author: LEMERT, J.

text:
    BRINT et v. DOYON
    Ohio Appeals, 6th Dist, Lucas Co
    No. 2149.
    Decided February 4, 1929
    Ed. H. Ray, Toledo, for Brint.
    Charles P. Carroll, Toledo,* for Doyon.
    Judges SHIELDS, HOUCK & LEMERT (5th Dist) sitting.
   LEMERT, J.

The plaintiffs in error in this case complain of the action of the trial court in striking out of the answers the allegations of cotenancy claiming that these allegations showed them, to be agents for themselves and the other co-tenants, and therefore not liable on their written contract. Irrespective of the, existence or non-existence of the co-tenancy alleged, the plaintiffs in error 'were at least the owners of undivided interests in the premises platted. Consequently their contract was in their . own behalf and they are liable for its breach, even though there might have been others financially interested in the sale, or, in other words, they could not be both principal and agent in respect to their own property.

Yeoman vs. Lasley, 40 Ohio St., 190:
Hullett vs. Fairbanks, 40 Ohio St., 233.

Furthermore, the proof of such allegations could be * accomplished only by a violation of the rule making parol evidence inadmissible to contradict a written contract.

21 R. C. L., 848;
Holzworth, et al. vs. Koch, et al., 26 Ohio St., 33.

Neither would this rule afford any protection to Doyon as against other persons who might be strangers to this con-

Clapp vs. Bank, 50 Ohio St., 528.

It is further contended that the acceptance of the deed by Doyon merged his rights under the written contract. In other words, that Doyon’s rights under the written contract were all extinguished by the acceptance of the deed which did not carry the provisions of the contract with reference to the improvements. We understand the rule to be that a deed extinguishes the obligations of a prior contract so far, and only so far, as it excludes them.

Burckhardt vs. Burckhardt, 36 Ohio St., 261;
Brumbaugh vs. Chapman, 45 Ohio St., 368;
Conklin vs. Hancock, 67 Ohio St., 455.

The record clearly shows that all these improvements could have been installed any time from August, 1918, to the spring of 1927, when the sei/er was completed, as the water mains were laid in Lewis Avenue and were available. There was a main sewer -in Lewis Avenue, which was available. A trunk line for carrying electricity was in Lewis Avenue, and available in 1918. Extensions for these lines through Wellington Heights could easily have been secured for the benefit of the defendant in error ,and all the other residents of that district in 1918, and under such circumstances nine years can scarcely be considered a reasonable time.

The last and only other claim made by plaintiff in error is that the verdict in this case is excessive. In order to justify a reversal on this ground, the amount of the verdict must be such as. jto show passion or prejudice on the part of the jury.

Railroad vs. Miller, 108 Ohio St., 388.

The lot was purchased by Doyon in 1918 for the immediate erection of a home, made necessary by the inadequacy of his own home on Walnut Street, — all of which was communicated to Brint at the time of the purchase, — and because of the failure of Brint and Welling to perform their contract, Doyon was compelled to wait nine years before he could start his new home. We do not believe that Doyon’s damage is limited to the actual amount of money he paid out for improvements in 1927. He was entitled, in addition thereto, to such general damages as naturally arose from the breach of this contract, and also such special damages as were reasonably and naturally the consequence of such breach, and which were in the reasonable contemplation of the parties at the time of the purchase.

From a careful examination of the whole record in this case, we find no prejudicial error to the rights of the plaintiffs in error and find that the judgment in the court below is fully warranted by the record evidence in the case. Therefore the judgment of the court below will be and the same is hereby affirmed.

Shields and Houck, JJ, concur.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    CLARK v STUDEBAKER CORP et
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9710.
    Decided June 10, 1929
    Arthur P. Gustafson and Louis Fern-berg, Cleveland, for Clark.
    Henderson, Quail; McGrew & Morgan, Cleveland, for Studebaker Corp.
    Judges WILLIAMS, RICHARDS & LLOYD, (6th Dist) sitting.
   WILLIAMS, J.

The chattel mortgage provides that upon default the mortgagee may take possession of the mortgaged car and sell it at public or private sale without notice and that the mortgagee may become the purchaser at such sale. The mortgaged property could therefore be properly sold at private sale if such sale was fair and reasonable.

Armstrong vs. McAlpin, 18 Ohio St., 184.

As there was evidence in the instant case tending to show that the agent of the mortgagee caused the mortgaged car to be repossessed and sold by the defendant under the circumstances narrated above and became the purchaser thereof at a price wholly inadequate and below the amount due on the outstanding notes secured by the chattel mortgage and that the car was reasonably worth in the market far more than the outstanding Indebtedness, the inference arises from such evidence that the private sale was not" made fairly and openly and in gpod faith. A prima facie case was therefore made for the plaintiff.

5 R. C. L., 469, 470, Sec. 103;
Jones on Chattel Mortgages, (5th Ed.) Secs 791 792;
Kellogg vs. Malick, 125 Wis., 239, 4 A. & E. Anno. Cases, 893, 898;
Lee vs. Fox, 113 Ind., 98.

The court erred in sustaining the motion to direct a verdict and the judgment will therefore. be reversed and the cause remanded for a new trial.


author: LLOYD, J.

text:
    POST MOTOR SALES CO v LAMSON CO
    Ohio Appeals, 6th Dist, Sandusky Co
    No 214
    Harry Garn, Fremont, for Motor Sales Co.
    White, Cannon & Spieth, Cleveland, for Lamson Co.
   LLOYD, J.

The contract was prepared by plaintiff on a printed form and therefore is to be construed most favorably to the defendant. In the blank spaces of the paragraph of the contract last above quoted lines were typed as therein indicated. The entire paragraph could have been thus eliminated from the contract, but it was retained therein by act of the plaintiff. Not being inconsistent with any of the other conditions thereof it must be construed as privileging the defendant to cancel the contract at any time after the installation of the carrier system without paying any sums in addition to the amount of the rentals to be paid as therein provided.

Paragraph 8 of the contract privileges the defendant to purchase the carrier system for the sum of $600.00 at any time within 90 days from date of its installation, if payment has been made of any amounts due in accordance with the terms of the contract. The stipulated sale price of the carrier system when installed, if the option thus given to defendant had been exercised, approximated one half of the aggregate amount 'of- the rentals for the entire ten year term of the contract.

The members of this court are unanimously of the opinion that the finding of the trial court and the judgment rendered thereon are manifestly against the weight of the evidence, but refrain from commenting further upon the evidence because, for the reason given, the judgment is reversed and the cause remanded to the court of common pleas for a new trial.

Williams and Richards, JJ, concur.


author: PER CURIAM

text:
    BILEK et v BROZ Exr etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10066.
    Decided May 27, 1929
    Payer, Minshall, Karch & Kerr, Cleveland, for Bilek.
    George Palda, Cleveland, for Broz.
   PER CURIAM

The only basis upon which the defendants c,an assert title is the original journal entry which granted to them specific performance of the lease on the premises embraced in this action; but this decree granting specific performance was conditional. None of these conditions set forth in the decree were ever complied with and for that reason we are of the opinion that the decree for specific performance never became effective, nor did it invest the defendants with any title or interest in the permises. It is not a sufficient answer on the part of defendants to say that the plaintiffs declared, after the decree for specific performance was granted to défendants, that he would not comply with the terms of the lease, and because of that, tender of performance is unnecessary on the part of defendants. This is true only in cases of contracts for the sale or lease of real estate for a term of years wherein specific performance is sought. In such cases equity does not require ,a vain act and no tender of performance is necesary on the part of parties seeking specific performance, if it appears that such tender would be a vain act in view of the declaration of the other party that he would upon no circumstances accept such tender or perform his part. This case, however, is far different. The defendants rely upon a. journal entry to support their claim that they have an interest by way of lease in the land. Without their journal entry the defendants could lay no’ claim whatsoever to any interest in the land. We must look to the journal entry alone. It is conditional in its nature and it appearing that five years have elapsed without compliance with these conditions on the part of defendants, the conditional journal entry which appears of record remains as a cloud upon the title of the plaintiff, and in our opinion should be removed.

A decree therefore will be ordered accordingly, quieting title in the plaintiff. A journal entry will be drawn accordingly.

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


text:
    SIEBERT v. SIEBERT
    Ohio Appeals, 6th Dist, Lucas Co
    Decided June 24, 1929
    Otto L. Hankinson, Toledo, for plaintiff in error.. >
    Carl J. Christensen, Toledo, for defendant in error.
   LLOYD, J.

The record .of the first trial was offered and received in evidence at the second trial and is a part, of the record now under review by this court. It appears therefrom that some of the incidents as to which plaintiff testified at the second trial were contradictory of statements made by her at the first trial, but many claimed happenings were testified to at the second trial with respect to which she had • not testified at the first trial, all of which, however with two exceptions, occurred prior to the first trial. The subject matter of both actions was the same.

As said by Marshall, CJ., in Arnold vs. Arnold, 110 Ohio St., 416, 418,

“While there may be separate breaches of duty, there is a single cause of action.”

The prayer of each of the petitions was for a divorce and the plaintiff was priviledged to allege in her first, petition all known existing grounds of divorce and to offer evidence of everything which occurred prior to the trial of the action upon which she relied for the judgment she sought. A plaintiff in an action for divorce can not allege and offer evidence on one of the statutory grounds and then, when unsuccessful, commence another action on another ground, amplifying, the evidence in support thereof, all of which however, relates to happenings prior to the first trial, any more than a plaintiff in an action for personal injuries can choose to allege in his petition and rely at the trial upon one act of negligence and then, when the verdict and judgment are adverse, file another petition alleging another and different act of negligence. If the law were otherwise it would not only multiply litigation but in some instances at least would be an inducement to perjury.

Strangwood vs. Bedstead Co., 82 Ohio St., 121;
Arnold vs. Arnold, 110 Ohio St., 416;
Mullen vs. Mullen, 11 O. N. P., ns. 353.

