author: SULLIVAN, P. J.

text:
    FERGUSON v. SIEGEL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8299.
    Decided Feb. 13, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    480. EVIDENCE — 923. Pleadings — 297. Contracts.
    1. Where suit is on alleged oral contract and defense alleges written contract, burden is upon plaintiff to establish that work was based on verbal contract and issues make it competent for either side to offer evidence as to reasonableness of terms.
    2. Documentary evidence containing matters foreign to issues as raised by pleadings, held not admissible.
    Error to Municipal Court.
    Judgment reversed.
    M. B. Price and Fielder Sanders, Cleveland, for Ferguson.
    P. Sampliner, Cleveland, for Siegel.
    STATEMENT OF FACTS.
    This cause is here on error and the parties stood in the inverse order below, the plaintiff, Siegel, suing- upon an express verbal contract for the value of materials and labor plus ten per cent, he being a carpenter contractor and engaged in- remodeling three houses on East 88th Street, at the instance of the defendant, Maude A. Ferguson who, in her pleading, alleged that as to the work on the house at 2037 E. 88th Street, the agreement was based upon a written contract which, as the work progressed, was modified in writing, and the result was that the contract price was increased to the amount of some $700.
   SULLIVAN, P. J.

“Thus it becomes a question of fact to determine' which view was the correct one, basing the analysis of the case upon whether there was a verbal contract or a written contract as claimed by the contending parties.

Under such a state of the pleadings, the burden of proof was upon the plaintiff Siegel to establish, under the rules of law, that the work was based upon a verbal contract, and the issues made it competent for either side to offer evidence as to the reasonableness of the terms of the contract. It is charged that the court below committed prejudicial error in that, under objection and exception, the bills for lumber and hardware and time sheets for labor were introduced as substantive evidence to prove the plaintiff’s claims as to the total amount that was due him from the defendant, Ferguson. These documents, it is claimed by plaintiff, were used by the plaintiff while on the witness stand, for the purpose only of refreshing his recollection, but, upon this point, the defendant argues that not even for the purpose of recollection were these instruments of writing employed. It.is admitted, in oral argument, by plaintiff’s counsel, that the sole purpose of their use was to aid the recollection of the party plaintiff, and this admission, as well as the record in the case, is determinative of the question of error, because the parties to this litigation were not in privity with respect to these instruments in writing, whose source were the lumber firms or the laborers who performed the labor and hence, the evidence was of an extraneous nature and not binding, under the rules of evidence, upon the defendant below, inasmuch as she was no party to the transaction, but the documents contained matters foreign to the issues as raised by the pleadings, and the evidence in character was hearsay, and it being of a documentary nature and in the form of exhibits that went to the jury, it appears quite clear to us that their effect was prejudicial, and that the learned trial court, in permitting their introduction, was in error under the rules relating to the introduction of ■ evidence as to book accounts.

Thus it is our unanimous opinion that in this respect there was prejudicial error.

Another assignment of error is that the defendant was denied the right to offer testimony as to the reasonable value of the services for which claim was made. This class of evidence was competent on the ground, above stated, that where there is an issue as to which is the proper contract, evidence as to what is reasonable or unreasonable becomes competent as shedding light upon the real issue as to which is the contract. With this status in, the case, the defendant below, in our judgment, had the right to offer evidence of this character and, under the record, the denial of this right, we think, it prejudicial error.

Holding these views, the judgment of the lower court is hereby reversed, and, inasmuch as the ultimate facts are apparently conceded in the record, under the authority of the Supreme Court, we render final judgment for the plaintiff in error.”

(Vickery and Levine, JJ., concur.)


source: Caselaw Access Project

author: ALLREAD, J.

license: Public Domain

text:
    GROVER et. v. N. Y. CENT. RD. CO.
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1581.
    Decided Oct. 14, 1927.
    Ferneding and Allread, JJ., of the 2nd Dist.,, and Cushing, J., of the 1st Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    367. DEEDS.
    1. Unidentified and unsigned paper containing recital purporting to connect it with deed, and purporting to> show part of consideration for such deed, cannot be made part of such deed.
    2. Such case requires clear and convincing evidence and, without some legal identification, subjoined clause cannot be enforced.
    Error to Common Pleas.
    Petition dismissed.
    Luther L. Boger, Columbus, for Grover et_
    Vorys, Sater, Seymour & Pease, Columbus, for N. Y. Cent. Rd. Co.
    STATEMENT OF FACTS.
    The action involves the right of the plaintiffs to enforce, by way of injunction, a certain alleged covenant for the construction and maintenance of a private switch and the affording of certain switching facilities. The alleged covenant arises out of a conveyance of a right of way by A. C. Doney to the Toledo '& Ohio Central Railway Company in the year 1880. The plaintiffs claim as the successors in title from A. C. Doney.
    The original deed was lost by fire in the offices of the Toledo & Ohio Central Railway Company and has not been recorded. A substitute deed was executed July 18th, 1889, and thereafter recorded. A certified copy of the substitute deed was offered in evidence and is relied upon by the plaintiffs. The consideration clause of the deed recites:
    “For and in consideration of the sum of One Dollar and other valuable consideration.”
    Following the deed proper in the record is the following:
    “By the clause valuable considerations it is understood and agreed that there is to be, at or near the National Road crossing, a station switch and facilities for shipping'as occasion requires, the same to be maintained by the Ry. Company to afford parties of the first part usual facilities for freight and other shipments. Also that the railroad company is to maintain and keep in repair a good and sufficient fence upon either side of its railroad.”
    The certified copy of the deed, including the subjoined clause, was offered in evidence by the plaintiffs. The defendant admitted the deed subject to objections thereto.
    It appears that shortly after the original deed was executed, and the railroad was constructed, the original railroad company constructed a switch from its main track onto the lands of Doney,. being now Lot No. 20 as subdivided. The switch was maintained by the original railroad company and its successors until removed by defendants shortly before this action was brought. The defendants contend first that the subjoined clause containing the alleged covenant is not sufficiently identified to sustain its validity, and second, that even if connected with the deed the same is insufficient, to support the contentions of plaintiffs that it became a covenant running with the land.
   ALLREAD, J.

“If there had been a reference or recital in the original deed as to the subjoined clause there could be little foundation for a doubt ■that the subsequent paper would thereby have been made a part of the original document. The books are full of cases to that effect. Here, however, we have the reverse, the unidentified and unsigned paper containing a recital purporting to connect such paper with the deed. We think however, that is not sufficient. So far as the documents themselves are concerned the subjoined clause is merely a waif upon the doorstep. It has no recognition from within. It cannot, therefore, stand of its own force. This is a case requiring clear and convincing evidence to support the relief and without some legal identification of the subjoined clause we do not see how the same can be enforced.

Upon a consideration of the entire case we are of the opinion that the plaintiffs have not made out the case stated in the petition and that said petition must be dismissed.”

(Ferneding and Kunkle, JJ., concur.)


author: SULLIVAN, PJ.

text:
    B. & O. RD. CO. v. METZ.
    Ohio Appeals, 8th Dist, Cuyahoga Co.
    Decided Dec. 19, 1927.
    Syllabus by Editorial Staff.
    301. CONTRIBuTORY NEGLIGENCE — 829. Negligence —793. Motor Vehicles.
    Where slow moving truck is struck, on blind crossing, question of negligence is one for jury.
    Error to Common Pleas.
    Judgment affirmed.
    Tolies, Hogsett & Ginn, Cleveland, for Railroad Co.
    M. C. Harrison and Thos. Stevenson, Cleveland, for Metz.
    STATEMENT OF FACTS.
    The parties in this error proceeding stood in the reverse order in the court below and will be referred to herein as in the relation they therein stood.
    The plaintiff Metz, on March 27, 1925, was the owner of a White truck that was being operated, by his driver, towards Cleveland, and, after leaving Toledo and as he was about to enter the village of Monroeville, he came to a railroad crossing of the Baltimore & Ohio Railroad Co., and a collision occurred which practically destroyed the truck.
   SULLIVAN, PJ.

“Reviewing the record to ascertain whether the plaintiff was guilty, as a matter of law, of contributory negligence, under the holdings in Ohio, we have come to the conclusion that the record does not sustain that claim. It appears from the facts plaintiff was driving slowly and exercising all caution necessary to warn him of an approaching train. He was driving slowly after having stopped at a gasoline station close to the intersection, and by reason of cars on side tracks, other obstructions and the' curving to the west of the railway itself, it was impossible for him to see the train approaching the station, and there is credible evidence to show that, had he stopped the truck immediately before attempting to cross the railroad tracks, the obstructions and the curving of the railroad would have obstructed his view, which was short, between the sharp curve and the intersection, so that after he returned to the truck and assumed his station as driver and started his machine, the engine of the train might have reached the intersection, before he had opportunity to save himself or the truck.

We do not think, under circumstances of this character, that there was contributory negligence as a matter of law, and we think that the facts, as exposed in the record, were such as made it a jury question, and, the same having been submitted to that tribunal, it is our judgment that we are bound by the result in the face of the record.

Holding these views, the judgment of the lower court is hereby affirmed.”

