text:
    STATE, Plaintiff-Appellee, v. JAFFRIN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23782.
    Decided July 11, 1956.

      . Ralph S. Locher, g Director of Law, Bernard J. Conway, Chief Police Pros., 'Edward V. Cain, Asst. Police Pros., for plaintiff-appellee.
    Sheldon L. Perry, A. L. Kearns, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this Court from a finding of guilty and judgment on a charge of contempt of court instituted at the direction of Judge John V. Corrigan of the Cleveland Municipal Court.

On September 26, 1955, Janice L. Strickland was found guilty before Judge Corrigan on a charge of reckless driving under Sec 9-1304 of the Codified Ordinances of the City of Cleveland and judgment entered of fifteen dollars costs and three days, days and costs suspended, one year probation “inactive.”

On October 15, 1955, a little after nine p. m., Janice L. Strickland was driving the automobile, of one Benjamin W. Tefft, east on Carnegie Avenue and in attempting to make a left hand turn into East Ninth Street to the north, a collision between the automobile she was driving and a westbound automobile occurred and as a result Miss Strickland was given a traffic ticket for failure to yield the right of way. The ticket directed Miss Strickland to appear in Traffic Court October 24, 1955 at 9:00 A. M. After the arrest of Miss Strickland, it is the claim of the Committee of the Cuyahoga County Bar Association, appointed by the court to assist the City Prosecutor in the prosecution of this action (Judge Corrigan, who appointed the Committee after instituting this proceeding also presided at the hearing), that she and Tefft went to the Zanzibar Night Club, operated by Helen Joanne Jaffrin, for help because of her arrest. Miss Strickland had been an employee at the Zanzibar for a few days in the early part of October. It is claimed that when Miss Strickland was before Judge Corrigan on September 26th, he had told her that if again arrested, she would be required to serve days in jail. When Miss Strickland and Mr. Tefft went to the Zanzibar and after an explanation of the situation to Miss Jaffrin, she told them that it would cost $100 to fix the charge. After an attempt to raise $100 failed, other arrangements were made in that Tefft made out a check for $100 which was given to Miss Jaffrin, together with the title to his automobile and V. F. W. Membership Card, all of which was returned on October 18th when he claims to have delivered five twenty dollar bills to Miss Jaffrin under the agreement. Miss Strickland did not appear on the day set for the hearing in the Cleveland Municipal Court and a capias was issued for her arrest. On the eighteenth of November, 1955, she appeared in court, having been advised a warrant had been issued for her arrest and after going to Akron to borrow $50 for bail from her father and mother. Upon this occasion the case was passed to the 29th of November. On November 29th, in explaining her failure to come to court as directed by the arrest ticket, she said she had paid $100 to fix the case and gave the name of Miss Jaffrin as the person who received the money for that purpose. During the night of November 29th, Judge Corrigan, by telephone, ordered the arrest of Miss Jaffrin without a filed charge, the arrest was said to be for contempt of court. She was released on a five hundred dollar appearance bond during the night, was booked on the court calendar on November 30th for contempt of court and was present in court as required by the bond. When she was called before the court, her counsel asked for a continuance. Thereupon, the following took place, according to Judge Corrigan in his testimony before Chief Justice Silbert of the Common Pleas Court, on the motion to disqualify Judge Corrigan from presiding over the contempt hearing on the ground of prejudice:

“She stepped forward with Mr. Sheldon Perry, who is present here today. He walked up to the bench and said: ‘Your Honor, we are entering a plea of not guilty.’ And I said, ‘there are no charges here. There is nothing to enter a plea of not guilty to.’ And he said: ‘Well, I want a continuance so—I just got into this matter. I want a continuance so I can inquire into this matter,’ and I then said that ‘There will not be two minutes’ continuance in this case, because there are no papers, and this court really wants to ask this woman some questions relative to some accusations that were made against her in this open court yesterday afternoon,’ and he then—there was some more conversation and when I just indicated to him I only wanted to ask her questions here and now and not later, he then indicated that he was withdrawing from the case, and with that he walked away from the bench.’
“You considered that there was no charge against this woman at all, is that right?
“I advised him, as I later advised her, that this court was interested in asking this woman some questions relative to accusations that had been made the previous afternoon in my court room.
“Judge, what else was done there on the 30th? What conversation, if any, did you have with Helen Joanne Jaffrin?
“Well, upon the—when counsel withdrew I then said: T want to ask you some questions. First, I want you to be sworn. Raise your right hand and be sworn.’ And she said: ‘I refuse to answer any questions. I am not going to do anything until I have an attorney.’ I merely insisted that T want to ask you some questions relative to the accusations that were made in this court room yesterday.’ But she again said something that she wasn’t going to answer. She didn’t have to answer.
“And then what did you do, if anything?
“When she refused to answer, and refused to be sworn, I then instructed—turned to my bailiff—to the bailiff and to the clerks to my right and said ‘Lock her up.’”

The defendant was then locked in jail even though she had given an appearance bond after arrest upon the verbal direction of the Judge and in spite of the fact that the court said there were no charges pending against her. A writ of habeas corpus was immediately filed in the Common Pleas Court and set for hearing. Upon trial, the court denied the writ on condition that charges be filed. Thereupon the following affidavit was filed (November 30, 1955) in the Cleveland Municipal Court:

“Now comes BERNARD J. CONWAY, and being first duly sworn, says that on or about the 15th day of October, 1955, one HELEN JAFFRIN did unlawfully do acts calculated to impede, embarrass or obstruct the Cleveland Municipal Court in the administration of justice, in this that for and in consideration of the sum of One Hundred Dollars ($100.00) paid to her on behalf of JANICE STRICKLAND, the said HELEN JAFFRIN did then and there cause acts to be done to change the entry in the docket of the Cleveland Municipal Court, Criminal Branch, and tried to procure the disposal of a criminal case therein pending, in which the City of Cleveland is Plaintiff, and JANICE STRICKLAND, Defendant.
“WHEREFORE, rule is asked against the said HELEN JAFFRIN, that she appear and answer why she should not be punished as in contempt of this Court.”

When the case was called for trial on December 13, 1955, after the defendant’s request by motion to disqualify Judge Corrigan on the ground of prejudice, filed in the Common Pleas Court of Cuyahoga County, had been overruled, the defendant asked the court to rule on a motion to quash the affidavit, said motion having been filed December 9, 1955. Prior to this request,'the court made the following statement:

“It is now 2:50 and we are still not into the hearing of the case. And I think at this time it might be good on the part of the Court to review a little bit of what has transpired.
“As the result of some allegations which were made in court against the accused, this Court summoned the accused to appear before it. The accused did appear on the morning of November 30th, at which time she refused to answer any questions, at which time she refused to even be sworn to answer any questions in connection with the Court’s inquiry into these charges of an irregularity and an attempted fix, and the charges concerning an alteration to the Court’s docket, and concerning the files that were missing.
“Upon the refusal of the accused to answer any of the Court’s questions: upon the refusal of the accused to even be sworn, the Court ordered her taken from the courtroom and locked up. Counsel for the accused immediately filed a writ of habeas corpus, which was secured the same day, November 30th, in the Court of Common Pleas, before Judge Donald F. Lybarger.
“Said writ of habeas corpus was denied by Judge Lybarger, and at that hearing on the writ of habeas corpus, this Court was represented at that time, as it has been throughout the matter, by the Cleveland Police Prosecutor of the City of Cleveland, Bernard J. Conway, who agreed with Judge Lybarger that certain charges in writing would be prepared, would be given to this accused, and the case would be set for hearing.
“In accordance with the agreement made before Judge Lybarger, certain information was reduced to writing, and that said writing was presented to Sheldon Perry, representing the accused, Helen Jaffrin.
“The Court would like to point out that the Court here is dealing with a case of summary contempt; that the Court was under no obligation to present written charges of any kind. However, the Court has presented such written charges, and is proceeding on said written charges today. But the Court wants to make it amply clear that we are dealing here with a case of summary contempt; that since some charges have been reduced to writing in this matter, the Court is extending to counsel for the defendant, or the accused, and to counsel for the State of Ohio, as well as the Committee from the Bar Association, the right to fully inquire into all facts, into all evidence which may be presented from this witness stand.”

The ruling on the motion to quash was then reserved until the testimony was in as was the ruling on a demurrer which was then presented verbally with a request for leave to file such a pleading. At the conclusion of the hearing, the motion to quash and demurrer were overruled, the defendant found guilty and sentenced to pay a fine of $500.00, and serve ten days in jail. The defendant claims the following errors:

“1. That the Court of Common Pleas should have sustained the Affidavit and Motion of the defendant to disqualify the Honorable Judge John V. Corrigan for the reason that said Judge John V. Corrigan was prejudiced and could not grant this defendant a fair and impartial trial.
“2. That the said Honorable Judge John V. Corrigan erred in not disqualifying himself from acting as the trial judge in said matter by reason of his personal interest and prejudice against this defendant.
“3. That the verdict and judgment of the court was contrary to the manifest weight of the evidence and contrary to law.
“4. That the court erred in the admission of evidence offered by the State of Ohio and duly objected and excepted to by the defendant.
“5. That the court erred in refusing to permit defendant to introduce evidence offered by her and pertinent to the issues in the cause.
“6. That the court erred in overruling the Motion of the defendant for a new trial.
“7. That the court erred in overruling the Demurrer of the defendant to the introduction of evidence in due season made.
“8. That the court erred in overruling defendant’s Motion to Quash the Affidavit filed against her.
“9. That the court erred in permitting a Committee of the Cuyahoga County Bar Association to assume and act as prosecutors in said matter in place and stead of the duly constituted prosecutors and/or Assistant Law Directors of the City of Cleveland.
“10. That the court denied to the defendant her constitutional right to due process of law.
“11. Other errors appearing on the face of the record and duly objected and excepted to by the defendant.”

Sec. 2705.01 R. C. provides:

“A court, or judge at chambers, may summarily punish a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.”