There was no evidence offered art the second trial that might not have been presented at the first trial with the exception of two incidents occurring, it is claimed, on June 22nd and June 30th, 1928, which were denied by Mr. Siebert, as was also the misconduct preceding the first trial, with which hp was charged. These alone, in the opinion of a majority of this court, are quite insufficient as a basis for the judgment rendered, especially in view of the fact that the law requires something more than a scintilla of evidence to justify a judgment of divorce. The trial judge indicated in what he had to say at the conclusion of the second trial, that the divorce was granted rather because of the alleged conduct of Siebert prior to the first trial than upon anything occurring subsequent thereto.

Marriage is and should be regarded as something, more than simply a contract to be abrogated at the pleasure of one or the other of the parties or because of mere inconvenience, unhappiness or incompatibility of temperament or disposition, or the desire for pre-marriage freedom, or because the material comforts of life are not provided as abundantly as w,as anticipated or expected. The obligations created are reciprocal. Each has undertaken to do his part to the measure of his ability and capacity, and more than that neither can require. An action for divorce involves something more than a private controversy. It also concerns the public, and liberal as are the statutes of Ohio in providing causes for divorce, the legislature has not so far seen fit to provide that divorce may be granted on the mere ground of expediency.

Judge Richards and myself are of the opinion that the judgment is clearly and manifestly against the weight of the evidence and should he reversed, but since the law requires the concurrence of all of the members of the court to reverse a judgment on that ground, and Judge Williams is of the contrary opinion, the judgment is affirmed.

Williams, J, concurs in judgment of affirmance.

Lloyd and Richards, JJ, concur in opinion and dissent from the judgment.


author: FUNK, PJ.

text:
    RITTER et v FINCH
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 1640.
    Decided June 14, 1929
    Hammond & Tweed, for Ritter, Et.
    W. J. Laub, Akron, for Finch.
   FUNK, PJ.

The contract not being a part of the pleadings, the court could not pass upon whether or not it was void until it was offered in evidence. We thus find no error in the court overruling the motion for judgment on the pleadings or the objection to the introduction of any evidence.

The contract between the parties proposing to exchange properties and being the contract sued upon in the instant case, contains this provision: “Each party to pay E. Finch a commission of $100.00.” This is all that is in the contract concerning the commissions to be paid to plaintiff.

There is nothing in the contract providing that the commission was to be paid only upon the completion of the sale or upon the signing of an enforceable contract, or upon the happening of what event the same was to be paid.

From the fact that each party agreed to pay a commission of $100, and there being nothing in the contract or in the record to show any agreement as to when or for what services the commission was to be paid, other than the contract itself that each party agreed to pay plaintiff “a commission of $100.00,” the presumption would be that plaintiff had already earned said commission or it would have been stated in the contract as to when or upon what conditions the same was to be paid. Wé therefore 'cannot say from this record that it was unenforceable ás to this plaintiff.

As to the claimed error in the court’s refusal to charge as requested before argument.

The only thing in the record to show or indicate that the requests were asked to be made before argument is the order in which the .narrative form of the bill of exceptions shows the various proceedings of the trial to have occurred; but assuming that the requests were made before argument, the record does not affirmatively show that the special requests were in writing; neither does it show whether the requests made were requested to be given as a series or as separate reports; and it is apparent from the record that there was at least one other reque'st which is not in the record.

If the requests were made as a series and any one of them did not correctly state the law, the whole series would have to be refused. Hence, since the record does not show whether the requests were made as separate requests or as a series and does show that there was at least one other request which is not shown in the record, a reviewing, court cannot say that the' court erred in refusing those appearing in the record.

The bill of exceptions is quite meager. It is apparent that there was much evidence that is not incorporated in the bill. The charge of the court to the jury is not set out in the bill of exceptions, and the only reference to it is less than two lines in the bill of exceptions, which states that the court charged on the question of the preponderance of the evidence, but does not show that the court did not charge on any other question or whether or not the special requests were covered in the general charge; so that if the requests were made after argument, it is impossible to tell whether or not it was prejudicial to refuse them. We therefore find, under the rules governing the giving or refusing to give special requests, either before or after argument, that the record discloses no error by reason of the court’s refusal to give the requests about which complaint is made.

Pardee, J, and Washburn, J, concur.


author: SULLIVAN, J.

text:
    HIGGINS v CLEVELAND (City)
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10101.
    Decided June 17, 1929
    Squire, Sanders '& Dempsey, Cleveland, for Higgins.
    Carl Shuler and Ben Levin, Cleveland, for city.
   SULLIVAN, J.

It is urged by counsel for plaintiff in error that the section of the ordinance upon which conviction was had is unconstitutional because it violates Sec. 28 of Article II of the Constitution, of Ohio which provision relates to the impairment of the obligations of contracts, and it is also urged that the ordinance is in contravention of Sec. 1, 14th Amendment of the Constitution of the United States which provides that there should be no abridgement of the privileges or immunities of citizens and no denial of equal protection of all citizens. We sustain this contention.

It is clear that throughout the ordinance there is an unlawful encroachment upon civil rights. The very essence of the ordinance deals with contractual relations which canot be impaired. Every provision appears to be an interference with those business relations that of necessity must exist among citizens transacting the ordinary affa-irs of life with each other. The ordinance in its provisions makes the municipal government a party to transactions involving those civil rights which all men have the inalienable right to enjoy. Each provision is an arbitrary and unreasonable exercise of power and therefore unlawful. The very nature of the provisions of the ordinance is at war with all those principles upon which the citizen has a right to rely without molestation for the conduct of the ordinary affairs of life. The provisions are regulations which attempt to limit freedom in the right to contract. Its provisions are discrimnatory inasmuch as it seeks to favor one class of citizen and ignore all others. There is no uniformity therefore in the operation of its provisions. All these conclusions it seems to us are patent from a mere reading of the ordinance and our conclusion is, for the reasons herein noted, that the arrest and conviction of plaintiff in error had no foundation in law because of the inherent violations of the state and federal constitutions appearing in the provisions of the ordinance, and the passage of the ordinance by the city council-was an unreasonable and arbitrary exercise of power and therefore we hold the enactment invalid and of no force and effect in law.

Holding those views the judgment of the lower court is reversed and the plaintiff in error is discharged.

Vickery, PJ, and Levine, J, concur.


author: VICKERY, PJ.’

text:
    MULLEN v PELLAR
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 10115.
    Decided June 17, 1929
    C. M. Heil, Esq., Cleveland, for Mullen.
    J. L. Spits, Cleveland, for Pellar.
   VICKERY, PJ.’

There ,are two theories on which this case could be reversed, if it is reversible and if the evidence warranted sustaining either of those theories: .One is that the note was given to compound a felony; and the other is that there was duress.

The first could not be true, for there was no felony committed, nor does the record show anything like a felony or any promises not to prosecute if the note was given; so the note was not given to compound a felony and there is no evidence which would warrant a reversal upon the theory that this noté was given to compound a felony.

The other theory is that' it was given under duress. Now it must be remembered that there is no relationship between Mullen and Livingston. They were nothing but friends and when Livingston sent over to Mullen to come over to the Police Headquarters, Mullen was under no physical restraint nor was he related in any way where the subject of duress might be invoked in order to release him from liability on the note. He w,as a free agent and his friend was in difficulty.

The law is well settled that taking a note of a third person is a payment pro tanto to the amount of the note unless it is expressly agreed that the note shall be taken only as conditional payment; and there is no such agreement in this record and, therefore, Livingston’s debt to Pellar was paid by the acceptance of this note to the extent of $100. So there was a valid and valuable consideration for the note, and there being no duress nor the compounding of a felony, we can see no reason why this note should not have been paid, nor do we see any error in the court’s finding for the plaintiff below.

There being no error in the record, the judgment will be affirmed.

Sullivan, J, concurs. Levine, J, dissents.


author: VICKERY, PJ.

text:
    ROCOUR v MILLER CARTAGE CO
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9429.
    Decided June 10, 1929
    Bernsteen & Bernsteen, Cleveland, for Racour.
    Dustin, McKeehan, Merrick, Arter & Stewart, Cleveland for Cartage Co.
   VICKERY, PJ.

Now while the defendant did not plead contributory negligence in the usual form, the doctrine of contributory negligence was brought into the case by the evidence, and under the authorities of this court and the Supreme Court, where contributory negligence is brought into a case either through the pleadings and evidence, or by the evidence alone, it is the duty of the trial court to charge on the question of contributory negligence; and so the court did charge on negligence and contributory negligence, and in the main the court properly charged. He told the jury that if the plaintiff’s evidence showed that he was guilty of contributory negligence, the burden was upon him to remove that presumption so they would start out equal and then he charged that the burden of proof to show contributory negligence was upon the part of the defendant and he must show that by the preponderance of the evidence.

It is claimed, however, that there were inconsistent charges submitted to the jury on the question of contributory negligence and on the question of negligence itself. But upon reading the whole charge together, we do not think that it could have misled the jury in any way. The court did charge the jury that in order to have contributory negligence operate as a defense, it must be shown that the plaintiff’s negligence, however slight, contributed to the injury. We think that is the law, if such evidence tended proximately to help cause the injury, even though the defendant might have been guilty of negligence which proximately caused the injury. That is, if the two combined, if the two were concurrent, — the negligence of the plaintiff .and the negligence of the defendant,— both proximately caused the injury, why, then, of course the plaintiff would not be entitled to recover, and we think that was fairly submitted to the jury, although the court may have used a little unhappy language to express his ideas.

The jury found for the defendant, and we cannot say that there is such error in the charge that would warrant a reversal of this case, nor can we say that it is so manifestly against the weight of the evidence that we would be warranted in disturbing it.

The verdict of the jurv will, therefore, be affirmed.