(Levine and Vickery, JJ., concur.)


author: SHIELDS, J.

text:
    REYNOLDS v. HART.
    Ohio Appeals, 5th Dist., Stark Co.
    Decided Nov. 27, 1927.
    Syllabus by Editorial Staff.
    829. NEGLIGENCE — 928a, Police Officers.
    Police officer in pursuit of speed law violator not bound to observe speed law, but must use reasonable care under circumstances.
    Error to Trial Court.
    Judgment affirmed.
    Amerman & Mills, Canton, for Reynolds.
    Ake & Abt, Canton, for Hart.
    STATEMENT OF FACTS.
    The action here is for damages as the result of a collision between a motorcycle being driven by plaintiff and an automobile being driven by defendant in the village of Brewster, in said county, whereby plaintiff claims to have sustained severe and serious personal injuries, and a partial destruction of his motorcycle, caused by the alleged carelessness and negligence of the defendant.
    In his petition plaintiff alleges that on the night of October 12, 1923, he was acting as motorcycle policeman in said village and. while using his motorcycle in pursuit of certain persons violating the speed laws of said village, the defendant, who was traveling the same direction through said village in an automobile, in the rear of said speed violators, suddenly and without warning or signal, and in a careless and negligent manner, turned from the right to the left side of the street or highway with his automobile and, while in the act of so turning his automobile, collided with plaintiff’s motorcycle whereby he was thrown off his motorcycle violently to the ground by which he was seriously injured and suffered a long time, as particularly described in said petition, and that his motorcycle was damaged, for which he says he sustained damages in the sum of $5,780 for which he prays judgment.
    . In his answer defendant admits the collision referred to whereby plaintiff was injured and his motorcycle was damaged, but he makes a general denial of the other allegations in said petition not expressly admitted in said answer.
    He further says that as he was traveling through said village of Brewster at a lawful rate of speed in his automobile to make a professional call in said village and, on reaching a point opposite to the residence of his patient which was on the left side of the street in which he was traveling, and giving distinct notice and signal of his intention to cross said street at said point, he undertook to turn his automobile from the right to the left side of said street or highway to enter the premises of his patient, and, in doing so plaintiff came along on his motorcycle, with a sidecar attached thereto, at a rate of speed not less than fifty miles an hour, and collided with his automobile. He denies that he was in any wise negligent or that he 'was the cause of plaintiff’s injuries, but says that plaintiff’s said injuries and the damage, to his motorcycle were caused solely by plaintiff’s own negligence and he therefore asks for a dismissal of plaintiff’s petition.
    A general denial is made of the allegations of said answer by the plaintiff.
    A verdict was returned by the jury for the defendant and judgment entered thereon. Said judgment is sought to be reversed by the plaintiff by a petition in error upon the grounds of error therein stated.
   SHIELDS, J.

“At the conclusion of the trial court’s charge to the jury and on the court making inquiry of counsel as to whether anything had been omitted in said charge to which counsel desired to call the court’s attention, the following appears.

Mr. Mills: Your Honor, I think you ought to charge this jury on the duties and rights of a motorcycle officer in making arrests inside of the municipality concerning the speed laws. If he is obliged to and his duties require him to drive bis motorcycle faster than the speed limit fixed for persons driving in that municipality, it is his duty as an officer to do so. I ask the court to charge that to the jury.”

These requests have been examined by us with no little care and we are of the opinion that they and each of them contain a correct statement of the law. While we entertain this opinion, still we likewise think that the request made of the court by counsel for explanatory instructions to the jury concerning the right of an officer to exceed the limitations of a municipal speed ordinance, if necessary, when in pursuit of and apprehending speed violators in -such municipality, was not an unreasonable one and should have been given.

In Washing v. Gorham, 9 American Law Reports, Annotated, pg. 368, in discussing the rights of officers changed with the enforcement of a municipal ordinance regulating speed, the court, in the announcement of its opinion, in said case, says:

“That the enforcement of statutory or ordinance provisions limiting the speed at which a motor-propelled vehicle shall be driven over a public highway, against a peace officer, would have a tendency to hamper him in the performance of his official duties, can hardly be doubted. * * * Some officers may abuse their privileges in this respect, as well as in others, and must answer for such abuse. What is meant to be said is that the statutory regulations as to speed do not apply to them, and that for an abuse of their privileges in this respect they must answer in the manner they are required to answer for other abuses of privileges.”

In Edberg v. Johnson, Vol. 21, Negligence Compensation Cases, Annotated, pg. 81, is to be found a case closely analagous to the case before us. In passing upon said case, the court says:

“To secure the safety of the public is one of the principal objects of the statute. A criminal, seeking to get away from the scene of his crime, could travel in an automobile driven at a high rate of speed. There are reckless drivers of automobiles who pay no attention to the speed laws. Both classes of offenders must be overtaken by the officers of the law if they are to be placed under arrest. As an aid to officers on patrol duty, no vehicle more serviceable than the motorcycle has as yet been invented. Of course it is possible for some officers to use automobiles instead of motorcycles, but their use would be equally if not more dangerous to others, if driven at a high rate of speed. Taking into- consideration the object sought to be obtained by the statute and the evident purpose of the legislature to except from the operation of the statute vehicles employed as instrumentalities of municipal fire and police departments, we hold that motorcycles so employed are within the exception made by the statute.
We do not hold that any officer, when in pursuit of a lawbreaker, is under no obligation to exercise a reasonable degree of care to void injury to others who may be on the public roads and streets. What we do hold is that when so engaged he is not to be deemed negligent merely because he fails to observe the requirements of the motor vehicle act. His conduct is to be examined and tested by another standard. He is required to observe the care which a reasonably prudent man would exercise in the discharge of official duties of a like nature under like circumstances.”

The last paragraph in each of the foregoing cited cases seems to hit the reason of the rule that while the privilege mentioned may be accorded an officer in pursuit of a violator of the speed law of a municipality, he is nevertheless liable if he abuses that privilege. The law has no favorites, but if it had it would not likely be ready to bestow its favors upon an office-holding class selected to uphold the supremacy of the law rather than to engage in or connive at its violation. Here the ambition to overtake and apprehend the alleged speed violator was of itself in the line of official duty, but the effort to do so could not be made at the cost of violating the rights of another upon the same highway. Here the defendant assumed, as he had a right to assume, that the highway was free from obstruction and safe to travel on. The jury evidently reached this conclusion and in the light of this record we cannot say that they made a mistake.”

(Lemert, J., and Houck, J., concur.)


author: VICKERY. J.

text:
    INDUSTRIAL FIBRE CO v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Decided March 19, 1928.
    Syllabus by Editorial Staff.
    855. NUISANCE — 1104. Statutes.
    Omission of word “manufacture" from Section 12646 GC., as enacted in 1857, held to indicate that section not intended to apply to manufacturing plant.
    225. CHARGE OF COURT.
    In prosecution of corporation for violation of 12646 GC., it is error to refuse requested instruction to effect that jury may consider when plant was built, nature of occupation of surrounding territory and influence of business on growth of community. Court should have either given such request or covered principals involved in own language or incorporated same in general charge.
    1265. WEIGHT OF EVIDENCE.

      Conviction of corporation under 12646 GC. held against weight of evidence.

      Error to Common Pleas.
    Judgment reversed. .
    . Boyd, Cannon, Brooks & Wickham, and Beekerman & Felsman, Cleveland, for Indust. Fibre Co.
    E. C. Stanton and J. A. Persky, Cleveland, for State.
    STATEMENT' OF FACTS.
    This cause comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County.
    In the court below the plaintiff in error was defendant and was convicted of violating Section 12646 of- the General Code of Ohio and was fined $25 and ordered to abate the nuisance by a certain time. A motion for a new trial was filed which was overruled and. a bill of exceptions embodying all of the testimony, some sixteen hundred pages, was taken, and a petition in error was filed in this court to reverse said judgment. Several errors are urged why this judgment of conviction should be reversed.
    From this record we learn that the Industrial Fibre Company is engaged in the manufacture of artificial silk and in 1917 they located this plant on the Big Four Railroad track at West 98th and Walford Street, on the North side of the four-tracked railroad, in an industrial center, and the record shows that at that time there were not more than two houses within one-half a mile of the location of this plant, and that the plant is now located and was then in what was an industrial center, upon a máin railroad and adjacent to railroad yards. The evidence shows that it is still in the industrial center, and that industries of all kinds and characters, emitting more or less noises and smells, help to make up the thousand smells which made Cologne famous in olden days.
   VICKERY. J.

“The indictment in this case was framed under Section 12646, which reads as follows:

“Whoever erects, continues, uses or maintains a building, structure or place for the ex- - ercise of a trade, employment or business, which, by occasioning noxious exhalations or noisome or offensive smells, becomes injurious to the health, comfort or property of individuals or of the public * * * shall be fined not more than $500.

Section 12657 provides that this law shall apply to corporations, and when a corporation is convicted there shall be an abatement of such nuisance, and the judgment of the court in the instant case ordered an abatement of this nuisance in addition to the fine assessed.

The history of the statute in question, that is, Section 12646, is rather interesting. The first statute that was passed upon this subject, that is, nuisances, was passed as far back as 1832. That did not cover the questions involved in this case, but the statute under which this indictment was framed, was passed in 1857, and found in Volume 54 of the Ohio Laws, and it is interesting to note, in that statute, that there appeared a word which does not exist in the present statute — a word which may or may not be important. The statute of 1857, which went into effect on the 15th day of April of that year, was as follows:

“That the erecting, continuing, using, or maintaining any building, structure, or other place for the exercise of any trade, employment, manufacture or other business, which by occasioning noxious exhalations, noisome or offensive smells, becomes injurious and dangerous to the health, comfort, or property of individuals, or the public; * * * shall be deemed nuisances; and every person or persons guilty of erecting, continuing, using or maintaining, or causing any such nuisance, shall be guilty of a violation of this act.”

Upon a comparison of this statute with the one in force at the time this indictment was returned, you will see that they are absolutely the same, with the exception that “manufacture” has been dropped out. That the Industrial Fibre Company is a manufacturing plant is beyond question, and if there was design in leaving “manufacture” out of that statute, it would seem as though the law would not apply to the instant case — that there was a distinction between a business and a manufacturing plant.

