author: MILLS, J.

text:
    BEHLEN SONS CO. v. RICKETTS.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3091.
    Decided March 12, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    297. CONTRACTS.
    A contract purporting to originate with one party, but actually drawn by another is to be construed most strongly against the latter.
    Error to Common Pleas.
    Judgment reversed.
    Samuel Rotter, Cincinnati, for Behlen Sons Co. #
    # Miller & Elston, Cincinnati, for Ricketts.
    STATEMENT OF FACTS.
    Ricketts sued the Behlen Co. in the Court of Common Pleas for $2,390.07 and interest from July 31, 1923, alleged to be due him on a contract.
    The contract was evidenced by a written offer and acceptance reading as follows:
    “Mr. E. A. Ricketts,
    Cincinnati,
    Ohio.
    Dear Sir:
    We hereby confirm our conversation of the 9th in connection with the position as Sales Manager of our Gasoline Car Department.
    We hereby offer you the position as Sales Manager of our Gasoline Car Department for a trial period of six months beginning February 1, 1923, your salary to be $50.00 a week and 33^% of the profits accruing from the sale of gasoline cars and gasoline car accessories. At the expiration of six months, salary is to be adjusted on the basis of the showing made for the preceding six months.
    In figuring the percentage of profit accruing to you, same is to be figured on the basis of gross sales of gasoline cars and gasoline car accessories, as no overhead such as rent, light, heat, storage, repairs or service is to be taken into account as these items are now being taken care of by our Electric Car Department.
    Your acceptance of this letter to constitute a contract between us.
    THE CHAS. BEHLEN SONS CO.,
    JOHN W. HILL, Sec’y.
    Date, Jan. 11, 1923.
    Accepted: E. A. Ricketts.”
    The petition averred that Ricketts had performed his part of the contract for the six months beginning February 1, 1923; that he had received m> part of the stipulated compensation except the fixed weekly salary of $50.00; that the profits of the gasoline car department had been $7,170.20; and that his third of said profits was $2,390.07.
    The company answered, claiming that the profits of the gasoline car department were only $673.77, of which plaintiff’s share was only $234.59; against which the company set up a counter-claim of $75.00 by way of damages for the plaintiff's misrepresentation of a car to a customer — leaving an admitted indebtedness of $149.59 and no more.
    The reply denied the facts set forth in the counter-claim, and reaffirmed the allegations of the petition.
    The two questions at issue were: the validity of the counter-claim, and the amount which Ricketts was entitled to receive as his share of the “profits accruing from the sale of gasoline cars and gasoline car accessories” during the period of his employment.
   MILLS, J.

On the issue of misrepresentation of a car to a customer the company failed to produce any evidence; and the court properly charged the jury to disregard the counter-claim. Lewistown Foundry & M. Co. v. Hartford Stone Co., 92 Ohio St. 76.

On the remaining issue the evidence covered the period extending to August 13; and it seems to' be conceded that the actual employment of Ricketts continued at least until August 10. No objection has been interposed on the ground of any variance in this regard.

The record shows that the gasoline car department sold new and used cars at a total sale price that was $7,906.13 in excess of the total first cost of the cars that were sold; and that the only items of expense charged against that department on the books of the Company were: freight, advertising, gasoline, §??<ir-®^esm®n’s commissions aggregating $2,555.53, and salary paid to Ricketts $1,275. The foregoing figures would indicate a net profit of $4,075.60, of which Ricketts should have received $1,355.20; but the jury, on December 6 1926, returned a verdict for $2,601.36, which was equivalent to $2,170.07 and interest thereon from August 13, 1923, to the date of the verdict.

After the Company had moved for a new trial, Ricketts consented to a remittitur of $478.16; and the trial court, on February 23, 1927, entered a judgment in favor of Ricketts for $2,123.20, which was equivalent to $1,752.54 and interest thereon from August 13, 1923, to the date of the judgment.

The Company claims that the judgment is excessive and is contrary to the law and the evidence; that the trial court erred in its charge to the jury; and that certain evidence in behalf of the company was improperly excluded.

The trial court left the construction of this contract to the jury, with the instruction that they were to determine whether Ricketts was to receive “one-third of the gross profits or one-thii'd of the net profits” on the sales of g-asoline cars and gasoline car accessories. See: R. C. L., “Contracts,” Section 249.

The validity of this contract was not in dispute. Its construction depended upon the language used, and upon undisputed facts. Under the rule in Ohio its construction was for the court. Page on Evidence, section 2062; Dayton v. Hooglund, 39 Ohio St. 671; Monnett v. Monnett, 46 Ohio St. 30; Mosier, et al v. Parry, 60 Ohio St. 388; Huntington, etc. Co. v. Lake Erie Lumber & Supply Co., 109 Ohio St. 488; Miller v. Blockberger, et al., 111 Ohio St. 798.

It is in evidence that the contract, though purporting to .originate with the Company, was actually drawn by Ricketts. It should, therefore, be construed most strongly against him.

It seems plain to us that the parties contracted with the understanding that the system of accounting that had previously been followed should continue to be in force, in so far as it affected the relations between the gasoline car department and the electric car-department.

We conclude therefore that the phrase “such as” should be here construed to mean “similar to”; and that the gasoline car department should be charged with those items of expense which were for its exclusive benefit, and those only.

The gasoline car department, as we have construed this contract, was not only a favored department, but in a sense a separate entity. It will be presumed that the company would not regard that separate entity as a source of profit until all the expenses directly and exclusively attributable to . its operation had been paid out of the receipts from its operation.

We will presume that the company intended to encourage Ricketts to keep down the operating expenses of the gasoline car department, and that the company intended, and Ricketts a man of business expected, that such expenses would be deducted from the gross profits before Ricketts could share in the profits of the gasoline car department.

Taking all the foregoing considerations into account, we are of the opinion that, by the terms of this contract, Ricketts, though receiving $50.00 a week in any case, was not to receive any share of the profits from the sale of gasoline cars until after the payment, by the gasoline car department, of his own salary, the commissions for the sale of gasoline cars, the freight on the gasoline cars that were sold, and the advertising and gasoline required for the gasoline car department.

The judgment was, in our opinion, excessive, and we hold that the trial court erred in leaving to the jury the construction of the contract; but the errors will be cured by the judgment that will be entered here. Section 12,272, Ohio General Code.

In accordance with the above conclusions, and coming- now to do that which the trial court should have done, we order that judgment against The Charles Behlen Sons Company be entered in this court in favor of Ricketts for the sum of $1,355.20, and interest thereon from August 13, 1923.

(Hamilton, PJ., and Cushing, J., concur.)


source: Caselaw Access Project

author: VICKERY, J.

license: Public Domain

text:
    CHRISTENSON v. LO PARO, et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8599.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1100. SPECIFIC PERFORMANCE — 997. Real Estate.
    Specific performance to exchange properties cannot be enforced when the party seeking the remedy cannot perform.
    Appeal from Common Pleas.
    Decree for defendant.
    Locher, Green & Woods, Cleveland, for Christenson.
    Nicola & Horn, Cleveland, for Lo Paro.
    STATEMENT OF FACTS.
    Christenson had become the owner of a farm on the Vermilion River in Wakeman, Ohio, which he had purchased a few days before this alleged sale, upon which there was a mortgage for $15,000, and this farm had a farm house upon it and backed up on the Vermilion river and apparently was a very beautiful place.
    The defendant owned a lot of land on Lorain avenue in Cleveland well worth 48 to 50 thousand dollars, upon which Lorain street property there was a mortgage, perhaps two, amounting to $20,000, but the equity of the defendant in this property was about 25 to 28 thousand, dollars.
    On plaintiff’s farm there was a mortgage of $15,000 which the defendant was to assume and the trade was to be an even trade, — the farm on the river at Wakeman being valued at about $50,000 and the real estate on Lorain avenue at about 48 to 50 Thousand Dollars. The contract was entered into by the defendant below in good faith, not having any knowledge of the value or the condition of this land and the papers were made and placed in escrow, but before the time came for the execution of these papers, a suit had been brought by the holder of the mortgage on the farm in Wakeman and that suit resulted in a sale of this land for $10,010 at Sheriff’s sale, and it was appraised by the appraisers appointed by the court of Huron county at somewhere between 14 and 15 thousand dollars, and so it was sold for a little more than two-thirds of its appraisal.
    While this negotiation was pending the plaintiff in this suit made no attempt to, nor did he preserve the property so that he would have it to transfer to the defendant. By some sort of a pleading the defendant was made a party to that proceeding in -Huron county and a deficiency judgment was rendered for the difference between the mortgage and what the land sold for, amounting to some 5 or 6 Thousand Dollars. The defendant, learning from those who were acquainted with the value and knew of the condition of the real estate of farm lands around Wakeman, told this man that the farm that had been represented to be worth $50,000 was worth 18 to 20 Thousand Dollars and was subsequently sold for $10,010.
    Before this deal was consummated the plaintiff became aware of the condition of things and ultimately refused to go forward with his deal, although it seems that at the time when the deal was to be consummated he had not yet learned of the misrepresentations or fraud that had been practiced upon him, nor the value of this land, and was at the place where the deal was to be consummated, ready and willing to go forward. But it seems that the plaintiff was not present or did not appear for the' purpose of finishing this deal.
    However that might be, before this suit was brought the defendant learned of all the conditions surrounding this farm proposition and learned that this farm, while of course it might have been suitable for allotment purposes, was so far from any place where the allotments could be utilized, that it was useless for anything except farm land, and. the value put upon it by the farmers in the vicinity, who were well acquainted with the value of the land, put it at $75.00 to $100.00 an acre, or $18,000 to $20,000 in all.
    He thereupon declined to go forward with the deal and defendant brought this suit, and before the case came into this court the land had been sold and the plaintiff had nothing to give in return and he is asking this court of equity to compel the defendant to deed over to him a property in which there is an equity of from 20 to 28 Thousand Dollars for nothing, and that does not state the whole case either. He was not only going to give nothing in return, but was going to compel and seeks to compel the defendant to assume a liability of some 5 or 6 Thousand Dollars, and he is asking a court of equity to use its powers to compel the defendant to deed to the plaintiff property worth $48,000 to $50,000 in which there is an equity of $25,000 to $28,000, for absolutely nothing and worse, and during all this time plaintiff took no means to preserve, so that he could have in his control, the property that he agreed to trade to the defendant.
   VICKERY, J.

