author: PER CURIAM.

text:
    PATHE, etc. v. DONALDSON, et.
    Ohio Appeals, 1st Dist., Clermont Co.
    No. 96.
    Decided April 18, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    MUNICIPAL CORPORATIONS.
    .(360 P4a) An ordinance authorizing an issue of municipal bonds for a municipal light plant,_ providing that the earnings shall be deposited in a separate account for payment of interest and principal of bonds, operation, upkeep and insurance of plant, is valid.
    (360 O) Rule as to three readings in passage of ordinance is sufficiently conformed to if rule is suspended by three-fourths vote. Three readings in one day not required.
    (360 P4a) Acceptance of higher bid which is for machinery and materials for plant of about 50% more capacity, than next lower bid, notwithstanding some evidence that lower bid was for plant of sufficient capacity to supply needs; not sufficient, in absence of showing of corruption or bad faith, to invalidate contract.
    Error to Common Pleas.
    Judgment affirmed.
    Nichols, Speidel & Nichols, Cincinnati, for Pathe.
    Charles A. Brannoek, Waite, Schindel & Bayless and Herbert Shaffer, Cincinnati, for Donaldson, et.
    STATEMENT OF FACTS.
    Plaintiff in error brought an action as a taxpayer against the officials of the Village of Bethel, Ohio, seeking an injunction against the letting of a contract for the extension and enlargement of the Village Electric Light, Heat and Power plant, and the issuing of bonds to provide for the cost thereof.
    Upon the trial of the cause, the court refused an injunction. From that judgment, the plaintiff, plaintiff in error here, prosecutes error to this court.
    Plaintiff in error first contends that ordinance No. 80, which is the basic ordinance for the issuing of the bonds, is illegal and void, for the reason that it is in violation of Sec. 12,, Art. XVIII of the Constitution, for three reasons: — first, that the ordinance requires the Village of Bethel to keep the public utility in question in repair and maintain the same in first class condition; second, that the ordinance requires the Village of Bethel to keep the plant insured against loss by fire or tornado, in an amount equal to the bonds outstanding; and, third, that under certain contingencies, the ordinance requires the Village to pay for electric light current for street lighting purposes.
    It is contended that these obligations contravene Sec. 12 of Art. XVIII of the Constitution of Ohio.
   PER CURIAM.

Whether or not the provisions of Sec. 12, Art. XVIII limit the imposition of liability further than as security for the bonds outstanding, it is not necessary to decide, since the ordinance itself provides that the earnings from the plant shall be deposited in a separate deposit account and kept separate and apart from other funds of the Village, and shall not be used for any purposes except the payment of interest and principal on bonds and the operation and upkeep of the plant. Nowhere in the ordinance is it provided that the expenses incurred in the operation, upkeep or insurance of the plant shall be paid by the Village, otherwise than from the earnings of the plant. This being true, this provision imposes no liability other than upon the property and revenues of the public utility in question.

Had the ordinance provided that the cost of upkeep, operation, and insurance should be paid for from the general revenues of the Village, we would have a different question.

Our conclusion is that on these propositions. Ordinance No. 80 is not illegal and void, and does not contravene Sec. 12 of Art. XVIII of the Constitution.

The second contention is, that the ordinance is void for the reason that it was not passed in the manner prescribed by the statutes of Ohio. This proposition is argued on the ground that the ordinance, although passed under a suspension of the rules, was not read three times on the same day.

The pertinent part of Sec. 4224, G. C., reads:

“No ordinance * * * * shall be passed, unless it has been fully and distinctly read on three different days, and with respect to any such by-law, ordinance, or resolution, there shall be no authority to dispense with this rule, except by a three-fourths vote of all the members elected thereto * * * *.”

It will be noted that the section nowhere provides in terms for three readings. It provides for reading on three different days. But the section provides that this requirement may be dispensed with by a three-fourths vote of all members elected to council.

We are of opinion that this rule was properly dispensed with, and the ordinance properly passed.

Counsel for plaintiff in error cites the case of Costakis v. Yorkville, 109 Ohio St. 184. That case is not an authority here, as the same question was not presented.

The only case in Ohio directly on this point is the case of Schroder v. Overman, 6 Ohio Decisions, decision by Judge Morris Buchwalter, and we are in accord with that decision.

The ordinance was, therefore, properly passed.

It is next contended that the contract was not let to the lowest bidder, and charges acts and circumstances tantamount to fraud on the part of the officials of the village in letting the contract to Fairbanks Morse Co.

The record discloses that there were three bids in answer to the advertisement for bids. The bids were made on general specifications. Each bidder presented his bid on detail specifications in compliance with the general specifications.

The record discloses that the Fairbanks Morse Co.’s bid for the machinery and materials was for a plant of approximately fifty per cent more capacity than the next lower bid. There was some expert evidence introduced by the. plaintiff' to the effect that the next lower bid, called the Worthington bid, was of sufficient capacity to satisfy all the needs of the village. The lowest bid was considerably lower than the Worthington bid. It does not appear that this bid was satisfactory in any respect.

There is evidence that there were some private conversations between some of the officials 'of the village and the representatives of the Fairbanks Morse Co. prior to the letting of the contract, but there is no direct evidence of corruption or bad faith.

Our conclusion is, that, under the evidence, the trial court was justified in finding the Fairbanks Morse Co.’s bid to be the best bid, and that its finding is not manifestly against the weight of the evidence on these questions.