Sullivan and Levine, JJ., concur.


author: LEVINE, J.

text:
    BERWALD, Recr etc v SUMMIT PARK REALTY CO et
    Ohio Appeals, 8th Dist, Cuyahogaa Co
    No. 9547.
    Decided June 10, 1929
    Garfield, Cross, MacGregor, Daoust, and Baldwin, Cleveland, for Berwald.
    Suggs, Garber and Howard D. Burnett, Cleveland, for Realty Co.
   LEVINE, J.

In support of the validity of the Burnett mortgage we are cited to the case of Coggshall v The Marine Banking Co., 63 OS. 89 wherein it is held' that the interest of a vendor under a land contract is not that of a mere naked trustee for a vendee but he holds not only the land title but a beneficial estate in the lands to the extent of unpaid purchase money.

As will be seen from the syllabus and the opinion, .all that the case holds is that in an action by a judgment creditor to marshall liens and sell attached property to satisfy the judgment, the interest of the vendor under his lien for -the unoaid purchase money may be reached. The law applicable to this case is fully settled in the case of Yeager vs Harvey, 48 OS. 335.

We are referred to the letter of Burberry dated Dec, 26, 1925 wherein he spoke of two mortgages on the property. This is explained away by the statement that because the different notes secured by the same first mortgage were held in different hands Burberry referred to the same as “two mortgages.” This letter of Dec. 26, 1925, written by Burberry, is the strongest evidence adduced in favor of Burnett to the effect that Burberry knew of the existence of the second mortgage on Dec. 26, 1925, but in view of the explanation given as to the use of the phrase “two mortgages” and the positive evidence on the part of Burberry that he did not know of the existence of the second mortgage to Burnett until the matter came up in the common pleas court in 1925, there is not in our opinion sufficient evidence to show that knowledge came to Burberry of the existence of the second mortgage long before suit was filed.

Under the laws as set down in Yaeger vs Harvey supra, the vendee of a land contract must be protected as to all money paid by him under his land contract until either actual notice comes to him of the existence of the second mortgage or such information as would lead a person of ordinary prudence to diligent inquiry which would discover the fact of the existence of the second mortgage. No such showing is made of record and it is our opinion that as to money actually paid under the land contract by Burberry that he has a prior lien to the claim of the second mortgagee.

As to the money spent by Burberry in improvements since he entered into possession of the house and lot, this was his voluntary act and was not done by virtue of the land contract which he entered into with The Summit Park Realty Co., for the purchase of the land. In our opinion no prior lien attaches in his favor as to this money spent by him in improvements. A decree will be granted in favor of Burberry giving him a prior lien to that of the second mortgagee as to all monies paid by him under the land contract. A decree will be drawn accordingly.

Vickery, PJ, and Sullivan, J, concur.


author: ROBERTS, J.

text:
    NOSE v SUHADOLNIK etc
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No. 9347.
    Decided February 11, 1929
    Harry F. Glick, Cleveland, for Nose.
    Locher, Green & Woods, Cleveland, for Suhadolnik.
    Judges MIDDLETON & MAUCK (4th Dist) and ROBERTS (7th Dist) sitting.
   ROBERTS, J.

It is claimed that the trial court erred in refusing to give the following request after argument:

“I ask the court to instruct the jury that the mere fact that the automobile of defendant skidded upon the pavement without any other explanation of the skidding does not of itself show or denote negligence on the part of the defendant.”

The allegations of negligence found in the petition of the plaintiff are as follows:

“Plaintiff stated that the defendant was careless and negligent in operating his motor vehicle at a high, dangerous and excessive rate of speed, to-wit, 28 miles per hour, and at a rate of speed which was unreasonable in view of the circumstances then existing. The defendant was careless and negligent in failing to sound a warning or to in any way apprise the plaintiff of his approach on said highway. The defendant was careless and negligent in failing to stop, change the course or abate the speed of the motor vehicle which he was operating, all of which in the exercise of due care, he could have done, after he saw the position of the plaintiff on the highway, and thereby could have avoided the accident.”

It will be observed that the skidding of the truck was not alleged as substantive negligence or even mentioned in the petition nor was the skidding of the automobile submitted to the court as matter of. negligence so that it could not have been, under the pleadings and was not as a matter of fact a substantive ground of recovery submitted to the jury for its consideration.

The jury was quite fully and clearly instructed concerning the issues and its duties by the trial’ judge and it is not apparent that the jury could have understood that the skidding of the automobile could be considered by it as a ground of negligence or a reason for recovery by the plaintiff. The jury in its consideration of the issues must have looked back and beyond the mere skidding of the car to determine whether or not substantive negligence . had occurred. While the simple skidding of the car was not of itself negligence, the car of course could not have skidded unless by reason of force applied in some way which put it in such motion, and that force under the issues, was the operation of the car at such speed immediately preceding the accident in such manner and on a slippery pavement as caused the skidding. While the skidding of the car caused it finally to come in contact with the child the proximate negligence was that which caused the truck to skid. It is therefore not apparent that the refusal of the court to give this instruction was or presumably could have been prejudicial for the reasons suggested, namely, that the skidding, of the car was not a proximate alleged act of negligence. Further than this, however, this court is of the opinion that • under the facts and circumstances in this case, this instruction, if given, would have tended to obscure the issues and improperly mislead the jury for the reason that the skidding of the car was a direct result of and incident to the operation of the automobile, and in determining whether or not the automobile was operated at an excessive and unlawful rate of speed, considering the environments of the transaction, the jury had a right to take into consideration the wet condition of the pavement and the manner in which the car turned around and struck the girl, as matter of evidence tending to show whether or not the speed ,and management of the car by the defendant shows culpable negligence on his part. We do not think it was the duty of the jury to attempt to consider the speed of the car, and the other alleged wrongful conditions, wholly ignoring the fact that the car skidded and turned around. All that happened as a necessary part of and incident to the act of the defendant which caused the injury of the child, might properly have been taken into consideration by the jury in determining whether or not negligence existed. The final conclusion is reached that there was no reversible error appearing in the trial and the judgment of the Common Pleas court is hereby affirmed.

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


text:
    LAKEWOOD (City) v MARTENSEN, etc.
    Ohio Appeals, 8th Dist., Cuyahoga Co
    No 9365.
    Decided January 11, 1929
    R. G. Curren, Esa., Cleveland, for City.
    Newcomb, Newcomb & Nord, Cleveland for Martensen.
    Judges MIDDLETON & MAUCK (4th Dist) and ROBERTS (7th Dist) sitting.
   ROBERTS, J.

It is said, that the accident was the result of negligence of the plaintiff herself, and in this connection it is urged that the plaintiff assumed a dangerous position in standing upon the running board at and immediately previous to the happening of the accident. It should be borne in mind that this automobile was only proceeding from house to house at ,a very slow rate of speed and whether or not the conduct of the daughter occupying the position which she did constituted negligence was submitted to the jury whose finding was in favor of the plaintiff, and we cannot say that such finding is against the weight of the evidence.

Although not appearing in written briefs, it is urged by counsel for plaintiff in error in oral argument that the mother and daughter were engaged in a joint enterprise and that the daughter was responsible for the negligence of her mother.

In the instant case the mother was prosecuting her own business of selling strawberries produced by her. The plaintiff below was assisting the mother under her direction and control. The elements essential to the existence of a joint enterprise are wholly wanting.

Finding no reversible error in this case the judgment of the Court of Common Pleas is affirmed.

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


author: MAUCK,' J.

text:
    GASIENICA v DEC
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9164.
    Decided February 11, 1929
    Gilbert E. Morgan, Esq., Cleveland, for Gasienica.
    Milton C. Portman, Esq., Cleveland, for Dec.
    Judges MIDDLETON & MAUCK (4th Dist) and FARR (7th Dist) sitting.
   MAUCK,' J.

The petition in this case made no attack upon the proceedings in the Probate Court under which the defendant obtained her deed.. It is only by reply that an attempt is made to avoid the effect of those proceedings by assailing the validity of the deed. This is a collateral' attack on the judgment obtained by the administrator in the Probate Court. Kingsborough vs. Tousley, 56 OS. 450. Collateral attacks on judgments are tolerated only when the apparent judgment is in fact a nullity.

Under the authorities generally prevailing it seems apparent that the court can not consider the administrator’s sale under which the defendant is holding to be a nullity unless there is something peculiar about the Ohio law that requires it. The question was before the supreme court of this State a hundred years ago in Bigelow vs. Bigelow, 4 Ohio, 138. The court then said that the discovery of a will subsequent to the grant of letters of administration only operated as a repeal of the grant of administration and did not avoid the acts of the administrator, and that the application by the administrator to have a contract of the decedent executed and his actions thereunder were not rendered void by the subsequent discovery of a will and the appointment of an executor to execute the- same. Since that holding we have created a probate court and it is the proceedings of that court that are now sought to be treated as a nullity. The probate court, however, within its limited jurisdiction, is a court of record in the fullest sense, and its records are no more open to impeachment than the court whose proceedings were under consideration in Bigelow vs. Bigelow. Shroyer vs. Richmond, 16 OS. 455, Wilberding vs. Miller, 90 OS. 28. Moreover, the legislature has had occasion to consider the question in the light of the rule laid down in the Bigelow case. In 10618 GC. prescribing the conditions of the bond of an administrator it makes as one of the conditions of the bond the duty of the .administrator to deliver into court his letters of administration in case a subsequent will of the decedent be duly probated,- and in 10632 GC. it specifically provides that the executor appointed upon the probate of a will shall succeed to and act on proceedings instituted by an administrator appointed before a will has been probated. We have thus a definite legislative expression recognizing and by implication continuing the legal principle laid down in the Bigelow case. The rule in Ohio therefore is that where administration of a decedent’s estate has been granted the acts of the administrator are not rendered void by the subsequent discovery and probate of the will and the appointment of an executor thereunder. It is claimed that the defendant was both administrator and a purchaser at the sale. The record, however, does not sustain this contention. The trial court was right in directing a verdict because until set aside the judgment of the probate court in confirming the sale made by the administrator to the decedent could not be ignored.