It would seem that one only would have to state the proposition to see how inequitable such a decision would necessarily be.

The plaintiff is not entitled to the relief he seeks in this case for the reason that to use the equity power of the court to enter such a judgment would be so grossly inequitable that it would shock the conscience of the chancellor in any court. The plaintiff not having in his possession or power to deliver the article he promised to deliver, he cannot enforce specific performance, because the record plainly shows, or it is admitted in argument, that this property was sold at Sheriff’s sale and that it is now owned by some one other than the plaintiff.

If-the plaintiff wanted to have this transaction completed he had to be in readiness to tender and be able to perform his part of the contract. Not being able to do so, he is not entitled to the relief sought.

There may be a decree for the defendant.

(Sullivan,' PJ., and Levine, J., concur.)


author: MAUCK; J.

text:
    BOLANDER v. COWLEY.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8704.
    Decided June 25, 1928.
    First Publication, of This Opinion.
    Syllabus by Editorial Staff.
    Middleton, PJ., and Mauck, J., of the 5th Dist. and Lemert, J., of the 6th Dist., sitting. AUTOMOBILES.
    (50 A2bl) The owner of án automobile, employing a garage owner to tow his disabled car, and steering it while being towed, is not, ipso facto, the agent of the garage owner, the principal, nor a disinterested party.
    Error to Common Pleas.
    Judgment reversed.
    Henderson, Quail, Siddall & Morgan, Cleveland for Bolander.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Cowley.
    STATEMENT OP PACTS.
    Bolander was struck and injured by a machine owned by Simmons. The machine had become disabled and was being towed into the garage owned and operated by the defendants, for repair. Bolander charged the defendants with negligence in the manner in which they were towing the disabled car, and that this negligence caused his injuries. Trial was had resulting in a verdict for the defendants.
    The trial court before argument, gave to the jury this special instruction:
    “If you find from the evidence that by a voluntary independent act on his part, the driver of the automobile that was being towed, turned his automobile in such a manner as to strike the plaintiff and that the driver of the towing automobile did nothing to bring about the accident, then I say to you that as a matter of law that your verdict must be for the defendant.”
    Simmons, the owner, was driving the towed car, and there was evidence from which the jury might have found him negligent in allowing the towed car to leave the paved street and get into some soft cement adjacent thereto, and in his extricating the car therefrom.
   MAUCK; J.

This chaige was equivalent to an instruction that the defendants were not liable for the negligence of Simmons, which means that as a matter of law, Simmons was not the agent of the defendants.

The record shows that when Simmons found his car unable to proceed he telephoned to the defendants’ garage for service. Now it is clear that when response was made, one of two or three relationships might be created. It was competent for Simmons to secure help enabling Simmons to move the car from the place where it was disabled and in such case Simmons would be the principal. Such a case was Farrar v. Whipple, 63 Cal. App. 123. It was competent for Simmons to contract with the defendants for the latter to move the car in which ease,- generally, the defendants would as independent contractors be responsible for carrying on the work in a legal and prudent manner. It was perhaps competent for the parties to engage in a joint enterprise for the accomplishment of the removal.

The law requires no one of these relationships to arise. What the relationship is must be ascertained from the agreement of the parties, and that is determined by what was said and done by them.

This1 instruction was consequently erroneous unless the evidence showed that Simmons was not acting for the defendants.

The evidence did not warrant the trial court in charging as a matter of law that the defendants were not liable for the acts of Simmons.

The consequences of the error cannot be avoided by the suggestion that it was not prejudicial. The defendants below relied upon its effectiveness, and prepared and secured its submission because they believed in its influence. Moreover, there was testimony that tended to show that Simmons had permitted the towed car to get off the paved way and into the green concrete and, if the jury found this to be true, they might have found that the collision was solely due to this fact and that this fact constituted negligence.

For error in giving this instruction, the judgment is reversed.

(Middleton, PJ., and Lemert, J., concur.)


author: HOUCK, J.

text:
    GOFF, et. v. EMDE, et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8613.
    Decided Aug. 6, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    Houck and Lemert, JJ., of the 5th Dist., and Lloyd, J., of the 6th Dist., sitting.
    CORPORATIONS.
    (160 Ob) Directors of a corporation, not having appropriated to their own use any of its assets or property, or profited personally from any transaction with it, but, having evidenced confidence and faith in its affairs by investing and later, losing, large sums of money themselves, cannot be held guilty of actionable negligence.
    Appeal from Common Pleas.
    Decree for Defendants.
    Vickery & Vickery, W. K. Gardner, James McSweeney and Howard Burns, Cleveland, for Goff, et.
    Walter C. Rohrbacker, George E. Schroth, W. C. Shepherd and John Andrews, Cleveland, for Emde, et.
    STATEMENT OF FACTS.
    The amount of money sought to be recovered in this action is about $8,000,000 and grows out of the defalcations of the late Cleveland Discount Co.
    The plaintiffs, on behalf of themselves and other stockholders of said company, seek to recover for the benefit of the company against seventeen defendants, who were its directors at the time it ceased to function, based on the claimed negligent acts on the. part of said directors in the conduct and management of the corporate affairs and business transactions of the said Cleveland Discount Co.
    It was stated and agreed to in this court, on the trial, by counsel on both sides, that the only parties in interest here and the issues to be determined by this court were and are those of the plaintiffs and the defendants, William H. Hopple, the estate of Allen Andrews and the receivers of the Cleveland Discount Co., predicated on the pleadings filed by them and the evidence offered thereon.
   HOUCK, J.

The sole and only question here is one of fact. Under the record evidence are the defendants — Hopple and Andrews or either of them — guilty of actionable negligence?

. The duties of directors of a corporation seem to be well settled in this as well as other jurisdictions. They are bound to care for the corporate property and conduct and manage its affairs in good faith, and for a violation of these duties, resulting in waste or loss of its assets, they are liable and must account the same as other trustees. If they act clearly beyond their power, thus resulting in loss to the corporation, they are personally liable.

Directors are also liable if they suffer the funds of the corporation or its property to be lost or wasted by gross negligence, and inattention to the duties of .their trust.

Vol. 7, R. C. L., Sections 460, Vol. 2, Cooley on Torts, page 985.

4 Fletcher on Corporations, Sections 2406 and 2452. Also Vol. 7 R. C. L., Sections 547 and 458.

It will be conceded that directors of corporations occupy a responsible and important business relation to the general public; and in accepting such position of trust and responsibility it is not only presumed but expected of them that they will deal with the corporate property and conduct the business of the corporation with prudence and good faith. They have assumed the duty to properly, intelligently and honestly conduct all the corporate affairs in such a way and manner as will be for the best interest of the stockholders and all concerned. However, this may be, yet the directors are not held as a matter of law, to know all its affairs, transactions or business conducted by the corporation or at all times to know just what its books and papers contain; and it is well settled that such knowledge can not be imputed to them for the purpose of charging them with liability.

The rule in Ohio as well as in most jurisdictions appears to be as laid down in 2 Thompson, Corporations, Sec. 1410.

It is not claimed by plaintiffs that directors Hopple and Andrews appropriated any of the assets or property of the company to their own use or in any way profited personally from any transaction with the corporation. Yet, it was stated in oral argument and its truthfulness not disputed that Hopple had lost $200,000 and Andrews $25,000 in investments made with the company. This certinly is an outward sign of an inward feeling that they had confidence and faith in the company and in its soundness financially at least at the time the investments were made and up to or about the time the receivers were appointed.

The claimed mischief lies in that they should have known or with proper care and attention given to the company they would have or should have known of its improper conduct on the part of its president and certain other officers of the corporation.

Under the evidence before us it is clear that the “guiding star” of the Cleveland Discount Co. was Josiah Kirby, its president, and under the corporation charter aud the rules and regulations of the company, Josiah Kirby, the president, was in full and complete command.

It does not require a very careful reading of the evidence to determine that under' these wide powers given Mr. Kirby that he was from the beginning to the end the dominant factor and autocratic leader of the business done and policies carried out by the Cleveland Discount Co. until the “crash” came and the story of “Kirby’s Fienzied Financial Career” is now history.

But the evidence does not disclose such confidential or friendly relationship as between Hopple and Andrews on the one part and Kirby or any one else on the other part with reference to any of the business transactions of the company, that would in any way or manner indicate that Hopple and Andrews or either of them had knowledge either directly or indirectly of any improper or illegal transactions of the company or any of its oifieers that would show guilty knowledge on their part, or that they — Hopple or Andrews or either of them' — ■ ought to have known or that a reasonably prudent business person should have known under like circumstances.

