text:
    COLLINWOOD SLOVENIAN HOME CO., Appellant, v. BOARD OF LIQUOR CONTROL, Appellee.
    Common Pleas Court, Franklin County.
    No. 193069.
    Decided November 13, 1956.

      John T. Feighan, Jr., Cleveland, for appellant.
    C. William O’Neill, Atty. Geni., S. Noel Melvin, Asst. Atty. Geni., Columbus, for appellee.
   OPINION

By BARTLETT, J.

THE ORDER OF THE BOARD OF LIQUOR CONTROL (SUSPENDING APPELLANT’S D-l AND D-2 PERMITS), IS REVERSED AND THE APPEAL THEREFROM SUSTAINED.

This is an appeal from an order of the Board of Liquor Control under §119.12 R. C., wherein said Board suspended appellant’s D-l and D-2 permits, based on a Sunday sale of 2 bottles of malt beverage in excess of 3.2 of alcohol by weight, to-wit: beer, upon the permit premises.

The two witnesses were Cleveland police officers. One of them ordered a bottle of bock beer, but the bar tender, said “I can’t serve you that. This is Sunday.” The officer said “Well give me a glass of beer then.”

Both officers testified that a patron later ordered 2 bottles of beer, paying 40c for them; and that the 2 bottles of beer were confiscated by them. There is no testimony by the officers as to what they did with the two bottles of beer after they left the permit premises.

This raid took place March 20, 1955; and a purported affidavit marked Ex. C was offered in evidence by the department, stating the specimens (2 bottles of beer) were received from the Cleveland police department, April 1, 1955; and the affidavit is by Walter H. Doring, identified solely as “Chief Chemist,” who gives his alleged analysis of the specimens.

Sec. 119.12 R. C., provides “The hearing in the Court of Common Pleas shall proceed as in the trial of a civil action, and the court shall determine the rights of the parties in accordance with the laws applicable to such action.”

Surely, if such proceeding is worthy of being designated as, “the trial of a civil action,” the witnesses should have traced the specimens to the place and person, who made the alleged analysis; and some showing made as to the identity and qualifications of the person purporting to have made the alleged analysis.

Moreover, only such an affidavit was offered as to the chemical analysis of the specimens.

The fact the permit holder was not present, made it all the more the duty of the Board, as well as this Court, to see that proper proof was adduced.

“The function of affidavits as evidence is limited; * * * but at the trial of the cause the adverse party has the right to cross-examine witnesses as to the facts in issue to which they testify, and affidavits are not admissible to prove those facts. In other words, an issue upon which the right of a plaintiff would depend for the purpose of obtaining a judgment against the defendant cannot be tried upon ex parte affidavits,” 2 O. Jur. (2d), Affidavits, Sec. 17. Use as evidence, p. 23.

If an affidavit is not proper evidence as to facts in issue at a trial, certainly an affidavit by a person as to the chemical analysis of the specimens submitted in the instant case, cannot be accepted as reliable and trustworthy, where such person making the affidavit is not identified and his qualifications as such, are not established by evidence.

Consequently, the court on consideration of the entire record, fails to find that the order of the Board is supported by reliable, probative and substantial evidence and in accordance with law; and, therefore, reverses said order and affirms the appeal therefrom.


source: Caselaw Access Project

author: By PHILLIPS, PJ.

license: Public Domain

text:
    PETERS, Plaintiff-Appellant, v. DENSMORE, Defendant-Appellee.
    Ohio Appeals, Seventh District, Lake County.
    No. 559.
    Decided September 8, 1955.

      Sieman, Sieman & Sieman, Cleveland, for plaintiff-appellant.
    Robert D. Soules, Painesville, for defendant-appellee.
   OPINION

By PHILLIPS, PJ.

Plaintiff, a passenger on a Central Greyhound Lines bus enroute to Painesville, Lake County, Ohio, alleged in his petition filed in the court of common pleas that he was injured as the result of defendant’s negligence in operating an automobile from a secondary street into collision with the bus, in violation of a stop sign situated on the secondary street for the protection of traffic moving over and along the main highway on which the bus was being operated about 12:07 A. M. on the morning of October 21, 1952.

By answer defendant admitted liability but specifically denied by answer and opening statement in the trial court, and by argument here, that the plaintiff sustained any of the injuries which he claimed to have sustained as the result of the collision of defendant’s automobile with such Greyhound bus.

The jury returned a verdict for the defendant, upon which the trial judge subsequently duly entered judgment, and from which the plaintiff appealed to this court on questions of law.

By his first assigned ground of error plaintiff maintains that “the court committed prejudicial error in failing to direct a verdict for the plaintiff upon the pleadings and opening statement, and to instruct the jury to determine only the amount of damages, if any, due the plaintiff for his injuries, pain, suffering and other expenses.”

In support of this assigned ground of error plaintiff argues by brief:—

“It is our contention that even though plaintiff’s counsel, through oversight, failed to request that the court direct a verdict for the plaintiff on the pleadings and opening statements, that taking into consideration the clear-cut admission of negligence on the part of the defendant, the lower court had a duty upon its own motion and initiative to direct a verdict for the plaintiff and to instruct the jury to render a verdict in whatever money amount they felt would compensate him.”

We have considered the evidence of plaintiff’s injuries, which revealed that he was suffering from an “irritation of the covering of the muscles” and injuries to the neck and lumbar regions, and the conflicting evidence as to the cause of such injuries, and reach the conclusion that the evidence presented a question for the determination of the jury as to whether plaintiff sustained the burden of proof imposed upon him to prove to the jury by the preponderating weight of the evidence that his claimed injuries resulted from the collision of defendant’s automobile with the Greyhound bus in which he was riding, which burden we conclude he failed to carry.

The trial judge did not err to plaintiff’s prejudice in the respects urged in his first assigned ground of error.

By his second assigned ground of error plaintiff charges that “the court erred and committed error prejudicial to the plaintiff by submitting two forms of verdict to the jury for their consideration in their deliberations.”

Supporting this assignment of error plaintiff cites the case of Haines v. Cleveland Railway Company, et al, 141 Oh St 523, and argues in support of his contention that:—

“Having failed to direct a verdict for the plaintiff upon the pleadings and opening statement under the admitted liability so clearly admitted by the defendant, the court at the very least had a duty to submit but one form of verdict to the jury at the close of all the evidence, and that should have been a plaintiff’s verdict form. We submit that the court committed prejudicial error in giving to the jury two forms of verdict, one for the plaintiff and one for the defendant.”

The cited case of Haines v. Cleveland Railway Company, supra, in which the Chief Justice and two judges of the Supreme Court dissented, is distinguished from the case under consideration by the fact that in that case defendant admitted injury to the plaintiff as well as liability, while in the case under consideration defendant admitted liability but denied that plaintiff’s injuries resulted from such collision.

Under the facts in the case we review we conclude that the trial judge could do nothing but submit two forms of verdict to the jury for the reason, as stated by defendant’s counsel by brief, “that the mere fact that liability is admitted does not, in itself, mean that the plaintiff was injured or is entitled to recover,” as no implication can be drawn from the testimony of defendant’s medical witness Duncan that the injuries of which plaintiff complained resulted, or might have resulted, from the collision of defendant’s automobile with the Greyhound bus in which plaintiff was riding.

The trial judge can not be charged with the error claimed in plaintiff’s second assigned ground of error.

In his third and fourth assigned grounds of error plaintiff contends that:—

“3. The court erred in admission of improper evidence offered by the defendant over the objection of the plaintiff, to which plaintiff took his objection and exception.
“4. The verdict of the jury appears to have been given under the influence of passion and prejudice.”

Plaintiff states by brief that these two assigned grounds of error are argued together:—

“* * * inasmuch as they each have a direct bearing upon the other as the introduction of certain inadmissible evidence helped to create an abundance of passion and prejudice, against this plaintiff.
“One of the most glaring examples of prejudicial error committed by the trial court was its admission of a written statement admittedly signed by the plaintiff on November 12, 1952, some three to four weeks after the happening of the collision and the resultant injuries.”

This statement was admitted over plaintiff’s objection. In it he stated “I was involved in an accident and as far as I know I was not injured.”

Asked why he had signed the statement he said “I thought that pain would leave, I didn’t want to make an issue of the matter.”

With reference to this statement plaintiff contends:—

“* * * that a signed written statement of this sort in order to be admissible into evidence must be an admission against interest, not self-serving or a statement of mere conclusions, and before such statement might be admitted for impeachment purposes, there must be some inconsistent or contradictory testimony or answers on the part of the plaintiff. A search of the record will show that nowhere did the plaintiff deny making and signing the written statement, and nowhere was there any contradictory or inconsistent testimony concerning the signing of said written statement.”

In the plaintiff cited case of Babbitt v. Say, Admr., 120 Oh St 177, upon which plaintiff relies to support his contention of prejudicial error in the admission of such statement, the supreme court held that:—

“* * * it is not prejudicial error to refuse admission of such written statement in connection with the cross-examination of such witness, there being no denials that would show contradiction and thus lessen the credit of the witness.”

As to whether the bill of exceptions reveals contradictory or inconsistent testimony concerning such statement plaintiff testified as outlined by defendant’s brief that:—

“* * * the accident happened on the 21 day of October, 1952; that he had a congenital back condition and that he had sustained an injury to his back prior to the date of this accident, and that he had been under the care of Dr. Humphries at the Cleveland Clinic, who had been treating him at regular and frequent intervals over a long period of time; that on the 6 day of November, 1952, being approximately two weeks after the accident, the plaintiff again went to Dr. Humphries and that on the 12 day of November, 1952, which was approximately three weeks after the accident and approximately one week after he had visited Dr. Humphries on November 6, 1952, the plaintiff made the statement that as far as he knew, he was not injured in any way in the accident. However, in other portions of the plaintiff’s testimony, he states that in the accident his brace was bent and he suffered pain and discomfort the morning following the accident; the two statements in respect to their contents and time being wholly inconsistent, one with the other.”

