author: By KAUFMAN, District Judge.

text:
    SOYA PROCESSING CO. v. SIROTA et.
    United States District Court S. D. New York.
    Decided April 15, 1952.

      Hinds, Wight & Schrauff, Roger Hinds, New York City, Brooks W. MacCracken, Cleveland, of counsel, for plaintiff.
    Baer, Marks, Friedman, Berliner & Klein, Donald Marks, New York City, of counsel, for defendants, Sirota.
   OPINION

By KAUFMAN, District Judge.

This adjudication grows out of an action which commenced when plaintiff filed a complaint asking for a declaratory judgment that plaintiff has not entered into any contract with defendants for the sale of soy bean oil and has not contracted to settle any controversies with defendants by arbitration, and for a temporary and permanent injunction restraining defendants from proceeding further under a demand for arbitration made by them upon plaintiff.

Defendants pleaded, in substance, a general denial of plaintiff’s allegations, and, as a defense and counterclaim, declared that plaintiff had made two contracts for the sale of soy bean oil to defendants of $29,737.50. Plaintiff replied with a general denial and the defense of the statute of frauds.

Upon agreement of the parties and by order of this Court the matter was referred to a Special Master pursuant to Rule 53 of the Federal Rules of Civil Procedure, 28 U. S. C. A. By stipulation pursuant to subdivision (e) (4) of Rule 53, the Special Master’s findings are final with respect to the factual issues between the parties.

The Special Master heard and reheard both parties and has filed his Report, dated September 13, 1951, and a Supplement thereto, dated January 8, 1952, the Supplement being responsive to the objections raised by the parties to the September 13, 1951 Report and the additional argument on said objections.

Plaintiff has now moved this Court to confirm in part and overrule in part the two Reports of the Special Master and for a further order fixing the fee of the Special Master. The parties have raised their respective objections to the two Reports and, pursuant to Civil Rule 5 (g) of the Southern District of New York, the cause is now before this Court.

Two issues were before the Special Master by the order of this Court dated April 30, 1951:

(1) Whether on or about January 26, 1951 the contracts which are annexed to Exhibit B of the complaint as Exhibits A and B thereof, were entered into by Soya Processing Company and George Sirota & Sons.

(2) If it shall be determined that said contracts were entered into by said parties, whether the defendant partnership sustained damages by reason of plaintiff’s refusal to recognize and perform said contracts, and if so, the amount of said damages.

Upon the reference, the Special Master determined that the first transaction involved in the case resulted in an oral agreement but that the “confirmation” intended to be a memorandum of that prior oral agreement did not correctly state the terms of the agreement. (The Special Master also concluded that the confirmation did not constitute an independent written contract but was intended to be a confirmation of the prior oral agreement.) Having drawn this conclusion which defendants contest, the Special Master then held the first oral agreement unenforceable since it did not meet the requirements of the statute of frauds.

The Special Master’s conclusion of law in this connection rests upon his finding that the absence of any limitation as to direction of shipment, either east of Wooster or east of Decatur, was an omission of a material term of the written memorandum. I agree.

It is to this portion of the two Reports that defendants’ objections are addressed. As I understand their argument, they contend:

(1) The broker’s notes constituted written contracts and were not “mere memoranda” of oral agreements, but

(2) even if they were memoranda, the confirmation of the first transaction (the one found unenforcable by the Special Master) did not omit any material term of the agreement.

What I have called point (1) of that argument depends for its effectiveness on defendants’ contention that: “When an agreement is reduced to writing so that it can be called a written agreement, the Statute of Frauds cannot be urged as a bar to its enforceability.”

The point is urged upon the Court on the authority of In re Huxley, 1945, 294 N. Y. 146, 61 N. E. 2d 419, 169 A. L. R. 194. I do not find that case determinative of the issue before me. In dear language at page 149 of 294 N. Y., at page 420 of 61 N. E. 2d, the Huxley case noted that the broker’s confirmation there provided: “In the absence of such [formal! contract this memorandum represents the contract of the parties.” No such provision appears in the instant confirmation, and the Special Master’s finding that the confirmation here reads: “We, acting as brokers, confirm having made this day * * *• the following transaction” (emphasis supplied) stresses the confirmatory rather than contractual nature of the instant broker’s note.

Friedman & Co. v. Newman, 1931, 255 N. Y. 340, 174 N. E. 703, 73 A. L. R. 95, is more in point. It was there said at page 343 of 255 N. Y., at page 704 of 174 N. E.:

“The paper executed thereafter, denominated ‘confirmation of sale,’ was, as its name and form clearly indicate, merely intended as a memorandum of the oral contract. It is evidence of an oral contract previously made.”

The factual setting of the instant agreement — the absence of any Huxley-like language in the confirmation and the prevailing trade practice of striking oral bargains through the broker who thereafter prepares a confirmation or memorandum setting forth the terms of sale agreed upon orally— fortifies the conclusion that the confirmation was just that, and not a contract as defendants urge.

I am persuaded even less by defendants’ second argument: that even if this is a mere memorandum, the confirmation of the first transaction did not omit any material term of the agreement. The Special Master found that the absence of the term “For shipment east of Wooster” in the broker’s note of confirmation was an omission of a material term, and hence the statute of frauds makes that first transaction unenforceable. New York Personal Property Law, McK. Consol. Laws, c. 41, §85; Poel v. Brunswick-Balke-Collender Co., 1915, 216 N. Y. 310, at page 314, 110 N. E. 619, at page 620, in which Seabury, J., held:

“It is not sufficient that the note or memorandum may express the terms of a contract. It is essential that it shall completely evidence the contract which the parties made.” (Emphasis supplied.)

Defendants urge that the Special Master’s finding that the term “For shipment east of Wooster” is material should be rejected because they conjecture that the practical result of the omission would be insignificant. The Special Master, on the other hand, rejects this conclusion and finds that the omission is most significant, since the term deals with a subject which could affect the purchase price by 2.6%. Implicit in this whole argument is defendants’ admission that what the Special Master suggests could in fact occur but that defendants’ version should nevertheless be adopted because it is not likely that it will occur. The Special Master’s findings of fact that the purchase price could be affected by 2.6% thus resulting in a diminution of that price to the seller of $4,500, must be accepted by this Court. The legal conclusion of materiality is based squarely on a finding of fact which I accept as given.

Defendants’ second level of argument is thát the instrument issued by plaintiff on February 20, 1951, and delivered to defendants, was a memorandum covering both “contracts” and sufficient to satisfy the statute of frauds. 678 9The Special Master’s response to this argument is clear and appropriate, and I accept it as dispositive. The proposed contract tendered on that date was, as he found:

“* * * never 4 * * a binding agreement because it was not accepted according to its terms by the buyer. Nor is it a memorandum of the oral agreement since it does not conform to the terms of that agreement. Indeed the buyer itself rejected the tendered contract on this very ground.”

I hold that each and every objection raised by defendants to the Report and Supplemental Report of the Special Master is overruled.

Plaintiff’s objections to the two Reports raise thornier problems than any of those posed by defendants. Plaintiff’s disagreement with the Reports is essentially that the wrong rule of damages was applied to what was found by the Special Master to be plaintiff’s anticipatory breach of a binding contract arising out of the second transaction of January 26, 1951. It is to this argument and its ancillary features that I direct this portion of the opinion, for the other arguments raised by plaintiff do not seem to me to be meritorious. I believe that a fair paraphrase of plaintiff’s significant argument is the following:

(1) No agreement was ever reached between the parties.

(2) The second memorandum did not fulfill the requirements of the statute of frauds so that even if there was an agreement it is unenforceable as a matter of law.

(3) But even if the agreement is enforceable, and even if it was anticipatorily breached, the measure of damages applicable thereto was incorrectly applied because:

(a) New York, not Ohio, law applies.

(b) Subdivision 3, not subdivision 2 of Section 67, Uniform Sales Act applies. (Section 148 N. Y. Personal Property Law.)

(c) There were no special circumstances.

I shall attempt to answer these arguments seriatim.

The parties did reach an agreement, and this conclusion is adequately supported by the Special Master’s findings of fact.

Measured by exactly the same standards from which I hold the first confirmation did not meet the statute of fraud’s requirements, I here hold that the second confirmation did fulfill the statute. The distinction between the two memoranda is clear and it fortifies my conclusion on the first transaction: the point of shipment provision was absent from the first confirmation and present in the second. The second confirmation embodies every provision necessary to make the oral agreement enforceable under the statute of frauds.

The Special Master’s resolution of the problem of law before him rests initially on his recognition that there is a conflict of law problem arising out of the second transaction. On principle, this is most important. Without it, every succeeding step in the legal logic is one more step away from Erie R. Co. v. Tompkins, 1938, 304 U. S. 64, 58 S. Ct. 817, 82 L. Ed. 1188. The Erie holding and its refinement in Klaxon Co. v. Stentor Electric Mfg. Co., 1941, 313 U. S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477, compel this Court to apply, not necessarily the New York rule of damages, but necessarily the rule of damages which the New York courts would apply. The distinction is important to the integrity of the Erie policy.

