author: By ZIEGEL, J.

text:
    DOUGLASS, Estate of, In re.
    Probate Court, Preble County.
    No. 18506.
    Decided July 15, 1957.
    Lloyd B. Bennett, Eaton, for the movant.
    Donald L. Ferris, Hamilton, for the administrices.
   OPINION

By ZIEGEL, J.

This matter pends upon a motion filed by Kramer Brothers asking that the former order of this court settling the final and distributive account of the administratrices of the Estate of Earl Faulk Douglass, deceased, be vacated and set aside. While the motion filed does not so state, it is apparent that it was filed under the provision of §2109.35, sub-paragraph (C), R. C., which provides, inter alia, that an order settling an account may be vacated for good cause shown if filed within one year after the movant acquires knowledge of such proceedings and in any event within three years after such order is made. In this case the account in question was settled on October 16, 1956, and the motion to set the settling order aside was filed on April 2, 1957.

The facts upon which the motion is based, and which are admitted by all parties concerned, are as follows: Administratrices were appointed for the decedent’s estate on July 25, 1955. Thereafter, on November 11, 1955, within four months, Kramer Brothers presented its claim against this decedent’s estate in the amount of $130.50, with interest thereon at the rate of 6 percent per annum from September 1, 1951. On November 19, 1955, the attorney for the administratrices mailed a letter to the attorney for the claimant, which is admitted having been received, the important part of which reads as follows:

“Mr. Douglass, according to Mrs. Rodeflier (one of the administratrices!, never spoke of this particular item of Kramer’s work without becoming highly incensed, and since he, for almost four years refused to pay the claim, the administratrices feel that they too should deny the claim.

“If it is acceptable to your clients to settle this claim for $50.00, I will recommend that the administratrices pay that much in order to avoid litigation. Let me know what is decided.”

Neither the claimant nor its attorney made any reply to this letter. Thereafter, on January 17, 1956, a Schedule of Claims was filed which indicated that this claim was rejected on November 19, 1955. The final and distributive account was filed on August 22, 1956, and was settled on October 16, 1956, with the fiduciaries being discharged and their bond released. Nothing was paid on the claim. When the claimant’s attorney learned of the settling of this account, he filed the motion in question.

The movant-claimant contends that it never received any notice that its claim was rejected as provided by the statute; that, while-it could have demanded an acceptance or rejection, it had no duty so to do; that it was up to the administratrices to notify it whether the claim was accepted or rejected; that until it was notified of a rejection it was not in a position to bring suit on the claim as provided in §2117.12 R. C.; that unless the settlement of the accounting in question is vacated- and the administratrices restored to their former capacities, there is ño one who can either accept or reject its claim, and further there is no one whom it can sue if the claim is rejected. The administratrices argue that the claim was already rejected, that the two month period for bringing suit provided for in §2117.12 R. C., has elapsed and that therefore the claim is forever barred.

The question for the Court to determine is whether the claim presented has been rejected or whether it should be considered as still pending.

Sec. 2117.06 R. C., provides for the presentation of claims of creditors, and provides further that “In the absence of any prior demand for allowance, the executor or administrator shall allow or reject all claims within thirty days after their presentation.” Failure of the executor or administrator to act, however, raises no presumption. The same section of the Revised Code goes on to state that “failure of the executor or administrator to allow or reject within said time shall not prevent him from doing so thereafter nor shall it prejudice the rights of any claimant.” In other words, the thirty day provision is directory rather than mandatory.

Sec. 2117.11 R. C., provides that “A claim is rejected if the executor or administrator, on demand in writing by the claimant for an allowance thereof within five days, which demand may be made at presentation or at any time thereafter, fails to give to the claimant, within such period, a written statement of the allowance of such claim.” It is to be noted from the use of the word “may” that a claimant does not have any duty to make any demand on the executor or administrator. A presumption of rejection of a claim arises only if such a demand is made. In the instant case, the claimant made no demand for action, and it was under no obligation to do so.

Sec. 2117.11R. C., provides that “An executor or administrator shall reject a creditor’s claim against the estate he represents by giving the claimant written notice of the disallowance thereof. Such notice shall be given to the claimant personally or by registered mail with return receipt requested, addressed to the claimant at the address given on the claim. Notice by mail shall be effective on delivery of the mail at the address given. A claim may be rejected in whole or in part. A claim which has been allowed may be rejected at any time thereafter.” While, in the instant case, the provision with regard to communication by registered mail was admittedly not complied with, this Court does not believe that fact is material. Claimant’s attorney admits receiving the letter a part of which is quoted above. The purpose of the statute in specifying registered mail return receipt requested is to provide a conclusive method of showing a rejection. It is not intended to be a sole method of rejection. Compare Stambaugh v. Smith, 23 Oh St 584 at 594.

The fact that the letter was admittedly received is the important thing.

Therefore, the sole question to be determined is whether the letter in question amounted to a rejection of the claim.

It is well settled that to constitute rejection of a claim something must be done by the administrator to show that he does not intend to pay the claim. The rejection must be plain and unequivocal. 22 O. Jur. 2d, 678, par. 314; Stambaugh v. Smith, 23 Oh St 584 at 594; Miller v. Ewing, 68 Oh St 176 at 186, 67 N. E. 292; Cement Co. v. Bank, 20 Oh. C. C. (ns) 323; 31 C. D. 354; Martin v. Spellman, 30 Abs 225; Chronerberry v. Bartel, 32 Abs 284.

In Cement Co. v. Bank, supra, the decedent was a co-indorser on a note which had been discounted at the Bank. Upon non-payment when due, the Bank protested to decedent’s administrator. His reply was to effect that he did not want to pay the note, and that the Bank should go against the other indorser and the maker of the note. The appellate court held that such a reply did not constitute a rejection of the claim. It pointed out that there must be something done by the administrator to show he does not intend to pay the claim. Merely indicating that one does not want to pay a claim is not sufficient.

In Martin v. Spellman, supra, almost a case in point, decedent’s doctor filed a claim for $3,000.00 for medical services rendered to the decedent with his administrator. The administrator wrote the doctor to the effect that since the claim was not itemized he would have to reject it. However, he went on to say that if an itemized account were submitted he would reconsider it. Thereafter, the itemized account was submitted, and was promptly rejected. The doctor brought suit within the statutory period after the rejection of the itemized claim, but not within the time limit of the rejection of the original unitemized claim. The Second District Court of Appeals held that “the rejection by an administrator of a claim must be unequivocal in order to start the time running within which an action on the claim must be commenced,” and that since the communication on the unitemized claim, although specifically stating that that particular form of claim was rejected, left the claimant with an opportunity to resubmit his claim in a different form for reconsideration, such communication did not constitute an unequivocal rejection.

The letter in the instant case in the first paragraph quoted above specifically rejects the claim. In the next paragraph, however, there is an equivocation, when an offer to settle the claim for a lesser amount than demanded is made. That such offer is made “to avoid litigation” is not important. The matter is still left open for negotiation. The administratrices’ attorney’s concluding sentence is: “Let me know what is decided.” They expected to hear further from the claimant. There is thus no unequivocal rejection of the claim here. Movant’s claim neither having been rejected nor accepted, the matter still pends.

While neither the claimant nor its attorney are to be complimented for their failure to answer the administratrices’ attorney’s letter, their failure raises neither a presumption of rejection nor a bar to the claim. See In re Estate of Heimberger, 6 O. O. 51. The claim not having been rejected, the statute of limitations set forth in §2117.12 R. C., for bringing suit on the claim has not as yet started to run. In re Estate of Lamberton, 142 Oh St 417; 27 O. O. 356, 52 N. E. (2d) 855.

Since the claim in question was neither rejected nor accepted, the administratrices of the Estate of Earl Faulk Douglass, deceased, have not completed their work. In order for them to finish their task, they must be reinstated. The motion to vacate the order settling the account and discharging the administratrices having been filed by a person affected thereby who was a party to the proceedings wherein such order was made solely by reason of his having been served by publication in a newspaper within the three year time limit set forth in §2109.35 R. C., said motion will be sustained. An order vacating the account reinstating the administratrices will be prepared by the attorney for the movant. Such order will provide that the administratrices surety, who is also a party to these proceedings, likewise be reinstated.


source: Caselaw Access Project

author: By HORNBECK, PJ.

license: Public Domain

text:
    STATE, ex rel. HOLMES, Plaintiff-Relator, v. LAUDERBAUGH et, Defendant-Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5580.
    Decided March 29, 1957.
    Holmes, Holmes & Holmes, Columbus, for plaintiff-relator.
    Samuel L. Devine, Pros. Atty., Ralph H. Heller, Asst. Pros. Atty., Columbus, for defendant-respondent.
    (HORNBECK, PJ, of the Second District; DEEDS and FESS, JJ, of the Sixth District, sitting by designation in the Tenth District.)
   OPINION

By HORNBECK, PJ.

Relator seeks a writ of mandamus against defendant Board requiring it to certify a petition of electors to the Board of Elections of Franklin County, Ohio, “so that the question of rezoning may be placed on the ballot for the rural area of Prairie Township at the next general election.”

The facts developed by stipulation are that on or about March 27, 1956, the respondent Board of County Commissioners approved an application in case No. 417, Prairie Township, Franklin County, Ohio, for a change of zoning from a residential and agricultural district to a general commercial district; that thereafter, Mr. Holmes, as an individual adversely affected, appealed this decision of the County Commissioners to the Common Pleas Court of Franklin County. Thereafter, on or about July 3. 1956, a petition was filed with respondent requesting the Board to submit the question whether or not the amendment adopted March 27, 1956, changing the zone from residential and agricultural to general commercial district, be submitted for approval or rejection to the electors of the territory affected, at the next general election. This petition was in proper form and contained the requisite number of signers to require the submission of the amendment to the electors in the district affected.