Defendant contends that “the plaintiff does attempt to contradict his statement by attemping to qualify and negative that portion which states that so far as he knew he was not injured.”

With reference to the claimed error of cross-examination of plaintiff by defendant relative to other accidents prior and subsequent to the collision under consideration in our opinion the defendant was entitled to establish the fact of such injuries on cross-examination, especially since plaintiff did not object except to questions asked about an automobile collision in which plaintiff was involved in Ashtabula on July 11, 1953, the objection then being as to the materiality of the question: “What damage was done to the other car,” and to pertinency of the question “how fast were you going.”

Plaintiff agrees “that defense counsel has a right to question as to other incidents to test plaintiff’s veracity and credibility, but the defendant certainly has no right to go into detail when there is no plausible direct connection between certain incidents and the injuries claimed by the plaintiff”; but contends that “the plaintiff has the right to have the issues concerning the nature, extent and permanency of his injuries decided by the jury, free and clear from any and all extraneous matters which are inflamatory, prejudicial, and which only serve to sidetrack, confuse and create passion and prejudice in the minds of the jurors, all to the detriment of a fair and impartial consideration on their part of plaintiff’s claims.”

We find no merit in plaintiff’s foregoing contention nor complaint that:—

“* * * a situation existed which often is presented upon the trial of a case in a smaller county such as Lake County. The original panel of jurors had four or more jurors who were at the time or previous thereto clients or past clients of the attorney representing the defendant. We could not challenge said jurors for cause inasmuch as we felt the court would not discharge them because of such relationship as long as they stated under oath that their acquaintanceship with defense counsel in a business way would not interfere with their being fair and impartial. However, because the verdict rendered in this case is shocking to the conscience and certainly substantial justice has been done this plaintiff (sic), we feel that said relationship along with the submission of the two forms of verdict in addition to the reference to other inadmissible evidence of previous and subsequent accidents, plus the important error of admitting the written statement, all in, sum total caused a verdict for the defendant to be rendered under passion and prejudice.”

We cannot conclude that by reason of any of the foregoing errors that “a gross miscarriage of justice has been done in this case.”

Now we come to consider plaintiff’s fifth assigned ground of error that “the verdict and judgment entered thereon are manifestly contrary to the great and undisputed weight of the evidence and are not sustained by sufficient evidence.”

We concur in the statement made by brief by counsel for the defendant that:—

“An examination of the record will show continuous and repeated evasiveness on the part of the plaintiff while testifying. The record further shows that at no time did the plaintiff suffer any direct or indirect loss from wages, income, time at work or time in school. The record further shows that he had a congenital condition of the back; that he had suffered prior injuries to his back; that no other passenger upon the bus sustained any injuries of any kind, according to the testimony of the police officer who testified for the plaintiff; that the plaintiff had been under the care of Dr. Humphries at the Cleveland Clinic, who treated him at frequent intervals and who was constantly straightening the brace worn by the plaintiff. Dr. Duncan testified that he could find absolutely nothing wrong with the plaintiff which could be related in any way to the bus accident. Therefore, as I view this case, this court of appeals can come to but one conclusion, and that is, that the jury, who observed the demeanor and heard the evidence of all of the witnesses, are the ones best suited to determine whether or not the plaintiff sustained those injuries complained of. We cannot agree with the plaintiff that there was anything which transpired during the trial of this case which would give rise to passion or prejudice.
“It is true that the plaintiff incurred some medical expense after this accident, but it was apparently obvious to the jury that any medical expenses incurred were merely a continuation of the long series of treatments which the plaintiff had undergone prior to the accident.”

The simple question in the case is: Did plaintiff sustain the injuries, or any of them, of which he complains in his petition as the result of the collision of the defendant’s automobile with the bus on which plaintiff was riding on October 21, 1952?

The jury answered that question in the negative, and we cannot disturb its verdict on any of the grounds urged by the plaintiff.

Appellant’s counsel has failed to call our attention to “other errors apparent upon the face of the record,” as alleged as a ground of error, or to comply in respect thereto with the provisions of Rule VII of this court that his briefs “shall contain a statement of the questions presented and a succinct statement of so much of the cause, referring to the pages of the record, as is necessary to show how the questions arose, together with a statement of the authorities relied upon.” Accordingly we will not pass upon this assigned ground of error.

The judgment of the court of common pleas is affirmed.

GRIFFITH, J, concurs.

NICHOLS, J, concurs in judgment.


author: Per CURIAM:

text:
    WOLFROM, Plaintiff-Appellant, v. WOLFROM, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23846.
    Decided October 17, 1956.
    Francis E. Picklow, H. E. Elliott, for plaintiff-appellant.
    M. Morgenstern, B. B. Direnfeld, for defendant-appellee.
   OPINION

Per CURIAM:

In this action here appealed on questions of law from the Court of Common Pleas, the trial judge granted a divorce to the plaintiff wife with allowance of alimony for her sustenance and support but granted custody of the minor child of the parties to the defendant husband.

The petition contains a prayer for attorneys’ fees and a separate motion was also filed for attorneys’ fees and expenses of counsel for plaintiff wife who had no funds of her own with which to pay such expenses.

The record (Ex. 453) shows that the court indicated to counsel that the matter of attorneys’ fees and expenses, together with all other questions, would be considered upon final hearing. However, on final hearing, no provision was made for attorneys’ fees and expenses, and no reference was made thereto in the journal entry but the court reserved the case for further review and further consideration pf the subject of ahmony for sustenance and support on and after December 31, 1956. The record also shows that an issue was made in the pleadings and evidence as to the ownership of certain real property at 13874 Shady Oak Boulevard, the plaintiff claiming it was owned in common by them and that this issue also was not decided by the court.

Since the prosecution of this appeal, the plaintiff wife has died and the issues of divorce and custody of the minor child and alimony for the maintenance and sustenance of wife have thus become moot. However, allowance of alimony as and for attorneys’ fees and expenses has not been determined, the amount of which may conceivably be affected by the findings of the court as to the ownership of the real property in question consisting of the house and lot located on Shady Oak Boulevard, Garfield Heights, Ohio.

The judgment as to divorce and custody of the minor child and alimony allowed for sustenance and support is affirmed and cause remanded to the Court of Common Pleas for consideration and determination of allowance as and for attorneys’ fees and expenses of wife and for consideration and determination of property rights.

KOVACHY, PJ, SKEEL, J, HURD, J, concur.


author: By WISEMAN, J: CONN, J, By CONN, J.

text:
    SLOTHOWER et, Plaintiffs-Appellants, v. DAYTON POWER AND LIGHT COMPANY, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2360.
    Decided December 27, 1956.

      Sharts, Singer & Brown, Dayton, By Robert M. Brown, of Counsel, for plaintiffs-appellants.
    Roy D. Boucher, Dayton, for defendant-appellee.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By WISEMAN, J:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, Ohio, sustaining defendant’s motion for judgment on the pleadings as to the plaintiffs’ fourth cause of action in their third amended petition.

To the plaintiffs’ third amended petition the defendant filed an answer by way of general denial, and a cross-petition. To the cross-petition the plaintiffs filed a reply in the nature of a general denial. Later defendant company filed a motion for judgment on the pleadings with respect to the plaintiffs’ fourth cause of action, which was sustained. The court granted plaintiffs leave to file a fourth amended petition. From this order an appeal was taken to this Court. Finding that the order was not a final order from which an appeal could be taken, the plaintiffs elected not to plead further and judgment was rendered in favor of the defendant on the plaintiffs’ fourth cause of action. From that order this appeal was taken.

The first question presented involves a procedural matter. By answering, the defendant waived any right to file a demurrer. Vol. 31, O. Jur., Sec. 125, pages 684, 685. However, the filing of an answer and cross-petition did not deprive the defendant of the right to file a motion for judgment on the pleadings. While a motion for judgment on the pleadings raises a question of law only, it can not be sustained where there are essential questions of fact placed in issue by the pleadings. However, if the petition is defective in that it fails to allege an essential element, the judgment on the pleadings may be sustained even though certain questions of fact are controverted. The fourth cause of action is based on the provisions of §§9334, 9335 and 9336 GC (now §4933.17 R. C.). The first and second causes of action were for damages based on breach of contract for failure of the defendant company to furnish to the plaintiffs gas and electric service. The third cause of action was for damages for refusal to furnish the plaintiffs such services with respect to another property. The fourth cause of action stated that the plaintiffs “reiterate the facts set forth in the first, second and third causes of action as if here repeated.” Plaintiffs further allege that they are freeholders and financially responsible in an amount sufficient to secure the payment of all bills for services furnished them for at least sixty days; that defendant company required the plaintiffs, before furnishing the service, to make a cash deposit of $10.00; that said deposits have been retained by defendant and that the defendant demands of plaintiffs the payment of unpaid bills for electric and gas service in the amount of $436.07. The plaintiffs pray for treble damages on their first, second and third cause of action under the provisions of §614-68 GC, and on their fourth cause of action pray for a forfeiture of all claim for payments for all electric and gas services furnished by the defendant to the plaintiffs under the provisions of §§9334, 9335 and 9336 GC, and for a temporary and permanent injunction against the further deprivation of services.