It would seem, therefore, that the Legislature had sufficiently guarded against the establishment of these manufacturing plants so that they might not become a nuisance to the institutions of the state and, not desiring to prohibit the manufacturing business in the locations given up to industrial pursuits, the word “manufacture” was dropped out of the statute. If this be so, would there be any violation of a criminal statute in building a manufacturing plant outside of the restrictions laid down in the 63d. Ohio Laws, especially if located in an industrial center? If this be so, would the statute be operative against the plaintiff in error in the instant case? If not, then the conviction was wrongful, because no offense was charged in the indictment, there being, as already pointed out, a clear distinction between manufacturing, and the other terms relating to occupation in the statute, and the conviction, as pointed out, would not only be contrary to the weight of the evidence, but contrary to law as well, there being no offense charged in the indictment.

One of the errors complained of is that the court refused to give certain requests. Personally, I think all of the requests complained of, the first, the fifth and the fourth, were proper requests, and had it been a civil case and had they been requested before argument and been refused, this court would have been compelled to reverse the judgment of the court for such refusal to give, but in a, criminal case there is no authority which compels a court to give the requests before argument or after argument, as charged, but there is authority that if these requests embody proper principles of law and they are applicable to the case in hand, if .they are not given substantially, then it is error on the part of the court, and error of commission too. On an examination of the general charge of the court, the fifth request was substantially given. I think it was substantially given, not in the words, but so that there would not be much error, but the fourth proposition was not given at all, although there was much evidence introduced in the record to show the condition of the locality of the -plaintiff’s plant and surrounding territory when and before established.

In Eller v. Koehler, 68 OS. 51, 67 N. E. 89 (1903) the Supreme Court of Ohio held, quoting from the syllabus:

“All that can be required of men who engage in lawful business is that they shall regard the fitness of locality. In the residence sections of a city, business of no kind is desirable or welcome. On the other hand one who becomes a resident of a trading or manufacturing neighborhood, or who remains while, m the march of events, a residence district gradually becomes a trading or manufacturing neighborhood, should be held bound to submit to the ordinary annoyances, discomforts and injuries which are fairly incidental to the reasonable and general conduct of such business in his chosen neighborhood.”

Now this would indicate, while it was a civil case, that there was a difference between a manufacturing business placed in an industrial center and one placed in a residence district. What would be proper in one case would not necessarily be proper in another. For example, it is perfectly proper, in an area given up to industrial plants, to establish a legitimate manufacturing enterprise, even though that enterprise will cause inconvenience and is deleterious in some measure to the health of the people. However, if such a plant were established in any residence district, the rule would be entirely different? and I do _ not anticipate that the fact that the authority cited is from a civil case makes any difference in legal effect, but if, as it is argued, that it does, we have direct authority in Commonwealth v. Miller, 139 Penn St., 77; 21 Atlantic, 138 (1891), where the Supreme Court of Pennsylvania held that a refusal to charge as to which occupied the field first, was error.. In that case the court charged the jury (inter alia) that “it is no defense to an indictment for a common nuisance that the business complained of has been in operation many years,” that the size of the business made no difference, and that it was not a defense in any measure that the business was a useful one. A conviction was had in the trial court, but the judgment was reversed for these and other similar errors.

Now under the authority laid down in the 68th OS. supra, it does make a difference as to when or where the manufacturing plant is located, and consequently the court committed error in not giving, in substance, the fourth request, which is as follows:

“In arriving at your verdict you are entitled to consider when defendant’s plant was built and its business established, whether the land in the vicinity thereof was vacant land, or if occupied by residences, the extent to which it was then so occupied, the length of time defendant has conducted the same business at that place, * * * if growth or lack of growth of that vicinity in residences, factories or both, the proximity of an established railroad, the nature and importance of defendant’s business and its influence on the growth and prosperity of the community.”

. The court, as already stated, did not have to give this in the exact language of the request, but an examination of the charge will show that he nowhere gave this, or the substance, or anything approaching the substance of this request, and we think, under the authority of the 68th OS. supra, this was grave error on the part of the court and was prejudicial to the interests of the plaintiff in error.

Now another request, number one, was sought to be given, which was to the effect that if the business were legitimate and they had exercised proper care, and did everything they could to eliminate noxious gases and used the most scientific methods, they would not be responsible, or words to that effect. Of course, from the view the prosecuting attorney takes of this case, that would' not be important, but I wonder whether, by reason of the authorities already cited, the view of the law as voiced by this request was not; proper under the circumstances, remembering that the progress of a great city depends upon its industries, the livelihood of its citizens depends upon the chance of being employed, and so if a business, if legitimate and placed in an industrial center, or what is likely to become an industrial center, and there are no' residences about it at the time and it does become an industrial center, I say, if that business is carried on with the most improved scientific methods and everything is done to eliminate the noxious vapors which might be deleterious to the health and property of those who moved into the vicinity, I wonder whether, under such circumstances, a person could be convicted of ' violating the statute. It seems that if that is so, then every industrial center is in danger of losing its industries.

So then the question is, Because a manufacturing plant that is carrying on a legitimate business, that is affording employment for thousands of Cleveland’s citizens, that it is one of a thousand plants which makes Cleveland great, because all these taken together emit gases, fumes and noxious vapors in a city, and a plant that is otherwise carrying on a legitimate business, going into a part of the city uninhabited by any dwelling houses or undeveloped so far as dwelling houses are concerned, uninhabited by home dwellers, in an industrial center, surrounded by industrial plants, establishes a business involving millions upon millions of dollars, then because of the growth of the city, people live nearer and nearer to the plant, for the sake of the convenience of those people who move in that vicinity, shall a great plant be destroyed? Shall the business be stopped and thousands of men thrown out of employment, with all the after effects of such a happening? We do not think so. We 'do not think that a fair reading of this record will warrant the conviction of the plaintiff in error company.

We think that this case should be reversed on the ground that the verdict of the jury and the judgment thereon is not supported by sufficient evidence and is contrary to the weight of the evidence; that the court erred in refusing to charge as requested, perhaps not in refusing to give the charge in the words of the request, but because he did not properly cover it in his general charge.

We think, therefore, that the court should have set aside the verdict, and granted a motion for a new trial, and the judgment is reversed for error in not doing so, and because the verdict is contrary to the weight of the evidence and not supported by sufficient evidence and because of error in the charge of the court, and because the verdict and judgment thereon is contrary to law.

For these reasons the case will be reversed and remanded to the Common Pleas Court.’.’

(Sullivan, PJ., and Levine, J., concur.)


author: VICKERY, J.

text:
    UNION TRUST CO. v. HUTCHISON.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8310.
    Decided Sept. 19, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    126. BANKS & BANKING.
    Where money is deposited by husband and wife in joint account, under arrangement with bank that either or both can draw from account, and that whatever remains in account, after death of either, shall belong to .survivor, that portion of fund which has not been withdrawn by either party, at death, passes to and vests in the survivor.
    Error to Common Pleas.
    Judgment affirmed.
    Squire, Sanders & Dempsey, Cleveland, for Un. Tr. Co.
    H. L. Deibel, Cleveland, for Hutchison.
    STATEMENT OF FACTS.
    The defendant in error, Letitia Hutchison, brought her action in the Common Pleas Court against The Union Trust Company to recover a certain sum of money which she alleged under and by virtue of a contract with the bank, she having become one of the joint depositors of a certain fund that was deposited by her husband and herself in a joint account. Defendant in error further alleged that by an arrangement with the bank either or both could draw upon the account, and that whatever remained in said account after the death of either party should belong to the survivor. The petition goes on to allege that it had been customary for Mr. and Mrs. Hutchison to deposit money in this way, and both had access and could and did draw from said account, and that the money that was deposited in the bank was the proceeds of joint enterprises; that the money belonged to both parties and, as already stated, was placed in a joint account subject to be withdrawn by either one or both, and that the fund that was remaining should belong to the survivor.
    The petition further alleges that the money in question was deposited with The Union Trust Co. during the lifetime of James Hutchi-son; that James Hutchison and Letitia Hutchi-son were husband and wife; that prior to the beginning of this suit James Hutchison had died, leaving the money in question in this law suit undisposed of; that after his death defendant in error made a demand upon the Union Trust Co. to have this' sum of money then remaining in the bank paid to her; and that The Union Trust Co. having refused to permit her to draw this money, this suit was filed in the Common Pleas Court, the purpose being to get an order against the bank compelling them to deliver the money over to her.
    The salient or operative facts were set up in the plaintiff’s petition. To this petition an answer was filed which admitted generally the allegations of the petition, but denied certain allegations with respect to the manner in which this fund in question was accumulated, or, in other words, the bank denied that the account had belonged to both Mr. and Mrs. Hutchison during the lifetime of the husband, James Hutchison. There were one or two other denials, but generally the allegations of the petition were admitted substantially as pleaded.
    To this answer a general demurrer was filed, and on the hearing of that demurrer in the court below, a judgment was rendered sustaining the demurrer, and the defendant not desiring to plead further, a general judgment in favor of the plaintiff below was entered, and error was prosecuted, to that judgment, to this court.
   VICKERY, J.

“Now we apprehend that, notwithstanding 710-20 GC., if a fund was deposited in a joint account in a bank, and, before the survivor had drawn the money, if the heirs at law or those who would have been entitled to inherit but for this joint account, would have protested to the bank not to pay this sum of money, we think then and in that event, notwithstanding the statute, the bank would have paid this money at its peril, and, if the title had not passed by contract other than the relation between the parties, the statute itself would not have passed the title.