On September 7, 1956, respondent Board by formal resolution rescinded its resolution to submit to election the question of the approval or rejection of the amended zoning regulation.

Respondent Board, in its original answer, states as a reason for its rescission resolution of July 3, 1956, that, inasmuch as Mr. Holmes, an individual adversely affected by the change in the zoning regulation, had 'filed an appeal therefrom, the voters in the territory affected could not also have the right to have the resolution presented for approval or rejection at an election; that the two remedies are not concurrent. Counsel for the Board in his oral presentation to this Court did not urge that the defense set up in the answer was sound upon the claim that the right of an election was barred by reason of Mr. Holmes’ appeal as an individual adversely affected. However, counsel for respondent insists that mandamus will not lie because relator has an adequate remedy at law in the right of appeal which is accorded by the statute, §303.12 R. C.

This section reads:

“Amendments or supplements to the zoning resolution may be made as provided by §§303.01 to 303.11, inclusive, R. C., except that they may be made without submitting them to a vote of the electors, unless within thirty days after the adoption of the amendment or supplement there is presented to. the board of county commissioners a petition, signed by a number of qualified voters residing in the unincorporated area of the township or part thereof included in the zoning plan and affected by the amendment or supplement equal to not less than eight per cent of the total vote cast for all candidates for governor in such area at the last preceding general election at which a governor was elected, requesting the board to submit the amendment or supplement to the electors of such area, for approval or rejection, at the next primary or general election. Any person adversely affected by an order of the board adopting, amending, or rescinding a regulation may appeal to the court of common pleas of such county on the ground that the board failed to comply with the law in adopting, amending, rescinding, publishing, or distributing such regulation, or that the regulation, as adopted or amended by the board is unreasonable or unlawful, or that the revision of the regulation was unreasonable or unlawful.”

It is indeed doubtful if the amendment to the zoning resolution of March 27, 1956, could become effective until after thirty days after the adoption of the amendment. The statute provides that amendments or supplements may be made without submitting them to a vote of the electors only if no petition for an election is filed within thirty days after the adoption of the amendment. It would seem that the effective date of the amendment to the zoning resolution would be held in abeyance at least for thirty days after its adoption and if petition filed for election, then until after the result of the election was certified. If in the election the amendment as proposed was defeated, it never would become effective. However, assuming that Mr. Holmes, as an individual adversely affected by the resolution had the right to appeal when he did, was that merely an alternative remedy of testing the validity of the amendment? We think not.

The statute provides two different methods of testing the amendment to the zoning resolution. First, that which was adopted by Mr. Holmes as an individual adversely affected, by appeal. Second, by a petition for election proper in form and signed by the requisite number of qualified voters as provided in the statute. An appellant adversely affected by an order of the Board adopting an amendment to the zoning resolution could maintain his contention on appeal only if he-established that the action of the Board was unreasonable or unlawful. On the other hand, the petitioners upon election, had the right to have the question as to the acceptance or rejection of the amendment submittd to a vote without respect to the reasonableness or the lawfulness of the amendment. The vote at the election might defeat the amendment while the appellant in his appeal might fail.

But the question presented here is whether or not relator is given the right to appeal from the resolution of the Commissioners rescinding their former order granting an election on the petition. The resolution' of the Board which is in issue in this action is that which rescinded the order of election. That resolution did not in any sense pertain to the amendment to the zoning resolution and does not come within the scope of the subject matter of §303.12 R. C. No right of appeal is accorded relator by this statute.

Our first impression was that there might be an appeal from the rescission resolution under §307.56 R. C., which provides:

“A person aggrieved by the decision of the board of county commissioners in any case, may appeal within fifteen days to the court of common pleas, notifying the board of such appeal at least ten days before the time of trial. The notice shall be in writing, and delivered personally to the board, or left with the county auditor. At its next session, the court shall hear and determine the appeal, which decision shall be final.”

The language of this section is very broad and the judgment on appeal contemplated thereby would be promptly entered. If this right of appeal was available to the relator, he would have an adequate remedy at law. However, our Supreme Court has construed this statute and has held that no appeal lies if the Board in its action is performing an administrative or governmental function. Bowersox v. Seneca County, 20 Oh St 496; Commissioners of Noble County v. Hunt, 33 Oh St 169; Southard v. Stephens, Treas. et al., 27 Oh St 649. Other decisions have restricted the right of appeal to those cases in which the Board of Commissioners is required to exercise a judicial function. 11 O. Jur. 594, citing Southard v. Stephens, supra, Bring v. Hollis, 4 Oh Ap 45; Christ v. Eirich, 13 O. N. P. (N. S.) 457.

The action contemplated to be taken by the County Commissioners upon the filing of a petition under §303.12 R. C., is purely administrative. The Board’s obligation is only to satisfy itself that the petition is in proper form and that it contains the requisite number of signatures. Having so found, its duty is clear.

In Commissioners of Noble County v. Hunt, supra, in the first syllabus, it is said;

“In cases where specific duty is enjoined by law upon the board of county commissioners to be performed in a specific manner not involving judicial discretion, and when performance by the board is due, it refuses to act, it may be compelled to do so by mandamus.”

The facts in this case come strictly within the subject matter of this syllabus. The duty of the Commissioners upon the filing of the petition which was in proper form and contained the requisite number of signatures was to act as directed by the statute. The rescission resolution was out of order and without effect.

The writ of mandamus will be allowed as prayed. The literal terms of the statute, §303.12 R. C., that the question set forth in the petition be submitted for approval or rejection at the next primary or general election cannot now be observed. The order will be that the writ issue and that the Board be directed to submit the amendment to the electors of the area involved for approval or rejection at the next primary or general election succeeding the entry journalizing this opinion.

It will be so ordered.

DEEDS and FESS, JJ, concur.


author: By THE COURT.

text:
    WOODS, Petitioner, v. ALVIS, Warden, etc., et al., Respondents.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5699.
    Decided May 28, 1957.
    Walter Lee Woods, No. 96791, Columbus, for himself.
    William Saxbe, Atty. Geni., William M. Vance, Asst. Atty. Geni., Columbus, for respondents.
   OPINION

By THE COURT.

This is an original action in habeas corpus wherein the petitioner alleges that he is unlawfully confined by the respondent in the Ohio State Penitentiary.

The case came on to be heard upon the petition, the return of the respondent, the evidence, the brief and argument of the petitioner and counsel for the respondent. After considering all of the same, we are of the opinion that the petitioner has failed to sustain the allegations set forth in his cause of action. The record reveals that the prisoner was indicted for armed robbery and sentenced to the Ohio State Penitentiary from which he was transferred to the Lima State Hospital for the criminal insane; that he escaped from the latter institution and fled to the State of Tennessee where he was arrested and returned to the Ohio Penitentiary without the formality of extradition. He now urges that since he was returned by illegal means his detention is unlawful. This court held otherwise in the case of Wise v. State, 58 Abs 350, the syllabus of which provides:

“Where a person accused of crime is found within the territorial jurisdiction wherein he is charged the right to put him on trial for the offense charged is not impaired by the fact that he was brought from another jurisdiction by illegal means.”

See also 23 O. Jur. 2d, 353.

The application for a writ will be denied.

PETREE, PJ, BRYANT and MILLER, JJ, concur.


author: By ALEXANDER, J.

text:
    HACKETT, Plaintiff, v. HACKETT, Jr., Defendant.
    Common Pleas Court, Lucas County.
    No. 49584.
    Decided November 15, 1957.
    Holloway, Peppers & Romanoff, Peter Moran, Toledo, for plaintiff.
    William A. Finn, Toledo, for defendant.
   OPINION

By ALEXANDER, J.

On motion to show cause filed by defendant-father against plaintiff-mother.

The facts are not in dispute. The mother, a non-Catholic, and the father, a Catholic, were married in the Catholic Church after executing an ante-nuptial agreement providing that “all children born issue of the marriage shall attend the Catholic school and be brought up in the Catholic faith.” One child was born and duly baptized in the Catholic Church.

Soon thereafter the mother changed her mind and sought exit from her ante-nuptial agreement. Release was refused. As she nursed her child she apparently nursed also a determination to repudiate her agreement and by the time the child had reached five she was making no secret of her intentions. A few months later she left the matrimonial dwelling, taking the child with her. She retained counsel and executed a separation agreement which, among other things, awarded the non-Catholic mother custody of the child and provided the child was to attend a certain Catholic school previously approved by the mother.

Thereafter the parties were divorced in this court, without contest, and the separation agreement, though not approved by the Court, was, in compliance with the terms thereof, made a part of the decree.

The mother duly entered the child in the Catholic school where she completed the first grade. When it came time to enter the child in the second grade, instead of taking the child back to the same school, the mother entered her in a public school. Thereupon the father filed this motion, calling upon the court, among other things, to require the mother to show cause why she should not be punished for contempt of court for violating the court order embodying the agreement that the child attend the Catholic school.

The mother appeared and defended on the ground that this provision of both the ante-and post-nuptial contracts is void, and hence that portion of the court order reiterating same is not enforceable by the court. Whether this contention is correct is the only issue before the court at this time.

The father’s counsel has argued orally and in briefs with persuasive skill and impressive learning in behalf of the validity of this kind of contract and court order, and very effectively in behalf of his client who happens to be not only an able and popular member of the bar of this court, but also the nephew of the distinguished Roman Catholic prelate who performed his marriage ceremony.