Middleton, PJ„ and Farr, J., concur.


author: FARR, J.

text:
    AMERICAN CASUALTY CO v STILLMAN (2 cases)
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided Oct. 19, 1928
    Barnum, Hammond, Stephens, Patchin & Hoyt, Youngstown, for Casualty Co.
    T. M. Cooney and Barrett & Kane, all of Youngstown, for Stillman.
   FARR, J.

Sec. 6308 GC, is a sufficient answer to this contention and sustains the right to bring suit as it was brought in Mahoning County. However, the statute extends its terms sufficiently to permit action to be brought in any county where .service may be had upon the defendant.

Second, it is contended that error intervened by the trial court’s exclusion of a written statement or reservation agreement which w,as prepared following the accident, as disclosed by defendant’s exhibit 1, Record 168, but which Gorodetzer refused to sign. It is claimed that Gorodetzer’s refusal to sign the instrument in question indicated his refusal to co-operate with the Insurance Company in the defense of the action. However, it may be observed that there was no provision in the policy of insurance requiring Gorodetzer to sign such statement or agreement. Therefore, he had a right to refuse to do so and the exclusion of the document was not prejudicial error.

The third and fourth grounds of error relate to the charge of the trial court with reference to fraud and collusion and wherein it is claimed that the trial court instructed the jury that proof of the alleged fraud must be made by clear and convincing evidence. This was a higher degree of proof than is required in such cases. However, it should be observed that the trial court said, on pages 159 and 160 of the Record, that “clear and convincing evidence means that the evidence which tends to prove the alleged fraud or mistake, if standing alone and uncontradicted, would establish a prima facie case of fraud” , and at page 150 the jury is instructed that:

“These are matters of defense and consequently the burden is upon the defendant, the American Casualty Company, to maintain the same by a preponderance of the evidence.”

And at page 151 the trial court again refers to the preponderance of the evidence and in two instances stated that such would determine the question. Therefore, in view of the foregoing, and in view of the fact that there is no specific proof of fraud and collusion, it follows that the court’s instruction to the jury was not erroneously prejudicial, altho it is disclosed by the facts that when Gorodetzer came to Youngstown that he went directly to Stillman’s office and was taken by Still-man to the office of the attorney for Stillman and Gorodetzer was served with summons in both cases. Gorodetzer, however, turned the summons over to Thayer, the adjuster for the Casualty Company, with a statement of the manner in which he had been served.

While these facts might indicate that there was some understanding between the parties, yet they are not conclusive of the perpetration of a fraud, and for the reasons given it follows that the judgment must be affirmed.

Pollock and Roberts, JJ., concur.


text:
    GILBERT GROCERY CO v BRIGGS
    Ohio Appeals, 4th Dist, Scioto Co
    Decided Dec. 31, 1928
    Bannon & Bannon, Portsmouth, for Grocery Co.
    Warren Briggs, Cleveland, and Edgar G. Miller, Portsmouth, for Briggs.
    ALLREAD, J. (2nd Dist) sitting in place of THOMAS, J., (4th Dist)
   MAUCK,' J.

It is clear that the pleading of the resolutions served no useful purpose. The plaintiff is not required to follow the conventional form in pleading quantuim meruit and may under the statute plead all the facts from which he claims liability flows. But the pleading and the subsequent placing in evidence of a resolution found by the Supreme Court to have been of no effect was improper pleading and if the case had -been tried to a jury, unable to clearly appreciate the proper effect to be given to the pleading and the evidence supporting it, we should be inclined to hold that a verdict rendered by the jury could not stand. In this case, however, a jury was waived. Trial was had to a discriminating court, fully appreciative of the decision of the Supreme Court and the ineffectiveness of the resolutions thus laboriously brought into the record. The defendant was not prejudiced by the form of the pleading adopted.

Our view 'of the case is that the judgment can be and ought to be sustained, not on the theory that the plaintiff is entitled to a bonus or to extra compensation but that the situation clearly shows that he was entitled to compensation for his services ,and that the amount of that compensation had never been fixed by any agreement to which both parties had given assent. It follows, therefore, that the payments made from time to time for the several years for which Mr. Briggs sued were not payments made in full of his compensation. They were payments on account, binding on neither party. If they were excessive the corporation had a right to recover the excess. If they were insufficient to fully compensate him he had a right to recover the difference between the amount paid him and the amount to which he was entitled. These were questions of fact to be tried by the trial judge.

The assignments of error relating to the admission of testimony do not develop anything necessarily prejudicial to the plaintiff in error. Greater freedom is tolerated in the production of testimony where the facts are to be found by a judge than by a jury for the reason' that the judge presumably limits his findings to those sustained by competent evidence. The most substantial of the objections in this respect runs to the admission of testimony tending to show the profits made by the corporation under the management of the plaintiff and the use of this factor in fixing the value of his services, the claim being that the profits of the employer is no guage for measuring the value of the services of an employe. Generally speaking, in an action for wages this objection would be sound. This action was not one, however, for wages but management, and certainly the success of the management was a proper factor in determining the value of that management.

It is, of course, true that Mr. Briggs’ compensation should have been fixed prior to the rendition of the service for which he sues and he is in fault in that respect. The stockholders were in equal fault, however, in not fixing the compensation for they never had a right to assume that he was working gratuitously. We adhere to our former conclusions in this cause and to what we conceive to be the spirit of the opinion of the Supreme Court already referred to and affirm the judgment.

Middleton, PJ, and Allread, J, concur.


author: RICHARDS, J.

text:
    WIDEN v WIDEN (2 cases)
    Ohio Appeals, 6th Dist, Lucas Co
    Nos 2213 & 2219.
    Decided July 8, 1929
    Percy R. Taylor, and Charles K. & Stanley M. Friedman, all of Toledo, for plaintiff.
    Ralph Emery, Toledo, for defendants.
   RICHARDS, J.

The plaintiff now seeks the recovery of the balance of the money not expended for his benefit which he delivered to Bessie Widen and the cancellation of the deed and return of the property to him. By reason of the conduct of the defendants, the plaintiff has been taking his meals at another place, although he still occupies a room in the apartment conveyed to the son. The evidence leaves no room for doubt of the utter failure to care for him and provide him with a comfortable home and maintenance, and the animosity displayed toward him almost immediately after the transaction unmistakably points to the fact that they contemplated securing his property without complying with the contract to care for him and provide him with maintenance and support during his life. The evidence shows that the contract, made as it was while he was depressed immediately after the death of his wife, and while he was sick, suffering and enfeebled, was attended with fraud and the transfer and conveyance should be set aside.

It is urged in defense that the deed itself contains no forfeiture clause for failure to comply with its terms, and that therefore plaintiff’s only remedy is to recover damages for the breach, and to sustain that contention counsel cite City of Cleveland vs. Huron, 102 Ohio St., 218. We have no doubt of the correctness of that decision as applied to the facts before the court, but cannot extend the principles to a case of this character. That case did not involve an improvident contract made by an enfeebled man for his care and support and the contract in that case was made without any undue advantage or suggestion of fraud on the part of any one. As said in B. & O. R. R. Co. vs. Baillie, 112 Ohio St., 567, the syllabus must be interpreted in view of the facts found in the case. The case at bar is more like that of Tracey vs. Sackett, 1 Ohio St., 55 and Reid vs. Burns, 13 Ohio St., 49. See also Glocke vs. Glocke, 113 Wis., 303.

We think the plaintiff is entitled to the equitable relief sought and a decree will be entered in his favor in each case.

Williams and Lloyd, JJ, concur.


author: VICKERY, J.

text:
    BANK of CLEVELAND v RICH
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9581.
    Decided January 21, 1929
    Dunlap, Stephens & Stephens, Cleveland, for Bank. •
    Lawrence M. Rich, Esq., Cleveland, for Rich.
   VICKERY, J.

That the Municipal Court is not a general court of equity, we must concede, but is the question that is involved in this case, one in equity? The Cleveland Liberty Bank was going into liquidation. It had funds sufficient to pay forty percent upon the common stock of this corporation. Certain of the stock was owned by Rich which had been transferred to him by assignment, but had not been transferred to Rich upon the books of the Bank, but there is no question in this lawsuit but what Rich owned the certificates of stock, and he was asking, upon these certificates of stock, to have his proportion of the money that had been collected for disbursement among, holders of certificates of stock of the Cleveland Liberty Bank, paid to him.. That was refused. Then it simply became an action for money only, and even though his name did not stand upon the books of the Cleveland Liberty Bank as a stockholder, it became a question of proof - on the trial, and if he was the owner of these shares of stock and they had not been put up. as collateral security, and the proof shows that they had not, for they were in his possession, he was entitled to recover upon them.

If the Cleveland Liberty Bank was a going concern and Rich wanted to have the stock transferred so as to be in his name in order to draw dividends, he might have been compelled to go into a court of equity in order to have his name entered upon the books, but that is not the situation here..

Not seeing any error in this record that would warrant a disturbance of the judgment, it will be affirmed.

Sullivan, PJ and Levine, J, concur.


author: MAUCK, J.

text:
    RAWLEIGH CO v FRITZ et
    Ohio Appeals, 4th Dist, Scioto Co
    Decided Dec. 12, 1928
    Miller & Searl, Portsmouth, for Rawleigh Co.
    A. R. Johnson, Ironton and W. L. Hostetter, Portsmouth, for Fritz.
   MAUCK, J.

If from the conclusions referred to we are to understand that the court found that the contract sued upon was severable, that while the sureties were liable for goods sold after the execution of the contract but were not liable for the indebtedness existing at the time the contract was signed because there was no consideration for holding the sureties for the old indebtedness, we think that the court erred. The contract of surety was expressed in this language:

“For and in consideration of the sum of one dollar to me in hand paid, the receipt of which is hereby expressly confessed and acknowledged, or in consideration of the above named seller extending further credit to the said buyer, we, the undérsigned, do hereby jointly and severally guarantee unto the said The W. T. Rawleigh Company, the above named seller, unconditionally, the payment in full of the balance due or owing said seller on account as shown by its books at the date of the acceptance of this contract of guaranty by seller, and the full and complete payment of all monies due or owing, or that may become due or owing said seller, and all indebtedness incurred by the buyer under the terms of the above and foregoing instrument by the buyer named as such therein”, etc.

