text:
    INDEM INS CO OF N AMER v PORTSMOUTH ICE, COAL & MAT’L CO SAME v H. LEET LUMBER CO
    Ohio Appeals, 4th Dist, Scioto Co
    Decided December 11, 1929
   MAUCK, J.

The language of the bond above quoted would, of itself, seem to impose liability upon the indemnity company for the bond follows the form prescribed by 2365-4 GC. The Supreme Court has, however, in- Indemnity Company vs. Day and Maddock Company, 114 OS. 58, determined that it is not sufficient that the statute prescribing the form of the bond and the bond itself by its terms appear to create liability against the surety. It holds that the liability of the surety is confined to those who come within the provisions of 2365-1 GC. and the succeeding section, and that those sections in turn are in analogy with those sections of the statutes that create a right to a mechanic’s lien against 1 private individuals. Prom what is said in the Day and Maddock opinion, and more .especially from the authorities cited with apparent approval, the rule in this state is that recovery upon a bond of this kind for material furnished can only be had where the material either enters into and forms a part of the finished structure or at least is capable of being so used. Such is the interpretation of that opinion given in its annotation in 44 A. L. R. 382. ■ The many authorities collected in this note and in 46 A. L. R. 511, and those elsewhere reported, indicates that there is a radical difference in the interpretation given bonds of this character in different states, due not wholly nor perhaps largely to a difference in the statutés of the different states. We have given these authorities extended consideration, reaching the conclusion that an analysis of them in this opinion would-'"be useless-in view of the attitude expressed by the Supreme Court in the Day and‘Maddock-cááe. •

The agreed ■ statement of; facts' in the case of The H. Leet' Lumber Company shows that the material furnished by that company to the contractor did. not enter into the compléted bridge and could not have done so; that after the bridge had been completed it was to be removed from the site and'was still 'of some value to its owner. This fact .under the Day and Mad-dock case- was fatal to the claim of -that company, and, the judgment -in its behalf was consequently erroneous. - , •

The case of The Portsmouth Ice, Coal and Building Material Company is not disposed of by the Day and Maddock case. The. claim of that company was for hauling material' that was actually incorporated into, the completed structure. The Supreme. Court of Wyoming, has said that the rule as to the cost of transportation of. building' materials is. not very clear. It points out -that for obvious reasons, what áre known as freight charges by a common carrier of .material used upon the job are not recoverable, but that haulage of material, as in the' case at' bar, is protected by the bond. Franzen vs. Southern Surety Company, 46 A. L. R, 496. We see no difference in principle between a laborer . who wheels his barrow full of gravel from one point on the job to another and the man- of larger facilities who transports that same -material from the points where it is purchased to the site where the bridge is. being constructed. Nor can' we distinguish between the rights in this behalf of the. individual laborer and the corporation that is performing the labor. Section 2365-1 covers all cases of

“all labor performed or materials furnished--in -the construction, erection, alteration or. repair of such building.”

Section 2365-2' provides that bonds shall protect "any indebtedness that may. accrue to' any " • •

“person, firm or corporation on account of any labor performed or materials furnished in the construction, erection, alteration or repair of such building,”

The Portsmouth Ice, Coal and Building Material Company comes within the terms of both the sections quoted. It was consequently entitled to the benefits of the bond. The judgment in its favor was sound.

The judgment of the trial court in favor of The H. Leet Lumber Company is reversed on the ground that it is contrary to law, and the petition in that case is dismissed.

The judgment in favor of The Portsmouth Ice, Coal and Building Material Company is affirmed.

Middleton, PJ., and Blosser, J., concur.


source: Caselaw Access Project

author: BLOSSER, J.

license: Public Domain

text:
    CENTRAL NAT BANK v BENNETT et
    Ohio Appeals, 4th Dist, Scioto Co
    Decided December 3, 1929
   BLOSSER, J.

The sole question to be determined by this court is whether the transaction between the Bank and Bennett came within the terms of the contract of the Bank with the surety company. This depends upon the interpretation of the word “payment” in the policy. The plaintiff contends .that “payment” is to be construed in a broad sense as “a transfer of property from one to another”. The defendant asserts that the proper meaning is to be determined in harmony with the provisions of the Negotiable Instruments Law, that it is used in its technical sense. In interpreting the words of a contract one of the established rules is that all words are to be taken’ in their ordinary and popular sense unless there is something to show that they are used in a different sense. Railroad Co. vs. Veeder, 17 Ohio 385; Casualty Co. vs. Johnson, 91 OS. 155, 157, 158. Whgt then is the meaning of “payment” in the ordinary and popular sense? In Webster’s new international dictionary it is defined as

“The act of paying or giving compensation; discharge of a debt or obligation.”

Counsel for the plaintiff in error have cited a number of cases which say that payment is the delivery of money or other agreed medium by the debtor to the creditor or that it is the fulfillment of a promise. Oneda County vs. Tibbitts, 102 N. W. 897 (Wis.); Moore vs. Highway, 44 S. E. 692 (N. C.); 48 C. J. 585. Before this meaning can be applied it is necessary to analyze the transaction between Bennett and the Bank. In the case of a loan by a bank it is contemplated by the parties that there be a mutual simultaneous transfer; the lender gives the money or credit and the borrower gives the note. When the bank g.ave the money to Bennett it was not paying the note but was merely loaning him the money, which he promised to repay by executing and delivering the note. ■ It is common knowledge that the general meaning of the phrase “payment of a note” means the payment of money by the maker to the holder. Transfers of money prior to such payment are referred to as “loans”, “purchases” or “payments for a note”.

There is another rule of construction which must be considered and which settles the question here in dispute. Unless a contrary intention is clearly expressed a term or phrase which has a technical meaning in the business to which the contract refers will be interpreted according to that meaning, Insurance Co. vs. Duffield, 6 OS. 200; Thomas vs. Matthews, 94 OS. 32, 56.

The contract of insurance between the bank and the surety company deals entirely with banking practices and custom. Its purpose is to save the bank harmless in specified cases arising in the course of banking, business. In Ohio the uniform Negotiable Instruments Law (GC. 8106-8302) has codified the law in regard to commercial paper. Banks in this state conform with its provisions in dealing with drafts, notes and other negotiable instruments. This law has been adopted by most of the states of the union and is generally regarded with deference by the few states which have not enacted it into statutory law. The Aetna Casualty and Surety Company is a Connecticut corporation and that state has adopted the uniform Negotiable Instruments law.

Taking into consideration the provisions of the Negotiable Instruments Law, it is clear that the custom Qf merchants in referring to “payment” contemplates the transfer of money from one bound upon the instrument to the holder. 8175-8184 GC. “Payment” as referred to in the Negotiable Instruments Law is so used there as to indicate such a transfer of money as works a discharge of the instrument or of liability upon it. 8224-8226 GC.

In this case we must conclude that there was a transfer or loan of money to Bennett by the bank, but there was no payment of the note. This transaction created rights upon the instrument and did not transfer or discharge them. Bennett was never a creditor upon the instrument; by its terms we know that he was a debtor upon it. He was primarily bound and the only person bound by it. It is clear that the payment for the note by the bank was not a payment of the note covered by the policy.

The demurrer was rightfully sustained and the judgment will be affirmed.

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


author: RICHARDS, J.

text:
    FLATT v LYNCH et
    Ohio Anneals, 6th Dist, Lucas Co
    No. 2245.
    Decided December 23, 1929
    Messrs. Wm. F. & H. Henry Miller and J. K. Raabe, Toledo, for Flatt.
    Messrs. Conn & Holloway and Edwin J. Lynch, Toledo, for Lynch et.
   RICHARDS, J.

The action Qf the court of common pleas in dismissing the, cross-petition of the defendants, Thomas. Lynch and Helena A. Lynch, was proper on the ground that it did not set forth a cause of action against e.ither the plaintiff Or any of the defendants. The cross-petition avers the execution of a valid contract with the plaintiff for the purchase of the property and pleads as a reason for the defendants’ being released from its terms that after a thorough examination of the property they became convinced they did not desire to purchase it: This would not be sufficient reason for escaping the liability imposed by the contract. It is true that the contract itself provides for the execution bv the parties of a further land contract or a warranty deed, and no later instrument of writing appears to have been made by the parties. Notwithstanding this situation, the written contract which had been made obligated all of the parties thereto according to its provisions. The cross-petition, not setting forth a good cause of action; judgment will be. entered dismissing the same.

The issue raised that the cause has been settled between the parties is denied by the defendants, Thomas Lynch and Helena A. Lynch, and is not passed on by this court as no evidence thereon has been submitted. .

As certain issues are still pending in the court of common pleas, the claimed settlement can be determined in that court.

Williams and Lloyd, JJ., concur.


author: MAUCK, J.

text:
    GOODALL v STATE ex DANIELS
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided November 22, 1929
   MAUCK, J.

The trial court found the petition to be true. We can not, under these circumstances, g.o behind the record and ascertain whether the relator was legally elected by the votes of those entitled to participate in the selection of a clerk. We can only inquire whether a clerk in -office is obliged to resort to a mandatory injunction rather than mandamus to secure the property pertaining to his office. -The Supreme Court was considering the relations between one just going into a public office and his predecessor in State ex rel Keyser vs. Babst, 101 OS. 275. That was a case in quo warranto. The court had occasion to discuss a Wisconsin case bearing upon the question involved and Judge Jones, speaking for the court, said:

“The case is also authority for the principle that an incumbent retaining possession of an office, but without other color of authority, is not a de facto officer against one who holds a certificate of election, and that mandamus is a proper remedy to enforce the right of the. person having, prima facie title to the office.”

Upon the authority nuoted judgment in this case is affirmed. •

Middleton, PJ. and Blosser, J., concur.


author: LEMERT, PJ.

text:
    MARTIEN ELEC CO v HARRIMAN NAT BK
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9991.
    Decided December 23, 1929
    Messrs. Turney & SJpe, Cleveland, for Elec Co.
    Messrs. Ulmer & Berne, Cleveland, for Nat Bk.
    LEMERT, P. J. & SHERICK, J. (5th Dist) sitting.
   LEMERT, PJ.