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

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


source: Caselaw Access Project

author: FARR, J.

license: Public Domain

text:
    SAWYERS v. HUTH.
    Ohio Appeals, 7th Dist., Monroe Co.
    Decided May 2, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES.
    (220 A) A statement in lieu of an account, filed by an administrator, is sufficient in so far as it is correct.
    Error to Common Pleas.-
    Judgment reversed.
    Lynch & Sawyers, Moore, Devaul & Moore, Lisbon, for Sawyers.
    T. J. Kremer, Esq., Lisbon, for Huth.
    STATEMENT OF FACTS.
    John Huth was appointed Administrator of the estate of his deceased wife, Mary Huth. Some time after his appointment, an inventory of personal property was filed, and exceptions filed to the inventory.
    Later, a writ or application was filed to remove said Administrator, upon the ground of personal interest; and it was claimed that he was seeking to withhold a part df the property of the estate, and claim it as his own.
    Thereupon,. Huth filed what is called a statement in lieu of account, in which he tendered his resignation as such Administrator, which was accepted, and an Administrator de bonis non appointed. A motion was filed to strike the statement in lieu of an account from the files, upon the ground that the same is not authorized by law, and that the only way a discharge could be had would be to file a regular account in the Probate Court.
    Exceptions were filed to the statement in lieu of an account attacking some of the items thereof, and a motion to strike the exceptions from the files was sustained, and the Common Pleas rendered the same judgment as that rendered by the Probate Court, and it is stated in the journal entry that the Common Pleas heard no testimony upon either side of the case.
   FARR, J.

The first issue to be determined is whether or not the paper called a statement in lieu of an account would be sufficient as an account filed in the estate.

An examination of the same discloses that the Administrator claims credit for certain amounts, such as attorney fees $100; amount for purchase of monument $225; amount advanced for funeral expense $153; amount in cash set off to widower $112.

The account filed, although termed a statement in lieu of an account,* would be sufficient insofar as correct, and the name given to it would be of no particular moment. Therefore, the conclusion is that the account was sufficient, if correct.

However, the Common Pleas made its finding without any testimony before it, and, for ,that reason, it follows that the judgment must be reversed, and the cause remanded to the Probate Court where the former Administrator should file a settlement account in the usual way, and permit the same to be passed upon by the Probate Court.

Judgment reversed and the cause remanded to the Probate Court for such proceedings as are authorized by 'law.

(Pollock and Roberts, JJ., concur.)


author: VICKERY, J.

text:
    SCHOENL v. WARNER WHITE CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8611.
    Decided May 21, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    COURTS.
    (180 M3) Court of Appeals, which decides question, which decision is later ignored by Court of another district, not required to certify case subsequently decided, wherein first decision is followed, on ground of conflict with outside district.
    Motion to Certify.
    Motion overruled.
    White, Hammond, Brewer & Curtiss, Cleveland, for Schoenl.
    Griswold, Green, Palmer & Hadden, Cleveland, for Warner White Co.
    STATEMENT OF FACTS.
    This matter comes before us on a motion to certify the record in this case to the Supreme Court, on the ground that it conflicts with the judgment rendered by the First District in the case of Rottman v. Wensing, decided June 27, 1927, and reported in the Ohio Law Bulletin and Reporter May 7, 1928.
   VICKERY, J.

I have examined the Hamilton County case ■with which they claim we are in conflict and cannot agree that we are in conflict with that decision.

There are two grounds upon which our court decided the case in question. One was that it was a suit for commissions and the contract being oral was, therefore, not enforceable, no memorandum having been made in writing, and the suit not being pending at the time of the going into effect of the statute, and we held that the statute which was passed and went into effect July 10, 1925, being remedial applied to this suit; but it wa3 claimed this contract having been made before this statute went into effect, a cause of action had accrued and, therefore, even though the statute of frauds required such. contract or memorandum to he in writing, it. would not affect this accrued cause of action. Upon that theory of the case it might be in conflict with the Hamilton County case, but even then, as I will point out later, we would not be called upon to certify this case.

But let us assume that we are in conflict with the First District in the case referred to. In the case of Cramer v. Patterson, decided June 28, 1926, a year before the Cincinnati case was heard, this court decided exactly as it decides now, and instead of we being in conflict with the First District, the First District is in conflict with the Cramer case which this court decided a year before. I think an analysis of the First District case will show that it is not in point, but assuming that it is, the question remains, Is a Court that decided a question when another Court of Appeals in this State ignoring that decision decides otherwise, — is this Court, I query, compelled to certify the case because it subsequently adheres to the former decision, or is it compelled to certify because another Court ignored the decision of this Court ? We do not think' that was contemplated by the statute.

Another thing: The Cincinnati case is not in point because the statute was not pleaded nor was the statement of claim in such a condition that it was demurrable. The statute is a defense which may be waived and is only available either by demurrer or answer. That not having been done, the court rightfully decided the Cincinnati case, whether the statute was complied with or not, and therefore what the court said about causes of action accruing before the statute was nassed not being affected by the statute, was mere dicta. The court decided the case on another question entirely and then injected its belief that all actions that had accrued were immune against this statute, but an examination of the opinion of Judge Hamilton will show this is mere dicta for they had already decided the case on another ground which was tenable which would sustain the judgment, and for the reason that we had already decided the question the other way, and in this action merely followed our former decision, we do not feel that we are called upon to certify this record to the Supreme Court and the motion will, therefore, be overruled.