To the petition the defendant filed a general denial and in its cross-petition prayed for a judgment in the sum of $449.38 on unpaid gas and electric bills for services furnished to the plaintiffs.

While the incorporation by reference of the allegations in the first, second and third causes of action into the fourth cause of action did not strictly comply with the provisions of §11331 GC, we are disposed to give the pleadings a liberal construction “with a view to substantial justice.” Sec. 11345 GC.

Giving the allegations in the first, second and third causes of action, incorporated by reference in the fourth cause of action, their full legal effect, such allegations do not strengthen the fourth cause of action with respect to the principal question at issue. However, the allegations in the fourth cause of action place the plaintiffs squarely within the provisions of §9334 GC et seq. Sec. 9334 GC, in part provides:

“No person, firm or corporation engaged in the business of furnishing gas, water or electricity to consumers of such products, shall demand or require a consumer to deposit cash in any sum whatever as security for the payment of any bills for such commodity to be so furnished, if the proposed consumer be a freeholder who is financially responsible or a person who is able to give a reasonably safe guaranty in an amount sufficient to secure the payment of bills for sixty days’ supply.”

Sec. 9335 GC, provides:

“The making of any rule, regulation or requirement in conflict with any of the provisions of the preceding section, is strictly forbidden, and hereby declared to be unlawful.”

Sec. 9336 GC, provides:

“Any person, firm or corporation violating any of the provisions of the second preceding section, upon conviction thereof, shall forfeit all right to collect or receive any sum whatever from such consumer for gas, water or electricity so furnished.” (Emphasis ours.)

The suit being instituted in 1948, the provisions of the General Code control.

The lower court sustained the motion for judgment on the pleadings and dismissed the plaintiffs’ fourth cause of action on the ground that the plaintiffs failed to allege a “conviction” of defendant company as provided in §9336 GC. The question presented here is: Did the legislature intend in the enactment of this section and the use of the word “conviction” to refer to a criminal proceeding, or simply a civil forfeiture? The appellee contends that the word “conviction,” as used in this section, is a technical term and refers to a judgment of guilty in a criminal proceeding. The appellants contend that the word “conviction” as used in this section refers to a civil forfeiture of the right of the defendant company “to collect or receive any sum whatever from such consumer for gas, water or electricity so furnished.” It is to be noted that §9336 GC, refers to a violation of any of the provisions of §9334 GC. We find no other related sections applicable to the situation presented here. The appellants contend that there is no penal section in the General Code making a violation of §9334 GC, a criminal offense. There is no procedure provided in the sections mentioned for the prosecution of a defendant for such violation. While it is true that the word “conviction” as used in criminal proceedings, and in statutes relative to criminal procedure, refers to a judgment of guilty, the word carries another connotation. Thus it is said in Vol. 18, C. J. S., page 97, that while “the word is intimately bound up with the criminal law, and it has been said that in criminal procedure the word is of equivocal meaning, having both a popular, and a technical legal, signification, the construction not always being uniform, but depending upon an interpretation of the particular law or statute under consideration.”

In Vol. 18, C. J. S., page 98, is found this statement:

“ ‘Conviction’ is not necessarily restricted to criminal prosecutions, but in its most extensive sense the term signifies the giving of judgment against a defendant, and will apply to a civil as well as to a criminal action; also a condemnation. In prosecutions for violations of ordinances to recover penalties, the courts have applied the term to persons found guilty in such civil actions.”

Also in Vol. 9, Words and Phrases, Permanent Edition, is found a reference to a case from New Jersey involving the regulation of the sale of liquors. The court said, in respect to Davis v. Repp, 75 A. 169, 170, 79 N. J. L. 394, as follows:

“It is not necessary under supplement to P. L. 1906, p. 199, regulating the sale of liquors that the petition for revocation should state that the person complained of had been convicted of the offenses charged; the word ‘conviction’ as used in the act providing that his license shall thereby upon conviction become forfeited, referring to the forfeiture, and not to the complaint.”

A civil action for a forfeiture has some aspects of a criminal proceeding. In Vol. 19, O. Jur., Section 8, page 209, is found this statement:

“The line of demarcation between actions for a forfeiture, which are civil actions externally, but criminal in reality, and actions for a like object which are of a purely civil nature, has been said to be plain and unmistakable. If the judgment of forfeiture necessarily carries with it, and as a part of the sentence, a conviction and judgment against the person for the crime committed, the proceeding is one of a criminal character; but where the proceeding does not involve the personal conviction of the wrongdoer for the offense charged, the remedy is plainly one of a civil nature.”

The words of Justice Brandéis at page 400, Helverding v. Mitchell, 303 U. S. 391, 58 S. Ct. 630, are appropriate and applicable here:

“Revocation of a privilege voluntarily granted, forfeiture of goods of value, and the payment of fixed or variable sums of money, are sanctions enforceable by civil proceedings and are not essentially criminal and subject to procedural rules governing criminal prosecution.”

See also Hawkins v. Furnace Co., 40 Oh St 507, 514.

In Vol. 19, O. Jur., Section 2, page 203, forfeiture is defined as: “a deprivation or destruction of a right in consequence of the nonperformance of some obligation or condition. * * * a forfeiture may be defined as the divestiture of property without compensation in consequence of some act or omission prohibited by law. Forfeitures, as thus defined, are imposed by way of punishment, not by the mere convention of the parties, but by the law-making power to insure a prescribed course of conduct.” It appears that the legislature, in the enactment of §§9334, 9335 and 9336 GC, was prescribing forfeiture as a punishment against a utility company for its failure to follow a prescribed course of conduct in its dealings with its consumers.

No. 2369.

Decided May 2, 1956.

(CONN and DEEDS, JJ, of the Sixth District, sitting by designation in the Second District.)

If the legislature intended the defendant company to be first convicted in a criminal proceeding before the user could claim the benefit of §9336 GC, it certainly would have prescribed the procedure and have provided a penalty for the violation. In construing these three sections together, and they are in pari materia, we conclude that what the legislature intended to do was to provide for a forfeiture against the offending company against their right to collect or receive payment for services furnished. This question may be resolved in a civil action such as has been instituted by the plaintiffs. If, upon trial, it is found as a matter of fact that there has been a violation then the court can declare a forfeiture.

Having determined that a good cause of action is stated in the petition, to which the defendant filed an answer in the nature of a general denial which raises certain factual issues, the Court could not sustain a motion for judgment on the pleadings. The lower court committed prejudicial error in sustaining defendant’s motion for judgment on the pleadings. Judgment reversed and cause remanded for further proceedings according to law.

HORNBECK, J, concurs.

CONN, J,

concurs in the judgment of reversal on the ground that issues of fact are raised on plaintiff’s fourth cause of action.

OPINION

By CONN, J.

The original petition in this case was filed in the common pleas court on November 26, 1948, containing three causes of action, in which plaintiffs claimed damages against defendant in the total amount of $3,000.00, and “triple damages for violation of §614-68 GC.”

The pleadings in this case and transcript of the docket and journal entries show an extended and somewhat confused procedural record. In addition to plaintiffs’ original petition, they filed successively an amended, second amended and third amended petition. Each of said amended petitions contained the three causes of action set up in the original petition and a fourth cause of action wherein plaintiffs claim that by reason of certain alleged wrongful acts of defendant it had forfeited all claims to payments from plaintiffs of pretended unpaid bills, and praying for a temporary and permanent injunction, in addition to their prayer for money damages.

In their fourth cause of action, plaintiffs incorporated by reference, in each of their amended petitions, the allegations in their first, second and third causes of action.

April 5, 1954, the defendant filed its answer and cross-petition to which plaintiffs filed their answer thereto on April 20, 1954.

Thereafter, on December 29, 1954, and after the issues had been made up on the pleadings, defendant filed its motion for judgment on “plaintiffs’ alleged fourth cause of action” of their third amended petition, on the ground that “upon the statements in the pleadings filed herein and for the reason that said alleged fourth cause of action does not constitute a cause of action.”

The trial court, on February 25, 1955, sustained defendant’s motion for judgment and, on the court’s own motion, it found that plaintiffs had failed to comply with a former order of the court, sustaining a demurrer to the same allegations as are now set forth in the fourth cause of action of said third amended petition, and ordered said fourth cause of action stricken. It was further ordered that “plaintiffs may file a fourth amended petition, if they desire.”

Thereupon, plaintiffs duly filed their notice of appeal, on questions of law, from the judgment of the trial court, sustaining defendant’s motion for “judgment on the pleadings and striking plaintiffs’ fourth cause of action from the files.”

Thereafter, on October 29, 1955, the record discloses the following judgment was entered by the trial court, to-wit:

“It appearing to the Court that the plaintiffs do not wish to plead further in this matter, and it further appearing that this Court had previously sustained defendant’s motion for judgment on the pleadings on plaintiffs’ fourth cause of action, it is therefore ordered and adjudged that plaintiffs’ fourth cause of action be and the same hereby is dismissed with judgment to the defendant on plaintiffs’ fourth cause of action. To all which plaintiffs, by their counsel, reserve their exceptions.”

While the motion of defendant for judgment on the fourth cause of action was sustained by the trial court, at the same time, said fourth cause of action was stricken, on the court’s own motion, and leave given to plead further.

Considering this judgment entry as a whole, it appears that there was- no final adjudication on the issue raised on plaintiffs’ fourth cause of action, and that plaintiffs’ appeal therefrom was premature and not taken from a final order.

No appeal having been taken by plaintiffs from the order and judgment of the trial court dismissing plaintiffs’ fourth cause of action, with judgment for the defendant thereon, and plaintiffs’ notice of appeal not having been taken from a final order, this Court is without jurisdiction to review the judgment of the trial court.

