text:
    ST. CROIX MFG. CO. v. AETNA CAS. & SURETY CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8304.
    Decided Mar. 26, 1928.
    Middleton, P. J., and Mauek, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    279a — CONFLICT OF LAWS — 1139. Surety Bonds.
    Where contractor’s bond is executed in Pennsylvania to secure performance of contract in that state, Pennsylvania laws governing liability of surety will apply. Surety’s liability could not be enlarged by fact that principal made engagement outside state of performance.
    Error to Common Pleas.
    Judgment affirmed.
    Turney & Sipe, Cleveland, for St. Croix Mfg. Co.
    Squire, Sanders & Dempsey, Cleveland, for Surety Co.
   FULL TEXT.

MAUCK, J.

The Moore and Lamb Construction Company, of Youngstown, Ohio, entered into a contract for the construction of a school building at Woodlawn, Pennsylvania, and gave as surety for the performance of the contract The Aetna Casualty and Surety Company. One of the terms of the bond was that the principal

“shall fully re-imburse and repay the owner all outlay and expenses which the owner may incur in making good any such default, and shall pay all persons who have contracts directly with the principal for labor or materials.”

The St. Croix Manufacturing Company claims to have had a contract with the construction company under which it furnished materials for the work mentioned and alleges that the principal has not paid for the same, and in this action recovery was sought from the surety. To a petition reciting these facts the defendant answered, admitting the execution of the bond but alleging that the bond was executed in the State of Pennsylvania and was to be performed in that state, and that under the laws of Pennsylvania the surety is not liable to respond to the plaintiff’s claim. The reply denies all the allegations of the answer inconsistent with the plaintiff’s right of recovery.

Trial was had to Judge Walther of the Court of Common Pleas, a jury being waived. The finding and judgment were for the defendant. It is now sought to reverse that judgment.

The record shows that the construction com-1 pany made its application to the surety com-] pany in this state but it shows further that the 5 desired bond was granted and issued in the¡J State of Pennsylvania. The bond itself recites) that the contract which the surety undertakes to see performed is to be wholly performed ini the State of Pennsylvania. !

In Ohio a bond containing the provision quoted would, of course, inure to the benefit of any material man who might be so associated with the improvement as to be entitled to a mechanic’s lien in case the structure were privately owned. Indemnity Company v. Day, 114 OS. 58. The plaintiff in this case stood in that relationship and would under the laws of this state have a right of action on the bond.

The bond was not, however, an Ohio instrument. It was executed in Pennsylvania to secure the performance of a contract in that state. The sub-contract upon which the rights of the plaintiff as against the principal arose was, to be sure, entered into outside the State of Pennsylvania but the contract fixing the surety’s liability was wholly a Pennsylvania instrument, and that liability fixed by the surety’s signature could not thereafter have been enlarged by the mere fact that the principal made engagements outside the state of performance. Heaton v. Eldridge & Higgins, 56 OS. 87.

The law of Pennsylvania was pleaded and proved as a fact in this case. It is clearly shown that under the law of that state the bond in question does not run in favor of a material man contracting with the principal.

The judgment of the learned trial court was right.

(Middleton, P. J., concurs.)


source: Caselaw Access Project

author: WASHBURN, P. J.

license: Public Domain

text:
    NATIONAL HOLDING CO. v. ORAM et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1437.
    Decided June 1, 1928.
    First Publication of This Opinion.
    Syllabus by The Court.
    419. DOWER — 615. Husband and Wife. 708. ' Leases — 997. Real Estate.
    1. If a husband’s estate is dependent upon a condition subsequent, a breach of the condition which operates to terminate his estate, operates also to terminate the inchoate right of dower of his wife.
    2. Where a husband’s estate as lessee, under a 99 year lease, renewable forever, is subject to forfeiture by reason of his failure to comply with the terms of the lease, and he agrees to a forfeiture of his estate and surrenders the same in consideration of being relieved of the burdens of the lease, and. the transaction is free from fraud or collusion, his wife’s inchoate right of dower in said estate is thereby terminated.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Slabaugh, Seiberling, Huber & Guinther, Akron, for Holding Go.
    Carson, Moore & Howes, Akron, for Oram et.
   FULL TEXT.

WASHBURN, P. J.

The plaintiff leased certain premises to Samuel Oram for a term of ninety-nine years, renewable forever, and delivered possession to said lessee.

Said estate was granted upon condition that if said lessee failed to comply with the terms of said lease, it should become void and of no effect and the estate granted thereby should be forfeited to the lessor, at the option of the lessor.

Upon the vesting of the estate created by said lease, the wife of Samuel Oram acquired an inchoate right of dower therein.

Ralston v. Ralston, 112 OS. 306.

Samuel Oram’s estate of inheritance thus created being held upon condition, by the happen ing of which the estate might be terminated, his wife’s dower also depended upon said condition, and a forfeiture of the estate of the husband by the happening of the condition would terminate the wife’s right of dower.

Beardslee v. Beardslee, 5 Barbour 324.

Soon after the execution of said lease and the taking possession of the premises by Samuel Oram, he discovered that the terms of said lease cast a very onerous burden upon him and that it would be greatly to his advantage to have said lease canceled; and he accordingly notified the plaintiff that he would not and could not comply with the terms of the lease and offered to pay a certain sum to be relieved from the obligations of the same.

After he was in default he waived the doing of the things necessary to declare a forfeiture and surrendered the lease by assigning the same to plaintiff and paid to plaintiff a substantial sum to induce plaintiff to accept said assignment and relieve him from further liability on said lease.

All the parties acted in the utmost good faith, and the transaction was greatly to the advantage of Samuel Oram and was in no sense a fraud upon his wife, but by oversight she was not asked to sign the assignment to plaintiff by which the lease was surrendered.

Later the wife refused to clear the title of plaintiff of any claim she might have, and this suit was begun to quiet plaintiff’s title, and the wife answered claiming an inchoate right of dower.

It is conceded that if plaintiff had formally exercised its right and .forfeited Samuel Oram’s estate in accordance with the terms of the lease, the wife’s right of dower would have been terminated, and we hold that where the transaction is in good faith and there is no fraud practiced upon the wife, the same result may be accomplished by the surrender of the lease after condition broken, as was done in this case.

Sullivan v. Sullivan, 22 L. R. A. (N.S.) 691.

A part interest in said lease was assigned by Samuel Oram to I. M. Jaffe, and the latter for like reasons joined in the assignment to plaintiff, and under like circumstances his wife failed to sign said assignment. She is also a party defendant, and a decree may be drawn in favor of plaintiff and against both wives.

(Funk, J., and Pardee, J., concur.)


author: SHIELDS, J.

text:
    BANANA SALES CORPORATION v. CHUCHANIS.
    Ohio Appeals, 5th Dist., Stark Co.
    No. 871.
    Decided January Term, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    587. GUARANTY.
    Where guaranty covers delivery of goods up to a given amount, and, after delivery of goods and before commencing action, creditor releases principal debtor from all indebtedness owing, such release discharges guarantor from liability.
    Error to Common Pleas.
    Judgment affirmed.
    Underwood, Carson, Moore & Howes and Greenwood & Graham, Akron, fpr Banana Sales Corporation.
    C. S. McDowell, Canton, for Chuchanis.
   FULL TEXT.

SHIELDS, J.

In the Court below suit was brought by the Banana Sales Corporation, a corporation engaged in marketing and distributing fruit in New York City, to recover of said Chuchanis the sum of $1500.00, who upon a written guaranty executed by said Chuchanis to the said Banana Sales Corporation, extended credit to the firm of George & Shenan at Akron, Ohio, for bananas to be delivered by said Banana Sales Corporation to said firm to the extent of $1500.00. That in pursuance of the terms of said guaranty, bananas to the amount of $3750.00 were delivered to said firm on which was paid $970.42, leaving an unpaid balance thereon of $3679.58. Judgment is prayed against said Chuchanis for $1500.00.

The defendant, Chuchanis, after admitting the execution of said guaranty says he was not notified of said bananas having been furnished to said firm of George & Shenan and he therefore denies the same, and for a second defense he says that after the delivery of the bananas claimed to have been delivered to said George & Shenan and before the commencement of this action, said firm of George & Shenan adjusted their indebtedness with said plaintiff for all bananas delivered to them by said plaintiff up to said time and received from said plaintiff a full and complete release for all indebtedness owing to said plaintiff by said George & Shenan for bananas delivered to them by said plaintiff and that by reason thereof the defendant, Chuchanis, became and was discharged from all liability on said guaranty.

In its reply plaintiff denies that the release given by it to said George & Shenan operated to discharge said defendant because the same was executed with the full knowledge and consent of said defendant, Chuchanis, and with a full understanding on his part that said .release should not affect his liability on said guaranty.

At the conclusion of the testimony, the trial Court upon motion directed a verdict for the defendant, Chuchanis, and judgment was accordingly entered in his favor. This action upon the part of the Court was taken upon the admitted settlement of the debt due from said George & Shenan to plaintiff in error, Banana Sales Corporation, for bananas sold and delivered to them by said plaintiff in error up to that time, and defendant in error claims that said settlement operated in law to discharge him from further and all liability under said guaranty. In thus holding and without here citing the authorities furnished on behalf of defendant in error, we think the Court was right and correctly applied the law governing the legal rights of the parties hereto. Judgment affirmed.