However, we are constrained to hold that the court does not have the right or the power to enforce the contract the mother has repudiated or the order of which she appears to be in contempt, either by imprisoning her until she sends the child back to the Catholic school or by any other means. Our study of the question has convinced us that the violated portion of the contracts and hence the order embracing same are really void. “Void” means “empty, having no legal force, ineffectual, unenforceable.” It is not the court’s function to pronounce a value judgment upon the contracts, i. e., to decide whether good or evil, right or wrong, wise or unwise, proper or improper.

The Ohio Constitution, Art. I, Sec. 7 reads as follows: ■

“All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own conscience. No person shall be compelled to attend, erect, or support any place of worship, or maintain any form of worship, against his consent; and no preference shall be given, by law, to any religious society; nor shall any interference with the rights of conscience be permitted. . . .”

The Catholic father very understandably insists upon the child’s attendance at the Catholic school because there the child is nurtured in and prepared for the Catholic form of worship. Now it seems a school must have scholars as well as dollars. Hence it must be concluded that when the father pays the child’s tuition he supports and maintains the Catholic school and the Catholic faith. And that when the mother sends the child to this school she too supports and maintains the Catholic school and the Catholic faith. Only if the school were to abandon every vestige of Catholicism would these conclusions appear to be untrue.

Regardless of what the mother assented to or solemnly promised, if the court were to compel her now, viet armis or otherwise, to keep her promise, that would appear to be compelling her to support or maintain a certain “form of worship, against her consent.” Moreover, that would be an unpermitted “interference with her rights of conscience.” And these are among the very things which no person, not even a devout communicant, may lawfully be compelled to do by any person, not even his own church — against his consent.

The Supreme Court of the United States in a celebrated case (McCollum v. Board of Education, 333 U. S. 203, 219, footnote 8), quotes Black, “Essays and Speeches,” 52 (1885): “The manifest object of the men who framed the institutions of this country was to have a State without religion and a Church without politics — that is to say, they meant that one should never be used as an engine for the purpose of the other. . . . For that reason they built up a wall of complete and perfect partition between the two.” Surely it would be regarded as using the State “as an engine for the purpose of the” Church to call upon the authority and power of the State to coerce the mother to send the child against her consent to any school extolling the tenets of any religion. It would be breaching that “wall of complete and perfect partition” erected for the benefit and protection of the Church as well as of the State.

The father “concedes that the welfare of the child is the determining factor.” But the court is not deciding the welfare issue at this time, but only the question of the court’s power to enforce the contracts and order, which of course depends upon the legal validity thereof. “A child’s interest in its temporal welfare will be protected by the law if its parents neglect to protect it; hence, it is appropriate to speak of a child’s right to its temporal welfare. On the other hand, under the mandate of separation of church and state, if the child’s' religious welfare is neglected the state may not intervene to protect it. A judge convinced that a child will die if it does not receive an immediate blood transfusion can constitutionally direct the giving of the transfusion over the parent’s objection. A judge equally convinced that the parent’s refusal to baptize his dying child will deprive the child of eternal salvation is constitutionally without power to take any legal action. It serves no useful purpose to speak of a legal right which the Constitution prohibits the state from recognizing or enforcing.” (Pfeifer, p. 354. See below.)

Just in case we have misconstrued the Constitution, and it be propounded that it doesn’t really mean what it says, we have sought enlightenment beyond the properly partisan briefs of counsel in case at bar, and believe we have found it in three collations of authorities each of which appears to be free from partisanship, bias or prejudice. At least the authors could hardly have been moved by considerations of politics (none was in public life); and certainly none had the immediate responsibility of determining the course of the spiritual salvation of a flesh and blood child; or had before him in person living parents operating powerfully to bend his views one way or the other. These authorities are collected and analyzed in the Harvard Law Review of 1916; the Yale Law Journal of 1941; and the Boston University Law Review of 1955.

The first, in the Harvard Law Review, Vol. 29, p. 485, is a much cited article by Lee M. Friedman, “Religious Education of a Child.” On page 492 he is speaking of “rival religious claims between parents or relatives over some poor child who had been made the object of religious zeal.” He goes on to say unequivocally: “No mere agreement as to the religious education of children between father and mother before or after marriage is binding and it is always open to either parent to change his mind, as it is his privilege to inculcate upon his children those religious principles which for the time being seem to him best. ... It is further pointed out that for breach of a contract of a parent concerning the religious education of a child no damages can be recovered and it cannot be enforced by a suit for specific performance.” In support of this text, the author cites seven English cases, the oldest dating back to 1852.

The next is a note in the Yale Law Journal, Vol. 50, p. 1292: “By invoking jurisdictional limitations, many American courts have raised the tacit presumption that ante-nuptial contracts possess an enforceable legal status. As a matter of general policy, however, it would seem preferable for courts unequivocally to refuse enforcement. For the American doctrine of religious freedom necessarily subsumes a corollary privilege to change religious affiliations at will. This principle, coupled with the individual parent’s duty to preserve his independent (sic) judgment with reference to the child’s religious training, would seem to negate the prior contract. Moreover, the courts’ inclination to overlook policy objections and to enforce otherwise valid contracts in the absence of express or implied legislative declarations would seem to be overcome in many jurisdictions by the terms of the religious freedom clauses of their state constitutions. In addition to the denial of power to establish an official religion, contained also in the First Amendment to the Federal Constitution, many state Bills of Rights affirm the individual’s right to worship according to his own untrammelled volition. This affirmative grant would seem to place the privilege freely to change religious affiliations— whether one’s own or those of minor natural children — among those inalienable liberties of speech and conscience which are not subject to restriction by private agreement.”

The third in the Boston University Law Review, Vol. XXXV, No. 3, p. 333, is an exhaustive, critical analysis by Leo Pfeifer of the New York Bar. In dealing with the religious training of children, the author lays down thirteen postulates. The thirteenth: “m. An agreement between parents respecting the religious upbringing of their children is without legal effect upon a court called upon to determine the child’s future religious upbringing.” (p. 360.)

The author first points out that the foregoing broad proposition is contradicted by Williston on Contracts and by the New York Court of Appeals. He then reveals that none of the authorities relied upon either by Williston or the court supports their proposition, saying: “Indeed, each is authority for the directly contrary position.” One of these authorities is Weinberger v. Van Hessen, cited by defendant-father in case at bar. The Weinberger case was decided in 1932. In 1954 the same court, the New York Court of Appeals, decided Martin v. Martin, 308 N. Y. 136; 123 N. E. 2d 813. In the later case the court upheld “the decision of the lower courts that the child’s welfare required deletion from a divorce decree of a provision, originally incorporated by reason of the parties’ ante-nuptial agreement, that the child be raised in the Catholic faith. The opinion of the court in Martin v. Martin did not state that ante-nuptial agreements on the religious upbringing are by their very nature unenforceable. It simply disregarded the agreement and decided the case on the basis of the child’s welfare.” (p. 361.)

The author then goes on: “Nevertheless, despite the perhaps ambiguous nature of the holding in Martin v. Martin, the unsupported statements in Williston and in Weinberger v. Van Hessen, and a few lower court dicta, principally in New York and probably overruled by Martin v. Martin, it is fair to suggest that the authorities are almost unanimous in refusing to accord legal effect to agreements seeking to control the religious upbringing of children.”

Among these “lower court dicta” are found the Kananack case, cited by plaintiff-mother, and the Ramon, Luck and Shearer cases, cited by defendant-father. In support of his text, the author cites the following cases: In re Butcher’s Estate, 266 Pa. 479, 109 Atl. 683 (1920); Denton v. James, 107 Kan. 729, 193 Pac. 307 (1920); In re Dixon, 254 Mo. 663, 163 S. W. 827 (1914); State, ex rel. Baker v. Bird, 253 Mo. 569, 162 S. W. 119 (1913); Brewer v. Cary, 148 Mo. App. 193, 127 S. W. 685 (1910); Boerger v. Boerger (quoted extensively by plaintiff-mother) 26 N. J. Super. 90, 97 A. 2d 419 (1943); In re Walsh’s Estate, 100 Cal. App. 2d 194, 223 P. 2d 322 (1950); In re Guardianship of Walsh, 114 Cal. App. 2d 82, 249 P. 2d 578 (1953).

The author continues (p. 362): “The indissolubility of a Catholic’s marriage does not give him a greater claim to enforce the ante-nuptial contract, because only secular grounds for dissolubility are recognized in a secular court and non-performance of an ante-nuptial agreement for religious upbringing is not such a ground whether the promisee is a Catholic or a non-Catholic. There is in any event no basis for estoppel because the promisee, whether Catholic or not, got exactly what he bargained for — a promise that the children would be brought up in his faith. He could not bargain for judicial enforcement of the promise because it was not the promisor’s to give. In the case of a Catholic party, the exaction of the promise was required in order to obtain ecclesiastical approval of the mixed marriage; the Catholic party, in all likelihood, no more expected to seek or obtain judicial enforcement of this promise than he did of the promise to love, honor and obey him. The agreement is viewed by the parties as a religious act rather than a secular one having legal consequences. The Catholic Church, which insists upon the agreement, is under no illusions to its enforceability in a secular court.” In support of the last statement, the author cites Bouscaren and Ellis, Canon Law, Text and Commentary, 517-518 (1951).