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


author: CUSHING, J.

text:
    BERGER v. STATE.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3212.
    Decided April 30, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CONTEMPT OF COURT.
    (145) Accused who, during pendency of motion to quash indictment and while court was in session, approached bench without leave or notice, tossed petition to trial judge, requesting him to nolle prosecution; copy of such petition having been given to press, was guilty of contempt of court.
    Error to Common Pleas.
    Judgment affirmed.
    Thomas D. Slattery and Anthony B. Dunlap, Cincinnati, for Berger.
    Charles P. Taft, Pros. Atty., Carl E. Basler, Asst. Pros. Atty., Cincinnati, for State.
    STATEMENT OF FACTS.
    John S. Berger, a resident of California, was called as a witness on behalf of the defendant in a first degree murder case, being tried in the Court of Common Pleas of Hamilton County. He was sworn and testified.
    Berger was subsequently indicted by the grand jury of Hamilton County, Ohio, for perjury.
    A motion to quash the indictment was made, argued, and taken under submission by the Court. Before the court had decided the question, and while the Judge was on the bench, Berger approached from the side, and without leave or notice, tossed a so-called “petition” on the bench in front of the Judge:
   CUSHING, J.

Under 13621 GC., the court was to determine whether there were any defects apparent upon the face of the record, including defects in the form of the indictment and in the manner in which the offense was charged.

The petition in question was prepared and presented to the court for the purpose of influencing it in its decision.

It has been held that if the act of the accused reflected upon the conduct of the court with reference to a pending suit and tended in any manner to influence its decision, it would be contempt.

A copy of the petition was given to the press before it was presented to the court.

Cooley on Constitutional Limitations, 5th Ed., page 522, says:

“It has also been held in many cases that the publication of an article in a newspaper commenting on proceedings in court then pending and undetermined, or upon the court in its relation thereto, made at a time and under circumstances calculated to affect the course of justice m such proceedings, and obviously intended for that purpose, may be punished as a contempt, even though the court was not in session when the publication was made.”

See also: State of Washington v. Tugwell & Baker, 19 Wash. 238.

In this instance the court was in session.

It is claimed by counsel for plaintiff in error that his act did not constitute contempt of court. Contempt of court consists in interfering or attempting to interfere with the proper execution of legal process, and with an attempt either on the bench or off to influence a court in its decision of a matter pending before the court.

From the record we are of opinion that the act constituted contempt of court; that the judgment of the Court of Common Pleas was within the statute.

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


author: MAUCK, J.

text:
    POLTIS, et. v. SWITLINSKI.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8639.
    Decided May 28, 1928.
    First Publication of This Opijnion.
    Syllabus by Editorial Staff.
    Middleton, PJ., and Mauck, J., of the 4th Dist., sitting.
    TRIAL.
    (590 Jh) A trial court may impose conditions on which it will reopen its judgments, such as payment of adverse party’s attorney fee incurred.
    Error to Common Pleas.
    Judgment affirmed.
    McCarron & Rosenbaum, Cleveland, for Poltis, et.
    T. J. Herbert, Cleveland, for Switlinski.
    STATEMENT OF FACTS.
    On October 14, 1926, Switlinski filed his petition against George and Mary Poltis, for the recovery of money. Service was had the next day by summons left at the residence. Answer day was November 13. Defendants made no answer. On February 3, 1927, the case was assigned for hearing. On February 26th it was heard on testimony and judgment entered for the plaintiff, in the sum of $527.80. An execution was issued on this judgment March 15th.
    The defendants on April 1st filed a motion to. vacatel this judgment. No excuse . was offered for the default but the motion to vacate alleged that good defenses to plaintiff’s claim, existed. On April 27th the motion was granted
    “in that the judgment is suspended pending trial of cause on the issues joined and the defendants are given leave to ‘ file answer on or before April 30, 1927, on condition that the defendants, payi all excess costs and the sum of $50.20 attorney fees to attorney for plaintiff on or before April 30, 1927, otherwise motion is overruled.”
    On April 30th the defendants filed an answer sufficient in law but failed to comply with the conditions mentioned. Following this, the plaintiff moved to strike the answer from the files and to. overrule the motion to vacate. This motion was sustained and to this order error is prosecuted to this court.
   MAUCK, J.

It is unnecessary to cite authorities establishing the nature and extent of the power of a court over its judgments during term time, further than to refer to First Nat’l Bank v. Smith, 102 O.S. 121, where it is held that such power is limited only by the sound discretion of the court. It is not a statutory but a common law power and the rule in Ohio does not differ from that generally prevailing.

That a court may attach reasonable conditions is the almost universal rule. Among other, conditions so imposed may be the refunding of both costs and expenses. 15 R. C. L. 722. ’

In the note to State v. District Court, Ann. Cases 1912 B. p. 249, are collected the author-itiés holding that when an order opening up a default is made on condition that the costs be paid, such payment may be a condition precedent to a new trial.

In' this case we have no means of knowing what lead the trial court to fix the particular conditions imposed. It is significant that the defendants’ motion failed to recite, any reason for the default and the court may have found the defendants’ conduct to have been willful. It was bound to find that extra costs had been made and may have found that extra expenses such as attorney fees, had been incurred. There is no bill of exceptions here, and we indulge every presumption favorable to the action of the trial court. We thus consider the power of the court only, and not the propriety of its exercise.