The only interpretation of which this language is capable is that if the company extended to Brown credit for goods thereafter ordered by him the sureties bound themselves in consideration of that fact both to the payment of future purchases ,and to the payment of past due indebtedness. As much as we abhor the involved language in which this oppressive purpose is concealed it seems to us nevertheless that the defendants were persuaded to guarantee both the old and new indebtedness of Brown for the one and single consideration that the company should continue to furnish goods that Brown might thereafter order. It is to the credit of the commercial world, that few contracts so odious in purpose and so unjust in resuts are found in the courts. All to which our attention has been called have been cases in which the manufacturers of patent medicines and like nostrums are dealing with peddlers. The legal principle is, however, well settled that courts can not in actions at law inquire into the adequacy of the consideration upon which contracts ,are predicated, and tho it is wholly unfair it is possible that these sureties have bound themselves to pay the whole indebtedness of Brown in consideration of future credits agreed to be extended to him. The judgment in this case is reversed and the case remanded for new trial.

Middleton, J, concurs. Thomas, PJ, not sitting.


text:
    McCLANDISH et v MAUMEE (Village) et
    Ohio Appeals, 6th Dist, Lucas Co
    No 2237.
    Decided July 8, 1929
    Fritsche, Kruse & Winchester, Toledo, for McClandish, et.
    Otto E. Hankinson and Paul W. Alexander, both of Toledo, for village.
   RICHARDS, J.

There is serious conflict in the evidence as to whether the shop was moved before the zoning ordinance became effective, but we do not regard a determination of that question as material. After the stand was removed back of the sidewalk, it was enlarged and it is now about 19 x 20 feet in dimension, and 7% feet high, and the addition was clearly constructed after the zoning law became effective. The then owner of the property applied for permission to make the alteration and additions and a permit therefor was issued to him on May 8, 1926, but this permit was revoked on May 17, 1926. The construction of the addition was plainly in violation of the zoning ordinance, and the permit to build the addition gave no vested right to the owner.

Section 16 of the zoning ordinance prohibits the occupancy of a building which has been structurally altered until a certificate of occupancy shall have been issued by the Commissioner of Inspection, and no such certificate w,as ever issued. The plaintiffs purchased this property without any knowledge of these facts, but manifestly they would hold it subject to the right of the municipality to enforce the zoning ordinance. Our attention has been called to nothing which would render the zoning ordinance unconstitutional or void, and, in fact, plaintiffs concede the validity of the ordinance, and this distinguishes the case from Youngstown vs. Kahn Building Co., 112 Ohio St., 654. The street in front of the premises is only 24 to 26 feet in width and has a very heavy automobile trafile. The location having been properly classified as residence property, and the addition and efilargement having been made after the zoning ordinance became effective, the owners are not entitled to conduct the business there which they seek to do.

It is further urged by the defendants that the action is in reality brought to enjoin the enforcement of the criminal provisions of the ordinance and that therefore injunction will not lie. Section 19 provides a penalty for the violation of the zoning ordinance and it is quite true that injunction will not lie to prevent merely the enforcement of a criminal statute or the penalties provided by an ordinance. 32 C. J., 279, et seq. The same principle is announced in 14 R. C. L., 367. Judson v| Zurhorst, 10 C. C., N. S., 289. The plaintiffs, however, contend that the defendants are threatening to interfere with the conduct of their business on this real estate and that this constitutes ground for issuing an injunction. The court, having found that the business is being, conducted in violation of the zoning ordinance, it becomes unimportant to determine these matters, as in any event the plaintiffs are not entitled to an injunction. Judgment and decree for defendants.

Williams and Lloyd, JJ, concur.


text:
    NEIGHBORS v STATE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2217.
    Decided July 8, 1929
    Christensen & Christensen, Toledo, for Neighbors.
    Leroy W. Hunt, Prosecuting Attorney, and Clarence A. Irwin, both of Toledo, for State.
   WILLIAMS, J.

Several questions are presented, but we think none of them calls for discussion except the admissibility in evidence of two letters addressed to hinj., one written by the brother Henry Neighbors and another written by another brother, named Horace, not previously referred to, who resided in Cleveland. Each of these letters called upon the plaintiff in error to confess and asked him not to fight extradition.

James O’Reilley, a police officer of Toledo, took these letters with him to Memphis, Tennessee, when he went there to bring the plaintiff in error back. It appears O’Reilley read to plaintiff in error the letter of Henry while they were in Tennessee and on the return trip to Toledo plaintiff in error read both letters, and after reading the letter purporting to be written by Henry he said that the signature was Henry’s but that he did not think the body of the letter was in his writing, and as to the other letter he stated that he was satisfied that the whole letter was in the writing of Horace. After that he discussed the case generally with O’Reilly and asked O’Reilley what he thought he ought to do with the situation. Plaintiff in error then said to O’Reilley that he would have to consult Horace before he could determine whether he would plead or stand trial, and stated that he ought not to get any more than Henry got anyhow.

The court admitted the letters in evidence over the objection and exception, of defendant below. The case does not present a question where the reading of a letter is met by silence, nor, on the other hand, one where such reading is met by a denial of the truth of the statements contained therein. The plaintiff in error commented on the letters after he read them, not only by admitting by word of mouth their genuineness but discussed the request to confess by saying that he did not know whether he would plead guilty or not. When an accused person is presented with a letter written to him, and reads it and admits that it is from the person whose signature is attached, and discusses the question whether he will comply with a request contained in the letter, the letter is admissible in evidence against him. Dutton vs. Woodman, 9 Cushing, 255.

The ruling of the trial court on the admissibility of the letters in question was in accordance with established principles of the law of evidence.

We find no error apparent upon the face of the record and the judgment will therefore be affirmed.

Lloyd and Richards, JJ, concur.


text:
    CAMPBELL v GUMINA et
    Ohio Appeals, 7th Dist, Mahoning County
    Decided March 15, 1929
    C. C. McGowan, Youngstown, for Campbell.
    McKain & Ohl, Youngstown, for Gumina, et.
   FARR, J.

A motion was filed in the court below by plaintiff in error to require the return of the June installment of taxes upon the theory that they had been improperly paid. Section 2583 GC provides the manner in which taxes shall be levied against real estate in the state of Ohio.

A further provision of 2583 GC is:

(Here follows quotation)

The right to the payment of taxes in this proceeding as provided by 5693 GC, is as follows:

(Here follows quotation)

The question here arises as to the construction of this statute and when the taxes in question attach. As will be recalled from the section just read, the county auditor had already performed his duty. He had made up the tax duplicate and passed it to the county treasurer. It is provided that taxes for a current year shall be paid the first half in December of that year, and the second half-in June of the succeeding year. When the county treasurer received the tax duplicate on October 1st, 1927, the taxes for the year 1927 had been levied against this real estate and were then due. It is true taxes are, by the system applicable in Ohio, paid on or before the 20th day of December, and on or before the 20th day of the following June, and such seems bo be the reasonable construction of these statutes.

In the case of Hoglen v Cohan, 30 U. S., 436, it is held in the first proposition of the syllabus as follows:

(Here follows quotation)

The holding in the above case leaves no question as to the payment of the taxes in the case at bar. Following the first day of October the taxes for the whole year were due and became a lien upon this property.'

The same principle is announced in Makley v Whitmore, 61 OS, 587, in the second proposition of the syllabus, as follows:

(Here follows quotation)

And which is now Section 5692 of the General Code. True, this relates to installments, but there is no difference to be made as between taxes legally entered ard installments which are assessed as taxes against real estate.

In the instant case plaintiff in error perhaps misapprehended his remedy. He made a motion to require that the $32.10 be returned which had wrongfully been deducted, as he claims, from the proceeds of the sale. Another remedy was his, but it matters not so far as the merits of this controversy are concerned; the issue is being determined in the light of the statutes and cases cited. It follows that the judgment of the court below should be affirmed and it i° so ordered.

Pollock and Roberts, JJ, concur.


author: POLLOCK, J.

text:
    FULLERTON TRANSFER & STORAGE CO v McNEIL
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 22, 1929
    E. L. Williams, Akron, for Fullerton Co.
    Dahl B. Cooper, Youngstown, for McNeil.
   POLLOCK, J.

All that appears in the latter entry is that the motion for rehearing:

“This day this cause comes on to be heard on motion for rehearing on motion for new trial; upon consideration thereof the court sustains the same and a rehearing is hereby allowed.”

And then there is a judgment entered. There is no finding that this motion was really filed within time; in other words, there is no finding that the date entered which appears on the dockets and journal entry, was a mistake. We do not know what transpired. There is no bill of exceptions filed of evidence that was heard on the motion for rehearing, so we presume that the court did not find that there was any mistake made by the date shown on the docket and journal entries.

Now, we have two judgments, the later judgment entered on a rehearing, without any reason given whatever for entering judgment. The former judgment is not stricken out. It is still in full force on the records of the court below. We think that this latter judgment must be said to be- a surplusage or nullity; anyhow, it has no effect on the rights of the defendant in error, but his rights, and the rights of the plaintiff in error, were fixed and established when the first judgment was entered.

It follows that the bill of exceptions must be stricken from the record, and in fact the petition in error was filed out of time. The judgment below will be affirmed.

Roberts, and Farr, JJ, concur.


text:
    OSTER BROTHERS FURNITURE CO v. MATLES
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March, 15, 1929
    Metcalfe & Cannon, and Harry Barrett, all of Youngstown, for Furniture Co.
    Max Brunswick, Youngstown, for Matles.
   FARR, J.