Sec. 2705.02 R. C. provides:

“A person guilty of any of the following acts may be punished as for a contempt:

(A) Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment, or command of a court or an officer;

(B) Misbehavior of an officer of the court in the performance of his official duties, or in his official transactions;

(C) A failure to obey a subpoena duly served, or a refusal to be sworn or to answer as a witness, when lawfully required;

(D) The rescue, or attempted rescue, of a person or of property in the custody of an officer by virtue of an order or process of court held by him;

(E) A failure upon the part of a person recognized to appear as a witness in a court to appear in compliance with the terms of his recognizance.”

From the nature or character of the charges preferred against the defendant in this case, it is clear that the prosecution could not proceed under the provisions of §2705.01, supra, R. C., as for summary contempt. There is no claim that an act had been committed in violation of an order of the court or that a contemptuous act was committed in the court’s presence (actual or constructive). The charge of contempt here encompassed interference with the judicial process of such a character as to bring the court into disrepute by acts committed without the knowledge of the court and, therefore, an indmect contempt. The court was in error in saying the proceeding was one in summary contempt. However, before hearing, written charges had been filed as required by §2705.03 R. C.

In Dangel on Contempt, page 7, para 14, it is said:

“Indirect contempts consist of all contemptuous acts which occur out of the presence of the court, and of which the court itself has no personal official knkowledge. * * * An indirect contempt includes all such acts, when the court is not sitting, tending to obstruct, embarrass, or prevent due administration of justice.”

This proceeding is criminal in its nature and one charged with criminal contempt is entitled to the constitutional guarantees provided for those charged with crime. In Dangel on Contempt, page 3, para, 6, it is said:

“Contempt of court, whether direct or constructive, which makes an attack on the integrity of the court or on its officers, which attack hinders and delays the operation of the court in the trial of a pending case, or which act is in disrespect of the court, or tends to obstruct the administration of justice, or which tends to bring the court into disrepute, is criminal contempt, and is subject to punishment.” and on page 71, para, 161, the author says:
“Contempt proceedings are sui generis (in their own class) because they are not hedged about with all the safeguards provided in the Bill of Rights for protecting one accused of ordinary crime from the danger of injurious conviction. But in criminal contempts, as in criminal cases, the presumption of innocence exists. Proof of guilt must be beyond reasonable doubt and the defendant may not be compelled to be a witness against himself.”

Michaelson v. United States, 266 U. S. 42 at 66; Root v. MacDonald, 260 Mass. 344, at 365; Hayes v. Hayes, 11 O. O. 10. (See also para. 166 page 76, Dangel on Contempt.)

In the trial of an indirect or constructive contempt action, due process requires the accused be advised of the charges in writing with a reasonable opportunity to meet them by way of defense or explanation. (See para. 466, page 209 Dangel on Contempt.) In the case of Post v. State, 14 C. C. 111, the first paragraph of the syllabus provides:

“When the transactions constituting an alleged contempt of court do not come within the personal cognizance of the court through his own senses, the better practice is, to require an information to be filed by a proper representative of the state, and permit the accused to file an answer to the charge made against him, and that all facts not within the personal knowledge of the court, should be established in open court upon the sworn testimony of witnesses, or other competent evidence, in the ordinary manner of other judicial investigations.”

Having in mind that criminal contempt as here charged against the defendant, is prosecuted to uphold and protect the judicial processes from being brought into disrepute (and not for the purpose of upholding the reputation of the Judge as he [Judge Corrigan] erroneously stated when testifying before Judge Silbert), we must examine the record to determine whether the defendant has here been afforded due process.

The defendant was clearly within her rights to refuse to give testimony when ordered to do so as a preliminary step in this proceeding on November 30th, either under oath or otherwise. At the time of this hearing this defendant was not called as a witness in the case of City of Cleveland v, Strickland, the court indicating that it was investigating the charge that she had received $100.00 to “fix” the second Strickland case. Until written charges had been filed and a reasonable time afforded to answer, the court was without power to proceed to try such charge and even after proper charges were filed, the defendant could not be compelled to be a witness against herself in the case. (Art. 1, Sec. 10 of the Constitution of Ohio.) However, the filing of written charges and the passing of the trial to a future day eliminated any prejudice suffered by the defendant because of these errors in procedure.

Before trial, the defendant filed a motion to quash the affidavit above quoted in full and sought leave to file a written demurrer which was never done. A ruling on these pleadings was postponed until the conclusion of the taking of the evidence in the case. The grounds for the motion to quash were that the specifications in the written charges, which the state claimed to constitute contempt, did not come within any of the classifications set forth in §2705.02 R. C., supra. The charges in the affidavit filed (supra) are:

“That the defendant did unlawfully do acts calculated to impede, embarrass or obstruct the Cleveland Municipal Court in the administration of justice in that for a consideration of $100 paid to her on behalf of Janice Strickland, she
“(First), then and there caused acts to be done to change the entry in the docket of the Cleveland Municipal Court, Criminal Branch.
“(Second), try to procure the disposal of a criminal case then pending in which the City of Cleveland was plaintiff and Janice Strickland was defendant.”

Whether these specifications come within any of the acts punishable as and for contempt within the statute (§2705.02 R. C.) is of no consequence. Section 14, page 103 of Vol. Eleven, O. Jur. (2nd), in the article dealing with contempt, in connection with this question, says:

“Certain acts constituting contempt are enumerated in the Code, which particular acts are discussed in various parts of this division of the article; but the language of the statute is not exclusive and its terms do not place any limitation upon the court’s power to extend and expand the legislative rule to other acts of either similar or dissimilar nature. If the court has inherent power to punish the contempts summarily, it must by the same token have the power to determine the kind and character of conduct which will constitute contempt even when not expressly provided for in the statute.”

See also: State, ex rel Turner v. Albin, 118 Oh St 527; Hale v. State, 55 Oh St 210.

The evidence as to the change or alteration of records tends to show that the file (not mentioned in the charge or affidavit) in the case of City of Cleveland v. Strickland, heard and disposed of by the court on September 26, 1955, was missing and the words written on the court’s calendar for September 26, 1955, after the name Janice Strickland, “one year probation inactive,” which was also after the entry of the plea of guilty and sentence, had a line drawn over the writing. This is the case hereinabove referred to in which Judge Corrigan had told the defendant that if she was brought in again on a traffic violation, she would be required to serve days. The record shows that this case was fully concluded on September 26th, had been properly journalized on the journal of the court so that any notation on the court’s calendar or loss of the flies themselves (which were found misfiled in the Clerk’s Office on November 30th, after a diligent search) would not have the slightest legal significance. In any event, there is not a syllable of evidence in the record that connects this defendant with any change of records or loss of files and for that reason, the charge of contempt based on this claim must be dismissed.

The second charge of contemptuous conduct, as set forth in the affidavit filed November 30th, has to do with the claim that the defendant, after being fully informed that Janice Strickland had been arrested for a traffic violation and being solicited for help so that Janice Strickland could avoid the necessity of a court appearance and trial on the second traffic charge because of her prior traffic violation and the possibility of serving a jail sentence, alleged that the defendant agreed to “fix” the case, saying it would cost one hundred dollars. It is also alleged that the defendant was tendered payment and that she received $100 on October 18, 1955, for the purpose of disposing of or “fixing” -such traffic charge. As a result of this promise of unlawful help, Janice Strickland did not appear in traffic court as directed by the arresting officer on the arrest ticket. A capias was issued for her arrest and she, on November 18th, on previously being informed that a warrant had been issued for her arrest, submitted to the jurisdiction of the court and the case was passed to November 29th for trial, at which time she made full disclosure of the reason she did not comply with the order to attend traffic court as directed on the arrest ticket. The defendant categorically denies being implicated in the transaction. Can it be said, if the facts are established by proof beyond reasonable doubt as contended by the state, that the defendant attempted to sell to her benefit immunity from the judicial process, and as a result, the court was compelled to put in motion extraordinary means of bringing the person arrested before the court for trial, that the court is powerless to punish such wrongful conduct as and for contempt of court? We think not. What could be more inimical to the cause of justice than the private sale of immunity from law enforcement? The taking of money in payment for a promise to “fix” a traffic arrest so that without appearance or trial one charged with such offense can avoid punishment is an act seriously challenging the dignity of the court and an affront to its judicial prerogatives. It despoils the integrity of the judicial processes and shows a wicked design to destroy, if not to wholly obstruct the administration of justice and brings the court into disrepute. If such facts, as claimed by the state, are properly established without showing any further act in furtherance of such unlawful conspiracy, enough has been established to make out a clear case of constructive or indirect contempt of the court in which the traffic prosecution was pending.

It is within the inherent power of the court to protect its processes against wrongdoing and to punish as and for contempt those guilty of such unlawful conduct. As has been indicated, some irregularities crept into the procedure, most of which have been pointed out, but we hold that the defendant was not prejudiced thereby and in our opinion, substantial justice- has been done.

We find that there is sufficient credible evidence to justify the court in finding the defendant guilty of contempt of court as charged in the second part of the affidavit.

Judgment affirmed.

Exceptions. Order see journal.