Resnick v. Paryzik, 154 N E 350 goes to the sufficiency of the defense offered in that case rather than to the authority of the court. It does not touch the power of the court in the exercise of a reasonable discretion to impose conditions upon which the judgment will be opened.

(Middleton, PJ., concurs.)


author: BY THE COURT.

text:
    FREEMAN v. STATE.
    Ohio Appeals, 2nd Dist., Montgomery Co.
    No. 832.
    Decided March 15, 1928.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 M5) Conviction for murder in first degree cannot be sustained where the evidence does not prove or tend to prove, it was wilfully or purposely comimitted.
    (190 S2) Conviction for second degree murder is not authorized on plea of self defense.
    Error to Common Pleas.
    Judgment affirmed.
    J. P. Jetton and J. G. Waiters, Dayton, for Freeman.
    Ralph E. Hosket, Pros. Atty., Charles J. Brennan, Maxwell G. Dice, Dayton, for State.
    STATEMENT OF FACTS.
    It is urged by counsel for plaintiff in error that there is no evidence tending to prove thát the murder was willfully and purposely committed. This contention is based on the fact that the gun which was used was the gun of the plaintiff in error which had previously been, taken from him by the policeman. Unless it can be proven, therefore, that the gun passed into the hands of Freeman or was used by him, that claim would be sustained. We have, however, the testimony of the only eye witness, Mr. Pappas, that after Freeman had left his car he came over to Hdrn, put out his hand toward Horn and said: “Stick ’em up — I’m going to kill you.” Freeman also testified that: “Yes I know I had hold of tbe handle of the pistol to keep him from shooting me.” This; in connection with the confession of Freeman to the effect that he did shoot the officer, we think, makes out a sufficient case to go to the jury. The only testimony in denial thereof is the testimony óf Freeman.
    . It is claimed, however, that there was enough in this contention to have required the trial court to submit to the jury verdicts covering manslaughter and second degree murder. This contention does not, however, arise out of the testimony for the state, but depends upon the testimony of the defendant, Roy Freeman. His testimony however, tends to support his plea of self-defense. He testifies that when the officer in the scuffle attempted to shoot him, he caught the pistol and bore it down so that the shot entered his limb and that on the second shot the pistol was aimed toward Officer Horn and shot him.
   BY THE COURT.

Now if this testimony is true it would be the basis of a verdict for acquittal. We think the court rightfully held that there was evidence tending to prove- the commission of the offense of murder in the first degree, and that if the defendant was not guilty of murder in the first degree because of his defense of self-defense, he was entitled to an acquittal. This would be the logic of the situation and would be the proposition which would naturally be contended for by counsel for the defendant on the trial.

Upon a full consideration of all the evidence and all the points argued, we are of opinion that there was no prejudicial error and that the verdict of guilty was not contrary to and against the manifest weight of the evidence.

The judgment must therefore me aifiirmed.

(Ferneding, Kunkle and Allread, JJ., concur.)

The time for execution will be fixed as April 20, 1928, instead of April 6th, as announced in former decision.


text:
    CENTRAL ACCEPTANCE CORP. v. BRADFIELD, et.
    Ohio Appeals, 7th Dist., Columbiana Co.
    No. 386.
    Decided April 12, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    COMMERCIAL PAPER.
    (120 E) One who, by qualified indorsement (without recourse), negotiates note signed by infant, is liable under warranty provided in 8170 G.C.
    Error to Municipal Court.
    Judgment reversed.
    Mackall & Thompson, East Liverpool, for Central Acceptance Corp.
    Foulks & Stevenson, East Liverpool, for Bradfield, et.
    STATEMENT OF FACTS.
    This cause is here on error. The action originated in the Municipal Court of East Liverpool, and resulted in a judgment for the defendants below.
    William Jefferies purchased an automobile from E. L. Bradfield & Son, and gave, as a part of the consideration therefor, a note and chattel mortgage. This note was reduced by payments until the balance due was but $76; in the meantime the mortgage and note had b.een transferred to the Central Acceptance Corporation of Cincinnati, which forwarded same to their attorney in the city of East Liverpool for collection, Bradfield residing in the State of West Virginia, suit was brought before a Justice of the Peace in and for Hancock County; and, upon the trial of the cause in the Justice’s Court, Bradfield tendered the defense of minority and successfully maintained the same. The action was then dismissed because it was disclosed that Jefferies was only 18 years of age at the time he signed the note in question.
    In the transaction with the agent who sold the automobile, it appears that Bradfield stated that he was a minor, but that the agent of the company who sold the car suggested that his age be given as 21 years, which was done accordingly. After the dismissal of the suit in the Justice’s Court of Hancock County, an action was brought against E. L. Brad-field & Son in the Municipal Court of East Liverpool, upon the theory that the transfer of such paper carried with it a warranty that the party originally executing the paper had legal capacity so to do. But, as before stated, the judgment and finding of that court was in favor of the defendant.
   FARR, J.

It is provided in part of Sec. 8170 G.C. as follows:

“Every person negotiating an instrument by delivery or by a qualified in-dorsement warrants:
“1. That the instrument is genuine and in all respects what it purports to be.
“2. That he has a good title to it.
“3. That all prior parties had capacity to contract.”

Two things are to be noted in the above; first, that every person negotiating an instrument by delivery or by a qualified endorsement warrants that the instrument is genuine and in all respects what it purports to be. In the instant case the endorsement was qualified. It was without recourse.