In the instant case the answer does not allege that any protest was made to the payment of this fund or any part of it. That then brings us squarely to the rule laid down by the Supreme Court in the case of The Cleveland Tr. Co. v. Scobie, 114 OS. 241. As I understand that ease, it holds that where a fund has been deposited in the joint names of two parties, even though all the fund, as it was in the Scobie case, had theretofore been the property of the depositor, the intention appearing that his co-depositor had the right to withdraw any or all during the life of the depositor, even though the depositor had the right to change his mind as to any or all of that portion of the fund which had not been withdrawn by either party from the joint account, at his death, it would pass to and vest in his survivor. This we understand to be the rule laid down in the Scobie case, and if that be the law of the Scobie case, there is a much stronger case where the sürvivor is permitted to withdraw after the death of the co-depositor in the instant case, for, as it appears in the record of this case, as already stated, the money deposited in the joint account was a joint fund and had accumulated from the joint property of the joint depositors, and the title to at least one-half of the property involved was already in the joint depositor who survived the other depositor. None of these things existed in the Scobie case, and so the instant case is a much stronger case than the Scobie case.

We, therefore, think that the court below committed no error in sustaining the demurrer to the answer.”

(Sullivan, PJ., and Levine, J., concur.)


author: HAMILTON, PJ.

text:
    ROTTMAN v. WERNSING.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3037.
    Decided June 27, 1927.
    Syllabus by Editorial Staff.
    1105. STATUTE OP FRAUDS.
    Defense of, is affirmative matter, and must be set up by answer or demurrer.
    257. COMMISSIONS — for sale of Beal Estate — 1104 Statutes.
    1. Amendment to Section 8621 GO., requiring contract for commission for sale of real estate to be in writing, contains no language giving it retroactive effect.
    2. Cause of action which accrued prior to passage of amendment, not affected, by reason of 26 GC.
    Error to Common Pleas.
    Judgment reversed.
    STATEMENT OF FACTS.
    The defendant in error brought suit in the Municipal Court of Cincinnati for commission on the sale of real estate. The trial was before the court, without the intervention of the jury, and resulted in a judgment for defendant in error here against the plaintiff in error, Rottman.
   HAMILTON, PJ.

“One of the questions argued by plaintiff in error, without specially designating the same, is that the conclusions of law and the judgment are not supported by the finding of

There is sufficient stated in the finding of facts to support the judgment on the question of proof, and the judgment will not he disturbed on that ground.

The other question raised is that, under the amendment to Sect. 8624, this action could not be maintained, since there. was no memorandum, or note, or writing, signed by the party, and argues that in order for claimant to recover in this action, lie is compelled to prove his agreement by written contract.

At the outset it may be suggested that the defense of the statute of fraud is affirmative matter that should be. set up by answer or demurrer, neither of which was done in this case. The statute of frauds must be relied upon as a defense, and an issue made on that question, and, unless so made, such a defense is inapplicable. Ogden v. Ogden, 4 OS. 192; Wood v. Dilley, 11 Ohio 455.

But, passing the question of the failure to make the statute an issue in the case, it is conceded that the. cause of action sued upon in this case accrued and existed prior to the passage of the amendment requiring such contracts to be in writing. This being true, the cause of action having accrued under the provision of Section 26 GC., the amendment could not affect the pending cause of action. Section 26 provides: “* * * nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing, at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

The amendment to Section 8621 GC. contains no language giving it a retroactive effect. This being true, under the decision of the Supreme Court in the case of State ex v. Huwe, 103 OS. 546, Sect. 26 of the General Code protects the cause of action sued upon in this case, and is not affected by the amendment.

Our conclusion is that the judgment of the Municipal Court was correct, and the cause will be remanded to the Court of Common Pleas, with instructions to reinstate the petition in error, and to affirm the judgment of the Municipal Court.”

(Cushing, J., concurs.)


text:
    EBERLY v. GUTENTAG & SON.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8295.
    Decided Oct. 24, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    870. OPTIONS — 297 Contracts — 287 Consideration.
    Option, to be effective, must be based upon valuable consideration. “Work thereafter to be done,” does not constitute consideration for contract. Where option contract has been executed, consideration becomes unimportant.
    Error to Municipal Court.
    Judgment reversed.
    White, Cannon & • Spieth, Cleveland, for Eberly.
    Jerome M. Priedlander, Cleveland, for Gut-entag & Son.
    STATEMENT OP PACTS.
    This cause comes into this court on a petition in error to the Municipal Court of the City of Cleveland.
    In the court below defendant in error was plaintiff and brought his action to recover something over $1000 upon what he alleges to be a contract for services for selling a piece of real estate. In said action below a judgment was rendered for the plaintiff against the defendant, now plaintiff in error, for $1030, and it is to reverse that judgment that error is prosecuted here.
    It seems that the plaintiff in error was the owner of a piece of real property, which he held by virtue of a land contract, in one of the Van Sweringen allotments in said County, and that, prior to the events herein mentioned, a contract in writing had been entered into, whereby the plaintiff in error, defendant below, gave an option, for a period of 20 days, authorizing the plaintiff to sell the property for and in consideration of $100 commission and whatever sum was obtained over and above the sum of $2100 for said land. The plaintiff below elected to take said land himself, and an escrow agreement was entered into which provided that in case the Van Sweringens would not be satisfied with the purchaser, the whole transaction would become null and void, and there would be no further liability upon the part of the defendant below, plaintiff in error here. After the escrow instructions had been filed, the Van Sweringens were notified and they refused to accept the proposed purchaser, whereupon defendant below, the plaintiff in error here, in writing, notified the defendants that the sale was off and terminated his right to further negotiate. Notwithstanding this notification, plaintiff below seems to have got a man by the name of Freeman to agree to take this property, and so notified the defendant below, the plaintiff in error here, whereupon the defendant below refused to go forward with the deal and an action was brought, as already stated, to recover the sum of $1000. claiming that they had a contract to sell this land to Freeman for the sum of $3000, and upon that basis they were permitted to recover.
   VICKERY, J.

. “It must be noted that this contract provided that out of the purchase money, which was to he a cash sale, the agent was to retain his commission, plainly contemplating that unless there had been a sale there would be no commission, because the commission was payable out of the sum received, and the only way that the plaintiff would be entitled to recover would he, not from the defendant below, because he was to get only $2000 in any event, and the money was to be paid by the purchaser to the agent and he, the agent, was to retain his commission including all sums over $2100 in addition to his commission of $100. Now manifestly before the plaintiff would be entitled to recover, he must tender or offer to tender the $2100, the $2000 that would be coming to the owner of the real estate, and then he would have a claim against the purchaser for the commission and for the sum, over and above $2100. By this proposition it would mean that the owner of the oroperty would get $2000 and would be compelled to pay out of the purchase price of $2100 the $100 commission.

There is nothing in this record except a mere statement that a purchaser was ready, able and willing to go forward with his contract. Now it will he argued that a commission had been earned because of the unlawful termination of this contract by plaintiff in error. But was it a wrongful termination? This so called option was based upon a gratuity. The afreement recited “in consideration ' of work thereafter to be done,” but that is not a consideration for that contract. An option is a unilateral contract and it prevents the party who signs that contract from disposing of the property under consideration until the expiration thereof, but in order to have this egect, it must be based upon a valuable consideration and not merely the promise to do something thereafter, and even though that something "is connected with the subject of the transaction. There was no consideration for this signing and consequently it was nothing more than a continuing offer. Of course, if the offer had been made and was continuing and had been withdrawn and a purchaser had been obtained in good faith, even without a consideration the contract having been executed and the work having been done, and the purchaser procured, it would be too late for the seller of the property to then cancel this contract, because it would have been executed and then the consideration would be unimportant.

That was not true in the instant case. There the escrow agreement became a part of the sales contract, and that provided that if the Van Sweringen Company would not be satisfied with the purchaser, the whole matter should be terminated. When this matter was brought to the knowledge of the seller, plaintiff in error here, the relationship between the plaintiff and the defendant was terminated by a letter, and after that time the so called purchaser or agent had no right or title to the property, or to act in relation to it.

Under these circumstances and under the facts of this record, we do not see how the court below could have entered a judgment against the defendant below. We think it was clearly erroneous and contrary to law and for that reason the judgment will be reversed and a final judgment entered for the plaintiff in error.”

(Sullivan, PJ., and Levine, J., concur.)


author: LLOYD, J.

text:
    BELLOWS CO. v. COVELL.
    Ohio Appeals, 6th Dist., Ottawa Co.
    No. 106.
    Decided Oct. 24, 1927.
    First Publication of This Opinion
    Svllabus by Editorial Staff.
    1257. WASTE — 708 Leases — 997 Real Estate.
    Strict doctrine of common law, in regard to waste, has never obtained in Ohio. Act which, in fact, results in improving, instead of doing injury to, inheritance, will not be enjoined.
    Appeal from Common Pleas. •
    True, Crawford & True, Port Clinton, for Bellows Co.
    Graves & Duff, Port Clinton, for Covell.
    STATEMENT OF FACTS. .
    On Aug. 12, 1922, the defendants, Charles and Eva Covell, leased, to plaintiff, about 45 acres of land, in Catawba Island Township in Ottawa County, for a term of 25 years, with the privilege of a 10 year extension thereof, and, since said date, plaintiff has been in possession of the premises so leased, which are now the property of the defendants, Earl and Glenna Covell. The land adjoining these leased premises, and lying west thereof, extending to Lake Erie, is owned by plaintiff. Located thereon, along the edge of the lake, is a gravel bar. On the westerly end of the leased premises is a pond covering about 14 acres, eleven and a half acres of which is on the leased premises and two and a half acres thereof on the adjoining land owned by plaintiff. This pond deepens from the shoreline thereof to about eighteen inches in depth at the center. The sandbar separates this pond from the land.
    The lease in question recites that “said' premises are to he generally developed ás a golf course,” and contains no restrictive covenants or conditions as to the use thereof, other than the clause therein that
    “Upon the termination of this lease the said J. H. Bellows Co., their successors or assigns, shall deliver up the premises herein described in as good condition as they are now in, reasonable wear and tear for the uses herein specified, excepted.”
    The plaintiff lessee is proposing to reduce this pond from its present size to what may he called an artificial lake covering perhaps five acres, with a uniform depth of six or seven feet, and to cut a channel through the sandbar sufficiently wide and deep to permit pleasure boats to pass from Lake Erie into the lake thus made. It is planned to build a clubhouse on adjoining property of plaintiff, and the present golf course laid out on the leased premises is to be extended and enlarged, one of the contentions, made being that the pond, in its present condition, considerably lessens the adaptability of the leased premises for their intended purpose. The plaintiff, in its petition, alleges that the defendants are threatening to enter upon the leased premises to obstruct, interfere with and prevent the proposed improvement now in process of construction, and prays for an injunction to restrain their so doing, and also asks for a decree quieting its title in and to the leased premises. The defendants claim that the lease did not contemplate and does not authorize the prospective and attempted changes in topography of the leased premises and that the improvements, so-called, by plaintiff, if consummated, constitute waste and should be enjoined.
   LLOYD, J.