KOVACHY, PJ, HURD, J, concur.


source: Caselaw Access Project

author: By MILLER, PJ.

license: Public Domain

text:
    BYERLY, Estate of, In re.
    Ohio Appeals, Second District, Madison County.-
    No. 209.
    Decided March 22, 1956.
    D. H. Jackman, Wallace V. Nichols, London, for executor-appellant, Carl Byerly.
    William S. Culp, West Jefferson, for exceptor-appellee, Imer Byerly.
    (DEEDS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court sustaining exceptions Nos. 3, 4, 8 and 9, to the inventory filed by the executor in the matter of the estate of Rozella Byerly, deceased. The record reveals that the appellant is Carl Byerly, the executor of the estate. Counsel for the exceptor, the appellee herein, has filed a motion seeking an order dismissing the appeal for the reason that an executor has no right to appeal from such an order, the reason assigned being that he is not an aggrieved party. He urges the right of appeal extends only to one who is aggrieved or whose substantial right has been affected by the final order appealed from; that Carl Byerly as an individual is not a party to the action; that it is the duty of the fiduciary to take possession or gain control of all the assets of the decedent and account for the same according to law; that the fiduciary as such has no personal property interest in the assets he is administering other than those rights and corresponding duties bestowed upon him by statute. The right to an appeal from an order of the Probate Court is found in §2101.42 R. C., which provides in part:

“An appeal on a question of law and fact may be taken to the court of appeals in all cases in which such court has appellate jurisdiction. Such appeal may be taken from any order, decision, or judgment of the probate court, by a person against whom it is made or whom it affects, in the manner and within the time provided for the prosecution of such appeals from the court of common pleas to the court of appeals. The cause appealed shall be tried and decided in the court of appeals as provided in §§2505.01 to 2505.45, inclusive, R. C.

It will be noted that an appeal may be taken “by a person against whom it is made or whom it affects.” Ordinarily, an executor is not an interested party in such a proceeding where the judgment affects only the rights of the beneficiaries. Under such circumstances he cannot be an aggrieved party. In re Estate of Turpen, 26 Abs 584; First National Bank v. Rawson, 54 Oh Ap 285; In re Kelly’s Estate, 68 Oh Ap 551. However, when the order affects the executor in the performance of his official duties we think a different situation is presented. An examination of the errors assigned reveals that the executor is not taking exceptions to the ruling of the court ordering that certain property be included in the inventory, but his complaint is that the property ordered included in the inventory cannot be located. In other words, that it is a physical impossibility for him to comply with the court order. He is an aggrieved party for if the order is enforced he would be charged with certain assets for which he would be unable to account. In 2 Amer. Jur. Section 183, page 960, the following pertinent statement is found:

“An executor or administrator may institute appeal or error proceedings where he is a party aggrieved or prejudiced, within the meaning of appeal statutes, by a judgment, order, or decree. The cases in which he is aggrieved fall within two classes—Namely, (1) those affecting the estate of his decedent, that is, in the executor’s representative capacity, and (2) those affecting himself personally. In each of these classes executors and administrators have frequently been allowed to appeal.”

It is our conclusion that the judgment would affect the executor personally and in his representative capacity, if he is correct in his contentions, hence the motion to dismiss will be overruled.

We will now give consideration to the errors assigned, the first of which charges that the judge of the Common Pleas Court who heard this matter was without jurisdiction to hear the exceptions to the inventory. Article 4, Section VIII of the Ohio Constitution confers jurisdiction upon the Probate Court in “testamentary matters, the appointment of administrators and guardians, the settlement of accounts of executors, administrators, and guardians, * * The record reveals that the Probate Court attempted to transfer jurisdiction to the Common Pleas Court by virtue of the following order:

“On motion of Joseph S. King, Judge of the Probate Court of Madison County, Ohio, it is ordered that this cause be certified to the Court of Common Pleas of Madison County, Ohio, for hearing and determination upon Exceptions to Inventory and Appraisement, and that the said Inventory and Appraisement and all the original papers connected with this proceeding be filed with the Clerk of the Court of Common Pleas of Madison County, Ohio, as required by law.”

Authority for the transfer is found in §§2101.37 and 2101.38 R. C., to wit:

“When the probate judge of any county is absent, or is unable to attend court, or the volume of work in his office necessitates it, he may call upon a judge of the court of common pleas having jurisdiction in said county to act in his place, or in conjunction with him, or he may call upon the chief justice of the supreme court, who shall designate a judge of the court of common pleas or a probate judge to act in the place of such absent or incapacitated probate judge, or in conjunction with him.”

“Sec. 2101.38 R. C. * * *

“If a probate judge is interested, as heir, legatee, devisee, or other manner in an estate which would otherwise be settled in the probate court of the county where he resides, such estate, and all of the accounts of guardians in which the judge is interested, shall be settled by the court of common pleas of the county.”

It will be noted that the order of transfer contains no statement of fact or finding which brings it within the terms of the aforesaid sections of the Revised Code. No request was made for such a transfer and no reason appears in the record which would preclude the probate judge from sitting in the case. In the case of In re Estate of Thrush, 76 Oh Ap 411, Judge Guernsey says at page 423:

“The Probate Court has constitutional jurisdiction of probate and testamentary matters and the accounts of executors and administrators. Such constitutional jurisdiction necessarily comprehends jurisdiction of inventories of administrators and executors and exceptions thereto, as inventories are essential to the accounting of executors and administrators. Incident to the constitutional jurisdiction in the premises, the Probate Court has plenary power to dispose of any matter properly before it, including the power to adopt and apply remedies which are legal or equitable in their nature. The exercise of such jurisdiction by the Probate Court is mandatory and not discretionary.”

We are of the opinion that the Common Pleas Court never acquired jurisdiction of the subject matter of this action and for this reason the judgment is null and void.

The only remaining assignment of error relates to the court’s order requiring the executor to include in a supplemental inventory a 100 piece set of dishes. It is the contention of the appellant that the ex-ceptor failed to prove by the proper degree of proof that the decedent owned such a set of dishes at the time of her death. Since we must pass upon all errors assigned, we pass upon this assignment although the same does not become pertinent if our judgment is correct on the jurisdictional question. We have examined the entire record with reference to this allged set of dishes and are of opinion that the assignment is well taken. The dishes have never been found and we think the evidence fails to establishes that they were at any time in the possession of this appellant or that he had any knowledge that they were in possession of decedent when she died. The order requiring them to be added to the inventory is against the manifest weight of the evidence.

The judgment is ordered reversed and cause remanded.

HORNBECK and DEEDS, JJ, concur.


author: By THE COURT.

text:
    ROBY, Plaintiff-Appellee, v. BRIDGES and BRIDGES BROTHERS, Defendants-Appellants.
    Ohio Appeals, Second District, Franklin County.
    No. 5169.
    Decided February 11, 1955.
    Gilbert Kirby, Plain City, for plaintiff-appellee.
    L. P. Henderson, Columbus, for defendants-appellants.
   OPINION

By THE COURT.

This is a law appeal from the judgment of the Municipal Court of Columbus.

The record as it comes to us consists of a transcript of the docket and journal entries, without a bill of exceptions.

Defendant requested the court to render a finding with respect to certain facts, which was done. In the absence of a bill of exceptions, we are required to presume that the findings of fact were supported by the evidence.

The defense of the statute of frauds is an affirmative defense, and unless it is pleaded, the objection is waived. Vol. 19, O. Jur., P. 668, Section 163.

We find no assignment of error well made. Judgment affirmed.

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


author: By MILLS, J. By MILLS, J.

text:
    JAFFE, Plaintiff, v. PATTERSON REALTY COMPANY, Defendant.
    Common Pleas Court, Montgomery County.
    No. 104360.
    Decided July 20, 1953.

      Pickrel, Schaeffer & Ebeling, for plaintiff.
    Smith, Schnacke & Compton, for defendant, Patterson Realty Company.
    Kusworm & Kusworm, for defendant, Webster Clothes.
   OPINION

By MILLS, J.

This cause came on for hearing before the court on the second amended petition of Bohlender and Royston Jewelers, Inc. as the substitute party plaintiff for Lawson Jaffe, under an assignment of a certain written contract for lease dated April 7th, 1947, and by reason of the assignment of all the right, title and interest of Lawson Jaffe in and to a certain cause of action pending in the Common Pleas Court of Montgomery County Ohio, as set forth more fully in Plaintiff’s Exhibit C introduced into the record in the trial of this cause, and the answer of Patterson Realty Company, a corporation, and the answer of Webster Clothes, Inc., and the reply of plaintiff to the answers of the defendants, and the evidence adduced at the trial, the arguments of counsel and briefs of both plaintiff and defendants.

Plaintiff’s second amended petition reads as follows:

“Now comes Bohlender and Royston Jewelers, Inc., an Ohio corporation, which was heretofore substituted by this court for and instead of Lawson Jaffe a party plaintiff herein by virtue of the assignment to it by Lawson Jaffe of all of his right, title and interest in and to á certain contract for lease hereinafter described in this petition, and this plaintiff says that at all times hereinafter named the defendant, Patterson Realty Company, was and is now the owner in fee simple of the following described real estate, to wit:

Situate in the City of Dayton, County of Montgomery and State of Ohio, and being the office building on the northeast corner of Main and Third Streets in the City of Dayton, Ohio, located on Lot No. 134 of the consecutive numbers of lots on the revised plat of said City of Dayton, Ohio.

Plaintiff further says that on or about the 7th day of April, 1947, said Lawson Jaffe and Patterson Realty Company entered into a written contract whereby the said defendant agreed to lease to Lawson Jaffe that certain part of the above described office building and premises being known as the ground floor, store room, the mezzanine floor, and a portion of the basement space thereunder, for and during the full term of fifteen years commencing from the 1st day of December, 1951; that the said Lawson Jaffe agreed to pay to the defendant as guaranteed rental the sum of Two Hundred and One Thousand Dollars ($201,000.00) payable at the rate of One Thousand Dollars ($1,000.00) per month during the first five (5) years, Eleven Hundred Dollars ($1100.00) per month for the second five (5) years, and Twelve Hundred Fifty Dollars ($1250.00) per month during the third five (5) years of the term of the lease, such payments to be made between the first and tenth days of each and every month during the term thereof, and in addition thereto, as additional rental, a sum, annually, payable within thirty (30) days after the end of each twelve (12) month period, equal to four percent (4%) of the gross business turned in, on, about or from the demised premises by the said Lawson Jaffe, less the guaranteed rental for such twelve (12) month period; report of gross sales to be made monthly and be subject to adjustment, if necessary at the end of each twelve (12) month period.