In support of the conclusion we have reached, we call attention to the case of State, ex rel. Arter v. Donally, 53 Abs 127, decided February 20, 1948, wherein this Court granted the motion of defendants-appellees to dismiss the appeal of plaintiffs-appellants, taken from the judgment of the trial court “dismissing the petition in mandamus.”

It was pointed out in the opinion by the court that up to the date of filing the notice of appeal, to-wit: December 12, 1946, no judgment had been rendered. Subsequently, the trial court rendered judgment for defendants. No notice of appeal from this judgment was filed. We quote from the opinion of the court:

“* * * On December 19, 1946, judgment was rendered for the defendants. No notice of appeal has been filed since the rendition of this judgment.
“Sec. 12223-7 GC, provides that the notice of appeal shall be filed within twenty days after journal entry of the final order, judgment or decree. This court held in the case of Strevey v. Williams, et al., 33 Abs 266: ‘Giving notice of appeal is jurisdictional and is a necessary prerequisite to the consideration of the Court of Appeals of the judgment appealed from. Unless we discover a notice of appeal given within proper time, we have no jurisdiction of the cause except of our own motion to dismiss the appeal.’ ”

This Court having no jurisdiction to review said final order and judgment, plaintiffs’ appeal is dismissed sua sponte. Costs to abide final judgment.

HORNBECK, PJ, DEEDS, J, concur.


author: By MILLER, PJ.

text:
    STATE, ex rel. COX, Relator, v. INDUSTRIAL COMMISSION OF OHIO, AND FISHER BODY DIVISION, GENERAL MOTORS CORPORATION, (Hamilton Plant), Respondents.
    Ohio Appeals, Second District, Franklin County.
    No. 5392.
    Decided September 20, 1956.
    Rice, Rice & Rice, Hamilton, for relator.
    C. William O’Neill, Atty. Geni., James L. Young, William E. Ryan, Asst. Atty. Geni., Columbus, for respondent, The Industrial Commission.
    Taft, S'tettinius & Hollister, Robert Tatgenhorst, of Counsel, Cincinnati, for respondent, Fisher Body Division, General Motors Corporation.
   OPINION

By MILLER, PJ.

This is an original action in mandamus wherein the relator is seeking an order commanding the respondent, the Industrial Commission of Ohio, to vacate its order of August 24, 1955, setting aside an order of the Dayton District Board of Claims entered on January 13, 1955, and in lieu thereof to reinstate, approve and affirm said order of the Dayton Board.

The record reveals that on December 12, 1951, the petitioner received certain personal injuries by accidental means while engaged in the course of his employment with the Fisher Body Division of the General Motors Corporation, a self-insurer;- that he was allowed compensation on a temporary total basis up until March 4, 1952; that on February 27, 1953, he filed his application for permanent partial disability; that the same was referred by the respondent to the Dayton District Board which conducted several hearings and on January 13, 1955, approved the claim by making an order granting “a permanent partial award equal to 40% to be paid at the rate of $32.20 per week for a period of 100 weeks, for a total award of $3220.00.”

Thereupon the employer seasonably filed an application for reconsideration, review or modification of the award, order or decision of the Board. The same came on for hearing before the Commission, which referred the matter to its legal section for a complete checkup and recommendation. On August 24, 1955, the Commission entered the following order:

“This day, to wit, August 24, 1955, this claim coming on for hearing for consideration of the Commission upon employer’s motion for reconsideration, filed February 2, 1955, together with other proof of record, upon consideration thereof, it is ordered that employer’s application for reconsideration of the Dayton Board’s finding of January 13, 1955, and filed herein on February 2, 1955, be granted; that the Board finding of January 13, 1955, be vacated, set aside and held for naught.
“It is now the finding of the Commission from medical proof of record claimant has suffered a disability equal to 22% of total disability provided in §4123.57 (b) R. C., which is less than 25%, he therefore, has no right of election, but is deemed to have elected that compensation on account of partial disability shall be awarded under the provisions of §4123.57 (b) R. C.
“It is, therefore, ordered that claimant be granted a permanent partial award equal to 22%, to be paid at the rate of $32.20 per week for a period of 55 weeks, or total award of $1771.00, said award to begin as of December 10, 1953.”

The record further discloses that in its examination the respondent did not limit the evidence to the record made before the Board in accordance with Rule 5 of the Commission but also referred the file to a Mr. Herbert Kelly “for the purpose of discussing this claim with Dr. Hauser, Hamilton, Ohio, to determine his opinion as to his report of 10% disability”; that Mr. Kelly obtained an affidavit from Dr. Hauser in which he attempted to explain and interpret further his testimony appearing in the record. This affidavit was filed with the Commission, considered by it, and became a part of its record. The affidavit appears to be prejudicial to the claimant for it tends to lower the extent of the total partial disability from 10% “low moderate degree,” as claimed in the record before the Board, to a disability of only 10%. The term “low moderate degree” is one used in practice before the Commission to indicate a disability much greater than 10%. The question presented is whether the respondent acted contrary to law or grossly abused its discretion in issuing its order reducing the amount of compensation allowed to the petitioner. It is urged by his counsel that the respondent violated two of its own rules in so doing, to wit:

“Rule 4. Upon the filing of an application for reconsideration, review or modification of an award, order or decision of a Board of Claims, such application shall be reviewed by the Commission, or by a deputy designated by the Commission and, unless it appears that the award, order or decision of the Board of Claims is clearly against the weight of the evidence or contrary to law, the application shall be dismissed. If it appears that the award, order or decision of the Board of Claims is clearly against the weight of the evidence or contrary to law, the claim shall be referred for review and assigned for hearing before the Commission, and the claimant and employer and their representatives, if any, shall be notified by mail of the time and place of such hearing.
“Rule 5. In determining what action shall be taken with reference to an application for reconsideration, review or modification of an award, order or decision of a Board of Claims, only the evidence contained in the claim record at the time such award, order or decision was made by the Board will be considered.”

These rules were adopted in accordance with the legislative mandate contained in §4123.32 R. C.

In State, ex rel. Kildow v. Industrial Commission, 128 Oh St 573, at page 580, the Court says:

“The General Assembly of the State of Ohio not only delegated rule-making power to the Industrial Commission, but in effect issued a mandate to the effect that it should make rules and regulations. * * *”
“We are not unmindful that reasonable rules promulgated by an administrative body under a valid grant from the Legislature have the force and effect of law. Under our ever-expanding program we will even go further and recognize that such rules are a part of the law of the state.”

A more recent case announcing the same principle of law is State, ex rel. DeBoe v. Industrial Commission, 161 Oh St 67, syllabus, paragraph 1:

“Where by statutory authority an administrative agency such as the Industrial Commission promulgates rules and regulations governing its activities and procedure, such rules are valid and enforceable unless they are unreasonable or in conflict with statutory enactments covering the same subject matter.”

In applying the facts in the case at bar to the aforesaid rules we are of the opinion that the respondent violated Rule 5 in admitting into the record the additional testimony of Dr. Hauser, which has been previously referred to. The order, therefore, was not issued in accordance with law. We have reviewed the medical testimony received by the Board and are of the further opinion that its decision is not against the manifest weight of the evidence. Neither is it contrary to law. Therefore, under Rule 4 the application for a review or modification of the award should have been dismissed, and failure of the respondent to so do constituted an abuse of discretion. An examination of the aforesaid testimony reveals that Dr. Spence, a member of the Commission’s medical staff, fixed the permanent partial disability at 35%; that Dr. Elmer A. Klein, an orthopedic specialist, fixed the same at 45%, Dr. Moseley, another member of the Commission’s medical staff, fixed it at 40% of total, and Dr. Hauser, who treated the petitioner for the injury, fixed the same at 10% — “low moderate degree.” It is true that Doctors Spence, Klein and Moseley experienced some difficulty in fixing the degree of disability by reason of the fact that the petitioner had more recently received another injury in an automobile accident and their examination was made subsequent thereto. The injuries received in the latter accident were to a part of the body closely related to that in the industrial injury, but the parts were not identical. Dr. Hauser also had difficuly in testifying as to the permanent partial disability as he had not seen the claimant for several years prior to his testifying. It was the province of the Board to weigh this testimony and under said Rule 4 the Commission could reverse or modify only if its finding was against the manifest weight of the evidence or contrary to law.

The writ will be allowed in accordance with the prayer of the petitioner.

HORNBECK and WISEMAN, JJ, concur.


author: By CECIL,

text:
    BUTTS, Plaintiff, v. PROVIDENT MUTUAL LIFE INSURANCE COMPANY OF PHILADELPHIA, Defendant.
    United States District Court, Southern District of Ohio, Eastern Division.
    No. 3806.
    Decided April 18, 1956.
    Hamilton & Kramer, Joseph R. Hague, Columbus, for plaintiff.
    Vorys, Sater, Seymour & Pease, Columbus, for defendant.
   OPINION

By CECIL,

District Judge:

This case is before the Court on a motion of the plaintiff and a motion of the defendant for Summary Judgment.

Sufficient undisputed facts appear in the record to enable the Court to grant final judgment. The undisputed facts, briefly stated, are as follows:

The plaintiff, Mrs. Bertha M. Butts, and one Chester L. Butts, were husband and wife. On or about March 3, 1950, a Final Judgment and Decree of Alimony was journalized in the Superior Court of De Kalb County, Georgia, wherein the alimony rights of the parties were fixed. An agreement which was entered into between the parties was made a part of the decree.

