author: By SOLETHER, J.

text:
    OHIO TELEPHONE & TELEGRAPH CO., Plaintiff, v. STEEN, Defendant.
    Common Pleas Court, Wood County.
    No. 31145.
    Decided March 23, 1949.
    Alva W. Bachman, Bowling Green, Frank W. Shelton, Jr., Cleveland, for plaintiff.
    Bowman, Hanna & Middleton, Bowling Green, for defendant.
   OPINION

By SOLETHER, J.

This matter is before the court upon a hearing upon the . preliminary matters as provided by §11046 GC.

The plaintiff, The Ohio Telephone and Telegraph Company, filed a petition in this court to condemn a certain strip of land belonging to the defendant to complete its right-of-way for a proposed under-ground communication system to be constructed between Toledo and Dayton, Ohio.

At the hearing evidence was introduced by the plaintiff with respect to (a) the corporate existence of the plaintiff; (b) its right to appropriate; (c) its inability to agree with the owner; and (d) the necessity for the appropriation.

It was stipulated and agreed by the parties that the plaintiff is a corporation organized and existing under the laws of the State of Ohio; that the defendant owns the land sought to be appropriated herein; that the plaintiff has been unable to agree with the said defendant, and it was admitted by defendant (defendant’s brief pages 1 & 2) that plaintiff is a public utility with the right of. eminent domain.

Therefore the only issues in controversy to be determined by the court are (a) the right of the plaintiff to appropriate defendant’s land; and (b) the necessity for its so doing.

It is the contention of the defendant that the plaintiff has no right to condemn his property because at some time in the future the proposed line across his property may be used for transmission of television and that the company has not established the necessity for the appropriation of defendant’s land because it is condemning a wider strip across his land than it acquired across his neighbor’s land, and because there is other suitable land available without taking his.

Counsel for the respective parties have filed very well prepared briefs which the court has examined and carefully considered.

The defendant admitted in his brief (page 3) that the plaintiff established at the hearing that the proposed line across defendant’s property would be used for transmission of telephonic messages. The defendant having admitted that the plaintiff is a public utility and has the right to appropriate for telegraph and telephone purposes it would appear that defendant’s land is clearly being appropriated for the purposes prescribed by §§9172 and 9191. Defendant’s contention that the land is to be used primarily for television purposes is not supported by the evidence.

The court is of the opinion, from a consideration of the evidence that the primary purpose for which the coaxial cable is being installed is to provide telephone and telegraph circuits and in addition to these uses it no doubt will be used in the future for television purposes.

The court is also of the opinion from a consideration of the argument and cases cited in the brief of the plaintiff that the transmission of television is merely an advancement or improvement in the art of telegraphy and telephony and therefore the right of eminent domain for telegraph and telephone purposes conferred by §§9172 and 9191 GC is applicable to television.

It is a general rule that the statutes granting the right of eminent domain should be strictly construed. However, it is well established that such Statutes should not be so technically or unreasonably interpreted as to interfere with the normal business of a utility and the development of the service which it renders to the public.

It is therefore the conclusion of the court that the plaintiff has shown that it has the right to appropriate defendant’s land.

Coming now to consider the question of the necessity for the appropriation it is the conclusion of the court from a consideration of all the evidence and of the cases cited in the brief of counsel for plaintiff that the appropriation of defendant’s land for the new cable is necessary in view of the great public need for new telephone circuits; that the selection of defendant’s land for the appropriation is necessary and proper; that the plaintiff in selecting defendant’s land for the appropriation acted reasonably and proper and that the appropriation of a two rod strip over defendant’s land is necessary to provide ingress and egress.

The evidence and the law clearly establishes the right of the plaintiff to condemn the two rod strip across defendant’s property for a right-of-way for the new Dayton-Toledo coaxial cable route and the necessity for so doing and that plaintiff being a public utility with the right of eminent domain is properly exercising that right in accordance with the statutory provisions thereof.

The court further finds that the plaintiff has sustained the proof on the four jurisdictional points, to wit: (a) its corporate .existence; (b) its right to appropriate; (c) its inability to agree with the defendant owner, and (d) the necessity for the appropriation.

It is therefore the finding of the court that the plaintiff has clearly and plainly established its right to appropriate defendant’s land and the finding of the court on all jurisdictional questions is in favor of the plaintiff.

Counsel for plaintiff will prepare proper entry, saving exceptions. Entry to be approved by counsel for defendant.


source: Caselaw Access Project

license: Public Domain

text:
    OHIO TELEPHONE & TELEGRAPH CO., Plaintiff, v. STEEN, Defendant.
    Common Pleas Court, Wood County.
    No. 31145.
    Decided April 6, 1949.
   JOURNAL ENTRY

On the 10th day of February, 1949, this cause came on for hearing on the determination of the questions of the existence of the plaintiff corporation, its right to make the appropriation prayed for in the petition, its inability to agree with the owner of the property sought to be appropriated and the necessity for the appropriation, and was submitted on the evidence and the briefs of counsel for parties after it was stipulated and agreed by the parties that the plaintiff is a corporation organized and existing under the laws of the State of Ohio, that the defendant owns the land sought to be appropriated therein, and that the plaintiff had been unable to agree with the said defendant.

From a consideration of the evidence the'court finds that the primary purpose for which the coaxial cable is being installed is to provide telephone and telegraph circuits and in addition to these uses it no doubt will be used in the future for television purposes.

The court further finds from a consideration of the arguments and cases cited in the briefs of counsel that the transmission of television is merely an advancement or improvement in the art of telegraphy and telephony, and, therefore, the right of eminent domain for telegraph and telephone purposes conferred by §§9172 and 9191 GC, is applicable to television.

The court further finds that as a general rule the statutes granting the right of eminent domain should be strictly construed, but that they should not be so strictly or unreasonably interpreted as to interfere with the normal business of a utility and the development of the service which it renders to the public.

It is, therefore, the conclusion of the court and the court so finds that the plaintiff has shown that it has the right to appropriate the defendant’s land.

Coming now to consider the question of the necessity for the appropriation, the court finds from consideration of all the evidence and the'law cited that the appropriation of defendant’s land for the new cable is necessary in view of the general public need for new telephone circuits, that the selection of defendant’s land for the appropriation is necessary and proper, that the plaintiff in selecting defendant’s land for the appropriation acted reasonably and properly, and that the appropriation for a two rod strip over defendant’s land is necessary to provide ingress and egress.

The court further finds that the evidence and the law clearly establishes the right of the plaintiff to condemn the two rod strip across defendant’s property for a right of way of the new Toledo-Dayton coaxial cable route and the necessity for so doing, and that the plaintiff being a public utility with the right of eminent domain is properly exercising that right in accordance with the statutory provisions therefor.

Upon consideration whereof, the court finds that the plaintiff, The Ohio Telephone and Telegraph Company, is a corporation duly organized, incorporated and existing under and by virtue of the laws of the State of Ohio, for the purposes of engaging in, and that it is engaged in, the business of transmitting messages by means of telephonic and telegraphic apparatus and in transacting a general telephone and telegraph business in the State of Ohio and in Wood County in said state; that, within the provisions of §§614-2, 9172 and 9191 GC, and related sections, the plaintiff is a telephone company and is now engaged in business as a telephone company and as such has the right to make the appropriation prayed for in the petition filed herein; that the plaintiff is unable to agree with Rufus H. Steen, defendant herein, the owner of the premises described in the petition, as to the compensation to be paid for the right of way and easement sought to be appropriated; that it is necessary for the plaintiff to appropriate the right of way and easement described in said petition for the uses and purposes therein set forth; that the plaintiff has clearly and plainly established its right to appropriate defendant’s land and the finding of the court on all jurisdictional questions is in favor of the plaintiff; that all the preliminary steps prescribed by statute have been taken, and that due and legal notice has been served on the defendant, as required by law.

It is, therefore, ordered that the Clerk of the Court of Common Pleas, and the Sheriff of Wood County proceed within two days after receipt of this order to draw from the jury wheel, as in other cases, the names of Sixteen (16) persons to serve as jurors in this case and the Clerk forthwith shall return the order to the court with a list of the names drawn endorsed thereon.

To all of which orders and findings defendant excepted and still excepts.


author: By MATTHEWS, PJ.: ROSS, J,

text:
    MURPHY, Appellee, v. MURPHY, Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 6966.
    Decided November 1, 1948.
    Charles B. Terry, Fred L. Hoffman, Cincinnati, for appellee.
    Carl Markley, Louis J. Strieker, Cincinnati, for appellant.
   OPINION

By MATTHEWS, PJ.:

This cause comes before the court upon appellee’s motion to dismiss the appeal on the ground that the appellant was an incompetent, having been déclared such by the Probate Court of Hamilton County, and, for that reason, lacked the capacity to prosecute this appeal.

This is an action for divorce and alimony. We learn from the petition that the defendant Joseph H. Murphy had been declared an incompetent by the Probate Court of Hamilton County, and that plaintiff, Margaret Murphy was appointed as his Guardian and -was still acting as such. The plaintiff as Guardian was joined with Joseph H. Murphy, her ward and husband, as defendants.

Thereafter, Joseph H. Murphy, on his own behalf, filed an answer admitting that plaintiff had been appointed and was acting as his guardian, as alleged, and that she had title to the real estate described in the petition, and then denied all other allegations in the petition. He also filed a cross-petition, alleging various acts of wrongdoing by the plaintiff, but did not seek a divorce for such misconduct. The prayer of his cross-petition was that he be restored to his business and the equipment and real estate used in connection therewith, and for a fair and reasonable division of the other property.