We find from an examination of the record in this case, which is extremely lengthy and voluminous, that the plaintiff herein has failed to, have attached to the bill of exceptions some fifteen exhibits that were introduced as evidence in the. various courts wherein some angle of this case was presented.. An examination of the character of- these exhibits reveals the fact that they consisted of pleadings, journal entries, appearance dockets and opinions, which were parts of the record in other cases in the Common Pleas, Court of Appeals and Supreme .Court. The plaintiff herein had the right to substitute copies for the original exhibits, but it has failed to do so.

We note that when the trial court in the instant case signed the bill of exceptions herein that he inserted the following language, as appears from page 76; “quite a number of exhibits are not attached and this bill is signed with the understanding that they are all to be attached before filing.'in Court of Appeals. Otherwise the court does not certify that this is a complete bill.”

The exhibits that seem to be missing from the record are defendant’s exhibits A, E, F, I, K, L, M, O, P, Q, W, V, W-l and Z, some of which especially bear upon the question of res adjudicata.

Keeping in mind that some of these exhibits show the nature and character of the pleadings in the courts below, and journal entries which might or might not be binding upon. this, a reviewing court, and having this incomplete record before us, this court cannot and will not hear and determine this case with the record in that condition. It is quite evident that the trial court when it made the entry as hereinbefore stated, had in mind that if error was prosecuted in this case that there should be a full and complete record, and the court below signed the bill of exceptions with the understanding that all these exhibits be attached before filing in the Court of Appeal's, and if that was not done, the court below desired it to -be fully understood that the record that he was signing, was not a complete bill, so that y/e find that the record before us, is not complete as required by statute and we, -therefore,. find and hold that the petition in error herein should be and the same is hereby dismissed. Exceptions may be noted.

Sherick, J., concurs. Houck, J., not participating.


author: MIDDLETON, PJ.

text:
    CALDWELL v EGER et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 7956.
    Decided November 25, 1929
    Messrs. Vickery & Vickery, Cleveland, for Caldwell.
    Messrs. Howell, Roberts, & Duncan, Cleveland, for Eger et.
    MIDDLETON. P. J. & MAUCK, J. (4th Dist) and HOUCK, J. (5th Dist) sitting
   MIDDLETON, PJ.

It is said in 16 R. C. L., Section 588, page 1067:

“It is the well settled general rule that the duties and' liabilities of a landlord to persons on the leased premises by the license of the tenant are the same as those owed to the tenant himself. For this purpose they stand in his shoes. Visitors, customers, servants, employes and licensees in general of the tenant are on the premises as guests, etc., of the tenant and not of the landlord. Whatever rights such invitation or license from the lessee may confer, as against such lessee, as against the lessor it can give no greater rights than the lessee himself has. The guest, servant, etc., of the tenant is usually held to be so identified with the tenant that this right of recovery for injury as against the landlord is the same as that of the tenant would be had he suffered *he injury.”

This text is supported by many authorities cited in the note under the section quoted.

The defect which caused the injury to the plaintiff in error was in the construction of the stairway on which she was injured, and this defect was- open and obvious to any-one who might have occasion to use the stairway, and there is no evidence tending to show that Miller ever promised Saxton to remedy or repair it.

It is said in Burdick vs. Cheadle, 26 OS. 393:

“The general rule of law undoubtedly is that persons who claim damages on the account that they were invited into a dangerous place, in which they receive injuries, mufst seek their remedy against the person who invited them. There is nothing in the relation of landlord and tenant which changes this rule. There is no implied engagement or promise on the part of the lessor that the leased premises are in a safe condition or that they are fit for the use to which the lessee intends to put them.- If they be unsafe or unfit it is the duty of the tenant to make them safe or to fit them for the intended use,' and the landlord' may reasonably expect that the tenant will do so. And if the landlord warrants their fitness the covenant stands for the benefit of the lessee and ..not for the benefit of strangers to the contract.”

We conclude that under the authority quoted the trial court was correct in directing a verdict for Miller in this case and the judgment is affirmed.

Houck and Mauck, JJ„ concur.


author: PER CURIAM

text:
    HOLLAMBY v CLEVE RY CO et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9912.
    Decided November 18, 1929
    Messrs. Payer, Minshall, Karch & Kerr, Cleveland, for Hollamby.
    Messrs. Squire, Sanders & Dempsey and S. B. Myerson, Esq., Cleveland, for Cleveland Ry Co et.
   PER CURIAM

Plaintiff claims to have been injured in said collision.

The chief question for our consideration is whether or not the court committed error in its refusal to give the follow-lowing charge requested by plaintiff, after the general charge was given by the court:

“Mr. Minshall: Now if your Honor please, I'request that you charge that it would be negligence on the part of the defendant. The Cleveland Railway Company, to operate its car toward and past the place of the accident at a speed greater than was reasonable and proper having regard for the width, traffic, use and conditions then existing, at such place.
“The court: I don’t think that is the law.
“Mr. Minshall: May I have an exception to it?
“The Court: Certainly. That rule applies to automobiles and the general street traffic, .not to a car operated on a fixed track as this was.”

We are of the opinion that the charge requested by plaintiff stated the law and that it applies to street cars as well as automobiles. A perusal of the general charge discloses that the court nowhere in its charge covered that point, and it also appears that the general charge was in harmony with the court’s notion of the law as expressed in its comments when it gave reasons for refusing plaintiff’s request to charge. In our opinion error was committed by the trial court in refusing such request to charge, and that the same substantially affects the rights of plaintiff.

For this reason the judgment of the Common Pleas Court is ordered reversed and the case remanded for further proceedings according to law.

Vickery, PJ., Sullivan and Levine, JJ., concur.


text:
    BRAUNLIN et v DOTY
    Ohio Appeals, 4th Dist, Scioto Co
    Decided November 22, 1929
    Mr. Edgar G. Miller, Portsmouth, for Braunlin et.
    Messrs.. Irish & Riley, Ironton, and Miller & Searl, Portsmouth, for Doty.
   MAUCK, J.

It will be observed that the defendants do not plead that the plaintiff had any knowledge of any defense that the maker had to the note purchased by the plaintiff nor that he had any notice that there had been any failure of title to the lands sold. The averment only charges that the plaintiff had knowledge of the sale of the land and that the mortgage was given for the purchase money. Now. it is apparent that the plaintiff might have had knowledge that the note was given in consideration of the sale of real estate without any knowledge that the title to such .real estate was defective, and as an innocent purchaser he is entitled to all of the immunities attaching to an innocent purchaser, unless there is something peculiar to notes given for the purchase money for real estate that takes those notes out of the general rule relating to innocent purchasers. The plaintiff in error claims that notes of this character, as distinguished from all other negotiable instruments, are open to a defense even though in the hands of an innocent purchaser by virtue of Section 11902 GC. Certainly so radical an innovation in the law of negotiable instruments should not be adopted unless by the terms of the statute invoked it is necessary to do so.

The section referred to does not by its terms attempt to establish any rule in substantive law. It only provides a method of procedure. It is limited by its own language to actions between vendor and vendee, and consequently by its terms does not relate to the instant' case. Its purpose and effect seem to have been clearly set forth in Templeton vs. Kraner, 24 OS. 554. In that case the court says on page 563 that without the section referred to in an action brought by the vendor to realize upon a purchase money obligation the maker of the note would be required to gp into equity and secure an injunction against the prosecution of the action at law until the equities arising through a failure .of title had been settled ■ in a chancery proceeding, and that the effect of this section was to enable the purchaser in such an action to bring in outside parties and determine such equities in one case.. The court says that the section is remedial only. Upon the authority of this case, upon what seems to be the sounder reasoning and the plain letter of the statute, Section 11902 was not available to the defendant in this case.

The trial court was right in entering judgment upon the pleadings.

Middleton, PJ., and Blosser, J., concur.


author: KUNKLE, J.

text:
    BLACK v DAYTON (City)
    Ohio Appeals, 2nd Dist, Montgomery Co
    No. 882.
    Decided June 26, 1929
    Mr. Horace J. Boesch, Dayton, for Black.
    Messrs. J. B. Harshman and Lon V. Volz, Dayton, for City.
   KUNKLE, J.

We have carefully read the record in this case and considered the brief of counsel for plaintiff in error. Counsel are thoroughly familiar with the evidence in this case and it will not be necessary to quote therefrom in detail, but 'from an examination of the testimony, we think there is evidence supporting the finding of the Municipal Court that the plaintiff in error was at the time in question unlawfully operating his car. There is testimony tending to show that the automobile being driven by plaintiff in error, approached the crossing in question at the rate of from thirty to thirty-five miles an hour, that the other automobile, namely, the Chevrolet, was in the street intersection when the automobile driven by plaintiff in error reached the intersection. Counsel stress the ordinance in reference to preferential main thoroughfares.

There is evidence in the record which, if believed by the Tower, court, would justify the finding tha.t the driver of the Chevrolet was in possession of this street intersection, before the plaintiff in error reached the same. The rule of law in such cases is well settled in Ohio.

There is a conflict, in some respects, in the testimony, but the record contains evidence which in our opinion warranted the lower court in finding the plaintiff in error guilty. At least, we would not be justified in holding that the finding and judgment of the lower court was not supported by the evidence.

Finding no error in the record which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.

Allread and Hornbeck, JJ., concur.


text:
    CAMBRIDGE HILLS LAND CO v EUCLID (Village)
    Ohio Appeals. 8th Dist, Cuyahoga Co
    No. 10103.
    Decided November 18, 1929
    Messrs. Chas. S. Reed and A. L. Steuer, Cleveland, for Cambridge Hills Land Co.
    Mr. Stanley L. Orr, Cleveland, for Euclid (Village).
   PER CURIAM

The plaintiff seeks to enjoin these various defendants from collecting certain asssessments in connection with improvements installed in and about land owned by the plaintiff. In the brief of counsel for Euclid Village it is pointed out that it is nowhere alleged in the petition that the plaintiff had made objection to the Village Council against the assessments. Authorities are cited, to the effect that the filing of such objections is a prerequisite to any equitable relief sought in the court.