As to the law governing* this case we are convinced that the decision and the authorities cited therein in the case of Mason v. Moore, 73 Ohio State, 275, are clearly applicable to the proven facts before us. This, together with the other authorities cited and the rules of law herein laid down lead us to the unanimous conclusion that there is a failure of proof on the part of plaintiffs to establish the material allegations of the petition as against the defendants — Hopple and Andrews — or either of them and plaintiffs’ petition is dismissed as to them.

Judgment for the defendants, William H. Hopple and Belle D. Andrews, Executrix of the Estate of Allen Andrews, deceased.

(Lemert, J., and Lloyd, J., concur.)


author: LLOYD, J.

text:
    KINTNER et v. LAWRENCE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8864.
    Decided June 11, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    Lloyd, J., of the 6th Dist., and Houck & Lem-ert, JJ., of the 5th Dist. sitting.
    CONTRACTS — Attorney and Client. (40 C2)
    (150 C3) Duty of Court, not jury, to construe written contract.
    (150 Db) In action, by attorney, for’ compensation for services in securing settlement of claim of ward against guardian, said claim consisting of interest in real estate, increased value of real estate, after settlement, not correct measure of damages.
    Error to Common Pleas.
    Judgment reversed.
    Lex Kintner and D. H. Hopkins, Cleveland, for Kintner et.
    C. J. Bannick, Cleveland, for Lawrence.
    STATEMENT OF FACTS.
    Plaintiffs in error were plaintiffs, and defendant in error, defendant, and will be so referred to here. Plaintiffs were attorneys at law, and on October 2, 1925, they entered into a written agreement whereby plaintiffs were to act as attorneys for defendant.
    “in negotiating for a settlement and if same is not effected, in bringing, conducting and prosecuting an action against Clara Lawrence to recover damages for failure to render an accounting of her guardianship * * * and in consideration for services so rendered and to be rendered * * * it is agreed that they shall receive a sum of money equal to 15% of whatever recovery may be had in the case on trial thereof; and in case said claim or suit is settled prior to trial” then; they “shall receive an amount equal to 15% of whatever may be recovered in such settlement.”
    Clara Lawrence is the mother and was the guardian of defendant, having been appointed such when defendant was eleven years of age.
    Negotiations for settlement failed and plaintiffs, as attorneys, for defendants, filed an action in the Common Pleas against Clara Lawrence for accounting and for a.conveyance to plaintiff of an interest in certain real estate, the title to which it was claimed Clara Lawrence held in trust, having acquired same with funds which came from the estate of defendant’s father, and in which as such heir she had an undivided interest. In this action plaintiff was decreed to be the owner in fee simple of an undivided' 1/3 interest in the real estate in question, and in addition thereto a judgment was entered in her favor in the sum of $23,250.00.
    Defendant, without the knowledge of plaintiffs, entered satisfaction of this judgment in the Clerk’s office and thereafter paid to plaintiffs 15% of $23,250 for services rendered under the terms of the contract but refused to pay them anything in addition thereto.
    The plaintiffs claim that they are also entitled to 15% of the value of the real estate in controversy, and claim the value of the 1/3 interest of defendant therein is $30,000 and that under their contract with defendant they are entitled to 15% of that sum.
    Upon the trial of the action in Common Pleas, a verdict was returned for defendant.
    As to the contract in question the trial judge instructed the jury as follows:
    “I say you will have this contract with you in your jury room. There are no ambiguous terms in the contract and it is plain, so that you can understand it without the Court explaining it.”
    On this subject the court also instructed the jury that
    “The contract sued upon in' this case must be strictly construed. Bearing this in mind, you must determine whether or not any services rendered, if any, were performed by plaintiffs, in securing a settlement whereby a certain agreement, between defendant and her mother concerning certain real estate was terminated, if any such agreement was terminated, was or was not part of the services to be performed by plaintiffs under their contract of employment for which they were to be compensated thereunder.”
   LLOYD, J.

Obviously the instruction which was so given, constituted prejudicial error since it was the duty and responsibility of the court to construe the contract to say whether it did or did not relate to and include the - services for which plaintiff sought to recover a verdict and judgment.

As to the measure of damages, the court instructed the jury as follows:

“The measure of compensation or damages would be, if any is allowed, fifteen percent of the increased value of the real estate, if there was an increased value, after the settlement of the case between the defendant and her mother, and prior thereto. Putting it another way, it was, in the reasonable sale value of defendant’s interest in said real estate before and after the settlment, if there was a settlement of the litigation for which plaintiffs were employed by this defendant.”

If the construction given the contract by the court constituted a cause of action thereunder, for the services of plaintiffs for which they claimed compensation, then manifestly these instructions did not correctly state the measure of damages and was prejudicially erroneous.

The judgment of the Common Pleas is hereby reversed and the action is hereby remanded for further proceeding according to law.

(Houck and Lemert, JJ. concur.)


author: HAMILTON, P.J.

text:
    RAYMOND et v. HEARON et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3152.
    Decided Mar. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES.
    (220 Wc) An attorney, witness to a will, may give testimony concerning it, but as to the terms of a former will, the best evidence is the written will itself.
    TRIAL.
    (590 Me) Report to the court of a witness talking to jurors during a recess in the trial of a will contest, evidences no improper effect was produced by the conversation and justifies the court in overruling a motion for mistrial.
    Error to Common Pleas.
    Judgment affirmed.
    Powell & Smiley, Alcorn & Alcorn, Barker, Davison & Shattuck and Dolls, O’Donnell & Cash, Cincinnati, for Raymond et.
    Edward H. Brink and W. F. Fox, Cincinnati, for Hearon et.
    STATEMENT OF FACTS.
    The action below was to contest the validity of the last will and testament of Laura Crosby, which had been admitted to probate on the 22nd day of January, 1926. The trial resulted in a verdict finding that the paper writing was not the last will and testament of Laura Crosby, and judgment was entered on the verdict. From that judgment, error is prosecuted to this court.
    It appears that Laura Crosby was a widow who _ died childless, leaving an estate of approximately $38,000.00. The contestant was her niece.
    It appears that Mrs. Crosby made her first will in 1917.
    In 1919, Mrs. Crosby executed a second will. • In this 1919 will the contestant was not remembered. One-third of the estate was left to another blood niece, who was a sister of the contestant; one-third to a niece of Mrs. Crosby’s husband; and the remaining one-third to Mr. Koehler, less,two small contingent legacies, one of $1,000, and two of $500.00 each.
    A third will was executed in 1922, and was written and witnessed by Mr. Powell, who had .drawn and witnessed the former wills.
    At this time, Mrs. Crosby was approximately 78 years of age, with greatly impaired eyesight.
    This 1922 will was executed in Mrs. Crosby’s room, at a rooming house which had been secured for her, through the instrumentality of Mrs. Koehler, in the presence of Mr. Powell, Mr. Koehler, and Dr. Weaver; Mr. Powell and Dr. Weaver being witnesses to the will.
   HAMILTON, P.J.

It must be borne in mind that the exercise of undue influence need not be shown by direct proof. It may be inferred from circumstances.

The circumstances and the relations existing between Mr. Koehler and Mrs. Crosby and their business and social matters were fully gone into at the trial.

. The testimony, of the contestee Koehler, upon being called by the contestant for cross-examination, bi ought out many facts for the consideration of the jury on the question at issue. The relations existing between Mr. Koehler and Mrs. Crosby were of a most confidential nature. Koehler did not take the stand except on being called on cross-examination by the contestant. The jury probably took this failure to take the stand into consideration in arriving at their verdict. The fact that Mr. Koehler, whose advice in all business and social matters Mrs. Crosby followed strictly, arranged for and was present at the execution of these wills, in which he was bequeathed a large legacy, undoubtedly had great weight with the jury.

As heretofore stated, we cannot go into a complete discussion of the evidence as presented by the voluminous record, but we think enough has been stated to show that the facts involved were purely jury questions. The jury having resolved the facts against the con-testees and against the validity of the will, we will not disturb the verdict and judgment on the weight of the evidence.

One of the points of rejection of evidence stressed by counsel in the brief, is, the refusal of the court to permit Richard Powell, counsel who had written and witnessed the will in 1917, to answer certain questions. It is argued that the court misconstrued the law applicable to confidential relations between attorney and client, and that the court excluded the testimony on that ground. An examination of the record? does not bear out this contention of counsel. It is the¡ law that where an attorney is a witness to the will of a client, the attorney may give testimony concerning it; that the signing as a witness, at the request of the testator, waives the protection of the rule of confidential communications; but the testimony excluded concerned the will of 1917.

Later, the witness was asked:

“Q. Will you give us, to the best of your memory, the contents of that will?”

, Objection to answering the question was sustained. The objection to this question was sustainable on the ground that the matter inquired about was in writing, and the writing was the best evidence of what it contained. The will of 1917 was not produced. There was no evidence that the paper was lost, or that it had been destroyed, or that it could not be found. The record discloses only that the witness did not know where it was. Under the rule of the best evidence, the question asked was properly excluded.

Exhibits would be but cumulative evidence, as there is both oral and written testimony to the same point and concerning the same matter as is contained in the fragmentary letters sought to be introduced.