Thereafter, a trustee was appointed to represent the defendant Joseph H. Murphy in the action. The trustee filed no answer and so far as the record shows was not present at the trial. Seven months after the trial, he filed a “report” nunc pro tunc as of the date of trial. The record does not show that this report was brought to the attention of the court at the trial. This report shows that the trustee made a thorough investigation of the facts, but does not show that he ever conferred with the defendant, and the report bears none of the indicia of an answer. From this report, however, we learn that the appointment of the plaintiff as guardian was based on a finding that the defendant was an habitual drunkard. We also learn therefrom that, later, the plaintiff filed an affidavit in the Probate Court averring that the defendant was mentally ill. On hearing of this charge, the physicians found that the defendant was not mentally ill, not epileptic, and not feeble minded. As a result of this finding, the court dismissed the proceeding, but the guardianship based on the finding that he was an habitual drunkard was not vacated.

The phrase “habitual drunkard” is defined by §10507-1 GC, as any person, who by reason of habitual drunkenness is incapable of taking proper care of himself or of his property. The statute treats incompetency, resulting from drunkenness in the same way that it treats incapacity resulting from mental disability. So long, therefore, as the guardianship, based on the finding of habitual drunkenness, continues, we must assume that the defendant is incapable of properly taking care of himself or of his property.

There is no doubt that the plaintiff by virtue of her appointment as guardian became charged with the duty, inter alia, of protecting and controlling the person of the defendant and, when, for his best interest, of bringing suits in his behalf. Secs. 10507-15 and 10507-16 GC. Her duty precluded her from taking an antagonistic position under any circumstances. Having, however, done so, the question presented by this motion is how the ward can protect himself from such hostile attitude. Has he the- legal capacity to prosecute an appeal in his own proper person?

By §11247 GC, it is provided that: “The action of an insane person must be brought by his guardian,” and by §11249 GC, “The defense of an insane person must be by his legally appointed guardian, except that if” “he has an adverse interest, by a trustee for the suit appointed by the court.” The trustee is required to be sworn to faithfully discharge his duties.

In 28 Am. Jur., 738, it is said:

“Although subject to certain exceptions hereinafter noted, as a general rule, where the alleged insane party has been adjudged incompetent, and a conservator, guardian, or committee has been appointed for him, he may not institute an action in his own name or by a next friend, but such action must be commenced by the conservator, guardian, or committee.”

And, at page 739, after noting that where there is a conflict between the interest of the ward and the guardian, in some jurisdictions, an action is permitted by the ward by his next friend, the text continues: “Other courts, however, refuse to recognize the right of an insane person to bring suit by a next friend, although the interests of the insane person and the guardian are antagonistic. In such jurisdictions, action must be instituted in the court in which the original guardian was appointed, asking for the removal of such guardian and the appointment of another.” See, also: Isle v. Cranby (199 Ill. 39) 64 L. R. A. 513, and annotation where cases are collected and classified.

Ohio seems to be in the list requiring actions to be prosecuted by the duly appointed guardian, so long as the court appointing him permits him to continue to act. In 22 O. Jur., 86, it is stated:

“In Ohio the statute requires that ‘the action of an insane person must be brought by his guardian.’ The effect of this statute on the right of an insane person to sue by a next friend is obvious if a legal guardian has been appointed. The Ohio supreme court has held that an action to recover property belonging to an imbecile must be brought by guardian, and not by the next friend, since the guardian is responsible to the court for his conduct, and the next friend is responsible to no one. If the legal guardian is neglecting to bring an action to recover the property of his ward, the probate court should, upon motion and a showing of that fact, remove such guardian and appoint another who will bring the proper action.”

The only case cited in support of the text is Row v. Row, 53 Oh St, 249. So far as we have been able to discover it is the only Supreme Court case on the subject. It fully supports the text.

In this case the ward was in the position of a defendant as to plaintiff’s petition and of a plaintiff as to his cross-petition. If an action could be maintained only by the guardian, it would seem to follow that the guardian should represent the ward when he files a cross-petition.

Our conclusion is that this motion to dismiss must be sustained. If, as we find the law of Ohio to be, after an adjudication of incompetency and the appointment of a guardian, the ward must prosecute actions through his duly appointed and acting guardian, and not through a next friend or trustee for the suit, by all the stronger reasons he cannot prosecute an appeal in his own person without the intervention of either.

As we view the law of Ohio on this subject, when a duly appointed guardian takes an antagonistic attitude toward the ward and institutes an action against the ward to assert some personal right against him, all proceedings in such action should be postponed until the court having jurisdiction to appoint and remove the guardian has exercised that jurisdiction by removing the disloyal guardian and appointing a successor who will, without any divided loyalty, represent the ward in the pending litigation.

For these reasons, the motion to dismiss this appeal is sustained.

MATTHEWS, PJ, & HILDEBRANT, J, concur in syllabus, opinion & judgment.

ROSS, J,

concurring:

I concur in the syllabus and the entire opinion of my associates.

At the risk of a charge of obiter dictum, I think it should be stated that from the opinion of the court it is manifest that the judgment of the trial court is absolutely void as far as the incompetent defendant is concerned, and that if the plaintiff should remarry, she would be guilty of bigamy.


author: By HORNBECK, J.

text:
    CLARK, Plaintiff-Appellee, v. OHIO PREFABRICATED HOMES CORP., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4146.
    Decided January 22, 1949.
    Arthur L. Spielmann, Columbus, for plaintiff-appellee.
    C. C. Crabbe, Garek & Sillman, Justin Sillman, Columbus, of Counsel, for defendant-appellant.
   OPINION

By HORNBECK, J.

This is an appeal on questions of law from a judgment of the Municipal Court of the City of Columbus in favor of the plaintiff and against the defendant in the sum of $393.14, with costs. The action was for damages in the sum of $393.14, $293.14 of which was money paid by plaintiff to defendant on a sales contract, and $100.00 of which was for cost of material and labor in preparing a foundation upon which to place a house shell which had been purchased by the plaintiff from the defendant under the sales contract. The claim of the plaintiff was that defendant had refused- delivery of the house at the price agreed and that thereupon plaintiff elected to rescind the contract.

Two errors are assigned:

First. The judgment should not have been entered because plaintiff was not entitled to rescind the contract.

Second. The trial court erred in entering a judgment against the defendant for the sum of $393.14 because there was no evidence upon which to base a judgment for that amount.

The issue of fact upon which the right of the plaintiff to recover depends is very limited.

It appears that plaintiff, having looked over the house which defendant had to sell, placed a written order for the purchase of one of the houses, a cottage shell, model standard, 20 x 20, “Delivery S. A. P.” or “Call S. A. P. for delivery”. It is testified that S. A. P. means “soon as possible”. The contract was dated April 27,1946. The purchase price was to be $1093.14 and plaintiff made a down payment in the sum of $293.14.

Although the contract does not expressly mention that the sash in the house were to be steel, there is no substantial difference on this question and it reasonably appears that the house which was contracted for was to include steel window sash. On the 30th of April, three days after the order for the house was placed, defendant wrote to the plaintiff informing him that due to coal and steel strikes it could not deliver the house as originally intended but would deliver it by installing a wood window instead of a steel window; that delivery with the wood window could be made within the next week but if the purchaser preferred to wait, defendant would make delivery as soon as they got the steel windows which should be in about six weeks. On May 13, plaintiff replied, saying that he had been delayed in preparing the foundation and that delay of six weeks would be satisfactory and that he would take delivery any time after six weeks. It is to be inferred from the contents of the letter that plaintiff wanted delivery of a house with steel sash.

On the 10th of June, a few days before six weeks had elapsed following the letter of April 30th, defendant wrote the plaintiff advising him that the OPA had increased the price on the cottages and that the factory had been granted an increase which it passed on to the plaintiff. The balance on the con-r tract was stated as being $915.81, an increase of $115.81 over the purchase price stated in the written contract.

On the 6th of July, several weeks after the six weeks had elapsed succeeding the letter to plaintiff of April 30th, the defendant again wrote plaintiff in which it was stated that the price having been raised to the company it was, in turn, compelled to raise it to the plaintiff. The letter contained an invitation to come in and talk the matter over'and a purpose to make delivery of the house to plaintiff, if possible. Succeeding this letter, the testimony as to what occurred is in the record by oral statement, plaintiff insisting that on or about the 15th of July he had a conference with the defendant in which he urged that it make delivery of the house upon the purchase price set out in the written agreement; that defendant refused to deliver unless plaintiff would pay the increase suggested and that thereupon plaintiff stated that he would not take the house. Plaintiff also testified that the work on the lot was completed within three weeks, probably referring to three weeks after his letter of May 13th.

Defendant insists that at this conversation between the parties it attempted to secure the increase in the purchase price of the house to make it safe on an increase that it had to assume, but the plaintiff insisting on his rights, defendant yielded and offered to deliver according to the written contract. In a letter of date July 26, 1946, this position is substantially stated.

It is upon determination of the true situation respecting what was said and done at this conference between the parties that the right of the plaintiff - to recover rests. If the occurrences were as testified by the plaintiff, we are of opinion that he had a full right to rescind the contract and to institute his action for damages and that he was entitled to such damages as reasonably flowed from the failure of defendant to perform. Taylor v. Brown, 92 Oh St 287. If the defendant unequivocally insisted upon a purchase price greater than that recited in the written contract, plaintiff had a right to act upon the stand thus taken by the defendant.

The trial judge had full authority to accept the claim of the plaintiff as to what occurred at the conference between plaintiff and Mr. Haskin. Some considerable corroboration for the claim of the plaintiff is found in the written evidence as well as in the statements of Mr. Haskin representing the defendant company. The letters of June 10th and July 6th are phrased upon the theory that the defendant had an absolute right to the increase and to pass on to the customer the increase that it had been compelled to absorb. Likewise, Mr. Haskin in his testimony insisted that if the price was raised to the corporation, it had the right to raise the price to the customer. That being his belief, it is only logical that the letters would conform to his conception of the rights of the corporation.

Of course, we are cognizant of the fact that had the trial judge accepted the claim of the defendant that it was ready to deliver the house with steel sash at the price stated in the contract and so informed the plaintiff at their conference, the finding and judgment could properly have been in favor of the defendant. However, upon review, we must accord to the trial judge the right to weigh the testimony and resolve it for or against a party.