“Obviously the question to be determined is whether, under the circumstances here involved having in mind the character of the premises leased and the purposes for which leased, the proposed changes therein constitute such waste as will be enjoined.

The law formerly regarded as waste anything that in any way changed the identity of the leased premises and was most exacting in repressing such acts. It seems not to have mattered whether what was done was injurious or beneficial to the reversion, it being considered of the utmost importance that the condition of the premises should remain unchanged so that there might arise no confusion as to its identity. Such was the rule of the common law as transmitted to us from England, but it seems now to he settled that many things may be done by a tenant in this country that, if done in England, would be waste.

The Supreme Court, in Crockett v. Crockett, 2 OS. 101, many years ago, decided that the strict doctrine of the common law, in regard to waste, has never obtained in Ohio, and generally the rule now is that an act, though perhaps technically waste, which in fact results in improving instead of doing injury to the inheritance, will not he enjoined. Waste of this character has been designated as meliorating or ameliorating waste.

In the instant case the lease provided that the leased premises, in conjunction with other property, was to be generally developed as . a golf course and this recital, as we view it, plainly indicates that such changes as became necessary to accomplish this purpose were within the contemplation of both lessor and lessees, and, by implication at least, whatever was reasonably required to so develop the property, for this designated use was, by the terms of the lease, permissible.

Even if we were to conclude that the lease does not impliedly nor expressly authorize plaintiff to proceed as proposedt we are unable to see that, by so doing, any injury will result to the defendants. The land area will be increased for either agricultural or for allotment purposes, the latter possibility being the most probable, if we may vision the changes that 25 or 30 years will bring to this locality.

It is the decree of this court, therefore, that the cross-petition of the defendants be dismissed and that plaintiff be permitted to proceed with its plan to decrease and deepen the pond in question, but that the portion thereof located on the leased premises shall not cover more than ,4 acres thereof, nor be more than seven feet in depth and that . the material taken therefrom shall be deposited upon the leased premises. We do not purpose hereby to abrogate or change any of the terms or conditions of the lease, and accordingly limit the decree herein to the conclusions above expressed.”

(Richards and Williams, JJ., concur.)


author: LEVINE, J. .

text:
    HARMONY REALTY CO. v. UNDERWOOD.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7901.
    Decided Dec. 5., 1927.
    First Publication oí Tins Opinion.
    Syllabus by Editorial Staff.
    70S. LANDLORD & TENANT — 829 Negligence.
    Duty of realty company to keep walks used by tenants free and clear from nuisance. Realty Company cannot rid itself of that obligation, by letting work of cementing areaway to independent contractor.
    904. PEDESTRIANS — 1113 Streets & walks.
    Duty of pedestrian to exercise ordinary care for own protection. No duty on part of pedestrian to look for holes in sidewalk or obstruction upon same. Question whether pedestrian’s own negligence proximately contributed to injury, is question for jury.
    Error to Common Pleas.
    Judgment affirmed.
    W. H. McMorris, Cleveland, for Realty Co.
    Klein, Harris & Diehm, Cleveland, for Underwood.
    STATEMENT OP FACTS.
    Plaintiff in error, who was defendant below, is seeking to reverse judgment of $3000 for alleged personal injury, sustained by the defendant in error, plaintiff below.
    The Realty Company owned and operated two large apartment houses between which there was room for a driveway and two sidewalks, and in one of which Sadie Underwood and her husband had resided for several years. Mrs. Underwood, as well as the other tenants, used the inside sidewalk. There was a very broad area in the inner court, which apparently. the Realty Company undertook to concrete. Crushed stone, crushed, rock, sand and •cement were unloaded at various places.
    On July 11, 1925, the defendant in error, according to her testimony, with a basket on one arm and a handbag on the other, went shopping and saw that there was some small crushed stone which had gone over the pile onto the sidewalk, but was able safely to go around it as she went out of the apartment. Upon her return, somehow, there was more of this small crushed stone which had gone over the pile onto the sidewalk, and, with her bundles in front, of her, she attempted to safely pass, when her foot got on some crushed stone which was irregular in shape and somewhat larger than pebbles, and so threw her that she was precipitated onto a pile of crushed rock which was right at the edge of the sidewalk. In consequence, she received the injuries mentioned in her petition. The jury returned a verdict in the sum of $3000.
    The plaintiff in error introduced evidence tending to show that he let the contract to The J. H. Libby Co. to put in a driveway, consisting of cement and crushed stone, in the areaway between the aforesaid apartments; that the contracting company, in the performance of its work, caused crushed stone to be deposited in the various places within said area; that certain particles rolled from the pile upon the walk along which plaintiff was proceeding at the time she fell.
    The major point urged by plaintiff in error, as a ground for reversal., is that the injury was due to the act of an independent contractor, to-wit, The J. H. Libby Co., and that The Harmony Realty Company cannot be held on the principle of respondeat superior. It is urged that The Harmony Realty Co. exercised no control or supervision over the independent contracting company, which contracted to furnish the material and. supply the labor in cementing the area between the apartments.
   LEVINE, J. .

. “In the opinion of this court, whatever liability attaches to The Harmony Realty Company, is not on the theory of respondeat superior, but upon the basis that it was itself guilty of negligence. There was clearly a duty devolving upon The Harmony Realty Co. to keep the walks used by the tenants free and clear from nuisance. Its failure to perform said duty would, under certain circumstances constitute negligence. Nor could The Harmony Realty Co. rid itself of that obligation by letting the work of cementing the areaway to an independent contractor.

On the question of contributory negligence, we find that the court submitted the same to the jury. It is undoubtedly true that the defendant owed a duty of exercising ordinary care for her own protection. Gibbs v. Village of Girard, 88 OS. 84.

In the opinion the court very distinctly points out that it is not the duty of a pedestrian to look for holes in the sidewalk or obstructions upon the same, that in all cases the question of fact should be submitted to the jury, whether the plaintiff’s own negligence proximately contributed to the injury which he sustained; that when the court submits the question to the jury, it fully performs its duty.

The case of Jackson v. The Cleveland Ry. Co., 111 OS. 498, reaffirms the doctrine laid down in the Gibbs case.

Upon a study of the record, we have reached the conclusion that substantial justice was done in this case, and the judgment of the Common Pleas Court will, therefore, be affirmed.”

(Sullivan, PJ., and Vickery, J., concur.)


author: ALLEN, J.

text:
    HARDIN-WYANDOT LIGHTING CO. v. P. U. C.
    Ohio Supreme Court.
    No. 18456.
    Decided May 9, 1928.
    Error to P. U. C.
    Order affirmed.
    973. PUBLIC UTILITIES COMMISSION — 941. Praa-tice and Procedure.
    1. Where, in proceeding before Public Utilities Commission for valuation of public utility, counsel for utility orally stipulates with Commission, that appraisal made in earlier case shall be used, utility cannot later complain that valuation employed is not value of property as of date certain.
    2. Where use of such ’ valuation has resulted in substantial addition over value claimed by utility, fact that one item amounting to less than such addition has been omitted in valuation, does not justify reversal of order of commission.
    3. Where rate controversy involves rates charged in particular municipality, only property used therein should be valued.
    4. Where substantial allowance has been made for organization, interest, engineering, law expenditures, taxes and general expenses during construction, and contingencies and omissions, reversal not required for failure to make specific allowance for going concern unless total valuation appears to be less than actual valué as going concern.
   ALLEN, J.

1. Where, in a proceeding for valuation of the property of a public utility before the Public Utilities Commission, counsel for the utility orally stipulates with the Public Utilities Commission that an appraisal already made in an earlier case should be used in a pending proceeding, that the two cases should be consolidated and the same valuation be found in both cases, and when the use of the appraisal in the earlier case involves the employment of a five-year trend rule for ascertaining the average cost of reproducing the property of the utility, counsel for the utility cannot later complain that the valuation employed is not the value of the property as of a date certain.

2. Where the use by the commission as a basis for its valuation of trend prices for a period of five years, instead of prices as of a date certain, has resultd in a substantial addition to the valuation of the property, over that claimed by the utility, from the use of prices as of such date certain, the fact that one item amounting to less than such addition has been omitted in the valuation, does not justify a reversal of the order of the commission.

3. When a rate controversy involves rates charged in a particular municipality, only property used and useful in furnishing service to such municipality should be valued.