This plaintiff further says that said Lawson Jaffe prepared and submitted to the defendant, Patterson Realty Company, as required in the last paragraph on page 6 of said lease, detailed plans for the alterations to be made by plaintiff, and requested the defendant for suggestions and final written approval before the work is started, and that the said Lawson Jaffe further offered to perform all of the terms and conditions on his part to be performed in said lease, and made written demand upon the defendant for the execution and delivery to him of the lease in the form agreed upon in said written contract and that he stood ready, willing and able to pay to the defendant the rental payments called for under said form of lease and contract, and that the said defendant has failed and refused to do so and still refuses and continues to refuse to comply with the terms of said contract and lease.

Plaintiff further says that although the said defendant has failed and has refused to perform said contract and to execute a lease in the form called for in said contract, said Lawson Jaffe nevertheless did heretofore tender the first month’s rent of One Thousand Dollars ($1,000.00) in court, and further offered to pay. all future installments of rent as they become due, if he is decreed specific performance of said contract and put in possession of said demised premises.

This plaintiff, Bohlender and Royston Jewelers, Inc., further represented to the court that in said written contract for a lease it was stipulated that Lawson Jaffe may assign to said Bohlender and Royston Jewelers, Inc., all of his right, title and interest in and to said contract for a lease and in and to said lease; and that on Thursday, June 12th, 1952, said Lawson Jaffe did sell, assign, transfer and set over to Bohlender and Royston Jewelers, Inc., an Ohio corporation, his said interest in and to said contract and lease, and that by order of this court Bohlender and Royston Jewelers, Inc., has been substituted for and instead of Lawson Jaffe as plaintiff herein, and further that in said assignment Lawson Jaffe did further sell, assign, transfer and set over to Bohlender and Royston Jewelers, Inc., also all of his right, title and interest in and to the cause of action set forth in the original petition of said plaintiff heretofore filed in this action, and that hereafter in this proceeding said Bohlender and Royston Jewelers, Inc., will at all times be referred to as plaintiff in this cause of action.

This plaintiff further represents to the court that it has been informed and believes that Webster Clothes, Inc., a Maryland corporation, claims to have a lease dated September 1, 1951, on the premises above described from Patterson Realty Company, and that by virtue of its said lease-hold claim an interest in said premises, it asserts and will continue to assert possessory rights and interests in said premises adverse to this plaintiff; that any right or claim which said Webster Clothes, Inc., may assert in and to said premises were entered into between it and Patterson Realty Company will full knowledge of the claim of this plaintiff and of its assignor, Lawson Jaffe, in and to said premises, which full knowledge was received on December 16, 1949 by said Webster Clothes, Inc.

Plaintiff says further that it has no adequate remedy at law.

Wherefore plaintiff prays that said contract for a lease be specifically enforced and performed, according to the terms of said contract, and that the defendant, Patterson Realty Company, be required to execute to this plaintiff a lease in the form agreed to between the parties, that the lease and leasehold interest, if any it asserts in said premises of Webster Clothes, Inc., be adjudged to be inferior to, secondary to, and subject to, the prior first leasehold interest and estate of this plaintiff in and to the said premises, and for such other relief as is just and equitable, and its costs herein expended.”

The answer of Webster Clothes, Inc., to plaintiff’s second amended petition, reads as follows:

“Now comes Webster Clothes, Inc., and for answer to plaintiff’s second amended petition admits that by a written instrument dated September 1, 1951, it leased from Patterson Realty Company, the premises described in said second amended petition for a term of five years and one month commencing on December 1, 1951 as set forth in the answer of Patterson Realty Company filed herein; that by virtue of said written instrument of lease this answering defendant has full possessory rights in and to said premises for the full term set forth in said written instrument of lease, to wit, until December 31, 1956.

For lack of knowledge this answering defendant denies each and every, all and singular of the allegations not herein specifically admitted to be true, which are contained in the second amended petition.

Wherefore, having fully answered, defendant Webster Clothes, Inc., prays that, as to it, the second amended petition of plaintiff be dismissed and that this answering defendant go hence without day at the costs of plaintiff.”

The answer of Patterson Realty Company to the second amended petition of Bohlender and Royston Jewelers, Inc., reads as follows:

“Now comes Patterson Realty Company, defendant herein, and for answer to plaintiff’s second amended petition admits that it is the owner in fee simple of the real estate described in plaintiff’s petition.

Defendant' further admits that by order of this court Bohlender and Royston Jewelers, Inc. has been substituted for and instead of Lawson Jaffe as plaintiff herein; and admits that defendant Webster Clothes, Inc., claims to have a lease on the premises described in plaintiff’s petition, and says that by a written instrument dated September 1, 1951, it leased said premises to Webster Clothes, Inc. for a term of five years and one month commencing December 1, 1951; but, for want of knowledge, this defendant denies that Webster Clothes, Inc. entered into said lease with full knowledge of the claim of plaintiff and its assignor, Lawson Jaffe, in and to said premises, and for want of knowledge, denies that Webster Clothes, Inc. will continue to assert possessory rights and interests in said premises adverse to plaintiff’s claim.

First Defense

Defendant, Patterson Realty Company, denies each and every allegation contained in plaintiff’s petition which is not hereinbefore specifically admitted to be true or which is not hereinbefore, for want of knowledge, specifically denied.

Second Defense

For its second defense, this defendant incorporates and makes part hereof by reference its first defense the same as if rewritten herein in full, and further says:

At the time of the execution of the alleged written contract of April 7, 1947 referred to in plaintiff’s petition, the premises described in said alleged contract were leased to Chasebrook, Inc. under a lease which expired on December 1, 1946, with a right on the part of Chasebrook, Inc. to renew the same for an additional term of five years. Prior to the execution of said alleged contract, said Lawson Jaffe, in 1946, told defendant Patterson Realty Company that he desired to lease said premises for a term of fifteen years, and made an offer to defendant which was in substance as follows:

1. Said Lawson Jaffe would attempt to acquire the lease of Chase-brook, Inc. with its five year renewal option.

2. If said Lawson Jaffe could acquire said lease and its renewal option then said Lawson Jaffe and defendant would cancel said lease and would enter into a new lease for a term of fifteen years.

3. Said new lease would provide for a minimum rental of $12,000 per year, with an additional rental equal to 6% of said Lawson Jaffe’s gross business on the premises.

4. Said Lawson Jaffe would undertake certain alterations and remodeling of the leased premises and of the exterior of the building at a cost of $50,000.

Thereafter further negotiations took place between said Lawson Jaffe and defendant, which negotiations resulted in agreement on certain changes in said Lawson Jaffe’s proposal. These changes included, among other things, changes in the minimum and percentage rentals, and a change whereby said Lawson Jaffe upon acquisition of the lease with Chasebrook, Inc. could elect to have the term of his new 15 year lease commence either at that time or at the expiration of the Chase-brook lease. Said negotiations ultimately culminated in the approval by both Lawson Jaffe and defendant of a form of said new 15 year lease and the execution of the alleged contract to enter into such lease which is referred to in plaintiff’s petition.

The proposal of Lawson Jaffe made in 1946 as aforesaid and the subsequent negotiations hereinabove mentioned, culminated in the alleged agreement to lease referred to in plaintiff’s petition, were all premised on the intention and understanding that Lawson Jaffe’s acquisition of the lease to Chasebrook, Inc. was a condition precedent to defendant’s obligation to enter into the aforesaid 15 year lease with Lawson Jaffe. Acting upon said intention and understanding, and in the belief that Lawson Jaffe understood such to be defendant’s intention and understanding, defendant on or about April 7, 1947 delivered to Lawson Jaffe a letter for the purpose of confirming the theretofore verbal understanding between them and attached thereto the aforesaid new form of lease for fifteen years which both Lawson Jaffe and defendant had previously approved. Lawson Jaffe indicated his acceptance of said letter by returning to defendant a signed duplicate copy thereof. It is that letter which constitutes the alleged written contract of April 7, 1947 referred to in plaintiff’s petition. When said letter was delivered to Lawson Jaffe, Lawson Jaffe knew that it had been and was defendant’s understanding that defendant had promised, and was by said letter promising, that it would enter into the aforesaid 15 year lease with Lawson Jaffe only if Lawson Jaffe could and did acquire the outstanding lease of Chasebrook, Inc., within a reasonable period of time and such was also Lawson Jaffe’s understanding of his agreement with defendant and of said letter.

Subsequent to Lawson Jaffe’s acceptance of the aforesaid letter of April 7, 1947, Lawson Jaffe attempted to acquire from Chasebrook, Inc. its lease with defendant. Lawson Jaffe failed to acquire said lease. In the summer of 1948 Chasebrook, Inc. requested defendant to consent to an assignment of said lease to Kibler, Inc. Defendant gave its consent to said assignment, but prior to doing so was informed by Lawson Jaffe’s agent that Lawson Jaffe had no objection to such consent being given.

Consequent upon the contemplated assignment by Chasebrook, Inc. of its lease to Kibler, Inc. defendant on or about August 12, 1948, notified Lawson Jaffe in writing that defendant desired to make some alterations to the premises and it was presumed Lawson Jaffe had no further interest in the property since more than a year had expired and he had not acquired the Chasebrook, Inc. lease. Lawson Jaffe thereafter orally advised defendant that he interpreted the aforesaid letter of April 7, 1947 to obligate defendant to lease said premises to him for a term of fifteen years commencing upon the expiration of the lease with Chase-brook, Inc. irrespective of whether Lawson Jaffe had theretofore acquired said lease. Lawson Jaffe had never before asserted such a claim or communicated such a claim to defendant. Defendant immediately informed Lawson Jaffe that such was not defendant’s intention and understanding of the transaction; that such an arrangement was not consonant with usual and reasonable business practice; that Lawson Jaffe well knew that such was not and had never been defendant’s intention and understanding of the transaction and of the letter of April 7, 1947 hereinabove ’ referred to; and that had defendant known that Lawson Jaffe was taking or would take such a position, or would so interpret the letter of April 7, 1947, then defendant would never have entered into such transaction with Lawson Jaffe nor have delivered said letter of April 7, 1947 to Lawson Jaffe for his acceptance.