As noted by the Special Master, the parties have assumed that since the contract was made in New York, New York law applies. But he finds that since the law of damages is the major problem here, the law of the place of performance and not the law of the place of the making of the contract obtains. Restatement of Law of Conflict of Laws, Section 413 and .New York Annotations thereto; Dougherty v. Equitable Life Assurance Society, 1934, 266 N. Y. 71, 80, 193 N. E. 897. Section 413 states the rule applied by the Special Master and the New York Annotations suggest that this is in accord with the majority of New York decisions. The Dougherty case affirms this principle, certainly in obiter dicta, although the precise circumstances of that case — an explicit stipulation in the contract of the applicable law thereto — could conceivably have been as persuasive a practical reason for that holding as the general principle itself which the case states. Nonetheless, the principle is a fair statement of the New York law on the conflict. Cf., Revillon v. Demme, 1920, 114 Misc. 1, 185 N. Y. S. 443, which appears to be an aberration from New York holdings on the problem.

The finding of the Special Master that Ohio was the place of performance is supported very substantially by the facts and by the reasoning he applied to them.

Since Ohio was the place of performance and New York law holds that in assessing damages the law of the place of performance controls, we must turn to Ohio law for rules governing the application of damages in the anticipatory breách.

The applicable Ohio statute is §8447 GC, Page’s Ohio General Code, Annotated. Conceding arguendo that Ohio Law applies, plaintiff alleges that the applicable subdivision of the Section is subdivision 3, not subdivision 2. Subdivision 3 provides:

“When there is an available market for the goods in question, the measure of damages, in the absence of special circumstances showing proximate damages of a greater amount, is the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered, or, if no time was fixed, then at the time of the refusal to deliver.”

The Special Master applied subdivision 2, which provides:

“The measure of damages is the loss directly and naturally resulting, in the ordinary course of events, from the seller’s breach of contract.”

Ohio law yields no authoritative statement of the exact distinction between and intent of these two sections. Sec. 8454 GC, Page’s Ohio General Code. Annotated seems to offer an intellectual oasis, which turns out to be but a mirage. It provides that the Chapter within which §8447 GC is located:

“shall be so interpreted and construed, if possible, as to effectuate its general purpose to make uniform the law of those states which enact it.”

I find one Ohio case which apparently recognized the policy of applying the Uniform Sales Act uniformly with other states where the Act is operative. The problem there, however, is not involved in this case. Hutchinson v. Renner, 1928, 28 Oh Ap 22, 162 N. E. 451.

Resort to the Annotated Uniform Sales Act is equally fruitless. 1-A U. L, A. Section 74. It thus appears that aid in distinguishing between the two subdivisions in question must be sought elsewhere.

The Special Master relies heavily upon Renner Co. v. McNeff Bros., 6 Cir., 1939, 102 F. 2d 664, 14 O. O. 373. I believe his position is well taken. «There as here a contract right was involved. Speaking for the Court, Judge Allen said at page 667 of 102 F. 2d:

“Where, as here, there is an established market for the purchase and sale of such contract rights, the value of such rights at the time of breach is evidence of damage at the time of breach.”

My reliance upon the Renner case is, I believe, consonant with the spirit and intent of the policy formulated by Erie R. Co. v. Tompkins, supra, and refined by Klaxon Co. v. Stentor Electric Mfg. Co., supra.

Since resort to the law as propounded by the state courts of Ohio yields no authoritative statement, reference to the decisions of the Court of Appeals of the Sixth Circuit would appear to be the next most productive source for this Court to turn to. The jurisdiction of that Court includes Federal District Courts sitting in Ohio, and it may be presumed that the Court of Appeals is learned in matters involving Ohio law, and conversant with the manner in which Ohio state courts would apply Ohio law.

In view of the interpretation the Renner, case places upon the measure of damages provision of the Uniform Sales Act in a situation such as the instant one, I believe that a rational construction and comparison of the subdivisions lead to the conclusion that they are not mutually exclusive. Subdivision 2 is a statement of the essential principle upon which the buyer is to recover. Subdivision 3 is but a special application of that principle, namely, the situation where there is an available market for the goods in question and there are no special circumstances. The language of the Renner case itself strengthens this conclusion. Judge Allen stated at page 667 of 102 F. 2d, page 374 of 14 O. O.:

“Appellant relies on §8444 GC, which in paragraph. (3) states the rule of damages contended to be applicable, but qualifies the rule by adding the words ‘in the absence of special circumstances.’ Here there are special circumstances which place the case outside of the strict rule of the statute. It was necessary for appellee, in order to insure delivery under the contracts, to contract with growers of hops well in advance of the harvesting and at a price which might be different from the market price at the time appellee was required to deliver the hops to appellant. Since §8444 GC, recognizes the possible existence of special circumstances as a reason for varying the general rule the application of the measure of damages made by the District Court was not in violation of the statute.”

In the instant case there are, as the Special Master found, the special circumstances referred to in subdivision 3 of §8447 GC, hence we are thrown back to subdivision 2 for the applicable rule. The contrary conclusion, which is the one urged by plaintiff, would lead me to apply a rule which that rule itself makes explicitly inapplicable in this situation of special circumstances.

Obiter, I note that even if New York law applied in this case, I do not agree with plaintiff that the cases of Segall v. Finlay, 1927, 245 N. Y. 61, 156 N. E. 97, and Dimon Corporation v. Federal Sugar Refining Co., 1925, 215 App Div. 140, 213 N. Y. S. 106 would control. The special circumstances present here were absent in those situations, hence those courts applied subdivision 3 of Section 148, New York Personal Property Law.

I hold that each and every objection made by the parties to the Report and Supplemental Report of the Special Master is overruled.

The Report and Supplemental Report of the Special Master are confirmed.

I come now to the fixing of the Special Master’s fee, and the determination of the party to pay such fee as requested in plaintiff’s application to confirm in part and overrule in part the Report and Supplement thereto of the Special Master.

Being mindful of the Special Master’s affidavit of services dated February 13, 1952, setting forth the time consumed by him, and appreciating the importance of the matter, the total amount involved as well as the standing of the Special Master at the bar and the thoroughness of his services, I fix the sum of $2,500 as his fee, I direct that one-half the fee be paid by plaintiff and one-half be paid by defendants within ten days from the date of the order hereon. In the event one of the parties does not pay its apportioned share, the other party promptly shall make said payment and shall include it as taxable costs against the non-paying party.

Settle order.

      . Civil Rule 5g provides: “A motion to confirm or reject, in whole, or in part, a report of a master shall be heard by the judge appointing such master.”

      . P. 20, Defendants’ Memorandum on motion to confirm in part and overrule in part the Report of the Special Master.

      . Ibid., P. 32 et seq.

      . See Order of this Court filed April 30, 1951.

      . Ibid., P. 28 et seq.

      . P. 2, Supplemental Report of the Special Master.

      . P. 26 et seq. Plaintiff’s memorandum on objections to Report and Supplemental Report of Special Master.

      . No. 13 in both Plaintiff’s “Objections to Report of Special Master” (filed September 27, 1951) and in Plaintiff’s “Objections to Supplemental Report of Special Master” (filed January 19, 1952).

      . P. 15, Plaintiff’s memorandum on Objections to Report and Supplemental Report of Special Master.

      . Ibid., P. 5 et seq.

      . Ibid., P. 7 et seq.

      . The identical provision is to be found in Section 67, Uniform Sales Act; Section 148, New York Personal Property Law.

      . The section is a provision in the Uniform Sales Act which states the policy of uniform application and is set out in the text of this opinion.

      . Aside from its invalid contention that New York law applies in this case, plaintiff urges that the Renner case is distinguishable from the instant situation because there the breach was committed by the buyer while here it was committed by the seller. All things considered, plaintiff is urging a distinction without a difference. The provision involved in the Renner case was section 8444, General Code of Ohio. Juxtaposition of that section with section 8447 here involved indicates that the respective subdivisions 2 and 3 of each of those statutes are essentially the same as far as the instant problem is concerned. An interpretation of section 8444 is most helpful in construing section 8447, and it is for this reason that so much stress is put upon the Renner case.


source: Caselaw Access Project

author: By THE COURT:

license: Public Domain

text:
    DOWELL, Plaintiff-Appellant, v. DICKENSHEETS, Defendant-Appellee.
    Ohio Appeals, Second District, Shelby County.
    No. 160.
    Decided June 30, 1951.
    Roland E. Beery, Sidney, for plaintiff-appellant.
    J. H. DeWeese, Troy, for defendant-appellee.
   OPINION

By THE COURT:

Submitted on motion of defendant-appellee to affirm the judgment on the ground that the assignments of error filed by plaintiff-appellant cannot be considered without the benefit of a bill of exceptions, which was not filed; that a motion for new trial was not filed in the trial court, and that the record before this Court does not contain any evidence to be considered by this Court.

The record supports the contention of defendant-appellee. The sole assignment of error is that: “The decision and judgment of the trial court is not sustained by sufficient evidence and is contrary to law.” Obviously a bill of exceptions would be required to exemplify the error assigned. The written opinion of the trial court cannot be considered by the reviewing court, since it is no substitute for a bill of exceptions and is not in the form of a separate finding of fact and conclusions of law.

Judgment affirmed.

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


author: By KIRK, J.

text:
    MURPHY et, Plaintiffs, v. PORTER et, Defendants.
    Common Pleas Court, Highland County.
    No. 16458.
    Decided September 24, 1952.

      H. S. Pulse, Lynchburg, Wilson & Wilson, Hillsboro, for plaintiffs.
    Charles H. Wilson, West Union, for defendants.
    (KIRK, J, of Clinton County, sitting by assignment in Highland County.
   OPINION

By KIRK, J.

The plaintiffs, Herman E. Murphy and Hazel Murphy, husband and wife, as buyers under a contract for the sale and purchase of a farm, seek specific performance of the contract from the sellers, the defendants A. R. Porter and Ollie Porter, husband and wife, and their son, Donald Porter. The petition as amended also prays for an accounting of the rents, issues and profits from the farm from February 1, 1951, with judgment therefor in favor of the plaintiffs and for other relief.