There is no question of the right of the plaintiff to recover the down payment which he had made on the purchase price but it is urged that he may not have further judgment for $100.00, for two reasons, first, having elected to rescind the contract he may not have the additional remedy of a recovery of anything more than the down payment. This is asserted by reason of §8449 (2) GC. In our judgment, the action here is not for breach of warranty and is not controlled by (2) of §8449 GC. The second proposition of the appellant is that there is no proof over and beyond the sum of $45.00 to support the $100.00 claim for damages. This $100.00 was made up of the $45.00 which the plaintiff paid for material, brick and concrete, which went into a footer for foundation upon which to place the house. The remainder, $55.00, was represented by plaintiff’s labor, he testifying that he did the work himself and that it required two or three weeks of eight hour days to complete the job. It is urged that there is no testimony as to the value of the services of the plaintiff in doing the work on the foundation. It is true that there is no express testimony on this subject but it may be inferred that a value of $55.00 was placed upon the services rendered. If plaintiff worked but two weeks on the job, putting in eight hours a day, the sum of $55.00 would represent less than 60 cents an hour. We believe the Court had the authority to evaluate the work done and it is certain that the allowance could not have been excessive and therefore was not prejudicial to the defendant. Hossler, Extr. v. Trump, 62 Oh St 139.

We find neither assignment of error urged established upon this record. The judgment will, therefore, be affirmed.

WISEMAN, PJ, and MILLER, J, concur.


author: By ROSS, J.:

text:
    EVEGAN et, Plaintiffs-Appellees, v. CINCINNATI STREET RAILWAY CO., Defendant-Appellant.
    Ohio Appeals, First District, Hamilton County.
    No. 6998.
    Decided October 25, 1948.

      Joseph Schwartz, Sol. Goodman, Cincinnati, for plaintiffsappellees.
    John M. McCaslin, Cincinnati, for defendant-appellant.
   OPINION

By ROSS, J.:

This is an appeal upon questions of law from a judgment of the court of common pleas of Hamilton County, overruling a motion for judgment in favor of the defendant, notwithstanding the disagreement of the jury. Motion for a directed verdict and judgment for defendant was also made at the conclusion of all the evidence and overruled by the Court.

The sole question thus presented is whether the defendant was entitled to a judgment upon the evidence as a matter of law.

It is the contention of the defendant-appellant that the evidence in the case permits reasonable minds to draw only one conclusion and that is, that the sole cause of the death of plaintiff’s decedent was her own negligence.

This requires a review of all of the evidence presented to the trial court.

A review of this evidence sustains the position of the defendant-appellant. It would serve no purpose to encumber this opinion with the details of the record.

It will be sufficient to say that it clearly appears from the record that the street car of the defendant was being operated in a perfectly lawful manner, proceeding southwardly on Linn Street, that the plaintiff’s decedent attempted to run in front of the street car, evidently hoping to reach a position where she could board the car. It is also evident that the operator of the street car was taken by surprise when she ran in front of the car and did everything possible to avoid striking the decedent.

The moving street car must have been perfectly apparent to the decedent. The only conclusion possible is that she ran in front of it and misjudged its speed or her ability to pass in front of it.

The inescapable conclusion is that the negligence of the decedent was the proximate cause of her death.

While ordinarily the question of whether negligence is the proximate cause of injury is a factual question for a jury’s determination, when the relation of such negligence to injury is so apparent that reasonable minds must admit the proximate effect of the negligence as only capable of one result, and that, such injury, a question of law only is presented requiring an adjudication by the court of responsibility upon the party so shown to be negligent. If such were not the case, no court, either trial or appellate, would be justified in ever rendering judgment where the question of the proximate result of the negligence of either party was involved.

The courts of this state have consistently exercised this power inherent in them when confronted with evidence requiring such legal conclusion. Buell, Admx., v. New York Central Rd. Co., 114 Oh St, 40; Paddock v. Ripley, et al., 149 Oh St, 539; C. C. C. & St. L. Ry. Co. v Lee, 111 Oh St, 391.

A statement in the opinion of N. Y. Central Rd. Co. v. Stevens, 126 Oh St, 395, at page 408 is significant:

“It is apparent that he left a place of safety and stepped into the zone of danger. We cannot escape the conclusion that this action on the part of Stevens constituted negligence which proximately contributed to his injury and prevents his recovery. These facts, as shown by the plaintiff’s own testimony as to how the accident happened, will warrant no inference, in our judgment, that the plaintiff at the time of the injury was exercising due care for his own safety.
“The court of common pleas should have directed a verdict for the railroad company, and the Court of Appeals should have so ordered.”

Again, in Masters v. N. Y. Central Rd. Co., 147 Oh St, 293, 303, the Supreme Court sustained the right of a court to determine the existence of proximate cause as a matter of law.

In the instant case the decedent dashed in front of a street car, which she must have seen approaching her so rapidly that her body was tossed a number of feet after impact. No factual issue for the consideration of a jury is presented under such circumstances and a court must be forced to find both negligence and proximate cause as a matter of law.

The motion of the defendant for a directed verdict, made at the conclusion of all the evidence, should have been sustained, and the trial court should have rendered judgment as requested by the defendant, and its judgment must be reversed.

Some contention is made that the operator of the street car was guilty of a failure to exercise due care in its operation. Where, however, all the evidence produced at the trial by the parties presents no factual issue as to negligence of the plaintiffs’ decedent and requires the legal conclusion that her negligence was the proximate cause of her death, or even a proximate cause of such death, the negligence of the defendant becomes an immaterial -issue, since any negligence of the decedent which proximately contributes to her death prevents recovery by the plaintiffs, and requires an instructed verdict for the defendant.

“Where a Court of Appeals reverses the trial court on the ground that the proof fails to show actionable negligence on the part of defendant, it becomes the duty of the Court of Appeals to render final judgment for the defendant. (Greyhound Lines, Inc., v. Martin, 127 Oh St, 499, approved and followed.)

“When a Court of Appeals reverses a judgment of the trial court, for the assigned reason that the trial court erred in not sustaining the motion of defendant for a directed verdict, made at the close of all the evidence, it becomes the duty of the Court of Appeals to render the judgment which the trial court should have rendered and not to remand the cause to the trial court for further proceedings. (Majoros v. Cleveland Interurban Rd. Co, 127 Oh St, 255, approved and followed.) (Leighton v. Hower Corporation, 149 Oh St, 72, paragraphs 2 & 3, syllabus.)”

Judgment is here entered for the defendant.

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


author: By THE COURT:

text:
    GARLAND, Plaintiff-Appellee, v. GILBERT, Defendants-Appellants.
    Ohio Appeals, Second District, Montgomery County.
    No. 2029.
    Decided February 18, 1949.
    I. C. Delscamp, Dayton, for plaintiff-appellee.
    W. H.’Earley, Eaton, C. A. Funkhouser, Baggott & Johnston, Dayton, for defendants-appellants.
   OPINION

By THE COURT:

Submitted on motion of plaintiff-appellee to affirm the judgment of the Court of Common Pleas on the ground that no Bill of Exceptions has been filed within 40 days after the overruling of the motion for new trial.

A Bill of Exceptions is not required to review alleged errors appearing on the face of the record. Sec. 11564 GC. From the record it appears that the errors complained of may be exemplified without a Bill of Exceptions.

Motion overruled.

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


author: By FORD, DJ.

text:
    PORTER v. REID et.
    United States District Court of District of Massachusetts.
    No. 5837.
    Decided June 17, 1948.

      Charles D. Brown, M. James Zelman, Boston, for plaintiff.
    Robert H. Hopkins, Paul V. Power, Richard N. Bail, and Gaston, Snow, Rice & Boyd, Boston, for defendant Lisle M. Buckingham.
    John N. Worcester, Foster E. Allison, Sullivan & Worcester, Boston, Howard C. Walker, Akron, for defendant Lester R. Reid.
    Edmund Burroughs, Akron, for defendant Lisle M. Buckingham.
   OPINION

By FORD, DJ.

On June 6, 1946, Curtis Porter filed a bill in equity in the Superior Court of Massachusetts for Suffolk County against Lester R. Reid, of Akron, Ohio; against Lisle M. Buckingham, of Akron, Ohio in his capacity as executor under the will of Paul L. Arnold; and against Harold A. Leventhal, of Boston, Massachusetts, as the stakeholder of funds claimed by plaintiff and the two principal defendants. Leventhal was temporarily restrained from paying over any of the money to Reid or Buckingham until further order of the Massachusetts court. Buckingham qualified in Massachusetts as executor of Arnold. The principal defendants removed the case to this court on diversity grounds, and appeared generally to contest the cause. Leventhal, being only a fundholder with no interest in the case, can be disregarded for diversity of citizenship purposes. Salem Trust Co. v. Manufacturers’ Finance Co., 264 U. S. 182, 44 S. Ct. 266, 68 L. Ed. 628, 31 A. L. R. 867.

From 1937 to 1944 Reid and Arnold conducted a trucking business under an Interstate Commerce Commission license. The base of operations for the business was at Akron, and the business operated trucks to Boston. There were terminals at Akron, Ohio, and Watertown, Massachusetts, owned by Reid and Arnold in some sort of co-ownership, and leased to Reid Brothers Express, Inc., which operated the business. The trucks and other heavy equipment were similarly owned and leased to the corporation. Reid and Arnold each owned one-half of the stock of Reid Brothers Express, Inc., amounting to 100 shares apiece.

Curtis Porter was an employee of the business at the Water-town terminal, where he performed the duties of manager from 1937. Thereafter, he was at times an owner-operator, an arrangement by which he bought trucks and leased them to the corporation, serving as a truck-driver himself. Toward 1944, he began working at the Akron terminal as a dispatcher.

Arnold went into the military service in 1942 and left the business to be operated by Reid. He resumed activity with the business in the Spring of 1944, as president; Reid was secretary and treasurer.