And then in paragraph three it is provided, “That all prior parties had capacity to contract.”

The conclusion is therefore that the provisions of Sec. 8170 apply in the instant case, because, in the trial before the Municipal Court, it was established, beyond question, that Jefferies, at the time he signed the note, was a minor under the age of 21 years, towit, of the age of 18 years.

And having determined that the provisions of Sec. 8170 apply in this case, it follows that the judgment is contrary to law, and for that reason is reversed, and, the cause remanded.

(Pollock and Roberts concur.)


author: SNEDIKER, J.

text:
    HOLLENCAMP et v. GREULICH et.
    Common Pleas Court, Montgomery Co.
    No. 59991.
    Decided July 9, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES — Children. (100 A).
    (220 D)_ While an adopted child may properly inherit from his adopting parent dying intestate he cannot inherit property, from an ancestor or brother of such adopting parent.
    Heard on demurrer.
    Demurrer sustained.
    H. H. Hollencamp, Dayton, for Hollencamp.
    W. S. Rhotehamel, Dayton, and Keller, Keller & O’Leary, Appleton,. Wis., for the Demurrer.
    McMahon, Corwin, Landis & Markham, Dayton, against the Demurrer.

      STATEMENT OF FACTS.
    This action is brought in this court to sell the real estate belonging to the estate of Andrew Greulich, late of this county, deceased, for the purpose of paying his valid debts, the personal property not being sufficient. To the petition plaintiff administrator has attached an exhibit showing the debts which it will be necessary to pay out of the proceeds of the sale of the real estate.
    As one of the pleadings filed in the case, we find the answer of Millard Greulich, which is to the effect that he is a legal heir and representative of Joseph Greulich, deceased,. who was a brother of Andrew Greulich, plaintiff’s decedent. He says that he was legally adopted by Joseph Greulich in the State of Wisconsin, on the 30th day of June, 1886, pursuant to the laws of that state, and that by virtue -of such adoption, he is legally entitled to share in the estate of Andrew Greulich as a legal heir and representative of Joseph Greulich, his adopted father.
    To this answer a demurrer has been filed by Josephine Reidl, who is a daughter, by birth, of Joseph Greulich and Adella Greulich, his' wife.
    The facts with reference to this estate, as they relate to the parties and to their relationships, are, as we understand, as follows: Andrew Greulich, who was in his lifetime the owner of the real estate in question, died intestate in this county on January 29, 1917. Prior to his death, in 1906, Joseph Greulich, who was the father of Josephine Greulich Reidl and the adoptive father of Millard Greu-lich, died leaving Josephine Greulich Reidl and Millard Greulich surviving him, both of whom were living at the time of the- death of Andrew Greulich. When Andrew died, there were living of his brothers, Leo, Albert and Rey-nold. There had deceased of his brothers and sisters, Joseph, Catherine, Barbara, Theresa and Constantine. Of Joseph and Catherine, children survived. Of Barbara, Theresa and Constantine, children and grandchildren survived.
    The interest of Joseph in his brother Andrew’s estate, had he outlived him, would have been one-eighth, and this one-eighth it is, which is the subject of the controversy between Josephine Reidl and Millard Greulich, Josephine claiming the entire one-eighth by reason of the fact that she was a child of Joseph and Millard claiming one-half of the eighth cast by the law upon the heirs of Joseph, because of his adoption as recited in his answer.
   SNEDIKER, J.

Since Andrew Greulich died intestate, any interest of an heir through one of his brothers or sisters must be defined by the law of Ohio, where this real estate is located. Our question then is, whether the law of this state gives to an adopted child an interest in the estate of a deceased brother of his adoptive parent, whether that adoption be in this state or in another state.

A principle to which we have already referred is more elaborately stated in Thompson on real property, at Sec. 2320.

While this adoption was had in the State of Wisconsin and the law which governs the rights of the parties on and subsequent to the adoption are entitled to full force and effect, yet, if the descent of real estate in Ohio is to be governed by our law, it is to this latter we must look to determine the rights of the parties. Section 8030, so far as necessary for this case, reads:

“* * * and the child shall be invested with every legal right, privilege, obligation and relation in respect to education, maintenance and the rights of inheritance to real' estate or to the distribution of personal estate on the death, of such adopting parent or parents as if born to them in lawful wedlock. * * *”

In passing upon these provisions of the General Code, the Supreme Court of Ohio adheres to the rule laid down in the Phillips, Exr., v. McConica, 59 Oh. St. 2.

We may here say that in passing upon the Wisconsin Statute, the Supreme Court of Wisconsin used similar language, in the 185 Wisconsin, at p. 393.

In this decision of the Supreme Court of Wisconsin is quoted also the 143 Kentucky, p. 133.

■This is .followed by a quotation of numerous authorities, such as Surman et v. Surman, 114 Oh. St. 579.