Evidence adduced on behalf of the plaintiffs in support of similar allegations in the petition as amended, established the following facts:

The defendants being the owners of a 314 plus acre farm in Highland County, Ohio, upon which they were residing, in October of 1950 listed the same for sale with one A. J. White-side, a real estate broker of Wilmington, Ohio. Whiteside advertised the farm as for sale in a newspaper. Responding to the advertisement, the plaintiff Herman E. Murphy, a resident of Wilmington, Ohio, was shown the farm by Whiteside. On November 1, 1950, at the farm, Whiteside prepared a contract for the sale and purchase of the farm, using a printed form and filling in the blanks in longhand. The contract at that time was signed by Mr. and Mrs. Murphy and by Mr. and Mrs. Porter. Donald Porter signed the written agreement subsequently at Whiteside’s office in Wilmington.

The contract (Plaintiffs’ Exhibit A) is dated November 1, 1950, and in form is an offer by the plaintiffs to purchase through Whiteside as agent, the land described in general language on the following terms written on the form in longhand:

“Thirty four Thousand Dollars Twenty thousand cash and loan of Twelve Thousand Loan to be given to A. R. Porter for three years with Privalege Paying before Date of Maturity Interest to be Paid annually 5% Interest. Payment to be Paid in full January 24, 1951 Possession February 1st 1951 on or about”

Printed provisions provide for conveyance of clear title by warranty deed, no date for delivery being specified, with seller to pay taxes then a lien. The form also contains the following printed provisions: “This transcation shall be closed within ten days of acceptance thereof or as soon thereafter as possible.”

Another paragraph of the form is as follows: “I hereby deposit with you (referring to the agent) $2500.00 (written in) earnest money to be held by you in trust until this proposal, or any modification thereof which I may approve, is accepted, and all conditions fulfilled. If not accepted, the deposit shall be returned in full. It is understood and agreed by all parties concerned that the earnest money deposited herein shall be a part of and included in the full purchase price as mentioned above.”

The acceptance portion of the contract, signed by the defendants is dated November 1, 1950, accepts the proposal and agrees to pay the agent a commission of $1000.00 to be withheld from the earnest money if sellers fail to perform within 30 days of acceptance.

At the time of the execution of the contract, the plaintiff Herman E. Murphy gave a check to Whiteside in the amount of $2500.00 drawn on The First National Bank of Wilmington, Ohio, payable to the order of “Whiteside Realty Company” containing the following notation on its face: “Down payment on A. R. Porter farm. To be deposit in trust as per contract.” (Plaintiffs’ Exhibit B). The clerk cleared the bank November 2, 1951. Its proceeds were deposited by White-side in an account in that bank.

Whiteside died in December of 1950, a resident of Clinton County, Ohio. His son Grant T. Whiteside, qualified as his administrator. After some delay, the administrator got a department of taxation release of the $2500.00 on January 27, 1951, when it was transferred to his account as administrator at the bank. »

On January 2, 1951, A. R. Porter swore to an affidavit of claim against the estate of Whiteside for $2500.00 (Plaintiffs’ Exhibit C). At some later date, not established by the evidence, it was presented to the administrator by whom it was rejected on a date not established by the evidence. At a date not fixed by the evidence, Porter sued the administrator on the claim in the Common Pleas Court of Clinton County, Ohio, where the cause is still pending.

Meanwhile during November of 1950 and in January of 1951, prior to the 25th of that month, with the consent of the Porters, the Murphys moved certain machinery, feed, hog boxes and equipment on to the farm, making several trips for that purpose.

Following the execution of the agreement, the Porters, father and son, made several trips to Kentucky, where they had formerly lived, looking for another farm.

On January 1, 1951, Herman Murphy went to the farm and advised the Porters of Whiteside’s death. The possibility of a delay in closing on this account was discussed. Murphy then told the Porters that he had sold a farm which he owned and that he would be ready to close with them at any time after January 8, 1951. The Porters expressed approval.

At about this time a pipe burst on the farm and by agreement between the parties it was replaced, the Porters paying for the pipe and the Murphys for the labor.

On January 6, 1951, Herman Murphy returned to the farm and talked with Mrs. Porter who told him that her husband and son were in Kentucky. He advised Mrs. Porter that he had concluded the sale of his farm and would be ready to' settle at any time the deed from the Porters was ready for delivery.

On January 15, 1951, Grant Whiteside went to the Porter farm and talked with Mrs. Porter, A. R. Porter and Donald Porter not being present, and asked her for the old deed so that he could have a new one prepared for delivery to the Murphys. She made no reply to this request.

On January 18th, Whiteside made another trip to the farm, not having received the old deed, but found only the Porters’ daughter there. He did not get the old deed.

On January 25, 1951, Franklin Murphy, son of the plaintiffs, went to the Porter farm and discussed with Donald Porter the matter of a purchase of some of the chattel property belonging to the Porters. Nothing was said about the closing of the farm transaction by the Porters on this occasion.

On January 30, 1951, Grant Whiteside again went to the farm where he found Mr. and Mrs. Porter as well as Donald. They told him that the deed was not ready. Whiteside said that the $2500.00 had been released and that he was ready to apply it on the purchase price and the Porters then agreed to go to Hillsboro on February 1, 1951, to have the deed prepared and to close the transaction. No objection was made then that the date for closing had passed. No demand was made at that time for the $2500.00.

Whiteside advised the plaintiffs of the time and place fixed for closing.

On January 31, 1951, Franklin Murphy made another trip to the farm with more personal property, but was told by Donald Porter that the “deal was off” and that he could not leave the personal property.

On the morning of February 1, 1951, Mr. and Mrs. Murphy went to the Porter farm and Herman Murphy told the Porters that they were prepared to close. A. R. Porter said that they were too late, that the contract had expired, “you didn’t bring me the. money” and that he would not let them have the farm. Some discussion followed between them, the Murphys contending that they were prepared to pay and demanding that the Porters go through with their part of the bargain. The Porters admitted their agreement to close on February 1st, made with Whiteside, but refused to do anything more about the transaction. The Murphys admit that they did not formally offer the Porters any money or any check on this occasion following the Porters’ refusal to go ahead with the transaction.

After the Murphys left, Grant Whiteside came to the Porter farm. The Porters told him that they were not going through with the transaction but gave no reason. No demand was made by the Porters for the $2500.00 or any part of it.

Being called by the plaintiffs as on cross examination, A. R. Porter, while not being sure as to the various dates, did not deny any of the facts above recited. He admitted being told by his daughter that the Murphys had said they would be ready to close any time after January 8th and to send the deed to Wilmington. He admitted that he did not do this and never had had a new deed prepared for delivery to the Murphys, his explanation being that he didn’t think he should do anything about a deed until he got his money, whether he was referring to the $2500.00 earnest money or the balance of the purchase price is not clear.

He also admitted agreeing on January 31st to close the transaction on February 1st, but explains this by saying that he had not read the contract since its execution at that time and had in mind that the contract provided for closing on February 1st and that later on reading it again, he saw that the contract “expired on January 25th”. He admitted that he was not expecting to close on January 25th; that he did not expect the Murphys on that date and did not recall whether or not he was at home on that date. He further admitted that he and his family were sorry that they had made the contract after they had done so.

Subsequent to February 1, 1951, the Porters entered into an agreement to sell the farm to another party for $35,000.00, subject to their prevailing in this suit. That party has been in possession of the farm as a tenant for some time.

A bank statement such as routinely and periodically supplied by The First National Bank of Wilmington, Ohio, to its customers was received in evidence as Plaintiffs’ Exhibit D. It shows that Herman E. Murphy had a balance in excess of $23,000.00 continuously from January 5th until February 8th, 1951.

On cross examination, the plaintiff Herman E. Murphy admitted that at no time before, on or subsequent to January 25, 1951, had he actually tendered the balance of the purchase price in cash to the Porters, nor tendered a purchase money mortgage, except as might have been inferred from his statement to them of being able and ready to close at any time after January 8th and his statements made on February 1st, to the effect that he had come to conclude the transaction.

At the close of plaintiffs’ case, the defendants orally demurred to the evidence, moved for judgment in their favor and for a dismissal of the petition as amended, contending (1) that time was of the essence of the agreement and that the agreement provided for payment of the balance on January 25, 1951, (2) that there was no tender by the plaintiffs and that a tender must be made before an^ action can be maintained on a contract such as here and (3) that if there was an agreement made on January 30th to close on February 1st, it was without consideration and violated the statute of frauds as not being in writing.

These contentions have been fully argued orally and by brief by counsel on both sides with numerous citations of authority, furnished the court.

Is time to be considered of the essence of this agreement in this shit in equity for specific performance? It is not made so by express provision in the contract. The hand written provisions of the contract provide “Payment to Be Paid in full January 25, 1951 Possession February 1st 1951 on or about.” The printed portion of the contract form provides that “This transaction shall be closed within ten days of acceptance thereof or as soon thereafter as possible.” No time is fixed for delivery of the deed. There is no provision as to time for forfeiture of the down payment of $2500.00.

Prior to January 31st, 1951, there is nothing in the conduct of the parties to indicate that either side considered time to be of the essence. The buyers offered to pay at any time after January 8th. The sellers on January 30th consented to close on February 1st — the day fixed for the giving of possession. The sellers now say that on January 30th they were under the impression that the contract provided for a closing on February 1st — further evidence that the sellers were not concerned about payment on January 25th.