Bashore vs. Brown, 108 OS., page 18.
Cuyahoga Falls vs. Beck, 110 OS. 82.

A perusal of the petition in its entirety discloses that it is claimed by the plaintiff that the assessments were sought in connection with the installing of certain sewers on the land of the plaintiff; that certain pipes were installed, but no outlet was provided. In effect the petition alleges that no sewer at all was constructed. In other words, that the improvement for which the assessments are claimed was never installed. It goes beyond the claim that the assessments were not commensurate with the benefits conferred. It alleges in substance that no improvement whatever was installed. This, in our opinion, states a cause of action.

The objection to the introduction of any evidence is, therefore, overruled.

Vickery, PJ., Levine and Sullivan, JJ., concur.


text:
    HANZEL v SEARL, Exr.
    Ohio Appeals, 4th Dist, Scioto Co
    Decided November 22, 1929
    Messrs. Bannon & Bannon, Portsmouth, for Hanzel.
    Messrs. Miller and Searl, Portsmouth, for Searl.
   MIDDLETON, PJ.

There is some discussion in this case regarding positive evidence and negative evidence. Negative evidence, as we understand the term, is nothing more than evidence tending to prove the non-existence of . a fact supported by positive evidence.

In the instant case there is no positive evidence of the fact claimed by the plaintiff, namely, that he loaned.the decedent, W. J. Burke, five, thousand dollars. The only evidence before the court reflecting upon the truth of this claim is circumstantial evidence, and the circumstances in evidence are that on May 16, 1927, the plaintiff in error delivered to Burke his check for five thousand dollars, which check Burke in turn endorsed to the Vulcan Last Company, which company credited Burke’s account with that amount. There are some other circumstánces in evidence which might be considered in a remote way to be consistent with the claim that this was a loan. The difficulty with this case is not in the failure of the evidence to establish that it was not a loan but in the complete failure to establish that it was a loan. It was observed by the court during the- submission of the case that the judgment of the lower court was protected by the same rules which apply to the verdict of a jury, and there is certainly nothing in the record which would justify a reviewing court in holding that the judgment of the lower court was against the manifest weight of the evidence. Such a situation could not be when the record fails to disclose any evidence to establish the claim that the check was given to Burke as a loan.

The judgment is affirmed.

Mauck and Blosser, JJ., concur.


text:
    MULLEN et v STATE ex ROBSON
    Ohio Appeals, 4th Dist, Meigs Co
    Decided December 11, 1929
    Messrs. Cederic W. Clark and Chalmers Parker, Columbus, for Mullen et.
    Mr. A. P. Miller, Pomeroy, for State ex Robson.
   MAUCK, J.

The record shows that the presiding judge of elections in the ward in question was called to the stand and testified that there were twenty two absent voters’ ballots challenged, and that the ballots of all these absent voters were placed in an envelope and returned to the Deputy State Supervisors; that none of the envelopes containing these several ballots were opened by the local judges. She testifies that every one of the votes in question was refused by the local board by the unanimous votes of all the judges upon the ground that the voters so offering to vote were non-residents. She testifies that the local board took no evidence but decided to return the ballots to the county board unopened because they did know what else to do with them. Again she testifies:

“The evidence on the envelope was all the evidence we had.”

There then followed this question and answer:

“Q Now, the only thing on the envelope was the address from which they are mailed?
A Their address and where they were living.”

One of the clerks of the election testifies that the ballots were laid to one side and that when others came in to vote whose votes were protested that the latter votes were placed with the absent voters’ ballots and all of them given to the presiding judge to rp^rn to the county election board, there being twenty seven in all, making necessarily five votes that were received but not cast and twenty two absent voters ballots in identification envelopes that had never been opened.

Another judge testifies that

“These ballots, as they were rejected or protested, of non-residents were put on the table and they were kept there. Those that were non-residents we discussed. The judges among themselves agreed that they were not residents of Middleport and therefore had no right to vote. All the ballots were put on the table and kept there until later in the evening, when they were put under the table and kept there until Mrs. Gilfilen brought them to Pomeroy.”

She says that the ballots were rejected and put there as dead ballots. This, in substance, is i the. whole record.

The question of who was elected central committeeman in this ward is not perhaps a matter of paramount importance. The questions raised, howeyer, are of very great importance and of considerable obscurity. They involve interpretations of the general elections statutes, the primary election statutes and the operation of the absent voters’ law.

So far as the five votes that are referred to as “protested votes” are concerned we see no difficulty. Two of them were official ballots issued to R. O. Fowler and Edna Howard. They are marked “Protested” and quite evidently were never cast, and there is nothing to indicate that they were not properly rejected. The other three ballots, bearing in lead pencil the names of Jacob Young, Peter Stace and Ella Stace, are not official ballots .at all, but unofficial, and we are at a loss to know what could be claimed for them or any of them. We have then twenty two absent voters’ ballots which were neither counted nor cast, but were turned over to the county election board, and which it is claimed the board ought to count as disputed ballots.

The trial court was confronted with a question of great difficulty and took the not unnatural view that these ballots were to be treated as some sort of ballots, and as the local election board only had a right to send disputed ballots to the county board, and as they did "end these ballots to the county board, they must of necessity be disputed ballots. There is a sort of logic to this which might be permitted if we were dealing with nrivate rights. In such a case it might be said that the local judges, having power to send to the county board disputed ballots only, when they sent ballots to that board they must be estopped from asserting that they were not disputed. This is not such a case. It is a question of power. The county board can not be required to count votes where it has no power to do so. Power to count votes must be derived from statute. It can not be conferred by acts of omission o" commission on the nart of local judges. So far as the general election is concerned the power of the county board to count disputed ballots proceeds from Section 5090. In that section they are called uncounted ballots and refer to the ballots described in Section 5083 as ballots upon which the judges did not agree as to'how the same should be counted. In a primary election the term “disputed ballots” is employed. It is found in Section 4983.

It is thus seen that both under the general law and the primary law the uncounted ballots or the disputed ballots which the county, board may count are votes that have actually been placed in the box but which have been so imperfectly marked that the judges disagree upon the way they shall be counted or whether they shall be counted at all. The only other ballots which can ever be counted by the county board are those absent voters’ ballots that never reach the precinct officials.

We might- dispose of this case with what has already been said, it being apparent that the votes in question have never been cast and having never been cast are not disputed ballots; that the judgment of the Common Pleas must be reversed because the county board has no power to do what the decree complained of requires it to do. But while mandamus can not issue to compel the county board to canvass and count these ballots it may be that the writ awarded by the Common Pleas may be modified by this court so as-to require the county board to issue the relator a certificate of election on the ground that the several absent voters had an undoubted right to have their votes cast and counted, and the court can proceed on the theory that the thing that -had to be done was in law actually done. That theory of the situation gives rise to this question: After an absent voter has made the affidavit required and prepared his ballot and mailed it as prescribed by law is his right to have that vote cast an absolute one and has .he placed himself in such advantageous position that he can not be challenged as other voters are? It is perfectly apparent that this interpretation of the statute .would make the absent voters’ law a convenient instrument for fraud and corruption, but the statutes loan themselves to that view'.

The process of voting when the voter personally appears is as follows:

“One of the judges of election shall receive the ballot, examine the secondary' stub bearing the elector’s registered number or name, for the purpose of identification, and thereupon pronounce with an audible voice the name of the elector. If the judges are satisfied that he is a citizen of the United states and legally entitled to vote at the election”

the ballot shall be immediately deposited in the ballot box. Section. 5073.

If it is an absent voter’s ballot, however, the presiding judge

“shall take up one absent voter’s identification envelope in the presence of all the judges and after announcing in an audible voice the name of such absent voter he shall tear open such envelope *** and deposit the same in the proper ballot box.”

Section 5078-5.

If the voter is present and marks his ballot in the booth the judges permit its casting only if satisfied that “he is legally entitled to vote at the election”. If he has forwarded his ballot by mail the statute apparently requires the vote to be deposited whether the judges are satisfied or not. It can not be, however, that an absent voter is wholly beyond challenge. Certainly, for instance, if he be insane and therefore disqualified by the Constitution (Article V, Section 5) or if he be a convict and the receipt of his ballot a crime (13257 GC.) the election judges should not knowingly permit such a vote to be cast, thus subjecting themselves to the penalties of the criminal code (Sections 13291, 13296 GC.). We conclude that the omission to repeat in Section 5078-5 GC. that the judges must be satisfied of the legality of the ballot tendered is because that section and all the other sections of the absent voters’ law undertake to cover only those incidents to voting that are peculiar, to that law, leaving undiminished the power and duty of the judges to prevent illegal elections, and leaving unimpaired except as hereinafter pointed out the tenth paragraph of 4866 GC., which is as'old as the election laws:

“All questions of the right to vote shall be heard and deterjnined by the judges of election.”

There is a special reason why the right to challenge must remain open until after the absent voter’s ballot has been opened at a primary election. One of the special grounds of challenge in a primary is that the voter has not previously affiliated with the party in whose primary he proposes to participate (4980 GC.), and after the voter swears to his party affiliations his vote may still be rejected by the election judges of that party (4982 GC.), and it is, too, an offense against the criminal laws for either a voter or an election judge to violate the law in this behalf (Sections 13327, 13335,- 13337 GC.). A challenge on this ground is, however, not possible until the identification ballot has been opened and it be found in which party primary the voter proposes to participate, for there is nothing on the envelope containing the absent voter’s ballot to indicate the party character of the enclosed ballot. We adopt the view of the Attorney General of Ohio that the absent voter as well as another voter is generally subject to challenge. There is, however, one exception to the rule not drawn by inference but especially provided by statute. If the absent voter’s ballot is received by the county board too late for delivery to the local board the county board must count the same, no opportunity being given for challenge.