This language :of Judge Jones is referred to by Judge Allen in the case of Albright et al v. Albright et al, 116 O. S., 668, and with the concurrence of Judges Day, Robinson and Matthias^ is qualified as follows:

“We agree with the contention of the defendant in error that Sec. 3139 and 3140, R.S.j place the adopted child upon a high plane among the other states of the Union. Also under this statute as amended, the child is invested with every legal right, privilege, obligation, and relation in respect to education, maintenance, and rights of inheritance to real estate or distribution of personal estate on the death of the adopting parent or parents as if born to them in lawful wedlock, and this court has recently enforced this statute with respect to such inheritance rights. Surman v. Surman, 114 Ohio St., 579. Sections 3139, 3140, R.S., however did not give to an adopted child the same rights of inheritance to real estate or to distribution of personal estate in the property of an ancestor of the adopting parent as if he had been born to the adopting parents in lawful wedlock. This was the specific holding in Phillips v. McConica, Guardian, 59 Ohio St., 1, which held in paragraph 4 of the syllabus that 'an adopted child is enabled, by section 3140 R.S., to inherit from its adopter, but not through him, from his ancestors’.”
“This decision is still law in this state.”

Albright’s case was one of .testacy, blut Judge Allen said:

“Even under the provisions of the statute if the case were one of intestacy, Jesse Albright would be merely a strariger so far as Charles Albright’s estate was concerned.”

The adopted child in this case attempted to participate in the estate of the father of his adoptive parent.

We cannot find in the language of Section 8030 of the General Code anything which we can construe as entitling an adopted child to inherit through its adoptive parent from an ancestor of such parent or from the parent’s brother or sister. And without explicit lan-gauge to that effect it is not the privilege of the Court, by interpretation, to give the Section any such meaning.

We are therefore of the opinion that the demurer ought to be sustained.


text:
    WILCOX v. STATE.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8925.
    Decided May 14, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CRIMINAL LAW.
    (190 B4) Orally demanding, of a woman, certain monthly sums, that if she did not pay said sums he would subject her and her family to the ridicule and contempt of society, by raiding her premises and searching for intoxicating liquors, is such a menace as constitutes blackmail.
    (190 I) Proof of crime, at or about the time charged, held sufficient if time is not of the essence of the offense.
    Error to Common Pleas.
    Judgment affirmed.
    • Mooney, Roth & Pollack^ Cleveland, for Wilcox.
    E. C. Stanton, Esq., and Jack A. Persky, Esq., Cleveland, for State.
    STATEMENT OF FACTS.
    ' The plaintiff in error was convicted in the Common Pleas on the charge of blackmail contained in an indictment returned by the grand jury of Cuyahoga Co., reading in part as follows:
    “* * * orally demand of one Mary Wolinski, certain moneys in the amount and of the value of $25.00 per month * * by then and there telling her orally that if she, * * * did not pay said sums of money to Ralph Wilcox aforesaid, he, Ralph Wilcox, would subject her and her family to the ridicule or contempt of society by raiding the premises occupied by said Mary Wolinski * * * at regular intervals upon the pretext of searching for intoxicating liquors.”
   PER CURIAM.

Two assignments of error are urged as .grounds for reversal:

First: That there was no evidence to sustain the allegations in the indictment.

Second: That there was a fatal variance between the allegations in the indictment and the proof offered to substantiate same.

Iii support of the first assignment of error it is pointed out that the only testimony offered to substantiate the allegation of menaces and threats, etc., contained in the indictment, is the testimony of Mary Wolinski wherein she stated that the accused said to her:

“If you will pay me twenty-five dollars, a month I won’t come here and I won’t raid your place. If you pay me twenty-five dollars a month, I will let you alone and if not you will feel sorry.”

It is argued that at most the transaction related by Mary Wolinski would indicate a solicitation of the bribe and an acquiescence thereto in order to prevent further raiding of her premises.

The section of the G. C. under which the indictment was returned is Sec. 13384.

The evidence offered by Mrs. Wolinski as to the nature of the transaction between her and the accused is not all of the evidence offered in this case. On page 24 of the record it appears that the accused told Jankowski, the detective, that he had been taking money from Mrs. Wolinski for a couple of months; that he asked Jankowski to be given a chance and allowed to go.

A menace is defined as a threat or declaration of an intention to cause evil to happen to another. It is not restricted to threats of violence to personal property nor to threats accusing a person of crime. A threat is a menace of destruction or injury to person, character or property.

In 17 O.C.C. 315, In re disbarment Proceedings v. Burke, it was held that

“No precise words are needed to convey a threat. A threat may be made by means of innuendo or suggestion, as well as by. express language.”

Can -there by any doubt from a reading of the conversation between, the accused and Mary Wolinski that the accused sought to leave a very clear impression with her as to what .the consequences would be if she does not comply with his request and submit to the levy of tribute ? ■ An officer of the law is none the less guilty of soliciting a bribe merely because he used threats at the time he solicited the bribe. Likewise an officer of the law is none the less guilty of blackmail if he used menaces and threats in his demanding money, merely because his words also amount to the solicitation of a bribe.

As to the second assignment of error, plaintiff in error points out that there is a fatal variance between the indictment and the evidence offered to substantiate the same as to the time when the offense was committed. The indictment sets forth that a crime was committed on or about March 15, 1927. The evidence of the demand for money fixes the time as of April 1, 1927. Section 1381 G.C. expressly provides that an indictment shall not he invalid and the trial shall not be stayed or affected, by omitting to state the time at which the offense was committed in a case in which time is not of the essence of the offense, or having stated the time imperfectly.

In Tesca v. State, 108 O.S. 287 it was held that in a criminal charge the exact date and time are immaterial, unless in the nature of the offense exactness of time is essential. It is sufficient to prove the alleged offense at or about the' time charged.

Upon a perusal of the record, we are unable to disturb the judgment of conviction and the same is, therefore, affirmed.