In June and July, Reid negotiated for the sale of his interest in the business to Porter, and an agreement was consummated sometime in July but dated July 1, 1944. The sale agreement recited that Reid owned one-half the capital stock of Reid Brothers Express, Inc., an undivided one-half interest in the Akron and Watertown real estate and in certain trucks, tractors, equipment, notes and various miscellaneous appliances used in the trucking business; that Reid desired to sell all his right, title and interest in the above; and that he “does hereby sell to the buyer and the buyer does hereby purchase from the seller all of the seller’s interest in said property” for $75,000. The terms were as follows: $2,000 in cash, $73,000 represented by a non-negotiable purchase money note at 4% per annum computed semi-annually and payable in installments of $1,000 per month, but if conditions in the trucking business should be such that Porter could not meet the required payments, then upon condition that Porter should not draw more than $75 per week for his services from the whole business, Reid would agree to a reduction of payments to $400 per month. Upon default in payment by Porter, the balance of the note would become due immediately. It was further agreed that Reid should transfer to Porter his stock in Reid Brothers Express, Inc., and that Porter should endorse it back to Reid as security on the note; that Reid should execute deeds for an undivided one-half interest in the Akron and Watertown terminals, and that Porter mortgage to Reid his interest thereby acquired, the Akron mortgage to be released by Reid upon payment to him of $12,500 and the Watertown mortgage to be released upon payment of $17,500. It was also agreed that title to the trucks, tractors, and trailers jointly owned by Reid with. Arnold should not be transferred till April 1, 1945, but that Porter should have the right to operate the equipment with Arnold; and upon transfer of Reid’s title to the trucks, tractors, and trailers, any proceeds from the sale or disposition thereof should be placed in special bank accounts and used only for the purchase of new equipment.

Porter also agreed to transfer a certain equipment note he held against other persons with a balance due of $3,000 as further security for the payment of the $73,000 note. Porter to guarantee payment of the $3,000 note.

The sale agreement signed sometime in July by Reid and Porter at the law offices of Buckingham, Doolittle and Burroughs, in Akron. The $2,000 cash payment was made; the $3,000 equipment note was endorsed to Reid; and Porter signed the $73,000 purchase money note. Reid transferred his 100 shares of stock and Porter endorsed them back. Reid delivered deeds to his one-half interest in the Akron and Water-town real estate; Porter executed mortgages on the two pieces of real estate, the mortgage on the water-town property purporting to convey to Reid the whole Watertown property rather than an undivided one-half interest. Reid also delivered a letter to Porter which reduced the monthly payments to $400 in accordance with the terms of the Sale Agreement.

Arnold did not sign the sale agreement or assent in writing to any of the arrangements. However, it is fairly inferable that he knew of the negotiations which led up to the sale, that he knew of the sale, and that he assented to the arrangement. In fact, the evidence shows that he worked with Porter in the business after Reid stepped out, and that the set-up, with Porter in place of Reid, was satisfactory to him.

Porter and Arnold operated the business after consummation of the sale, and Porter made regular payments on the note. They transferred all of their personal interest in the trucks, trailers, and tractors to the corporation sometime before April 1, 1945, and set up a credit of $40,000 to themselves on the corporation books. Later, Arnold was killed in a robbery, Buckingham was named executor under his will, and Porter continued to operate the business. For reasons which do not appear on the record, the business suddenly collapsed in the Fall of 1945, and Porter ceased making payments. Edmund Burroughs of the law firm of Buckingham, Doolittle and Burroughs was appointed receiver of the corporation.

Thereafter, by agreement of Buckingham, Reid and Porter, the Akron real estate was sold, and $12,158.25, being one-half the proceeds, was applied to the debt of Porter to Reid on May 28, 1946.

On November 27, 1945, Buckingham and Porter agreed to sell the Watertown property to Sarah Mogul for $27,500, $1000 of which was paid on that date to be held in escrow by Edmund Burroughs. Subsequently, Buckingham as executor conveyed his one-half interest to Mogul by quitclaim deed; Porter conveyed his one-half interest to Mogul by quitclaim deed; and Reid released his mortgage and executed a quitclaim deed on the property to Mogul. The sum of $26,500 less various expenses was paid to Harold A. Leventhal, of Boston, Massachusetts, who was apparently acting in behalf of all parties to the transaction. • At this juncture, Porter instituted his action in the Massachusetts courts, and secured an order there restraining Leventhal from paying out the money until the rights therein should be adjudicated.

Plaintiff, in his complaint, alleges that the contract of sale here in issue- was induced by the false and fraudulent representations of Reid and Arnold; that they represented that the corporation was solvent when in fact it was insolvent; that they represented the property sold to be worth much more than it was worth; that Reid promised to pay the outstanding accounts payable of the corporation at the time of the sale, and that he did not do so. The complaint also contains an allegation that Reid did not in fact own the one-half interests in the Akron and Watertown real estate which he purported to convey to Porter. Plaintiff further alleges payment by him on the note in the amount of $8800, and asks that the transaction be set aside, the note cancelled, and that he be restored out of the funds held by Leventhal, to his position before the transaction took place.

Defendant Reid answered denying the allegations of fraud; denying that he had no' title to the realty sold and asserting that the only defect in his title was in any event cured by the conveyance to Mogul, in which all parties joined; setting up the statute of frauds as a defense to any action based on a promise by him to pay the accounts payable of the corporation. Reid also counterclaimed for a judgment on the balance due on the $73,000 note, and demanded that Leventhal be required to pay over to him one-half the proceeds of the sale of the Watertown real estate in conformity with the provisions of the Sale Agreement.

Answering the counterclaim, Porter reiterated as a defense thereto his allegations of fraud and failure of consideration; and, as a defense to Reid’s claim that the conveyance to Mogul cured any defect of title, Porter added that he was “ignorant of the law relative to the rights of a surviving partner” and consented to the sale because he thought he would get part of the proceeds, while Buckingham, knowing the law, did not advise him of the rights of a surviving partner.

Defendant Buckingham denied the allegations of the complaint generally, and counterclaimed for a declaratory judgment that Porter is not entitled to any funds in the hands of Buckingham or Leventhal, nor to an accounting from Buckingham. He also made a cross claim against Leventhal for one-half of the fund held by him.

Leventhal answered the complaint and the cross claim of Buckingham, admitting that he held $25,956.10, as the proceeds of the sale of the Watertown property, and seeking instructions, relief from liability, and an award of costs and attorney’s fees.

Plaintiff’s case started out as an equitable action for rescission on account of fraud and failure of consideration. Before the trial, counsel withdrew his claim of fraud against Arnold, whereupon Buckingham moved to dismiss on the ground that plaintiff failed to state a claim upon which relief could be granted. Plaintiff then asserted that he was entitled to the proceeds from the sale of Arnold’s one-half interest in the Watertown property on the following grounds: If the sale by Reid to Porter were valid, then a partnership between Porter and Arnold resulted; Porter, as surviving partner, was vested with title to all of the partnership assets, and was responsible for the application of those assets to the partnership debts; and Buckingham, as executor of the deceased partner, was entitled to an accounting from Porter. In other words, since Porter remained individually liable to creditors of the partnership, he was entitled to exonerate half of his liability from partnership assets that belonged to the deceased partner, and after exonerating himself he, could he required to account to the estate of the deceased partner.

Buckingham’s motion to dismiss was not granted at that time, since I preferred to hear the merits of plaintiff’s action and consider all the connected matters of the case at once. Therefore, under the provisions of Rule 15 (b) of the Federal Rules of Civil Procedure, I allowed the case against Buckingham, as well as that against Reid, to go to trial. Counsel for Buckingham was not at all prejudiced by such procedure, he being well prepared to defend against the new contentions of plaintiff.

When the case went to trial, plaintiff was thus maintaining alternative positions: that the contract with Reid was voidable for fraud and failure of consideration, and plaintiff chose to rescind and recover what he had paid to Reid; but if the contract must stand, then he was entitled to Buckingham’s share of the proceeds of the sale of the Watertown realty as surviving partner of a partnership between Arnold and plaintiff. Plaintiff prays for relief under either the former or the latter contention hot under both. This situation is covered by Rule 8(e) (2) of the Federal Rules of Civil Proeedure, which states in part: “A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal or on equitable grounds or on both.” Cf. Texas Employes Insurance Ass’n v. Felt, 5 Cir., 150 F. 2d, 227, 160 A. L. R. 931; Fidelity & Deposit Co. of Maryland v. Krout, 2 Cir., 146 F. 2d 531; Michelson v. Shell Union Oil Corp., D. C., 26 F. Supp. 594. This is not a situation like that where courts so often compel an election between an action for recission of a contract or an action for damages for deceit, which would result if, in addition to seeking rescission and restitution against Reid, plaintiff should stand by his contract and seek damages for deceit against Reid. See Williston on Contracts, Vol. V, Sec. 1528.

Plaintiff’s case for fraud and failure of consideration that would entitle him to rescind his contract with Reid is based on four allegations. (1) That Reid represented Reid Brothers Express, Inc., to be solvent when it was not; (2) that Reid represented the property sold to be worth much more than it was worth in fact; (3) that Reid promised, without intending to keep his promise, to pay the outstanding accounts payable of the corporation; (4) that Reid conveyed no title to Porter of the Watertown property by the deed dated July 1, 1944. I shall consider these allegations in order.

(1) The evidence does not indicate that the corporation was insolvent at the time it was sold to Porter. On the contrary, I find that there was a substantial excess of assets over liabilities at that time, and that the corporation for at least several months after July 1, 1944, was meeting its obligation on time. Plaintiff impliedly admitted the former proposition when he stated that the business was worth about $10,000 less than he paid for it. As to the latter, checks on Reid Brothers Express Inc., put in evidence by Reid, indicate payment of bills in the regular course as due. Therefore, I find that the corporation was solvent when the contract of sale was made.