By subdivision 4 of this agreement, Chester L. Butts made his wife beneficiary in all insurance policies on his life and particularly policy No. 804070 in the Provident Mutual Life Insurance Company of Philadephia, which is the subject of this action. In this paragraph it was provided “The designation of the wife as beneficiary in said policies shall be irrevocable except upon the remarriage of the wife, the husband shall have the right to change the beneficiary in said policies.

“All monthly payments that may be made under said policies shall be the property of and be paid to the husband.”

The plaintiff was made beneficiary in accordance with the provision of the agreement and Provident Mutual Life Insurance Company of Philadelphia received a copy of the court’s order and had knowledge of the rights of the plaintiff. The policy matured on June 27, 1951, and the husband, Chester L. Butts, was to receive $100.00 per month for the rest of his life and there was a guarantee of one hundred monthly payments. If the husband died before one hundred monthly payments were made, thé balance of said payments were to be made to the plaintiff, subject to her being alive and not re-married.

In October of 1951, the husband went to the home office of the defendant insurance company and demanded the cash surrender value of the policy. The husband was advised that the policy could not be surrendered unless the plaintiff executed a certain surrender form.

The defendant company mailed such surrender form to the husband on or about October 9, 1951.

On or about November 8, 1951, the defendant received the executed surrender form, purporting to bear the signature of the plaintiff. The surrender form was not signed by Mrs. Butts and the signature on this form purporting to be hers is a forgery. Upon receipt of this surrender form, the defendant paid to the husband, Chester L. Butts, the commuted cash value of the policy, amounting to $11,774.79 and cancelled the policy.

The plaintiff seeks a mandatory injunction to require the defendant company to reinstate the policy in every particular and to restore to the account of said policy, the sum of $11,774.79, with interest from the eighth day of November, 1951, and to hold and maintain the policy in favor of the plaintiff as the irrevocable beneficiary, subject to the condition that she not remarry.

The defendant claims that the plaintiff has an adequate remedy at law and that the complaint should be dismissed. What counsel for the defendant considers an adequate remedy at law is that if the husband should die before one hundred payments are made, the plaintiff could then bring action against the company to require it to pay her the balance of the payments.

This Court does not consider that to be an adequate remedy.

Before the cancelling of the policy, the plaintiff’s rights thereunder were to receive the balance of the one hundred monthly payments if Chester L. Butts should die before they were all paid. This was subject only to the condition that the plaintiff should not remarry. These rights were fixed and in the event of the death of Chester L. Butts before the minimum number of payments were made, the plaintiff would be required only to prove the death, her identity and that she had not re-married.

Under the defendant’s theory, the plaintiff would have to wait until the death of Chester L. Butts and then seek to prove that the policy had been cancelled by a forged and fraudulent instrument and that she had a right to the proceeds thereof. This is imposing too great a burden upon her. She is entitled now to be put in the same position she was before the surrender form was forged through the fraudulent act of her former husband.

The Court will order the defendant to revoke the cancelling or termination of the policy insofar as it applies to the plaintiff and her contingent right to receive any of the unpaid minimum number of payments in the event of the death of Chester L. Butts.

The Court will further order the defendant to establish a reserve, along with all other policy reserves, sufficient to take care of the plaintiff’s contingency. This is only slightly in excess of $4,000.00 at this time.

The costs will be taxed to the defendant and an order may be drawn accordingly.


author: By KOVACHY, PJ.:

text:
    GUZZETTA, Plaintiff-Appellant, v. GUZZETTA, Jr., Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23786.
    Decided October 3, 1956.

      George J. McMonagle, for plaintiff-appellant.
    Bingham W. Zellmer, for defendant-appellee.
   OPINION

By KOVACHY, PJ.:

This cause is an appeal on questions of law from a judgment of the Common Pleas Court granting a motion to quash service and dismissing the petition in an alimony action brought by the plaintiff-appellant, Lillian W. Guzzetta, on the grounds “that defendant was induced or enticed to come into the jurisdiction of this court by plaintiff on the 18th day of November, 1954, for the purpose of securing service of process on the defendant in the instant proceeding.”

The facts essential for a proper consideration of this appeal are as follows: The plaintiff and defendant had been married. In an annulment proceeding in the State of New York some years ago the plaintiff was given custody of their only child, Kathy, with visitation rights to the defendant. At that time the plaintiff was living in Cleveland, and the defendant in Rochester, New York. Subsequently, the plaintiff was awarded an uncontested divorce here in Cleveland. No alimony rights were adjudicated in that action. The plaintiff continued living in Cleveland with Kathy, the defendant in Rochester. Under date of November 10, 1954, the plaintiff sent the defendant-appellee, Joseph L. Guzzeta, Jr., the following letter:

“I’ve just returned from Cal. and talked to Mr. McMonagle, he doesn’t think that your to much concerned about Kathy Lee and that maybe I shouldn’t write to you, because you don’t care that much about her. Well even if you don’t, I do care very very much about her and as yet I haven’t said anything bad or harmful to her about you. We’re both leaving here for good on the first of Dec., and are going to live in Lake Arrowhead, why don’t you try to see her before we leave and buy her something real nice for Xmas, she has everything she needs or wants now, but up there they teach you to ski two hrs a day at school, and she’ll need the outfit, I can buy it for her but it would make her feel good if you did and she can take it with her. You hurt her very much when you didn’t come or even send her a card on her First Holy Communion so try to make it up to her.
“Kathy Lee is such a lovely beautiful girl, that even though your folks don’t like me, now that she’ll be so far away and they may never see her, I want you to have this picture, because I know they’d like to have it.”

The defendant on November 13, 1954, sent the following telegram to plaintiff:

“Will arrive Thursday morning November 18th. Please have Kathy ready to spend the day with me.”

and in accordance therewith, he came to Cleveland on November 18th and went directly to plaintiff’s home to get Kathy. In a discussion there with his former wife, he informed her for the first time that he had remarried and that his new wife was expecting a child. This information disturbed the plaintiff very much. The defendant also disclosed a desire to have Kathy visit him in New York for two weeks in the summertime and was told to discuss the matter with her attorney, Mr. George McMonagle. After this discussion, the plaintiff drove the defendant and Kathy downtown. Her intention to sue him for alimony was first formed after she “dropped him off downtown,” prompted by the feeling that she was entitled to some financial settlement with him in view of these new developments in his life.

The bill of exceptions discloses that the defendant phoned Mr. Mc-Monagle at 4:00 P. M. the same day and arranged to see him that afternoon to discuss the matter of Kathy’s summer visitation in Rochester. The plaintiff, on the other hand, had been unable to reach Mr. Mc-Monagle by telephone and so went directly to his office to tell him of her intention to bring suit for alimony against the defendant. She arrived shortly after defendant’s phone call. At her request, Mr. Monagle filed a petition for alimony and arranged for immediate service of summons upon the defendant by the Sheriff of Cuyahoga County.

The defendant arrived at Mr. McMonagle’s office at 4:30 P. M. He completed plans for Kathy’s summer visitations and left. A Deputy Sheriff served the summons upon him as he was leaving the building.

While the petition was stamped “filed and summons issued November 18, 1954” by the Clerk of Courts, the jurat affixed to the petition was dated “this 17 day of November 1954.” Mr. McMonagle’s explanation, together with the sequence of events, demonstrates this to have been a mere inadvertence.

Ohio recognizes and follows the general rule that personal service obtained upon a defendant who is induced to come within the jurisdiction of a court through trickery, fraud or artifice is an abuse of process and will be set aside upon proper application. 32 O. Jur. 405-406, Sec. 31: Johnson Maple Syrup Co. v. Grosvenor, 5 Abs 597; Miami Powder Co. v. Griswold, 5 Ohio Dec. Rep. 532; Pilcher v. Graham, 18 O. C. C. Rep. 5; White v. Marshall, 23 O. C. C. Rep. 376; 11 U. of Cinn. L. Rev. 402-405.

The sole question presented to us is whether the trial court properly held that this rule of law was applicable to the facts submitted at the hearing on the motion to quash the personal service obtained upon the defendant in this jurisdiction.

The operative facts are not in dispute. Defendant came to Cleveland voluntarily for his own purposes. The plaintiff at the time of writing this letter had no thought of instituting legal proceedings against the defendant. The plaintiff first conceived the idea of filing the alimony action upon obtaining certain information voluntarily advanced by the defendant after his arrival in Cleveland. The defendant went to plaintiff’s attorney of his own accord to discuss a matter in the nature of a personal desire. Mr. McMonagle knew nothing of the prospective alimony action when he arranged over the telephone for the defendant to visit him in his office. The action was brought in haste for the purpose of obtaining service upon the defendant before he left for Rochester, New York.

These facts, in our opinion, completely refute the contention of the defendant that he was decoyed into this jurisdiction for the express purpose of obtaining service of summons upon him. His coming to Cleveland was not induced through trickery, fraud or artifice because it is clear that the invitation was extended in good faith and for the purposes stated. There is no evidence whatever that the plaintiff was resorting to trickery, deceit or artifice to get the defendant into this jurisdiction for the purpose of obtaining service upon him. To vitiate the personal service of summons upon a person in a foreign jurisdiction who is in the jurisdiction in response to an invitation extended him by a party to the action, an intent to trick and deceive him into coming for such purpose must have existed in the mind of the sender and the invitation itself must have been an integral part of the device or artifice employed to get the defendant into the foreign jurisdiction for the purpose of serving him with summons.

In Watkins v. North American Land and Timber Co. (Limited), 20 Times L. R. (Eng) 534 H. L„ it was said:

“Where an invitation was issued to the defendant, who was a foreigner resident abroad and the general manager abroad of an English Company, by the directors of the Company to come within the jurisdiction with a real intention to discuss certain matters in difference between them and the defendant, although the directors also intended to serve him with a writ and the defendant came and was served with a writ, the Court refused to set aside the service.”