Kibler, Inc. failed to accept the aforesaid proposed assignment from Chasebrook, Inc. of the latter’s lease expiring December 1, 1951. Thereafter, when Kibler, Inc. failed to accept said assignment from Chase-brook, Inc., Lawson Jaffe requested that defendant refuse to consent to another proposed assignment of the lease to Brooks Clothes, Inc. but to take advantage of a then existing default in the lease by Chasebrook, Inc., thus enabling Lawson Jaffe to then acquire the lease; and Lawson Jaffe further proposed that defendant permit Lawson Jaffe to lease the front of the storeroom as a jewelry store and to permit Singer Sewing Machine Company to occupy the remainder and greater part of said storeroom. Thereafter, in the fall of 1948, Chasebrook, Inc., with defendant’s consent, assigned said Chasebrook, Inc., lease to Brooks Clothes, Inc.

In 1949 Lawson Jaffe, without the prior knowledge of defendant, approached Brooks Clothes, Inc. with a proposal that said company release to Lawson Jaffe the remainder of the term of its lease expiring December 1, 1951 upon condition that Lawson Jaffe obtain for said company another location for its Dayton store. When Lawson Jaffe subsequently told defendant that he was negotiating with Brooks Clothes, Inc. as aforesaid, defendant again informed Lawson Jaffe that the latter’s acquisition of the Chasebrook lease within a reasonable period of time after the letter of April 7, 1947 was prerequisite to defendant’s executing the 15 year lease which was attached to said letter; that Lawson Jaffe well knew that such was defendant’s intention and understanding of the transaction and of the letter of April 7, 1947; and that by reason of Lawson Jaffe’s failure to acquire the outstanding lease expiring December 1, 1951 any rights which Lawson Jaffe might ever have had to a lease of said premises were abandoned and cancelled.

Defendant says that at no time between April 7, 1947 and just prior to the commencement of this action did Lawson Jaffe demand of defendant that defendant execute and deliver to Lawson Jaffe a lease of said premises for a term of fifteen years commencing December 1, 1951 or for any other term; and further says that Lawson Jaffe has never offered to perform all terms and conditions required of Lawson Jaffe under the proposal for lease offered by defendant and signed by Lawson Jaffe.

By reason of the facts set forth in this second defense, formation of a binding and enforceable agreement to lease said premises was prevented and never occurred; and if an agreement to lease said premises was formed and did exist (which defendant does not admit but specifically denies), then, in such event, said agreement was, by reason of the facts set forth in this second defense, abandoned, rescinded and can-celled.

Third Defense

For its third defense, defendant incorporates and makes part hereof by reference its first and- second defenses the same as if rewritten herein in full, and further says that by reason of the facts therein alleged, among others, defendant believes, and so avers, that this action was not ■brought by Lawson Jaffe in good faith, and that plaintiff’s petition is without equity.

Fourth Defense

For its fourth defense defendant incorporates and makes part hereof by reference its first, second and third defenses the same as if rewritten herein in full, and further says that by reason of the facts therein alleged, Lawson Jaffe has been guilty of laches; and that by reason of the same facts Lawson Jaffe and his assignee should be and are estopped from maintaining this action and from asserting or claiming either at law or in equity any interest or rights under said alleged agreement to lease (the formation and existence of which defendant does not admit but specifically denies).

Wherefore, defendant prays that this court find and declare the alleged agreement to lease referred to in plaintiff’s petition to be void and of no effect, or, in the alternative, that the court reform said agreement so as to conform to the intention and understanding of the parties, and grant such other and further relief in the premises as equity and good conscience require; and that plaintiff’s petition be dismissed at plaintiff’s costs.

To the answers of Patterson Realty Company and Webster Clothes, Inc., the plaintiff filed the following replies:

“Comes now the plaintiff and for its reply to the answer of Patterson Realty Company denies each and every averment and allegation therein contained and each and every defense thereof, which does not constitute an admission of the material allegations of the plaintiff’s second amended petition.
“Wherefore, plaintiff prays for judgment as prayed for in its second amended petition.”
“Comes now the plaintiff and for its reply to the answer of Webster Clothes, Inc., denies each and every averment and allegation therein contained and each and every defense thereof, which does not constitute an admission of the material allegations of the plaintiff’s second amended petition.
“Wherefore plaintiff prays for judgment as prayed for in its second amended petition.”

Plaintiff, Lawson Jaffe (Bohlender Roys'ton Inc. assignee), after setting forth the alleged contract, prays that the contract for lease be specifically enforced and performed according to the terms of the contract; that the defendant, Patterson Realty Company, be required to execute to this plaintiff a lease in the form agreed to between the parties, and that the lease and leasehold interest, if any it asserts in said premises of Webster Clothes, Inc. be adjudged to be inferior to, secondary to, and subject to, the prior first leasehold interest and estate of this plaintiff in and for the said premises, and for such other relief as is just and equitable.

The defendant, Webster Clothes, Inc. admits that by a written instrument dated September 1, 1951 it leased from Patterson Realty Company the premises described in said second amended petition for a term of five years and one month commencing on December 1, 1951 as set forth in the answer of Patterson Realty Company, and says that this defendant has full possessory rights in and to said premises, and prays that the second amended petition of plaintiff be dismissed.

Defendant, Patterson Realty Company, in its answer denies that the contract for a lease alleged by plaintiff in the amended petition was the contract between Lawson Jaffe and defendant, Patterson Realty Company, and further claims that plaintiff, Lawson Jaffe, before he was entitled to a fifteen year lease of the premises more particularly described in plaintiff’s petition was to secure an assignment of said lease from Chasebrook, Inc., Brooks Clothes, and/or Webster Clothes, all successors of Chasebrook, Inc., or doing business then and now as Kibler Clothes, within a reasonable time, and asks for reformation of the contract to express the true intention of the parties, and that plaintiff herein be denied specific performance of his alleged contract.

Plaintiff, Lawson Jaffe, denies in his reply that a condition precedent to plaintiff herein obtaining the fifteen year lease from the defendant, Patterson Realty Company, was first, that plaintiff was to obtain an assignment of the Chasebrook, Inc., Brooks Clothes, and/or Webster Clothes, all successors of Chasebrook, Inc., lease, and further says that the letter of April 7th, 1947 and the attached form of lease and its acceptance by the plaintiff, is the contract for a lease between plaintiff and defendant.

Plaintiff denies that said contract as set forth in plaintiff’s petition should be reformed, and prays as in his petition for the specific performance of the contract as alleged in the petition.

These are the issues which the court must determine.

The court has carefully read the transcript of the evidence, the briefs of both counsel for plaintiff and the defendants.

The following is a copy of the letter dated April 7th, 1947 written by defendant, Patterson Realty Company, to plaintiff, Lawson Jaffe, to which was attached a lease form with all its proposed conditions:

“The Callahan Building 4 North Main Street Dayton 2, Ohio
April 7, 1947
Mr. Lawson Jaffe, Mayor’s Jewelry, Third & Main Streets Dayton 2, Ohio
Dear Mr. Jaffe—
This will confirm our verbal agreement with respect to the leasing of the store room and space now occupied by Kibler’s Clothing Store in the Callahan Building, Dayton, Ohio, now under lease to Chase-brook, Inc. to November 30, 1951.
It is our understanding that you are now negotiating to secure an assignment of the Chasebrook, Inc. lease. Upon your acquisition of this lease and the vacation of the premises by the present tenant, or upon the expiration of the present lease, we agree to enter into a lease with you, substantially in the form attached hereto as ‘Exhibit A,’ which lease you may assign to the Bohlender—Royston Jewelers, Inc. without however releasing yourself from the obligation of the lease.
If the foregoing correctly states our verbal agreement, and the attached form of lease is satisfactory to you, will you please sign a duplicate of this letter and return the same to us and it shall constitute our contract.
Very truly yours,
PATTERSON REALTY COMPANY Robert Patterson President.”
“Accepted:
Lawson Jaffe
Lawson Jaffe
Dated at Dayton, Ohio this 21 day of
May, 1947.”
The court has examined the letter of April 7, 1947 for ambiguity.
An ambiguity is defined by Bouvier as
“Duplicity, indistinctness or uncertainty of meaning of an expression used in a written instrument.”
“Latent ambiguity is that which arises from some collateral circumstance or extrinsic matter in cases where the instrument itself is sufficiently certain and intelligible.”
“Patent ambiguity is that which appears on the face of the instrument; that which occurs when the expression of an instrument is so defective that a court which is obliged to place a construction upon it, cannot, placing itself in the situation of the parties, ascertain therefrom the parties’ intention.”
Quoting from the letter of April 7, 1947
“It is our understanding that you are now negotiating to secure an assignment of the Chasebrook, Ine. lease. Upon your acquisition of this lease and the vacation of the premises by the present tenant,, or upon the expiration of the present lease, we agree to enter into a lease with you substantially in the form attached herein as ‘Exhibit A.’”

Quoting from Janet Rankin Aiken, Common Sense Grammar, page 159:.

“And then there is the alternative coordinate ‘or’ with its correlative ‘either,’ which offers a choice of two alternatives.”

And from the Grammar for Composition by C. H. Ward, page 305:

“A conjunction may work together as a team to connect two words, phrases, or clauses. The usual combinations are ‘either ... or, neither . . . nor.’ Such combinations are called in all grammars ‘correlative conjunctions,’ and these are included among the coordinating conjunctions.”
“ ‘Either’ is an adverb and when ‘or’ is used to emphasize the alternative it should be preceded by ‘either.’ ”

Further

“ ‘Or’ is a conjunction, marking distribution, an alternative, or opposition and the conjunction ‘nor’ performs the same office in negative connection with ‘either’ and the latter with ‘neither.’ ”
“To prevent an absurd or unreasonable result the word ‘or’ used in a contract may be read ‘and.’ ”

Munson v. Dayton, 153 Fed. 258-269; Thomas v. City of Grand Junction, 56 Pac. 665-667; Kitchen v. Southern Ry. 1 Annotated Cases 747; Alcott v. Tope, 115 Ill. App. 121; McBride Sugar Co. Ltd. v. Androde, 22 Howard 578-581.