Undoubtedly a contributing factor in the delay of time for closing was the death of Whiteside — the sellers’ agent. The $2500.00 down payment money was not available in the hands of the administrator until January 27th because of the necessity for procuring a tax release. Surely this delay should not be permitted to be prejudicial to the buyers.

The court can only infer that the Porters were not concerned about time until January 30th, when after agreeing to close on February 1st, the contract was re-read and they discovered that January 25th was fixed for payment. They were sorry that they had made the contract by this time and were looking for some excuse to avoid it.

“Time of performance is not of the essence of a contract unless made so by its terms or by the act of the parties. . .” Syllabus 4, Hubbard v. Norton, 28 Oh St 116.

“Ordinarily in equity, time is not of the essence of a contract unless it has been made so by the express terms of the contract or has been so treated by the parties, or is necessarily so from the nature of the contract.” Brock v. Hedy, 13 Oh St 306.

A somewhat exhaustive discussion of the subject of time of performance of contracts involving the sale of real property appears in the opinion of the U. S. Circuit Court for Ohio, in Longworth v. Taylor, 1 O. F. D. 643. At page 646 of the report appears the following language:

“At law, time is always an essential part of a contract; but in chancery the court consider it in connection with the circumstances of the case. The rule at law is so inflexible as not to admit of any excuse, however strong, for a failure to perform the contract at the time fixed. But it is otherwise in chancery. Not that chancery disregards time as immaterial, but if the party can show that he has been prevented by inevitable accident or by any justifiable excuse from performing his part of the contract at the time stipulated, and the other party has suffered no material injury by the delay, the court will not withhold its aid.” and again at page 648:

“In looking to the facts of the case under consideration it appears that time was not made of the essence of the contract. The times at which the payments were to be made and the period within which the deed was to be executed were fixed in the contract; but there was no expression that a failure in any of these should avoid the agreement.”

The subject is treated in Williston on Contracts, Revised Edition by Williston and Thompson, 1936, Volume 3, as follows:

Paragraph 845, page 2370. “The courts of equity in England and America have treated stipulations as to time as subsidiary and of comparatively little importance, unless either the language of the parties or the nature of the case imperatively indicate that the date of performance is vital. In courts of common law, however, and especially in mercantile contracts, it is held that time is of the essence of the contract.”

Paragraph 852, page 2384. “In contracts for the sale of land, equity has established the rule that unless expressly made so by the terms of the contract or by special circumstances, time is not essential.”

Page 2386. “The amount of delay which a court of equity will permit and still enforce the contract at suit of the party in fault will vary according to the equities of the particular case both extrinsic to the contract and involved in the contract itself.”

Paragraph 276, at page 406 of Volume 1 of the Restatement of the Law of contracts of the American Law Institute, reads in part as follows:

“RULES FOR DETERMINING MATERIALITY OF DELAY IN PERFORMANCE.

“In determining the materiality of delay in performance, the following rules are applicable.

(a) “Unless the nature of a contract is such as to make performance on the exact day agreed upon of vital importanee, or the contract in terms provides that it shall be so, failure by a promissor to perform his promise on the date stated in the promise does not discharge the duty of the other party

(d) “In contracts for the sale or purchase of land delay of one party must be greater in order to discharge the duty of the other party than in mercantile contracts.

(e) “In a suit for specific performance of a contract for the sale or purchase of land, considerable delay in tendering performance does not preclude enforcement of the contract where the delay can be compensated for by interest on the purchase money or otherwise, unless

(i) “the contract expressly states that performance at or within a given time is essential, or

(ii) “the nature of the contract, in view of the accompanying circumstances, is such that enforcement will work injustice.”

The following illustration is given on page 409:

“A agrees to sell, and B to buy Blackacre, for the price of $10,000, the transfer to be made on March 1. A tenders performance on March 1. B then states that he wishes to carry out the contract but has not the necessary price at the moment. A replies that unless immediate performance is made he will not carry out the contract. On the following April 1, B sues for specific performance, making an offer in his pleading to pay with interest the agreed price. The contract may be specifically enforced.”

The case at bar was filed February 6, 1951. In our case, that which was objected to by the defendants was a delay of seven days from January 25th until February 1st. There was a delay of only thirteen days between January 25th and the filing of the petition. The petition tendered the purchase price balance. As possession was not to be given under the contract until February 1st, we cannot see that the defendants suffered any material injury by the delay

The court concludes that time shall not be considered of the essence of the contract in this case.

The second branch of the demurrer and motion raises the question of tender.

“The general rule is that a party seeking specific performance of a contract must show performance on his part, yet there are clearly defined exceptions and one of them is that when the other party repudiates and makes it certain that he does not intend under any circumstances to comply, a showing of readiness and ability on the part of the complaining party to then and there perform communicated to the other party and accompanied with a demand of compliance by such other party is sufficient compliance without an actual formal tender.” Brewing Co. v. Maxwell, 78 Oh St 54.

“On case of renunciation or absolute and unconditional refusal to proceed with the contract on the part of one of the contracting parties, the law excuses the absence of tender on the part of the other party to perform, as a court of equity does not require idle acts. Sirillo v. Sabolovich 2 Abs 650.

“To the same effect see also Whitacre v. Hoffman, 50 Abs, 493 and Sandford v. Harbage, 15 C. C. (N. S.) 298.”

Here the buyers having gone to the home of the sellers at the time fixed for closing by the sellers, although differing from that provided for in the contract, and having announced their readiness to close the transaction were met with refusal by the sellers because “the time had expired.” The sellers did not complain because the offer to pay was by check. The only reason given by the sellers for their refusal to perform was that payment had not been made on January 25th.

Under the authorities above cited, the court concludes that no further act on the part of the buyers by way of a formal tender was required as a condition precedent to the right of the buyers to sue for specific performance. The court feels that the decision in the case of Domigan v. Domigan, 46 Oh Ap 542, relied upon by the defendants, is not in accordance with the weight of authority. In any event this court is not obligated to follow that decision since it was decided by the court of another judicial district.

Having decided that time is not to be considered of the essence of the contract under consideration and that the requirements of tender were satisfied by the buyers, the third branch of defendants’ demurrer and motion becomes moot. As buyers have acted within the time and in such manner as to justify a decree of specific performance in their favor on the original contract, it is unnecessary to decide whether the sellers’ agreement of January 30th to close on February 1st was supported by consideration or violated the statute of frauds.

Inasmuch as no evidence was offered as to the rents and profits of the farm since February 1, 1951, the court can make no accounting thereof. Presumably the farm has produced some rental since the defendants testified that it had been rented. And while in the ordinary situation in decreeing specific performance the court attempts to put the parties in the position which they would have been in had the contract been carried out, in this instance the court cannot decree the rents and profits to the plaintiffs, so it will not decree interest on the purchase money to the -defendants but will consider that the rents and profits offset the interest.

Counsel for the defendants having stated in open court that the defendants did not propose to offer evidence and would let the cause be decided on their demurrer and motion, it will be the decree of the court that the plaintiffs within ten days of the entry of the decree to be drawn hereunder pay to the clerk of this court $19,500.00 and deliver to the clerk their note dated as of the date of the journal entry, payable to the order of A. R. Porter in the amount of $12,000.00, due on or before at the option of the makers, three years from date bearing-interest at the rate of 5 per cent per annum, payable annually, and that contemporaneously with the delivery of a deed for the premises described in the petition, the plaintiffs execute a mortgage on said premises securing the payment of said note and deliver the same to the clerk. Or, at the option of the plaintiffs, they may instead of depositing said note, deposit with the clerk an additional $12,000.00.

It is the further decree of the court that within ten days of the journal entry to be drawn hereunder, the defendants execute and deposit with the clerk a proper warranty deed conveying the premises described in the fourth amended petition to the plaintiffs free and clear of all encumbrances, including the lien of taxes and assessments; that the defendants shall prior to the delivery of such deed to the clerk discharge such encumbrances, including the lien of taxes and assessments.

As soon as the parties have performed as hereinbefore ordered, the clerk shall deliver said deed to the plaintiffs and such payment money, whether all cash or part cash and part evidenced by note and mortgage, to the defendants.

Should either the plaintiffs or the defendants fail to comply with the order of the court as hereinbefore set out, on application and showing by the party not in default, the court will make an appropriate order to carry out its decree.

The plaintiffs shall recover their costs from the defendants.

An entry drawn in accordance herewith shall be prepared by counsel for the plaintiffs, submitted with copy to counsel for the defendants for approval as to form and then to the court.


author: By CROMER, J.

text:
    STATE, Plaintiff, v WHEELOCK, Defendant.
    Municipal Court, Piqua.
    No. 6225.
    Decided July 27, 1951.
    Bernard S. Keyt, Piqua, for the State of Ohio.
    Leo Bausman, William A. Haines, Troy, for defendant.
   OPINION

By CROMER, J.

On July 16, 1951, an affidavit was filed in this court against the defendant wherein he is charged with the offense of unlawfully operating a motor vehicle upon U. S.. Route No. 48, a public highway in Union Township in said (Miami) County, while under the influence of intoxicating liquor. (Sec. 6307-19 GC.) This affidavit is made by K. M. Fitzgivens, O. S. P. (Officer of the Ohio State Patrol).

At the time set for arraignment in this case, the following motion was filed in this Court:

“Now comes the defendant and moves the Court to dismiss the defendant because the Court does not have jurisdiction of the person of the defendant, for the following reasons:

“First. The defendant is a resident of Union Township, Miami County, Ohio.