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


text:
    INDUSTRIAL COM. v. HENDRICKS.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8138.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    413. DIVORCE AND ALIMONY — 677. Judgments and Decrees — 254. Comity.
    1. Statute of Alabama, which confers upon defendant, in divorce proceeding, right to file petition showing good and sufficient cause for setting aside decree, taken against him or her, within twelve months after decree is entered, where no personal service has been had, held to inhere alone in defendant and not in public or outsiders not parties to contract.
    2. Widow and children of plaintiff, who remarried in less than 12 months after securing divorce under such statute, defendant therein not having filed such petition as such statute permits, held entitled to compensation awarded by Ohio Industrial Commission.
    3. Contracting of bigamous marriage with another, held not to deprive lawful wife of benefits provided by 1465-82 GC.
    615. HUSBAND AND WIFE — 643. Insanity.
    Enforced confinement of wife in asylum for insane affords husband no lawful excuse to desert her.
    Error to Common Pleas.
    Judgment reversed.
    E. C. Turner, Atty. Gen., Columbus, and John A. Elden and W. K. Edwards, Cleveland, for Indust. Com.
    Cerrezin & Wilson and Gurney, Gurney & Gurney, Cleveland, for Hendricks.
    STATEMENT OF FACTS.
    This proceeding in error arises out of the contesting claims of two persons to a division of an award for compensation made by plaintiff in error on account of a fatal injury received, causing the death of one James T. Hendricks on July 21, 1925, while employed by the firm known as The Hepburn Company in the city of Cleveland.
    As we read the pleadings the only real difference in the claims of the parties hereto is this':
    That the said James T. Hendricks secured a divorce from his first wife, Bessie E. Hendricks, August 21, 1906, in the State of Alabama, and on November 26th, 1906, he and Harriet Malone Hendricks procured a marriage license in the State of Florida and were duly married on that date in said State. That the said James T. Hendricks and Harriet Malone Hendricks thereafter lived continuously together as husband and wife for the period of some fourteen years, during which time three children were born of such marriage. That at the expiration of said period when the said James T. Hendricks and Harriet Malone Hendricks were still living together as husband and wife it appears that said Harriet Malone Hendricks was committed to the Asylum for the Insane in said State of Alabama, where she is still confined as the wife of James T. Hendricks. On behalf of defendant in error it is claimed that the said James T. Hendricks and Harriet Malone Hendricks were_ never legally married because of their violation of certain sections, of the Alabama statute restricting such marriage for the period of twelve months, after a decree for divorce had been granted the said James T. Hendricks, and making said marriage decree absolute upon the observance of said condition, when in fact it is claimed he disregarded said condition and that he and the said Harriet Malone Hendricks were married within three months after such decree was entered and said divorce was granted, and said marriage having been consummated during the twelve months following the date that said decree was entered and before said decree became absolute, said marriage became unlawful and invalid.
   SHIELDS, J.

Under the decree of divorce granted James T. Hendricks, it is provided that “the bonds of matrimony heretofore existing between the complainant and defendant be and the same are henceforth dissolved and annulled, the defendant in this case' not having been personally served, this decree is subject to the provisions of Sections 753 and 754 of the Code of Alabama, and does not become absolute except as is provided by said law. August 21, 1906. An examination of said Section 753 provides that where a decree for divorce is granted and any of the parties affected thereby are infants or of unsound mind, a copy of the decree must be served upon the guardian of such person or persons. In this instance no such action was rendered necessary. Section 754 provides that “such defendant may file a petition showing sufficient cause for setting aside such decree and permitting such deefndant to defend the suit on its merits, at any time within such twelve months, unless such defendant has been served with a copy of such decree when such petition shall be filed within six months from such service. * * * Upon the hearing of such petition, the Chancellor has full power to open this decree and proceed with the cause as if no decree had been rendered therein.” But, say counsel for defendant in error, that inasmuch as said decree was granted without personal service having been made, etc., and it is provided that said decree should not become absolute except as provided by law, namely, under Sections 753 and 754, that therefore it did not become absolute until the expiration of one year. True, but the validity of the decree rested with the defendant, and the mere fact that its validity was not attacked during the twelve months after the decree was entered and before the exDiration of said twelve months, did not affect the rights of the said James T. Hendricks under said decree, because until attacked, within said period, the presumption was in favor of the validity of such decree. The decree was effective on the same date as entered, subject to the outstanding privilege given the defendant under said sections to resist or have said decree set aside upon proof made, etc. Here the record evidence is that no such attack was made. As we read said Section 754, it simply confers upon the defendant the right to file a petition showing a good and sufficient cause for setting aside a decree, taken against him or her, within twelve months after a decree is entered, where no personal service has been had, upon a hearing on its merits, when the rights of such defendant may be properly determined, if such rights are found by the Chancellor to have been denied the defendant. This right, in the opinion of this Court, inheres alone in the defendant and not in the public or outsiders who were not parties to the social contract intended for the betterment of the future of such contracting parties. And in their application to this case we recognize no distinction in the facts here shown as constituting a ground of divorce of the marital relation under the laws of Ohio. While the refinement of reasoning by counsel for defendant in error on the subject of the distinction formerly recognized by the text writers between divorces “amenso et thoro” and “vin-culo matrimonii” is interesting and perhaps instructive, the question to be met here is whether or not a marriage ceremony was solemnized and became and is a valid marriage contract between said James T. Hendricks and Harriet Malone Hendricks, no petition having been filed by the defendant for a re-examination of said divorce decree upon any ground whatever within twelve months after such divorce was granted. No such complaint having been filed by the defendant, and no cause appearing why said divorce should not be made absolute, said decree for divorce thereby became absolute. And if we are correct in this view, then it follows that the defendant in error has no legal right whatever to share or participate in the compensation allowed by plaintiff in error under Section 1465-82 of the Workmen’s Compensation Law_, because she is neither the wife of plaintiff in error, nor a lawful dependent of said decedent under said Act as held in the case of Industrial Commission of Ohio v. Dell, Executrix, et al., 104 OS. page 389. And we scarcely deem it necessary to add that the enforced confinement of decedent’s lawful wife in an asylum for the Insane afforded decedent no lawful excuse to desert her, nor does the fact that he did desert her and was guilty of contracting a bigamous marriage with another, deprive his said lawful wife of the benefits provided by Section 1465-82 of the Code.

Lena Ware v. Industrial Commission of Ohio, et al. 19 O. N. P. N. S. page 251.

In this State a husband can have but one lawful wife and the record evidence in this case clearly shows that the action of the defendant in error in refusing to allow the said Harriet Malone Hendricks to receive the award made to her and her children on account of the injuries to and death of the said James T. Hendricks was clearly in violation of the rights of the said Harriet Malone Hendricks and her children under the provisions of the Workmen’s Compensation Law, as shown by the facts and law of the case; that the verdict of the jury herein in awarding the defendant in error any part whatever of said award was contrary to law, that said Court erred in overruling the motion of plaintiff in error for an instructed verdict in its favor, that the charge of the trial Court as given was prejudicially erroneous to the legal rights of plaintiff in error, 'and that said judgment because of said errors of law should be reversed, and the same is hereby reversed, and judgment is entered herein for plaintiff in error. Exceptions.


author: FARR, J.

text:
    DAUS v. MAHONING CO. COMM.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 21, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    180. BRIDGES — 323. County Commissioners.
    Section 2408 GC., making county commissioners liable for negligence in not keeping bridge in proper repair, held not to extend to rock ledge upon which abutment of such bridge rests. Such rock ledge held not a part of bridge.
    Error to Common Pleas.
    Judgment affirmed.
    Fred J. Heim and W. F. Hesson, Youngstown, for Daus.
    L. L. George, Youngstown, for Co. Comm
    STATEMENT OF' FACTS.
    The action below was to recover for personal injuries sustained by Daus on the 16th day of May, 1926, while passing under a bridge in what is known as Mill Creek Park, this county, where he was struck on the head by a stone falling from a nearby cliff, and injured. At the hearing below, upon the conclusion of the statement of counsel in behalf of plaintiff, there was a motion for judgment on the statement upon the ground that the statement, as made, if proven to be true, would not constitute a cause of action against the County Commissioners. The motion was sustained and from the judgment so entered error is prosecuted here upon the ground that the trial court was in error in entering such judgment. The facts are as follows: There is situated near the city of Youngstown what is known as Mill Creek Park. One of the streets of the city extended is Canfield Road. It crosses a deep gulley near Lanterman’s Falls. In 1920 the County Commissioners had constructed, over this gulley, a concrete viaduct. In the construction of the bridge, at one end thereof, there was taken from a ledge of rocks, the earth covering the same, and upon this ledge a concrete abutment for this bridge was constructed. Underneath the bridge there was a path quite generally used by persons traveling through the park. On May 16, 1926, Lyle Daus was passing underneath the bridge when a stone from the cliff above, for some reason, was dislodged, and, falling down, struck him upon the head. He was somewhat seriously injured, and taken to the hospital and later to his home. It is claimed that this resulted in liability against Mahoning County.
   FARR, J.

“If liable at all, it is by virtue of a part of Section 2408 GC.

“It is conceded that this is a highway and a bridge under the control of the County Commissioners and it is sought to charge them with liability for this accident under the provisions of this section of the General Code, and upon the theory that this ledge of rocks was an abutment and was in fact a part of the bridge and that the County Commissioners knew or ought to have known, in the exercise of reasonable care, of the danger to Lyle Daus and other persons passing under the bridge, by reason of this ledge of rocks.

“It must be conceded that an abutment is, as well as the approach, a part of the bridge. This ledge, at the point where the accident happened, must be, estimating its height from the height of the nearby pier, in the neighborhood of 65 feet, and to say that the ledge itself was a part of the abutment would be to say inferentially that all of that ledge, no matter how far it extended into the earth, would be necessarily a part of the abutment, because there would be no line of separation. However, it was simply the foundation upon which the contractor built the concrete abutment, that there must be a line drawn somewhere, under such circumstances, rather than to permit an abutment to extend without limit into the bosom of the earth, is clear. The courts passing upon similar questions heretofore, have fixed that line as ending with the abutment of the bridge, and which undoubtedly should be held to mean that which is constructed in connection with the main structure itself; therefore, this ledge of rock was not a part of the abutment. The County Commissioners, under these circumstances, were not charged with any special duty with reference to this foundation, except not to change its natural character. For the reasons given, the judgment of the court below is affirmed.”