With the latter interpretation of the word “or” as meaning “and” the court permitted a considerable amount of evidence to be introduced to assist the court in arriving at the true meaning of the contract, and was very liberal in the admissibility of testimony.

Quoting from Words and Phrases, Permanent Edition 14, citing Shepard v. City of New Orleans, 25 So. 542:

“ ‘Or’ generally indicates an alternative, corresponding to ‘either’ as ‘either this or that’; that is to say, either one thing or another thing. Thus, in a city charter granting of licenses to barrooms on written consent of the bona fide householders ‘or’ property holders within 300 feet, ‘or’ means ‘either.’ ”

And

“The word ‘or’ is said to be a disjunctive particle that marks an alternative, generally corresponding to ‘either,’ as ‘either this or that.’ It is said by Webster to be a connective that marks an alternative, as, ‘You may read or may write’; that is, you may do one of the things, but not both.”

Citing Austin v. Oakes, 1 N. Y. S. 307, 310.

Did the defendant, Patterson Realty Company, in writing the letter of April 7th, 1947, mean Lawson Jaffe was to first obtain the assignment of the Chasebrook, Inc. lease before he was entitled to a fifteen year lease? If that is what the evidence indicates to the court—that that is what he had to do in order to obtain a fifteen year lease, then the court can read “or” as “and”; but to read “or” as “and” then the contract would mean he was to obtain the Chasebrook lease and immediately be entitled to a fifteen year lease upon the assignment thereof to Lawson Jaffe. and also be entitled to a fifteen year lease upon the expiration of the Chasebrook lease, plus a five year renewal of the Chasebrook lease, which would expire December 1, 1951. Now it could not be both, if that was the meaning of the contract, because that would lead to an absurdity.

Bohlender & Royston, for which company Jaffe was entering into the proposed agreement, were renting from the Home Savings and Loan Company on North Main Street, within fifty feet of the property described in the amended petition known as Kiblers, in the Callahan Building, and Bohlender & Royston had been told that the Home Savings and Loan Company' was about to tear down their building and rebuild, and that as soon as the Home Savings and Loan Company could obtain suitable material to build, that Bohlender & Royston would have to vacate, but that they were permitted to remain in the location on a month to month basis until the Home Savings and Loan Company chose to vacate their building and rebuild, which time was uncertain. That is the reason Lawson Jaffe was anxious to secure the location in the Callahan Building by first obtaining the assignment of the Chasebrook lease so he could move Bohlender & Royston to the Callahan Building location—because of the uncertainty of the time Bohlender & Royston would be able to remain in the Home Savings and Loan Building.

The evidence is conclusive that Lawson Jaffe had at least four conferences with Chasebrook, Brooks Clothes and Kibler’s representatives and made every effort to obtain the assignment of the Chasebrook lease, but was unable to obtain the assignment of the lease because of what he thought was the exorbitant cost of the assignment.

The court finds that this information was conveyed to Patterson Realty Company from time to time.

Was there a mutual mistake in the letter of April 7, 1947? Or a mistake on the part of one party, or fraud on the other, or actions and conduct on the part of one party that might be considered as fraud? After consideration of all of the testimony the court is of the opinion that there was not.

Was or is there a patent or latent ambiguity in the letter of April 7, 1947. After consideration of all the testimony the court is of the opinion there was not and is not.

Quoting from 49 American Jurisprudence, page 69:

“Misapprehension and mistake—
“The equitable remedy of specific performance of a contract is governed by equitable considerations so completely that the granting of relief is generally said to be discretionary; such relief is never granted unless it is in accordance with equity and good conscience. It is well settled that equity may properly and generally refuse to issue a decree of specific performance to compel a defendant to complete a contract which he entered into under mistake and which he would not have entered into had he understood its true effect, although it may, when it deems it fair and equitable to do so, order the mistake corrected and decree the performance of the contract as corrected. As is often stated, the agreement must have been entered into without misapprehension, misrepresentation, or oppression. Specific performance not being a matter of right, equity will refuse to enforce its performance when not clearly satisfied that it embodies the real understanding of the parties. If the mistake is such as to prevent a meeting of the minds of the parties, there is, of course, no contract, and there can be no specific performance. Such a case arises where the parties to the contract did not intend the same thing. The statute of frauds does not operate to preclude one against whom the enforcement of a written contract is sought for showing, by parol proof, a mistake in the written agreement, and by that means destroying the equity of the bill for specific performance.
“Clearly, when the mistake has been produced by the complainant, or when by his conduct he contributed to or induced the defendant’s mistake or misapprehension, equity will refuse to lend its aid to compel the specific performance of the contract, if it appears that the defendant would not have entered into it had it not been for such mistake.”

The evidence is clear and convincing to the court that before writing this letter both plaintiff and defendant had numerous conferences in regard to the proposed lease, either personally or through the agent of each, and that the defendant herein did not write the letter with the attached proposed lease until both were approved by counsel, and it is evident plaintiff did not accept the contract except after due consideration thereof and after receiving competent advice.

The court has said, and the court will repeat, that it finds there is no mutual mistake, nor mistake by one party and fraud or what is amounting to fraud by the other party as to the letter of April 7, 1947 and the acceptance of the conditions thereunder by the plaintiff. However, it is plain, and so convincing, considering all the testimony adduced at this trial, and in consideration of all the surrounding circumstances, that one of the conditions of the proposed lease, there was mutual mistake or inadvertence on the part of both plaintiff and defendant in omitting as one of the clauses of the proposed lease that plaintiff herein would, before taking possession under his fifteen year lease, expend for his own benefit and the benefit of Bohlender & Royston, a minimum sum of Fifty Thousand Dollars ($50,000.00) for the improvement of the building front, entrance and storeroom.

The court will, therefore, order that the proposed lease contract be so reformed to include a clause sufficiently worded that it will bind the plaintiff herein, Lawson Jaffe, and/or Bohlender & Royston Jewelry Company, to whom the contract of lease was assigned, to expend not less than a minimum of Fifty Thousand Dollars ($50,000.00) for the improvement of the front of the building and the storeroom in accordance with the plans and specifications agreed upon between plaintiff, Lawson Jaffe, and the defendant, Patterson Realty Company, and in accordance with Defendant’s Exhibit 1.

The evidence clearly shows that Webster Clothes, as the successor of Chasebrook, Inc. and Brooks Clothes, Inc., obtained a lease for five years and one month beginning December 1, 1951, after having notice of the contract for a lease between plaintiff and defendant herein, and the assignment of said contract to lease to Bohlender & Royston Jewelry Company.

Decided January 4, 1954.

The court finds that Webster Clothes, before they entered into a lease with Patterson Realty Company, commencing December 1st, 1951, had actual notice of the contract between Lawson Jaffe and his assignees, Bohlender & Royston Jewelry Company, for a lease for fifteen years.

The court therefore orders that the lease and leasehold interests inserted in said premises by Webster Clothes be declared to be inferior to and secondary to the leasehold interest of the plaintiff, Lawson Jaffe and his assignees, Bohlender & Royston Jewelry Company, in and to said premises.

The court further orders that the contract, as set out in the letter of April 7, 1947, together with the proposed form of lease, with the reformation as the court has above indicated, be specifically enforced, and that the defendant, Patterson Realty Company, execute a lease to Bohlender & Royston Jewelry Company, the assignee of the contract and substitute party plaintiff herein, for a period of fifteen years, subject to all the conditions set forth in the attached lease, plus the indicated reformation.

No. 104360.

OPINION

By MILLS, J.

This cause comes on for consideration of the motions of plaintiff, Bohlender & Royston, Jewelers, Inc. and the defendants, Patterson Realty Company and Webster Clothes, Inc., for a new trial.

Upon consideration of said motions by all parties concerned, both plaintiff and defendants, the court overrules the motion of the plaintiff, Bohlender and Royston, Jewelers, Inc., and overrules the motion of the defendant, Patterson Realty Company, and the motion of defendant, Webster Clothes, Inc.

Upon consideration of the motion for new trial of the defendant Webster Clothes, Inc. the court is of the opinion from an examination of the letter of October 12th, 1949, plaintiff’s Exhibit D, sent to Mr. Feldman of Webster Clothes, Inc. and the letter of Mr. Jaffe of October 21st, 1949 to Mr. Feldman, Plaintiff’s Exhibit E, together with a copy of the letter of October 12th, 1949, and upon examination of the letter of November 1st, 1949 to Mr. Feldman, which is Plaintiff’s Exhibit F; upon an examination of a letter of November 28th, 1949 mailed to Mr. Feldman, Plaintiff’s Exhibit G, and upon examination of the evidence which shows that Mr. Feldman received a copy of the contract to make a lease between Patterson Realty Company and Mr. Jaffe in behalf of plaintiff, Bohlender & Royston Jewelers, Inc., Mr. Feldman then being president of Webster Clothes, Inc., and Mutual Exhibit O, which is a letter written by Jack Feldman on behalf of Webster Clothes, Inc. dated October 15th, 1949, which is an inquiry to Patterson Realty Company, which reads:

“We have been advised that the store room that we occupy on Third and Main Streets has been leased by a Mr. Lawson Jaffe of Dayton, for a 15 year period following the termination of our lease on November 30, 1951. Please advise us if this is correct:”

and a letter dated October 28th, 1949, Plaintiff’s Exhibit G, written by Mr. Stanley J. Brown to Mr. Herman Feldman and the acknowledgement of the receipt thereof by Mr. Jack Feldman on December 2, 1949, as shown in Plaintiff’s Exhibit H, and a copy of letter from Mr. Brown to Jack Feldman marked Plaintiff’s Exhibit I dated December 14, 1949 enclosing photostatic copies of the court records, which was not constructive notice, but which was photostatic copy of the contract for the lease between Mr. Lawson Jaffe and Patterson Realty Company, and the acknowledgement of the copy of the contract dated December 16, 1949 and marked Plaintiff’s Exhibit J, by Mr. Jack Feldman of Webster Clothes, Inc. to Mr. Brown,—the court is of the opinion that Webster Clothes, Inc. had actual knowledge of a contract to make a lease between Mr. Jaffe in behalf of Bohlender & Royston Jewelers, Inc., the substitute plaintiff in this action, and the actual knowledge to defendant Feldman, of Webster Clothes, Inc. of the equities of plaintiff, Bohlender & Royston Jewelers, Inc. to the right of a lease for fifteen years beginning December 1st, 1951 for the property in question.