Continuing, he says (p. 363): “There are many reasons why such agreements should not be judicially enforceable. Aside from the unprovability of money damages and the impracticability of specific enforcement — the grounds most frequently stated — are the more cogent reasons set forth above for judicial non-intervention in the religious upbringing of children except where necessary to protect their temporal welfare. Whether the agreement is specifically enforced against one who has custody or is effectuated by awarding custody to someone who is of the faith specified in the agreement and who would otherwise not be given custody, the child’s temporal welfare is sacrificed. To suggest that the agreement will only be enforced if the child’s temporal welfare is not thereby prejudiced is meaningless; it is inevitable that, if an unwilling parent is forced by a court of law to rear his child in a religion which he disbelieves, the child will suffer. There is often no way to avoid visiting upon children the sins of their parents, but the courts, at least, should not be party to the injustice by enforcing the contract against a third party maleficiary. Besides, there is a strong policy in a democracy in allowing persons to worship God as their conscience now dictates, a policy that is equally applicable to teaching their children how to worship God. It would be contrary to this policy judicially to enforce a contract not to change one’s own religious beliefs or practices; and it is equally contrary to this policy judicially to enforce a contract not to change the religious upbringing of one’s children.”

We wish to make it clear that our decision in the present case is neither condonation nor condemnation of the mother’s repudiation of her solemn promise or of her violation of the court order. It is simply a holding that if the mother is to be deterred from her present course of action the dissuasion must be accomplished by means other than force. It is impossible for us to see how the State, through this or any other court, may employ the strong arm of the law to compel the mother to act contrary to her conscience in any matter pertaining to religion. It should be axiomatic that neither contract nor court order can deprive her of the right to change her mind where religion is involved. “Implicit in the American tradition of religious freedom are the concepts of voluntary entry and free exit. . . . the constitutional guarantee of religious freedom, which certainly includes freedom to change one’s religion. Few will deny that effectuation by a state agency of a church’s dogma of no-exit is offensive to American concepts of religious liberty and the separation of church and state.” (Pfeifer, supra 385, 383.)

Lest someone gain a false impression that defendant-father is an inhuman monster seeking revenge by having the mother of his child imprisoned until she keeps her promise to send the child to the Catholic school, it should be noted that both at the oral hearing and in his brief, he made it clear that he has “no present intention or desire to see the plaintiff imprisoned.” Because of his unusual closeness to his church, the words of “The Pilot” (Mar. 6, 1954), official organ of the Boston Archdiocese, seem appropriate: “. . . for Catholics their faith is their most treasured possession.” And: “. . . small wonder that they would wish to see it passed on to the coming generation as the road to their salvation as well.”

The Catholic father would be well within his rights were he to place preservation of his faith above preservation of his family. Unfortunately for him, while the former may take precedence over the latter in an ecclesiastical tribunal, no faith or religious dogma may ever take precedence over a state constitution in a state court.

Piaintiff-mother is therefore found not guilty of contempt of court, and that branch of defendant-father’s motion is denied. Exceptions are allowed defendant-father. The remaining branches of the motion may now be assigned for hearing. A journal entry may be prepared accordingly.


author: By HURD, J:

text:
    KESSLER et, Plaintiffs-Appellees, v. SMITH, Sr. et, Defendants-Appellants. SMITH, Plaintiff-Appellant, v. GLENWILLOW (Village), Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    Nos. 23794, 23797.
    Decided April 17, 1957.

      Woodle & Watchtel, for George Smith et al.
    Ralph W. Bell, Richard G. Bell, Robert R. Freda, for Village of Glen-willow.
   OPINION

By HURD, J:

These actions in equity have been appealed from the Court of Common Pleas to this court on questions of law and fact for trial de novo. Having two cases before us for consideration, for purposes of clarity and brevity, the parties herein are referred to as follows: Louis F. Kessler, et al., as Kessler, George Smith, et al., as Smith, and the Village of Glenwillow as the Village. Because the issues between the parties in the cases are substantially the same, both cases were ordered to be consolidated in the Court of Common Pleas for the purpose of trial. The trial resulted in a finding and judgment against Smith in each case, enjoining him from the use of his property for trailer park purposes.

The record shows that Smith had previously expended substantial sums of money and considerable time and effort in the purchase and development of the property for trailer park purposes and that the provisions of a zoning ordinance, as applied retrospectively, would restrict its use to residence purposes only. Further facts, briefly summarized, are as follows: In July of 1952, Smith became the owner of eight acres of land in the Village of Glenwillow fronting upon Richmond Road 265 feet in width and extending back to Tinkers Creek, a distance of approximately 2275 feet. He purchased this land for the sole purpose of establishing and developing thereon a trailer park.

The Village of Glenwillow is a non-charter municipality operating under the general laws of the State of Ohio located in the southeastern part of Cuyahoga County. It is over six square miles in area. Its population, according to the latest census, is 257 people. In 30 years, it has had an increase in population of only 42 persons and at the time of trial had a population of only 40 people per square mile.

At the time Smith purchased the property and commenced to build, the Village did not have either a building ordinance or a zoning law of any kind and there was no ordinance or law whereby a property owner within the Village was required to secure a building permit, all of which facts were ascertained by Smith before he purchased the land and commenced construction. Neither were there any restrictions by deed limiting the use of the land to any particular purpose, although the original petition of Kessler so alleged. The contract of purchase contained a provision specifically allowing the use of the property for trailer park purposes.

We find from the evidence that prior to any action of any kind by the Village looking to the enactment of a zoning ordinance, Smith, acting within his absolute rights, proceeded to construct and establish a trailer park upon the land in question. Accordingly, he secured a permit from the Department of Health of the State of Ohio approving detailed plans submitted by him for a proposed sewage treatment plant. After he purchased the land for which he expended the sum of $8700, he employed a firm of architects to survey the land and to prepare a complete set of plans for the construction of the trailer park at a cost of $1,000. He also employed a contractor to help him and his son with the work of construction for which he paid $1700. Before work could be commenced on the buildings to be erected, a well had to be dug and a roadway built over a ditch which ran across the property. For this purpose he purchased a well digger for $300 and forty feet of 48-inch reinforced concrete sewer pipe for the sum of $438.78. The sewer pipe was laid in the ditch and covered with dirt. A bulldozer was then brought in to fill the rest of the ditch and to grade the land. For this work, he paid $2,000. He then had delivered to the premises concrete block for use in the construction of a utility building, a septic tank and a filter bed. The cost of this concrete block was $1128.87. A utility building was completed prior to the passage of the zoning ordinance and the foundation had been constructed for the filter bed and the foundation and part of the walls of the septic tank had been built. Work had also been done on other structures. In addition to the foregoing, he expended $350 for gas and oil, $540 for labor, $700 for lumber, $150 for windows, and $94.55 for sand and gravel. He also purchased a dump truck for $1,000, a trencher for $1750 and a chain for same which cost $70 and a jeep high-lift for $600 to be used in the preparation and construction of the trailer park. This recitation of cost does not include a complete listing of all sums expended and the cost of work performed does not take into consideration the time and labor expended by Smith himself. Suffice it to say that all of this work was completed before the effective date of the zoning ordinance at a total cost in excess of $20,500.

Plans for the trailer camp were designed to provide space for approximately 200 trailers although it was the intention of Smith to begin operation of the camp with space for only 28 trailers and space for trailers of that number had been laid out and approaches for the use had been completed with a road between 1600 and 1700 feet in length. The septic tank was designed to be a large one sufficient to accomodate the requirements of a large trailer park. The filter bed intended to be used in connection with the water supply of the trailer park was also designed to be a large one to accommodate the number of persons who might occupy a trailer park of that size.

The zoning ordinance of the Village became effective January 5, 1953. By its terms the Village was classified into three use districts. The property of Smith, together with neighboring properties, was zoned in a use district generally identified as residential. By the terms of the ordinance, land in residence districts was not permitted to be used for trailer park purposes. The ordinance further provided that no trailer camps or house trailers would be permitted to occupy any land in any part of the Village. We find as a fact that the practical operation and effect of the zoning ordinance of the Village as applied to Smith’s land would restrict the use of the eight acres of land to the construction of one single residence.

The basic question presented is whether the zoning ordinance, as enacted retroactively, is valid and constitutional as applied to Smith and his land in view of the fact that he had expended such substantial sums in its purchase and development prior to the enactment of the ordinance.

The answer to this question involves a consideration of fundamental principles of law and equity in relation to zoning ordinances. All zoning laws and regulations must find their justification in some aspect of the police power asserted for the public welfare. Whether the power exists to forbid the development of property for a particular use is to be determined by considering its use not in the abstract but in connection with the circumstances and the locality. If the provisions of the zoning ordinance, when applied to particular premises, are found to be clearly arbitrary and unreasonable, having no substantial relationship to public health, morals or safety, the ordinance as to that particular property must fall. Euclid v. Ambler Realty Co., 272 U. S. 365, 71 L. ed. 303, 47 S. C. 114; Nectow v. City of Cambridge, 277 U. S. 183, 72 L. ed. 842, 48 S. C. 447; State, ex rel Synod of Ohio v. Joseph, 139 Oh St 229, 39 N. E. (2d) 515.

Considering the rural character of the Village, the comparatively undeveloped and sparsely settled portion of the county in which t.hig property and the Village is situated, the eight acre area of the property, the expenditure of substantial sums for purchase and development thereof, the nature and extent of such expenditure prior to the passage of the zoning ordinance, the provisions of the ordinance prohibiting Smith from the use of his property for a trailer camp and limiting its use to a single residence by retroactive legislation, cannot reasonably and truthfully be said to bear any substantial relationship to the public health, safety, welfare or morals.

It is fundamental that a zoning ordinance cannot, under the guise of police power, arbitrarily restrict the use of property to the extent of practical confiscation without just compensation.