(Pollock and Roberts, JJ., concur.)


author: CUSHING, J.

text:
    ELLIOTT et v. GARRINGER.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    H. E. Elliott, Cleveland, for Elliott et.
    Mooney, Hahn, Loeser & Keough, Cleveland, for Garringer.
    169. BREACH OF CONTRACT — 297. Contracts.
    Where, under contract to build house for $7,300, charges amount to about $10,000, contract is breached.
    1229. VENDOR AND PURCHASER — 367. Deeds — 381. Delivery.
    Advise to one purchaser by vendor, that deed would be delivered as soon as advised to whom transfer should be made, is not refusal to deliver deed.
    147. BILLS, NOTES AND CHECKS.
    Where defendant gave plaintiff note for equity in property, and plaintiff was willing to deliver deed as soon as advised to whom transfer should be made, plaintiff entitled to judgment on note.
   CUSHING, J.

I. Where defendants agreed to build house for $7,300, but failed to build house for price agreed on, and total charges against property as result were about $10,000, defendants breached contract.

2. Where vendor had advised one of purchasers that deed for which note sued on was given would be delivered as soon as she was advised as to whom transfer should be made, vendor did not refuse to deliver deed.

3. Where defendants breached contract with plaintiff to build house for $7,300, and as result charges against property amounted to about $10,000 and defendant gave plaintiff note for $900 for her equity in property, and plaintiff was willing to deliver deed as soon as she was advised as to whom transfer should be made, plaintiff was entitled to judgment on note.

(Hamilton, P. J., and Mills, J., concur.)

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


author: HAMILTON, P. J.

text:
    SOLOMON v. WAKEM.
    Ohio Appeals, 1st Dist., Butler Co.
    Clinton D. Boyd and Carl J. Mueller, Mid-dletown, for Solomon.
    C. W. Elliott, Middletown, for Wakem.
    1182. TRADE ACCEPTANCES — 163. Bona Fide Purchasers — 480. Evidence.
    Where evidence did not sustain defendant’s claim of bad faith or indorsee of trade acceptances, directed verdict for plaintiff was proper.
   HAMILTON, P. J.

In indorsee’s suit on trade acceptances, where payee, after receiving them in Ohio, sold them to indorsee in Chicago, evidence held not to sustain claim of bad faith on part of plaintiff as indorsee in taking acceptances; hence verdict was properly directed for plaintiff.

(Mills and Cushing, JJ., concur.)

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


author: HOUCK, J.

text:
    FINNEY et v. MOREHOUSE et.
    Ohio Appeals, 6th Dist., Wood Co.
    Benj. F. James, Toledo, for Finney et.
    S. W. Bowman, Bowling Green, for More-house, et.
    1265. WEIGHT OF EVIDENCE.
    Reviewing court cannot set aside judgment on ground of conflict in testimony, unless erroneous judgment is clearly apparent. Jury or trial judge who saw and heard witnesses, must pass on truthfulness of testimony.
    1,204. UNDUE INFLUENCE — 367. Deeds.
    Undue influence, which will invalidate deed, must be such as to oblige grantor to adopt will of another. Means of control may consist of force or coercion, violence or threatened violence, or moral coercion. Extent or degree wholly immaterial, if sufficient to make act alleged, act of another rather than expression of mind of grantor.
   HOUCK, J.

1. A reviewing court cannot set aside judgment on ground of conflict in testimony, unless on entire case and review of all evidence it is clearly apparent erroneous judgment was entered.

2. It is for jury or trial judge who saw and heard witnesses, and had opportunity to observe their manner in giving testimony, their interest, or lack thereof, to pass on and determine as to truthfulness of the testimony.

3. “Undue influence,” which will invalidate a deed, must be such as to control mental operations of grantor, overcome his power of resistance, and oblige him to adopt the will of another, thus producing disposition of property which he would not have made freely.

4. As regards undue influence which invalidates a deed, the means of control may consist of force or coercion, violence or threatened violence, or moral coercion.

5. The extent or degree of undue influence which invalidates a deed is wholly immaterial, if it is sufficient to make act alleged the act of another rather than the expression of the mind of grantor.

(Shields and Lemert, JJ., concur.)

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


text:
    HENKEL & SULLIVAN v. ROBINSON.
    Ohio Appeals, 1st Dist., Hamilton Co.
    Bolsinger, Black & Burtner and Dolle, O’Donnell, Geisler & Cash, Cincinnati, for Henkel & Sullivan.
    Edward M. Ballard, Cincinnati, for Robinson.
    118. AUTOMOBILES- — 904. Pedestrians — 1053. Roads and Highways.
    Pedestrian on city street has same rights as owner of truck.
    225. CHARGE OF COURT.
    1. Statement of abstract proposition of law, not relevant to issue, is confusing.
    2. Reading of pleadings, without stating issue, erroneous.
    3. Charge should state issues made by pleadings and rules for application of evidence.

      4.Pleadings, not evidence, to determine issue.
   CUSHING, J.

1. Pedestrian injured while standing on a city street by being struck by an automobile truck had same rights in the street as owners of truck had therein.

2. Statement in an instruction of an abstract proposition of law that does not relate to the issue is confusing.

3. Reading of pleadings to jury without stating the issue is erroneous.

4. Court’s charge under Ohio laws should state issues made by pleadings, which should be followed by statement of rules by which jury should apply evidence to issue and by which it should be guided in arriving at measure of damages.

5. Pleading and not evidence must be looked to in determining issue to be presented to jury, “issue” being single, certain, and material point deducted from or arising out of pleadings.

(Hamilton, P. J., and Mills, J., concur.)

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


author: SULLIVAN, P. J.

text:
    FRISBIE, Ex Parte.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Turney & Sipe, Cleveland, for petitioner.
    Huggett & Hanna, Cleveland, opposed.
    413. DIVORCE AND ALIMONY — 293. Contempt — 1104. Statutes1 — 291. Constitutional Law.
    1. Constitution permits imprisonment for failure to pay alimony.
    2. Decree, for alimony, prima facie evidence of ability to pay.
    3. Duty of court to grant hearing as to material change in circumstances before imprisoning husband for contempt for failure to pay alimony provided by 14 year old court order.
    4. Sect. 12142 GC., held not applicable, affidavit setting forth facts constituting contempt not having been filed.
    5. Under 12143 GC., failure to pay alimony must be willful in order to authorize imprisonment.
    6. Alimony not debt, but allowance.
    7. Passing of 14 years since order for alimony and remarriage of both parties, held to taint transaction with lack of good faith as to wife and require court to find failure to pay willful in order to authorize imprisonment of husband.
    8. Sentence to jail for failure to pay alimony, which followed neither 12143 GC., nor 12143 GC., held improper.
    - 9. Imprisonment for contempt, for failure to pay alimony, must be done in accordance with statutes.
   SULLIVAN, P. J.

1. A finding for an order with respect to alimony is not a debt within the meaning of Const. Bill of Rights, Sect. 15, which forbids imprisonment for debt in civil actions.

2. As respects contempt, a simple decree as to alimony is prima facie evidence of ability to pay, for it assumes that, when court made the order, it was considered as a portion of property held under coverture, and subject to division under specific provisions of statute relating to alimony, and was not an indebtedness.

3. Where husband had been placed in jail as for contempt of court in failing to pay alimony, as provided by 14 year old court order, held that, before imprisoning for contempt for such default, pursuant to 12143 GC., that it was the duty of the court to grant a hearing as to whether there was such a material change in circumstances as to make it impossible for husband to conform to original order, and to find that he was capable of performing.

4. Sec. 12142 GC., relative to fine or imprisonment for contempt, held not applicable, where husband had been imprisoned for contempt in not complying with 14 year old alimony order, affidavit setting forth facts constituting contempt not having been filed.

5. Under 12143 GC., which provides that, when contempt consists in the omission to do an act which the accused can yet perform, he may be imprisoned until he performs it, failure to pay alimony must be willful in order to authorize imprisonment therefor.

6. Alimony is not a debt itself, but is an allowance.

7. Where husband was imprisoned for contempt of court in failure to obey 14 year old alimony order, that both parties had remarried, and 14 years had elapsed since order was made, held to so taint the transaction as to the wife, with lack of good faith as to require court to find that failure to pay was willful in order to authorize imprisonment of husband.

8. Sentence of husband to jail until the further order of the court, for contempt for failure to pay alimony, which sentence followed neither of the provisions of 12142 GC., relative to 10 day sentence or payment of fine, nor of section 12143; relative to confinement until payment to wife of amount ordered was made, held improper.

9. The common pleas court has power to order imprisonment for contempt of its order to pay alimony, but it must be done in accordance with the provisions of 12142 GC., or Sect. 12143.

(Vickery and Levine, JJ., concur.)

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


author: VICKERY, J.

text:
    FEDERATION SAV. & L. CO. v. SCHMITT et.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Locher, Green & Woods, Cleveland, for Savings & L. Co.
    John J. Mahon, Cleveland, for Schmitt et.
    787. MORTGAGES — 106. Assignments — 126. Banks and Banking.
    1. Order, by mortgagor, on mortgagee, to materialman, for part of construction loan fund, not such assignment of fund that suit may be predicated thereon.
    2. Retention of such order by loan company until sufficient work was done to warrant payment, not such acceptance of order as to make loan company liable.
    27. ACTIONS.
    1. Cause of action may not be split by assigning part to one person and part to another.
    2. Assignment, to materialman, of part of construction loan fund, does not create contractual relation between materialman and loan company.
    287. CONSIDERATION.
    Furnishing lumber to be used in construction of house was consideration for order on construction loan fund. -
    755. MECHANICS’ LIENS.
    Taking of mechanics’ lien, not discharge of original obligation.
    362. DEBTOR AND CREDITOR.
    Order to materialman, on construction loan fund, in absence of acceptance of order by loan company, does not create relation of debtor and creditor, on which materialman could sue loan company.
   VICKERY, J.

1. Where mortgagor was given credit on books of savings and loan companv for amount of mortgage, amount of which was to be paid out only when work was done on dwelling house being erected, order of mortgagor in favor of materialman drawn on loan company for part only of fund to credit of mortgagors was not such assignment of fund that suit against loan company could be predicated thereon.

2. A cause of action must be assigned as a whole, it not being permitted to split it up by assigning part to one person and part to an-. other.