Another ground of error is suggested, based on the following incident. It appears that during the trial a witness for contestees, during recess, spoke to some of the jurors about the. case. The jurors immediately reported the incident to the court. Contestees moved for a mistrial. The court investigated the matter, and overruled the motion.

The prompt report by the jurors to the Court shows that no improper effect was produced by anything said to them. On the other hand, it shows the jurors to have had a high sense of their duty and obligation. The court did not err in overruling the motion.

We find no prejudicial error in the record, and the judgment is affirmed.

(Mills and Cushing, JJ., concur.)


author: SULLIVAN, PJ'.

text:
    PETTIT v. MORTON et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9003.
    Decided Apr. 16, 1928.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES.
    (220 T') Equity, under an unprobated will, will not declare a trust for fraud and forgery and so declare a duly probated will in favor of heirs at law invalid when occupancy, rents and profits ensue.
    A nephew, having no distributive interest in property devised, has no capacity to bring an action to declare a trust.
    Error to Common Pleas.
    Judgment affirmed.
    H. L. Diebel, Cleveland, for Pettit.
    J. A. Curtis and Day & Day, Cleveland, for Morton.
    STATEMENT OF FACTS.
    The question is whether the court committed prejudicial error in sustaining a demurrer to the first ground of defense of the answer filed by the defendants, which traversed the alleg'a-tions of an amended petition wherein it is sought, on the part of the petitioner, the plaintiff in error, to have a trust declared in the defendant Morton and in favor of the plaintiff in error, in what is known as the Savoy Hotel property, located on Euclid Ave. in Cleveland.
    In 1905, the father of defendant Morton executed a will which was admitted to probate in due form in the same year. It is claimed that this will is an instrument of no legal force and effect, because it was forged by the defendant and fraudulently probated by him, and under it he and his sisters, the co-legatees and only heirs at law took custody, possession and control of the property, and now hold the legal title ■ thereto, by virtue of said will thus probated.
    It appears that, on the same day this will was made and executed by the decedent, but prior thereto, there was another will made which named as devisee a nephew of the decedent, the plaintiff in error Morton Petitt, and it appears that the forgery was not discovered until years afterwards, when the statute of limitations had run against the right to contest the will under the statutes. The petition uses this unprobated will as a basis for the declaration of the trust according to the allegations of the amended petition, and specifically the relief sought is a decree in equity, declaring the defendant Morton a trustee ex maleficio for the plaintiff, as to the rents and profits which have come into the possession of the heirs at law, and for an accounting.
    The answer has two defenses, but the first one is the only one material to the issue, raised by the demurrer and, in substance, it is that the plaintiff has no capacity to sue or to maintain his action because the unprobated will has never been admitted to probate under the statute, or otherwise, in the County of Cuya-hoga where the property is located. The demurrer was filed to this first defense and it, being general in its nature, alleged that the amended petition was insufficient in law to constitute a valid ground of defense to the cause of action incorporated in the amended petition, and this demurrer having been overruled by the Common Pleas, and the plaintiff not desiring to plead further, judgment was rendered in behalf of the defendants, and by these proceedings it is sought to reverse the judgment of the court in overruling the demurrer as it applies to the' first ground of defense.
   SULLIVAN, PJ'.

The vital question is whether a court of equity,, under the unprobated will, can declare a trust on the ground of fraud, and in that manner ultimately have declared invalid the will in favor of the heirs at law, duly probated under the statute, and under which occupancy, possession and rents and profits ensue?

In Seeds v. Seeds, 156 N.B. 193, the Supreme Court held that an heir at law might maintain an action in equity to have a devisee under a forged will, fraudulently admitted to probate, declared a trustee ex maleficio, even after the statutory time for contesting the will had.expired, but in that case the person seeking to have the trust declared was the heir at law of the testator and, therefore, was an interested person in the will itself and would be benefited upon the setting aside of the fraudulent will.

That case cannot, in our judgment, be a basis for authority to declare a trust in the instant case, because, the plaintiff in error has no interest in the property now and could have no interest in the distribution of the property if the will assaulted were declared null and void, because he is not an heir at law, and the un-probated will which he claims under as a legal document with force and effect in law, is a piece of worthless paper in the face of the will duly probated by the Probate Court.

The right to maintain the action in the instant case depends for its prerequisite upon some interest, either legal or equitable, in the property, before the capacity to sue exists. In the present case the legal title is in Morton, and there is no allegation in the amended petition that the plaintiff in error has any rights whatsoever in the property that may be considered substantive in law and eonstiluing such requisites as are necessary to pray for the declaration of a trust.

Under Sec. 10541 GC., it says:

“Unless it has been duly admitted to probate or record, as provided in this chapter, no will shall be effectual to pass real or personal estate.”

Thus the unprobated will is no basis for property rights in the plaintiff in error and without them, especially inasmuch as he is not an heir at law, he cannot maintain the action for the declaration of a trust, because he is incapacitated in law to sue.

Thus it is our unanimous judgment that for the purpose of the declaration of a trust as prayed for in the amended petition, the un-probated will is absolutely inoperative, and when the party plaintiff leans upon it as a basis for his cause of action, it is as a broken reed, without any legal strength to furnish any support whatsoever, to litigation in Ohio courts.

There has been, a considerable discussion by counsel as to the language of the court in Seeds v. Seeds, supra, and opposing counsel take opposite views, especially by reference to the case of Gaines v. Chew (1844) 43 U.S. (2 How.) 619, 11 L. Ed. 402, but we think the decision of the Supreme Court in Kieley v. McGlynn, known as the case of Broderick’s Will, 21 Wall. 503, 22 Law Ed. 599, settles the difference of opinion. There was no holding in Gaines v. Chew, that a devisee, under an unprobated will, could successfully maintain an action like the one at bar.

Again, in Morningstar v. Selby, 15 Ohio, 345, we find the same authority stating that the language in Gaines v. Chew was obiter dicta, and is no legal authority for sustaining an action for a trust like the one at bar.

The authorities are so numerous that a court of equity has no jurisdiction to admit a will to probate or to give validity to an unprobated will, that it is useless to refer to them, but the question is settled in Joseph Hunter’s Will, 6 Ohio 499 and in Lessee of Swazey’s Heirs v. Blackman et ux, 8 Ohio, page 5, and in Morningstar v. Selby, supra.

Holding these views, the judgment of the lower court is hereby affirmed.

(Vickery and Levine, JJ., concur.)


text:
    CLEVELAND (CITY) v. PURCELL et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8600.
    Decided May 23, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    APPEAL — Real Estate (510 E3).
    (30 12) Appeal lies, in condemnation in Cuyahoga County, from Insolvency to Common Pleas Courts.
    Error to Common Pleas.
    Judgment affirmed.
    Carl F. Shuler, Dir. of Law, Alfred Clum and Harry S. Brainard, Asst. Dirs. of Law, Cleveland, for Cleveland.
    White, Cannon & Spieth, Cleveland, for Purcell et.
    STATEMENT OF FACTS.
    The City, in the exercise of the power of eminent domain, sought to appropriate certain property, belonging to Purcell, for municipal purposes, and appropriation proceedings were brought in the Insolvency Court of Cuyahoga County, and the case was heard before the Insolvency Judge and a jury, and a verdict was rendered in favor of the defendant, Purcell, for some $26,000 which the City was ready and willing to pay, but Purcell, not being satisfied with the amount of the judgment, appealed the case to the Common Pleas and in that court a motion to dismiss the appeal was overruled, and the case went on to trial, resulting in a verdict of some $10,000 more, and to reverse that judgment, error is prosecuted here.
   VICKERY, J.

The principal error argued in this court was that there was no appellate jurisdiction in the Common Pleas from the Insolvency Court and that the whole procedure in the Common Pleas was without authority and the only judgment that the City should be called upon to pay would be the judgment in the Insolvency Court, —neither party having prosecuted error, would be bound by that judgment, if the case were wrongfully appealed.

It seems that the Insolvency Court of Cuya-hoga County was established by an Act of the Legislature in March, 1896, under the power then existing by viitue of the Constitution providing that the Legislature might create courts inferior to the Common Pleas. It is important to bear this creative statute in mind for in it, without quoting it literally, is contained the provision, after mentioning the jurisdiction of the Insolvency Court of Cuya-hoga County, that such appellate jurisdiction shall exist to party litigants, that is, the Act creating the Insolvency Court, 92 Ohio Laws, 475, or more particularly Section 13 of that Act, provides in effect that if and when a litigant can appeal from the Cuyahoga Probate, he can appeal in a like manner of case from the judgment of the Insolvency Court to the Common Pleas. It is only necessary to say, in passing, that this creative statute still exists intact in our Code.

Prior to 1902 it was deemed advisable and necessary to write a new Municipal Code of Ohio. In it (Section 21, 96 O. L. 29) appeal was allowed from the Probate Court in appropriation cases of municipalities to the Common Pleas and an appeal from the Insolvency Court to the Common Pleas Court. In 1909 the code was again amended and Sec. 21 (100 O. L. 100) provided for the trial of appropriation cases in the Common Pleas, the Probate, or the Insolvency Court, and likewise provided that error proceedings could be prosecuted in such cases from the Common Pleas Court, the Probate Court and the Insolvency Court to the then Circuit Court; and the section then provided, however, that when appropriation cases are tried in the Probate Court, an appeal may be taken to the Common Pleas.