There is, however, another possibility in the case. In some jurisdictions a writ of mandamus has been awarded compell- ■ ing election officials to permit a voter’s ballot to be cast. The fact that in the case at bar a score of ballots has been rejected leads to the view that some at least of those may have been valid and should have been received. The trial court opened the identification envelopes containing the ballots of the absent voters, and we have before us those ballots as well as the identification envelopes bearing the affidavits of those .attempting, to vote. These we have examined with a view of ascertaining whether the envelopes are so conclusive of the right to vote that the rejection of them was arbitrary and illegal and the exercise of no discretion whatsoever. It is barely possible that under such a state of facts a court, finding that it was the clear duty of the election officials to cast and count these ballots, might find that the relator was indisputably entitled from this group of ballots to enough additional votes as to permit a court to award a writ requiring the issuance of a certificate of election to the candidate thus deprived of those votes. This, we think, would be a wider exercise of the writ of mandamus than has ever been tolerated in this state in .the matter of an election, but it is a possibility of the case which has not been overlooked. Certainly if these absent voters’ ballots are in such form as to give to the. election officials no -chance to exercise their judgment they must be in complete compliance with the law governing them. Neither a fair nor a substantial compliance with the law would be sufficient.

The identification envelope is required to show that the proposed voter is a resident qf the precinct in which he desires to yote and a qualified voter therein. It must also give the residence address of the voter, and that .means his place of residence in the precinct in which he proposes to vote, for the purpose, of course, of having a check upon the truth of his affidavit. To protect the ballot box against false impersonation the proposed voter must go before a notary public or other competent officer. If the voter is an entire stranger in the community where he undertakes to mark his ballot he han not vota at all. He must be in a community where the attesting officer knows him to be the person he represents himself to be or knows some creditable person who proves the identity of the voter, and the attesting officer must certify whether the proposed voter is actually' known to him or is proven by some creditable person, and in the latter case the name and address of such person so proving the identity of the voter must be disclosed.

It is a singular fact that not one of the absent voters’ identification envelopes in this case fully and strictly complied with all the requirements of the absent voters’ ballot law except those of F. W. Hays, Harry Tipton, Alta Tipton and L. J. Tipton, and it happens that the ballots found in the envelopes of these four voters had all been marked with ink, thus rendering them entirely void .and incapable of being counted. Devine vs. State, 105 OS. 88. With ■ the votes of A. L. Rayford and Eflfie Ray-ford are found the affidavits of those parties that they are not residents of Meigs County, so that nothing can be claimed for tfiem. That leaves sixteen. What are the other identification envelopes? Mildred Fowler swears that she is a resident of the City of Pomeroy in Athens County. Maypard Davis swears that he is a resident of the precinct in question but gives his residence as Bucyrus. and it does not appear whether the attesting notary knew him personally or whether he was identified by another and in the latter case who that other was. The same defect exists as to Eleanor Davis, Dale Winebrenner, Jud Boley, Gilbert Ervin, W. E. Trader, Roseoe Meadows, Oscar Rose, Josiah Mace, Ann Mace, Mildred Gilmore and Carl Gilmore. Fred Bearhs is as defective as Maynard Davis, but he gives no local residence at all. B. H. Ervin, gives his residence address and Hattie Ervin hers. They are peculiar in this. The notary public testifies somewhat uncertainly that he either does know them or does not know them, one can not tell which, and then says that each of them is the creditable person who vouches for himself.

There- was, consequently, on each of these identification ballots something that called for the exercise of discretion and judgment by the election judges, and the law is too well settled that a court is without power by mandamus to control or ignore the exercise of discretion conferred by law upon others.

Whether .there is any remedy available for a review of the judgment of the election ' judges either by contest proceedings or by proceedings in quo warranto we. can not now decide. We only determine that the county board had no power to count these ballots because they were not disputed ballots, and that there is no modification of the judgment of the trial court that could be made pursuant to law without our invading the judgment and discretion that is confided to the local board of elections.

The grant by the lower court of the writ of mandamus was erroneous. The judgment is reversed with directions to dismiss the petition of the relator.

Middleton, PJ.* and Blosser, J, concur.


author: BY THE COURT

text:
    TURNIPSEED et v BOWNESS
    Ohio Appeals, 4th Dist, Ross Co
    Decided December 12, 1929
    Messrs. Luthei; L. Boger and Garrett S. Claypool, Chillieothe, for Turnipseed et.
    Messrs. W. W. Boulger and Willard C. Walters, Chillieothe, for Bowness.
   BY THE COURT

We see nothing in the motion. The journal is the work of the clerk. There is no requirement that the trial judge sign an entry. An entry prepared by counsel and approved by the court is merely a convenient method of assisting the clerk in putting on the journal the judgment or order made by the ’udge. It may be signed anywhere and need not be signed at all. The only question that may be raised in connection therewith is whether the entry on the journal expresses the judgment of the judge. There is nothing in the bill of exceptions to overthrow the presumption that the entry is in that respect correct. There is no rule of law or court requiring a judge to grant a formal hearing on such motion.

Neither bill of. exceptions herein discloses anything warranting a reversal.

Middleton, PJ., Mauck and Blosser, JJ., concur.


text:
    TAYLOR UNIVERSAL MOTOR CO v DIENER
    Ohio Appeals, 4th Dist, Scioto Co
    Decided November 22, 1929
    Mr. Edgar G. Millar, Portsmouth, for Motor Co.
    Mr. William J. Meyers, Portsmouth, for Diener.
   MIDDLETON, PJ.

It has been repeatedly held that the validity of a gift of property as to existing creditors is not dependent' on the intent to defraud them. Where prejudice results to the interests of existing creditors by reason of a voluntary transfer of the debtor’s property, on which they are entitled to rely for the payment of their claims, such facts constitute sufficient grounds to render o the transfer invalid. In other words, it is" the settled law that a debtor has no ability to make a gift of his property beyond his solvency. This was the pronouncement of Blackstone when he said, “We must be honest before we are generous.”

In the instant case the facts are clearly established that A. B. Diener conveyed the property described in the petition to his wife for no substantial consideration other than that which would naturally exist between a husband and wife, and that such conveyance was in prejudice of the rights of the plaintiff herein, which was an existing creditor of Diener at the time such conveyance was made. We see no reason to differ from the decree made in this case in the Common Pleas Court and the same judgment and decree may be entered here.

Mauck and Blosser, JJ., concur.


text:
    LYONS v BENGEL
    Ohio Appeals, 4th Dist, Meigs Co
    Decided December 11, 1929
    Messrs. Henry W. Cherrington, Gallipolis, and A. D. Russell, Pomeroy, for Lyons.
    Mr. A. P. Miller, Pomeroy, for Bengel.
   MIDDLETON, PJ.

It has been frequently held by the courts of this state that a failure to have an affirmative allegation in a bill of exception from the trial court that it contains all the evidence, before the court on any matter of which complaint is made is destructive of any power of a reviewing court to review on the weight of the evidence. A case directly in point in the instant case is that of Electric Railway Co. vs. Hunter, 10 C. C. (n. s.) 564, affirmed 60 OS. 634.

In the instant case in all the matters complained of affidavits were filed by both the plaintiff in error and the defendant in error. In the absence of any certificate from the trial court that such affidavits constitute, all the evidence adduced in the hearing of these matters the state of the record is such that this court has no power to say that the order and judgment of the trial court in each particular instance was not proper. For this reason the judgment of the lower court must be affirmed.

We think, however, it might be proper to say that we regard the most serious question involved in this complaint to be the application for a change of venue. If we in respect to this matter should assume that all of the evidence is before the court we would be compelled to hold that such application came too late to be available to the plaintiff in error. It is essential to the force of an application of this kind that it should be made in good faith and for no purpose except in the furtherance of justice to the applicant. If such application is so delayed as to raise a presumption that it is made for delay only or because of some matter occuring in the progress of the case not to the satisfaction of the complainant it is of no avail. In many states the time within which such application shall be made is fixed by statute, but where there is no statutory provision it is the general ■rule that the application should be made in reasonable time and as soon as the party making the same has had full opportunity to do so. 27 R. C. L. 820, 4 Ency. PL & Pr. 428. In the instant case Lyons not only delayed his application until after he had filed a motion which required an amended petition and an answer to such amended petition, and had Drocured a continuance of the case and several other rulings by the court, but when he did make the application it was done under such circumstances as to raise a very strong presumption that it was then made only for the purpose of delaying the trial of the case.

In the two remaining complaints the discretion of the trial court alone was involved, and if we were permitted to dispose of the questions on their merits by a proper bill of exceptions we would reach a judgment in harmony with that of the lower court.

Mauck and Blosser, JJ:, concur.


author: WILLIAMS, J.

text:
    STUMP et v BOYD et
    Ohio Appeals, 6th Dist, Wood Co
    No. 449.
    Decided December 9, 1929
    Mr. Benjamin F. James, Bowling Green, for Stump et.
    Messrs. Ora Wade and S. W. Bowman, Bowling Green, for Boyd et.
   WILLIAMS, J.

It is claimed, however, by counsel for plaintiffs, that a deed for 180 acres of land was executed and delivered the defendant, Henry D. Boyd by his father and was given as an advancement and with the understanding that it would be in full of the son’s share in his father’s estate. Evidence has been offered in this court tending to show the circumstances surrounding the transaction in which the deed was given and various conversations which throw more or less light upon the intention of the parties to the deed. It is claimed that this evidence is incompetent and that the recital of the consideration of one dollar and other valuable considerations. contained in the deed is conclusive that the deed was not given as an advancement. We are of the opinion that such evidence is competent and where a deed is made under such circumstances that it constitutes an advancement, that fact may be shown by competent evidence. The principle laid down in the case of Gardner vs. Kern, 115 Ohio St., 575, to the effect that the recital of a valuable consideration in a deed from father to son conclusively establishes the title conveyed thereby as one of purchase, does not apply. The real consideration mav always be shown to determine whether a deed was given as an advancement.

Considering the evidence of this nature along with the other evidence in the case, we are of the. opinion that the evidence discloses that the conveyance was not an advancement but was a gift made by father to son in recognition of services and attention given by the son to the father. A decree will therefore be entered for partition of tlie pronerty described in the petition apartlng to the defendant, Henry D. Boyd, a one-fourth interest in the premises and to the other parties their respective parts and portions thereof.