3. Where building and loan company made loan on dwelling house to be constructed and after delivery of mortgage to it, mortgagors were given credit on company’s books for amount of mortgage and thereafter mortgagors, during progress of work on dwelling house, gave order on company to material-man for amount less than fund credited to them, materialman could not maintain action thereon against loan company, the order being an assignment of but part of the fund, nor was there contractual relation between ma-terialman and loan company.

4. Where loan company credited to mortgagors amount of fund to be used in construction of a dwelling house, furnishing of lumber to be used in construction of house was consideration for order on the fund so credited by mortgagor to materialman.

5. The taking of a mechanics’ lien by ma-terialman furnishing lumber for a dwelling house is an added security only and is not a discharge of the obligation.

6. Where loan company gave credit on its books to mortgagor for amount of mortgage to be paid out as dwelling house was constructed and mortgagor drew order on fund credited on loan company’s books in favor of materialman furnishing lumber for the house, in absence of acceptance of order by loan company no relation of debtor and creditor existed on which lumberman' could predicate suit against the loan company.

7. Where loan company placed to credit of mortgagor a fund to be used in constructing a dwelling house and mortgagor drew order in favor materialman thereon, loan company’s retention of order after presentation to it until sufficient work was done on dwelling house to warrant its payment held not such acceptance of order as to make it liable thereon.

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

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


author: ALLREAD, J.

text:
    MORTON v. THOMAS.
    Ohio Appeals, 2nd Dist., Franklin Co.
    Crabbe, Johnston, Crabbe & Williams, Columbus, and Thomas Chawke, Detroit, Mich., for petitioner.
    Edwd. C. Turner, Atty. Gen., Herman E. Werner, Akron, and Jos. A. Godown, Columbus, for respondent.
    307. CONVICTS — 881. Pardons and Paroles.
    1. Conditional release of convict subject to revocation.
    2. Release not made absolute by words “out of Ohio forever with no final release.”
    3. Convict conditionally released to Michigan officer, for trial in Michigan may be returned to Ohio and there retaken, and retained under revocation of conditional release.
    4. Right, of Michigan authorities, to return such convict, cannot be questioned after convict so returned.
   ALLREAD, J.

1. A conditional release of a convict from Ohio penitentiary is subject to a revocation by the Ohio Clemency Board.

2. A release of a convict granted by the Ohio Board of Clemency is not made absolute by the words “out of Ohio forever with no final release.”

3. A convict in Ohio released by conditional release to a Michigan officer, taken to the state of. Michigan, and held for trial in the state of Michigan, may be returned by the state of Michigan to the State of Ohio, and there be retaken and retained as a convict in Ohio under a revocation of a conditional release.

4. The right of the Michigan authorities to return the convict to the state of Ohio cannot be questioned after the convict has been returned to the state of Ohio.

(Ferneding & Kunkle, JJ., concur.)

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


author: WISEMAN, J.

text:
    MARSHALL v. NEFF.
    Municipal Court, City of Dayton.
    No. 45384.
    Decided Feb. 23, 1927.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    798. MUNICIPAL COURT — 681 Jurisdiction —460 Equity.
    1. Where cause of action arising out of contract or contracts between plaintiff and defendant, is pending in the Municipal Court, and showing is made that ends of justice demand that such contract or contracts be reformed or cancelled, Municipal Court has jurisdiction, by virtue of 1579-51 GC., sub-division 3, to decree such reformation or cancellation.

      2. Such jurisdiction not affected by fact that action sounds in tort.
    Heard on demurrer.
    Demurrer overruled.
    W. S. Rhotehamel, Dayton, for Marshall.
    Murphy, Elliff, Leen & Murphy, Dayton, for Neff.
   FULL TEXT.

WISEMAN, J.

The plaintiff in this case has filed an amended statement of claim setting forth two causes of action. The first cause of action is one in conversion, alleging that the plaintiff _ was lawfully possesed of a Chandler automobile of the value of $475.00 and that the. defendant unlawfully converted the same to his own use.

In the second cause of action, the plaintiff alleges that he was possessed of a Chandler automobile, and that the defendant was possessed of a Studebaker automobile, and that the plaintiff and defendant entered into a contract whereby the plaintiff and . defendant agreed to exchange their automobiles. That the defendant represented his Studebaker automobile to be a 1920 model and worth $400.00. The plaintiff further alleges all the necessary allegations to make out a good case of fraud or deceit. Plaintiff alleges that the automobile was not a 1920 model but was a 1919 model and was not of the value of $400.00, but was of the value of $200.00. Plaintiff then alleges that the defendant has in his possession, not only the Chandler automobile, but also the Studebaker automobile and that “the said contracts so made, executed and delivered as here-inbefore set forth, and that the matters and facts set out in the first cause of action herein, are the same transactions set out in the second cause of action herein.

“Plaintiff represents and shows to the court, that the end of justice demands that the contract or contracts hereinbefore set forth be cancelled and delivered up to the said plaintiff herein.”

The plaintiff prays for damages in the sum of $475.00 and for the cancellation of said contracts.

The defendant demurs to the second cause of action for three reasons, first, on the ground that the court has no jurisdiction of the subject matter of said action; second, because the second cause of action does not state facts sufficient to constitute a good cause of action, and third, on the ground that several causes of action are improperly joined.

Taking the matters up in the inverse order, the court is of the opinion that the causes of action are not improperly joined. The court is of the opinion that an improper joinder only occurs when there is an inconsistency between the two causes of actions or where they do not comply with General Code 11306 which sets forth and enumerates the causes of action which may be joined.

Upon reading the case of Gartner v. Corwine, 57 O. S., 246, and P. C. & S. L. Railway Co. v. Hedges, 41 O. S., 233, and Dick v. Hyer, 94 O. S., 351, the court is of the opinion that the demurrer filed by the defendant herein on this ground should be overruled.

As to the second ground of the demurrer, that the facts stated do not show a good cause of action, the court is unable to find any failure on the part of the plaintiff, to plead any fact, which makes a pleading defective unless it be that the pleader has not stated that he has no adequate remedy at law as contended for by counsel for the defendant. The. court is of the opinion that this contention is not well taken for the reason that the Act creating the Municipal Court, Section 1579-51, sub-division 3, provides that “When a cause arising out of a contract is pending in the Municipal court, and when the ends of justice demand that the contract or contracts be reformed or cancelled, the Municipal Court shall have jurisdiction to decree such reformation or cancellation.”

The Court is of the opinion that the relief prayed for in this case is not such as is exercised by a court having original equity jurisdiction. If the plaintiff, in his pleading and in the proof of his facts, come within the terms of the section of the Municipal Court Act which has been quoted he is entitled to the relief which he prays for. Therefore, the demurrer will be overruled on the sécond ground.

As to the first ground that the court has no jurisdiction of the subject matter of said action, the court again refers to the section of the Municipal Court Act quoted above. The plaintiff has drawn his pleading in such a manner as to show contractural relations between the parties which have been violated by the defendant, and which gives rise to the cause of action set forth in the statement of claim. Therefore, it seems to the court that the cause of action which is pleaded does arise out of a contract or contracts between the plaintiff and the defendant, When such an action is pending in the Municipal Court, and a showing made to the court that the ends of justice demand that such contract or contracts be reformed or cancelled, the court is given the power to do so. As the court has heretofore stated, this section.does not confer on the Municipal Court of Dayton the same power as a court having original equity jurisdiction. The equity powers of the Municipal Court of Dayton are limited, and the limitations are set forth in the Act creating the court. The court observes that the plaintiff has pleaded certain facts in his second cause of action for the specific purpose of making the proper showing to the court that the cause of action does arise out of contract and therefore, to bring said pleading within the terms of the section of the Municipal Court Act giving it equity jurisdiction to reform or cancel the contract. Counsel for the defendant, in his brief, contends that the plaintiff’s action sounds in tort, that it is not a contract action. This court does not disagree with counsel in this respect. Conversions is essentially a tort action. However, it may arise out of violation of contractural obligations. The section of the Municipal Court Act herein referred to, does not state that before the court has power to reform or cancel a contract that the cause of action must sound in contract. The Act states that “When a cause of action arising out of a contract is pending in' the Municipal Court” that upon the proper showing, the court has certain equity powers.

This is the first case which has come before this court where this question had to be determined. The court, in considering this matter, has come to the conclusion that the equity powers of the Municipal Court of Dayton under this section are much broader than the judges of this court and the members of the bar have heretofore believed. The court is of the opinion that the case before the court falls within the terms of this section and that it was meant to cover just such a state of facts. Therefore the court overrules the demurrer.

Counsel will draw the proper entry.


author: HUGHES, J.

text:
    LEITZY v. STATE.
    Ohio Appeals, 3rd Dist., Crawford Co.
    No. 1154.
    Decided Mar. 22, 1928.
    Before Judges Crow, Hughes and Justice.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    148. BILLS OF EXCEPTIONS — 465. Error
    Proceedings — 941. Practice and Procedure.
    Time for computing filing of bill of exceptions is from date judgment of court is journal-ized.
    Error to Common Pleas.
    Judgment affirmed.
    W. J. Geer and A. S. Leuthold, Bucyrus, for Leitzy.
    Louis H. Kreiter and Clarance U. Ahl, Bu-cyrus, for State.
   FULL TEXT.

HUGHES, J.

From a conviction in a criminal prosecution, defendant prosecuted error to this court.

The bill of exceptions was not filed within the statutory time, as shown by the original record filed here. When this fact was discovered, there was a suggestion for diminution of record and defendant went before the trial court on a motion to have the record changed regarding the dates of the judgment and the ruling on the motion for a new trial, and a hearing was had upon that motion, and a petition in error filed here complaining of the judgment on that motion; and there is also filed, a bill of exceptions disclosing the evidence adduced at that hearing.

We have gone through that bill of exceptions with care and find that the judgment of the court upon that motion is amply sustained by the evidence and therefore the corrections that were made in the original record must be the controlling feature in the major ease before us here.

Coming now to consider the case upon its merits, we find that the record as changed, still discloses the fact that the bill of exceptions was not filed within the statutory time, and hence it must be stricken from the files.