There are no words excluding the right of appeal from the Insolvency Court to the Common Pleas Court in the Act of 1S09. It must be remembered that appropriation cases could be heard in the Insolvency Court, in the Probate Court, or in the Court of Common Pleas, and the mere fact that error could be prosecuted from all of these courts, would not of itself deprive the litigant of the right to appeal from the Insolvency Court, if it existed prior therer to by virtue of the creative act of 1896.

Now the universal rule of construction of statutes is, that the law abhors the idea of the repeal of a statute by implication, and it is only when it is incongruous and cannot be reconciled with the new legislation that it will have such an effect.

We do not think that the Legislature intended to repeal by implication the statute of 1896. We do not think that it was necessary, if that statute is still in force and effect, as we believe it to be, for the Legislature to have done anything more than it .did do in the Act of 1909 to confer appellate jurisdiction from the Insolvency Court to the Court of Common Pleas.

We think, therefore, that the contention of the City in this respect is not well taken; that case was properly appealable from the Insolvency! Court to the Common Pleas Court.

The judgment of the Common Pleas must be affirmed.

(Sullivan, PJ., and Levine, J., concur.)


author: KUNKLE, J.

text:
    ORDER OF UNITED COMMERCIAL TRAVELERS v. ETCHEN.
    Ohio Appeals, 2nd Dist., Franklin Co.
    E. W. Dillon and Ralph E. Weaver, Columbus, for Commercial Travelers.
    Hugh Huntington, Frank M. Raymund and John A Millener, Columbus, for Etchen.
   KUNKLE, J.

INSURANCE.

(310 F2) A provision in a fraternal beneficiary certificate of insurance which provides that suits at law or *in equity can only be brought within six months after the claim is disallowed by the supreme executive committee is not enforceable, where the evidence shows that the beneficiary, during practically all of the six-month limitation, was irrational, and mentally incompetent to transact business.

(310 L2) The fact that the insured might have been suffering from an aneurism on the arch of the aorta does not prevent recovery by the beneficiary under the terms of the policy, where the evidence also shows that the insured met with a casualty causing serious injuries which left visible marks of violence on his head, which injuries were of such a nature as could have caused death. Under the circumstances disclosed by the record, the cause of the insured’s death became a question for the determination of the jury.

For reference to full opinion, see Omnibus Index, last page, this.issue.


text:
    GRANVILLE & NEWARK MOTOR SERVICE, INC. v. P. U. C.
    Ohio Supreme Court.
    Nos. 21068 and 21069.
    Decided June 13, 1928.
    Error to P. U. C.
    Order Affirmed.
    By Editorial Staff.
    AUTOMOBILES.
   (50 Pb) Order of P. U. C., granting certificate to applicant best fitted to perform service, will not be- disturbed unless unreasonable or unlawful.

For reference to full opinion, see Omnibus Index, last page, this issue.


text:
    ADAMS v. GORRELL.
    Ohio Supreme Court.
    No. 20765.
    Decided June 20, 1928.
    Syllabus by Editorial Staff.
    874. ORDINANCES — 570a. Gasoline Stations.
   Emergency Ordinance, embracing gasoline tank thereafter to be erected, but in no way attempting to regulate other similar open air gasoline tanks that were in daily operation, held invalid.

For reference to full opinion, see Omnibus Index, last page, this Issue.


text:
    STEUBENVILLE-CANTON TRANSPORTATION COMPANY v. P. U. C.
    Ohio Supreme Court.
    No. 21024.
    Decided June 20, 1928.
    Syllabus by Editorial Staff.
    793a. — MOTOR TRANSPORT — 973a. Public Utilities Commission.
   Extension of Certificate denied where proposed route paralleled existing line, and evidence insufficient to show service not reasonably adequate.

For reference to full opinion, see Omnibus Index, last page, this Issue.


author: SULLIVAN, PJ.

text:
    AULT v. HALL.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Syllabus by Editorial Staff.
    TRIAL.
    (590 E3g) Charge that if, under evidence, surgeon had right to rely upon sponge count of nurse, and if surgeons are accustomed to rely upon such count,' verdict should be for defendant, held not erroneous.
    PHYSICIANS AND SURGEONS.
    (430 M) Universal custom, with respect to wiping sponges, is that they are not intended to be left in body and therefore no reason for attaching forceps or hemostat.
    PHYSICIANS AND SURGEONS.
    (430 M) Rules and customs of modern surgery must be taken into consideration in malpractice cases, and courts and juries are bound to follow rule of law laid down as to custom and usage.
    NEGLIGENCE.
    (370 R2) Doctrine of respondeat superior held not to apply so as to hold surgeon liable for negligence of nurses and assistants.
    Error to Common Pleas.
    DeKaiser & Harrison, Cleveland, for Ault.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland, for Hall.,
    STATEMENT OP PACTS.
    This is a proceeding in error where it is sought to reverse a judgment which was rendered in favor of Charles A. Hall, a practicing physician of long standing. The suit is founded upon a charge of malpractice in the professional treatment of Sophronia Ault, the plaintiff in error, upon whom was performed, by defendant in error, an operation for the removal of the gall bladder, and it appears that after the completion of the operation, what is known as a wiping sponge was left in the abdomen of plaintiff in error.
    There are three grounds of error, to-wit:
    The charge of the court with respect to the question of the usual custom.
    The refusal to give special charges requested by the plaintiff.
    The verdict and judgment are clearly and manifestly against the weight of the evidence.
    The case went to trial upon the second amended petition which pleaded that the defendant, the surgeon, had entered into a contract to perform the operation for the removal of the gall bladder, in accordance with, the rules of efficient medical practice in surgery cases and that under the agreement, the plaintiff entered the hospital, was operated upon and that she was damaged to her injury because of the failure to remove the sponge at the completion of the • operation, and it is charged that by reason thereof it became necessary _ for her to return to the hospital, and remain some three weeks before the injury caused by. the presence of the sponge, was remedied, or partially so.
    The answer admits the contract for • professional services but denies any negligence and pleads in defense that the operation was performed in accordance with the general custom relating to surgical practice in such cases, and further alleges that as to the surgical attendants and trained nurses, it is the general custom in this locality, for the surgeon to enlist the hospital staff present, in1' assisting him in the operation and it is specifically alleged that it is the general custom for one of the hospital staff, known as a sponge nurse, to have the responsibility of counting the sponges and performing all duties in relation thereto, excepting those duties which were necessary to be performed by the surgeon in the actual operation, and it is alleged that this person, known as the sponge nurse, was present and performed her duties in that behalf, and that at the completion of the operation that this nurse, so enjoined with these duties, reported to the defendant that the sponges used in the operation were accounted for and that the defendant relied upon such count, as it was necessary and customary in accordance with the best medical and surgical practice, and there was a further denial that the hospital staff who assisted in the operation,, were the agents and servants of defendant. Upon these issues thus raised, the case went to trial and as noted, there was a verdict and judgment for defendant, and hence these proceedings in error.
   SULLIVAN, PJ.

From the excerpts noted, and the allegations of the petition itself, it is clear, that the petition is planted on the authority of Gillette v. Tucker, 67 OS. 106.

Additional authorities showing this rule in Ohio are Palmer v. Humiston, 87 OS. 401; Hier v. Stites, 91 OS. 127; Bowers v. Santee, 99 OS. 361 and Railroad v. Potter, 113 OS. 591, 597.

Under allegations of this character there is evidence throughout the record, of a professional and expert nature, that the operation was performed by the defendant with the exercise of that average degree of skill, care and diligence practiced by the members of the surgical profession in this locality and in the light of medical and surgical science of the present day.

Specifically significant in the record is testimony from one of the attendants that the defendant himself exercised the precaution of interrogating the nurse whose duty it was to keep track of and count the sponges, as to-whether she had performed her duty and the answer was in the affirmative.

Now, with the allegations of the petition planted upon the law of Ohio, as to the liability of a surgeon, and the evidence as above noted, and both bearing upon the question of custom, practice and skill, as laid down in the authorities cited, the Court, at the conclusion of the evidence, and over the objection of plaintiff, gave a special charge, as to which error is charged, which reads as follows:

“4. The Court says to you as a matter of law, that if under the evidence in this case, Dr. Hall had a right to rely upon the count of the sponge nurse who was in the employ of St. John’s Hospital, and if surgeons practicing in this vicinity in the technical routine of an operation of this character, are accustomed to rely upon the count of the sponge nurse then the Court says to you as a matter of law that your verdict herein should be in favor of the defendant, Dr. Hall.”

It is claimed that the error prejudicial to plaintiff, lurking in this charge, is that there is no reference to the question as to whether the nurse actually did count the sponges, or that she did report to defendant, or that defendant relied upon her count. It is claimed that the jury was arbitrarily instructed that they had a right to rely upon the sponge count, if that was the custom, regardless of whether there was a count or a report in reference thereto, or a reliance thereon.

Now, as bearing upon the correctness of this charge, we examined the record and we find testimony that it was not only the custom to depend upon the proper attendants to count the sponges, but that in addition thereto the defendant went further than the custom in such cases required, and propounded the interrogatory as to the presence of any sponges in the wound.