Upon the trial below, there was a verdict and judgment for the defendant, and from such judgment error is prosecuted in this court upon the ground that the judgment is contrary to law. The original contract between the parties is in writing and the - subsequent agreements are admitted to have been oral,, and the important issue here is whether or not such defense by way of oral agreements for reduced rentals is available to Matles.

An examination of the record does not disclose that there was any new or additional consideration for these oral agreements, and it is fundamental that to sustain a new contract of that character that there must be a consideration moving, from one party to the other, and so it is held in the case of Marshal, et al. v. Ames, 11 C. C., 368.

Of interest in this connection is Gordon v. Greem, 197, Pac., 955.

And in the opinion, at page 956, it is said:

“See also Doldsborough v. Gable, 140 Ill., 269; 29 N. E., 722, 15 L. R. A., 294; Seymour v. Hughes, 55 Misc. Rep. (N. Y.) 251, 105 N. Y. Supp., 249; Wharton v. Anderson, 28 Minn., 302, 9 N. W., 860. The modified agreement as found by the court to have been made between the parties, was therefore a mere nudum pactum, which did not relieve defendant from the obligations under his lease.”

There being no consideration shown for the alleged new oral agreements, there is nothing whatever to support them, and they are, in the language of the foregoing, merely ' nudum pactums. See also Coe v. Hobby, 72 N. Y. 141-148.

It follows, therefore, that the judgment in the instant case is contrary to law and for that reason the same is reversed and the cause remanded.

Pollock and Roberts, JJ, concur.'


author: PARR, J.

text:
    MARINO v YOUNGSTOWN (City)
    Ohio Appeals, 7th Dist, Mahoning Co
    Decided March 8, 1929
    Nathan Kaufman, Youngstown, for Marino.
    W. B. Spagnola, Youngstown, for city.
   PARR, J.

The record does not disclose that any person other than Marino had access to the barn, nor was it rented to any one else. Valley, was the owner of the property, and it is not disputed in the testimony, had rented the building or garage to Marino. He says that Marino put a lock on the basement door and there were larger sliding doors to the garage also locked, and by which it was entered. Marino does not deny that he rented the garage or that h» put a lock upon the door. He does deny, however, that he owned the liauor. He admits that the Nash coupe belongs to him but denies all knowledge of the liquor save and except that he admits that there were two one-gallon empty containers upon the seat of his automobile. He indicates, however, that some one had broken into the garage. It will be noted that the building, was locked by Marino, who must have had the key, and it is hardly probable that any one else put the liquor in the garage.

The testimony of Callan, the prohibition inspector, is corroborated by Carney, a policeman, and O’Hara, a detective of the City of Youngstown, and also by Metcalfe chief of the vice squad. The testimony of Marino is not corroborated by anyone save and except one witness by the name of Prank, who says that Marino is a man of good character, a fruit dealer.

It was upon this testimony that the Municipal Court found the accused guilty, and certainly upon a review of the same, this court could not well say that it is so clearly and manifestly against the weight of the evidence that the judgment should be reversed. Therefore, the Municipal Court was warranted u- finding the accused guilty. He had rented a garage some two or three days before, he was paying, the rent, he was the owner of the Nash coupe where the liquor was found, he admitted that two empty containers were on the seat of is automobile. He was in full possession of the garage, he no doubt had the key, he no doubt had been using his car. He does not attempt to sav that anyone else had placed these containers in the automobile, and therefore, the trial court was warranted in finding. the accused guilty.

The judgments of the Municipal Court and the Court of Common Pleas are affirmed and the cause remanded to the Municipal Court of the City of Youngstown for execution of sentence.

Pollock and Roberts*. JJ, concur.


author: WASHBURN, J.

text:
    NAGY et v WARGO et
    Ohio Appeals, 9th Dist, Lorain Co
    No 496.
    Decided June 21, 1929
    Deutsch & Dilgren, Elyria, for Nagy, et.
    Stetson & Butler, Elyria, for Wargo.
   WASHBURN, J.

It seems to be settled that where a lease contains a condition that the lessor may re-enter and put an end to the lessee’s estate, upon the lessee’s failure to pay the rent at the time specified, a court of equity will relieve the lessee and set aside a forfeiture incurred by his breach of the condition, on the theory that such condition and forfeiture are intended merely as a security for the payment of money— such relief being granted upon the condition that the defaulting party does that which is equitable and just under the circumstances; but a court of equity will refuse to aid a defaulting party and relieve against a forfeiture if his violation of the contract was the result of gross negligence or was wilful and persistent, because he who asks help from a court of equity must himself be free from inequitiable conduct with respect to the same subject-matter.

Pomeroy’s Equity Jurisprudence (4th ed.), Secs. 452-453.
Tabor v. Bellman, 13 O. App. 382.
Eichenlaub v. Neil, 10 C. C. 427.

In the case at bar, according to the evidence in the record, the failure to pay the rent on April 1 was intentional and not the result of a mistake or actual inability to pay. It was more convenient to pay a part later, and the tenant desired and sought that accommodation, which was denied, and he had ample time thereafter to comnly with the terms of his lease and made no effort to do so for eight days; but upon notice being served upon him to vacate, he did tender the rent then due, and that, too, before ,any action was begun to dispossess him; and up to the time of the serving of said notice, the landlord was without fault in the premises.

While the conduct of the tenant was in ,a sense willful, it was not persistent, and under all the circumstances, we cannot say that the tenant’s inequitable conduct debars him from the remedial right he seeks.

However, his conduct should be taken into consideration in determining the condition upon which a court of equity will grant him relief. His conduct, for which there is no excuse, has created a situation which is unfortunate for the landlord. The lease provides not only for the payment of rent, but contains provisions calling for the co-operation of the tenant in reference to repairs and the proper use of the premises; and the conduct of the tenant has been such as to jeopardize and render difficult of enforcement the rights of the landlord under said lease, and he ought not to be put to the expense of further litigation concerning this matter.

As the basis for affording the tenant relief is that the court regards a forfeiture as intended to secure the fulfillment of the contract, and as such relief depends upon the equities of the case and is refused whenever it would seem to be inequitable to grant it, it seems to us that it would be just and equitable, under all the circumstances, the initial fault for the present condition being that of the tenant, to require the tenant, as a condition to the granting of the relief, to p,ay the rent now due and to enter into a bond in the sum of $300 to secure the payment of the balance of thé rent and the fulfillment of the other terms of the lease, and that may be the order in this case; but insomuch as the landlord did not accept the rent when tendered after notice to vacate, the order will be that each party pay one-half of the costs in this action in the Common Pleas Court and in this court, and .also of the costs in the forcible detention of action. If the tenant fails to comply with the conditions specified within 'ten days, the petition will be dismissed.

Punk, PJ, and Pardee, J, concur.


author: WILLIAMS, J.

text:
    COCHRAN v COWAN, Exr.
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9873.
    Decided June 17, 1929
    George E. Beach, Cleveland, for Cochran.
    Paul Howland, Cleveland, for Cowan.
    Judges WILLIAMS (6th Dist) and HUGHES & JUSTICE, (3rd Dist) sitting
   WILLIAMS, J.

It is claimed, however, that the four notes were altered by the decedent by inserting therein 7 per cent as the rate of interest without the assent of the plaintiff. This alteration was a material one and avoided the instruments altered under the provisions of 8239 GC. Although the four notes had been avoided, the indebtedness evidenced thereby had not been satisfied. Both the plaintiff and defendant are seeking relief in this action from a court of equity and the trial court was justified by •the evidence in finding therefrom that the plaintiff was indebted to said decedent’s estate as shown by the four notes in the sum of $2115.94, which amount includes interest at 6 per cent per annum after maturity, and that the A. S. Neale note and mortgage were delivered to the decedent as collateral security, and that the defendant has a lien on the Neale note and mortgage to secure the payment of said sum of $2115.94.

The trial court was not only justified by the evidence in rendering the decree which was rendered in that court, but upon the principles of equity the plaintiff cannot insist that the collateral note and mortgage be delivered to him without doing equity under the written agreement between the plaintiff and the decedent, and the money derived from the A. S. Neale note and mortgage should be applied upon the indebtedness evidenced by the four notes heretofore referred to. In other words, before the plaintiff could receive the A. S. Neale note and mortgage held as collateral, or the proceeds thereof. there must be paid from such proceeds or by the plaintiff the amount which he owes decedent’s estate, under the equitable maxim: “He who seeks equity -must do equity”. The finding of the court below on the cross-petition was strictly in accordance with the principles of equity.

We find that there is no error apparent on the face of the record prejudical to plaintiff in error and that substantial justice has been done between the parties.

The judgment will therefore be affirmed.

Hughes and Justice, JJ, concur.


text:
    PARDEE et v GRUBISS
    Ohio Appeals, 8th Dist, Cuyahoga Co
    No 9966.
    Decided June 17, 1929
    William J. Corrigan, Cleveland, for Pardee, et.
    White, Hammond, Brewer & Curtis, Cleveland, for Grubiss.
    Judges HUGHES & JUSTICE (3rd Dist) and WILLIAMS (6th Dist) sitting.
   WILLIAMS, J.

It has been held in Ohio that a mere divorce decree does not of itself revoke the will of a husband or wife made in favor of the surviving spouse. Charlton vs. Miller, 27 Ohio St., 298. It is, however, an open question in Ohio whether such revocation will be effected by a divorce and full settlement of property rights.

Sec. 10555 GC after prescribing certain specific ways of revoking wills, provides that

“nothing herein contained shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.”

Similar statutes exist in many of the states and are only declarative of the common law. 4 Kent’s Commentaries, 521. The matter, therefore, does not rest wholly on statute.

By the great weight of authority, where a divorce is coupled with a settlement of property rights, there is an implied revocation of a prior will in favor of the divorced spouse, whether there is such a statute or not.