All these are sufficient facts that would induce a reasonable ordinary intelligent man to conclude that Mr. Jaffe, acting in behalf of Bohlender & Royston Jewelers, Inc. had a prior enforcable contract with Patterson Realty Company to the lease of said premises at the expiration of the lease of Webster Clothes, Inc. on November 30th, 1951.


author: By SKEEL, J:

text:
    STATE, ex rel. PUCEL, Relator, v. GREEN, etc. et, Respondents.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23820.
    Decided March 15, 1956.

      Lody Huml & Lockwood Thompson, for relator.
    Frank T. Cullitan, for respondents.
   OPINION

By SKEEL, J:

This action is one in mandamus invoking the original jurisdiction of the Court, seeking an order directing the members of the Board of Elections of Cuyahoga County to include the name of Edward L. Pucel as a candidate for the office of Delegate from the Twentieth Congressional District of Ohio to the Democratic National Convention on the official democratic primary election ballot at the Primary Election to be held on the 8th day of May, 1956.

The cause came on for hearing on the 14th day of March, 1956, on the pleadings, the stipulations of fact and the arguments of counsel. The evidence is undisputed that the relator, prior to 4:00 P. M. of February 8th, 1956, filed with the Election Board of Cuyahoga County four nominating petitions as a “Lausche” delegate for President from the Twentieth Congressional District to the Democratic National Convention of 1956, which petitions, with declaration of candidacy, were filed on the forms issued by said Board. It is agreed that Exhibit No. A-l, a nominating petition was legally circulated and sworn to as provided by law, and contains fifty-six valid signatures of Democratic electors. Exhibit No. A-2 is a nominating petition containing forty-six valid signatures of qualified electors. Such petition was rejected in toto for the reason that one of the signatures, that is that of Mary Antoni was found by the Board of Elections to have been signed by her husband. Exhibit No. A-3, a nominating petition, containing thirty-nine valid signatures was rejected in toto for the reason that the signatures of two persons, Agatha Martin and Robert Martin, husband and wife, were allegedly signed by the wife which the Election Board found invalidated the entire petition for the reason that the circulator’s affidavit was untrue.

The facts, as shown by the record dealing with this Exhibit (affidavit of Robert Martin) are that when the circulator presented the petition to Agatha Martin for signature, she signed her name on line four (of Exhibit No. A-3) after the circulator explained what the petition was. This was done in the presence of her husband. He was then asked to sign the petition but because he did not have his glasses, he requested his wife to sign his name for him. She complied with his request and signed her husband’s name, Robert Martin, in his presence and in the presence of the circulator on line five of the Exhibit.

The evidence as to the signatures of John Antoni and Mary Antoni, husband and wife, whose signatures are found on lines 59 and 60 of Exhibit No. A-2, is rather extensive. The names on the Exhibit show that John Antoni’s signature was accepted by the Board as genuine while that of his wife, Mary Antoni, is marked in red (NS) presumably meaning not signed by the elector.

Both the electors John Antoni and Mary Antoni testified under oath before the Board that they severally signed their names on Exhibit No. A-2, John Antoni signing his name by his own hand on line 59 and Mary Antoni by her hand on line 60. Many samples of the signatures of both John Antoni and Mary Antoni were signed in the presence of the Board during the hearing and upon affidavits prepared prior to the hearing. There were also presented the signature of both electors on a deed, a mortgage, a note and an escrow agreement and on their respective registration cards filed with the Board of Elections. All of the signatures on these and other instruments were by the sworn testimony of the electors said to be genuine. The only persons present when the petitions were signed were the circulator and his wife. There is no evidence that the Board made any inquiry of them nor were they called to testify.

In dealing with this question the Election Board was acting in a quasi-judicial capacity. Its function was to determine the validity of the petitions offered by the relator with impartiality and fairness both to the candidate and to the electors of the county. The Board, in coming to its conclusion, must have completely disregarded the sworn testimony of witnesses, such testimony being uncontroverted in the record except for a comparison of handwriting (where neither of those whose signatures are challenged was requested to sign the name of the other for comparison with a genuine signature), and without expert help or at least without putting into the record the characteristics of the writing which influenced the conclusions reached. We find that there is no competent evidence in the record contradicting the sworn testimony that Mary Antoni, by her own hand, signed her name to the nominating petition. The Board, therefore, committed an abuse of discretion in excluding Exhibit No. A-2 and holding that the signature thereon could not be counted in considering the sufficiency of relator’s nominating petition. A nominating petition containing 103 valid signatures as established by the uncontroverted evidence properly certified to and filed with the Board oí Elections as provided by law entitles the relator as a matter of law to have his name placed on the ballot for the office he seeks as declared and shown by the petition.

Having come to the conclusion that the relator has shown a clear legal right to the relief prayed for for the reasons just stated, it becomes unnecessary to give lengthy consideration to the legal question presented as to the duty of the Election Board in dealing with Exhibit No. A-3. The justification for disregarding this nominating petition in toto which admittedly contained 39 good signatures of electors of the district in the petition, is based on the law of the case of State, ex rel., v. Graves, 90 Oh St 311. The facts in that case are distinguishable in that they showed conclusively that fraud and forgery permeated the whole petition. The court held:

“3. The secretary of state, when acting as state supervisor of elections, has the authority to hear and determine the sufficiency and validity of all petitions filed with him under the provisions of Section 1c, Article II, Ohio Constitution, and his decision thereon is final, unless such decision has been fraudulently or corruptly made or procured, or unless he has been guilty of an abuse of discretion.
“4. Where it appears from the evidence that any circulators of parts of a petition have been guilty of a systematic course of fraud and forgery in procuring and writing names thereon, and have wilfully and intentionally sworn to false affidavits attached thereto, it is neither fraudulent nor an abuse of discretion on the part of the secretary of state to reject all parts of the petition procured by such circulators.
“5. Where evidence is offered tending to prove that many of the parts of a petition, although purporting to be verified by affidavit, were not in fact sworn to, as required by the constitution, the state supervisor of elections may reject any or all such parts, notwithstanding there is a conflict of evidence upon that question, unless his decision in that behalf is so manifestly and palpably against the weight of the evidence as to show fraud, corruption or an abuse of discretion on his part.”

It is the unquestioned law of Ohio that fraud vitiates everything that its use creates. In the case of State, ex rel. v. Michell, 124 Oh St 161, the matter of submitting an amendment to the charter of the City of Cleveland was proposed by initiative petitions. The facts are not clearly stated in the opinion but on page 164, the court said:

“The city charter expressly requires an affidavit to each petition by the person circulating the same that ‘the signatures appended thereto were made in his presence and are the genuine signatures of the persons whose names they purport to be.’ The council rejected entire separate petition papers because of the repudiation of their signatures by some of the signers thereof, which repudiation apparently was not controverted or refuted. Other petition papers were rejected, upon each of which there were five or more nonexistent addresses. These were not erroneous addresses or fictitious addresses, but locations of purported residences which locations in fact did not exist. Other petition papers which were rejected had signatures in the same handwriting and therefore the affidavit of the circulator that the signatures were made in his presence and were the genuine signatures of the persons whose names they purported to be could not have been true. We are of the opinion that the city council was correct in its holding that the requirement that the name of a signer to such petition be written by himself is mandatory, and that signing petitions by proxy is not permissible. In each of these instances the affidavits must have been intentionally and knowingly false, and under the Graves case, supra, their rejection was warranted. One of the petition circulators pleaded guilty to a charge of perjury in the making of affidavits to petitions circulated by him, and the rejection of those petitions was conceded to be justified.”

Judge Jones, in a strong dissenting opinion, expressed the opinion that, and we quote from page 167:

“The simple fact that some addresses could not be found in the class first referred to, or that two or more signatures were found to be in the same handwriting, or that one individual denied his signature on a petition, ought not to be held as imputing fraud or bad faith upon the part of the 563 or more circulators. A circulator may have well believed that the signer actually lived at the address he gave, or that two signatures could be lawfully written by one person if the second signature was written at the second voter’s request; nor should the 2,307 signatures be invalidated because a single signer on a petition denied the authenticity of his signature.”

The evidence in this case shows clearly that Mrs. Martin, at the request of her husband and in his presence, and in the presence of the circulator, signed his name on the petition. Under like circumstances under the law of contracts if this procedure had been followed in signing an agreement, the husband would, without the slightest doubt, be completely bound. Here he adopted the signature written for him in his presence as his. A technical interpretation of the election laws might justify a crossing out of the signature of Robert Martin, but there is no justification for striking out the whole petition because of the claim that the affidavit of the circulator was fraudulently made. There is not the slightest suggestion of fraud, chargeable to Robert Martin, in signing the relator’s nominating petition or on the part of the circulator in signing the affidavit whereby this case is clearly distinguishable from the case of Stata, ex rel. v. Graves, supra, which was decided on the basis of fraud on the part of circulators of the petitions filed.