(2) Porter testified that Reid calculated his interest in the business (both corporate and unincorporated) to be worth $80,000; and he offered it to Porter for $80,000; Porter offered $70,000; and they finally compromised on $75,000. Reid testified that he calculated his interest in the business to be worth $85,000, and that he offered it to Porter for $75,000. I am not prepared to say that the valuations of Reid were not inflated somewhat. On the other hand, it is clear that the business had substantial value. Porter admitted that the business was worth $65,000. Furthermore, a substantial element of the total value was the value of the rights or licenses which the corporation held and which entitled it to operate trucks in interstate commerce. Porter knew that this element was taken into account in calculating the worth of Reid’s share in the business. Under these circumstances, Reid’s calculations were, and were known by Porter to be, no more than estimates or opinions as to value, and Porter could not rely on them. This court, sitting in diversity cases, applies the law of Massachusetts in conflicts of law problems. Klaxon Co. v. Stentor Electric Mfg. Co., Inc., 313 U. S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477. Whether there was fraud by Reid in over-valuing the assets of the business must be determined by the law of Ohio, where the contract was made. Kline v. Baker, 99 Mass. 253. Ohio law is in accord with that of Massachusetts in refusing to characterize mild overstatements of value as fraud. Belmont Mining Co. v. Rogers, 10 Ohio Cir. Ct. R. 305; Cooper v. Lovering, 106 Mass. 77; Deming v. Darling, 148 Mass. 504, 20 N. E. 107, 2 L. R. A. 743. In any event, Porter did check to some extent to determine the value of the business, and I find as a fact that he did not rely on the representations of Reid, and was not misled thereby.

(3) Plaintiff alleges that Reid promised to pay the accounts payable of the corporation. It is clear that a promise, if made without any intention to perform may be a misstatement of fact. Dozier v. Keller, 73 Oh Ap 321, 29 O. O. 33, 56 N. E. 2d 288; Clarke Publishing Co. v. Mann, 41 Oh Ap 93; 179 N. E. 814; Feldman v. Witmark, 254 Mass. 480, 150 N. E. 329; Williston on Contracts. Vol. V, Sec. 1496. Reid objected to the admission of oral evidence that he made any such promise, on the ground that it was a promise to answer for the debts of another and required by the statute of frauds to be in writing. I assume that he referred to the Massachusetts statute of frauds; G. L. (Ter. Ed.) Mass. c. 259, Section 1, which would be applied by the Massachusetts courts to contracts made in other states as well as within the forum, since the statute is construed as a procedural or evidentiary matter rather than a matter of substantive law. Emery v. Burbank, 163 Mass. 326, 39 N. E. 1026, 28 L. R. A. 57, 47 Am. St. Rep. 456. However, constructing this promise to be within the rule of Nelson v. Boynton, 3 Metc., Mass., 396, 400, 37 Am. Dec. 148, I admitted the evidence of the promise. Although the effect of the alleged promise was that Reid should answer for the debts of Reid Brothers Express, Inc., yet the leading object of Reid was to promote his own interests by the transaction. Under these circumstances, the promise is outside the statute of frauds. Emerson v. Slater, 22 How. 28, 16 L. Ed. 360; Crawford v. Edison, 45 Oh St 239, 13 N. E. 80; Texas Co. v. Seaboard National Bank, 26 Oh Ap 104, 159 N. E. 842. In any event, the object here is not to enforce the promise, but to show fraud. In such event the statute of frauds should not be used as an instrument to protect a defrauder. Nor does the parol evidence rule prevent the admission of oral promises in order to show that an integrated contract was induced by fraud. New England Foundation Co., Inc., v. Elliott & Watrous, Inc., 306 Mass. 177, 181, 27 N. E. 2d 756; Kean v. New York Central & Hudson R. R. Co., 210 Mass. 449, 97 N. E. 64; Drew v. Christopher Construction Co., 140 Oh St 1, 23 O. O. 185, 41 N. E. 2d 1018; Wigmore on Evidence, Vol IX, Sec. 2439.

Having admitted testimony by Porter that Reid did promise to pay the accounts payable and that he did not fulfill his promise, I find that Porter did not sustain his burden of proving that such a promise was made. Reid categorically denied making such a promise, and the circumstances favor him. Porter said the promise was to pay all the accounts payable of the corporation. It seems very unlikely that Reid would promise to pay all the debts when he owned only one-half of the stock. And the fact that the entire transaction was represented by the sale agreement of July 1, 1944 is some evidence that other promises were not made. Therefore, I find that Reid did not make the promise as alleged.

(4) Porter also urges that he is entitled to rescind because of a failure of consideration, in that Reid had no power to convey an undivided one-half interest in the Watertown property because Reid and Arnold were partners, the property was partnership property -held in a tenancy in partnership and not assignable except in connection with the assignment of the rights of all the partners in the same property. G. L. (Ter. Ed). Mass. c. 108A, Section 25 (2) (b). Under the circumstances here, I do not deem it necessary to consider these questions. When Porter and Buckingham sold the Watertown property to Sarah Mogul, Reid joined in the conveyance and released his mortgage on Porter’s assurance that Reid would be paid Porter’s share. Thereby Porter got what he bargained for. There is no showing whatsoever that he was damaged by the fact that there was an alleged defect in his title between July, 1944, and the time the property was sold in 1946. On the other hand, I think that his securing Reid to participate in the conveyance to Sarah Mogul and release his mortgage on the assurance that Reid would be paid the proceeds of Porter’s share amounted to a representation that he would not contest the title of Reid. In reliance on this representation, Reid released his mortgage, to his detriment. Therefore, Porter is estopped to make claims in derogation of the title which he secured from Reid. Cf. Kolasinski v. Paczkowski, 307 Mass. 73, 29 N. E. 2d 747; Industrial Bankers of Massachusetts, Inc. v. Reid, Murdock & Co., 297 Mass. 119, 124, 8 N. E. 2d 19; Morgenthaler v. Cohen, 103 Oh St 328, 132 N. E. 730.

Defendant Reid has counterclaimed for the balance due on the $73,000 note, and seeks to have one-half the proceeds held by Leventhal applied to the note. Other than the above rejected arguments, Porter has asserted no defenses to the note. There is an action pending in the Ohio courts by Reid against Porter on this note, but this is no hindrance to a judgment issuing here prior to any decision in that case. The note refers to the fact that it is secured in part by a mortgage on the Watertown property. The mortgage on the Water-town property, in compliance with the terms of the sale agreement of July 1, 1944, contains an agreement by Reid to release the mortgage upon payment of $17,500 to apply to the note. Since the sale to Sarah Mogul was consummated because Reid agreed to release his mortgage for a lesser sum, it is only fair that he should at least have one-half the proceeds held by Leventhal. It does not appear from the evidence that Porter was insolvent at that time, and even if he was, Reid is entitled to his mortgage or at least the amount in consideration of which he agreed to release his mortgage. If this is a preference, it is one which is not illegal, since Reid gets only what he would have gotten as a secured creditor.

As mentioned in Section II of this -opinion, before trial Porter claimed that he was entitled to one-half the proceeds of the sale of the Watertown property on the grounds he was a surviving partner and was entitled to exonerate himself out of the proceeds of the sale of partnership property. At the trial, it appeared that there was a fund in the name of Porter and Buckingham (as executor of Arnold) in the First National Bank of Akron, in the amount of $1176.33. It also appeared, from the testimony of Burroughs, that Porter and Arnold had set up a claim of $40,000 on the corporation’s books as a credit to themselves for the transfer of the trucks, tractors and trailers to the corporation; that they reduced this claim to $30,000 by issuance of stock to themselves, and by other transactions; and that Porter and the estate of Arnold now have a claim of about $30,000 against the corporation which is worth from thirty to fifty cents on the dollar.

This evidence having been introduced by the defendants, plaintiff changed his prayer for relief and in his brief states: “* * * if the court finds that the plaintiff is not entitled to relief against the defendant, Reid, then the plaintiff contends that he is entitled to 50 per cent of the funds held in the First National Bank of Akron standing in the name of the plaintiff and the defendant, Buckingham, and to 50 per cent of any dividend declared and paid by the Receiver of the corporation.” Apparently this demand for relief is based on a theory that plaintiff is entitled to an accounting from the estate of Arnold.

There are, then, two claims of plaintiff against Buckingham: (1) That plaintiff is entitled to Buckingham’s one-half of the proceeds of the sale of the Watertown property; (2). that he is entitled to an accounting for partnership assets, and particularly to one-half of the bank account in Akron and one-half of the claim against the corporation. I reject these claims, and will consider them in order.

(1) I assume, without deciding, that there was, under Ohio law (Klaxon Co. v. Stentor Electric Mfg. Co., supra; Seemann v. Eneix, 272 Mass. 189, 193, 172 N. E. 243; Restatement, Conflict of Laws, Sec. 342), a valid partnership between Porter and Arnold (Harvey v. Childs and Potter, 28 Oh St 319, 22 Am. Rep. 387; Farmers’ Insurance Co. v. Ross & Lennan, 29 Oh St 429; Union Savings & Loan Co. v. Cook, 127 Oh St 26, 186 N. E. 728; Daly v. Savage, 12 Oh Ap 471) and that the Watertown realty was a partnership asset. Green v. Graham, 5 Ohio 264; Page v. Thomas, 43 Oh St 38, 1 N. E. 79, 54 Am. Rep. 788.