Wirth vs. Wirth, 149 Mich., 687, 113 N. W., 306; Donaldson vs. Hall, 106 Minn., 502 20 L. R. A., N. S., 1073; 130 Am. State Rep., 621; 119 N. W., 219; 16 Annotated Gases, 541, Lansing vs. Haynes, 95 Mich., 16 35 Am. State Rep., 545 54 Minn. 502; Battis’ Will, 143 Wis., 234, 139 Am. St. Rep., 1101, 126 N. W., 9; In re Martin’s estate, 109 Neb., 289, 190 N. W., 872.

Under the authorities cited the divorce and settlement are held to work a revocation of- the will only as to the bequest or devise to the divorced spouse. The judgment of the trial court sets aside the whole will in the instant case. Anton Grubiss, however, is the only plaintiff in error and no cross petition in error has been filed. It is true that Helen Grubiss Pardee, one of the children, is named as plaintiff in error, and the averments and prayer of the petition in error purport to be those of plaintiffs in error, but no plaintiff in error, except Anton Grubiss, signs the petition in error either personally or by attorney. The children take a greater estate as heirs at law than they would as devisees under the will, for as heirs at law they receive a fee in the real estate which is not subject to the life estate of Anton Grubuss. If any of the children were here as plaintiff in error or by cross petition in error, we could not say that prejudice resulted to any of them by the judgment below under the circumstances.

We also call attention to the annotation in 25 A. L. R., 49, where the authorities are collected.

The court saw fit to submit the question whether the will was revoked to the jury, and the jury found that it had been revoked and that it was not the last will and testament of the deceased • testator.

There was no reversible error committed by the trial court and the judgment entered on the verdict does substantial justice between the parties.

The judgment will therefore be affirmed.

Hughes and Justice, JJ, concur.


author: LLOYD, J.

text:
    JONES v PERRY TOWNSHIP BOARD OF EDUCATION PERRY TOWNSHIP BOARD OF EDUCATION v CARTER
    Ohio Appeals, 4th Dist, Galia Co.
    Decided June 14, 1929.
    Henry W. Cherrington, Gallipolis, for land owners.
    R. M. Switzer, Gallipolis, for board of education.
    Judges RICHARDS and LLOYD (6th Dist) sitting.
   LLOYD, J.

Both cases were tried in the Common Pleas without that court having the advantage of the recent opinion of the Supreme Court relating to the ownership of school buidings no longer used for school purposes. Schwing v McClure, 7 Abs 255. On the authority of that case we have no difficulty in determining that the board of education in each of these cases is the owner of the school house, and as an incident to such ownership has a right to remove the same whenever it has been determined that the building will be no longer used, for school purposes.

In neither case are we satisfied that the board of education has effected a title by adverse possession. The statute at the time the buildings were erected (70 O. L. 210) authorized the school authorities to either purchase or lease sites upon which to build school houses. If the undisputed testimony in these eases is of any force no site was purchased in either case. The testimony is consistent with a lease. Whether or not a lease was made or ought to. have been made we do not determine. It would have been legal to have made a lease, and a lease would have been consistent with all of the testimony offered by the land owners in that respect. And tho we were satisfied that no lease had been made the testimony referred to indicates a permissive use of the property by the board of education, granted by the land owner and accepted and enjoyed by the board of education.

Our judgment is that the judgment in both cases be modified, fixing the rights of the board of education to the possession and right of removal of the school houses provided that such school houses be removed not later than October 1, 1930, and of the property owners to the fee of the land. If the defendant in error in either of the cases refuses to accede to such modification the judgment in such case will be reversed as being opposed to the weight of the evidence and the case remanded for a new trial. If either defendant in error consents to the modification suggested the judgment in such case will be modified accordingly and as modified affirmed.

Mauck and Richards, JJ, concur.


text:
    THOMPSON v RUTLEDGE
    Ohio Appeals, 6th Dist, Lucas Co
    No 2100.
    Decided January 21, 1929
    Marion W. Bacome, Toledo, for Thompson.

      Eldon H. Young, Toledo, for Rutledge.
   RICHARDS, J.

There can be no question that a motion for judgment notwithstanding the verdict should be determined upon a consideration of the averments of the pleadings, and the court in disposing of such motion can not consider the record outside of the pleadings. Neither can there be any question under the Code but that this motion is available to either party .when the state of the pleadings is such as justifies it. Baltimore & Ohio R. R. Co. vs. Nobil, 85 Ohio St., 175.

The answer sets up nothing except that which could be shown under a general denial and therefore the motion of the defendant in effect assails the sufficiency of the petition. We therefore turn to the petition to ascertain from its averments whether a case is stated in that pleading. The plaintiff avers, among other things, that the defendant represented to him in January, 1923, that he was authorized to enroll plaintiff and would enroll him in the Nesmith College of Chiropractic, claimed by him to be in operation at Deshler, Ohio, and that he was authorized to give plaintiff a complete course in the Nesmith system of Chiropratic which would require a period of about three years’ study and that at the completion thereof he would receive a diploma issued by the University of the Potomac entitling him to use the degree of Doctor of Chiropratic. The petition further avers that Rutledge represented that Nesmith, the alleged proprietor and Dean of the Nesmith College of Chiropractic at Deshler, was operating-under a charter from the University of the Potomac as a branch thereof. All these representations are averred to have been false and untrue and that Nesmith had no school of chiropractic at Deshler and that he and Rutledge had no connection with the University of the Potomac and ,at no time was either of them in position to give plaintiff a degree or diploma from said school. He avers that these representations were known by the defendant to be-false and that plaintiff relied on them, .and relying on them, paid to - the defendant $600.00, and in addition expended time and money by reason of the false representations.

After a careful examination of the petition, this court is convinced that it states a good cause of action.

It is urged, on behalf of the defendant, and the decision of the trial court was doubtless based upon the theory, that the petition discloses representations and transactions in violation of the statutes Qf Ohio, and therefore the plaintiff would not be entitled to recover. We do not so read the petition. Nowhere does it appear that the defendant represented that he would train and equip plaintiff so that he would be entitled to a certificate to practice Chiropractic or any other form of healing art, nor that he would be prepared for admission to the examination conducted by the state medical board for such purposes. For anything that appears in the petition, the plaintiff may never have intended to practice any form of medicine in Ohio or elsewhere. He may have been interested in chiropractic and desired to acquire what knowledge he could along that line. Certainly he would be entitled, if he applied himself to the study and equipped himself to receive a diploma from the University of the Potomac, to ’ have received such diploma and that would not be in violation of any statute. The plaintiff may have desired the diploma for such use as it might serve him in some other state than Ohio, or he may have desired it for what value' it would be to him as ,a teacher of chiropratic.

It is true that the’ petition avers that the defendant represented that in one year to eighteen months he would take plaintiff into his office in Toledo, where he would be able to earn $100.00 or more per month. That is not equivalent to an averment that as a result of these studies he would be entitled to practice the art of chiropractic. He may have been expecting to be taken into the defendant’s office as a bookkeeper or a clerk. Indeed, the petition does not even allege that the defendant was engaged in his office or elsewhere in practicing chiropractic.

Finding that the petition contains averments sufficient to constitute a cause of action, and that it does not appear from the pleadings that the representations and proposed transaction constituted a violation of law or a scheme to violate the law, the judgment non obstante veredicto will be reversed and the cause remanded.

The situation of the record is such that it becomes important to determine the purpose for which the cause is remanded.

The judgment non obstante veredicto being erroneous and unauthorized, and the motion for a new trial not having been disposed of on its merits, it would seem to follow that said motion should now be acted upon by the trial court and disposed of on its merits. • To remand the case for the rendition of a judgment on the verdict would not accomplish justice, because the defendant Rutledge has never had.-the judgment of the trial court .upon , the merits of. his motion for .a new trial.....

The judgment will be reversed and the cause remanded for furhtre proceedings, such proceedings to consist, in the first instance, of a ruling on the motion for a new trial on its merits.

Williams and Lloyd, JJ, concur.


author: BY THE COURT

text:
    ROUSEY v ROUSEY
    Ohio Appeals, 4th Dist, Athens Co
    Decided July 1, 1929
    A. P. Miller and A. D. Russel, Pomeroy, for plaintiff in error.
    Robert S. Alcorn and Harry J. Wernke, Cincinnati, for defendant in error.
    Judges RICHARDS & LLOYD (6th Dist) sitting.
   BY THE COURT

With the general finding in favor of the defendant this court is in accord. To say nothing of other earlier acts of indiscretion or perversity, the plaintiff in leaving her home for California when she did and as she did was clearly wrong. Giving that episode the virtuous character claimed for it, her conduct constituted gross neglect of her marital duty and was extremely cruel to her humiliated husband. The only real defense made for the plaintiff as to that occurence was that her husband condoned her offense. It is true that the plaintiff returned to her home in December, 1927, and that the parties cohabited until about January 5, 1928, and unquestionably this fact makes a defense of a sort. Condonation is the forgiveness by an injured husband or wife of a marital wrong inflicted by the other party to the marriage relation. It wipes out the offense on the implied understanding that the offense will not be repeated and that the offending party will thereafter not be guilty of misbehavior. Cohabitation is the evidence of condonation. If this were all of the defense of condonation the plaintiff might be said to have made good her defense. More, however, is required. One relying upon the forgiveness of another must show that such forgiveness was bestowed with full knowledge of everything that might be influential in granting or withholding pardon.

9 R. C. L. 381.

The authorities are collected in Ann. Cases 1912 C. p. 6.

Now while the defendant did condone the plaintiff’s conduct in going to California and everything prior thereto of which he had knowledge, there were many things of which he had no knowledge. He did not know that the plaintiff had deceived him about the way she went to California and the extent of her association there with Russi, nor did he know the extent and character of her former association with Russi or in the earlier days with Courtney. The facts are that he was so engrossed in his profession and paid slight attention to his domestic affairs. However negligent he was in this respect he had to be apprised of all the plaintiff’s foolish conduct before his pardon was to be relied unon. In nothing we have said and in nothing in the case is there to be drawn the inference that the plaintiff was proven unchaste. Her counsel admit her to have been indiscreet. Her indiscretions were so numerous, so perverse and frequently so silly that she can not be heard to claim the benefit of a pardon that did not rest upon a full knowledge of all her Conduct that tended to her husband’s humiliation. The judgment cannot be reversed on the weight of the evidence. The trial court was not. bound to find the condonation complete.