“Second. The offense charged is a misdemeanor, and if any violation of law occurred, it occurred in the Township of Union.

“Third. There is a duly qualified and acting Justice of the Peace in said Township of Union.”

The above motion was filed before the arraignment of the defendant, who was free upon bond. The facts set forth in the motion are unverified.

The first ground of the motion is groundless because courts in criminal cases are not concerned with a defendant’s residence.

It is conceded that this court does have jurisdiction of a misdemeanor and of this particular offense which is covered by The Uniform Traffic Act. Therefore, the only question goes to this court’s jurisdiction over the person of the defendant, assuming the facts to be as stated in the motion. The motion does not admit that the affidavit was filed by an officer of the Ohio State Patrol. However, the affidavit itself shows this to be the case. This feature of the case is very important.

A question going to the jurisdiction over the defendant’s person must be raised at the earliest opportunity and this has been done. Failure to do this constitutes a waiver.

Thus, there is presented for decision the question whether or not the Piqua Municipal Court has jurisdiction over the person of the defendant for a misdemeanor alleged to have been committed in Union Township, Miami County, Ohio, there being a Justice of the Peace in Union Township, the affidavit charging the offense having been made by an officer of the Ohio State Patrol and the Piqua Municipal Court having replaced all the Justices of the Peace in only three of the twelve townships in Miami County, Ohio. This seems to state the problem fairly.

It would be easy to deny jurisdiction in this court and, thus, avoid the burden and responsibility of this increased volume of county-wide cases of a similar nature. We feel, however, that if we do have such jurisdiction, it is our duty to exercise it without regard to the amount of responsibility entailed or the income to be derived therefor. Having a full realization of the importance of this question, we shall endeavor to answer it according to our ability and with the assistance of diligent counsel.

In 113 Ohio Laws, 123 to 215, the General Assembly passed a law “to revise and codify the Code of Criminal Procedure of Ohio.” This law was filed in the office of Secretary of State in April A. D. 1929. This law was a complete codification of Criminal Procedure in Ohio.

Sec. 13422-2 GC General Jurisdiction of Justice of the Peace, as defined in 113 Ohio Laws, 123, reads as follows:

“Section 2. A Justice of the Peace shall be a conservator of the peace and have jurisdiction in criminal cases throughout the county in which he is elected and where he resides, on view or on sworn complaint to cause a person, charged with commission of a felony or misdemeanor, to be arrested and brought before himself or another Justice of the Peace and, if such person is brought before him, to inquire into the complaint and either discharge or recognize him to be and appear before the proper court at the time named in such recognizance or otherwise dispose of the complaint as provided by law. He also may hear complaints of breaches of the peace and he may issue search warrants.” (The emphasis as to “the county” is ours.)

Sec. 13422-3 GC (Section 3 of the Codification) referred to “Special Jurisdiction of Magistrates” within their respective counties in seventeen violations instead of in eighteen violations as at present under §13422-2 GC. Sec. 13422-3 GC was repealed. See 117 Ohio Laws 367. The present Sec. 13422-2 GC now contains all that appeared in both sections, §13422-2 GC and §13422-3 GC, together with several clauses added and the word “county” is now changed to “township.”

In 117 Ohio Laws, p. 586, §13422-2 GC was amended. (Filed in the office of the Secretary of State on the 21st day of May, A. D. 1937.)

The amendment substituted the word “township” for the word “county” in the former statute. After the phrase “where he resides,” there was added the following: “and county-wide jurisdiction in all criminal matters only upon affidavit or complaint filed

(1) by the prosecuting attorney, or

(2) upon affidavit or complaint made by the Sheriff, or

(3) the party injured, or

(4) any authorized representative of the State or federal department in the event there is no other court of concurrent jurisdiction other than the Common Pleas Court, police court or mayor’s court, and on view, etc.” (Emphasis ours.)

Beginning with “on view” the statute continues the same as former §13422-2 GC until we reach two “provided” at the close of the first paragraph. One more item of special jurisdiction, making eighteen instead of seventeen, is added.

The defendant and his attorneys rely upon the phrase beginning with “in the event” and continuing with that part of the statute which we have emphasized. We shall return to that matter later.

In §13422-1 GC (1Í3 Ohio Laws 123) a “magistrate” is defined in a single paragraph, in which certain officials are named and which concludes as follows: “and judges of other courts inferior to the Court of Common Pleas.”

The last sentence surely includes judges of all Municipal Courts. Likewise, it included judges of the Probate Courts.

Effective January 1, 1943 (114 Ohio Laws, 479), a second paragraph was added to §13422-1 GC wherein the probate judge and his clerk were eliminated from the role of inferior courts.

. Section 6 of §13422-6 GC (113 Ohio Laws 124)' reads as follows:

“No provision of this (Code of Criminal Procedure) chapter shall be construed to effect, modify or limit the jurisdiction conferred upon municipal courts by law.”

The §13422-6 GC, as above set forth was amended. The language quoted above remained as it was before the amendment. There was added all the rest of the statute and municipal courts by this amending section (§13422-6 GC,.the present statute) were granted specifically, county-wide jurisdiction of cases violating “the liquor control act.” (Sec. 6064-1, GC, et seq.) and “prosecution for keeping a place where intoxicating liquor is sold” etc.

The amendment added to the county wide jurisdiction o'f municipal courts, but the amendment did not interfere with the jurisdiction already possessed by the various municipal courts.

Counsel for defendant in this case is concerned too much with the jurisdiction of the justices of peace in Union Township, Miami County, Ohio, the place where the defendant’s alleged offense is said to have occurred. The argument is that since there is a justice of the peace in this township, this justice should be permitted to take jurisdiction to the exclusion of all magistrates — including the Piqua Municipal Court, which is a court inferior to the Court of Common Pleas. This argument ignores altogether §13422-6 GC, which declares that the jurisdiction given to municipal courts shall not be taken from them.

Now we shall return for a moment to the defendant’s main contention, namely, that part of the present §13422-2 GC. which we shall skeletonize for clarity:

“A justice of the peace shall be a conservator of the peace. (It has been said that a conservator’s duty is to cause arrest of all law violators) and have jurisdiction in criminal cases throughout the township in which he is elected and where he resides, and county wide jurisdiction. (In four instances— including an affidavit by “any authorized representative of the State) in the event there is no other court of concurrent jurisdiction other than the Common Pleas Court, police or mayor’s court * * *”

It is to be noticed that there is no denial of county wide jurisdiction to any other court of the county having concurrent jurisdiction with the Justice of the Peace. The Piqua Municipal Court does have concurrent jurisdiction by both the so-called Uniform Municipal Court Act (§1598 GC — Last sentence) and the original Act creating the Piqua Municipal Court. (Sec. 1579-560 to 1579-600 GC.)

What is meant by “concurrent jurisdiction”? Bouvier Law Dictionary defines “concurrent” as running together; such and such courts have concurrent jurisdiction — that is, each has the same jurisdiction.” We shall refer later to this similarity of jurisdiction between the court of a Justice of. Peace and the jurisdiction of the Piqua Municipal Court.

Sec. 1598 GC of The Uniform Court Act, in the last sentence reads as follows:

“The court shall also have jurisdiction within the limits of the county or counties in which its territory is situated, of those crimes and offenses which are now or may hereafter be within the county wide jurisdiction of justices of the peace.”

This section is not very clear. It may refer only to the eighteen offenses enumerated in §13422-2 GC. However, we take it to refer to those offenses committed in a township of the county when the affidavit is made by anyone of the four designated complainants.

Next we must consider whether or not The Uniform Court Act covers this offense. Altho The Uniform Court Act was signed by the Governor as an emergency measure on June 13, 1951, making the Act effective generally on June 13, 1951, does it cover this case?

The enacting clause of The Uniform Court Act established “a municipal court act” and repealed among other sections of the General Code, §§1579-1 to 1579-650 GC. It is to be noticed that the Piqua Municipal Court Act, as indicated heretofore, extends from §1579-560 to 1579-600 GC, which sections are repealed by the enacting clause of The Uniform Court Act.

• However, when we look at the last section of The Uniform Court Act, namely, §1617 GC, we find that this section covers several propositions going to both future and present conditions existing in new courts created by the Act and in courts “theretofore existing.” The Piqua Municipal Court is one of the courts “theretofore existing.”

Part of §1617 GC, as aforesaid, reads as follows:

“The institution of all courts (new courts created) enumerated in §1581 GC shall take place on January 1, 1952, and the jurisdiction and procedure of the municipal courts theretofore existing shall continue until such date.” (Emphasis ours.)

Thus, it is apparent then that, as to jurisdiction and procedure, the Piqua Municipal Court retains the jurisdiction of its original and creative act until January 1, 1952. We are compelled, therefore, to consult the repealed statutes on the subject of jurisdiction, the old jurisdiction having been retained during the remainder of this current year. This retention of jurisdiction seems necessary because of the existence of various vested rights of the Judges, clerks and litigants.

Referring to §1579-564 GC being part of the law. which created the Piqua Municipal Court in the beginning, reads as follows:

“The Municipal Court shall have jurisdiction of all misdemeanors and of all violations of city ordinances of which police courts or the mayor in municipalities or a justice of the peace now have or may hereafter be given jurisdiction. In felonies the Municipal court shall have the power of police courts or the mayor in municipalities or a Justice of the Peace now have or may hereafter be given.” (Emphasis ours.)