If the law of Ohio governs the nature of the interests owned by the partners in Massachusetts real estate, the partners took as tenants in common, and the surviving partner did not take title to all the assets of the partnership. Greene v. Graham, supra; Weitz v. Weitz, 15 Oh Ap 134, 143. Porter might have asserted his rights to have an appraisal and to purchase the assets of the deceased partner under the statutory scheme provided under §8085 through §8098 GC. See Weitz v. Weitz, supra; Rammelsberg v. Mitchell and Lope, 29 Oh St 22, 52; Phoenix Ins. Co. v. Carnahan, 63 Oh St 258, 264, 58 N. E. 805. Not having followed this procedure, plaintiff is not, under Ohio law, entitled to the interest of his deceased partner. Only one possible partnership debt appears, from the record,' to exist. It amounts to $265 and is owed to an accountant for services renderd. If the partnership is liable for this debt, and it is collected from Porter, he can exonerate himself from the estate (Tiffany, Law of Real Property, Vol. 2 p. 249) without taking the whole assets of the partnership and holding them subject to a trust for the estate of Arnold. In fact, Buckingham agrees to pay one-half of this claim.

If the law of Massachusetts be taken to govern the character of the interest in the Watertown property which was owned by Porter and Arnold (Cutter v. Davenpart, 1 Pick., Mass., 81, 86, 11 Am. Dec. 149; Restatement, Conflict of Laws, Sec. 215), then the surviving partner takes the rights of the deceased partner in specific partnership property for partnership purposes. G. L. (Ter. Ed) Mass. c. 108A, Section 25(2) (d). The surviving partner thereby is vested with title to the property of the partnership, but he must apply it to the payment of firm debts and account for the balance to the estate of the deceased partner. Cavazza v. Cavazza, 317 Mass. 200, 57 N. E. 2d 558; Malden Trust Co. v. Brooks, 291 Mass. 273, 197 N. E. 100; Hawkes v. First National Bank of Greenfield, 264 Mass. 545, 163 N. E. 249, 61 A. L. R. 1408; Wellman v. North, 256 Mass. 496, 152 N. E. 886. Thus, it may well be that Porter had title to the Arnold share of the Watertown real estate. Even so, by his deed to Sarah Mogul he released that interest, and the fund held by Leventhal is in its place. Technically, Porter may have title to the fund; but if so, in the absence of any showing that the fund is necessary to be applied to partnership debts, Porter can not have it. I have already discussed the one partnership debt, and the fact that there is an adequate fund available for the payment of the debt. On Buckingham’s counterclaim against Porter, I will require that one-half the fund held by Leventhal be turned over to Buckingham as an appropriate step toward the winding up of the partnership affairs. In this connection, it is to be noted that plaintiff has his remedies in the Ohio courts, where the estate of Arnold is under administration, to get a fair and complete distribution of partnership assets.

(2) Finally, I come to the plaintiff’s contention that he is entitled to an accounting as to two claims, first, the bank account, and, second, the claim of Porter and Arnold against Burroughs, receiver of Reid Brothers Express, Inc. As to the former, Buckingham has offered to account, and I see no need for judicial intervention to compel him to do what he is willing to do. As to the latter, any claims against the corporation should be filed with the receiver at the appropriate time and place. I decline to adjudicate the interests in an hypothetical claim which has not yet been established as having any validity. And even if the claim were an established one, I would decline to compel Buckingham to account. Although an. accounting may be appropriate where a fiduciary relationship exists, or where the accounts are so complicated that an action at law would not be an adequate remedy (Berwin v. Cable, 313 Mass. 431, 47 N. E. 2d 951; Badger v. McNamara, 123 Mass. 117), yet there is a large measure of discretion vested in the court to decide whether to allow an accounting. Rivoli Drug Co. v. Lynch, 9 Cir., 50 F. 2d 536, 537. Because of the willingness of Buckingham to account, and because of the facts that the administration of the estate of Arnold and the receivership of Reid Brothers Express, Inc., are both in Ohio, I decline to allow an accounting here.

Judgment for defendant Reid on plaintiff’s complaint.

Judgment for defendant Buckingham on plaintiff’s complaint.

Judgment for defendant Reid on his counterclaim against Porter on the purchase money note, with interest, in an amount to be calculated by Reid and submitted to this court within 10 days.

Ordered, that defendant Leventhal, after deducting $100 for attorney’s fees in addition to costs of defending this action, pay over one-half the fund remaining in his possession to Reid and one-half to Buckingham after those parties take whatever steps may be necessary to dissolve the temporary restraining order issued by the Superior Court of Massachusetts for Suffolk County.


author: By HURD, J.

text:
    HILDEBRANDT, Estate of In Re; HILDEBRANDT, Plaintiff-Appellant, v DEPARTMENT OF TAXATION, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 21089.
    Decided March 7, 1949.

      H. S. Duffy, Atty. Geni., W. H. Annat, Asst. Atty. Geni, Columbus, for defendant-appellee.
    Thompson, Hine & Flory, Harvey B. Hobson, of Counsel, Cleveland, for plaintiff-appellant.
    (DOYLE, J, of *the 9th Appellate District, sitting by designation in place of MORGAN, PJ.)
   OPINION

By HURD, J.

This is an appeal on questions of law from a judgment of the Probate Court wherein the Court held taxable under Ohio Inheritance Tax laws four gifts inter vivos made by the decedent eleven years prior to her death. The appeal is prosecuted by Robert J. Hildebrandt, Executor of the last will and testament of Katharina Hildebrandt, deceased, from the order of the Probate Court dated February 6, 1948, overruling exceptions to the assessments of inheritance taxes upon the gifts made by the decedent to her four children in 1935, in the sum of $50,000.00 each. The Probate Court at the same time sustained Exceptions to another gift of $50,000 made at the same time, to four grandchildren of the decedent, the same being the children of decedent’s deceased daughter, Catherine Hildebrandt Pfahl, in the sum of $12,500.00 each, holding that said gifts were not taxable. No appeal was filed by the Department of Taxation of Ohio from the order of the Probate Court sustaining the exceptions in respect of the gifts to the grandchildren.

There appears to be no dispute as to the facts. Katharina Hildebrandt who died January 31, 1947 at the age of 86 years was born in Gruenstadt, Germany, in the year 1860. In the year 1886 she married Charles R. Hildebrandt, the issue of said marriage being Catharine H. Pfahl, who died in 1919; Hugo A. Hildebrandt who died in 1942; Mathilda H. Pfahl who died in 1944 and Robert J. Hildebrandt and Frances P. Haag. The decedent’s husband is still living.

Russell Arnold, M. D., was the Hildebrandt family physician from 1937 to the date of decedent’s death. From his professional observations during that period Katherina Hildebrandt enjoyed good health, was active in the affairs of her household, church and family until shortly before her death. She enjoyed unusually good health until 1944. In the last years of her life she suffered from heart trouble which resulted in her death on January 31, 1947. She had a strong constitution and retained her mental faculties until the time of her death.

For some years prior to 1893, Charles R. Hildebrandt, decedent’s husband, operated a wholesale meat business in partnership with a relative. In that year his partnership was terminated and Mr. Hildebrandt moved to the present location of The Hildebrandt Provision Company on Walton Avenue in Cleveland, Ohio. In 1906 The Hildebrandt Provision Company, a corporation, was organized. The stock of this company was closely held by Charles R. Hildebrandt' and Katharina Hildebrandt there being only a small amount held by individuals other than the Hildebrandt family. The company was a family enterprise with the father and mother and their five children being all active in company affairs.

The capital stock of the Company consists of 1500 preferred shares and 1500 common shares of which Katharina Hildebrandt at the time of her death owned 300 preferred and 300 common shares and substantially all the rest of said stock, both common and preferred, were owned by Charles Hildebrandt. At the time of the death of Katharina Hildebrandt, a unit consisting of one preferred share and one common share was worth $500.00.

Catherine Hildebrandt rendered numerous services to the company and acted as vice-president until the time of her death. Hugo A. Hildebrandt a son of the decedent, drove the delivery wagon for the company at the age of fourteen years and worked in the factory part time. After one year at Spencerian College, at the age of seventeen years, he began taking care of the books of the company and later became secretary and treasurer of the company which position he retained until, the time of his death.

Robert J. Hildebrandt, the son of the decedent, began to sell sausage for the company in the Market House at the age of eleven years and went with the company on a full time basis when he was 18 years of age. He worked there continuously, later becoming superintendent and at the time of his brother Hugo’s death, was General Manager of the company.

Catherine H. Pfahl, a daughter of the decedent, worked in the company’s retail market stand at the West Side Market House and 'did clerical -work for the company until the time of her death in 1919.

Frances P. Haag, a daughter of decedent, worked part time in the office and later became secretary of the company.

The company developed into a very successful family enterprise in the processing of meats, growing from an organization of about 15 employees in 1906 to about 150 employees in 1947. At the time of the death of Katharina Hildebrandt, the company owned assets worth approximately two million dollars.

Charles R. Hildebrandt, decedent’s husband, was for many years the active operating head of the company but about 1933 he became less active in the company and some of the responsibility for operating the company was placed with his two sons, Hugo A. Hildebrandt and Robert J. Hildebrandt.

In December, 1935, Katharina Hildebrandt made a gift at the Christmas season to her four children above referred to, in the sum of $50,000.00 each and a gift of $50,000.00 to her four grandchildren, the children of her deceased daughter, Catherine Hildebrandt Pfahl in equal shares. The gifts were made largely in government bonds and cash and the securities were actually transferred and delivered to the donees on Dec. 27, 1935.

According to the Federal Gift Tax Returns filed with the Government the gifts were “to create or to increase independent estates of the donees and permit them to receive the enjoyment of these gifts.” After making the gifts the decedent retained property having a value of between $500,000.00 and $550,000.00. Her estate has been accumulated substantially from dividends of The Hildebrandt Provision Company and from income on securities originally purchased from dividends received from the company. The gross value of her estate was $750,000.00 at the time of her death in 1947. She retained until her death her entire stock interest in the Hildebrandt Provision Company.

Robert J. Hildebrandt, son of the decedent, testified upon the hearing that his mother advised him some time prior to Christmas in 1935 that she intended to make a substantial Christmas gift to her children as a reward for their contributions to the Hildebrandt Provision Company and also to create independent estates and so that they could enjoy this money.