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


text:
    BAMBOO GARDENS CO. v. KIBBEE PAINTING & DECORATING CO.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8859.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ERROR.
    (260 Tc) A transcript not filed within 60 days limit gives the Court of Appeals no jurisdiction to review.
    Error to Municipal Court.
    Petition dismissed.
    Wm. F. Fitzgerald, Esq., and F. E. Coleman, Esq., Cleveland, for Bamboo Gardens Co.
    Smith, Olds, Smith & Shepherd, Cleveland, for Kibbee Painting & Decorating Co.
    STATEMENT OF FACTS.
    This action comes into this court to reverse a judgment rendered in the Municipal Court of Cleveland.
    It seems that a motion was made in this case to dismiss the proceedings in error, for the reason that no transcript had been filed or was not filed in time. It appears that the judgment or finding was rendered on the 25th day of November; that a motion for a new trial was made and on the first day of December a motion for a new trial was overruled. A petition in error was almost immediately filed in the Court of Appeals to reverse said judgment, hut no transcript of the proceedings nor the original papers were filed in this court until the second day of February, whereas the time expired on the 80th day of January and that the transcript was not filed within the sixty days required by law.
   VICKERY, J.

We have examined this record and find that to he the fact. There having been no transcript filed within the limit required by law, this court was without jurisdiction and the petition in error and the proceedings will, therefore he dismissed for want of jurisdiction.

The petition in error will be dismissed for thei reason that the transcript was not filed in time.

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


author: FUNK, J.

text:
    MILLER, Admr. v. SHEPARD, et.
    Ohio Appeals, 9th Dist., Summit Co.
    No. 1461.
    Decided June 1, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES — Children (100 A).
    (220 D) A child legally adopted under the laws of Ohio is included within the meaning of the word “issue” as used in 8577 GC.
    Property inherited from a deceased spouse, under subdivision 2 of 8574 GC., descends from and not through such surviving spouse, under 8577 GC., upon his or her death, intestate.
    Appeal from Common Pleas.
    Decree for Defendant, Shepard.
    Carson, Moore & Howes, Akron, for Miller, Admr.
    McCuskey & Cotton, Lemuel L. Woods, Akron, for Shepard, et.
    STATEMENT OF FACTS.
    Raymond E. Miller, as administrator of the estate of George V. Miller, filed his petition in the common pleas under favor of 10857 GC., asking the court to instruct him as to whom he should pay the funds in his hands as such administrator.
    The case was heard upon an agreed statement of facts, the pertinent parts of which are as follows:
    On or about June 8, 1881, George V. Miller and Eliza A. Miller, who were husband and wife, adopted the defendant Louella Miller Shepard; that thereafter said adopting mother, Eliza A. Miller, died, and the adopting father, George V. Miller, afterwards remarried, his second wife being Jennie Miller. Said Jennie Miller acquired certain real estate by purchase during coverture with said George V. Miller and continued as the owner thereof in fee simple until her death. Said Jennie Miller died Nov. 12, 1925, intestate and without children either natural or adopted, and leaving her said husband, George V. Miller, who thus came into possession of said property, subject only to her debts, under the provisions of 8374 GC., as her only heir at law.
    The plaintiff, Raymond E. Miller, was, on Nov. 28, 1925, appointed administrator of her estate, and on Jan. 21, 1926, and before her estate was settled, said George V. Miller died intestate, leaving no widow and no natural-born children or heirs thereof, but leaving said Louella Miller Shephard as his only adopted child.
    Said George V. Miller also left two brothers and two sons of a deceased brother and said Jennie Miller also left two brothers and two sisters, all of whom were made parties defendant in the court below and are parties in this court. Said Raymond E. Miller was also appointed' administrator of the estate of George V. Miller, deceased.
    Said real estate left by said Jennie Miller, deceased, was sold by said Raymond E. Miller, as administrator of her estate, to pay debts. There was a balance left of $2,185.19, which said Raymond E. Miller, as administrator of the estate of Jennie Miller, turned over to himself as administrator of the estate of George V. Miller, deceased, and is the fund in his hands for distribution.
    Said Louella Miller Shepard filed an answer and cross-petition, claiming said fund' as sole heir of said George V. Miller, deceased, under the laws of descent and distribution. An answer and cross-petition was also filed on behalf of the brothers and sisters and legal representatives of both decedents, George V. and Jennie Miller, claiming that said fund passes and descends to them, under the provisions of 8577 GC.
   FUNK, J.

Is an adopted child “issue” of the adopting parent within the meaning of the word “issue” as used in said Sec. 8577 GC., and thus stand in the same position as a natural-born child, and thereby prevent the property of an intestate decedent which came from a deceased spouse from passing one-half to the brothers and sisters of the decedent and one-half to the brothers and sisters of the deceased spouse from whom the property came, under the provisions- of said Sec. 8577 GC. • ■

. The court below held in favor of the adopted child, and the case is in this court on appeal by the brothers and sisters, or their heirs, of both decedents, the said George V. and Jennie Miller.

This fund is not ancestral and became the property of said George V. Miller upon the death of Jennie Miller, intestate and without issue, subject to the debts of her estate, under the provisions of 8574 GC., and that he could dispose of it during his life by contract or will as he saw fit, and upon his death without having disposed of it by will or otherwise, it passed not only to his children but that in the absence of children it descended alone to his heirs at law, was definitely settled by our Supreme Court in Brower v. Hunt, 18 O.S. 311.