It is the privilege of every elector to present himself to his fellow citizens as a candidate for public office upon compliance reasonably and fairly with the manner prescribed by law for becoming a candidate and such right should not be denied for supposed technical variances not directly or indirectly concerned with his fitness and legal eligibility for the office he seeks.

Coming to the conclusion that the relator is clearly entitled to a writ of mandamus as prayed for, directing the respondents to print his name as a candidate for the Twentieth Congressional District of Ohio as a delegate to the National Convention of the Democratic Party, to be submitted at the Primary Election to be held May 8th, 1956, for the reasons above stated, the writ is ordered issued as prayed for.

Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: By PHILLIPS, PJ.

text:
    SHEPARD, Admrx., Plaintiff-Appellant, v. ESPY et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Columbiana County.
    No. 734.
    Decided December 12, 1955.
    Metzger, McCorkhill & Metzger, Salem, for plaintiff-appellant.
    Hunston, Atkins & Lower, Salem, for defendant, Knights Life Insurance Company of America.
    Robert Hartford, East Palestine, for defendant, Alice Espy.
   OPINION

By PHILLIPS, PJ.

Paul F. Karns, a bachelor, called decedent, lived as husband and wife with defendant Espy, whom he allegedly knew was the legal wife of another man, and who was named as beneficiary in a policy of insurance issued upon decedent’s life at his request by defendant insurance company, a corporation. That policy of insurance was in full force and effect at the time of his death five months later, when defendant insurance company paid the proceeds thereof to defendant Espy, at which time it allegedly knew the marital status of defendant Espy.

Plaintiff, administratrix of decedent’s estate, sued defendant in the court of common pleas to have defendant Espy declared a constructive trustee of the proceeds of such policy for the benefit of decedent’s estate, and that she be ordered:—

“* * * to pay such proceeds as she has received to the plaintiff as administratrix of the estate of Paul F. Karns, or in the alternative, that the defendant, Knights Life Insurance Company of America be ordered to pay plaintiff herein the amount so wrongly paid by it to the defendant, Alice Espy.”

Defendants separately demurred to plaintiff’s petition (the allegations of which as applicable are set forth hereinafter herein) claiming that since decedent had an insurable interest in his own life and could insure it for the benefit of any person the facts stated in plaintiff’s petition do not state a cause of action against defendant.

The pertinent allegations of plaintiff’s petition are as follows:—

“* * * Plaintiff further says that her decedent, Paul P. Karns, during his lifetime resided with the defendant, Alice Espy, at the address herein set forth. The deceased and Alice Espy held themselves out as husband and wife, when in fact they were not, and could not be husband and wife because Alice Espy was at that time intermarried with another man.
“Plaintiff further says that the defendant, Alice Espy, through this unlawful, irregular and immoral relationship did induce the decedent to purchase said policy of life insurance upon his life in the Knights Life Insurance Company of America, defendant herein, naming her beneficiary. Said statements being wilfully and fraudulently false and made with intent to deceive and mislead the company and were material as to the matter of inducing the company to issue the policy.
“Defendant, Alice Espy, caused herself to be named as ‘Alice Karns, wife,’ and represented to the insurer after his decease that she was the wife of said Paul F. Karns, when in truth and in fact she was not.
“The plaintiff further says that the insurer, Knights Life Insurance Company of America, who is made defendant herein, did issue the policy of insurance upon the life of the deceased, naming as beneficiary ‘Alice Karns, wife.’ Upon the death of Paul F. Karns, the defendant insurer became cognizant of the true facts as to this contract of insurance, but did, nonetheless, pay to the defendant, Alice Espy, the proceeds of this policy.
“The decedent died June 20, 1955, in a construction accident, while working for Hoopes Construction on a sewer project in the City of Salem, Ohio.
“* * * and that she be ordered to pay such proceeds as she has received to the plaintiff as administratrix of the estate of Paul F. Karns, or in the alternative, that the defendant, Knights Life Insurance Company of America be ordered to pay plaintiff herein the amount so wrongly paid by it to the defendant, Alice Espy.”

The trial judge sustained both demurrers and entered judgment for defendants, and from that judgment plaintiff appealed to this court on questions of law and fact. The appeal was improperly appealed as one on questions of law and fact, and it appearing that a bill of exceptions was duly filed the appeal was retained, submitted, argued, and will be determined as one on questions of law only.

By first assigned ground of error plaintiff contends:—

“Where the beneficiary and the insured of a policy of life insurance willfully and fraudulently misrepresent a material fact to the insurer, i. e. that they are husband and wife, and when such policy of insurance would not have been issued but for such misrepresentation, it is error for the court to sustain a demurrer to the petition alleging such facts, on the ground that the beneficiary had an insurable interest in the life of the insured.”

By the second assigned ground of error plaintiff contends:—

“Where the insured of a policy of life insurance is induced to enter the transaction upon an immoral and unlawful consideration, it is error for the court to sustain a demurrer to the petition alleging such facts, on the ground that there was an insurable interest.”
“It seems to be conceded by counsel on both sides that under the laws of Ohio a person may, in good faith, insure his own life for the benefit of any one whom he may choose, though not related to him by blood or marriage, and that such insurance so procured is not invalid as being against public policy.” Schmidt, Admx. v. Prudential Insurance Company, 37 Oh Ap 258 at 260.
“The relations of the parties to a contract of insurance are contractual, and, consequently, must be determined by its terms, * * *. If such contracts are not to be enforced as written, they might as well not be written at all. Accordingly, an insurance company is liable according to the terms and provisions of its contract and not otherwise; * * 22 O. Jur., Section 174, Page 330.
“Policies of insurance should be construed, like other contracts, so as to give effect to the intention and express language of the parties, the general rule being that the intent is to be obtained, in the first instance, from the language of the entire policy considered as a whole in connection with the risk or subject-matter. * * *.” 22 O. Jur., Section 175, Page 332.
“A party cannot, for his own benefit, insist upon the performance of a contract between others and to which he is not a party or privy; nor claim relief against either of the parties to such contract, for investments or improvements he may have made on the assumption that the contract would be observed.” Vought v. The Columbus, Hocking Valley & Athens R. R. Co., 58 Oh St 123.
“One not a party to a life policy in force, can not avoid it for fraud, nor recover back the premiums paid thereon, although he caused the policy to be effected and paid the premiums.” United States Life Insurance Company v. Frank H. Wright, 33 Oh St 533.

In the case of Mutual Benefit Life Ins. Co. of Newark, N. J. v. Cummings, et al, 133 Pacific 1169, plaintiff on the 5th day of May, 1911, issued a policy of insurance on the life of Harry A. Cummings payable on his death to “Evelyn M. Cummings, his wife.” Harry A. Cummings died on the 23rd day of August, 1911. Everlyn Cummings, who lived with decedent during his life as his wife, claimed the proceeds of such policy of insurance, as did his legal wife Sophia J. Cummings. In deciding to whom the proceeds of such policy of insurance should be paid the court said:—

“In a contest between claimants to a life policy, evidence held to show that the insured intended that the proceeds should be paid to his mistress instead of his legal wife; the policy having named the mistress as beneficiary, though designating her as ‘wife.’
“A person may adopt or assume a different name from his true one and carry on business and make contracts under the fictitious name.
“Where a man, who had deserted his lawful wife and was living and cohabiting with another woman, took out a policy in the latter’s favor, designating her as ‘wife,’ the contract being wholly made for her benefit, she is entitled to the proceeds of the policy as against insured’s true wife, for a person may insure his own life in favor of one having no insurable interest in his life; the fact that the beneficiary was named as his wife, and had adopted his surname not affecting her rights, for a person may adopt a fictitious name.”

In the body of the opinion written in the case the court said:—

“It is the settled law of this country that a person has a right to insure his own life and have the money made payable to any person whom he may desire, whether such beneficiary has an insurable interest in his life or not. * * *
“The living together as husband and wife of the deceased and the beneficiary, while the deceased had a wife living, was an act of gross immorality that cannot be too strongly condemned, but this illicit relation between them did not incapacitate him to make a valid contract of insurance upon his life for the benefit of his reputed wife. If he had made her a present of $2,000, the gift would have been valid as to all the world, excepting his creditors. A man or a woman, being of lawful age and compos mentis, has power to give all his or her property to his or her paramour, and no one but the creditors of the person making such a gift can successfully contest the validity thereof. The immoral relation between the parties does not vitiate their contract or gift. * * *
“It is our duty to construe the policy so as to effectuate the intention of the insured and the company that issued the policy. It is morally certain that the parties to this contract intended that the proceeds of the policy should be paid to Evelyn M. and not to Sophia J.”

Defendants’ demurrers to plaintiff’s petition admit as true all well pleaded allegations thereof, which brings the facts in the case under review under control of the case of Mutual Benefit Life Insurance Company v. Cummings, and other cases cited supra.

The evidence reveals no interest of plaintiff administratrix, or those she represents, in the contract between defendant insurance company and deceased Karns, and in our opinion plaintiff’s petition does not state a cause of action against defendants.

By paying defendant Espy the proceeds of the policy of insurance it issued to decedent defendant insurance company voluntarily waived any defense it might have had against her claim and performed the terms of the policy of insurance and paid defendant Espy the proceeds of such policy.

False representations, if any, furnished the defendant insurance company by deceased concerning the relationship between decedent and defendant Espy were immaterial to the contract for the reason decedent had an insurable interest in his own life and was privileged to insure his life for the benefit of any one he chose, including his mistress. See Eckel v. Renner, 41 Oh St 232; Keckley v. Coshocton Glass Company, 86 Oh St 213, paragraphs 4 and 5 of the syllabus; Schmidt v. Prudential Ins. Co., 37 Oh Ap 258; Pierce v. Metropolitan Life Ins. Co., 46 Oh Ap 36; and Rakestraw v. City of Cincinnati, 69 Oh Ap 504.

In our opinion defendants’ demurrers were properly sustained by the trial judge, and the judgment of the trial court must be and is affirmed hereby.

NICHOLS and GRIFFITH, JJ, concur.