The assignment of error is as follows:

“The probate court erred in determining that the gifts made to the decedents’ four children, eleven years before her death, were subject to Ohio Inheritance Tax as having been made ‘in contemplation of death’ for the following reasons: (1) the department wholly failed to sustain its burden of proof that the inter vivos gifts were made in contemplation of death, and (2) that the evidence conclusively proves that said gifts were not made ‘in contemplation of death.’ ”

The single question presented for our determination in this case is: Were the gifts in question made ‘in contemplation of death’ within the meaning of §§5331, 5332, 5332-2 GC?

The law on this subject seems to have been very well charted by several authoritative decisions of our supreme court, of appellate courts and one case by the Probate Court of Cuyahoga County. The difficulty arises in this and similar cases in the application of the law to the facts.

From an analysis of the controlling cases, certain principles emerge as follows:

(1) Whatever may be the interpretation placed on the phrase ‘in contemplation of death’ as applicable to gifts inter vivos in other jurisdictions, the meaning in Ohio is fixed by the statutory definition set forth in §5331-5 GC, viz:

“Contemplation of death means that expectation of death which actuates the mind of a person on the execution of his will.”

See: Sec. 5331 GC

In re Estate of Robinson, 145 Oh St 55 (decided April 4, 1945)

Tax Commissioner v. Parker, 117 Oh St 215 (decided June 22, 1927)

(2) The controlling test is in the purpose of the donor. If the purpose is to distribute or partially distribute an estate by the device of gifts inter vivos, the transfers are taxable. If the purpose is in good faith to perform an act of generosity or kindness or to relieve the needs of children and their families, or if it is in appreciation or of reward for services rendered, the transfers are not taxable.

See: In re Estate of Robinson, 145 Oh St 55; Tax Commissioner v. Parker, 117 Oh St 215; Schaefer v. Department of Taxation, 75 Oh Ap 533 (dec. June 4, 1945); In re estate of Bender, 60 Oh Ap 107 (decided July 5, 1938); In re estate of Jacob B. Perkins, 12 O. O. 455 (decided Sept. 21, 1938).

(3) Liability to taxation must be determined in each case by all the facts and circumstances existing at the time of the transfer and if multiple transfers are made, the facts and circumstances of each transfer should be separately considered.

See: In re estate of Robison, 145 Oh St 55.

(4) Transfers of property without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property made within two years of death are deemed presumptively in contemplation of death and the burden is cast upon the transferee to prove to the contrary.

See: Sec. 5332 GC

Tax Commissioner v. Parker, 117 Oh St 215.

(5) Where transfers are made more than two years prior to the death of donor, the burden is cast upon the Department of Taxation to show that such transfers were in fact made in contemplation of death within the meaning of the applicable General Code Sections (§§5331, 5332, 5332-2 GC).

See: Commissioner v. Parker, 117 Oh St 215; Schaefer Exec, v. Dept. of Taxation, 75 Oh Ap 533; In re estate of Hamilton, 34 Abs 187.

In this connection it does not follow, however, that the case should not be considered on the entire record or that the burden of proof cast upon the department must be sustained by and with its own evidence and witnesses. It is sufficient if upon the entire record the Department of Taxation has sustained the burden of proof imposed on it by law.

Coming now to apply the principles of law to the facts of the instant case, the record shows that the gifts were made eleven years prior to the death of the donor. Therefore the burden of proof rests upon the Department of Taxation to show that the transfers were made in contemplation of death.

The evidence here tends to support very definitely the claim of the exceptors that the purpose of the transferor was two-fold: (1) an act of generosity and kindness to the four living children and another gift in equal amount to the children of a deceased daughter, the latter gift not being challenged in this action. (2) as a reward for and in appreciation of the material assistance of the donees in assisting in producing the fortune out of which the gifts were made.

The record indicates clearly that this family enterprise was built up by the cooperation in one way or another of all the members of the family. The record with all reasonable inference indicates that the donees had worked hard, had put in long hours at comparatively modest wages or salaries from their earliest years in helping to build up and make a success of the family enterprise. It was quite natural that the mother of the children upon reaching the age of 75 years and having a substantial sum of cash and securities on hand, should wish to show parental appreciation of the efforts of her children who, with her husband, were responsible in a large measure for the accumulation of the wealth which she possessed. Likewise, there is ample evidence in the record indicating a desire on her part to do an act of kindness for them at this particular Christmas season of 1935. It should also be noted that she did not denude herself of her entire fortune. The facts show that she retained approximately a half million dollars and that when she died eleven years later her estate approximated the amount she owned when the gifts were made. The facts also show that she enjoyed the support and consortium of her husband who himself was the possessor of an independent fortune greatly'in excess of that possessed by her, all derived from the successful operation of the family business enterprise.

The Department of Taxation has urged two grounds, namely, the age of the decedent at the time the gifts were made and the fact that the gifts were made in equal amounts, as showing that the gifts were made in contemplation of death. If age alone were the controlling factor, a nontaxable gift inter vivos could not be made at an advanced age. The legislature has not attempted to provide any age limits nor can we do so by judicial interpretation. True, indeed, age must be considered a factor with other facts and circumstances at the time the gift is made. The only other factor here which is seriously urged by the Department of Taxation is that the gifts were in equal amounts.

We think the argument of equality fails when it is considered that another gift of equal amount to the grandchildren of the decedent was upheld by the Probate Court on the ground that it was for educational purposes.

It appears here that equalization of gifts, when considered with other facts and circumstances, is entirely compatible with motives of generosity and kindness as well as motives of appreciation for and reward for services rendered, the record indicating that all of the children had merited substantially equal recognition in their services for and on behalf of their parents.

A consideration favoring the contention of the exceptors is that the dispositive plan of decedent’s will executed eight years after the delivery of the gifts inter vivos did not follow the plan of the gifts. Neither did it provide for or constitute an equalization.

Here was a woman sound in mind and body, of advanced years, but still active and normal in all respects. The certificate of the doctor which was admitted by stipulation showed that for many years prior to her death she enjoyed good health and it was only during the last two years of her life that her health began to fail. The records show that she kept up her activities in all directions, church, social, cultural and community. She lived to the ripe old age of 86 years. These facts all point away from the claim that -the gifts were made in contemplation of death.

In conclusion the members of this Court are unanimously and firmly of the opinion that the Department of Taxation of the State of Ohio failed to carry the burden of proof cast upon it of showing that the gifts in question were made in contemplation of death and hence subject to the succession taxes provided by the applicable sections of the General Code.

For the reasons stated, the judgment of the Probate Court of Cuyahoga County is reversed and the cause remanded to said court with instructions to determine the Ohio Inheritance tax in accordance with the law and this judgment and opinion.

Exceptions noted. Order See Journal.

DOYLE, J, SKEEL, J, concur.


author: By MILLER, J. By THE COURT.

text:
    FIREPROOF CONSTRUCTION, INC., etc., Plaintiff-Appellee, v. BRENNER-BELL, INC., etc., Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4219.
    Decided January 27, 1949.

      W. B. McLeskey, Columbus, for plaintiff-appellee.
    Cowan & Adams, J. Paul McNamara. Columbus, for defendant-appellant.
   OPINION

By MILLER, J.

This is an appeal on questions of law from the judgment of the Municipal Court of Columbus, Ohio, finding the defendant guilty in an action in forcible entry and detention. The petition alleges that on or about February 15, 1946, the parties hereto entered into a written agreement whereby the plaintiff agreed to construct a certain building and upon its completion to enter into a lease with the defendant for a term of five years; that the agreement further provided said defendant should deposit with the plaintiff the sum of $3600.00 in cash payable as follows:

(a) The sum of $1000.00 when the footer for said building had been dug, the cement poured, and one row of blocks laid above the surface of the ground;

(b) $1500.00 when the walls of said building were completed to roof height; and

(c) $1100.00 when the building was completed and ready for occupancy.

The petition further alleges that the defendant deposited the respective sums of money as specified by paragraphs (a) and (b), supra; that on or about April 1, 1947, the building was completed in accordance with the plans and specifications and the building was ready for occupancy; that said defendant thereupon took possession of said building and is still so possessed, but has refused and neglected to pay the sum of $1100.00 as specified by paragraph (c) of the contract; that plaintiff has performed all conditions on its part to be performed; that upon defendant’s refusal to pay the sum of $1100.00 the plaintiff advised the defendant that it had elected to rescind said agreement and thereupon tendered the sum previously paid with interest at 6 per cent, which tender was refused.

The petition alleges further that said defendant is a settler on said premises without any color of title; that said defendant has since the first day of April, 1947, and up to the present time still does unlawfully and forcibly detain possession from said plaintiff; that on or about December 29, 1947, notice to vacate was served upon said defendant as required by law.

The first error assigned is that the trial Court erred in ruling that it had jurisdiction of the subject matter of the action. It is urged by appellant that there is no provision in the contract granting the plaintiff the right to rescind and the right of re-entering upon the failure of the defendant to make the payment of $1100.00 provided for in the contract; that it requires the action of a court of equity to rescind and cancel this contract before an action in forcible entry and detention will lie. We recognize the rule that a court without equitable powers has no jurisdiction in an action in forcible entry and detention where the defendant has a contract of purchase which does not provide for a forfeiture and the right of re-entry and repossession by the landlord on conditions broken, but we are of the opinion that this is not a contract for the purchase of real estate, but is only a contract to enter into a lease containing an option to purchase. It conveyed no part of the real estate to the defendant and no interest could be acquired until the exercise of the option. The defendant having defaulted according to the petition, never acquired the right to obtain a lease with the option to purchase. Where there has been a breach of material and vital provisions of the contract by one party, the other party thereto may either treat the contract as terminated and rescind it and pursue the remedy that such rescission entitles him to, or he may, sue for damages for a breach of the contract. Buschmeyer v. Machinery Company, 7 Oh Ap 202. He has an election whether to regard the contract as rescinded or bring an action to recover for its breach. Wilson v. Hayden, 30 Oh St 365. Rescission may obtain in equity where there is no adequate remedy at law, but in other cases the party aggrieved may himself rescind and recover damages. Taylor v. Brown, 92 Oh St 287. In Farley v. Railroad Company, 24 C. C. (N. S.) 12, the Court held, among other things:

“Where one of the parties to an agreement of settlement^ has repudiated an integral part of it, and the other party has thereupon elected to disavow the whole of it with an offer to restore the status quo ante, the rescission is an accomplished fact, and requires no judicial declaration of the result thereby accomplished.”