There are no errors complained of, which can be passed upon in the absence of a bill of exceptions, and hence the judgment must be affirmed.

The foregoing is in harmony with the former rulings of this court upon similar questions, and it is also in harmony with the former decisions of the Supreme Court. That is, the time for computing the filing of a bill of exceptions, is from the date the judgment of the court is journalized.

We are cited to the case of Hayes v. Hayes, decided November 2, 1927, by the Supreme Court, in support of the position taken by the defendant.

We have procured the complete record from the Supreme Court in this case, and it is in harmony with the other holdings of the court. In that case it is disclosed by the entries, that the judgment of the court was actually pronounced in the common pleas court some months before the judgment was journalized. The record on the journal recited, “February 26', 1926. To the Court: This cause came on to be heard upon the petition of the plaintiff, and so forth,” and then followed the judgment of the court. The record shows that as early as December 14th, the motion for new trial was filed and on December 15th, the motion for new trial was filed and on December 15th, was overruled; and the Supreme Court in the Hayes case holds that the date for computing time, was February 26, 1926.


text:
    HAND v. STATE.
    Ohio Appeals, 3rd Dist., Crawford Co.
    No. 1165.
    Decided Apr. 19, 1928.
    Before Judges Crow, Hughes & Justice.
    First Publication, of This Opinion.
    Syllabus by Editorial Staff.
    1054. ROBBERY — 313. Corporations.
    1. Not necessary that individual, upon whom robbery has been perpetrated, shall have had actual physical contact with property stolen, in order to constitute robbery.
    2. Property may be taken from the person of a corporation.
    Error to Common Pleas.
    Judgment affirmed.
    O. W. Kennedy, Bucyrus, and Geo. C. Bryce, Toledo, for Hand.
    Louis H. Kreiter and Edward J. Myers, Bu-cyrus, and Chester A. Meek, Toledo, for State.
   FULL TEXT.

HUGHES, J.

The defendant was charged with, and convicted of, the crime of robbery perpetrated against The Commercial Savings Bank Company in Gabon, Ohio.

The first error complained of is the overruling of defendant’s motion to arrest the judgment, upon the grounds that the indictment did not charge a crime. This motion is predicated upon the theory that there cannot be a taking from the person of a corporation.

It has been held that a taking from the person of another, is accomplished even though the property may not be in physical contact with the individual. In some cases it has been held to be a taking, when the property was taken from his possession though in another room from which the individual then was in. So that it is not necessary that the individual upon whom a robbery has been perpetrated, shall have actual physical contact with the property stolen, in order to constitute a robbery.

The indictment in this case charges, in substance, that the defendant, by force and violence, unlawfully and forcibly did rob, steal, take and carry away, money which was the property of The Commercial Savings Bank Company, and which was then located in the banking house of the company and was then under the charge and control and in the possession of said company, the said company be-in"- operated and managed by agents, servants and employees who were then in charge of its business and were then operating and conducting said business when the defendant stole, took and carried away, said money, with the intent to rob and steal, and that he did it unlawfully and forcibly by the use of a pistol, putting to fear said agents, servants and employees of said banking company, and that it was against the will of the company.

This, we believe, is a sufficient charge under Section 12432, General Code, to constitute the crime of robbery and is sufficiently clear and specific to thoroughly inform the defendant on the charge against him for which he is brought to trial. Therefore the motion to quash was properly overruled.

We have carefully read the bill of exceptions and find no prejudicial error therein regarding the introduction or rejection of evidence, nor in the charge of the court.

The assertions that the prosecuting attorney made in his argument, not having testified himself, might be subject to criticism, but in the face of the entire record, we are unable to say that his conduct was prejudicial error.

The verdict is amply supported by the evidence and the judgment is therefore affirmed.


author: MIDDLETON, P. J.

text:
    WILL v. PEOPLES et.
    Ohio Appeals, 4th Dist., Meigs Co.
    Decided Apr. 17, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    573. GIFTS — 997. Real Estate — 480. Evidence.
    Parol gift of real estate must be established by clear and convincing proof. Mere intention to make gift never sufficient. There must be time when and place where donor completely divests himself of all title to and control over property involved and such property passes unconditionally to ownership and control of donee.
    Appeal from Common Pleas.
    Decree for defendant.
    Peoples & Peoples, Pomeroy, for Will.
    D. H. Peoples and L. Crary Davis, Pomeroy, for Peoples et.
   FULL TEXT.

MIDDLETON, P. J.

This cause comes into this court on appeal from the Court of Common Pleas and is an action to quiet title to certain real estate which the plaintiff claims was given to him by his parents during their lifetime by parol. There are no special circumstances or features involved in the case which make it necessary to discuss the facts in detail. It seems to be conceded by the parties that it is incumbent on the plaintiff herein to establish such parol gift by clear and convincing proof.

A consideration of all of the evidence in the case leaves the claim of the plaintiff in doubt. This is so for the reason that it can not be determined satisfactorily from the evidence the time when and place where such parol gift was actually made. A mere intention to make a gift is never sufficient. There must be a time when and where the donor completely divests himself of all title to and control over the property involved and such property passes unconditionally to the ownership and control of the donee. There is evidence in the record offered by plaintiff tending to show that as early as 1904 the mother of the plaintiff stated to a witness that the farm belonged to the plaintiff but “that he was not of age and she had the farm to look after.” The same witness testified that as late as 1920 the mother said “she was going to give it to him; she was going to make a deed right away as she was getting old and poorly.” It is in evidence by a brother of the plaintiff that in 1911 the witness at the instance of his father and mother told the plaintiff that they wanted him to come back to the farm, “that the farm was his and he must come back and take care of it.” It is further in evidence that the father died in 1913 owning one-half of substantially all of the land in dispute and that nothing _was then done or has since been done until' the bringing of the instant action to procure from his heirs a consummation of the gift claimed to have been made by the father and mother in the former’s lifetime. The testimony of the brother referred to is the best evidence offered by the plaintiff in support of his claim and without that evidence there is no direct proof of a gift. But if we are to believe all that the brother testified to it is apparent from his testimony that when Mrs. Bolin died she was the owner by gift of the farm in question and that therefore the title thereto would now be in her heirs.

A circumstance which we regard as very significant in the case is that during the life time of the mother, who died in 1923, she purchased a farm containing one hundred and ten acres for the plaintiff and his children and at her direction this farm was conveyed directly by the vendor to them. This was in the year 1915. It is very difficult to understand why a woman of her apparent intelligence would not at the time she was thus arranging for the interests of her son also have completed the conveyance to him of the land in dispute. If she at that time recognized any legal duty to convey the farm now claimed by the plaintiff to him it is very difficult to understand why she did not complete her purpose in respect to the property she desired him to have. Moreover, within a short time of her death she executed a lease for oil and gas on the premises claimed by the plaintiff and the party who took this lease testified that he told the plaintiff that he had leased from the mother the farm the plaintiff was then living on and that the plaintiff did not say anything in reply to this information. These undisputed acts of the mother are hard to reconcile with the claim of the plaintiff that for many years prior to that time he was the owner of the lands by parol gift from his father and mother.

We are therefore unable under all the facts as disclosed by the evidence to grant the plaintiff the relief he demands in this action and the decree of this court will be the same as that made in the Court of Common Pleas, to which court the case is remanded for execution and further proceedings according to law.

(Mauck and Thomas, JJ., concur.)


author: JUSTICE, J.

text:
    SAVAGE et v. HARDIN BD. OF CO. COMMRS.
    Ohio Appeals, 3rd Dist., Hardin Co.
    No. 199.
    Decided Apr. 28, 1928.
    Before Judges Crow, Hughes and Justice.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1053. ROADS AND HIGHWAYS — 1159. TAXES AND ASSESSMENTS.
    Where state highway is originally improved with waterbound macadam and thereafter maintained by applying treatments of crushed limestone and tar, and later claimed to be rebuilt by constructing new culverts, widening pavement, and placing wearing course of bituminous macadam on top, such claimed rebuilding is neither new construction, nor such repair as is authorized by 1224 GC., and property cannot be legally assessed for portion of cost.
    Appeal from Common Pleas.
    Decree for plaintiff.
    Stickle & Cessna, Mahon & Mahon and John H. Smick, Kenton, for Savage.
    Stillings & Johnson and L. B. Brown, Kenton, for Co. Comm.
   FULL TEXT.

JUSTICE, J.

The action was originally brought in the court of (ataimn pleas to restrain the defendants from certifymgv-placing on the duplicate and collecting certain asseaoments, levied against nlaintiffs’ lands, for the impiovtirr'ent of Section “A,” I. C. H. No. 228. That court granted a perpetual injunction as prayed for, and the defendants appealed the cause to this court.

It seems that in the year 1913 the state took over the Kenton and Marysville turnpike and made it a part of Intercounty Highway No. 228. In 1914 the state improved Section “A,” by original construction, with water-bound macadam and thereafter maintained it by applying thereto treatments of crushed limestone and tar. In the years 1923 and 1924, Section “A” was rebuilt by the Highway Director; two new culverts were constructed; the pavement was widened; and, a wearing course of bituminous macadam was placed on ton of the material used in the 1914 improvement. _

_ It is the contention of the plaintiffs that the 1923 and 1924 improvement was a repair job; that in making such repair, the Director of Highways did not change the type of the road and use, as the principal material in making such repair, a material different than that used in its original construction; and, therefore, their lands cannot be legally assessed for such improvement. It is the contention of the defendants that the work done was either a new construction or such a repair as is authorized by Section 1224, General Code; and, that plaintiffs’ lands are therefore legally assessed.

We have carefully considered all the evidence in this case. It is not in dispute. And ■without further comment thereon, we find and hold that the improvement was not a new construction. The improvement was nothing more nor less than a repair of the road. But, was it a repair of such a character as to justify the assessments complained of?