This evidence, in our judgment, removes the objections to the instruction complained of, that it should have been incorporated therein that the nurse counted the sponges, reported the same and that the defendant relied upon her count, because the phrase, “under the evidence in this case” incorporated in law the evidence above quoted, and that is to the effect that the nurse represented that the sponges were counted, that she reported the same, and that the defendant relied upon her affirmative answer in addition to depending upon the specific duties which applied, under the expert testimony of the record, to the counting nurse. Therefore, the instruction was given with a full knowledge that the jury, in interpreting the law from the bench, would be expected to connect with the instructions the evidence to which they had already listened and which was part of the record in the case. The court had a perfect right to rely upon the presumption that the jury remembered the evidence above quoted and that the instruction was given in connection with that evidence and that they were to exercise their intelligence with respect to the evidence, that the light of the instructions shed upon it.

It must be noted that the charge itself conformed to the law in Ohio’ as laid down in the Gillette case and other cases of a similar nature noted, with respect to the question of custom.

It is further claimed that there is error in the instructions in question, because one of the specifications of negligence in the second 'amended petition is that there were no forceps or hemostat attached to the end of the particular sponge which was left in the abdomen at the close of the operation.

There is credible evidence in the record to support the views apparently taken by the court and jury that in an operation of the character in question, that numerous kinds of sponges are used. It seems to be admitted by the evidence, that the particular sponge under discussion was what is known as a wiping sponge, and with respect to sponges of this character it was not the custom to attach a hemostat or a forceps, because there was no intention, necessity, or reason for the leaving of such a sponge in the abdomen, and hence no necessity for an attachment.

The very basis of the suit is the negligence arising from leaving the sponge in the body, and therefore to .recover, malpractice would have to be shown, because it was inadvertently and negligently left in the body and against the usual practice and custom and not that it was left there with the intention that it should remain.

In the final analysis of this particular feature of the case, it is clear that to argue that there should be a hemostat attached to the wiping sponge, does violence to the structure of plaintiff’s claim of negligence. If the Gillette case supra is the law of Ohio, then the universal custom under the record in this case, with respect to wiping sponges, is that they are not intended to be left in the body and therefore no reason for the use of a hemostat.

A further claim of error with respect to the instructions under discussion, is that it was erroneous because it held that the compliance with the custom or relying upon the nurse’s sponge count, is conclusive evidence of lack of negligence on the part of defendant.

Even if the authorities such as 21 Ruling Case Law 388; Davis v. Kerr, 239 Pa. 351; Paro v. Carter, 177 Wis. 121; Walker v. Holbrook, 130 Minn. 106; Barnett’s Admr. v. Brand, 165 Ky. 616; Spears v. McKinnon 270 S.W. 524 Ark., are correct views of the law, it is our judgment that the record shows by indisputable testimony that defendant did not rely alohe upon the nurse’s answer, as to the sponges, but made an inquiry which was professionally gratuitous as far as the general custom in such cases was concerned.

However, in the absence of such additional action on the part of the defendant in reference to the sponges, we cannot select the authorities above noted, that the responsibility and liability of the surgeon is broader than mere custom as against the unquestioned authority of our own Supreme Court as laid down in the Gillette case supra, and the other cases of similar nature cited herein. The rules and practice of modern surgery must be taken into consideration in cases like the one at bar, and courts and juries are bound to follow the rule of law laid down as to custom and usage.

Holding these views we are of the opinion that the instructions under discussion were not erroneous.

We now come to the assignment of error in the court refusing certain special requests before argument, offered by the plaintiff.

The charge first refused is known as No. 2, and it is claimed by counsel for plaintiff in error that this charge is almost verbatim from the opinion of the court in the case of Palmer v. Humiston, 87 OS. 406, which we have noted above in this opinion. It must be noted that there is a distinction between the case at bar and the Palmer case supra. The doctrine of compliance with usage and custom in surgery cases was not pleaded and as a defense was not involved in the case. In the present case the structure is local custom and in the answer to the second amended petition as we have noted above, a full defense is .alleged, implying full and faithful obedience to common practice and usage.

Exceptions were taken to the court’s refusal to give what is known as plaintiff’s fifth request, which is as follows:

“If you find by a preponderance of the evidence in this case that the defendant contracted to perform an abdominal operation upon the plaintiff * * * and that the defendant selected certain persons to assist him in performing said operation, and delegated to them a certain portion of the duties involved in said operation, and said persons throughout said operation were wholly subject to the orders, directions and control of defendant in every particular and detail of the work so delegated to them, said assistants were, for the period of said operation, the servants of the defendant; and this is true irrespective of whether or not they, or any of them, were in the general employ of the hospital where the operation was being carried on. And if you further find that the plaintiff has sustained injury, as alleged in her petition, directly by reáson of any negligence of the defendant himself or by reason of any negligence of one or more of said servants, in the performance of the duties so delegated to them, as set forth in the petition, your verdict must be for the plaintiff.”

We do not think from a perusal of. the evidence, that there is any basis for the claim that there was any such relationship as master and servant, employer and employee, or principal and agent, between the defendant and the attendants known as the hospital staff, which assisted him in the operation, and it is clear that without credible evidence of that nature there is no basis for the charge and simply because the master surgeon directed movements or made suggestions, or that the assistants were obedient to his call during any emergency or stage of the operation, does not create. the doctrine of respondeat superior. Hence, it is our judgment that there is no error in this respect.

Thus holding, the judgment of the court of common pleas is hereby affirmed.

(Vickery and Levine, JJ., concur.)


text:
    BROWN v. RAPID TRANS. SALES CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8002.
    Decided Mar. 12, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CONTRACTS. — Real Estate. (510 L2).
    (150 WSa) A written contract for the purchase of real estate, signed by a man engaged in the purchase and sale of real estate for profit, will not be reformed or rescinded because it contains certain restrictions which, if he had read it, he would have discovered before signing.
    Error to Common Pleas.
    Judgment affirmed.
    Wm. H. Chapman, Esq., Cleveland, for Brown.
    Garfield, Cross, MacGregor, Daoust & Baldwin, Cleveland, for Rapid Trans. Sales Co.
    STATEMENT OF FACTS.
    The suit was brought to reform a certain writing, or in the event that the writing could not be reformed, to rescind the contract and recover back what money had been paid upon it.
    Brown, the plaintiff, was a business man engaged more or less in the buying and selling of real property out of which to make a profit; Ryan was a sales agent for the Rapid Transit Land Company and his immediate superior was a man by the name of Morris. Ryan solicited Brown to buy a lot in an allotment owned by the Land Sales Co.
    When Ryan proposed that Brown become a purchaser of land in this allotment, Brown said that he would not be interested in anything but apartment and business property and thereupon, after dickering, he agreed to take a certain lot upon which an apartment house, at least might be built. $100 was paid down by Brown to Ryan on that sale, but when that sale was reported to Morris, Ryan was told that that lot had already been sold and they could not sell it to Brown, whereupon Ryan called the attention of Brown to the lot in question in this lawsuit, but said the lot would be six or seven hundred dollars more in price than the one already referred to, and stated that that property could be used for business purposes and for an apartment house, and said nothing about any restrictions or anything else that would interfere with the use of the property as stated by Ryan.
    Upon the strength of this, it is stated by Brown that he bought this lot in question for $4850.00, and the $100 paid upon the other lot was allowed upon the purchase price, and that together with $1100 was included in the $1200 which was paid upon the signing of the contract. A written memorandum was signed by Brown describing this lot in a brief way, but when the $1200 was paid, a contract in writing, which set forth all the terms, was signed by the Land Co. and by Brown. It is safe to say that the Land Co. had no knowledge of any of the representations made by Ryan or by Morris about what this lot could be used for, and that both Ryan and Morris were agents of the Land Co. to a limited extent only, and perhaps did not have power to bind the company with any . representations they might have made.
    At the time this contract was signed by the Land Co. and taken by Ryan to Brown, it was not read either by Ryan or Brown, although Brown could read and was not prevented from reading it in any way. ■ This contract clearly, unequivocally and without any ambiguity sets forth the restrictions upon this lot and what it could be used for, and it precludes the building of any business or apartment house upon the lot. Brown took this contract, which was delivered to him and put it in his safety deposit box without reading it. Subsequently he made various payments until he paid in the neighborhood of $2,000 upon this property.
    After the lapse of nearly two years, he brought an action against the Land Co. first, to reform his contract to conform to what he understood his contract to be from the representations made by Ryan, and if that could not be done, then to rescind the contract and recover back the consideration that he had parted with, on the ground that there were misrepresentations which induced him to part with the money. .
   VICKERY, J.

The question then is this, and simply this: can a man who can read, who is not prevented from reading, who has ample time to read, who has signed a written contract which sets forth completely the restrictions and terms of the contract, and who pays money down on that contract, not only at that time but at other times, without ever having read it, and who does not know the contents of that contract until he seeks to dispose of the property mentioned in the contract, and then for the first time finds that what the agent represented to him was not as a matter of fact true, — the question is, I say, can a man under these circumstances, after that lapse of time, rescind the contract and recover hack his money ? The question has been answered a great many times in the courts of this state and other states, and the Supreme Court of the United States, and they have all been, so far as I know, to the contrary.

McAdams v. McAdams, 80 OS., 240.

Upton, Assignee, v. Tribilcock, 91 U.S. 45, 50.

Jackson v. Croy, 12 Johns., 427; Lies v. Stub, 6 Watts, 48; Farley v. Bryant, 32 Me. 474; Coffing v. Taylor, 16 Ill., 457; Stapylton v. Scott, 13 Va. 427; Alvanley v. Kinnaird, 2 Mac. & G. 7; Burgess v. Richardson, 29 Beav., 490.