Lloyd and Richards, JJ., concur.


author: LEVINE, J.

text:
    BLUE VALLEY CREAMERY CO v GREENBERG etc
    Ohio Appeals, 8th Dist, Cuyahoga Go
    No. 10206.
    Decided December 23, 1929
    Mr. Hugh A. McNamee, Cleveland, for Creamery Co.
    Mr. Wm. M- Rosenzweig, Cleveland, for Greenberg etc.
   LEVINE, J.

In the case of Cleveland Produce Co. vs. Dennert, 105 OS. 149, it was held that this duty of the trial court to make such finding in accordance with the statute, is mandatory and that a failure to comply with the request constitutes reversible error.

It is claimed that in the case at. bar the failure of the court to make such separate findings was not set forth as a ground in support of the motion for a new trial filed by plaintiff in error and that he therefore waived this assignment of error.

We -.hold that this position is incorrect for the reason that errors of law may be urged before the reviewing court even though no motion for a new trial was ever filed.

The Municipal Court, in our opinion, committed reversible error in failing to comply with the mandatory provisions of the statute and for that reason the judgment of the Municipal Court is ordered reversed and the cause remanded for proceedings according to law.

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


author: VICKERY, PJ.

text:
    LAWSON v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10333.
    Decided November 25, 1929
   VICKERY, PJ.

There is evidence enough in the record to warrant a, suspicion that Jessie Lawson was occupying a room for immoral purposes, but there is no substantial evidence that she committed any immoral acts in said room- or was intending to, with the man who was in the house at the time.

There being an entire dearth of evidence in this matter that would warrant a conviction, the judgment of conviction is reversed and the plaintiff in error is discharged.

Sullivan and Levine, JJ., concur.


author: SULLIVAN, P. J.

text:
    GERBICH v KINDERMAN
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 1818.
    Decided November 19, 1928
    Paul Howland and Edward Davis, Cleveland, for Gerbich.
    Robt. R. Pierce, Cleveland, for Kinder-man.
   Opinion by

SULLIVAN, P. J.

VICKERY & LEVINE, JJ., concur.


author: VICKERY, J.

text:
    CLEVELAND TRUST CO v OHIO TAX COMM et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9624.
    Decided November 19, 1928
    Messrs. Snyder, Henry, Thomsen, Ford & Seagrave, Cleveland, for Cleveland Trust Co.
    Carlton S. Dargusch, Esq., Columbus, for Ohio Tax Comm et.
   Opinion by

VICKERY, J.

SULLIVAN, P. J., concurs.


text:
    MINERVA DAVIS v IRA DAVIS
    Ohio Appeals, 4th Dist, Brown Co
    Decided December 12, 1929
    Mr. O. E. Young, Georgetown, for Minerva Davis.
    Mr. H. S. Pulse, Lynchburg, for Ira Davis.
   MAUCK, J.

We assume that the conservator has complied with the statutes enabling him to bring an action in the courts of this state, but we are unaware of any authority for us to determine the important question raised by this motion in the summary method proposed. The plaintiff cites in support of our jurisdiction to act upon the motion Section 11705 GC., but a reading of that section develops that neither its letter nor spirit applies to the facts before' us. Something is said in the case of Wilson vs. Stilwell, 14 OS. 464, that indicates that a court has power to protect itself against an unauthorized release of its judgment, but an examination of that case shows that the party making the release was only a nominal party, that the real parties in interest were before the court, and that the court had full knowledge of the rights of all the parties including the lack of power in the plaintiff in that case to. release the judgment. In the case at bar the plaintiff could, if competent, release the decree rendered in her favor. In the case cited there was no legal right .to release the judgment and in the instant case the sole question is whether or not the judgment creditor had the capacity to make such release. If this release is absolutely void the conservator may proceed to realize upon the decree. If it is voidable only he will have to resort to a direct action to set it aside.

The motion of the defendant is sustained.

Middleton, PJ., and Blosser, J., concur.


author: BY THE COURT:

text:
    EMPLOYERS LIABILITY ASSUR CORP v SCOTT
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10168.
    Decided December 3, 1929
    Mr._ J. R Kistner, Cleveland, for Assurance Corp.
    Messrs. Vickery & Vickery, Cleveland, for Scott.
    MIDDLETON, PJ., and MAUCK, J., (4th Dist) sitting.
   BY THE COURT:

The gist of the motion in this case is to dismiss the petition in error because plaintiff in error has not made his co-defendant below a party to the proceedings in error. If Smetters vs Raney, 14 OS. 287, were in full force and effect the motion would have to be sustained. The Supreme Court however, in Sniders Executors vs Young, 72 OS. 494, has expressly overruled the second and third paragraphs of the syllabus in the Smetters case, and in Clark vs Clark, 110 OS. 644, on page 658, has reiterated its position. In the Snider case it was held that where such a defect as that now complained of, appears, the proceedings in error may be amended and the omitted defendant in error be brought into the record.

To the end that the case may not be disposed of upon a technicality and without a hearing, leave is given to the plaintiff in error to file an amendment to its petition in error by December 15. If this is done and service is had upon Kohlman an entry may be placed on record showing that the motion to dismiss the petition in error is overruled. If the required amendment is not made as above suggested within the time prescribed the motion will be sustained.

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


text:
    CELKE v STATE
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10314.
    Decided November 25, 1929
    Mr. Louis Fernberg, Esq., Cleveland, for Celke.
    Mr. L. O. Payne, Esq., Cleveland, for State.
   VICKERY, PJ.

Celke claims that he had rented this place in the rear of the front house to somebody, — a man by the name of Shimmel,— but Shimmel was not produced and whether he was a tenant there is seriously disputed: but it is in the record that the plaintiff in error gave the officer the keys to the property, after having denied that he owned it, and that the officers went back there and found the liquor. As already stated in the immediate vicinity, about fifty feet away, Celke owned a billiard and pool parlor.

Lieutenant Snyder testifies that Celke when arrested admitted that this liquor was his and that he sold it for 25c a drink and one dollar a pint, and Celke admits that he said this in substance, but adds that he was “just' kidding” with the officer, that he knew him, and that they were “kidding” back and forth. Well, sometimes, “kidding” does not pay, and apparently from the view the court below took of it, it did not pay the plaintiff in error in this case, because he took his so-called “kidding” in dead earnest.

Now we have in the record then the fact that Celke owned the property; that he had the_keys to the property which he probably would not have had if it had been bona fide rented to some other person, and we find the liquor there in that house. We find he carried on a billiard and pool parlor in close proximity to it and we find him admitting that he owned the liquor and sold it for 25c a drink or one dollar a pint. Of course, he says this was kidding.

Under the circumstances, the court had the parties before it and could tell whether Celke acted as if it was a kidding match between him and Lt. Snyder and the other officers, or whether the facts warranted the court in coming to the conclusion that this man owned the liquor.

It is admitted that the liquor was fit for beverage purposes; that it contained 45% alcohol by volume and we think from the whole record that the evidence shows that Celke was guilty as charged in the affidavit and that the evidence warrants the conviction. At least the judgment of the court is not so manifestly against the weight of .the evidence that a reviewing court would, be justified in disturbing it.

The judgment will, therefore, be affirmed.

Sullivan and Levine, JJ., concur.


text:
    PENNNA RD CO v ROBINSON-RANSBOTTOM POTTERY CO et SAGLE et v ROBINSON-RANSBOTTOM POTTERY CO
    Ohio Supreme Court
    Nos 21543 & 21560.
    Decided Jan. 15, 1930
    Kinkade, Robinson and Day, JJ., concur. Marshall, CJ., not participating.


text:
    STATE ex COPE v COOPER, etc.
    Ohio Supreme Court
    No. 21985.
    Decided Jan. 15, 1930
    Kinkade, Robinson, Jones and Allen, JJ., concur.


text:
    NEIGHBORS v STATE
    Ohio Supreme Court
    No 21941.
    Decided Jan. 15, 1930
    Kinkade, Jones, Matthias and Allen, JJ., concur. Marshall, CJ., and Day, J., not participating.


text:
    WILLIAMS v DIXON & SON
    Ohio Appeals, 6th Dist, Wood Co
    No. 466.
    Decided December 2, 1929
    Messrs. Atmur & Atmur, Lima, for Williams.
    Messrs. B. A. Myers, Celina, and Ray D. Avery, Bowling Green, for Dixon & Son.
   RICHARDS, J.

The evidence shows that Glen Williams and Melvin Wade, each under 21 years of age. had driven the car from Delphos to Toledo two or three days before the collision. The evidence all shows that they were on a pleasure trip.. They spent a couple of days in Toledo in company with some lady friends over the Fourth of July and on the return trip, about five o’clock in the morning of July 6th, the collision occurred while Glen. Williams was lying on the seat of the car asleep and it was being driven by. Melvin Wade. The negligence of these parties can not be seriously questioned. Neither can there be any doubt that this negligence proximately caused the collision. The record, however is devoid of evidence tending to show that Glen Williams was acting as agent fo:r his father. The car belonged to the father but the son was permitted to use it for his own purposes when he saw fit, and the record shows that he had taken it on this occasion without the knowledge of his father and for his own pleasure.

It is claimed by the plaintiff that the son and his companion had gone to Toledo to get some automobile parts for the father, but we find no competent evidence in the record tending to show that. Declarations of a claimed agent do not prove agency. The liability of a father for the negligent operation of a car by his son does not arise simply from the family relationship, and unless it appear that the son was at the time acting as aspnt for the father, there can be no liability. Because of this condition of the record, the motion of the defendant for a directed verdict should have been granted.

The judgment will be reversed and final judgment entered for plaintiff in error.

Williams and Lloyd, JJ., concur.


author: LEMERT, J.

text:
    WEBER v EPPSTEIN et
    Ohio Appeals, 5th Dist, Stark Co
    No. 1000.
    Decided October 17, 1929
   LEMERT, J.

The Canton Municipal Court was proposed and established for the purpose of superseding and eliminating the Justice of the Peace Courts, together with other purposes, too numerous to mention.

Sec. 1579-670 GC. provides that in all supplemental and ancillarv proceedings after judgment, the Canton Municipal Court shall have the same jurisdiction as is conferred "non Justices of the Peace.