4. Where the commission in its valuation of the property of a public utility makes a substantial allowance for organization, interest, engineering, law expenditures, taxes and general expenses during construction, and contingencies and omissions, without making a specific allowance for going concern, a reversal of the order of the Public Utilities Commission is not required unless the total valuation appears to be less than its actual value as a going concern. All of these items enter •into the development of the utility’s property and give it an added value not represented in the valuation of the physical property.

(Marshall, CJ., Kinkade, Robinson and Matthias, JJ., concur.)


author: DAY, J.

text:
    BOYER v. STATE ex Halyburton.
    Ohio Supreme Court.
    No. 20937.
    Decided May 9, 1928.
    Error to Stark Appeals.
    Judgment reversed.
    531. FINES AND PENALTIES — 645. Insolvency — 1104. Statutes.
    Insolvent debtors act does not apply to person, convicted of misdemeanor and sentenced to pay fine and costs and to stand committed to workhouse “until such fine and costs shall be paid or the prisoner be otherwise discharged according to law.”
   DAY, J.

The insolvent debtors act (Section 11150, General Code) does not apply to a person convicted of a misdemeanor and sentenced to pay a fine and costs and to stand committed to a workhouse “until such fine and costs shall be paid or the prisoner be otherwise discharged according to law,” since that section specially excepts a case in which the judgment requires imprisonment until the fine, penalty and costs are paid. Such prisoner might be “otherwise discharged according to law,” by pardon, parole or credit upon said fine and costs, as provided by law, until the amount was so paid.

(Marshall, CJ., Allen, Kinkade, Robinson and Matthias, JJ., concur.)


author: ROBINSON, J.

text:
    STANDARD SANITARY MFG. CO. v. GEORGE.
    Ohio Supreme Court.
    No. 20798.
    Decided May 9, 1928.
    Error to Cuyahoga Appeals.
    Judgment reversed.
    787. MORTGAGES — 426. Duress.
    "Where mortgagor, who has executed mortgage under duress, silently and knowingly permits mortgagee to extend credit upon faith of such mortgage, mortgagor will not be heard to question validity of mortgage, to extent credit has been extended.
   ROBINSON, J.

A mortagor, who has executed her mortgage deed under the duress of her husband, which duress was unauthorized by and unknown to her mortgagee, and who has thereafter silently and knowingly permitted her mortgagee to extend credit to her husband or her husband’s firm, upon the faith of such mortgage, will not be heard to question the validity of her execution thereof up to the extent such credit has been extended upon the faith of such mortgage.

(Marshall, CJ., Day, Kinkade, Jones and Matthias, JJ., concur. Allen, J., concurs in the syllabus but not in the judgment.)


text:
    ANTENEN, Recr. v. STATE ex BREDWELL et.
    Ohio Appeals, 1st Dist., Butler Co.
    Shank & Shank, and Andrews, Andrews & Rogers, Hamilton, for Antenen.
    H. S. Wonnell and Walton S. Bowers, Hamilton, for State ex.
    458. EMPLOYER’S LIABILITY — 1002 Receivers — 1104 Statutes — 291 Constitutional Law.
    I. In action, by Industrial Commission, to recover, from employer not protected by compensation law, award paid to widow of deceased employe, employer may defend and raise question of employment and liability.
    2. Such proceeding, under statute, is in nature of action to secure personal judgment, and cannot be brought against receiver for such employer.
    3. Section 1465-74 GC., not constitutional.
   HAMILTON, PJ.

1. Where employee of employer not protected by Workmen’s Compensation Law is killed, and the Industrial Commission makes award to his widow and brings action under Sect. 1465-74 GC., for benefit of the widow against the employer to recover the compensation fixed, the employer may defend and raise questions of employment and liability.

2. Where employee of employer not protected by Workmen’s Compensation Law was killed, and the Industrial Commission made award to his widow therefor, after appointment of a receiver, the Industrial Commission could not sue the receiver for benefit of the widow under Sect. 1465-74 GC., to recover compensation fixed, since proceeding under statute is in nature of action to secure personal judgment, and that the award was not a liquidated claim, and under statute action must he against the employer.

3. Section -1465-74 GC., permitting imposition of penalty for failure of nonsubscribing employer to pay award of the Industrial Commission as compensation for death of an employee within 10 days, held unconstitutional.

(Cushing and Buchwalter, JJ.,' concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    CAMPBELL v. EDDY.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Dawson E. Bradley and Jos. W. 0’Harra, Cincinnati, fob Campbell.
    DeCamp, Sutphin & Brumleve, Cincinnati, for Eddy.
    225. CHARGE OF COURT — 1235 Verdicts — 753 Measure of Damages.
    1. Assent by defendant’s counsel that minimum verdict would be certain sum, warrants court’s statement that verdict will necessarily be for plaintiff.
    ■ 2. Omission in charge held not prejudicial where same was not called to attention of court and testimony fully covered points involved.
   HAMILTON, PJ.

1. Where defendant’s counsel assented to statement by plaintiff’s counsel that minimum verdict would be a certain sum, court’s statement'to jury that their verdict will necessarily be for plaintiff was not error.

2. In action for breach of employment contract, 'omission, in court’s charge as to measure of damages, of question of minimization of damages by efforts of plaintiff to secure other employment, held not reversible error, where omission was not called to court’s attention, and plaintiff fully testified as to her reasonable effort to secure employment and the failure.

(Cushing, J., concurs.)

For reference to full opinion, see Omnibux Index, last page, this issue.


author: CUSHING, J.

text:
    STRAUSS BRO. CO. v. LONG, Aud.
    Ohio Appeals, 1st Dist., Butler Co.
    Paul Scudder, Hamilton, for Strauss Bro.
    B. P. Boli, Hamilton, for Long, Aud.
    1157. TAXATION.
    In absence of substantive law defining method of ascertaining value, determination of taxing officers affirmed.
   CUSHING, J.

Where record did not show method used by taxing officers in assessing properties involved at their true value in money, as required by Section 2 of Article XII, Ohio Constitution, nor that method used was different from that employed in assessing other similar property, but testimony of numerous witnesses as to the use of the buildings, their rental value, and obsolescence was considered, held that, in absence of any substantive law defining method of ascertaining value, determination of such officials, passed on by Board of Revision, State Taxing Commission, and Court of Common Pleas, must be affirmed by Court of Appeals.

(Hamilton, PJ., and Buchwalter, J., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    REPRESENTATIVE BUS CO. v. SIMMONS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    W. H. McMorris, Cleveland, for Bus Co.
    Geo. W. Spooner, Cleveland, for Simmons.
    793. MOTOR VEHICLES — 489. Evidence — 396. Directed Verdicts.
    1. Duty, of- buss driver, to allow vehicle approaching from rear to pass.
    2. Evidence held sufficient to warrant submission to jury of question of excessive speed and careless driving of bus driver.
    791. MOTION — For New Trial — 941. Practice and Procedure.
    Allegation that counsel was misled by official publication does not show that failure to file motion for new trial within three days was due to unavoidable cause.
    753. MEASURE OF DAMAGES.
    Award of $10,000 for injuries sustained .in automobile accident held not excessive.
   SULLIVAN, PJ.

1. It is duty of bus driver, on hearing signal by one desiring to pass, to give way, without any peril to himself and passengers, to the vehicle in the rear, where the roadway is sufficient to allow passage in safety.

2. In action by automobile occupant for injuries from collision with bus refusing to permit automobile to pass on proper signal, evidence held to warrant submission to jury question of excessive speed of bus and of careless driving by bus driver.

3. Motion for new trial, which was not filed within three days, was properly stricken from the record, and allegation that counsel was misled by official publication does not show that failure to file was due to unavoidable cause.

4. Award of $10,000 for injuries to woman whose face was seriously cut and scarred, portion of nose cut away, and who suffered concussion of brain and injuries to shoulder, back, chest, and legs, preventing her from pursuing her vocation as dancing teacher, held not excessive.

(Vickery & Levine, JJ., concur.)

For reference to full opinion, see Omnibus Index, last page, this issue.


author: BY THE COURT.

text:
    SIGAFOOS et ADMRS. v. MARKER et.
    Ohio Appeals, 2nd Dist., Darke Co.
    Decided June 3, 1927.
    John S. Hankins, Greenville, for Sigafoos et.
    J. A. Kerr and E. H. Kerr, Tippecanoe City, for Marker et
    997. REAL ESTATE — Proceedings to Sell — 85. Appeal —923. Pleadings — 941. Practice and Procedure.
    1. Proceeding to sell real estate not appealable.
    2. Filing of answer and cross petition does not make issue in chancery.
   BY THE COURT.

1. A proceeding to sell the real estate of the decedent allowed in the probate court, and also allowed on appeal in the Court of Common Pleas, is not appealable to the Court of Appeals.

2. An answer and cross petition, filed on leave in the Court of Common Pleas, which might have been properly filed in the Court of Probate, does not make an issue in chancery so as to sustain the right to appeal.

(Ferneding, Kunkle and Allread, JJ., concur.)