Counsel for defendants contend that Section 1224, General Code, is controlling and authorizes the assessments in question. This section, so far as pertinent here, provides:

“When in the repair of an intercounty highway * * the director changes the type of such road and uses, as the principal material in making such repairs, a material different from that which the road was originally constructed, not more than ten percent of the cost and expense of such repair may be assessed against the property * * * within one mile of either side thereof. * * * *”

This statute is plain. It provides when assessments may be levied. Obviously, to authorize an assessment under this statute, the Director of Highways, in repairing a road, must not only change the type of the road, hut he must also use, as the principal material in making such repairs, a material different than that used in its original eonstruction.

Concededly, the road was originally constructed by the state as a waterbound macadam. If not in the year 1917, then in the year 1921, the state converted the road from a waterbound macadam to a bituminous macadam. From the year 1921 to the year 1923 the pavement was bituminous macadam. In the years 1923 and 1924 the road was again surface treated with tar. Our conclusion, therefore, is that the type of the road was not changed by the 1923 and 1924 improvement.

Since the type of the road was not changed by the 1923 and 1924 improvement, it is of no moment here whether the Director of Highways, in repairing the road, did or did not use as the principal material in making such repairs, a material different than that used in the original construction of the road. We, do not decide that question.

Holding titeaa views.,it follows, that the as-sessmsuts sñcg hul» Spcvtíinn 1224, General Code; and, that plaintiffs "are entitled to the relief prayed for. A decree should be entered as was entered in the court of common pleas. Decree accordingly.


author: WILLIAMS, J.

text:
    TRUMBULL v. STENTZ et.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 242.
    Decided Apr. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1271. WILLS AND LEGACIES — 997. Real Estate — 362a. Decedents’ Estates.
    1. Where will bequeaths or devises prop-
    erty absolutely and in fee simple, and then, by subsequent provision, attempts to engraft remainder upon fee, so-called remainder is void and of no effect. „
    2. Words of inheritance not necessary to passing of estate in fee simple by will.
    Error to Common Pleas.
    Judgment affirmed.
    Benjamin F. James and Geo. A. Cheney, Bowling Green, for Trumbull.
    A. M. Beattie, Norwalk, for Stentz, et.
   FULL TEXT.

WILLIAMS, J.

Plaintiff below, David D. Trumbull, filed his petition against the defendants Maud N. Stentz, Homer Fletcher, Frances N. Fletcher and The Citizens Banking Company of San-dusky, Ohio. The plaintiff sought to have title to certain property described in the petition quieted and partition thereof made. The defendants, Homer Fletcher and Frances H. Fletcher, demurred to the petition upon the ground that it did not state facts sufficient to constitute a cause of action. The court below sustained the demurrer and the plaintiff not desiring to plead further, final judgment was entered in favor of the defendants. This proceeding in error is brought for a reversal of that judgment.

It appears from the allegations of the petition that Cornelius J. Harsen died leaving a last will and testament, which was duly probated in the probate court of this county, and which contained the following clause:

“I give, devise and bequeath to my beloved wife, Almira Harsen, all my real and personal property belonging to me. It is my request that the property left at the decease (d) of my beloved wife be equally divided between David P. Trumbull and Maud M. Stentz.”

Almira, the widow of Cornelius L. Harsen, died intestate June, 1927. Almira Harsen, the widow, by deed dated October 8, 1923, conveyed to the defendant, Homer Fletcher, the premises described in the petition. The plaintiff claims no right, title or interest in the premises described in the petition except under and by virtue of the clause in the last will and testament above quoted. If the plaintiff takes no estate or interest under and by virtue thereof, he can not maintain his action, because he does not aver that he has any estate or interest as heir-at-law or otherwise th»»— under and by virtue of the fact a i q-j-pp zh~\ H cue will, it has many times been held in Ohio that where a last will and testament in its terms bequeaths or devises property to one person absolutely and in fee simple, and then by a subsequent provision in the will attempts to engraft a remainder upon the fee, the so-called remainder is void and of no effect and the first taker will take the property absolutely and in fee simple.

Budd v. Elsies, 28 Court of Appeals Opinions, Sixth District, unreported, p. 214; Hull v. Chisholm, 7 Ohio App., 346; The Widows’ Home v. Lippardt, 70 Ohio St., 261; Steuer v. Steuer, 8 C. C., N. S., 71; Tracy v. Blee, 22 C. C., N. S., 33; Peeler, Admr., v. Cruit, Court of Appeals of Franklin County, Ohio, Law Abstract, Vol. 3, p. 325; Carpenter v. Carpenter, 24 Court of Appeals Opinions, Sixth District, unreported, p. 238.

Words of inheritance are not necessary to the passing of an estate in fee simple by will. By the terms of the will Almira Harsen took an estate absolute and in fee simple. Counsel for defendant in error contend that the language following the devise to Almira Harsen was predatory in form. Even so, the whole estate having been given to Almira Harsen, the subsequent language employed was wholly ineffectual to confer any estate or interest upon the plaintiff and the defendant, Maud N. Stentz.

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

(Richards and Lloyd, JJ., concur.)


author: FERNEDING, P. J.

text:
    TRESHANSKY et v. NORTH. OHIO. LUMBER & TIMBER CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8374.
    Decided Mar. 26, 1928.
    Ferneding, P. J., Kunkle and Allread, JJ., of the 2nd Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    745. MALICIOUS PROSECUTION.
    Taking judgment on cognovit note which has been wrongfully lifted from escrow, held ground for action for malicious prosecution.
    Error to Common Pleas.
    Judgment reversed.
    B. A. Feldman, Cleveland, for Treshansky et.
    Paul Howland, Cleveland, for Lumber Co.
   FULL TEXT.

FERNEDING, P. J.

This action was brought for malicious prosecution of a civil action. The action was upon a cognovit note and this cognovit note was given by the plaintiffs to Arthur S. Kerman, in consideration of a certain real estate deal. The note was deposited in escrow with a Mr. Blythin, an attorney for the defendant, to hold until the real estate deal was closed and the property conveyed to the plaintiff. Later on Kerman lifted this note from the’ escrow without having performed the conditions of ¿Re escrow and transferred the note .to-Tiie Northern Ohio Lumber and TRuOnr Company to hold as security. a personal debt of Kerman’s, ju -tne time this note was transferred to The Northern Ohio Lumber and Timber Company, Kerman stated to them that the note was no good at that time, as it was given for a deal which had not yet been completed. Kerman, however, assured The Northern Ohio Lumber and Timber Company that when the deal was completed the note would be good. The deal was never completed. The Northern Ohio Lumber and Timber Company, however, shortly before the note became due had a judgment taken upon the cognovit note. This judgment immediately became a lien upon all the real property of the plaintiffs and they were prevented from selling or disposing of their real property while the judgment lien remained in force.

Plaintiffs having learned of the rendition of this judgment after the term at which it was rendered, employed an attorney to file a suit for the vacation of said judgment. When the case came on for hearing, it appeared that the judgment was taken before the note became due. The suit was thereupon dismissed and the judgment vacated. Thereupon another cognovit judgment was rendered on the note in question. _ This judgment again immediately became a lien upon all of the real property of plaintiff, so that for all practical purposes the plaintiff was debarred, by reason of these judgments, from disposing of any of their real properties during the entire time the judgment stood on record.

In the case of Cincinnati Daily Tribune v. Bruck, 61 OS. 489, it was held that “as a general rule no suit will lie for the malicious prosecution of a civil action where there has been no arrest of the person or seizure of property.”

In the present case, however, it will be noted that the lifting of the cognovit note from the hands of Blythin the escrow, and the negotiating of the note to The Northern Ohio Lumber and Timber Company, was a wrongful act. The note was not intended to be operative in the present, but only in the ease Kerman complied with his contract with the plaintiff. The act of filing the cognovit note for judgment was a wrongful act and one which the law would not justify or excuse. The taking of a judgment thereon called for some relief. The expenses of procuring a lawyer therefor and the necessary damages incident to the placing of a judgment lien on plaintiff’s property would at least be the measure of liability upon the statement of counsel for plaintiffs.

All of the facts connected with the delivery of this note in escrow and the time when the note would become available for use, it appears from the statement of counsel for plaintiffs were known by The Northern Ohio Lumber and Timber Company when it secured the possession of the note in question, as appears from the statement of counsel for plaintiffs on page seven and at other points in the record.

The judgment will, therefore, be reversed and cause remanded.

(Kunkle and Allread, JJ., concur.)


text:
    WIELAND et v. SEIDNER et.
    Ohio Appeals, 6th Dist., Erie Co.
    No. 258.
    Decided Apr. 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    941. PRACTICE AND PROCEDURE — 85. Appéal.
    Where appeal bond is filed after court in fact acted in determining what its finding and judgment would be and in fixing appeal bond, but prior to filing of journal entry, motion to dismiss appeal will be overruled.
    903. PAYMENT.
    Where record discloses that it is proven by preponderance of evidence that payment of unpaid balance was in fact made, decree will be for defendant.
    Appeal from Common Pleas.
    Petition dismissed.
    Deutsch & Dilgren, Elyria, for Wieland et.
    J. F. Hertlein and H. L. Peeke, Sandusky, for Seidner et.
   FULL TEXT.

WILLIAMS, J.

This cause has been submitted upon a motion to dismiss the appeal and argued upon its merits with the understanding that if the motion to dismiss the appeal is overruled, a final decree will be entered in the cause upon the evidence taken and submitted.

We first consider the question made by the motion to dismiss the appeal. Plaintiff contends that the motion should be sustained upon the authority of Mullens v. Webb, 25 Ohio App. 41 (Ohio Law Bulletin & Reporter of November 28, 1927). The journal entry of the judgment and decree appealed from was filed in the court "of common pleas on November 4, 1927, and recites that the final judgment and decree was rendered and appeal bond fixed at $209.00 on October 27, 1927. This recital is in accordance with that on the court trial docket in the handwriting of the trial judge. The appeal bond was filed November 2nd,' 1927.

