, Plaintiff-Appellee, v. SMITH et, Defendants-Appellants.
    Ohio Appeals, Second District, Clark County.
    No. 540.
    Decided April 22, 1957.

      Rush & Henderson, Springfield, for plaintiff-appellee.
    Durfey, Martin, Browne & Hull, Springfield, Forest Hogue, Fairborn, for defendants-appellants.
   OPINION

By THE COURT:

This is an appeal on questions of law from a judgment of the Common Pleas Court of Clark County, entered on a verdict rendered in favor of the plaintiff in the amount of $4,100.00 in an action wherein the plaintiff sought to recover a real estate broker’s commission.

Plaintiff alleges that on or about March 20, 1954 the defendants entered into an oral contract with the plaintiff whereby the plaintiff was to procure a purchaser for defendants’ farm real estate at a price acceptable to the defendants; that if plaintiff was successful in procuring a purchaser for defendants’ farm he was to be compensated for his services as a real estate broker; that plaintiff, relying on said oral contract, did procure a purchaser for said premises, which purchaser paid a sum of $82,000.00 for said real estate. The answers of defendants, after admitting that the premises in question were sold by them for the sum of $82,000.00, were in the nature of a general denial. The jury returned a general verdict for the plaintiff for 5% on the purchase price, to-wit: $4,100.00.

The defendants assign as error the action of the court in sustaining plaintiff’s motion for directed verdict at the conclusion of all of the evidence. The record shows that counsel for the defendants, before the court directed the verdict, moved to submit the matter to the jury. This motion was sustained and the matter was submitted to the jury. The action of the court did not work to the prejudice of the defendants. This assignment of error is not well made.

For their second and sixth assignments of error the defendants raise the question as to the propriety of the court limiting the issues during the progress of the trial to the question as to whether or not the plaintiff secured a purchaser, and with respect to the special instructions. During the progress of the trial, the court, in several instances, stated that the issue is whether or not the plaintiff, through his services, was the procuring cause of the sale. The. court gave a special instruction, which reads as follows:

“I charge you, Members of the Jury, that a broker is entitled to a commission even if he did not bring the purchaser and seller together or even if he did not show the property to the purchaser, if the jury finds by a preponderance of the evidence that he was in fact the procuring cause of the sale under such circumstances that the law attaches an obligation on the part of the sellers to pay the broker’s commission.”

The evidence presented in support of the plaintiff’s claim is to the effect that plaintiff was employed as a real estate broker to procure a purchaser for defendants’ real estate at a price acceptable to the defendants, and that the plaintiff should be paid a broker’s commission if a purchaser was procured. The record shows that plaintiff produced Mr. Paul E. Cronley as a prospective purchaser, took him to the farm on two occasions, introduced him to the tenant farmer, with whom Mr. Cronley made satisfactory arrangements whereby the tenant farmer would be retained on the farm; plaintiff introduced the purchaser to one of the three defendants, who were tenants in common, and the other defendants were advised that Mr. Cronley was a prospective purchaser; that the plaintiff succeeded in having Mr. Cronley make at least two separate offers, one for $75,000 and another for $77,000, as the purchase price for the farm, both of which offers were rejected by the defendants; that these negotiations took place over a period of approximately three weeks; that at this juncture the prospective purchaser made direct contact with the defendants and approximately one month later entered into a contract whereby he agreed to purchase said property for $82,000. This deal was later consummated. The evidence shows that plaintiff attempted to get the parties together on the price up until the date of the sale.

The position of the trial court was that since the deal was consummated the question as to whether the price was acceptable to the defendants was no longer an issue. The court followed the ruling of this Court in Portney v. Frank, 77 Oh Ap 357, 65 N. E. (2d) 290. The second paragraph of the syllabus is as follows:

“Where a real estate broker sues for a commission, and the evidence most favorable to plaintiff’s case tends to prove that the broker and the owner entered into an oral agreement whereby the broker was employed to sell the owner’s property at an ‘open figure,’ and the broker thereupon made an effort to procure a purchaser and presented an offer from a prospective purchaser, which offer was rejected by the owner, after which the broker continued his efforts to effect a sale, and within two months after the offer was rejected the owner and purchaser, without the knowledge of the broker, consummated a sale, the broker is the ‘procuring cause’ of the sale and is entitled to recover the customary commission based on the actual sale price.”

The facts in this case, when construed most favorably to the plaintiff’s cause, require the application of the rule laid down in Portney v. Frank. The following cases cited by counsel for the appellant in support of this assignment of error are distinguishable on the facts. In Hoffman v. Rosendahl, 101 Oh Ap 526; Hoke, et al., v. Marcis, 71 Abs 364, 127 N. E. (2d) 54; Schmidt, Inc., v. Brock, 97 Oh Ap 469, 127 N. E. (2d) 219; Schaefer v. Winkler, 82 Oh Ap 435, 81 N. E. (2d) 544, the broker agreed to procure a purchaser for a specific price agreed upon between the broker and the seller. In the case at bar, the broker was employed to procure a purchaser at a price acceptable to the sellers. The court, in the submission of this case, limited the issues to the questions whether the plaintiff had been employed to procure a purchaser, and whether plaintiff was the procuring cause of the sale. The special instruction was in all respects proper on the evidence and the issue presented.

The appellants contend that the court erred in allowing testimony of witnesses as to the statements made by the purchaser not in the presence of the defendants. These statements were elicited by counsel for the purpose of showing that a continuous effort was made by the plaintiff to consummate a deal between the purchaser and the defendants. This line of testimony falls within the rule stated in Vol. 21, O. Jur. 2d, Sec. 288, page 302. Furthermore, it is our conclusion that this evidence was in no respect prejudicial to the rights of the appellants.

For their fourth assignment of error the appellants claim that the court erred in refusing to allow the testimony of Howard Dye with respect to a conversation which took place between an agent of the plaintiff and one of the defendants. The court took the position that the evidence was in the nature of impeachment and that no foundation had been laid for such impeaching testimony. Counsel for the appellants conceded that the testimony would to some degree impeach the testimony of the agent for the plaintiff, but strongly urged that the testimony was admissible without having laid any foundation. This Court can not determine from the record whether the testimony sought to be introduced by the defendants on direct examination of their own witness was or was not in the nature of impeaching testimony, since no proffer was made of such testimony. This assignment of error is not well made.

For their fifth assignment of error appellants contend that the court erred in refusing to charge the jury upon request of counsel for the appellants as to the obligation which an agent owes to his principal to apprise the principal of all matters affecting the transaction. There was no issue made in this case which would require such a charge. The court did not commit prejudicial error in refusing to give a charge on this matter.

We find no error committed by the trial court, as stated in appellants’ seventh assignment of error, in overruling defendants’ motion to strike the answer of a witness. Neither does this Court find any prejudicial error committed, as claimed in the eighth assignment of error, in admonishing the jury and in stating “although, of course, you are free in your own minds to be thinking about the case and considering whatever you wish, mentally.”

After a careful examination of the entire record in this case it is our opinion that this cause was fairly tried and that substantial justice has been done. We conclude that the verdict of the jury was not contrary to law nor manifestly against the weight of the evidence, as claimed in appellants’ ninth assignment of error.

Finding no error in the record prejudicial to the rights of the appellants, the judgment is affirmed.

HORNEECK, PJ, WISEMAN and CRAWFORD, JJ, concur.