For reference to full opinion, see Omnibus Index, last page this issue.


author: MIDDLETON, J.

text:
    MAPLE v. WASHINGTON TWP. BD. ED.
    Ohio Appeals, 4th Dist., Jackson Co.
    Decided Dec. 7, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1159. TAXES & ASSESSMENTS — 1104 Statutes — 1065 Schools & School Districts.
    Provisions of 5649-9a and 5649-9b GC., are mandatory with respect to:
    1. Certification of resolution to County Auditor at least 60 days prior to election.
    2. Manner of calculating average annual levy throughout life of bonds.
    3. Giving notice of election by .publication in newspaper or posting in conspicuous places.
    4. Form of ballot to be used at such election.
    Heard on appeal.
    Decree for plaintiff.
    Willis & Jones, Jackson, for Maple.
    Harry B. Reese, Jackson, for Bd. Ed.
    STATEMENT OF FACTS.
    This cause comes into this court on appeal and is an action by a taxpayer of Washington Township Rural School District of Jackson County, Ohio, to restrain the issuance of bonds “for the purpose of purchasing a site and erecting and equipping a fireproof school building” in said district. The case was submitted on the facts stated in the pleadings and some additional matters agreed to by the parties. It appears that the .defendant board acted under favor of Section 5649-9a and 5649-9b and the bond issue in question was approved at an election held in November, 1926, by a vote of 99 for the issue out of a total vote of 175. It is stated that the total vote of the sub division is from 275 to 300 votes. It is claimed by the plaintiff, and the evidence establishes his claim, that the provisions of the sections named were not followed in the following particulars :
    1. The defendant board did not certify its resolution, providing for the issuance of said bonds, to the county auditor at least 60 days prior to said election but did so certify said resolution 58 days prior thereto.
    2. The county auditor did not “calculate the average annual levy, throughout the life of the bonds, which will be required to pay the interest on and retire such bonds, assuming that the amount of the tax list of such subdi vision remains the same throughout the life of the bonds as the amount of the list for the current year, and if this is not determined the estimated amount submitted by the auditor to the county budget commission,” but did calculate such average on the tax list of the preceding year, to-wit 1925, and certified the amount of said average so calculated to said defendant hoard.

      S. That there is no newspaper of general circulation printed in said subdivision and that the notice of said election was not published once a week for four consecutive weeks in a newspaper of general circulation in the subdivision, nor was the notice of said election posted in two conspicuous places in said subdivision 30 days prior to the election or at any time prior thereto.
    That the ballot used at said election had printed thereon two questions for the approval of the voters, namely, the centralization of the schools of said district and the issuance of the bonds in question.
   MIDDLETON, J.

“It is apparent from the foregoing facts that if the provisions of the sections aforesaid are_ mandatory, in respect to the matters complained of, the whole proceedings were invalidated by the failure_to observe said sections in the particulars specified and that the issuance of the bonds in question must be restrained. This conclusion seems to be inevitable unless this court, by some judicial interpretation of the above sections, may re-legislate the law and make different provisions in respect to the matters in which there was a failure to observe the .law as it now stands. We think that the character of the provisions in question has been conclusively determined by the Supreme Court in the case of Board of Education v. Briggs, Aud. 114 OS. 415. In that case the court had under consideration some of the provisions of Section 5649-9c, which is a part of the act providing for the issuance of bonds and which includes the sections involved here. The court, in referring to the character of the provisions of these various sections, on page 420 of its opinion, said:

“It is to be observed that the language prescribing the official action, to be taken precedent to the question of issuing bonds, is mandatory in character throughout these provisions. * *

We are not disposed to quibble about the question of the effect of these observations of -the court and their application to the proceedings under consideration here. In at least three particulars, by the undisputed evidence, it is established that the plain and positive provisions of the law were not followed. The resolution was not certified as required, the county auditor did not calculate the levy as required and the notice of the election was not made as required. These violations of the statute law invalidate the entire matter.

We regard the'failure to post a notice of the election, as required by law, as particularly vicious. While we are not inclined to hold that the publication in a newspaper would not have been sufficient,. if followed by the posting of the proper notice, yet the failure to carry out the iatter provision is certainly, in itself, sufficient to invalidate the election. It is argued that sample ballots were mailed to a great many of the voters in the subdivision and that these ballots were marked in a manner to instruct said voters how to vote for the issuance of the bonds and that this was some notice. It certainly was some notice but not the kind required by law. Such ballots doubtless were sent only to those who were thought to be inclined favorably to the propositions to be voted on and afford no substitute for the notice required by the law.

The provisions of Section 5020 GG were considered by .the Attorney General in an opinion reported in Vol. 1, 1915, pg. 630, of the opinions of the Attorney General. In that opinion the history of this law is given and it clearly appears that it was intended, when first enacted, to provide for the submission of any question, other than a constitutional amendment, on a ballot separate from that on which appears party tickets. It is further shown, in said opinion, that, in its original enactment, the section employed the plural form in the provision that “such questions shall be printed on a separate ballot.” When this section was carried into the General Code the plural form was dropped and it now appears in the singular. We are satisfied with the interpretation of this statute, as given by the Attorney General in the opinion cited, and the fourth complaint is overruled.

Some other matters were referred to, in the oral argument, which are not mentioned in the briefs. In view of our conclusions on the matters which we have discussed, we regard them as immaterial.

The injunction will be granted as prayed for and a decree may be entered accordingly.”

(Mauck, J., concurs.)


author: MAUCK, J.

text:
    MACHRANSKY v. MACHRANSKY.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8094.
    Decided Dec. 19, 1927.
    Middleton, PJ., Mauck and Thomas, JJ., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    413. DIVORCE & ALIMONY — 256 Comity.
    Validity of divorce is to be determined by law of country, that at that time, had jurisdiction over parties. Unless law of foreign domicile offends some positive law of this state, its action in divorcing its subjects or citizens cannot be questioned here.
    Error to Common Pleas.
    Judgment affirmed.
    'A. P. Gustafson and Louis Pernberg, Cleveland, for plaintiff in error.
    A. H. Martin, Cleveland, for defendant in error.
    STATEMENT OF FACTS.
    Israel Machransky, by his petition in the Common Pleas Court, alleged that he and Leah Belle Machransky were married in Russia about 1901, and that shortly thereafter they were divorced by what is pleaded to be an Hebrew Rabbinical GET; that after the divorce, plaintiff migrated to the United States, and that for many years the defendant has pursued him through various courts upon various charges connected with their former matrimonial relations.
    Plaintiff further pleads that the defendant has been guilty of various acts which, if true, would constitute extreme cruelty, and prays that the court determine the effect of the GET to be an absolute divorce, or, in the alternative, that he be now divorced from the defendant.
    Personal service was had upon the defendant, but she made default, except that she did file an application for temporary alimony which was never disposed of. The defendant not appearing, the trial court heard the case and granted all the relief that the plaintiff had prayed for, thus somewhat incongruously finding that the parties had been divorced ir Russia some 20 years ago, and then proceeding to again divorce them.
    The wife prosecuted error to this decree, the main contention in argument here being that the case was irregularly tried in the absence of her attorney, and under such circumstances as to be so unfair as to require a reversal upon that ground.
    It is argued that from this bill of exceptions it fairly appears that the plaintiff was not entitled either to equitable relief establishing the efficacy of the Russian divorce, or to a divorce under the statutes of this State.
   MAUCK, J.

“The record shows that the parties were Jews, and we take judicial notice of the fact that they had very limited civil rights in Russia in 1901. The plaintiff testifies positively that he procured a Rabbinical divorce some time thereafter. The record further shows that the defendant had expressly admitted that they had been divorced.

The word GET among the Jews signifies a divorce. It is usually prepared by a scribe employed by the husband, signed by the latter and witnessed and delivered by the husband to the wife. Standard Dictionary. It announces in unequivocal terms that the parties are divorced and that the wife is at liberty to remarry. Under Jewish jurisprudence, the husband’s right to divorce was absolute. The wife had the right to compel the husband to give her a divorce on certain grounds and in such case was entitled to the return of her dowry. Kadashin’s Jewish Code of Jurisprudence;. 513 et seq. Nothing appears in the record of the law of Russia at the time in question, but the record does disclose these facts: Both parties were resident in Russia and were there married. Thereafter the husband divorced the wife and she received the return of her dowry of three hundred roubles. Thereafter, in Russia, the husband remarried, his second wife bore him a child and this family moved to America. It might be that the testimony establishing these facts was not the best testimony, but it was unohjected to and is sufficient to establish all that it purports to prove. The intimate, relationship between the Jewish law and the church are well known. When, therefore, it was shown that the parties had a Rabbinical GET or divorce, we understand it to have been a divorce in accordance with Jewish law. The evidence at least does not show that this process of divorce violated any law of Russia, and the presumption is that it did not. Furthermore the record unequivocally shows the second marriage of the husband in Russia, and it must be assumed that such marriage was not unlawful.

While this system of divorce does not conform to present standards in this country, its validity is to be determined by the law of the country that at .that time had jurisdiction over the parties. Each country establishes its own canons of marriage and divorce. In Ohio the power to divorce was at one time and elsewhere is now deemed to be a legislative function. In England it was for centuries and elsewhere still is in the exclusive jurisdiction of the church. Unless the law of the foreign domicile offends some positive law of this state, its action in divorcing its subjects or citizens cannot be questioned here. A striking illustration is found in the Massachusetts Reports.

In Turkey the law provided that a wife who is married to a Christian might, by renouncing Christianity and adopting the Mohammedan faith and marrying a Mohammedan be, by virtue of these facts alone, released from the obligations of her first marriage. That is to say no legal procedure is necessary at all; that the facts recited of their own vigor, worked a dissolution of the marriage relationship.

It was held by the Supreme Court of Massachusetts, in Kapigian v. Minassian, 212 Mass. 412, that the parties to that marriage relation, being domiciled in Turkey at the time, were, by virtue of the Turkish law, divorced in this summary method, and that the divorce was valid in Massachusetts.

There, is no question that the plaintiff Mach-ransky and the second woman to whom he was married have ever since lived as husband and wife and have raised their children as such. We must assume that when they entered upon the marriage relation in Russia that they did so pursuant to law; that they are now husband and wife and their children are legitimate.

Our conclusion is that the Common Pleas Court was right when it found that the parties here were divorced in Russia, and in so decreeing. The rest of the decree assuming to again divorce them was surplusage, but it is not harmful and need not be disturbed.”