Our attention has been called to a decision of this court in the case of Bowman v. Rapid Transit Land Co., Volume 31 Unreported Opinions Court of Appeals, page 440. That case was a failure of consideration by reason of the inducement having failed. Miss Bowman bought that property only upon the promise of these people to resell the property for her. There is nothing like that in this case. In the instant case it was an immediate sale, and the representations which were made, were fraudulent representations, if anything, for which perhaps an action at law might lie. Now the original contract itself, if these statements were made, contradicts that, and Mr. Brown could have easily discovered, before he paid his money, because the first $100 which he paid on the lot could have been recovered, and so all the money was paid voluntarily upon this contract which sets forth the terms, and these terms were different from those which it is claimed the agent represented, and they were within the means of knowledge of Mr. Brown before the contract was completed.

The whole question resolves itself down to the proposition: Can a man close his eyes and his ears to knowledge that could not have escaped him had he exercised ordinary care and diligence in reading the contract, and then subsequently after quite a period of time, have the contract rescinded? We do not think so. We think the authorities cited in the 80th Ohio St., supra, and other cases, are clearly to the contrary, and we think there ought to be a decree for the defendant in this action.

(Sullivan, PJ., concurs. Levine, J., not sitting.) ting.)


author: LEVINE, J.

text:
    STANTON etc. v. TAX COMMISSION.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9264.
    Decided May 21, 1928.
    Syllabus by Editorial Staff.
    TAXES — Public Utilities (470 T) — Real Estate (510 T8).
    (560 T) Tax Commission has authority and power to assess valuation of real estate owned by Telegraph and Telephone Companies in Ohio, and order assessing such real estate is not subject to review by courts.
    Error to Common Pleas.
    Judgment affirmed.
    E. C. Stanton, Pros. Atty., H. E. Parsons, Cleveland, for Stanton.
    Tolies, Hoggsett & Ginn, Cleveland, for Tax Commission.
    STATEMENT OF FACTS.
    This is a proceeding in error instituted by the prosecuting attorney, under favor of 5611-12 GC., etc., seeking to review a final order of the Tax Commission.
    The order sought to be reviewed, fixed the value of the entire property of the Ohio Bell Telephone Co. for taxing purposes, for the year 1927, and apportioned this among the various counties and taxing districts of ■ the state.
    The material facts necessary to an understanding of the questions involved, are as follows:
    As required by 5449 GC., the Tel. Co., filed its annual report for the year ending December 31, 1926, with the Tax Commission. As part of said annual report, there was a detailed statement of real estate owned by it in Ohio, where situated, and the assessed value on December 31, 1926, included within which was the new main building site in Cleveland, on which the construction of the new main building had been started, but the building itself had not been included in the tax duplicate, so that the company reported to the Commission that the land for this building site was assessed for taxation at $480,230.
    In addition to the main building site, other lands and buildings, in Cuyahoga County were reported to the Commission in the amount of $3,195,410.00, making a grand total valuation of lands and buildings in Cuyahoga county, of $3,675,640.00.
    In the Company’s annual report, under an item, “Construction work in progress” there were included expenditures made to December 31, 1926, on account of the new main building in Cleveland, as follows:
    Building .$3,811,302.72
    Central office telephone equip.... 2,672,241.02
    Total .$6,483,543.74
    With this report of the preceding year and other evidence before it, the Tax Commission, as is required by law, on July 15, 1927, fixed the total value for taxation of the real and personal property of the telephone company in Ohio, as follows:
    Property used in operation including Total
    Name of moneys Final
    Co. and credits Real Estate Valuation Ohio Bell
    Tel. Co. $72,157,480 $8,292,860 $80,450,340 and ordered the total valuation as so fixed alter deducting the valuation of' the real estate, to be apportioned among the various counties and taxing districts in the state.
    In August, 1927, the auditor of Cuyahoga Coupty proceeding under the provisions of 5564 GC., which requires persons and corporations erecting improvements, to notify the auditor of the improvement, and give him an estimate of the cost, requested the telephone company to file an aifidavit of the cost of its uncompleted new main building in Cleveland, as of March 31, 1927. The telephone company, pursuant to this request, prepared, executed and filed an aifidavit showing the cost to the date mentioned, in excess of $4,000,000.00.
    On October 3, 1927, the tax commission certified its valuation and apportionment to Cuya-hoga Co., the apportionment being made on a wire mile basis, and advising the auditor of Cuyahoga Co. in substance that there should appear on his duplicate, apportioned among the various taxing districts of his county, personal property $28,087,630. The certificate also advised him as follows:
    “In addition to the sum of this certificate, there should appear on this tax duplicate the sum of $3,675,640.00 to cover the value of real estate.”
    This certificate was received by the auditor on Nov. 30, 1927.
    On November 19, 1927, the auditor, on the basis of the aifidavit that had been furnished him by the telephone company, assessed the value of the partially completed new main building in Cleveland, on the tax duplicate of said county, in the amount of $3,441,000.00, thus making the total assessed value of all real estate in Cuyahoga Co. $7,116,640.00, or $3,441,000 more than directed by the tax commission. In addition, the auditor placed on his personal property duplicate the $28,087,-630.00 directed by the commission.
    The telephone company has declined to pay the tax on this additional real estate assessment of $3,441,000 and this suit aims to_ lay a foundation upon which Cuyahoga Co. will endeavor to collect the tax by litigation.
   LEVINE, J.

It will be seen that since the Tax Commission had included in its entire valuation the expenditures made to December 31, 1926, on the new main building which were reported to it under the head of “Work in Progress” and apportioned this amount among the various counties on a wire mile basis, as authorized by statute, the inevitable result would-be that if the auditor has the authority to increase the real estate duplicate, as he has done, the telephone company will be taxed twice on its new building, and will be required to pay on a total valuation of $83,891,340 in the state; or $3,441,000 more than that fixed by the tax commission, and which is conceded to be correct.

The prosecuting attorney, in instituting the proceedings to review the order of the tax commission, does not claim that the valuation fixed by the commission was not the true value in money, of all the property of that company. His complaint is directed at the order of distribution concerning which it is contended — (1), that the tax commission is without authority to appraise the real estate of an express, telegraph or telephone company, that being within the sole jurisdiction of the county auditor, and (2), that the commission apportioned the valuation exclusively on a wire mile basis, when it should have been apportioned on a wire mile and property basis.

In support of this contention we are referred to 5548 GC.

The prosecutor maintains the term “assess- or” as used in the above section, was intended to mean “appraiser.” That the limitation upon the authority of the auditor as contained in the above section, merely relates to the valuation of the property of any public utility, but does not relate to the appraisal of any real estate of such public utility.

It will be noted, however, that the limitation upon the authority of the auditor, and relating to the power conferred upon the tax commission of Ohio, contains the phrase, “In the matter of the valuation and assessment of the property of any public utility.” The construction which the prosecuting attorney seeks to place upon this phrase would amount to an elimination of the words, “and assessment.”

In order to uphold the contention of the prosecuting attorney namely, that the auditor is the sole assessor of all real estate of whatever kind, no matter by whom owned, found in his county, and including the real estate owned by the telephone company, it would be necessary to insert in 5451 GC. language which is not there, namely, “that the commission shall ascertain and assess the value of the property of the telephone company with the exception of real estate owned by and situated in a given county.”

From time to time various sections of the Code were amended, but the purpose of applying the “unit rule” of valuation to express, telegraph and telephone companies was ever present.

We are referred to 6455 GC.

It will be noted.that the phrase; “after deducting the value of the real estate,” is not present in 5451-52 GC., which deal with the duty of the tax commission of Ohio, to ascertain and assess the value of the property of a telephone company.

If the contention of the prosecuting attorney be correct, that the auditor of the county is the sole assessor of all real estate found in his county, even though owned by telephone companies, it would be but reasonable to say that, if that were the intention of the legislature, it would have inserted in these two sections, which make it the duty of the tax commission to ascertain and assess the valuation of property of telephone companies, the same phrase which is found in the apportionment section, namely, “after deducting the value of the real estate.” This phrase, in our opinion, was deliberately omitted from 5451-52 GC., and deliberately inserted in 5456 GC., which deals with apportionment.

The language found in 5456 GC., “after deducting the value of the real estate,” lends probability and strength to the contention of counsel for defendant in error that in making an assessment, the tax commission of Ohio must include the value of the real estate, and that the provision for deducting the value of the real estate, relates only to the matter of apportionment.

The tax commission having made a legal and proper order at the time the order was made, the same could not, on any theory, be held to be erroneous, because many months later a circumstance took place which was not in existence at the time the order was made.

A study of the Code, wherein the right to review orders of the tax commission of Ohio, is given, becomes necessary in order to determine just what orders of the tax commission of Ohio are subject to review. GC. 5611-1 provides: (Here follows quotation of this section.)

GC. 5611-2: (Here follows quotation of this section.)

These two sections must be read together in order to determine the question as to what orders of the Tax Commission of Ohio may be so reviewed. Note the language of the first section.

“Whenever the tax commission of Ohio determines the valuation or liability of property for taxation, such determination shall become final, unless reversed, vacated or modified as hereinafter provided.”

The following section, which provides for proceedings to reverse, etc., must necessarily be read in connection with 'the preceding section.

It appears, therefore, that the orders of the tax commission of Ohio which are subject to review according to the Code, are orders determining the valuation or liability of property for taxation.

The right to review the order of the tax commission of Ohio is statutory and unless a proceedings to review comes within the statute, it cannot be maintained.