The opinion in the case of Mullens v. Webb, supra, does not disclose whether or not the appeal bond was filed subsequent to the time of the action of the trial judge in rendering judgment and decree and in fixing the appeal bond. We are aware of the decisions of the Supreme Court of Ohio holding that a court speaks from its journal and that the judgment is rendered at the time of the filing of the journal entry thereof. Though the court speaks by its journal, yet when it speaks, it speaks the truth upon the well-known principle that the records of the court import absolute verity. The appeal bond in this case was filed after the time that the court in fact acted in determining what its finding and judgment would be and in fixing the appeal bond, and the appeal bond was on file and remained on file in the office of the clerk of the court during the thirty day period fixed by G. C. Section 12226. We think the situation is in law and equity the same as if the appellant had handed his appeal bond to the clerk with instructions to hold it. until the journal entry was filed and then file it, and such instructions were followed.

There is a conflict of authority upon the question involved and we adopt the construction which will save appellant his rights, because such construction is more consonant'with fairness and justice. We hesitate to adopt so technical a construction of the section involved as. would take the right of appeal from those litigants who in good faith attempt to appeal and file an appeal bond after the judgment and the decree of the court has been pronounced from the bench and the amount of the appeal bond fixed. Motion to dismiss the appeal will be overruled.

The action is one to foreclose a vendor’s lien for the amount of the alleged unpaid purchase price agreed to be paid for real estate sold by the plaintiff, George Wieland, to the defendants, Michael Seidner and Sadie Seid-ner. When the deed was delivered for the real property in question, $1,000 of the purchase price remained unpaid. The defense made by the defendants Michael Seidner and Sadie Seidner, was that a note for $1,000, covering the. amount unpaid was given by them to the plaintiff George Wieland and that upon a specified date the plaintiff, George Wieland, agreed to take $950 cash in full settlement of the amount due, principal and interest; that the defendant Michael Seidner had some money in his possession, that he went to the office of a loan company and obtained the balance of the $950 and paid the whole amount agreed on over to the plaintiff George Weiland and received from the plaintiff Wieland the note in return and walked to the front of the store and tore it up and, as he said, scattered it to the four winds. The plaintiff, George Wie-land, denies the transaction relating to the payment in toto and claims that no note for the unpaid balance of the purchase price was ever given. An examination of the record discloses that it is proven by a preponderance of the evidence that payment of the unpaid balance was in fact made.

Decree is therefore entered in favor of the defendants dismissing the petition.

(Richards and Lloyd, JJ., concur.)


author: MAUCK, J.

text:
    SCHACK v. LEBAR.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8302.
    Decided Mar. 12, 1928.
    Middleton, P. J., and Mauck, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1053. ROADS AND HIGHWAYS — 225. Charge of Court — 829. Negligence.
    Where road consists of paved portion and dirt strip, charge that it is duty of driver to stick to right side of road, and later explanation, at request of jury, that dirt and paved part of road are to be considered together, in determining area of road, held to constitute reversible error.
    Error to Common Pleas.
    Judgment reversed.
    Kenneth D. Carter, Cleveland, for Schack.
    Frank A. Green, Cleveland, for Lebar.
   FULL TEXT.

MAUCK, J.

Lebar, by his petition in the Common Pleas Court, sought to recover damages resulting from a collision between his automobile, and a wagon team driven by an employee of the defendant, Schack. The latter by cross-petition sought recovery. Each party charged the other with negligence and each party denied the negligence asserted against him. The trial resulted in a verdict and judgment for the plaintiff.

The instructions to the jury require a reversal of the judgment. In part the charge was prejudicial to the plaintiff; in some places it is so obscure that its purport is uncertain. These features need not be discussed. The only part of the charge to which attention need now be called is that given to the jury after its request for further instructions. The jury had been directed in the general charge that it was the duty of each party to stick to the right side of the road. The Court said:

“Under the law of the road,'it is the duty of each of these parties to stick to the right side of his road, and if both parties had done that, the accident, of course, would not have happened.”

The road consisted of an improved portion from fourteen to twenty feet wide, and a dirt strip to the north thereof. The jury was perplexed as to whether the court’s instruction was that the parties should ascertain the right half of the road measured from the center of the improved portion, or measured from the center of the combined improved and unimproved strip. The jury seemed to deem this vital. The Court, in answer to an inquiry made in this behalf, said in effect that the dirt and paved part of the road were to be considered together in determining the area of the road. He said, “Dirt and the pavement are all part of the street.”

In the application that the jury must have given to this language, there was error. Elms v. Flick, 100 OS 166. This is not only the established rule in such cases, but in the case at bar, the plaintiff had specifically pleaded in his fourth specification of negligence that the defendant’s negligence so far as the latter’s position on the road was concerned, consisted in driving his team on “the left side of the driven or used portion of said paved road.”

The Court in its general instructions ought to have limited the jury to finding that the defendant was guilty of negligence in being on the left side of the paved strip, both because that was the law, and particularly because that was all claimed in the petition. While it was the duty of the defendant to have asked that the general instructions be clarified in this respect, and while the defendant did not make this request, it nevertheless became necessary for the court to clear up the matter when the jury asked for more definite instructions and the court failed to accurately and correctly meet this requirement.

For erroneous instructions, the judgment is reversed and remanded.

(Middleton, P. J., concurs.)


author: KUNKLE, J.

text:
    HORWITZ et v. MURRI.
    Ohio Appeals 8th. Dist., Cuyahoga Co.
    No. 8384.
    Decided Mar. 26, 1928.
    Ferneding, PJ., Kunkle and Allread, JJ., of the 2nd Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    1223. VACATION — of Judgment — 557. Fraud and Deceit — 829. Negligence.
    1. Where judgment is rendered against in-dorser, on petition which contains no averment stating facts tending to charge such in-dorser with liability, and some of notes upon which such judgment is rendered are not yet due, securing of such judgment would involve a species of fraud, and would furnish ground for setting aside such judgment.
    2. Negligence of clerk of court in advising defendant as to case pending against him, held to be ground for setting aside of judgment.
    480. EVIDENCE.
    In suit against executors of deceased person, fact that notes upon which suit is based were taken by agent, who is still living and is a witness, would admit testimony of plaintiff.
    Error to Common Pleas.
    Judgment affirmed.
    Stanley & Horwitz, Cleveland, for Horwitz.
    Geo. S. Myers, Cleveland, for Murri.
   FULL TEXT.

KUNKLE, J.

The original action involved in this case arose upon the petition of Alexander Murri to set aside a judgment which had been procured by the said Louis Horwitz in his lifetime against Murri, and which judgment had been rendered at a former term of the court.

The grounds assigned for the impeachment of said judgment were:

First: That the judgment.had been obtained by Louis Horwitz by fraud.

Second: That the judgment was obtained through a mistakef or irregularity of the Clerk or ministerial officer of the court.

Under the head of fraud it is claimed that the petition in the original action did not state a cause of action against the defendant Murri.

It appears from an examination of the original petition that Murri was an endorser of the original notes; that no averment was made in the petition stating facts tending to charge the said Murri with liability by reason of such endorsement.

By the terms of the said notes none of them except the first note was then due.

We, therefore, have a situation in which Murri, without any averment in the petition, as to the presentation of the notes, and so forth, was heM as an endorser upon all of the notes including those not then due.

Judgment was rendered on the petition against the makers of the notes and also the endorsers thereof including Murri.

If the trial court had carefully examined the notes and petition, it would have appeared to the court in the original suit that no case was made out against Murri, and to secure a judgment on the notes under such circumstances would involve a species of fraud. This much may be said upon that branch of the case.

As to the negligence of the clerk or ministerial officer, we find that the defendant in error when served with summons in the original ease, came to the Court House with the summons and made inquiry of the guard stationed in the lower part of the Court House, who advised him to see the Clerk of the Courts. Thereupon defendant in error went to the Clerk’s office and saw a deputy and exhibited his summons, and after some investigation was directed to call upon the Assignment Commissioner. The Assignment Commissioner looked up the matter and informed the defandant in error that there was no case of that kind pending and advised him to forget it.

Defendant in error did so until his attention was called to a new suit that had been brought by plaintiff in error to marshal liens upon his, Murri’s property.

It is claimed in the first place that the evidence of Murri was incompetent because he was suing the executors of a deceased person. This would be true except for the fact that the notes were originally taken by an agent who was still living and was a witness. In our opinion this would admit the testimony of Murri.

The court below, upon these two grounds held that the original judgment should be vacated, but that such order of vacation should be suspended pending a hearing upon the defense of Murri. We think the judgment of the court was supported by sufficient evidence and that such judgment should be affirmed.

Ferneding, PJ., and Allread, J., concur.


author: MIDDLETON, PJ.

text:
    PREG v. PREG.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8364.
    Decided Mar. 12, 1928.
    Middleton, PJ. and Mauck, J., from the 4th Dist.; Cushing, J. from the 1st Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    85. APPEAL — 1104. Statutes — 677. Judgments and Decrees.
    Action, under favor of 11631 GC., to. modify judgment rendered in Common Pleas in prior term of court, not appealable.
    Appeal from Common Pleas.
    Appeal dismissed.'
    Siegel & Siegel, Cleveland, for plaintiff in error.
    D. B. Stone and Lieghley, Halle, Haber & Berick, Cleveland, for defendant in error.
   FULL TEXT.

MIDDLETON, PJ.

In the Court of Common Pleas, the plaintiff filed an action under favor of Section 11631 of the General Code, to modify a certain judgment that had been rendered in the Court of Common Pleas at a prior term of said Court. The action was based upon the claim that the judgment in question was obtained by the fraud of the defendant. It appears from the record that subsequently the action was determined adversely to the claim of the plaintiff who thereupon, appealed the case to this Court. A motion has been filed to dismiss the. appeal upon the ground that the original action or proceeding is not appealable.

We are of the opinion that this motion must be allowed on the authority of Taylor v. Fitch, 12 OS. 169, and Gifford, Admr. v. Ryan, 9, O. App. 419.

In the case first cited it was held that a proceeding to vacate or modify a judgment rendered at a former term was a special proceeding and reviewable in error only.

In the case of Gifford Admr. v. Ryan, Supra, the same doctrine was adhered to and it was there decided that an action under Section 11631, Supra, is not appealable.