It is, therefore, evidence that this court does have “concurrent jurisdiction” with courts of the Justice of the Peace. But this jurisdiction of this court is not co-extensive with the county. See later the opinion of General Duffy on this point.

On January 20, 1938, the Hon. Herbert S. Duffy, Attorney General of the State of Ohio, furnished a requested opinion to Hon. Lester S. Reid, Prosecuting Attorney of Ross County, Ohio. This opinion is found in Opinions of the Attorney General, 1938, Vol. 1, Opinion No. 1791 at page 132.

The prosecuting attorney posed the following question:

“Assume a complaint is filed by a party injured or by an authorized representative of a State Department, in a township, charging the commission of a misdemeanor committed in a township other than where the complaint has been filed in said county.” (Emphasis ours.)

The ■ prosecuting attorney continues his letter, saying: “By virtue of said sections (§§13422-2 and 13422-3 GC), I am of the opinion that if there is a justice of the peace in the township where said offense is alleged to be committed, then the Justice of the Peace before whom such complaint has been filed, does not have jurisdiction to hear and determine said cause.” (Emphasis ours.)

It will be seen that the pre-conceived notion of the Ross County prosecutor is the present opinion of the defendant’s attorneys. We quote from the opinion of the Attorney General to some extent, fully realizing that the opinion is only an opinion. But an opinion of the Attorney General like the decision of a court, depends upon its obvious research and its logical reasoning. This opinion bears evidence of careful consideration. We quote from it certain reasoning and sdmmation which seem pertinent.

“By excepting as courts of concurrent jurisdiction, the Common Pleas, police and mayor’s courts, it is apparent that under our present judicial system the only other court which might be established vested with jurisdiction co-extensive with Justice of the Peace in criminal matters would be in the event of the establishment within the various counties of the state of municipal courts. Thus, whenever the county-wide jurisdiction of a Justice of the Peace is raised in any case, the paramount fact to be established and which must of necessity be established before the issue can properly be determined is the existence within the county of a municipal court vested with concurrent jurisdiction. If in the event it is determined that a municipal court has been established within a county vested with criminal jurisdiction co-extensive with the jurisdiction of a Justice of the Peace, then it necessarily follows that the criminal jurisdiction of all justices within that county is limited to the townshp in which each has been elected and wherein each resides. If, on the other hand, it appears that a municipal court has been established and not vested with county-wide jurisdiction, then it is equally true that all justices within that county under the provisions of §13422-2 GC, supra, are vested with county-wide jurisdiction.” (Emphasis ours.)

Let it be noticed at this point that the Piqua Municipal Court was “not vested with county-wide jurisdiction.” This Court is vested with jurisdiction in only three out of the twelve townships in Miami County, Ohio.

Continuing from the above opinion: “An examination of §13422-2 GC discloses that the Legislature in the enactment of said section specifically limited the county-wide jurisdiction of justices to those cases that arise upon the filing or making of an affidavit or complaint by any of the parties therein designated and only in the event there is no other court vested with concurrent jurisdiction other than the Common Pleas, police or mayor’s court.”

Further, the opinion continues by way of summary as follows:

“Summarizing, and in specific answer to the question presented by your inquiry, it is my opinion:

“A Justice of the Peace (excepting in those 18 special enumerated cases contain in §13422-2 GC) upon the filing of an affidavit or complaint by the prosecuting attorney or upon affidavit or complaint by the prosecuting attorney or upon affidavit or complaint made by the Sheriff, the party injured or any authorized representative of a State or federal department charging the commission of a misdemeanor committed in a township other than where the affidavit was filed or made, assumes by virtue of §13422-2 GC, county-wide jurisdiction to hear and determine the case in the manner prescribed by law, provided, however, there is not existent in the county where such justice of the Peace is elected and resides a municipal court exercising county-wide jurisdiction.” (Emphasis ours.) The Piqua Municipal Court is the only Municipal Court in this county.

This opinion of the Attorney General also decides the question that members of the State Highway PatroJ. are authorized representatives of a state department. This proposition seems to be admitted to be correct.

We wish to call attention of counsel to the affidavit charging the offense which concludes with the phrase “as provided by law.” There is no section number mentioned in the affidavit. The court, in the first paragraph of this opinion and thereafter, assumed that §6307-19 GC was the section upon which the charge is based. This assumption is made because of the use of the term “under the influence of intoxicating liquor.” This section is under The Uniform Traffic Act.

However, there is a similar section, namely, §6296-30 (c) GC, which is found under The Driver’s License Law. The language is similar but not exactly alike. The penalty is the same. Since there is no section number given in the affidavit, the charge might well be made under this last named section. Under the rule of liberal criminal pleading, which we have in Ohio, the affidavit might be amended to the offense under §6296-30 (c) GC. If the offense is under §6296-30 (c) GC or if the affidavit is amended to come under it, then there is no question about this court having jurisdiction.

Sec. 6296-16 GC, which is also a part of The Driver’s License Law, reads in part, as follows:

“For the purpose of enforcing the provisions of this act, any court of record now having criminal jurisdiction shall have county-wide jurisdiction within the county in which it is located to hear and finally determine cases arising under the provision of this act.”

While the present Attorney General will not render an opinion to the State Highway Patrol in a pending case, like the present one, General O’Neill, we are informed, has referred the State Patrol to the sections of the General Code just mentioned by us.

If we were to sustain the present motion, a new affidavit might be filed at once. The question of former jeopardy could not arise because the defendant has not, as yet, been in jeopardy.

On December 20, 1937, General Duffy also wrote an opinion on a similar set of facts. (1937 A. G. Op. 1652-Vol. III.) The same conclusion is reached. This opinion is long but a syllabus has been prepared. The decision in the instant case is already too long to notice at length this last opinion, except to say that it decides that the Municipal Court of Cincinnati has concurrent jurisdiction with a Justice of the Peace.

Before closing this opinion on the motion before us, we refer those interested to In Re George Hesse, 93 Oh St 230, which seems to support our notions.

We decide, therefore, that the motion heretofore filed to the jurisdiction of this court must be overruled, to which ruling the defendant may except. The defendant will be arraigned at some date agreeable to all those concerned.


author: By PUSATERI, J:

text:
    COLE, Estate of, In re.
    Probate Court, Clinton County.
    No. 10089.
    Decided July 21, 1952.
    Allan Smith, Clinton H. Nichols, Wilmington, T. O. Dakin, Sabina, for executor.
    Max Dennis, L. R. Curtis, Columbus, Joseph von Klinger, Lawrence R. Lyons, Blanchester, Sanford Headley, Cincinnati, Kenneth O. Stone, Sabina, Robert Wead, Xenia, counsel for parties.
   OPINION

By PUSATERI, J:

This is an action filed by the executor of the estate of Alfred L. Cole, deceased, to construe twelve items of the last will and testament of said decedent.

In the construction of this will the Court has followed the cardinal rule of determining the intention of the testator, said intention being garnered from a study of the entire last will and testament of testator.

At the hearing before this Court on July 9, 1952, nine of the twelve items which the Court had been asked to construe, were disposed of. It was the order of the Court that briefs be filed relating to the remaining three items.

The first of these remaining three items concerns construction of Item Second of the last will and testament of testator herein, which item reads as follows:

“Second — I give, devise and bequeath to my tenant Mrs. John Hodge my farm of 270 acres situated in the Township of Wilson, Clinton County and Jasper Township, Fayette County, State of Ohio. . .”

Testator’s only farm situated in Township of Wilson, Clinton County and Jasper Township, Fayette County, State of Ohio, which said farm was occupied at the time of testator’s death, and which had been occupied for a number of years prior thereto, by the John Hodge family, actually consisted of 291.85 acres and not 270 acres as stated in said last will and testament. Counsel for the residuary devisees and legatees under said last will and testament contended that testator herein intended to devise 270 acres of the total acreage to the aforesaid Hodge tenants and that he further intended the remaining 21.85 acres to become a part of the residuum herein. This contention is untenable in the opinion of the Court because a thorough study of the last will and testament of testator shows that said testator took infinite pains to specifically devise each and every parcel of real property owned by him. By way of illustration, testator devised even his small garden plot in the Village of Sabina, Ohio, which at best was of only nominal monetary value. Further, he took the time and effort to make a codicil to his last will and testament at the time he exchanged parcels of real property with one C. C. Beam.

We have three distinct descriptive phrases, namely “my tenant Mrs. John Hodge,” “my farm of 270 acres,” “situated in the Township of Wilson, Clinton County and Jasper Township, Fayette County State of Ohio.” Under the Doctrine of False Demonstration if a mistake has been made in describing a certain parcel of real property or some specific item of personal property (and in the opinion of the Court as stated above it would appear that there definitely has been a mistake made in the use of the term 270 acres rather than the correct acreage of 291.85 acres! and if said mistaken description can be deleted, and, if after such deletion there remains enough descriptive terminology to identify the specific parcel of real property and/or personal property involved, then said deletion can and should be made. As stated above, testator owned only one farm situated in Wilson Township, Clinton County and Jasper Township, Fayette County; and further the Hodge family were tenants, and had been tenants for a good number of years, of the whole 291.85 acres; therefore after the deletion of the phrase “270 acres” there still remains sufficient description to positively identify the real property involved. Therefore, in the opinion of the Court the phrase “270 acres” should be given no force or effect.