The language of the Code, it seems to us, is quite clear that only such orders of the Tax Commission as determine the valuation or liability of property for taxation can be reviewed by petition in error.

The duty of the tax commission to apportion, is a ministerial one, which has nothing to do with determining the valuation or liability of property for taxation.

We are of the opinion that the order of apportionment required to be made by the Tax Commission, under the provisions of 5456 GC., is not an order contemplated by 5611-1 GC., and 5611-2 GC., which provide for a proceeding to obtain a reversal, vacation or modification of the orders of the tax commission.

Having, therefore, determined that the tax commission has the authority and power to assess the valuation of real estate owned by telegraph and telephone companies, it is unnecessary for1 us to review the order for apportionment made by the tax commission for the reason that in our opinion, such an order is not subject to review under the provisions of the Code.

We therefore hold that in the matter of the assessment of the real estate of telephone companies, the tax commission has assessing authority and may consider the same in assessing the value of the entire property of such companies in this State wherever situated.

This construction which we adopt, preserves the essence of the “unit rule” which was the purpose of all recent tax legislation relating to public utilities.

Were we to adopt the contention of the prosecuting attorney, and thereby virtually permit a double tax upon the same property, the result would be unjust and would accomplish no other purpose except to embarrass legitimate enterprises in Ohio.

We find no error in the decision of the Common Pleas Court and the same will therefore be affirmed.

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


author: MAUCK, J.

text:
    NIGH LUMBER CO. v. JOHNSON, et.
    Ohio Appeals, 4th Dist., Lawrence Co.
    Decided July 13, 1928.
    First Publication of This Opinion. *
    Syllabus by Editorial Staff.
    ATTORNEY AND CLIENT.
    (40 C2) It is no defense to an action for compensation by two lawyers associated together, that one lawyer became interested prior or subsequent to the contract, whether as partner, assignee, or what not.
    Fact that one of a firm of lawyers was not authorized to appear as an attorney before the taxing authorities,_ no defense to action by firm for compensation.
    TRIAL.
    (590 V2a) That the verdict was excessive cannot be asserted when no evidence was offered that the services rendered were of less value.
    Error to Common Pleas'.
    Judgment affirmed.
    Knepper & Wilcox, B. B. Bridge and John H. Matthews, Gallipolis, for Nigh Lumber Co.
    A. J. Layne, Gallipolis, for Johnson, et.
    STATEMENT OF FACTS..
    A. R. Johnson and Dan C. Jones, by petition in the Common Pleas, sought recovery from the Nigh Lumber Co. for services in securing a reduction of income taxes assessed against that company by the government of the United States. The petition recited that the two plaintiffs were associated together in the general practice of law and were employed in the matter referred to. The defendant filed an answer admitting the employment of the firm of Johnson & Jones and then denying substantially the extent and value of the services rendered. A motion was filed to this answer but it was never disposed of. The defendant, without withdrawing the former answer, interposed an amended answer admitting that the plaintiffs were associated in the general practice of law and that it had employed A. R. Johnson in respect to the reduction of its income taxes and. that he had performed some services in the matter and then denied generally. Trial was had, resulting in a verdict and judgment for plaintiffs. This proceeding is to reverse that judgment.
   MAUCK, J.

The principal assignment of error urged here is that the action should have been brought in the name of A. R. Johnson alone. We see no merit in the contention. The undisputed evidence is that Judge Jones was interested in the contract of employment. Whether that interest arose prior or subsequent to the employment, whether as partner, assignee or what not, his interest in the claim not only entitled but compelled his presence in the case as a party plaintiff. In the state of this record, the defense is merely captious.

It is also contended that inasmuch as the plaintiffs constituted a firm for the practice of law and Judge Jones was not authorized to appear as an attorney before the taxing authorities of the Treasury Department no recovery can he had by the plaintiffs under authority of Hitson v. Browne, 3 Cal. 304, and Browne v. Phelps, 211 Mass. 376. The morality of this defense is not appealing. Nor is the defense technically sound. In both cases cited the contract of employment was made in violation of statute. We do not need to go as far as the court went in Harland v. Lilienthal, 53 N. Y. 438. In this case the contract was made for the services of Mr. Johnson, and Mr. Johnson was authorized by law to perform. That part of his compensation was by private arrangement to be paid to Judge Jones did not concern the other party to the contract, nor did it in any way tend to violate any law of either this state or of the United States.

The other assignments of error are equally trivial. As to the amount of the verdict it can only be said that no evidence was offered that the services, were of less value than claimed by the plaintiffs. The jury was not bound to take plaintiffs’ valuation but no rule prevented its doing so.

(Middleton, PJ., and Thomas, J., concur.)


author: JUSTICE, J.

text:
    MARION STEAM SHOVEL CO. v. COLUMBUS, D. & M. ELEC. CO.
    Ohio Appeals, 3rd Dist., Marion Co.
    No. 687.
    Decided May 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    PUBLIC UTILITIES.
    (470 E) Failure to file contract, for electrical energy supply, with public utilities commission and secure its approval, precludes ■ court from construing such contract.
    Appeal from Common Pleas.
    Decree for defendant.
    Guthery, Strelitz & Guthery, Marion, for Shovel Co.
    William P. Moloney, Marion, for Columbus, D. & M. Elec. Co.
    STATEMENT OF FACTS.
    The action was originally brought in the Common Pleas to restrain the defendant from discontinuing its service of electrical energy at plaintiff’s manufacturing establishment in Marion, and, also, to compel defendant to continue to furnish service in accordance with the terms of a certain written contract between plaintiff’s assignor and defendant. That court dismissed the petition and entered • a judgment for defendant.
    Plaintiff is an Ohio corporation and the owner of a large manufacturing establishment at Marion, Ohio. Defendant is an Ohio corporation and the owner of a large electrical power plant at Scioto, Ohio.
    It. appears that on September 16, 1921, at Marion, the old shovel company and the defendant entered into a written contract for the supplying of electrical energy by defendant to the old shovel company at its manufacturing plant at Marion, According to this contract the defendant agreed to sell and deliver a certain quantity of electrical energy at a certain rate for a certain period of- time, and, in consideration whereof, the old shovel company agreed to accept such service during the designated time and monthly pay for it at the stipulated price.
    During the month of July, 1927, there were a number of power interruptions of less duration than a day at plaintiff’s plant, caused by unavoidable accidents, such as lightning striking the lines of defendant which carried the power to plaintiff’s plant. In August, 1927, the defendant rendered a statement to plaintiff for the service and energy furnished under the contract for the month of July, 1927. Upon receipt of the July statement, plaintiff took credit for the power interruptions and remitted by check to the defendant, the balance of the July statement. Defendant refused to accept the amount tendered, returned the check given in payment of said statement, and demanded that plaintiff pay to it the full amount of the bill rendered. Plaintiff refused to pay the full amount of the statement, again remitted the check which had been returned to it by the defendant, and demanded that the controversy be submitted to arbiters, as provided for in the contract. Defendant refused to arbitrate, and on August 17, 1927, in writing, notified plaintiff that it purposed, within thirty days thereafter, to discontinue its service. Upon receipt of this notice plaintiff began, in the Court of Common Pleas, this action.
   JUSTICE, J.

The controversy here primarily exists by reason of the parties placing different interpretations on section 14 of the contract. This section, so far as pertinent here, provides:

“However should the electric company by reason of unavoidable accidents temporarily discontinue service for any part of one _ working day, then there shall be credited to the shovel company for each day or fraction thereafter, that said interruption of service exists, a sum equal to two thirtieths of the monthly bill rendered for the month in which said interrupted service occurs, the excess of said credit if any there be, over said monthly bill to be applied on any subsequent monthly bills rendered hereunder to the Shovel Company.”

It is the contention of the plaintiff that, under this contract, it is entitled to a credit of two-thirtieths of the monthly bill for any interruption or interruptions that occur in any one day. It is the contention of the defendant that under this contract, plaintiff is not entitled to credit unless the interruption covers at least one full day.

We are asked to interpret said section 14 but, as we see this case, it is of no moment here which interpretation is correct, because plaintiff cannot prevail in this suit, even if it has tendered to the defendant all that is due and owing to it under the contract, for the reason that plaintiff has failed to allege and prove that the contract in question was filed with and approved by the Public Utilities Commission.

Section 614-17, so far as applicable here, provides that:

“Nothing in this act shall be taken to prohibit a public utility from entering into any reasonable arrangement with its customers * * * or providing for a minimum charge for service to be rendered * * *. No such arrangement * * * minimum charge * * *' shall be lawful unless the same shall be filed with and approved by the commission.”

Obviously, the parties had a right, under this statute, to enter into the contract in question. But, after the contract was executed it was their duty, before entering upon its performance, to file it with the commission and obtain its approval thereto, because until so filed and approved, the contract is by this statute, declared to be unlawful.

In the instant case, plaintiff sues on the contract. There is, of course, no presumption that the contract was filed with and approved by the commission. Clearly, in the absence of an averment and proof that the requirements of the statute have been complied with, plaintiff is not entitled to relief at our hands. To hold otherwise would defeat the purpose for which the statute was enacted, namely to put all such contracts under the supervision of The Public Utilities Commission.

Holding these views, it follows that the petition should be dismissed, and that an entry should be entered as was entered in the Court of Common Pleas. Decree accordingly.

(Before Judges Crow, Hughes and Justice.)