And Sec. 1579-672 provides that in all actions and proceedings in which the Canton Municipal Court has jurisdiction, all laws conferring jurisdiction upon the Court of Common Pleas, Police Courts or Justices of the Peace, giving such courts power to hear and determine such causes prescribing the force and effect of their judgments, orders or decrees and authorizing and directing the execution or enforcement thereof and their mode of procedure shall be held to extend to the Canton Municipal Court, unless inconsistent with the act.

Section 1579-690 provides that the laws ■governing the Court of Common Pleas as to pleadings and procedure except as otherwise provided, shall be held to apply so far as applicable to the Canton Municipal Court.

So, having reviewed the above sections, it is well to note 10354 GC. as to whether or not this section would apply to appeal proceedings, that if the plaintiff or defendant claims more than $20.00, the case may be appealed to the Court of Common Pleas. The Canton Municipal Court act provides that the procedure of the Justice of the Peace Court should apply to the Canton Municipal Court unless otherwise specified and there is nothing otherwise specified in the act creating and governing the Canton Municipal Court.

Section 10382 specifies that in all cases not otherwise specially provided for by law either party may appeal from the final judgment of a Justice of the Peace to the Common Pleas Court of the county where the judgment was rendered. And it is well to note the conditions of Sec. 11215 wherein it provides that Common Pleas Courts shall have appellate jurisdiction from the decisions of County Commissioners, Justices of the Peace and other inferior Courts, in the proper county in all civil cases, subject to the regulations provided by law.

Therefore the question arises as to whether or not the Municipal Court of the city of Canton is an inferior Court to the Court of Common Pleas.

In the case of Commonwealth Oil Company v. Turk, 118 OS 273, it is held that the sections of the General Code pertaining to appeals from the Common Pleas Court to the Court of Appeals in chancery cases apply by, analogy to the Municipal Court of Cleveland and it is our contention that the sections pertaining to the appeals from the Justice of the Peace Court by analogy and by law apply to appeal proceedings from the Canton Municipal Court to the Common Pleas Court of Stark County.

We therefore find and hold that a litigant is entitled to an appeal from the Municipal Court of the city of Canton to the Common. pleas Court of Stark County, Ohio and the finding and judgment of the Court below will be and the same is hereby reversed.

Exceptions may be noted.

Houck, J„ and Sherick, J., concur.


text:
    GRIESS v McMYLER-INTERSTATE CO KALTENBACH, JR. v MIDLAND ENGINEERING CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10455.
    Messrs. Tolies, Hogsett & Ginn, Cleveland, for Plaintiff.
    Messrs. Squire, Sanders & Dempsey, Cleveland, for Defendants.
   VICKERY, PJ.

This case came on for hearing upon a motion to dismiss to the appeal and after a consideration and examination of the issues that are involved in this court, we have come to the conclusion that the motion to dismiss the appeal must be and is granted for the reason that the matter sought to-be appealed is not appealable. Whether the original action was a chancery case or not is not material at the' present instance, for the reason that the issue that is appealed is nothing but an issue at law as to who is entitled to the ownership of the property in question; and while the ruling of the court might be a final order from which error might be prosecuted, such order is not appealable, gs it does not relate to a chancery matter, and we base our decision upon the case of Forest City Investment Company vs. Haas, 110 OS. 188 and Neighbors vs. Thistle Down, 26 Oh. Ap. 324.

We have had other decisions in which we took the same position, i. e. other cases which we have decided likewise.

The argument that the case that we had in this court growing out of the same matter was appealable, is not pertinent, for that case was based upon an injunction that was sought in this same litigation by the party appealing here to enjoin the various defendants from interfering with and taking possession of certain property which was claimed to be theirs, and in that case a temporary restraining order was allowed which subsequently was dissolved and an appeal was taken from the order dissolving the temporary restraining order. Such proceedings were based upon a special statute and is not a case in point so far as the instant matter is concerned.

We, therefore, hold that the matter appealed to this court is not appealable, and therefore the motipn is well taken and the motion is granted and the appeal dismissed.

Sullivan and Levine, JJ., concur.


text:
    BRADNER v KELLY
    Ohio Appeals, 6th Dist, Wood Co
    No. 459.
    Decided November 25, 1929
    Mr. Benjamin F. James, Bowling Green, for Bradner.
    Messrs. Ora Wade and S. W. Bowman, Bowling Green, for Kelly.
   WILLIAMS, J.

The language of the amended petition in each case is somewhat ambiguous but under the Code we must give the pleading a liberal construction. As to the suit brought by the father, it appears from the amended petition that the landlord had knowledge of the contaminated condition of the well at the time he made the lease and that the plaintiff lessee had no knowledge thereof prior to the time the sickness befell him. The. rule is that where a landlord leases premises to a tenant and at the. time knows of a hidden, dangerous condition of the premises and conceals the same from the tenant, and the tenant, without knowledge of such dangerous condition or of facts which would charge him with knowledge thereof, is injured-thereby, the landlord is guilty of such deceit as will render him liable for injuries and damages directly and proximately •caused by such dangerous condition. Shinkle vs. Birney, 68 Ohio St., 328, 334, 335.

The amended petition in the action brought by the tenant stated a cause of .action within this rule.

As to the action brought by the minor son, it fairly appears from the allegations of the amended petition filed by the minor that at the time the premises were leased the lessor, knowing of the contamination of the well on the premises, which would endanger and imperil health and life, made the lease with this knowledge, that this condition amounted to nuisance, and that he is liable to persons lawfully on the premises, as the minor was, who did not know of the contamination of the well, and the landlord is not relieved from liability by leasing the premises. 16 R. C. L., 1076, Sec. 594 and cases cited.

The amended petition in the action brought by the. minor stated a good cause of action.

The demurrers were erroneously sustained to the prejudice, of the plaintiff in each of the cases and the judgments will be reversed and causes remanded with directions to overrule .the demurrers and for further proceedings according to law.

Lloyd and Richards, JJ., concur.


author: SULLIVAN, J.

text:
    ENGER v KARAZIA
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10216.
    Decided December 23, 1929
    Messrs. Calfee, Fogg & White, Cleveland, for Enger.
    Messrs. Clarke & Costello, Cleveland, for Karazia.
   SULLIVAN, J.

We have examined the record for the purpose of ascertaining whether there is credible evidence to support the verdict and we find that while as to specific amounts and the dates of payment there is an indefiniteness which attracts attention, yet when we consider the whole record and the result of deductions made from the source of knowledge that was at plaintiff’s disposal after years had elapsed, we find that there is a support in the record for monies turned over and unaccounted for, in the amount of $1260.00. As of 1920 we find that on one occasion there was $85.00’ turned over, and on another occasion $33.00, making a total of $120.00 for that year. In 1918 we find that on one occasion $145.00 was turned over and $105.00 on another occasion, making a total of $250.00. In 1919 we find that $35.00 was turned over on one occasion and $75.00 on another occasion making a total of $110.00 for that year. In 1921 we find that on eight occasions $25.00 was paid and on fourteen occasions $30.00 was paid, making a total of $620.00 for that year. In 1924 $80.00 was paid and in 1926 $80.00 was paid, which makes up the total of $1260.00. As we have noted, as to the dates being specific we cannot say that the testimony reaches that point but yet we think it is definite enough to ascertain as far as human intelligence will allow us, that there was a total of $1260.00.

In order to recover, the evidence does not have to be specific and definite if it is of such a nature that mathematical deductions can be based upon the data sufficiently to reach the amount which the jury returned. Simply because the evidence was not specific does not mean that it was incompetent and neither does it mean that the result mathematically, at least .approximately, was not ascertainable. At any rate we have come to the conclusion that there is sufficient foundation in the record for the judgment reached.

Upon the question of $600.00 for attorney fees and $1000.00 by way of penalty because of the rule respecting punitive damages, after an examination of the record it is our conclusion that the failure to account, under all the circumstances of the record, is just as attributable to poor bookkeeping or to inadvertence as it is to the so-called conversions being made because of wilfullness and malice. Our judgment leads us to the conclusion that upon the question of wilfulness and malice the evidence should be of a nature that is clear and convincing because the damages assessed are by way of punishment for the commission of, a wilful and malicious thing and the doctrine,.when such a principle is at stake, partakes of the nature of a criminal charge and for this reason we think the record should satisfy us in a clear and convincing manner that the acts were wilful as well as malicious.. We cannot come to such a conclusion and for this reason we think there is error growing out of the record as to the question of attorney fees and the question of penalty by wav of punitive damages and thus holding we think that in these respects the verdict is excessive and therefore we modify it and the judgment of the court in these respects, and as so modified the judgment is affirmed and an entry may be accordingly.

Vickery, PJ., and Levine, J., concur.


author: PARDEE, J.

text:
    GOODYEAR HEIGHTS REALTY CO v FURRY et
    Ohio Appeals, 9th Dist, Summit Co
    No. 1747.
    Decided December 2, 1929
    Messrs. Benner, Harter & Watters, Akron, for Realty Co.
    Mr. O. H.. Corvington, Akron, for Furry et.
   Syllabus by

PARDEE, J.

1. Restrictions in a deed that the lot conveyed thereby “shall be used for private residence purposes only,” do not prevent the erection upon said lot of more than one residence.

2. The sale and conveyance of lots in an allotment by their numbers upon a recorded plat, to which reference is made in the deeds of conveyance, do not establish a common plan or scheme for the allotment, that the lots sold shall not be subdivided by the purchasers.

3. The sale and conveyance of a lot by its number upon a recorded plat, to which- reference is made in the deed, do not imply a covenant that the purchaser may not subdivide the lot so purchased by him.

4. In the absence of a contract to the contrary, the purchaser of a lot by reference to its number upon a recorded plat, may subdivide the lot conveyed to him.

5. In construing the claims by which it is sought to impress upon lots of an allotment an implied covenant that the lots may not be subdivided by a purchaser, all doubts should be resolved in favor of the free use of said lots.