In the case of State, ex rel Weber v. Vajner, Bldg., Commr., 92 Oh Ap 233, 108 N. E. (2d) 569 (Appeal dismissed 158 Oh St 105, 106 N. E. [2d] 642), this court declared, per Skeel, J., as set forth by syllabus two and three:

“2. To be a valid exercise of the police power of the state by a zoning ordinance, the benefits accruing to the public by virtue of the restricted use to which the property may be put must overbalance the restraint or detriment suffered by the private interests of the owner.

“3. Such restraint cannot totally prevent the owner from making some reasonable use of his property in the absence of proven necessity of the public’s interest.”

A trailer camp or park is not per se a nuisance. The use of the property for such a purpose was lawful at the time of its purchase and substantial development. At that time there was no law or ordinance which denied such use. In City of Akron v. Chapman, 160 Oh St 382, 388, 116 N. E. (2d) 697, 700, the Supreme Court declared:

“* * * The substantial value of property lies in its use. If the right of use is denied, the value of the property is annihilated and ownership is rendered a barren right. (Citing cases.)”

The ordinance in this case, passed and applied retrospectively, has the effect-of denying the use of the property in the manner in which it was developed and would be tantamount to destroying an investment of considerable substance, and this without any real or substantial benefit in the public interest. The record in these cases and the history disclosed thereby indicates clearly that the ordinance was enacted primarily to prevent the completion and operation of this trailer camp when it was discovered that alleged deed restrictions would not accomplish that purpose. The application of the ordinance to a single individual and to á particular property, although on its face, having the appearance of uniformity, is, in fact, discriminatory and consequently an unreasonable exercise of the police power, particularly in its retrospective aspects as applied to the land in question. While Smith’s business was not completely established at the time of the initiation of these proceedings in November of 1952, still there was such a substantial establishment and development thereof prior to the enactment of the ordinance that we think it comes within the protection of the due process clauses of both the Federal and State Constitutions. See City of Akron v. Chapman, supra.

From all the facts and circumstances appearing in the evidence, we find that the restraint attempted to be imposed upon Smith’s property would totally prevent him from making a reasonable use thereof for the purposes for which it was purchased and substantially developed. We find also that there is a complete absence of a proven necessity of public interest in imposing such an unwarranted restraint. The ordinance, applied retrospectively, presents an extreme case of harshness and oppression as it affects the property of one person for whom it means confiscation without compensation. Since the zoning ordinance, under such circumstances, bears no real or substantial relationship to the public health, welfare, safety or morals, we find the same to be arbitrary, unreasonable, confiscatory, and therefore, invalid as being in contravention of constitutional rights under Article I, Section 1, 16 and 19, Ohio Constitution, and Section I, Artivle XIV of the Constitution of the United States, it follows that this court, in the exercise of the historic principles of equity and justice, must enter a decree in each case, allowing the free use of the property here involved for the purpose for which it was purchased and substantially developed.

For other authorities to the same general effect see: Henle v. City of Euclid, 97 Oh Ap 258, 118 N. E. (2d) 682; Proffett v. Valley View Village, Inc., 55 O. O. 81, 123 Fed. Supp. 339; Village of Terrace Park v. Errett, 12 Fed. (2d) 240 (U. S. Circuit Court of Appeals, 6th District); 7 McQuillin, Municipal Corps., 3rd Edition 490; 37 Am. Jur. 908, Sec. 280.

Counsel for the Village have stressed and relied to a great extent upon the cases of State, ex rel., The Ohio Hair Products Co. v. Rendigs, 98 Oh St 251, 120 N. E. 836; Smith et al., v. Juillerat et al, 161 Oh St 424, 119 N. E. (2d) 611, and Marblehead Land Co. v. City of Los Angeles, 47 F. (2d) 528 (U. S. Circuit Court of Appeals, 9th District).

The Ohio Hair Products case was an original suit in mandamus instituted in the Supreme Court to compel defendant to reissue a building permit which it claimed had been revoked without authority and in violation of law. The case involved the question of the authority of a municipality to revoke by ordinance a building permit theretofore issued for the construction of a building to be used for the processing, cleaning or renovation of uncured animal hair and packing house by-products in a residential district of Cincinnati. The record shows that after the ordinance was introduced in council, it was referred to the committee on health of said council and a public hearing was had by the committee which made an investigation of and visited places of business where the buying, selling, processing and manufacturing of the hair of animals and packing house products was prosecuted. As a result of the public hearing and the investigation, the committee reported that in all such places of business, noxious odors, gases and volatile substances were emitted and upon its recommendation, the ordinance was adopted prohibiting such business in a residential district. Thereupon the council passed a resolution by which the building commissioner was ordered to rescind the permit which he had given. Council thereby declared, in effect, that the business in which the relator was about to engage was offensive and unwholesome. The court declared that under such circumstances, it could not be said that council abused its discretion or that it acted arbitrarily. The court further held that the permit which had been issued in the case never had the elements of a contract and that it was within the power of council to revoke the permit, even though the relator had expended considerable money in the purchase of land and material and had entered into certain contracts for the erection of the building. The court further held that the relator acquired no vested rights and that the permit could be revoked in the exercise of legislative power on a sub jet affecting public health or public morals. It is quite clear from an examination of the facts that the decision there rested primarily on the objection to a business which constituted a nuisance because of the emission of noxious odors and gases in a residence district. From the foregoing, it is readily apparent that the facts in that case are not analogous to the facts of the instant case.

The Juillerat case involved a situation where a township zoning resolution forbade strip mining in Poland Township, Mahoning County. Prior to the adoption of the zoning ordinance, the coal company applied for and received a license to strip mine coal and posted a bond covering five acres of land under lease. The petition filed by the plaintiffs alleged that the proposed strip mining operations of the coal company would constitute a nuisance and that a township zoning law which would make strip mining in that area unlawful was awaiting submission to the electorate. At the time plaintiffs’ action was commenced, the defendants had drilled a hole for testing purposes but had removed no coal from the property before the zoning ordinance became effective. At the trial of the case, the president of the company testified upon cross-examination, as appears at page 431 of the court’s opinion, that so far they had been testing only and if the tests proved inadequate or unsatisfactory, they would not strip mine even if permitted by the court to do so. In answer to the question “To date you haven’t even gotten to the place where you have removed any coal for testing purposes,” he answered “No.” The Supreme Court held, as shown by the syllabus, in paragraph four:

“Where no substantial nonconforming use is made of property even though such use is contemplated and money is expended in preliminary work to that end, a property owner acquires no vested right to such use and is deprived of none by the operation of a valid zoning ordinance denying the right to proceed with his intended use of the property.”

It is fundamental that the syllabus must be read in the light of the facts of the case. From the facts, it must be concluded that there was no actual or substantial construction for a specific “use” but that the work was preliminary and of a testing nature only. The facts of that case are clearly distinguishable from the instant case.

In Marblehead Land Company et al, v. City of Los Angeles, supra, it was held, as appears by headnote 11, that a zoning ordinance declaring oil well drilling operations illegal within the residence district which repealed a prior ordinance excepting such land from such district, was valid and not arbitrary or unreasonable. In that case, also, the work which had been done was preliminary and for the purpose of testing as to the existence of oil in the area in question. It is unnecessary, we think, to dwell upon the distinction between the facts of that case and the instant case.

In this connection we have examined carefully the recent opinion of the Court of Appeals of the Second District (Franklin County) in the case of Meuser v. Smith, 74 Abs 417, decided March 16, 1956. In that case, the appellees, after making a careful survey, purchased for the purposes of a trailer camp a tract of land consisting of eleven acres and commenced the development of the property which at that time was free •from any zoning regulations. Plans were prepared and construction work was started upon a utility building and footings and foundation for same were completed in addition to other work. Thereafter, the tract was zoned for residential and agricultural purposes and injunction proceedings were commenced to restrain the completion of the trailer camp. The court held, as appears by paragraph one of the syllabus:

“Where, prior to the enactment of a zoning ordinance defendant acquires land, has plans and specifications prepared, secures the necessary permits, begins excavation preliminary to construction of a utility building, the construction of footer and the construction of a foundation to ground level, all looking to the completion and operation of a trailer camp, he has established a nonconforming use within the meaning of the zoning laws even though such trailer camp was neither completed nor in use at the time of the enactment of the zoning law in question.”

However, while we recognize the factual similarity of that case, our decision in the instant case is not predicated upon the grounds therein stated but rests upon what we deem to be broader principles of equity, particularly as it relates to the laws of zoning and retrospective legislation resulting in arbitrary and unreasonable restraints as applied to particular persons and property.

For the reasons stated, the injunction in favor of the plaintiff Smith against the Village of Glenwillow in Case No. 23797 will be granted as prayed for and the defendant Village enjoined from obstructing or interfering with plaintiff in the development and use of his land for a trailer park and the prayer of the petition of Kessler in Case No. 23794 will be denied. A journal entry may be drawn accordingly in conformity with the decrees herein enunciated. Exceptions to all proper parties. Order see journal.

SKEEL, PJ, KOVACHY, J, concur.


author: Per CURIAM. By NICHOLS, J.

text:
    STOICH, Plaintiff-Appellant, v. TRUSCON STEEL DIVISION OF REPUBLIC STEEL CORPORATION et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3859.
    Decided November 1, 1956.

      Traxler & Beil, Youngstown, for plaintiff-appellant.
    Harrington, Huxley & Smith, Youngstown, for defendant-appellee, Truscon Steel Division of Republic Steel Corporation.
    C. William O’Neill, Atty. Geni., James L. Young, Asst. Atty. Geni., Columbus, for administrator-appellee.
   OPINION

Per CURIAM.