The House of Lords affirmed the Court of Appeals dismissal of the appeal for the reason that the charge of fraud had not been proved.

The United States Circuit Court of Appeals in Commercial Mutual Accident Company v. Davis, 213 U. S. 245, stated:

“While service of process on one induced by artifice or fraud to come within the jurisdiction of the court will be set aside, this court will not reverse the finding of the trial court that there was no such fraud where, as in this case, there is testimony supporting it.”

A similar result was reached by The Supreme Court of Iowa in the case of Crandell v. Trowbridge, 170 Iowa Reports 155. The syllabus reads:

“Service of process secured through the trickery, deceit or fraud of a party or those acting for him, does not give the court jurisdiction. Record reviewed and held to show that jurisdiction attached — that no fraud had been practiced.”

21 R. C. L. 1276 states:

“Fraud and fraudulent intent and purpose may be inferred from the acts and representations of the parties and all the facts and circumstances shown. But as between honest and dishonest motives and purposes, honesty of intent and purpose will be presumed unless the facts and circumstances are such as to satisfy the mind that the acts and statements relied on are fraudulent or dishonest.”

The judgment of the Common Pleas Court accordingly is reversed as contrary to law. The cause is remanded with instructions to vacate the order granting the motion to quash and set aside service of summons upon the defendant and dismissing the petition, to overrule said motion and for further proceedings according to law.

SKEEL, J, HURD, J, concur.


author: By MILLER, PJ:

text:
    ECONOMY SAVINGS & LOAN CO., Plaintiff-Appellee, v. SPENCER et, Defendants-Appellants.
    Ohio Appeals, Second District, Darke County,
    No. 740.
    Decided April 26, 1956.
    Floyd D. Smith, Greenville, for plaintiff-appellee.
    Spidel, Staley & Hole, Greenville, for defendants-appellants.
   OPINION

By MILLER, PJ:

This is a law appeal from a judgment of the Common Pleas Court defining the homestead exemptions to which the appellants are entitled under §2329.73 R. C.

The record reveals that the plaintiff-appellee, The Economy Savings & Loan Company, has an unsatisfied judgment against the defendants-appellants, Orlie Spencer and Irene Spencer; that said defendants are husband and wife, living upon a tract of land consisting of eighty acres and in which they own a life estate. Their interest in this land was levied upon by the sheriff pursuant to an execution issued at the instance of the plaintiff; that the life estate of the defendants was appraised at $800.00; that the defendants then claimed that the said life estate was exempt from execution under the cited section of the. Revised Code. The court held that the value of the life estate could not be claimed as a homestead, but ordered the appraisers to determine by metes and bounds the extent of land surrounding the residence and that the appraisers then appraise the said land as a fee simple estate rather than a life estate and that should said figure exceed the sum of $1000.00 then they were to place an annual rental value upon the said premises as required by §2329.78 R. C. Pursuant to this order the appraisers appraised the homestead, fixed the value of the fee at $2500.00, and set off to the defendants an annual rental thereof of $300.00 a year. The court confirmed and approved this appraisal of the homestead, and it further ordered that the sheriff proceed to advertise and sell at public auction the life estates of the defendants in the real estate, and that the same be sold subject to their homestead as set forth by the appraisers and subject to conditions as set out by them; that the real estate be sold for cash and for not less than the appraised value of $800.00.

The question presented is whether the defendants are entitled to a homestead, the fee of which does not exceed the sum of $1000.00 in value, or a homestead in which the value of the life estate does not exceed $1000.00. The exemption is claimed under §2329.73 R. C., which reads as follows: ■

“Husband and wife living together, a widow or a widower living with an unmarried daughter or unmarried minor son, may hold exempt from sale on judgment or order a family homestead not exceeding one thousand.dollars in value.”

When the value of the homestead exceeds $1000.00 and it is not divisible, then §2329.78 R. C., becomes applicable, to wit:

“When the homestead of a debtor in execution consists of a house and a lot of land which, in the opinion of the appraisers, will not bear division, without manifest injury and inconvenience, the plaintiff in execution shall receive, in lieu of the proceeds of a sale of the homestead, the amount above one hundred dollars, annually adjudged by the appraisers as a reasonable rent for it, until the debt, costs, and interest are paid. The rent above one hundred dollars shall be payable in quarterly payments, beginning three months from the time of the levy of execution, and may be paid to the plaintiff in execution, or his assigns, or the clerk of the court of common pleas of the county in which the homestead is situated. The clerk shall give to the person paying it a proper receipt, and enter it on the execution docket without charge. If the rent is not paid as provided in this section, or within ten days after each payment becomes due, the officer must sell the homestead, in the manner provided in other cases for the sale of real estate, but not for less than its appraised value.”

In the case of Kerns v. Linden, 3 O. C. C. (N. IS.) 37, the question presented here was decided, the court holding that the purpose of the statute is subserved if an amount is set off the fee simple title to which is worth $1000.00. The reason for the court’s conclusion seems to be well stated at page 38, to wit:

“The purpose of the statute is to save to the unfortunate debtor who has a family, a place where he and such family may live. The property set off is not thereby relieved from being subjected to the payment of the judgment in such wise that it can never be so used, but is relieved only from being so subjected while it is occupied as a homestead for the family.
“It is manifest that this purpose will be subserved as well to set off an amount, the fee simple title to which is worth one thousand dollars, to one who only has a life estate, as it would be if the debtor owned the fee simple in the property, for, in neither case, could any benefit be derived by the debtor beyond his own life, and that he may have as well where he has a life estate as where he has the fee simple.
“Statutes similar to ours and enacted for the same purpose, have been construed in other states, and this view has been sustained. See Brown v. Starr, 21 Pac. Rep., 973 (79 Cal., 608; 12 Am. St. Rep., 180); Yates v. McGibbon, 66 Iowa, 357 (23 N. W. Rep., 752); France v. Lucas, 14 Bush (Ky.), 395; Arnold v. Jones, 77 Tenn., 545, and Crigler v. Con-nor, 11 S. W. Rep., 202 (10 Ken. L. Rep., 957).”

An examination of the cases cited supra reveals that they are all in accord with the court’s conclusion. Also, in 20 O. Jur. 998, the author gives the same interpretation to the cited section of the Revised Code. Counsel for the appellants has cited no authority which supports their views, but simply urges that this Court should not support the previous interpretations given to the statute. With this we cannot agree, but are in accord with the legal principles adopted by the trial court.

We find no error in the record and the judgment will be affirmed.

HORNBECK, J, concurs.

WISEMAN, J, not participating.


author: By THE COURT.

text:
    FEATHEROLF, Admr., Plaintiff-Appellant, v. CASSERLY, a Minor, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 5484.
    Decided October 5, 1956.
    Buchanan, Peltier & Fuller, Roland A. Fuller, Jr., of Counsel, Columbus, for plaintiff-appellant.
    Ballard, Dresbach, Crabbe & Newlon, Charles E. Brown, of Counsel, Columbus, for defendant-appellee.
   OPINION

By THE COURT.

This is a law appeal from a judgment of the Common Pleas Court sustaining the defendant’s motion for a judgment on the pleadings. The action was one for wrongful death brought by Russell E. Featherolf as administrator of the estate of Infant Featherolf, pursuant to §2125.01 R. C. The petition merely alleges that the plaintiff is the administrator of the estate of said infant, but does not allege in whose behalf the action is brought. Negligence of the defendant is pleaded and that the same caused prenatal injuries from which the said infant died several hours after being born alive.

The question presented is whether or not the general release, issued by both of the parents after the accrual of the cause of action which might have been maintained for their benefit, constitutes a bar to the prosecution of an action brought under the cited section of the Revised Code. The statute involved herein provides that the action shall be “for the exclusive benefit of the surviving spouse, the children, and other next of kin of the decedent.” It therefore becomes pertinent to determine who are the next of kin of this infant. The answer to this question is found in §2105.06 (E) R. C. This section designates the parents as the next of kin, in case the decedent has no spouse or children, for the purposes of inheriting personal property. In Karr v. Sixt, 146 Oh St 527, the Court held that brothers and sisters may be included in the term “other next of kin,” but it must be shown from the evidence that they have suffered a pecuniary injury before they may be considered in an award for damages under the wrongful death statute. In Ebeling v. Harman, 83 Oh Ap 519, this Court held that such facts must be pleaded and proven. This Court also decided the identical question we have here in the case of Pilkington v. Saas, 25 Abs 663. In this case the parents and next of kin of a minor child had executed and delivered to a defendant a general release on May 24, 1934, releasing the defendant from any and all causes of action as the result of an accident which occurred on April 7, 1934. The child in question died on July 2, 1935. In a subsequent prosecution of a wrongful death action the Court found that the general release executed by the mother, who was the next of kin of the decedent, constituted a bar to the subsequent prosecution of a wrongful death action. Section 3 of the syllabus of this case provides as follows:

“A settlement made by the wrongdoer with the next of kin and a release executed and delivered by the next of kin to the wrongdoer during the lifetime of the decedent constitutes a bar to an action by the administrator of the decedent’s estate for the benefit of the next of kin under the wrongful death statute.”

It will be noted that the factual situation in the case at bar is even stronger than the case presented to the Court of Appeals in the Pilkington case. In the latter the release was executed by the next of kin during the decedent’s lifetime, but nevertheless the Court held it constituted a bar to any subsequent prosecution for a wrongful death. In our case the child had died prior to the time the release was executed and delivered and any cause of action for wrongful death which may have existed in the parents subsequent to the death of the child was terminated by the execution and delivery of the release.