Full opinion will be published later. Watch Omnibus Index.


text:
    PAULINE SCHMITT v BARBARA SCHMITT
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 8765.
    Decided November 12, 1928
    Messrs. Gordon & Gordon, Cleveland, for Pauline Schmitt.
    Messrs. Kees, Marvin & Goldrie, Cleveland, for Barbara Schmitt.
   EPITOMIZED OPINION

Where husband and wife separated, it not being clear which one abandoned the other, and thereafter the husband opened savings bank accounts in his own name and that of each of two nephews, but it did not appear that the. nephews exercised any control over the accounts until the death of the husband, when each withdrew the money apparently without the request of decedent’s daughter and gave the ■Whole amount to her. taking receipts therefor, it was held that the transactions were conducted in such manner that the money in the accounts belonged to decedent’s estate, that his widow, as administratrix, was entitled thereto, the intent of a gift inter vivos or present joint control being negatived by acts of the parties.

Opinion by

VICKERY, J.

SULLIVAN, P. J. & LEVINE, J., concur.


text:
    COLE v BROWN
    Ohio Appeals, 4th Dist, Scioto Co
    Decided December 23, 1929
    Messrs. Edgar G. Miller and Wm. J. Meyer, Portsmouth, for Cole.
    Messrs. Miller & Searl, Portsmouth, for Brown.
   MIDDLETON, PJ.

It is contended by the plaintiff in error in this proceeding that the trial court erred in giving to the jury before argument at the request of Brown the following special instruction:

“I charge you as the law in this case that at the time plaintiff claims to have sustained the injuries set out in his petition that the Galena turnpike on which, defendant had placed sand and gravel, as set out in his answer, was a public highway of the State of Ohio, and
That the law of the State of Ohio (Section 13421-11 GQ.) stipulates that whoever unlawfully places any obstruction in or upon a public highway shall be fined, etc. Thus prohibiting s.uch unlawful obstruction in said highway.
That this law is one passed for the protection of the public and its violation is negligence per se.
And placing an obstruction in or upon said highway, which would interfere with the lawful travel upon such highway by the public, which obstruction is not guarded with due care to prevent danger to the public in such use, constitutes an unlawful placing of an obstruction upon a highway.”

It is contended that in this instruction the court undertook to set up a standard by which the jury should determine the negligence of Cole under the facts in evidence, and that such standard should have been left to the determination of the jury alone on the question of whether it constituted negligence on the part of Cole.

Section 13421-11 GC. provides as follows:

“Whoever unlawfully places .any obstruction in or upon a public highway shall be fined not more than fifty dollars nor less than five dollars.” .

The evidence shows that Cole placed the sand and graveljjpon the highway without any legal right so to do and that it extended from the west line of the highway across to the marked middle center of the paved road. It necessarily follows that Cole’s negligence was complete when he placed this obstruction on the highway and that the additional requirement mentioned in the instruction of guarding it in some way could not and did not impose ■upon Cole any legal additional burden. The placing of a guard upon said obstruction was as much for his jwn protection as that of the public. It could not avoid the illegal act on his part in the first instance but it might, however, prevent an injury to another and thus release him from liability for his illegal act, or it might impose upon some other party a charge of contributory negligence which would relieve or mitigate Cole’s liability. We conclude, therefore, that this instruction did not impose any duty upon Cole which could- legally increase his liability for his primary act in unlawfully placing an obstruction upon the highway of the character of that disclosed by the evidence.

We can not disturb the. verdict on the weight of the evidence, and as there are no further complaints made in the brief of the plaintiff in error we must affirm the judgment.

Mauck and Blosser, JJ., concur.


text:
    SMITH v GREEN TOWNSHIP BD OF ED
    Ohio Appeals, 4th Dist, Scioto Co
    Decided December 23, 1929
    Messrs. L. R. Andrews, Ironton, and Wm. J. Meyer, Portsmouth, for Smith.
    Messrs. Miller & Searl, Portsmouth, for Bd of Ed.
   MIDDLETON, PJ.

The right to bring an action of this kind is now fully recognized and is well stated by Judge Marshall in Sargent v City of Cincinnati, 110 OS. 444, 451.

It has long been the settled rule in this state that courts will not interfere with acts of a legislative character by public organizations authorized by law to perform the same. In respect to boards of education it is held in Brannon v Board of Education, 99 OS. 369, that

(Here follows quotation)

The cases cited state the general rule and the exception thereto. It is only when there has been a manifest abuse of the power and authority of a board of education in cases of this kind that a court of equity will interfere to restrain its action.

We have given the evidence very careful consideration. Some of the witnesses indicate prejudice, as is usually the case in controversies of this kind. There is, of course, a difference of opmion among the witnesses who testified. We regard the testimony of two members of the defendant board. Lang and Gerlach, as reasonably fair and given without prejudice or passion. Their testimony not only establishes the necessity for the appropriation of the property in question but the propriety of the selection of the same for the purposes it is sought. There is nothing in the testimony of the other witnesses that makes it manifest that under the facts stated by the witnesses named there was any abuse of their power or that of the remaining members of the board. It appears in the testimony that the action of the board in the matter of the selection of the property was unanimous.

It appears from the evidence that two tracts of land are available to the board for enlarging the grounds of the school, one tract is that involved in the instant case and the other tract is owned by a member of the board, G. W. Means. We can not escape the conclusion that to some extent this proceeding is inspired by a personal feeling against Means. Be that as it may, it is well to consider what might follow under these circumstances if this court should restrain the defendant board from procuring the property of the plaintiff under the theory that from the evidence the Means property is the most available. Means would not be bound by any judgment of that kind and in an appropriation proceeding against him he would have the right to raise the same question and assert that the property of the plaintiff or that of some other land owner in the vicinity was the most available. It is certainly apparent that the right and power to make the selection of property must be fully and finally vested in the board of education and when exercised should stand unless it is manifestly wrong and unwarranted.

The law guarantees to the plaintiff full compensation for her property and the payment of her damages. If she is to suffer, as she claims, a great loss by reason of the appropriation of her property she has an adequate remedy at law.

The petition is dismissed.

Mam’k and Blosser, JJ., concur.


author: BLOSSER, J.

text:
    CAMPBELL v JACKSON (City)
    Ohio Appeals, 4th Dist, Jackson Co
    Decided December 18, 1929
    Mr. E. E. Eubanks, Jackson, for Campbell.
    Mr. Frank DeLay, Jackson, for City.
   BLOSSER, J.

The question to be determined is whether the assessment exceeds thirty three and one third per cent of the value of the plaintiff’s premises immediately after the completion of the improvement in question. The defendant resists the reduction of the assessment upon plaintiff’s property, relying to some extent upon the attitude taken by this .court in Rogers vs. Johnson, 21 Ohio App. 292, and Baltimore and Ohio Railroad Co. vs. Village of Oak Hill, 25 Ohio App. 301. In those cases we held that the value of the benefits conferred upon land subject to assessment was not, generally speaking, a judicial question and that it was only when the assessment amounted to a confiscation of property that a judicial question arose. That is not the case at bar. We are not asked nor do we undertake to determine the amount or value of the benefits conferred upon the plaintiff’s property. We have to determine the altogether different question of the value of the plaintiff’s land. That being determined the statute fixes the limit of an assessment that can be made on it to one third the value of that land regardless of the amount of benefits that may really accrue. In the Oak Hill ease this was recognized, but this court found that there was no evidence to show what the value of the railroad property actually was. In the instant case there is testimony tending to show what the value of the plaintiff’s property is. Under the statute limiting assessments to one third of the value of the property as improved there arises a judicial question as to the value of the plaintiff’s property.

The evidence is conflicting.- The discrepancies are due to the opinions held by the various witnesses as to the reasonable use that could be made of the premises. Speculations and remote possibilities should not be considered. The test of value here is the reasonable and likely adaptability of the land. Questions asked of witnesses regarding the basis of - their opinions are not for the purpose of permitting this court to independently arrive at a valuation of the land but are solely for the purpose of determining the weight to be attached to the testimony of each witness.

The members of this court have viewed the improvement and premises in question so as to better understand and apply the testimony of the witnesses. Upon a consideration of that testimony we are inclined to the view that the value placed by the plaintiff’s witnesses more truly represents the value of the premises in question, and we agree with the lower court that the value of said premises immediately after the improvement was completed did not exceed the sum of seven hundred and fifty dollars and that the assessment of five hundred and twenty five dollars is in excess of one third of such value.

A decree will' be entered in accordance with the prayer of the petition enjoining the collection of an assessment in excess of two hundred and fifty dollars against the premises of plaintiff.

Middleton, PJ., and M_auck, J., concur.


author: WASHBURN. J.

text:
    CURRY et v STILL et
    Ohio Appeals, 9th Dist, Summit Co
    No. 1654.
    Decided December 20, 1929
    Messrs. Meade & Weygandt, Akron, for Curry et.
    Mr. Lee J. Myers, Akron, for Still et.
   WASHBURN. J.

There was a conflict in the evidence of the parties in respect to said claims, and the court charged the jury as follows:

“Now, if you find, by a preponderance of the evidence, that, before the time plaintiffs were notified that they should not go ahead, that the making of the contract had been completed by the parties, not • only the signing of it, but also the submission of. the plans to the defendants and the agreement of the defendants to those plans, and that up to the time the plaintiffs were notified not to proceed with the building, the plaintiffs had done everything which their contract required them to do, and th,at the plaintiffs were, at the time they were notified not to proceed, ready, able and willing to build the house, in the manner required by the contract, and within the time limited by the contract, then the plaintiffs are entitled to recover something in this; case; otherwise not.”

It is urged that in so charging the trial court committed prejudicial error; but we do not so find.

Under the evidence in this case, it is apparent that there was no contract to build a house of any particular size and specified arrangement until after plans had been prepared by the plaintiffs and approved by the defendants: and under the evidence the jurors were amply justified in finding that no such plans had been prepared and submitted to the defendants at the time they notified the plaintiffs not to go ahead, and in the absence of such plans, the record in this case does not show that there was a meeting of the minds of the parties upon the size and arrangement of the very subject-matter of the ^contract.

It is elementary that a contract is incomplete when certain terms are agreed upon but other important terms are to be settled by future negotiations between the parties; and where such incompleteness renders the same uncertain as to subject-matter, it is not enforceable without proof that such uncertainty was removed by the later agreement of the parties. Here the plans for the house were not agreed upon but were left for further negotiations, and therefore the writing was so uncertain as to render it unenforceable as a contract if plaintiffs failed to prove that after the writing was signed defendants approved plans for the house.