Some complaint is made that incompetent evidence was admitted. If true we would not assume that the trial judge was influenced thereby. The chief complaint in this respect is that witnesses testified so generally to plaintiff’s unfavorable reputation. This testimony was competent. It was under the circumstances of this case a species of cruelty to acquire a bad name if such acquisition was due to the folly of the one acquiring it. There is nothing in the record warranting a reversal on matters of evidence.

The decree was, however, erroneous in the division of the property. The plaintiff was awarded one half of $2,500 which she had received a year before the judgment w,as entered. Half of this had been spent on the California trip and .the other half must have been consumed in the preparation and trial of this case. In addition she was given a note for $2,500 and $50 per month for the support of the infant child. For her own share of the matrimonial property she in fact gets only the $2,500 note. The defendant has no large estate but he has several thousands of dollars of property in possession. He is, moreover, a young, energetic and capable physician, having a net salary of $700 per month from an employing physician. While he has been growing into a position of financial independence the plaintiff, while not so devoted to her household as she should have been, has nevertheless in a way kept the home and spent her young womanhood with the defendant. The defendant’s greatest opportunities in a financial way are before him. The plaintiff has but a meager equipment to make her way. Fairness to her requires that she have some opportunity to adjust herself to the necessities of the future. The order as to alimony will be modified by decreeing to her an additional allowance of $700 per year for five years, payable in equal quarterly installments of $175, beginning on August 1, 1929, terminating on her remarriage within the five year period. With this modification the judgment is affirmed. If the defendant in error refuses to accept the modification the judgment is reversed on the weight of the evidence to be retried upon the question of alimony.

Judgment for plaintiff in error for costs herein.

Mauck, Richards and Lloyd, JJ, concur.


author: LEMERT, J.

text:
    DAVIS v DAVIS
    Ohio Appeals, 4th Dist, Brown Co
    No 119.
    Decided June 21, 1929
    Young & Barnes, Georgetown, for plaintiff.
    Campbell & Frebis, Georgetown, for defendant.
    Judges MAUCK (4th Dist) and LEMERT (5th Dist) sitting.
   LEMERT, J.

An examination in this case discloses that the only witnesses called on behalf of the defendant in the court below, were the defendant. Ira O. Davis, his wife, Mrs. Ir,a O. Davis, Gerald Davis and Robert Davis, two minor sons. They each testified that the plaintiff had made certain statements along the line that the defendr ant had not received his share of the estate and that she was going to even up with Ira and to make him even, with what the others had received. -

We are unable to "We to this testimony the weight claimed for it by the defendant for the reason that there is no proof in the record that there was any unequal distribution of the S. A. Davis property or estate, and so upon this testimony the reasons given or assigned for making this extraordinary gift do not exist.

The record discloses that the plaintiff, Mrs. Davis seemed to have been suspicious at times as to the safety of her bonds in the hands of her son Ira, for at least on three occassions she had him bring them to her.

Shortly after the death of S. A. Davis, the plaintiff herein came into possession of the amounts hereinbefore referred to and part of the fund was deposited to the account of the plaintiff and was after-wards withdrawn and placed to the credit of the defendant’s wife. The record discloses the fact that about the time the defendant begged the possession. of the check and posioned the mind of his mother into thinking that some one at home might get the check and money if it was not left for safe keeping in his possession, and immediately thereafter began the fight on the part of the defendant for the transfer of the bonds, and the record discloses that the defendant, together with his wife, made it very unpleasant for the plaintiff, the mother, considering her advanced years, by their repeated and insistent requests that she assign this money and bonds to the defendant for safe keeping. The record herein clearly shows that the plaintiff herein, the mother, expected to retain the ownership of the bonds while placing them in her son’s hands in trust, but she still insisted that the interest be paid to her.

The record shows that she was so persistent in her idea that she wanted the interest on her own bonds that she would not take Ira’s word for it but insisted that she see Mr. Thompson, cashier of the Bank, and find out from him.

We are not losing sight in this case that this action is brought by plaintiff herself, and that she is asking relief on the grounds that she merely gave check and bonds in trust.

In support of her claims she has testified, by deposition. This deposition .was taken prior to trial of the cause, hence her attention could not have been directed to the incidents and details testified to by Ira, his wife and sons. It is but right .and proper in the consideration of this case that all the circumstances the mental and physical condition of the parties as reflecting on the intention of the plaintiff should be considered. It is not claimed in this case that the securities herein named were obtained by fraudulent or undue influence, yet it is perfectly proper that we should consider the conduct of the defendant and his family that we think is pertinent to the issue made in this case. If the defendant, Ira O. Davis, procured possession of these securities by undue influence, fraudulent representation, or by taking advantage of the confidence or reflecting seriously on the question of the intent of the plaintiff.

We note that one, Mr. Schatzman, cashier of the bank at Russelville, a disinterested man, testified that Ira O. Davis, the defendant told him that he had no trouble in getting his mother to do what he wished her to do. With reference to the law that should govern in this case we turn to

32nd. OS. page 239.

We also cite: R. R. Co. vs. Caffney, 65 OS. page 104.. .Elliott on Contracts, Volume 8, Section 149.

Elliott on Contracts, Volume 1, Section 74.

Dick vs. Alberts, 134 Am. St. Rep page 369.

So, therefore, we find that the said defendant Ira O. Davis, holds the said property and all of the same mentioned in plaintiff’s petition in trust for plaintiff, Minerva G. Davis; that said trust be and the same is hereby terminated and that the said Ira O. Davis is ordered to account to plaintiff for all of the property and money now in his hands or that came into his hands by reason of said trust together with said profits he has received for the the same.

Entry accordingly.

Lemert and Mauek, JJ, concur.


text:
    SMITH v ROBINSON
    Ohio Appeals, 4th Dist, Lawrence Co
    Decided Nov 14, 1928
    A. R. Johnson, Ironton, for Smith.
    Andrews, Edwards & Andrews, Ironton, for Robinson.
   MAUCK, J.

The verdict turned upon the manner in which the collision occurred, and the manner in which it occurred turned upon the precise place of the collision. The plaintiff’s claim was that the car in which she was riding had passed the center of the street intersection, had turned slowly to the left, making a complete right angle, and was proceeding north toward . the tunnel when the defendant’s car entered the intersection and struck the Robinson car. The defendant’s claim was that the Robinson car upon reaching the intersection cut the comer making a diagonal turn to the left without traveling around the center of the intersection. Both sides adduced testimony tending to support their respective views. If the plaintiff’s claim was true the plaintiff was entitled to recover. If the defendant’s claim was true the plaintiff was not entitled to a verdict. The jury found, and there is evidence to sustain it, that the collision occurred in the manner claimed by the plaintiff.

Most of the assignments of error in this respect were predicated on the claim that the charges are not as complete as the plaintiff in error thinks that they ought to have been. It was, however, incumbent upon the defendant below to request that .an otherwise sound instruction be elaborated or amplified if necessary for a full development of the law as desired by the defendant, and insofar as the defendant failed to make such request it is now too late to complain of what the court actually said.

The objection urged against the tenth special instruction is that in that instruction the jury was advised that it was incumbent upon one approaching the street intersection to be on the lookout for other automobiles. It is suggested that the proper instruction would be that such driver was required to use ordinary care to observe other automobiles.. This is a distinction without a difference. No one can be said to be ordinarily prudent in observing other automobiles if he failed to keep a lookout for them.

The one question most strenuously argued relates to the examination of the jury upon its voir dire. In examining the jurors counsel for the plaintiff asked this question: “Has any member of the jury any employment in any manner with the Travellers Insurance Company?”. Thereupon the defendant asked the court to dismiss the jury. The court overruled this motion and advised the plaintiff that the question was improper. Thereupon the defendant asked the court to instruct the jury that The Travellers Insurance Co. had nothing to do with the case and the court so instructed the jury. Counsel for the plaintiff insisted that the inquiry was permissible but the court expressed the opinion that the question was improper. The defendant renewed his motion to dismiss the jury. The motion was again overruled and to that the defendant excepted. The question is thus raised as to whether or not this inquiry of the jury js so suggestive to the jury of the probability that the defendant is protected by liability insurance that the verdict is so tainted that it must be set aside. The question w,as mooted by the Supreme Court in Heidle v. Baldwin, reported in the Law Bulletin for May 28, 1928. Syl 6 Abs 222; 118 Oh St 375; 161 NE 44. The impropriety of showing that the defendant in a damage suit has the protection of an insurance company is manifest. It is, however, equally clear that the prospective juror who had employment with the indemnity company and knew that such indemnity company would ultimately be liable to respond to any judgment rendered in the case would be an unfit juror. It has been frequently determined that a party who might develop by proper inquiry the unfitness of a prospective juror waives all of his rights in the premises if he has made no inquiry. The plaintiff was accordingly only performing a duty imposed upon him by law in making inquiry of the possible interest of those in the jury box unless he were fully satisfied at that time that there was no one in the panel who had any employment of the kind. In other words, before the court can say that the only purpose of the inquiry was to give the jury the notion that the defendant was protected by insurance the court must find that the inquiry was made in bad faith for a sinister purpose. There is no evidence of bad faith and we can not indulge the presumption that it existed. Since the argument of the case this whole question has been exhaustively considered in a monograph attached to Jessup v. Bavis, 56 A. L. R. 1418.

It would be unprofitable to repeat here what has been said in the monograph in support of this position. We hold that the law in this state coincides with the rule generally prevailing and that the record in this case does not show that the plaintiff abused his right of inquiry in propounding to the jurors the question complained of.

There is no error in the record.

The judgment is affirmed.

Middleton, PJ, and Thomas, J, concur.