The second of these three remaining items concerns a conflict in the wording under Items Second, Fourth and Fifth of the last will and testament of testator herein, and since the same conflicting phrases are used in Items Second, Fourth and Fifth, a discussion of one of said items will apply to all three of them. In one of said phrases, testator gave and bequeathed “all livestock and all farm implements on said farm at that time”; whereas in the other phrase testator stated “that the said farm shall continue to operate as a going concern immediately from the date of and at my death.” Testator has clearly indicated by the use of this latter phrase that he desired his tenant, to whom he devised his farm, to have any and/or all of the personal property on the farm which would be necessary to continue operation of said farm as a going concern. A strict definition of the phrase “all livestock and farm implements on said farm at that time” would defeat testator’s expressed intention of having said devisee of his farm operate said farm as a going concern. Therefore it would appear that these two phrases are incompatible, and certainly either one or the other must be given greater effect. Once again, a thorough study of the entire last will and testament of testator indicates to the Court that it was testator’s intention to reward the tenant for the long and faithful relationship which had existed between said tenant and said testator, to that end testator wanted said tenant to have said farm as a going business and/or concern as indicated by the use of the phrase to that effect. Therefore, it is the opinion of the Court that greater weight must be given to the phrase “that the said farm shall continue to operate as a going concern immediately from the date of and at my death.” This then, leads to the conclusion that said tenant is legatee not only of the livestock and farm implements, but also of such items as corn in the crib, fertilizers, hog boxes, water fountains, seed, etc., and any other items on said farm which would be necessary to continue said farm operation as a going business and/or concern.

The last of these three remaining items concerns the matter of the payment of the federal estates taxes due and payable from this estate. Testator herein had the right and privilege until the time of his death to designate in his will and/or codicil thereto, what specific fund or which specific devisees and/or legatees should bear the burden of the federal estates taxes. Testator did not avail himself of this privilege. Testator did make several specific devises and/or bequests to numerous parties, which indicates clearly that he wanted said particular parties to have the specific items and/or sums of money as set forth in his last will and testament. If after distribution of the above mentioned specific devises and/or bequests there remained anything in said estate, testator provided that said remainder or residue would go to certain other parties. This indicates to the Court that testator desired that the specific devises and/or bequests should be made as set forth, and that any debts, taxes or other expenses or burdens on said estate should come out of the residuum of said estate. This indication is further strengthened by the fact that in Item Sixth of said last will and testament, Wilbur Stump was devised the “home property”; and further, in Item Seventh of said last will and testament, Dilla Roberds was devised real property “situated on the north-west corner of Washington and College Streets in Sabina, Ohio and known as the Westfall house.” In addition to these specific devises, both Wilbur Stump and Dilla Roberds are to receive one share each of the residuum as provided in Item Eighteenth of said last will and testament. As indicated above, this shows clearly that testator intended that the specific devises and/or bequests made in the first seventeen items of his last will and testament were not to bear the burden of debts, taxes, or any other expenses or burdens on said estate, but that these devises, and/or bequests should be made; and that the debts, taxes or other burdens of the estate should be paid; and then, at that point, if there remains any estate, it shall be divided in accordance with Item Eighteenth of the last will and testament, which item is commonly known as the residuary clause.

There was much discussion in the oral arguments of counsel for the various parties herein and also in said counsel’s briefs herein, concerning the recent Ohio Supreme Court decision in the case of McDougall, Admr., Appellant, v. Central National Bank of Cleveland, Trustees, et al., Appellees, and its effect on the payment of Federal estates taxes by decedents estates. The McDougall case is distinguishable from this instant case on its facts to such a degree as to be inapplicable However, in the majority opinion in said McDougall case, there is stated in Vol. 157 Oh St at page 58, the following:

“The instant case is not like Young Men’s Christian Assn. v. Davis, supra, where, by the terms of her will, the testator indicated a preference for certain legatees by providing for them specifically and then specifically stating that what was left was to go to other legatees. In such an instance, especially where only probate assets are involved, it is apparent that those who are designated by the testator to take what is left over were intended by the testator to bear the burden of the debts, estate tax and other obligations of the estate, while the testator did not intend that those who were specifically provided for were to bear that burden.”

The above quotation is on all fours with the case at hand and also indicates to this Court that the Ohio Supreme Court has not set forth a blanket apportionment policy in Ohio Law. If such apportionment is to be used in the payment of federal estates taxes, the Legislature of the State of Ohio can and should legislate on this matter.

An entry in conformity with this opinion should be drawn.


author: By KLOEB, District Judge.

text:
    SADLER MACHINERY CO. v. OHIO NATIONAL, INC.
    United States District Court N. D. Ohio, W. D.
    No. 6515.
    Decided February 4, 1952.

      Benjamin H. Schwartz, Samuel K. Walzer, Cleveland, Marcus L. Friedman, Toledo, for plaintiff.
    Harold A. James, Toledo, for defendant.
   OPINION

By KLOEB, District Judge.

This is an action by the plaintiff, a machinery dealer of Detroit, Michigan, against the defendant, a manufacturer at Upper Sandusky, Ohio, to recover the purchase price which plaintiff paid defendant for a 16" 6 spindle Bullard MultAu-Matic machine located at the plant of defendant at Upper Sandusky, which was severely damage^ by fire while in the plant. The claim of the plaintiff is based on the allegation that the machine was purchased F. O. B. cars Upper San-dusky, Ohio; that at the time of the fire- it was in the possession of defendant and had not been loaded on cars at Upper Sandusky and thereby transferred to the ownership and control of the plaintiff. The defendant contends that the title to the machine passed to the plaintiff prior to the loss.

Two questions are presented:

(1) Did the title to the machine pass to the plaintiff prior to the loss?

(2) Did the loss fall on plaintiff as buyer because delay in delivery was due to the fault of the plaintiff?

We find the facts as follows:

1. During telephone conversations January 12 to 15, 1951, between Mr. Sadler,, of plaintiff, and Mr. Day, of defendant, the defendant agreed to sell the plaintiff, for the sum of $25,000 a certain Bullard Muta-Au-Matie machine, then located in the plant of the defendant at Upper Sandusky, Ohio, which had been previously examined by Mr. Sadler.

2. Under the date of January 15, 1951, a written contract in the form of a purchase order was mailed by plaintiff to defendant (Plaintiff’s Exhibit 1), and later signed by defendant, in which the price of the machine was fixed at $25,000, to be paid $4,000.00 down — balance within ten days. The order contains the term “F. O. B. Cars Upper Sandusky, Ohio.” It also contains the following with reference to shipment: “Ship To Will advise” and “Via Will advise.” The order also contains the following with reference to preparation for shipment of the machine: “Note: It is understood that you will skid the machine and prepare it properly for shipment. The counterweights to be removed and heads blocked, also all machined surfaces to be sludged to prevent rusting.”

3. On January 15, 1951, after a telephone conversation with Mr. Day, at which the terms were agreed upon, the plaintiff, by Mr. Sadler, wrote to the defendant, attention of Mr. Day, a letter enclosing the purchase order and check for $4,000, which letter contained the following request that the defendant hold the machine temporarily (Plaintiff’s Exhibit 3): “* * * We would like you to hold the machine for a week or two, as we may sell it direct from your plant. In that way, we can avoid extra handling cost by shipping it to our warehouse.”

4. Mr. Day testified that, upon receipt of the above letter, on January 17, 1951, he telephoned Mr. Sadler and told him that the terms set forth in the purchase order did not carry out the terms of the oral agreement; that he wrote Mr. Sadler a letter under date of January 17, 1951 (Plaintiff’s Exhibit 4), responding to Mr. Sadler’s letter of January 15, stating that be was returning copy of the purchase order signed.

„* * s ku|. you will n0£e j hayg changed the terms as agreed upon by telephone and that is $4,000.00 Cash, and the balance of $21,000.00 within ten days.”

“One of my reasons for agreeing to sell this machine is the fact that we are cramped for space and would like to get it out of our factory as soon as humanly possible. We realize, of course, that if you can ship directly from our plant, it would mean considerable saving to you, and we are willing to go along for a couple of weeks as outlined.”

5. On January 26, 1951, the plaintiff wrote a letter to the defendant (Plaintiff’s Exhibit 5; Defendant’s Exhibit C), which states that the plaintiff is attaching a check for $21,000 “to cover the final payment on the 16" 6 Spindle Bullard MultAu-Matic recently purchased from your company.”

The plaintiff also referred in the letter to its desire to leave the machine in the plant of the defendant for another week or two, stating:

“We tried to contact you today, by phone, but were informed that you were out of town until Monday. The reason for trying to phone you was to ask if it would be possible to leave the machine in its present location for another week or two. If this is not possible, we will have a truck at your plant Wednesday, January 31st, to pick the machine up and take it to Cleveland, where it will be stored.

“We wish to thank you kindly for your co-operation and hope that we may have the pleasure of hearing from you the early part of next week.”

6. On the same day, January 26, 1951, the plaintiff wrote a letter to the Noll Equipment Company of Cleveland, Ohio (Plaintiff’s Exhibit 7), stating as follows:

“When talking with you by phone today it was agreed that you would send a truck to Ohio National, Inc., at Upper San-dusky to get the Bullard Multa-Au-Matic next Wednesday morning. You will deliver the machine to your warehouse and store it there until sold.

“We are sending Ohio National a check today to cover the balance due on this machine, so there should be no trouble in getting it released.

“Ohio National will prepare the machine for shipment and load it on your truck therefore you won’t need to send any riggers along.”