If the plaintiff had rescinded and offered to restore all advances made by the defendant as alleged in the petition, he would be entitled to recover from the defendant all that the defendant had received from him thereunder. Among these benefits was the possession of the premises. 9 O. Jur. 596-597.

It is our conclusion that the averments of the petition contain nothing that require the intervention of a court of equity and that jurisdiction is conferred upon the Municipal Court by §1558-51-(1) and (8) GC.

It is also urged that the Court erred in denying the defendant the right to file an answer and cross-petition. We do not find, however, that the record supports this conclusion. Judge Matthias by entry of May 25, 1948, merely stated that an answer was not required. It was so held in the case of Schmidt v. Hummell, 81 Oh Ap 167. We find that there is sufficient evidence to support the conclusion of the trial Court and it therefore cannot be said that the judgment is against the manifest weight of the evidence. We find no error in the record and the judgment is affirmed.

WISEMAN, PJ, and HORNBECK, J, concur.

ON APPLICATION FOR REHEARING

No. 4219. Decided February 18, 1949.

By THE COURT.

The application for rehearing is denied.

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


author: By SLOCUM, J.

text:
    WALKER v. WALKER.
    Common Pleas Court, Lake County.
    No. 21725.
    Decided March 16, 1948
    Murray N Goodrich, Painesville, for plaintiff.
    Charles P. Baker, Jr., Painesville, for defendant.
   OPINION

By SLOCUM, J.

The plaintiff filed an action for divorce against his wife setting forth in the petition that the parties were married on July 27, 1917, at Cleveland, Ohio, and that three children were born as the issue of the marriage, to wit: Mrs. Lois Emerson, age 28 years and married; Jean Dutton, age 24 years and married; and Lester L. Walker, age 23 years and single. He further alleged that he had always been a dutiful husband, that he was 69 years of age, his wife about 60 years old, and that he was the owner of a Plymouth automobile, and she the owner of some real estate. He prayed for divorce and a share of said property.

The defendant in her answer admitted the marriage, birth of the children, and the ownership of the property, and in her cross-petition alleged that her husband was receiving three pensions; a Spanish American War Pension, a railroad retirement pension, and a social security pension totaling some $160 a month. The plaintiff’s reply merely denied the allegations of the cross-petition which were not admissions of the allegations of the petition.

When the plaintiff had submitted all his evidence and some of the defendant’s witnesses had testified out of order, with the consent of counsel, apparently the plaintiff thought the case was not shaping up in his favor as his counsel thereupon withdrew the petition and moved for a dismissal of the cross-petition on the ground that the parties were first cousins and therefore not legally married. The Court reserved ruling on this motion, it being admitted by the parties that they were first cousins, and heard the balance of the defendant’s testimony and rebuttal testimony by the plaintiff himself.

The evidence showed that the defendant inherited the real estate described in the petition and cross-petition, that it had been improved during the marriage and that plaintiff’s pensions totaled $175 per month or more. The son and daughter testified on behalf of the mother and against the father. It also showed that the parties secured a marriage license in Cleveland and were married there when he was about 39 years old and she about 30 years of age. It tended to show that the defendant was a long suffering woman, a good and economical housekeeper, and a loving mother to their three children through the years of abuse by her husband. He was, until the past five years, a heavy drinking man, who on occasions hurled such missiles as a coffee cup and a can of milk at her, and on one occasion hit her in the lip with a brush so that it was necessary to have four stitches taken. He also threatened her with a headhunter’s knife, a souvenir of his experience in the Spanish War. In 1942 he was convicted of driving while under the influence of intoxicating liquor and his license was suspended. In the past seven years, his exceedingly generous nature induced him to buy his wife a bathrobe, a hat, and a pair of shoes. Apparently this was all he thought she deserved after he kicked her out of his bed some seven or eight years ago. Even while the divorce was in the process of being heard, he went to the Painesville Post Office where his son was employed and caused him trouble and embarrassment over the family difficulties.

With this evidence in mind, it is inconceivable to the Court that this marriage can be declared void and that this erstwhile plaintiff who has a moderate pension and admitted that he would be able to go back to work can through this contemptible attempt to declare the marriage void, escape the obligation to give some support to his wife.

Sec 11181 GC, provides who may contract matrimony as follows: “Male persons of the age of eighteen years, and female persons of the age of sixteen years, not nearer of kin than second cousins, and not having a husband or wife living, may be joined in marriage.”

This Statute does not declare the marriage of first cousins void.

Sec 13023. GC, makes a felony of cohabitation between persons of nearer kin by consanguinity or affinity than first cousins. It therefore does not make it a crime for first cousins to live together. Common law marriage is and has been recognized for many years in Ohio as a legal marriage. Certainly these parties, as the evidence well showed, have gone through all the actions through may years to show a common law marriage.

The Third Edition of Keezer Marriage and Divorce, Section 217 states: “Generally marriages within the prohibited degrees of relationship are voidable and not void unless expressly otherwise by statute. Such marriages are subject to collateral attack, only where held to be void and not where they are merely voidable and thus subject to an action to annul.”

A distinction has been very definitely drawn between marriages of cousins from those of closer relationships where the relation constitutes a felony. L. R. A. 1916C, pages 727 and 728 state as follows: “So, where the statutes prohibit marriages between certain relatives, and provides that, in cases of doubt, action may be instituted to determine the validity of a marriage, it has been held that marriages within the prohibited degree of consanguinity are not void, but are voidable only.”

Lamneck Ohio Divorce and Alimony, Section 173, page 200, par. 13 states: “Persons nearer of kin than second cousins cannot be licensed to marry in Ohio, but due to the fact that there is no provision in Ohio which renders such a marriage void, it is merely voidable during the lifetime of the parties at the option of either.”

In the case of Evans v. Reynolds, 32 Oh St 163, gives the rule that a marriage solemnized in due form is presumed lawful until some enactment which annuls it is produced and proved by those who deny its validity.

The plaintiff based his claim that the marriage of cousins is void largely on the case of Heyse v. Michalske, 6 Ohio Supp. 33, 31 Abs 484. This case was decided by the Probate Court of Cuyahoga County and a very careful and able opinion was rendered by Judge Brewer. The syllabus of the case reads as follows: “A marriage between an uncle and niece in Ohio is void ab initio and can be collaterally attacked, though both parties are dead.”

However, it should be noted that in this case, the marriage was between an uncle and niece and that none of the cases cited in it involved a marriage between cousins. Also the court apparently based its decision largely on the fact that a marriage between an uncle and a niece or co-habitation between the two would amount to a felony.

Judge Vickery in the case of Slovenian M. Benefit Ass’n v. Knafelj, 36 Oh Ap 562, on page 565 of the opinion, 173 N. E. 630, 631, gives the following rather interesting dictum: “It is true that, under the laws of Ohio, if she were his first cousin he could not marry her; but they could go to the state of Michigan, or the state of Georgia, and perhaps many other states in the United States, and intermarry, and then come right back into Ohio and the marriage would be legal.”

The erst-while plaintiff by dismissing his petition apparently seeks the result of an annulment of the marriage which is really an action in equity, Waymire v. Jettmore, 22 Oh St 27, and therefore the principles of equity should apply. One of these well known principles is:

“He who comes into equity must come with clean hands.” Certainly the hands of this plaintiff are far from clean. This is particularly true where children are involved. The court in the case of Rooney v. Rooney, 54 N. J. Eq. 231, 34 A. 682, 683, held in part as follows: “Counsel for defendant took the further ground that, admitting the first marriage, and the continued life of the first wife, yet the complainant procured the defendant to marry him by practicing upon her a fraud so gross as to close against him the door of a court of equity. It is hardly necessary to cite authority for the position that a complainant who comes into court under the circumstances above stated, and asks a decree of nullity, the result of which is to declare one whom he has sworn to love and cherish as a wife to be no more than a concubine, and her offspring, the fruit of the unlawful communion (born pending the suit), a bastard, must prove his case with the utmost strictness. The same rule applies in such a case on an indictment for bigamy. The court in such cases is bound to act as the guardian of the helpless infant, and watch its rights and interests with jealous care.”

The Court is of the further opinion that even if this marriage were to be declared void that still this plaintiff could not attain his apparent wish to escape all further support of his wife and a division of property rights. In this regard 35 Amer. Jur. Par. 53, page 216 states as follows: “It is a general rule that when a woman in good faith enters into a marriage with a man who is incapable of contracting marriage because of some impediment, or when both of the parties enter into a void marriage in good faith, the woman is entitled to a division of the property accumulated by the joint efforts of the parties during their relationship, and on an annulment of a marriage the Courts usually assume jurisdictions to make an equitable division and settlement of the property acquired during cohabitation of the parties, either by way of a division of the property or an allowance to the wife in the nature of alimony, at least, where she has lived as the wife of the other party in good faith. * * *”

Therefore, the Court feels that since these .parties obtained a license to marry, were married, have lived together as husband and wife for some thirty years, raised three children who in turn have had children. that the elements of at least a common law marriage have been fully established and that the evidence showed that the defendant is entitled to a divorce on her answer and cross-petition on the grounds of gross neglect of duty and extreme cruelty. She should be awarded the real estate which she has inherited together with the furniture in the house, and the sum of $10 a week for her support as well as $150 for her expense for the prosecution of this action.

Prevailing counsel will therefore draw a journal entry in accordance with this opinion and submit the same to opposing counsel and the Court for approval, noting proper exceptions.