It follows that the appeal herein, must be and is dismissed.

Mauck, J., and Cushing, J., concur.


text:
    HAYES v. HAYES.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 7395.
    Decided Mar. 26, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    413. DIVORCE AND ALIMONY.
    Court has power to grant alimony out of wife’s property to husband. He also has power to make such division of property as is just and equitable under all circumstances.
    Error to Common Pleas.
    Judgment affirmed.
    Wilson Kern, Cleveland, for plaintiff in error.
    Clarke & Costello, Cleveland, for defendant in error.
   FULL TEXT.

VICKERY, J.

. This action comes into this court on a petition in error to the Common Pleas Court of Cuyahoga County.

There being no bill of exceptions, the court is unadvised as to just what took place in the court below, but it is claimed that the judgment of the court is contrary to law in that it did not have the power to enter the decree that it did.

In the court below the plaintiff in error brought an action for divorce against the defendant in error, who was his wife and he did not ask for alimony or anything of that kind, but alleged that the property set up in the petition had been obtained from him fraudulently by his w;'(fe and asked to have the conveyance set aside and for a divorce.

A cross petition asking for divorce and certain equitable relief was filed by the wife, defendant in error. The case was heard by the Judge who rendered a decision denying the plaintiff’s right to have this property re-conveyed, saying and deciding that there was no evidence of any fraud in any way, shape or manner, and denied relief in that respect and found that the property in question was in the name olf the wife, but found that the wife had been guilty of gross neglect of duty and for that reason entered a divorce in favor of the husband, but coming on to a distribution of the property between these two persons, as he had the right to do under the statute, he found that the wife owned this certain. property and released the husband’s dower in the property and gave it to her free and clear from any claim that he might have by reason of dower in this property, and he also gave to the husband whatever property stood in his name and released the dower of the wife in such property.

Inasmuch as there is no bill of exceptions to show the extent of the property, we cannot say that the ruling of the court was erroneous. The court had the power to grant alimony out of the wife’s property to the husband, if that had been asked for. He also had power to make such a division of the property as was just and equitable under all the circumstances, taking everything into consideration and we must assume, there being no record before us, that the court did that and the judgment as entered was clearly within the province and the power of the court to make.

We can, therefore, see no error in the proceedings and the judgment is affirmed.

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


text:
    GUARDIAN TR. CO. v. CITY OF CLEVELAND
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8867.
    Decided Mar. 26, 1928.
    Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.
    126. BANKS AND BANKING — 297. Contracts' — 651. Interest.
    Where, by contract, depositary agrees to pay interest on daily balances, and credits, to such balances, checks drawn upon other banks, before such other banks remit, in cash, amounts represented by such checks, depositary is liable for interest on amount represented by such checks as of date of such crediting.
    Error to Municipal Court.
    Judgment affirmed.
    F. K. Pickering, Cleveland, for Guard Tr. Co.
    Carl F. Shuler and Henry S. Bramard, Cleveland, for City.
   FULL TEXT.

MAUCK, J.

, , . The City of Cleveland, pursuant to the statute, made a contract with The Guardian Trust Company by which that company became the depositary of certain municipal funds. The contract provided that the depositary shall

“well and truly receipt for all moneys deposited with it by the Treasurer of the City of Cleveland, and shall safely keep and pay over the same, as provided by the laws otf the State of Ohio and the Municipal Code of the City of Cleveland, and shall, on demand, well and truly pay any and all sums so deposited, together with interest thereon, computed upon daily balances thereof, at the rate of three and twenty-five hundredths per centum (8.25%) per annum.”

The city brought an action on this contract in the Municipal Court of Cleveland for some nine hundred and odd dollars of interest and recovered therefor.

It is now sought to reverse that judgment because it is claimed that on the particular principal sums on which this interest is calculated the depositary is not liable. These principal sums consist of checks for large amounts drawn upon other banks by the City Treasurer and deposited by him with the defendant to the credit of the city. It is shown that these checks were not actually paid in cash to the depositary by the banks on which they were _ drawn until the day succeeding their deposit, and as the drawee bank is perhaps also paying the city interest on daily balances the city is thus, in fact, enjoying for a day double interest on the identical funds. The possibility of this must be admitted. The fact, however, does not affect the defendant’s liability under the provisions of the contract above quoted. Under that contract the bank undertakes to pay interest on the daily balance of the funds on deposit. It further undertakes, as required by ordinance, to make report each day of the balance that is on deposit. If to serve its own convenience, or for any other reason, it treats a check deposited with it as cash and credits the depositor with the amount of that check and certifies that amount with the other credits as going to make up the day’s balance certainly under the contract it is liable for interest on such balance. If the depositary would avoid this liability it could easily do so by holding the check for collection only until the same is paid and certifying the same as a deposit only after the payment of the check. The situation is completely and exactly covered by the contract and the contract requires no interpretation.

The contract, however, has been given a practical interpretation by the parties. The obligation sued upon was entered into in 1925. This contract followed other contracts of identical import made in 1919 and 1922. When the contract of 1925 was made it was with the knowledge that in the performance of the earlier contracts the depositary had paid interest on checks of the same kind, handled in the same way. The city had a right to expect that liability arising in precisely the same way would be satisfied in like manner. The rule that courts may well follow the practical construction given to a contract by the parties themselves is too well established to warrant citations.

Middleton, PJ., concurs.


author: RICHARD, J.

text:
    NUHN et. v. BANK OF VERMILION CO.
    Ohio Appeals, 6th Dist., Erie Co.
    No. 274.
    Decided Apr. 28, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    287. CONSIDERATION — 297. Contracts.
    1. Either benefit to promisor or detriment to promisee constitutes good consideration. Not necessary that detriment shall be actual loss. Sufficient if promisee did something that it was not legally hound to do.
    2. Where Common Pleas Court had rendered judgment against bank and parties, anxious that bank should carry case to Court of Appeals, agreed to hold bank free from payment of said judgment, and executed note, on consideration of carrying up of such case by bank, note so executed held not to be without consideration.
    Error to Common Pleas.
    Judgment affirmed.
    Geo. A. Beis, Sandusky and G. A. Resek, Lorain, for Nuhn.
    J. P. Hertlein, and Henry Hart, Sandusky, for Bank.
   FULL TEXT.

RICHARD, J.

The Bank of Vermilion Company commenced an action in the court of common pleas against C. H. Nuhn, John A. Nuhn and Margaret Penson, three of the four heirs of Christian Nuhn, deceased, upon a written obligation executed by them. The trial resulted in a judgment in favor of the bank for $1986.-60, and this proceeding in error seeks a reversal of the judgment.

Christian Nuhn died on August 15th, 1915, leaving Ida Nuhn his divorced wife and three brothers and one sister as his next of kin. At the time of his death he had on deposit in the Bank of Vermilion Company $900.00 and thi« money was claimed by the widow to have been given to her by decedent. The bank, however, paid the amount of the deposit to the administrator. Thereupon the widow brought an action against it to recover the amount of the deposit, which action resulted in the rendition of a verdict and judgment in her favor against the bank. The amount paid by the bank to the administrator was used by him in the payment of debts of the decedent, leaving a small sum which was distributed to the next of kin. The decedent owned certain real estate in the city <ff Lo-rain, which was preserved for the benefit of the next of kin by reason of using the money so paid to the administrator for the purpose of paying the debts.

^ After the rendition of the judgment against the bank three of the next of kin, being anxious that the bank should carry the case to the Court of Appeals, on October 20, 1917, executed to the bank a written instrument which recites the bringing of the action by Ida Nuhn and the rendition of a judgment in that case for $1,000.00 against the bank, and which bound the signers, if the bank would prosecute eror to the Court of Appeals

“To hold the Bank of Vermilion Company free from the payment of said judgment or of any future judgment which may be rendered against it, providing however, that The Bank of Vermilion Company prosecute said case to the best of its ability and holds itself subject to our advice and order at all times, as to lawyers to be hired and expenses incurred.”

The obligation further recited that in order to protect the bank they had executed on the same day their note of $1100 to cover judgment and costs that might be rendered in the case. On the same day the same three heirs executed to the bank a promissory note reading as follows:

“$1100.00 Vermilion, Ohio, Oct. 20, 1917. Six months after date, for value received, we promise to pay to the order of The Bank of Vermilion Company, Eleven Hundred Dollars, at the office of The Bank of Vermilion Company, Vermilion, Ohio, with interest until due at six percent per annum, and after due at 8 percent per annum. Interest payable semi-annually. This note is given to secure the bank in case it loses out in the case of Ida Nuhn against The Bank of Vermilion Company.
C. H. Nuhn John A. Nuhn.
Margaret Penson.”

After the execution of the above instruments The Bank of Vermilion Company, relying thereon, duly prosecuted error to the Court of Appeals of Erie County, in which court the judgment of the court of common pleas, was affirmed.

The present action is based on the promissory note above set forth and it is urged in defense that the instruments which were executed create no liability against these plaintiffs in error and that they were executed without any consideration. This court can not accede to that contention. The bank was under no obligation to prosecute error to the Court of Appeals, and while it is true that no benefit accrued to the promissors by reason of the promise to pay the bank, yet it is true that detriment resulted to the bank. It incurred the trouble, and expense of prosecuting the case to the Court of Appeals and it has long been settled that either benefit to the promissor or detriment to the promissee constitutes a good consideration. It is not necessary that the detriment to the bank should be an actual loss to it, for under the law it is sufficient if the bank did something that it was not legally bound to do. A familiar case under this branch of the law is Devecmon v. Shaw, 69 Md., 199; 9 Am. St. Reps., 422, in which it was held that an agreement to pay the expenses of another person if he will take a trip to Europe in no way connected with the promissor’s business, is sufficient consideration; and if the promissee takes the trip he may recover the amount of the expense from the promissor. See also Dalrymple, Admr. v. Wyker, Admr., 60 Ohio St., 108.

For the reasons given the judgment will be affirmed.

Williams and Lloyd, JJ., concur.