We find no error in the record and the judgment will be affirmed.

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


author: By BARTLETT, J.

text:
    MACY CORPORATION, Plaintiff, v. RAMEY, Defendant.
    Common Pleas Court, Franklin County.
    No. 192435.
    Decided January 14, 1957.

      Gumble & Hofheimer, for plaintiff.
    John R. Schickler, for defendant.
   OPINION

By BARTLETT, J.

DECREE OF SPECIFIC PERFORMANCE DENIED.

This is an action for specific performance, to require the defendant, Lucy D. Ramey, to convey to the plaintiff corporation by warranty deed, 48.44 acres of land located at the northwest corner of East Broad Street and the Reynoldsburg-New Albany Road in Franklin County, Ohio.

On February 4, 1955, there was presented in writing to Robert S. Dingledine Company, a licensed real estate broker, an offer to purchase through said broker the 48.44 acres above referred to, for the sum of $65,000.00, payable $19,000.00 cash, balance payable $5000.00 on or before March 1, 1957, $5000.00 on or before March 1, 1958, $5000.00 on or before March 1, 1959, and all due on or before March 1, 1960, interest at 5% per annum, payable semi-annually in addition to the payments aforesaid, and all deferred payments to be secured by notes and first mortgage on said real estate, said mortgage to provide for release of land therefrom on payment of additional cash over and above as provided above of $22.50 per front foot on Broad Street frontage and extending to the north line of said land, etc.

The foregoing offer was signed as follows:

Received of Bernard Ruben “$500 on above agency contract 2/4 1955 Robert S. Dingledine Co. By Jim Lamp.”

“Macy Corporation By B. Rubin, Pres. Macy T. Block.”

The offer provided further “In consideration of your services, this proposal is in effect to and including February 14, 1955.

“I hereby deposit with your firm $500 as a consideration for this contract, to be held in trust by you until this proposition or any modification thereof is accepted and conditions fulfilled. * * * If I fail to fulfill within 30 days after expiration of said ten days above mentioned my part of this contract I agree to pay your firm your regular commission, etc.”

The Dingledine Company on February 9, 1955, presented the above offer to the defendant Lucy D. Ramey and her now deceased husband, Dr. Ralph E. Ramey, who signed an acceptance of the foregoing proposition by the Macy Corporation, agreeing to pay the Dingledine Co. its regular commission. “If I fail to fulfill within 30 days after the expiration of said ten days above mentioned my part of this contract.” on the following conditions:

“We accept this contract (both sides of paper) provided, if releases are request for 200 ft. by 200 ft. out of south East corner amount to be paid an additional $10,000.00 for said release.” At the right of this condition was placed the initials “BR” which it was testified indicated said condition was approved by said Bernard Ruben.

On February 4, 1955, a $500.00 check was deposited with the Dingle-dine Co. Due to disputes over the contract, Bernard Ruben stopped payment of the $500.00 check. It is claimed by Mr. Ruben that a new check for $500 was substituted, but Mrs. Ramey denies any knowledge as to the new check.

On April 20, 1955, the defendants, Lucy D. Ramey, and her late husband, advised by letter that they would not perform their part of the alleged agreement. This letter was mailed to “Macy Corporation, Cr Bernard R. Ruben,” and copies were mailed to Ruben and Macy T. Block.

It is averred in the amended petition that after receiving the letter of repudiation aforesaid, “Nevertheless, on April 20, 1955, and again on April 27, 1955, plaintiff notified the defendants that it was ready, willing and able to proceed according to the terms of the aforesaid agreement, but the defendants then and ever since have refused to execute and deliver a good and sufficient warranty deed for said premises.”

The Articles of Incorporation for said plaintiff corporation were not filed until April 26, 1955, as stated in the amended petition.

It was admitted by plaintiff’s witnesses at the trial that the plaintiff corporation was not in existence at the time of the alleged offer of February 4, 1955, was made to the Rameys. It was admitted that “B. Ruben never was President of the Macy Corporation,” and it was further admitted that the name of “Macy T. Block” was added to said offer after the Rameys had made their qualified acceptance of said offer by the fictitious corporation.

Mrs. Ramey testified that she was led to believe and did believe she and her husband were dealing with a large corporation with plenty of money back of it. This lawsuit was filed May 10, 1955.

The Court is constrained to believe the testimony of Mrs. Ramey that she was led to believe that she and her husband were dealing with an existing company and this is supported by the signing of the offer of February 4, 1955, as “Macy Corporation, By B. Ruben, Pres.” This was a false pretense, since there was no such corporation in existence at the time.

“Mutual consent is essential to every agreement and agreement is essential to every contract. There can be no binding contract where there is no real consent and it is no agreement where one party enters into the contract under a mistake as to the identity of the other party as where one party accepted an offer meant for another.” Feldman v, Roth, 12 Abs 121; Anson Law of Contract, American Edition, by Huff cut:

“Mistake as to identity of the person with whom the contract is made.” Sec. 184, p. 168.
“In many cases it is said, * * * that the promoter is the agent of the corporation. But this is hardly true, at least until the corporation is actually organized, because until then no principal would be in existence, and the corporation would not be bound by contracts made before its existence.” 10 O. Jur. Corporations, Sec. 120, p. 193; 18 L. R. A. (n. s.) 1106; 10 O. Jur. Corporations, Sec. 130, p. 207.
“Attempt of promoter to bind corporation that is not in existence is contrary to public policy.” Odenkirk v. Vretman et al., 7 Abs 623.

On page 630 of his opinion in the preceding case, P. J. Vickery, speaking for the Court of Appeals of the 8th District, says:

“These two men were not to pay any Ten Thousand Dollars. * * * They were simply and merely the ‘go-between’ to provide a corporation that would enter into such agreement. * * *
“The difficulty surrounding the situation is that such a contract could not be made that would be binding upon anybody. How could two men make a contract that would bind a corporation which must have at least five directors in Ohio? Even if the two men owned all the stock except the qualifying shares for the directors, the directors could turn down and refuse to make such a contract, and the attempt to bind a corporation that was not in existence in my judgment is contrary to public policy and ought not to be tolerated and, in my view, the courts do not tolerate such contracts.
“Now, inasmuch as there was no liability shown against these two defendants, nor was any liability intended to be assumed by them other than to provide a corporation, it amounted simply to an option which if performed would have ripened into a contract.”

There is no showing of liability on the part of the promoters as there is no promise on their part to pay or guarantee that the corporation to be will pay. Anderson v. Shepard, Inc. et al, No. 186,732, dockets of this court.

“There were lacking two contracting parties necessary to the execution of a valid contract.”

Banking and Trust Co. v. Realty Co., 37 Oh Ap 566, 569, citing with approval, In re Exchange Bank of Stryker, 26 Oh Ap 142; and see, 11 O. Jur. (2d), Contracts, Sec. 13, p. 259.

“The defendant signed a written instrument previous to the incorporation of the plaintiff, and bound himself to make the turnpike, known as the Dayton, Watervleit and Xenia Turnpike Road across his farm, at the engineer’s estimate provided it crossed in a specified direction, or if he could not make it, to ‘pay for it at the same rate, and take the same in stock in said road, and have it ready by the time the rest of the road is ready for travel.’ The company when afterward incorporated, located the road across the farm of the defendant, in the direction specified in the instrument, and then built the road across the farm of the defendant, and tendered stock to the amount of the engineer’s estimate for the defendant, and demanded payment. H»ld, that the contract was not binding on the defendant for want of mutuality.” Dayton, etc. Turnpike Co. v. Coy, 13 Oh St 84.

On page 95 of his opinion in the foregoing case Gholson, J. says-

“We have been asked by the counsel for the plaintiff, if we found there was no mutuality in the contract, still, to look at the conduct of the defendant — his purpose in the execution of the instrument. But we do not see how we can look at the conduct of the defendant with any other view, than to ascertain whether he has entered into a contract. In such a case as this, it is not our province to decide as to the propriety of the conduct of the party. We have only to inquire whether he has incurred a legal obligation, and being of opinion for the reasons which have been stated, that he has not, the judgment of the court of common pleas will be affirmed.”
“It is well established that specific performance will not be decreed where the remedy is not mutual.” Tyson et al. v. Miller-Tyson Co. et al., 15 C. C. (n. s.) 177, 183.
“This principle is clearly stated in the syllabus of Cooper v. Penna, 21 Cal. 403 in the language following:
“ ‘Equity will not enforce the specific performance of a contract where the party asking the enforcement can not from the nature of the contract be compelled to perform it specifically on his part. In order that a specific performance of a contract may be compelled, the remedy, as well as the obligation, must be mutual, and as a general rule the question of mutuality is to be determined by the contract itself and is not affected by circumstances arising after the contract is made and the rights of the parties fixed.’ ”
“Necessity of Binding Contract. — Since specific performance is an equitable remedy, available under certain circumstances to protect rights under contracts, it is necessary in every case that there be a contract to be enforced. In the absence of a contract, the remedy is unavailable. It is not the province of the court to make contracts, but to enforce them. The contract must be valid and binding. A contract invalid in law will not be enforced by a court of equity against a party equal in merits and in equity. One of the prerequisites of an instrument necessary to warrant its enforcement is that the contract be, in its nature and circumstances, unobjectionable in any of its features. As a matter of fact, many of the cases in which an appeal is made to the equitable powers of the chancery courts to enforce contracts do not turn upon the special rules regulating the exercise of those powers, but on the underlying and fundamental question as to the existence or nonexistence of a valid contract, although the mere existence of a legal contract may not be sufficient to call forth the equitable interference of chancery. Many reasons which turn on the invalidity of the contract itself are available as defenses to bills in equity for specific performance. Thus, it may be shown that there was no meeting of the minds of the parties, or that there was no mutual consent or obligation, or that the agreement was not entered into by the defendant or by another for the defendant.” (Emphasis ours.) 37 O. lur. Specific Performance, Sec. 12, p. 18.