(Middleton, PJ., and Thomas, J, concur.)


text:
    THURMAN v. STATE.
    Ohio Appeals, 4th Dist., Pike Co.
    Decided Jan. 24, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    941. PRACTICE & PROCEDURE.
    Wherei case proceeds during oral argument, with no judge present to control conduct of same, and, during such argument, controversy arises between counsel, and is incapable of determination because of no judge being present to determine it, such situation alone would require reversal of judgment.
    1077. SELF DEFENSE — 225 Charge of Court — 333 Criminal Law.
    1. In action on indictment charging murder, where accUvSed pleads self defense, charge that “killing must be the only means by which the party assailed can save his own life or save himself from great bodily harm” held erroneous.
    2. Statutes give those desiring to do so, privilege of bringing peace warrant proceedings, but do not impose duty upon any one to employ that remedy.
    3. Charge that “before Thurman can. justfiy killing Horn, it must be manifest that Horn intended and endeavored to kill him,” held erroneous.
    4. Where plea is self defense, and evidence shows that deceased was the aggressor, real question is whether or not accused used more violence than the circumstances required.
    Error to Common Pleas.
    Judgment reversed.
    Garrett S. Claypool, Chillicothe, and Geo. D. Nye, Waverly, for Thurman.
    Earl D. Parker, Pros. Atty., Waverly, for State.
    STATEMENT OF FACTS.
    Plaintiff in error was tried on an indictment charging him with murder in the second degree. He was found guilty of manslaughter, and, judgment having been entered upon that verdict, error is prosecuted to this court.
    Thurman was charged with killing Otto Horn. The evidence tended to show that Thurman and others engaged by him for that purpose were cutting timber on a piece of property that Thurman had acquired but in which Horn claimed to have some interest. On the day of the homicide Horn came on the property and, the testimony shows, came in a hostile mood. He approached Thurman, in a menacing manner, with a club or stick in his hand and Thurman retreated a short distance up the hill to where he had left his gun. When Thurman got back to where the gun was he took the weapon and killed Horn.
    At the time the prosecuting attorney began his argument the trial judge left the court room and went into another room not adjacent to the court room and there stayed during the prosecuting attorney’s argument, and apparently during all the argument of defendant’s counsel, and during the closing argument of the state. While the last argument was being made counsel for the defendant objected to remarks being made by the prosecuting attorney, but the objections were launched at the prosecuting attorney rather than the trial judge because there-was no trial judge present.
   MAUCK, J.

“While the trial judge has certified in the hill of exceptions that these were the remarks to which the defendant objected, we are at a loss to know how the trial judge could have ascertained what the objectionable remarks in fact were.- He was not present in the court room. The stenographer was not present. So that, to have made up the record, the judge must have taken the statements of others as to what actually occurred. The only thing that we can be sure of is that the case pro-ceeuec! during all the argument with no judge present to control the conduct of the case, and that, during that absence, a controversy arose between counsel and that was at the time incapable of determination because there was no judge present to determine it. This situation is such as was condemned in Miller v. State, 73 OS. 195, and alone would require a reversal of the judgment of conviction.

There were serious errors in the instructions to the jury. The charge in this case was largely taken from State v. Martin, 9 O.D. 778. The plaintiff in error says, in a supplemental brief, that this charge was found erroneous and the judgment pronounced thereon reversed, in Martin v. State, 17 CC. 406. Counsel were probably led to this conclusion by a statement in Page’s Digest, column 5264, but the digest is wrong. The reversal reported in 17 CC. 406, was of an earlier trial of the Martin case. The charge reported in 9 OD. 778 was never reviewed because the accused was acquitted. It did, however, offend against part of the doctrine laid down in the earlier case in the Circuit Court and was erroneous in a number of particulars and was an unsafe guide to the trial court in the instant case. Taking up the charge in the case at bar rather than the one from which it was; taken, we now hold the charge in this case to have been wrong at least in the following particulars:

1. It was wrong in that it held that if the accused feared the decedent for a period of time prior to the killing it was the duty of the accused to institute and prosecute proceedings commonly known as peace warrant proceedings. These sections give those desiring so to do the privilege of pursuing the remedy therein provided but there is no duty upon any one to employ that remedy. That procedure may, in a particular instance, easily excite rather than allay difficulties, and failure to use it ought not to have been submitted to the jury as indicating anything in this case. People v. Gonzales, 71 Cal. 569, 12 Pac. 783, Evers v. People, 3 Hun. 716.

2. The charge was erroneous in saying that the “killing must be the only means by which the party assailed can save his own life or save himself from great bodily harm.”

Flight was possible to the accused in this case.and this charge consequently required the jury to convict if they thought that further retreat by the defendant could have been made.In this it violated the principle settled in Erwin v. State, 28 OS. 186.

3. Generally the court charged correctly that the necessity of killing might arise either from the danger of the accused losing his life or the danger of suffering great bodily harm. Once, at least, however, the court put it squarely thus, (p. 192) : “Before Thurman can justify killing Horn it must be manifest that Horn intended and endeavored to kill him.”

As the evidence appears to us there was one vital question in the case involving the law of self defense, and that question was never referred to in the charge at all. The uncontro-verted testimony is that Horn was the aggressor. He was menacing Thurman, however, with a club only. The real question in the case was whether or not Thurman, in the situation in which he found himself, used more violence in repelling Horn than the circumstances required. That was the one question that ought to have been tried out and that was the one question apparently that was not tried out.”

The record requires a new trial.

Judgment reversed and the cause remanded for a new trial according to law.”

(Middleton, PJ., concurs. Thomas, J., not participating.)


author: THOMAS, J.

text:
    LOCKHART v. SOUL, Rec.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8120.
    Decided Jan. 23, 1928.
    Middleton, PJ., Mauck and Thomas, JJ., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1002. RECEIVERS — 681. Jurisdiction — 798. Municipal Court.
    1. Municipal Court of Cleveland is without authority to appoint general receiver.
    2. Where judgment has been obtained and receiver is appointed for purpose of collecting this judgment, and receiver has disposed of some of the assets of company, and has on hand enough money to satisfy such judgment, object of receiver’s appointment having been fulfilled, his powers end.
    396. DIRECTED VERDICT — 923. Pleadings — 313. Corporations.
    In action to recover balance alleged to be due on stock subscription, where there has been no judicial determination of insolvency, defense of fraud in procurement of subscription is available, and creates issue for determination of jury.
    Thompson, Hine & Plory, Cleveland, for Lockhart.
    Vickery & Vickery, Cleveland, for Soul, Rec.
    STATEMENT OF FACTS.
    Defendant in error brought an action against plaintiff in error to recover a balance alleged to be due on a stock subscription in the Conservative Mortgage & Guaranty Co. and the cause was submitted to a jury. On the pleadings and opening statement of counsel, the court sustained a motion to direct a verdict for the defendant in error. Plaintiff in error complains that such action by the court was unwarranted and contrary to law. His objections to the ruling of the court are based on three grounds, namely:
    1. That the Municipal Court was without power to appoint a general receiver.
    2. That the receiver appointed was only a special receiver and his authority was limited to collecting only enough assets to satisfy a judgment obtained by J. B. Dworkin against the Mortgage and Guaranty Co.
    3.That the issues raised by the pleadings required the case to be submitted to the jury for determination.
   THOMAS, J.

“Taking up these questions in order presented — Fjrst, Has the Municipal Court authority to appoint a general receiver?

The plaintiff below contends that the Municipal Court has the power to appoint receivers the same as the Court of Common Pleas. Courts of Common Pleas are invested with such powers by favor of Section 11894 GC.

The authority given to the Municipal Court of Cleveland is found in Section 1579-11 of the General Code.

The Municipal Court of Cleveland has no jurisdiction in cases involving claims in excess of $2,500. In the administration of a receiver’s trust claims may be presented involving millions of dollars. If this court had the same powers as the Court of Common Pleas it could appoint a receiver for the New York Central Railroad Co. in a suit for the recovery of $100.

It may be observed that the petition of the plaintiff does not state that it was necessary to bring this action against the defendant in order to realize upon the Dworkin judgment. Our conclusion is that the Municipal Court of Cleveland is without authority to appoint general receivers.

The next question to'be.determined is: Was the defendant in error, as special receiver, authorized to bring the action against the plaintiff in error? At the time of his appointment a judgment had been obtained against the Mortgage & Guaranty Co., and the receiver was appointed only for the purpose of collecting this judgment. Previous to, or at the time of the appointment, an execution had been issued and certain personal property had been levied upon, also proceedings in aid of execution had been instituted. The receiver had disposed of some of the assets of the company and had on hand more than enough money to satisfy said judgment. Consequently, the object of his appointment having been fulfilled, his powers ended. He was therefore without authority further to act. His duties having ended, he was without authority to maintain the action against the plaintiff in error.

The remaining question to be disposed of is: Did the court err in directing a verdict for the defendant in error? Was there a question of fact to be determined by the jury? The answer "of the defendant below pleaded fraud in the procurement of the subscription. It averred that the prospectus, or representations rather, made by the agent of the company at the time were at variance with the articles of incorporation; that the subscriptions were ¿nade on the representations that the company was to be organized for the purpose of loaning money on first and second mortgages whereas the charter of the company permitted it to, and it was organized for, the purpose of buying and selling real estate, erecting and maintaining buildings, loaning money and so forth. This may not have been a defense if the company, at the time, was insolvent. It was assumed by the court that the company was insolvent. There had been no judicial determination of this fact. It was not for this reason that a receiver had been appointed. If the company was solvent this defense was available to the plaintiff in error. It is our opinion that here was an issue for the determination of the jury.

For the foregoing reasons the judgment of the lower court is reversed and this cause is remanded for further proceedings.”

(Middleton, PJ., and Mauck, J., concur.)