It is also urged that the trial court erred in rejecting evidence offered relative to the damages suffered by the plaintiffs; but as to this claim we find no error, for the reasons stated to counsel when this cace was argued.

Finding no prejudicial error in the record, the judgment is affirmed.

Funk, .PJ., and Pardge, J„ concur.


text:
    SWETLAND CO v BARNETT
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10426.
    Decided December 23, 1929
    Messrs. Thompson, Hiñe & Flory, Cleveland, for Swetland Co.
    Messrs. Lanza & Litt, Cleveland, for Barnett.
   VICKERY, PJ.

We think the court was in error, — not that it deducted the $175-, because it seems to have been a vacation under the circumstances caused by the action on the part of the plaintiff company in turning off the lights and so in a measure amounted to an eviction by the defendant below, and we find no fault with the court in deducting $175 from the plaintiff’s claim,— but there is no evidence in the record to warrant an entering of a judgment on the counterclaim and, therefore, the court was in error with respect to this $220.06, it being within the power of the court to modify this entry and the facts being fully before us, we modify the judgment by adding to the plaintiff’s claim the $220.06 that was wrongfully deducted from it by the judgment on the counterclaim and affirm the judgment as modified so that the plaintiff will recover $311.17.

Sullivan and Levine, JJ., concur.


text:
    BARNETT v GLOGER
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2233.
    Decided December 23, 1929
    Messrs. Brown & Sanger and S. M. Douglas, Toledo, for Barnett.
    Messrs. Miller & Miller and C, P. Carroll, Toledo, for Gloger.
   WILLIAMS, J.

The clause by which the plaintiff agreed not to engage in the same business in Toledo for a ten year period was valid and complied with the rule applicable to such cases. Where the restraint is partial and founded upon a valid consideration and the contract is reasonable and not oppressive, the contractual obligations are binding and can be enforced. Lange vs. Werk, 2 Ohio St., 520. In the case of A. Beesch Company vs. William F. Schmidt, 20 Court of Appeals Opinions, 6th District, unreported, p. 259, it was held that an agreement not to compete- in the same business for a ten year period was not an unreasonable restraint of trade. We also call attention to the following cases:

Ewing vs. Davis, 2 C. C., N. S., 90;

Paragon Oil Co. vs. Hall, 7 C. C., 240.

In the case of Morgan vs. Perhamus, 36 Ohio St., 517, it was held that where M, engaged in carrying on the business of millinery and dressmaking, sold her stock of goods with the good will of the business and agreed not to carry on the business in the future at the town of F, or at any place within such distance of said town as would interfere with such business, whether the same was carried on by the purchasers or their successors, such agreement in equity is binding and on action brought by the successors of the purchasers M will be enjoined from carrying on such business in violation of the agreement.

We find that the partnership was dissolved by mutual agreement. On the other hand, if we were compelled by the evidence to make a finding that it was not so dissolved, still the plaintiff would be barred for the reason that he has transferred his interest to the defendant and received $4,000.00 as a consideration therefor, which he retains. Counsel for plaintiff makes the claim, however, that if plain- • tiff had not complied with the order of the court as to the- execution and delivery of the bill of sale covering his interest, he would have been in contempt of court and that he was not able to file his appeal bond until long after the period fixed by the court for executing the instrument of transfer had transpired and that therefore the transfer was involuntary on his part and should not be considered binding. The claim of counsel for plaintiff is not well founded. It will be observed that the bill of sale was not executed until after the period fixed by the court. Howbeit, by the terms of the decree, if the bill' of sale had not been executed, the decree itself operated as a transfer upon payment of the. money, and certainly the plaintiff can not avoid the instrument of transfer so long as he retains the money paid in consideration thereof. There is no evidence that plaintiff was unable to give an appeal bond before he executed the bill of sale and received the $4,000.00.

For the reasons given a decree will be entered for the defendant upon,, the cross-petition and the amended petition will be dismissed and plaintiff is enjoined during the remainder of the ten year period from engaging in business in accordance with the terms of the contract in question.

Lloyd and Richards, JJ., concur.


author: SHERICK, J.

text:
    HART v CONGER HELPER REALTY CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10203.
    Decided December 23, 1929
    Mr.- H. E. Kohen, Esq., Cleveland, for Hart.
    Messrs. Thompson, Hiñe & Flory, Cleveland, for Realty Co.
    LEMERT, P. J. & SHERICK, J. (5th Dist) sitting.
   SHERICK, J.

Two questions are, therefore, before this court for consideration, the first of which is as follows:

May a defendant assert the statute of frauds as a bar . to an action under an answer in the form of a general denial?

We believe that this question has been fully answered by the Supreme Court in the case of Birchell vs. Neaster, 36 OS. 331 and that this question is no longer an open one in Ohio, and that the statute of frauds may be proven under a general denial.

The second question is: Can one recover commissions for the sale of real estate made in the year 1924 pursuant to a parol contract made in the same year, the action not having been commenced therefor until the year' 1927? ~

It is well settled in this State that there is no vested right to a remedy, and the legislature may, at any time, amend or repeal any such remedial statute, provided that such amendment shall not affect a pending action, unless specifically provided for in the amending section. This is forbidden by 36 GC.

This question has likewise been before the courts of this State, and it has been decided that the statute of frauds is remedial in its nature and lays down a rule of evidence. Rules of evidence are applicable to the remedy only and a statute which modifies a remedy is not in conflict with the constitutional guaranty against the enactment of retroactive laws.

The amendment to the statute of frauds became operative on July 9th, 1925. and the cause of action herein sued upon was not commenced until the year 1927. It, therefore, follows, that the rule annnouneed, precludes the plaintiff in error from any recovery upon the. oral contract plead in this instance, and we believe that the case of Elder vs. Shoffstal, 90 OS. 265; 107 NE 539 is direct authority for the rule announced herein.

The case of State ex rel Campbell vs. Ballard, 8 OA. 44; Schoenl vs. Warner White Co., 2 Ohio Bar 59; Ward vs. Schwartz, 25 OA. 175, and the recent case of Cliff vs. Seligman, decided by Judge West in the Federal District Court of the Northern District of Ohio, Eastern Division, on January 15th, 1929, are also in point.

It, therefore, follows, that the judgment of the trial court will be and the same is hereby affirmed with exceptions.

Lemert, PJ., concurs. Houck, J., not participating.


text:
    CHICAGO SMELTING & REFINING CO v PERFECTION SMELTING CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10419.
    Decided December 13, 1929
    Mr. Jos. G. Ehrlich, Cleveland, for Chicago Smelting Co.
    ’ Mr. N. D. Davis, Cleveland, for Perfection Smelting Co.
   SULLIVAN, J.

One of the assignments of error is that numerous exhibits were offered in evidence but upon the objection of the defendant, were not admitted. These exhbiits are part of the record in the case and are original communications passing from the plaintiff to defendant in the course of the transaction and concerning the provisions of the agreement and the method by which they came into the record is that during the trial the plaintiff demanded the same from the defendant, and securing them undertook to use them in its own behalf. The ground of the objections which the court sustained to the use of the exhibits is because of the claim that they were self-serving declarations but we do not think this position is tenable for the reason that while .they originated with the plaintiff they had passed from its possession into the possession of the defendant and through the instrumentality of the defendant and procedure in open court for the production of the papers the exhibits came into the hands of the plaintiff and in this way it attempted to use them as evidence in the case, but was prevented as above noted by the ruling of the court thereon. It is argued by able counsel for defendant in error that this assignment of error is not prejudicial because evidence of a similar character to that contained in the letters and exhibits, was offered and submitted in the case. This does not, however, change the fact that the plaintiff w,as entitled to the use of these exhibits in the case because they shed light upon the issues raised by the pleadings and the proof, both as to the material and the provisions of the contract relating thereto, and especially upon the question of the .acceptance of the goods. The passing of the exhibits in question out of the possession of plaintiff to the defendant and the return thereof through court procedure, to the plaintiff, and the attempted use thereof, took them out of the class of self-serving declarations and they were not declarations in line with that doctrine, because the real source of the attempted use of the exhibits during the trial were from the defendant instead of plaintiff, and that they were competent if not self-serving, is consistent with the record which shows that proof, verbal, of a similar character, .was offered and submitted in the case.

One of the purposes apparently, as it appears from the record, of the introduction of these exhibits, was to show that there had never been an acceptance of the material by the plaintiff and that consequently the plaintiff could not be held because of acceptance. We think therefore that prejudicial error was committed in the denial of this proof.

Upon the assignment of error that the judgment is clearly and manifestly against the weight of the evidence, we deem it unnecessary to pass thereon for the reason that the court below excluded the evidence as to the exhibits and to consider the question of the weight of the evidence becomes immaterial.

Holding these views, the judgment of the lower court is hereby reversed and the cause remanded for further proceedings according to law.

Vickery, PJ., and Levine, J., concur.


text:
    SCHNACHKE et v UHER et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 10454.
    Decided December 23, 1929
    Mr. Arthur A. Neiger, Cleveland, for Schanachke et.
    Messrs. Boyd, Cannon, Brooks & Wick-ham, Cleveland, for Uher et.
   VICKERY, PJ.

While it might be true that technically speaking, the set-off not existing at the time the suit was brought it perhaps could not be used, nevertheless it is, admitted in open court that the monument has been erected and the cost of putting it in place was a trifle more than the court allowed, and it is admitted that the plaintiffs in error, the plaintiffs below, had agreed to pay one-third of the cost.

It seems as if it were a silly thing to reverse this judgment and to permit the costs to pile up and to permit further litigation between the brothers and sisters of a family over the erection of a monument at the graves of their parents. Inasmuch as substantial justice has been done, and the plaintiffs below, if this judgment were reversed, would have to pay more toward the erection of the monument than is charged against them, we cannot see any purpose in reversing this judgment.

The judgment therefore, being properly rendered, there is no error in the record that would warrant us disturbing it, and the same is therefore affirmed.

Levine and Sullivan. JJ., concur.