In his petition filed on appeal in the court of common pleas from an order of the Industrial Commission of Ohio finding that he was not permanently and totally disabled as a direct and proximate result of an injury received in the course of his employment with Truscon Steel, Division of Republic Steel Corporation, a self-insurer under the Workmen’s Compensation Act of Ohio, plaintiff alleged:—

“* * * that on October 30, 1946, while performing his regular work for the defendant, Truscon Steel Division of Republic Steel Corporation, he sustained an injury when he fell from a truck a distance of about 2% feet, sustaining a fracture of the right leg; that he was paid the maximum compensation for temporary total disability and the maximum compensation for temporary partial disability and the Industrial Commission thereupon found the plaintiff was not permanently and totally disabled as a result of the injury. This finding was made by the Industrial Commission after his claim was processed through the various stages before said Commission and finally disallowed on November 14, 1955. A copy of this finding was mailed to the plaintiff under date of December 8, 1955.”

The trial judge sustained defendants’ demurrers to plaintiff’s petition filed in that court and entered judgment accordingly.

In his journal entry ruling on defendants’ demurrer the court held:—

“The court finds that plaintiff’s injury occurred on October 30, 1946 and the Workmens Compensation Law then in effect is the measure of his substantive right to participate in the Workmen’s Compensation Fund. Plaintiff was paid the maximum compensation for temporary total and temporary partial disability. On November 14, 1955, the Industrial Commission denied his right to permanent and total disability, from which decision he now appeals. Sec. 4123.51.9 R. C., effective October 5, 1955, provides an appeal to this court in any injury case other than a decision to the extent of disability; and provides further that its terms shall apply to all decisions of the Commission after its effective date. The question here involves not plaintiff’s substantial right to compensation, but the extent of his remedy to enforce that right. Sec. 4123.51.9 R. C., clearly excepts decisions as to the extent of disability from the right of appeal.”

Plaintiff appealed to this court from the judgment of the court, of common pleas on the ground that the judgment of that court is contrary to law.

Plaintiff contends that:—

“* * * Sec. 4123.51.9 R. C., effective October 5, 1955, is unconstitutional so far as the plaintiff is concerned, and cannot be retroactive in nature as it involves substantive rights.”

It is conceded that plaintiff sustained an accidental injury on October 30, 1946, while employed by his employer defendant, Truscon Steel Division of Republic Steel Corporation, and was paid the maximum amount of total and temporary partial compensation.

The demurrers of both defendants were properly sustained on the urged grounds that plaintiff appealed on the “extent of the liability” which is specifically prohibited by the provisions of §4123.51.9 R. C., which as applicable to the facts of the case we review provides:—

“The claimant * * * may appeal a decision of the industrial commission in any injury case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted. * * *.”

Plaintiff has been deprived of no substantive right by §4123.51.9 R. C., as urged. Only á procedural remedial right was affected by that section of the Revised Code, which the legislature clearly had a. right to change. The rights to compensation generally to death benefits and certain specified amounts of compensation are substantive rights but the remedial procedures are not substantive rights.

In the case of State of Ohio, ex rel. Michaels v. Richard Morse, etc., No. 5372, Franklin County Court of Appeals (75 Abs 536, Affirmed 165 Oh St 599, OS No. 34765), it is said:—

“Although Article II, Chapter 28, Ohio Constitution, has application to laws disturbing accrued, substantive rights, it has no application to laws of a remedial nature providing rules of practice, course of procedure or methods of review. * * *

“The Legislature has complete control over the remedies afforded to parties in the courts of Ohio, and it is a fundamental principle of law that an individual may not acquire a vested right in a remedy or any part of it — that is, there is no right in a particular remedy. * * *.”

Sec. 4123.51.9 R. C., is a remedial statute and may operate retroactively.

In State, ex rel. Slaughter v. Industrial Commission, 132 Oh St 537, it is said:—

“Section 28, Article II, Ohio Constitution, prohibiting the passage of retroactive laws, has application to laws disturbing accrued substantive rights, and has no reference to laws of a remedial nature providing rules of practice, courses of procedure or methods of review.”

A clear incompatibility between a statute and the Constitution must exist before a court is justified in declaring such statute unconstitutional. Xenia v. Schmidt, 101 Oh St 437; 10 O. Jur. (2nd) 248, 254.

The judgment of the court of common pleas is affirmed.

PHILLIPS, PJ, GRIFFITH, J, concur.

NICHOLS, J, dissents.

DISSENTING OPINION

By NICHOLS, J.

The “petition” filed by the appellant in the court of common pleas was not filed therein until after the effective date of §4123.51.9 R. C.

The allegations of such “petition” clearly show that appellant’s claim was not denied by the Commission upon rehearing within sixty days prior to the effective date of §4123.51.9 R. C., it being specifically stated in the “petition” that the claim was finally disallowed by the Commission on November 14, 1955.

The last paragraph of §4123.51.9 R. C., reads as follows:—

“An action pending in the court of common pleas on a petition under §4123.51 R. C., filed therein prior to said effective date, and a claim which has been denied by the commission upon rehearing under §4123.51 R. C., within sixty days prior to the effective date of this act shall not be affected by the repeal of said section.”

Such paragraph of the section clearly indicates that plaintiff’s right of appeal at the date his “petition” was filed in the common pleas court was limited to and governed by §4123.51.9 R. C., which section does not provide for the filing of a “petition” in the common pleas court but merely the filing of a notice of appeal, the language of the section being:—

“The claimant * * * may appeal á decision of the industrial commission in any injury case, other than a decision as to the extent of disability, to the court of common pleas of the county in which the injury was inflicted * * *. Notice of such appeal shall be filed by the appellant with the commission and the court of common pleas within sixty days after the date of mailing of the decision of the commission appealed from * * *.

“Notice of appeal shall state the names of the claimant and the employer, the number of the claim, the date of the decision appealed from and the fact that the appellant appeals therefrom.”

Doubtless the filing of the petition and the issuing and service of such summonses, as was done in this case, would serve the purpose of the provisions for notice of appeal.

There seems to be no provision for the filing of a demurrer to the notice of appeal provided for by the section.

It is my conclusion that the common pleas court was in error in sustaining the demurrer filed to the notice of appeal (which was denominated by the employee as a “petition”), and that any objections to the right of appeal must be made “in accordance with the rules of civil procedure.”

I find no rule of civil procedure which contemplates a demurrer to a notice of appeal, but if such procedure is authorized the notice of appeal contained every allegation of fact required by the section.

When the question properly arises in this case according to the rules of civil procedure it will be necessary to determine whether the words of the §4123.51.9 R. C., to-wit, “other than a decision as to the extent of disability” presents an insurmountable barrier to the right of this claimant to appeal when the specific language of the commission denying the employee’s claim for compensation for permanent and total disability was clearly based upon the fact that such total and permanent disability “was not the result of the injury.”

It appears to me that in this instance the commission has never determined “the extent of disability” due to the injury but has merely found that plaintiff’s disability even though permanent is not due to his injury. Such finding has always constituted a final appealable order, and I find no reason to believe that the legislature intended by the language of the new act to depart from the settled law in that respect and thereby deprive the claimant of the due process of law contemplated by the governing compensation cases.


author: By BELL, J.

text:
    PEARCE, MAYER & GREER, a Partnership, etc., Plaintiff, v. WILLIAMS et, Defendants.
    Common Pleas Court, Hamilton County.
    No. A-156785.
    Decided December 6, 1957.
    Kyte, Conlan, Meekin & Wulsin, Fred S. Kotte, Jr., Cohen, Baron, Druffel & Hogan, for the demurrer.
    Goodman & Goodman, contra.
   OPINION

By BELL, J.

To the petition the defendants filed a demurrer upon six separate grounds, the first two of which are stated as follows:

(a) “The petition does not set forth facts which show a cause of action.”

(b) “Plaintiff does not have legal capacity to sue.”

These two grounds being dispositive of the case, the other four will be passed unnoticed.

In Ohio the Legislature has provided a comprehensive and understandable chapter with reference to the licensing and conduct of real estate brokers and salesmen, to be found in Chapter 4735 R. C. These statutes were passed for the protection of the public, in an attempt to secure honest and fair dealing between the broker, his salesmen and the public.

Under the Ohio statute, before anyone can become a real estate broker, it is provided that an examination must be passed; and there are various other qualifications which must be met, including the giving of a bond by the person securing a license, and that he will honestly, and without fraud or deception, deal with his customers.

Prior to 1955, §4735.20 R. C., read as follows:

“Illegal commission; revocation of licenses. No licensed real estate broker shall pay a commission for performing any of the acts specified in §4735.01 R. C., to any person who is not a licensed real estate broker or a licensed real estate salesman. Violation of this section shall be a cause of suspension, revocation, or refusal to renew a license in accordance with the proceedings provided for in §§4735.15 to 4735.18, inclusive, R. C. The revocation of a broker’s license shall automatically suspend every real estate salesman’s license granted to any person by virtue of his association with the broker whose license has been revoked, pending a change of broker and the issuance of a new license. Such new license shall be issued without charges, if granted during the same year in which the original license was granted.”

Sec. 4735.21 R. C., prior to 1955 read as follows:

“Right of action not to accrue without proof of license. No right of action shall accrue to any person, partnership, association, or corporation for the collection of compensation for the performance of the acts mentioned in §4735.01 R. C., without alleging and proving that such person, partnership, association, or corporation was licensed as a real estate broker or a real estate salesman, at the time the cause of action arose.”