7. On January 29, 1951, the plaintiff wrote a letter to Noll Equipment Company (Plaintiff’s Exhibit 6), confirming a telephone conversation of that day “in which we asked you not to send your truck to The Ohio National. Inc. Plant in Upper Sandusky, Wednesday morning to get the Bullard Mult-Au-Matic which we purchased from them. Tfye reason for the change in plans is that Mr. Day called us today stating that it would be alright to leave the machine in their plant another two weeks.”

8. The weight of the evidence is that two or three days after the sale was made the machine was prepared for shipment by defendant by being skidded and sludged, but the counterweights were not removed and the head was not blocked, for the reason that this operation was not considered by Mr. Day necessary on a machine of this particular type.

9. The fire occurred about 11 A. M., on January 30, 1951. (Plaintiff’s Exhibit 11.)

10. Plaintiff’s check for $21,000, dated January 26, 1951 (Friday), was apparently received by defendant at Upper San-dusky on January 29, 1951 (Monday), and mailed for deposit to defendant’s bank at Cygnet, Ohio, on that day and deposited to its credit on January 30, 1951, and paid by plaintiff’s bank at Detroit on February 2, 1951.

On the question of whether the title to the machine passed to the plaintiff prior to the loss, plaintiff contends that the title remained in the defendant because the purchase order provided for delivery “F. O. B. Cars Upper Sandusky, Ohio.” The general rule is stated in 46 Am. Jur., Sec. 442, p. 608, as follows: “Where the contract of sale provides for a sale f. o. b. the point of shipment, the title is generally held to pass, in the absence of a contrary intention between the parties, at the time of the delivery of the goods for shipment at the point designated.”

It is generally held that the term “f. o. b.” standing alone in a contract simply means that the subject of the sale is to be loaded for shipment without expense to the buyer. Olsen v. McMaken & Pentzien, 139 Neb. 506, 297 N. W. 830, 832; 17 Words and Phrases, pages 199-202.

Sec. 8398 GC, with reference to the time of transfer, provides that it is the intention of the parties which governs. That section states:

“Time of Transfer. (1) When there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred.

“(2) For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade, and the circumstances of the case.”

We are not able to agree with counsel for plaintiff that the words “F. O. B. Cars Upper Sandusky, Ohio,” necessarily mean that the title did not pass until delivery to the carrier. In this case that term would seem to mean, as intended by the parties, that the defendant was to load the machine without expense to plaintiff. That is indicated by the letter of plaintiff of January 26, 1951 (Plaintiff’s Exhibit 7) to the cartage company, stating: “Ohio National will prepare the machine for shipment and load it on your truck, therefore you won’t need to send any riggers along.” Mr. Day testified that he agreed to load it for the accommodation of the plaintiff.

Sec, 8399 GC, provides, with reference to how the intention of the parties shall be ascertained, as follows:

“How intention of parties ascertained. Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer:

“Rule 1. When there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.

“Rule 2. When there is a contract to sell specific goods and the seller is bound to do something to the goods, for the purpose of putting them into a deliverable state, the property does not pass until such thing be done.

“Rule 5. If a contract to sell requires the seller to deliver the goods to the buyer, or at a particular place, or to pay the freight or cost of’ transportation to the buyer, or to a particular ■ place, the property does not pass until the goods have been delivered to the buyer or reached the place agreed upon.”

Rule 1 of Sec. 8399 states that when there is an unconditional contract to sell specific goods (as in this case), in a deliverable state (concerning which there is a controversy), the property in the goods passes to the buyer when the contract is made, and “it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.”

The plaintiff contends the machine was not in a deliverable state at the time of the loss because the following operations required to be performed by defendant under the contract had not been completed: (a) The machine was to be skidded and properly prepared for shipment; (b) The counterweights were to be removed and the heads blocked; (c) All machined surfaces were to be sludged to prevent rusting. On this point plaintiff cites Bonham v. Hamilton, 1902, 66 Oh St 82, 63 N. E. 597. That ease involved the sale of a stock of goods in a store, and the sale had not been completed because the seller (an administrator) had not approved the sureties on the security offered by the buyer, as required by law. We do not regard this case as a precedent on the facts here, for the reason that the removal of the counterweights and the blocking of the heads had to do merely with its preparation for shipment. The evidence is that this could have been done in about half a day.

We are of the opinion that the weight of the evidence indicates that the machine was sludged, skidded and prepared for shipment within two or three days after the sale. While Mr. Day testified that the counterweights were not removed and the heads blocked when the machine was shipped to defendant from New Jersey and he did not deem that necessary, we are of the opinion that inasmuch as he agreed to this in the contract, that obligation rested upon defendant before shipment, but did not affect the title.

Cases in which it has been held that title did not pass because something was still to be done to goods to put them in a deliverable state are distinguishable from the case at bar. A number of such instances are cited in a note to 2 Williston on Sales, p. 16, Sec. 265.

That the work of getting a heavy engine ready for shipment had not been done would not postpone the passing of the title was held by the court in Underwood v. Burgh Castle Brick & Cement Syndicate, 1 K. B. 123 (1921), (referred to in 2 Williston on Sales, p. 17, Sec. 265, note) involving the sale of an engine weighing some thirty tons which at the time of sale was affixed by bolts to concrete and to be shipped out had to be unfastened and taken to pieces. The court said (p. 125): “I do not think therefore that the fact by itself that the seller had to take the engine to pieces would postpone the time when the property passed. Many chattels have to be taken to pieces before they can be delivered, e.g. a sideboard or a billiard table; nevertheless the property in these passes on the sale and is not postponed until the article is actually taken to pieces arid delivered. I do not, therefore, lay any stress on the fact of the engine having to be taken to pieces.”

It has been held that the rules under §8399 GC for deter - mining the time of passing title to goods sold are declaratory of the common law. Herring Hall Marvin Safe Co., v. Evatt, Tax, App., 1945, 16 Ohio Supp. 187.

In Leonard v. Davis, 1861, 1 Black 476, 66 U. S. 476, 17 L. Ed. 222, a leading case on the subject, the court said: “When the terms of sale are agreed on, and the bargain is struck, and everything the seller has to do with the goods is complete, the contract of sale, says Chancellor Kent, becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vests in the buyer. * * *”

In Briggs v. United States, 1892, 143 U. S. 346, 354, 12 S. Ct. 391, 395, 36 L. Ed 180, the court said: “By the common law a sale of personal property is complete and the title passes as between vendor and vendee when the terms of transfer are agreed upon, without actual delivery.”

In 24 R. C. L. Sec. 298, p. 36, it is stated: “* * * As has been said there is no rule better established, both by the law of England and in this country, than that the sale of a specific chattel passes the right of property to the buyer without a delivery of possession, and he may maintain an action of detinue or replevin, or the statutory substitutes therefor such as an action of claim and delivery, on the wrongful refusal of the seller to deliver possession. And ordinarily where no further act remains to be done to identify the property sold or to ascertain the 'quality or quantity, and the price has been paid and the buyer entitled to take immediate possession, the title will be deemed to have passed though there has been no actual taking of possession by the buyer. * * *”

It can hardly be doubted that the plaintiff could have maintained an action to replevin the machine, at least after its check had been accepted by the defendant.

Counsel for defendant contend that the plaintiff is barred from recovery by reason of the provisions of §8402 (b) GC, because the delay in delivery was due to its fault. This section contains the following provisions:

“At whose risk goods held. Unless otherwise agreed, the goods remain at the seller’s risk until the property therein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer’s risk whether delivery has been made or not, except that—

“(b) When delivery has been delayed through the fault of either buyer or seller the goods are at the risk of the party in fault as regards any loss which might not have occurred but for such fault.”

In support they cite Schenning v. Devere & Schloegel Lumber Co., 173 Wis. 20, 180 N. W. 136. There lumber sold for delivery f o. b. at a certain siding was later destroyed by fire. The seller had written the buyer, urging immediate orders for shipment because of the danger from fire while the lumber remained piled up in the yards near the railroad track, to which the buyer replied, promising to send shipping instructions within a day or two. The trial court found that a delay of ten days in sending the shipping instructions was unreasonable and placed the fault upon the buyer under the sales statute, similar to that involved here. Counsel for plaintiff attempt to distinguish this case from the facts here on the ground that the court found there had been no acquiescence in the delay by the seller.

We are of the opinion that this statute must be read as meaning that where a buyer, entitled to possession and immediate delivery, for his own purposes secured a delay in taking delivery from the seller, as in this case, the buyer is the one at fault or responsible for the delay, and that the mere acquiescence in the delay by the seller as a favor to the buyer does not change the rule as to the passing of title by the contract of sale.

Counsel for plaintiff rely principally in support of their contention on this question upon the case of Daniel Gage, Inc. v. Kimball, 1934, 288 Mass. 413 193 N. E. 30. As we understand the facts in this case, we are unable to follow the reasoning of the court as applied to the case we have here.

Conclusions of Law

1. The title to the machine was in the plaintiff prior to and at the time of the fire.

2. The delay in delivery was chargeable to the plaintiff.

3. The abbreviation “f. o. b.” in the purchase order meant that the defendant was required to load the machine for shipment without expense to the plaintiff.

4. Evidence of” oral conversations between the parties prior to and on January 15, 1951, to vary or contradict the contract is incompetent and inadmissible, but may be considered as reflecting upon the intentions of the parties.

5. It was the duty of the defendant under the contract to remove the counterweights and block the heads before shipment, but this was something having to do with preparation for shipment, delay of which had been requested by plaintiff, so that the time for doing it had not arrived, and it did not affect the passing of the title.

For the foregoing reasons, we are of the opinion that the plaintiff has not sustained its case, and that the bill of complaint should be dismissed. An order is drawn accordingly.