In the case of Bretz et al. v. The Union Central Life Insurance Co., 134 Oh St 171, the action was for specific performance, in a per curiam opinion, the Supreme Court of Ohio on page 174. stated:

“The question here presented, the answer to which is controlling, is whether an unaccepted, continuing offer to enter into a unilateral contract is revocable before the expiration of the time limit therein fixed.
■ • “Appellant’s proposal was to the effect that it would accent an amount of money less than that due on its mortgage against appellees’ property ‘if’ payment were made ‘within ninety days of the date of this commitment.’ This proposal constituted a conditional, continuing offer to enter into a unilateral contract with appellees. * * *
“There was here no exchange of promises or payment of any consideration. The promise was unilateral and unsupported by any consideration. Had it been accepted, the contract resulting would have been unilateral. By the offer, no obligation was imposed upon appellees, but only a condition, the performance of which was entirely optional with the appellees. Standing unaccepted, the offer was but a unilateral promise, lacking in consideration and in mutuality, and binding neither upon appellant nor appellees. The one could revoke without consequent liability and the other could refuse to perform the condition imposed without liability ensuing. Neither was bound to the other, and until the offer was accepted, either could withdraw from the arrangement.
“An offer, continuing or otherwise, to enter into a unilateral contract, unsupported by a valuable consideration, is not binding upon the offeror, and is revocable at his will at any time prior to its acceptance. Though time for acceptance was prescribed, there was no obligation upon appellant to keep the offer open for the remainder of the period, and the right to revoke it before its expiration, if not accepted, is clear.
“ ‘An offer, not supported by a consideration, may be revoked before acceptance, even though it expressly gives an offeree a definite time within which to accept.’ William Weisman Realty Co. v. Cohen, 157 Minn., 161, 195 N. W., 898. See also 1 Williston on Contracts (Revised Ed.), 156, Section 55; 12 American Jurisprudence, 528, Section 32.
“Acceptance of an offer to enter into a unilateral contract can be effected only by performance of the condition prescribed and within the time fixed. This means substantial performance and not merely steps taken preparatory to performance. Acts preparatory to performance tender neither consideration nor acceptance, no matter how extensive the preparation or how large the expense involved may be. Nothing less than performance will tender acceptance, and until such time the right to revoke remains unimpaired. See 1 Page Supplement on Contracts, 92, Section 192; Stensgaard v. Smith, 36 Minn., 181, 44 N. W., 669; Hollister v. Frellsen, 148 Miss., 568, 114 So., 385; Levin v. Dietz, 194 N. Y., 376, 87 N. E., 454; Petterson, Exrx., v. Pattberg, 248 N. Y., 86, 161 N. E., 428; Kolb v. J. E. Bennett Land Co., 74 Miss., 567, 21 So., 233; Restatement of the Law of Contracts, 53, Section 45, Comment a.”
“In the instant case, the survey made, the abstract prepared and expenses incurred by appellees were but acts preparatory to performance and in no sense constituted fulfillment, substantially or otherwise, of the condition imposed by the offer. The performance required under appellant’s offer was the payment of $8,100 within ninety days from the date of the proposal. No such payment was either made or tendered within the time prescribed. There was no performance of any kind, and hence no acceptance. (See Campbell v. Hicks, 19 Oh St 433.) The withdrawal of the offer was made before the promise therein contained became binding. Where there is no binding promise, there can be no contract. For an action in specific performance to be maintainable, there must be a contract (37 O. Jur. 18, Section 12), valid and mutually binding upon both parties thereto. Steinau v. Cincinnati Gas-Light & Coke Co., 48 Oh St 324, 27 N. E., 545.
“A court will not decree specific performance of a contract having no existence. ‘Courts will compel parties to perform contracts in accordance with their terms, but they have no power to and will not make contracts for persons and compel the execution of them.’ Spengler v. Sonnenberg, 88 Oh St 192, at 203, 102 N. E., 737, 52 L. R. A. (N. S.), 510, Ann. Cas. 1914D, 1083.
“Appellees argue that appellant’s refusal to abide by its proposal occasioned delay, making it impossible for them to tender payment within the ninety-day period prescribed in the offer. However, it is one thing for a party wrongfully to prevent performance of a contract to which and by which he is bound and another thing for a party to revoke his offer to which he is not bound. If revocation of an offer before acceptance is at all an exercise of a legal right, it is of no moment that the effect of revocation is to make acceptance by the offeree impossible. The question in such case is whether the right to revoke exists. If it does, then liability will not further its exercise.” (Emphasis added.)

The Supreme Court of Ohio denied specific performance to the offeree in the Bretz case, supra, since the offer to accept an amount of money less than due was unsupported by consideration, and was not binding and was revocable prior to acceptance; and since the offer was revoked before acceptance, there was no valid contract to be enforced.

In the instant case there was no valid contract with the so-called “Macy Corporation” prior to its creation, since the transaction lacked the necessity of two parties to the execution of a contract. 11 O. Jur. Contracts, Sec. 13, p. 259.

There was at no time a contract with B. Ruben and Macy T. Block since they never made any promise that was binding on them, and moreover, the Rameys at all times believed they were making a contract with “Macy Corporation.”

The utmost that can be claimed for the proposal of the Rameys was that they would accept a certain amount of money for their land. Their promise was unilateral and unsupported by any consideration. By their offer, no obligation was imposed upon nonexistent Macy Corporation nor anyone else, but only a condition, the performance of which was entirely optional with the Macy Corporation when it came into existence. Standing unaccepted, their offer was but a unilateral promise, lacking in consideration and in mutuality, and binding neither upon the Rameys nor the Macy Corporation when it came into existence. The Rameys could revoke without consequent liability and the Macy Corporation when created could refuse to perform the conditions imposed without any liability ensuing. Neither was bound to the other, and until the offer of the Rameys was accepted, either could withdraw from the proposed arrangement.

The offer of the Rameys to accept a certain amount of money for their land was withdrawn or revoked, April 20, 1955, by a written notice to the Macy Corporation in care of Bernard Ruben and copies were mailed to Bernard R. Ruben and Macy T. Block. The petition admits receipt of these notices.

Notwithstanding, the Articles of Incorporation of the Macy Corporation was filed on April 26, 1955, and on said date the Macy Corporation first came into existence; thereafter, said corporation on April 27, 1955, undertook to “ratify, approve and adopt the acts of Bernard R. Ruben and Macy T. Block,” and on said date notified the Rameys it was ready, willing and able to proceed with the fulfillment of the alleged purchase of the Ramey’s land.

The Court finds that the Rameys had withdrawn from the arrangement and had so notified Mr. Ruben, Mr. Block and their embryo corporation, at least one week before the corporation came to life and made its attempt to accept the promise of the Rameys to sell their land at a certain price. Consequently, the acceptance was too late to effect a contract between the Rameys and the Macy Corporation.

“Where a contract has been procured by overreaching on the plaintiff’s part, or where it has been artfully contrived as a snare to bind the defendant in a manner which he did not comprehend at the time he became a party to it, the agreement will not be enforced by a court of equity.” 37 O. Jur. Specific Performance, Sec. 65, p. 86.

“One who asks specific performance of a contract in the procurement of which he has practised deceit is always an unwelcome suitor in a court of equity and will generally be denied relief. Misrepresentation leading to the execution of a contract is likewise a ground for the refusal of a court of equity to grant specific performance.” 37 O. Jur. Specific Performance, Sec. 67, p. 87.

The maxim, “He who comes into equity must come with clean hands,” as a basis for the refusal of specific performance or other equitable relief, is as old as the equity courts themselves. 4 A. L. R. 70.

This transaction with the Rameys was conceived in deceit and misrepresentation. They were wilfully deceived into believing they were dealing with the “Macy Corporation” when there was no such entity; they were led to believe “B. Ruben was its president,” and he never was; there was deceit practised in the adding of the name of “Macy T. Block” to the offer after it was accepted by the Rameys; and finally, on April 20, 1955, the Rameys were notified the Macy Corporation was ready, willing and able to proceed with arrangement to buy the land of the Rameys, when in truth and fact the corporation had not yet come into existence.

The mere technicality of incorporation does not so change the character of the operating forces which created it, when the directing minds continued to be the same after as before incorporation. 17 A. L. R. 452. Such a delusion would facilitate the using of the corporate fiction of an entity as an instrument of fraud and injustice to the unwary. I Fletcher Cyclopedia, Corporations, p. 687, f. n. 66.

When the attorney, Fred Place, showed lack of interest in furnishing title insurance for this transaction, and said he had no desire to work on a “dead horse,” he, no doubt, sensed the stench of the Augean stables.

The deceit and misrepresentations in this case cannot be justified.

“A party appealing to a Court of Equity must make a ease which can commend itself to the conscience of the court.” Kellogg v. Eby, 15 Oh St 64, 66; Snyder v. City of Alliance, 41 Oh Ap 48, 52.

“A mere legal right in the plaintiff will not move the chancellor.” Parsons v. Ohio Pail Co., 6 C. C. (n. s.) 116, 120, affirmed 74 Oh St 464, without opinion.

The decree for specific performance will be denied. Entry accordingly with exceptions by counsel for the plaintiff.