In 1955 those two sections of the Revised Code were amended to read as follows:

“Sec. 4735.20 R. C. Illegal commissions; interstate transactions; penalty. No licensed real estate broker shall pay a commission for performing any of the acts specified in §4735.01 R. C., to any person who is not a licensed real estate broker or a licensed real estate salesman. Provided that a licensed broker may pay a commission to a licensed broker of another state and may receive a commission from a licensed broker of another state. Violation of this section shall be a cause of suspension, revocation, or refusal to renew a license in accordance with the proceedings provided for in §§4735.15 to 4735.18, inclusive, R. C. The revocation of a broker’s license shall automatically suspend every real estate salesman’s license granted to any person by virtue of his association with the broker whose license has been revoked, pending a change of broker and the issuance of a new license. Such new license shall be issued without charges, if granted during the same year in which the original license was granted.” (Emphasis added.)

“Sec. 4735.21 R. C. Proof for right of action; limitations on real estate salesmen. No right of action shall accrue to any person, partnership, association, or corporation for the collection of compensation for the performance of the acts mentioned in §4735.01 R. C., without alleging and proving that such person, partnership, association, or corporation was licensed as a real estate broker. Nothing contained in this section shall prevent a right of action from accruing after the expiration of a real estate license if the act giving rise to the cause of action was performed by a licensee prior to such expiration.

“No real estate salesman shall collect any money in connection with any real estate brokerage transaction, whether as a commission, deposit, payment, rental, or otherwise, except in the name of and with the consent of the licensed real estate broker under whom he is licensed. Nor shall any real estate salesman commence or maintain any action for a commission or other compensation in connection with a real estate brokerage transaction, against any person except a person licensed as a real estate broker under whom he is licensed as a salesman at the time the cause of action arose.”

Amended §4735.20 R. C., gives rise to the instant controversy.

It is urged by the plaintiff that by virtue of the amendment of §4735.20 R. C., it has a right to maintain this action, and it is urged with equal vigor on the part of the defendants that amended §4735.20 R. C., gives no such right.

In passing it should be pointed out that the petition is defective in certain respects which would require the sustaining of this demurrer, but those defects could be readily remedied by the filing of an amended petition, which would leave the dispositive question undecided.

The court therefore is going to decide the case without reference to those defects in the petition.

The real question presented is whether or not, either by the language used in amended §4753.20 R. C., or any fair interpretation of that language, a real estate broker of a foreign state (not authorized to do business in Ohio), can under any circumstance, come into Ohio and maintain an action for a commission claimed for the sale of Ohio real estate, against the Ohio owners thereof.

This is a question of first impression so far as counsel or the court has been able to discover.

Prior to the amendment of §4735.20 R. C., an Ohio licensed real estate broker could not pay any part of a commission to anyone except another Ohio licensed broker or a licensed salesman, and to pay a part of a commission to a real estate broker licensed under a state other than Ohio was a violation of the law subject to suspension, revocation, or refusal to renew the license of the Ohio broker, as well as the criminal penalty provided in §4735.99 R. C.

As I read and construe Chapter 4735 R. C., prior to the amendments of §§4755.20 and 4735.21 R. C., no person could bring an action to collect a commission or fee involving the title to real estate, or any interest therein, unless that person was a real estate broker licensed under the law of Ohio. Of that proposition there can be no doubt, and the strictness of the Ohio courts in the interpretation of those sections of the General (now Revised) Code is clearly evidenced by two decisions of Ohio Courts, to wit: S. P. Stanson, Inc., v. McDonald, et al, 147 Oh St 191 and DeMetre v. Savas, et al, 93 Oh Ap 367.

Hence there can be no question that prior to the amendment of §4735.20 R. C., the plaintiff in the instant case would have had no standing in the courts of Ohio, and could not have maintained his suit.

This brings us to the ultimate and final dispositive question, which may be set forth thus: Did the General Assembly, by the amendment of §4735.20 R. C., grant any right or authority to a real estate broker not licensed by Ohio, to maintain an action for a commission against any Ohio property owner?

The proviso contained in §4735.20 R. C., reads as follows:

“Provided that a licensed broker may pay a commission to a licensed broker of another state, and may receive a commission from a licensed broker of another state.”

There is nothing in that proviso which even suggests that authority is thereby granted to a real estate broker licensed by a state other than Ohio, to come into the courts of Ohio and maintain an action against the Ohio owners of real estate. That statute, as the court reads and construes it, makes provision for the payment of fees by an Ohio licensed broker to a licensed broker of another state. It is purely a provision dealing with the rights and authority of brokers inter sese.

Amended §4735.21 R. C.. became effective on the same day as amended §4735.20 R. C. By the amendment of §4735.21 R. C., a real estate salesman is specifically prohibited from commencing or maintaining any action for a commission or other compensation in connection with a real estate brokerage transaction, against any person except a person licensed as a real estate broker under whom he is licensed.

It does not seem consistent to say that the General Assembly would amend two sections of the Code (effective the same day), and by one amendment grant a right to a real estate broker licensed by a state other than Ohio, and by the other amendment prohibit an Ohio real estate salesman from commencing an action which could be commenced by a real estate broker not licensed in Ohio.

The conclusion is inescapable that no licensed broker of any other state may maintain an action against an Ohio real estate owner.

From what has been said, the court concludes that the plaintiff does not possess the legal capacity to maintain this action; hence he cannot file a petition which would state a cause of action.

Being firmly of the opinion that this petition cannot be amended to state a cause of action, the demurrer will be sustained on grounds “a” and “b,” and the petition dismissed.

Demurrer sustained and petition dismissed.


author: By CECIL, District Judge.

text:
    STIEFEL FEED COMPANY, Plaintiff, v. AEROVENT FAN COMPANY, Defendant.
    United States District Court S. D. Ohio, W. D., at Dayton.
    No. 1670.
    Decided March 30, 1956.
    Rothberg, Callmeyer & Doermer, Fort Wayne, Ind., Wasserman & Talbot, Dayton, for plaintiff.-
    Hugh H. Altick, Dayton, Robert S. Miller, Troy, for defendant.
   OPINION

By CECIL, District Judge.

In the early Spring of 1952, and for some time prior thereto, Harold Brown was employed by the Mid-West Grain Company of Fort Wayne, Indiana. At that time this company was producing a food with a corn-oil-meal and blackstrap molasses content.

In April, 1952, the Mid-West company went into bankruptcy and Mr. Brown was out of employment. He had been in the elevator and feed business for a number of years and had developed an interest in producing a feed made of approximately 60% blackstrap molasses and 40% corn-oil-meal. Mr. Brown had particularly in mind a feed known as Oma-Las, manufactured by Vilactos Laboratories of Des Moines, Iowa. This feed was light and fluffy and had a pleasant aroma. Mr. Brown desired to duplicate this as nearly as possible.

In May of 1952, he met Mr. Joseph L. Stiefel. Mr. Stiefel operated an elevator under the name of Stiefel Grain Company of Syracuse, Incorporated. Mr. Brown interested Mr. Stiefel in his project and they entered into an agreement to manufacture a corn-oil-meal and blackstrap molasses feed as nearly like Oma-Las as possible. They first contacted a Mr. Robert Reese of the Indiana Grain and Machinery Company, with reference to equipment required for their project. It was recognized that a dryer or dehydrating machine would be necessary and Mr. Reese, not having such equipment, Mr. Joseph Shape, of the Sidney Grain Machinery Company, was next contacted. This first contact was made at Syracuse. Subsequent to this, Mr. Brown and Mr. Stiefel went to Sidney and met Mr. Shape. Mr. Shape introduced them to Mr. Carl Slagetter, Plant Superintendent of Sidney Grain Machinery Company.

They discussed their problem with Mr. Slagetter and he advised them that Mr. Chester Culp, of Aerovent Fan Company in Piqua, knew a great deal about dryers and dehydrating machines. This was June 6, 1952. On the afternoon of that day, Mr. Slagetter, Mr. Shape, Mr. Brown and Mr. Stiefel went to Piqua to see Mr. Culp. They entered the Engineering Building of the Aerovent Fan Company and Mr. Slagetter introduced the other men to Mr. Culp.

The problem was discussed with Mr. Culp and he stated that he was not familiar with the drying of molasses. Mr. Brown said “Well, that is nothing to be alarmed about, we don’t either.” Mr. Culp told about drying broom straws at a plant in Springfield, Ohio, and drying grains and hay. (R. p. 440.) On this occasion Mr. Culp explained to the men present a machine known as “Star Drier” which he had invented. He showed them this machine and demonstrated its operation. It was agreed here that Mr. Culp would pick up Mr. Shape in Sidney the next day, June 7, and go to Syracuse, Indiana, to look over the elevator of Stiefel Grain Company. This was done and Mr. Culp made measurements and figured out approximate locations of the different pieces of equipment. He agreed to draw and submit some plans for the installation. This was later done.

In the discussions either at Piqua on June 6, or at Syracuse on June 7, a question arose as to insurance. As a result of this discussion, Mr. Culp, Mr. Brown and Mr. Stiefel went to Chicago on June 19 to see a representative of the insurance company. They had a conference on June 20, with Mr. Parks, a representative of the insurance company and an arrangement was worked out whereby the dryer could be in-installed in the basement of the elevator. While consulting with the insurance company, they were met by Mr. Knowland Mitchell, Sales Manager of Aerovent Fan <& Equipment, Inc., of Lansing, Mich. They later took Mr. Mitchell to the airport from whence he returned to Lansing. Following this, Mr. Shape contacted Paul L. Myers, a millwright, who was employed to make the installation in the elevator.

On June 26, Mr. Brown, Mr. Stiefel, Mr. Myers and Joseph Hunt went to Piqua and again saw Mr. Culp. The record is not clear as to just where or how the dryer was ordered. Mr. Stiefel indicates (R. p. 193) that it was purchased on the night of June 26, at Piqua. On this occasion Mr. Culp was met at the hotel after factory closing hours and he went with the other men to the factory, opened it up and let them in. Mr. Stiefel says (R. p. 193) “As I see it, the fan was ordered that night for delivery as soon as we were ready to install it.” It seems that the purchase of the dryer was more or less implied from the beginning of the negotiations and that there never was a written purchase order given or a definite contract, either oral or written, made.

The installation by Mr. Myers and his crew was begun about the end of June and completed on or about August 24. During the progress of this installation, Mr. Culp wrote to Minneapolis-Honeywell Company to arrange for thermostatic controls in accordance with the requirements of the insurance company. These controls involved complicated wiring and during the installation, Mr. Culp sent Marion Free to Syracuse to supervise the installation of the wiring. On August 15, Mr. Culp, and Mr. Free left Piqua with the “Star Drier” in question. It was delivered at Syracuse on August 16, and Mr. Culp and Mr. Free assisted in placing it in the basement where it was to be installed. The plant was put in operation on August 24 and utterly failed to produce the desired results. The day following the unsuccessful operation of the plant, Mr. Culp went to Syracuse and following this, he met Mr. Stiefel in Sidney on August 27.

When Mr. Brown and Mr. Stiefel met Mr. Culp on June 6, they informed him that they were planning to form a corporation to be called “Stiefel Feed Company, Inc.,” for the purpose of manufacturing a feed product. The articles of incorporation for this company were issued July 8, 1952. The directors’ meeting and election of officers was July 24, 1952.

The only written indication of sale is an invoice of Aerovent Fan & Equipment, Inc., of Lansing, Michigan, dated September 19, 1952. This invoice has been offered in evidence as plaintiff’s Exhibit 9. It is directed to “Stiefel Grain Company, Syracuse, Indiana,” and shows the order date as August 4; the date shipped, August 15, August 29 and September 19. Under the heading: “Salesman” are listed Stewart Supply Co., George Rolfes and Chester Culp. Under the heading “Shipped Via” is “Delivery by Culp, Expressways’ Inc., and Railway Express.” The amount of the invoice is $2,200.03, and it is admitted that it has never been paid.

The plaintiff, Stiefel Feed Company, Inc., filed an amended complaint, by which it seeks to recover from Aerovent Fan Company, Inc., defendant, the sum of approximately $49,000 for breach of warranties.

It is claimed by plaintiff that the defendant warranted that the dryer would not only dry the molasses, but would cause it to come out as a dry, fluffy product like Oma-Las. The defendant claims that Mr. Culp did not in fact make any such warranties and that if he did make them, it was not within the scope of his authority to do so.

It is conceded that none of the parties knew how to produce the desired result. The process by which Oma-Las, the only known product of its kind, was manufactured, was unknown. This process was apparently a well-guarded secret. Mr. Reese offered to work his way into the plant and find out, but this was not permitted by Mr. Brown. The officers and management of the defendant company would undoubtedly have been greatly shocked had they known or realized that their chief engineer was conducting negotiations which would commit the company to guarantee the result sought by plaintiff. This was an experiment in which Mr. Culp was trying to be of assistance. He may have been unjustifiably enthusiastic in his hopes.

The plaintiff seeks to hold the defendant on the basis of the acts and conduct of its Chief Engineer, Mr. Culp. The agent cannot bind the company by holding himself out to have power and authority which he does not have. It would be different if the company itself held the agent out to have such power and authority. Here, Mr. Stiefel and Mr. Brown were introduced to Mr. Culp through the Plant Superintendent of the Sidney Grain Machinery Company. They did not enter the defendant company through its executive offices and were not introduced to Mr. Culp through any executive officers of the company. Had they come to the management and stated their problem and then by them been referred to Mr. Culp as a man who might solve it, the company would not be in a position to deny Mr. Culp’s authority. As it was, the plaintiff attempts to “lift itself by its own bootstraps.”

The court finds that Mr. Culp was without authority to bind the defendant company to warrant that the dryer would produce the result which plaintiff sought, or which it claims the defendant warranted.

The defendant seeks by counter-claim to recover the cost of the dryer. The plaintiff claims that the defendant cannot affirm the sale and deny the conditions under which it was sold. The court would agree with this logic.

The court has read the entire record with a view of attempting to establish just what commitments or statements were made by Mr. Culp. The evidence of what was said at the various conferences in which Mr. Culp, Mr. Brown and Mr. Stiefel were present, is highly conflicting. The court must conclude from this evidence that the plaintiff has failed to establish by a preponderance of the evidence that Mr. Culp guaranteed a manufacturing process which would produce the result which plaintiff sought to achieve. The plaintiff purchased a dryer which it had installed as part of a manufacturing process.

The plaintiff claims that its transactions with the defendant comes within Subdivision (A), §1315,16 R. C. This section reads as follows:

“(A) When the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, and it appears that the buyer relies on the seller’s skill or judgment, whether he is the grower or manufacturer or not, there is an implied warranty that the goods shall be reasonably fit for such purpose.”

The court is of the opinion that the plaintiff cannot go to the defendant, state a result that it hopes to accomplish through a manufacturing process, buy a piece of standard stock equipment made by the defendant and then hold the defendant liable for all damages that flow from the failure of the equipment to function in the manufacturing process as was hoped for by the plaintiff. It cannot be said that the plaintiff relied on the skill and judgment of Mr. Culp when admittedly, no one knew how to achieve the end result. The process was in a highly experimental stage. Mr. Culp said from the outset he knew nothing about drying molasses. He knew he had a potent dryer. Mr. Stiefel and Mr. Brown saw it operate and they believed it would accomplish their purpose.

The defendant claims that Subdivision (D) of the above section is. applicable. This section reads as follows:

“(D) In the case of a contract to sell or a sale of a specified article under its patent or other trade name, there is no implied warranty as to its fitness for any particular purpose.”

In Seitz v. Brewers’ Refrigerating Machine Co., 141 U. S., 510, at page 518, 12 S. Ct., 46, at page 48, 35 L. Ed., 837, the rule is stated, as follows:

“The rule invoked is that where a manufacturer contracts to supply an article which he manufactures, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment of the manufacturer, the law implies a promise or undertaking on his part that the article so manufactured and sold by him for a specific purpose, and to be used in a particular way, is reasonably fit and proper for the purpose for which he professes to make it, and for which it is known to be required; but it is also the rule, as expressed in the text-books and sustained by authority, that where a known, described and definite article is ordered of a manufacturer, although it is stated by the purchaser to be required for a particular purpose, still, if the known, described and definite thing be actually supplied, there is no warranty that it shall answer the particular purpose intended by the buyer.”

The rule is also well stated in Davis Calyx Drill Co. v. Mallory, 8 Cir., 137 F., 332. At page 334 of 137 F., it is stated:

“But no implied warranty that a machine, tool or article is suitable to accomplish a particular purpose or to do a specific work arises where the vendor orders of the manufacturer, or purchases of the dealer, a specific, described, or definite machine, tool, or article, although the vendor knows the purpose or work which the purchaser intends to accomplish with it, and assures him that it will effect it. Such an assurance is but the expression of an opinion, when it is followed by a written contract, complete in itself, which is silent upon the subject. The extent of the implied warranty in such a case is that the machine, tool, or article shall correspond with the description or exemplar, and that it shall be suitable to perform the ordinary work which the described machine is made to do.”

This case quotes an apt illustration which is enlightening and explanatory, given by Maule, J., in Keates v. Cadogan, 2 Eng. Law & Eq., Rep., 320, 10 C. B., 591. This is as follows:

“If a man says to another, ‘Sell me a horse fit to carry me,’ and the other sells a horse which it knows to be unfit to ride, he may be liable for the consequences; but if he says, ‘Sell me that gray horse to ride,’ and the other sells it, knowing that the former will not be able to ride it, that would not make him liable.”

The last paragraph of the opinion in Dunbar Bros. Co. v. Consolidated Iron-Steel Mfg. Co., 2 Cir., 23 F. (2d), 420, is apropos to the case at bar.

“Accepting the facts as found below, and having due regard for the custom of the trade, as the parties must in their ordinary business understanding, we hold there was no implied warranty of suitability of the springs to withstand breakage while used in plaintiff’s locks, but rather that the defendant was co-operating in solving the problem of the plain.tiff in securing an unbreakable spring in manufacturing its product. For failure to successfully solve this problem, no liability may be imposed upon the defendant.”

The court is of the opinion that the plaintiff is not entitled to recover, that its amended complaint should be dismissed and judgment rendered in favor of the defendant on said amended complaint.

The court is further of the opinion that the defendant is not entitled to recover on its counterclaim. The defendant is not the proper party in interest to recover for this sale. The dryer was sold by Aerovent Fan & Equipment, Inc., of Lansing, Mich., as heretofore stated. The evidence throughout shows that Aerovent Fan & Equipment, Inc., is a separate and distinct corporation from the defendant. This distinction is affirmed over and over throughout all of the testimony and it is repeatedly stated that the defendant company made no sale, that all sales were made through Aerovent Fan & Equipment, Inc.

The court considers that the findings of fact and conclusions of law stated herein are sufficient to comply with the requirements of Rule 52, Fed. Rules Civ. Proc. 28 U. S. C. A.

An order of judgment may be drawn in accordance with the rulings herein made.