This section (8577) of the Code is recognized by our Supreme Court as having been passed for the purpose of avoiding the supposed injustice of the rule established in Brower v. Hunt, which was that the whole of the non-ancestral property which came to the relict from a deceased spouse descended alone — upon the death of the relict intestate and without issue — to his or her kindred. Although our legislature enacted the law which is now -said Sec. 8577 for the purpose of avoiding the supposed unjust effect of the rule established in Brower v. Hunt, the legislature at the same time seems to have acquiesced in and accepted the rule thus established. That the legislature acquiesced in and accepted this rule is apparent from the fact that this law as originally passed and the acts amendatory thereof merely limit the amount of property passing to the brothers and sisters, or their legal representatives, of such relict, by taking the half of it from them and giving it to the .brothers and sisters, or their legal representatives, of' the spouse from whom the property came, and left the other half to descend as the whole of such property had theretofore descended. This law, as originally enacted, and as amended, and as in force since the last amendment thereof became effective in July, 1923 (110 O.L. 13), does not change the character of such property or the way in which such property descends

Stembel v. Martin, 50 O.S. 495.

Stockton v. Frazier, 81 O.S. 227.

Larkins v. Routson, 115 O.S. 639.

Furthermore, it is apparent that this fund is the property of George V. Miller, and descends from him as his property, and not through him, as the property of Jennie Miller.

A determination of the question under consideration depends upon the intention of the legislature in enacting our adoption laws, as appears from the language used to express that intention and the intention and purpose of enacting what is now said Sec. 8577 in the light of the holding in Brower v. Hunt and in subsequent decisions concurring in such holding and the language used by the legislature to express that intention and purpose.

We have hereinbefore pointed out the purpose of G.C. 8577. The language of our adoption statutes pertinent to the question at issue is found in G.C. 8030 and reads as follows:

“* * * and the child shall be invested with every legal right, privilege, obligation and relation in respect to. education, maintenance and the rights of inheritance to real estate, or to the distribution of personal estate on the death of such adopting parent or parents as if born to them in lawful wedlock * *

Some claim is made that the clause following this language in said section and which reads—

“providing such child shall not be capable of inheriting property expressly limited to the heirs of the body of the adopting parent or parents”—

supports the contention on behalf of the brothers and sisters of decedent. We think said clause has no bearing whatever upon the situation in this case, as there are no words in said Sec. 8577 expressly limiting such property to the heirs of the body of the adopting parent, and it merely uses the word “issue” alone, without any limitation.

In the case of Cochrel v. Robinson, 113 O.S. 526, the Supreme Court held that a designated heir, as provided for in G.C. Sec. 8598, was included within the word “issue” as used in said Sec. 8577. The judge who wrote the opinion in this case, in discussing the question, says that—

“These provisions of the statutes creating the rights of inheritance between the parties to an adoption or the parties to a designation of an heir and the provisions of the law of descent and distribution of intestate estates are in pari materia, and should, therefore, be construed together as one law”; and that
“The word ‘issue’ has several meanings in the law of decedents’ estates. What its meaning may be in a given case depends upon the circumstances under which it is used, whether it 'be found in a will, a contract, or statute. Its primary signification imports descendants and has to do with the blood of the ancestor,- but by general use the word ‘issue’ has often a wider signification and may include not only ‘children,’ but ‘grandchildren,’ ‘descendants,’ and ‘adopted children.’”

Further along in this opinion the judge says:

“We therefore ascribe the same meaning to the expression ‘child bom in’ lawful wedlock and ‘issue of’ those united in lawful wedlock,”

and quotes with approval the following from Buckley v. Frasier, 163 Mass., 527, 27 N. E. 769:

“The general intent of the statute (Pub. Sts., c. 148) is to place the adopted child in relation to either of his adopting parents, so far as their property is concerned, in the same position that he would be if their natural child. No stronger expression could be used than that which permits hint to take the share of the property of the adopting parent ‘that he would have taken if born to such parent in lawful wedlock.’ That the adopted child should be deprived of that which is given so explicitly is not readily supposable. There is less difficulty in holding that the word ‘issue’ is used in the sense of child or children, as thus construed it includes adopted children. If construed otherwise, the adopted child no longer occupies the relation of a child born in lawful wedlock to either of his or her adopting parents.”

In the case of Surman v. Surman, 114 O.S. 579, our Supreme Court held that the words “afterwards has a child living,” comprehends an adopted' child living after the testator’s death and who was adopted after the making of the will, and that such child could have the will revoked as to it, under the provisions of G.C. 10561, the same as a natural-born child could do.

Following the reasoning of the Supreme Court in these two cases and applying it to the language used in our adoption laws, and taking into consideration the purpose for which the law that is now G.C. See. 8577 was enacted, we are impelled to the conclusion that our legislature intended to confer upon a child legally adopted under the law of Ohio, all the inheritable rights of a child born in lawful wedlock, and that such adopted child is included within the meaning of the word “issue” as used in said Sec. 8577; in other words, so far as said section is concerned, the adoption laws give to the adopted child the status of a child actually born to the adopting parent in lawful wedlock.

This holding is also sustained in Smith v. Hunter, 86 O.S. 106, and is not inconsistent with other decisions in Ohio cited by counsel on either side.

Our attention is called to the case of Albright v. Albright, 116 O.S. 668, by counsel for the brothers and sisters. It will be observed that this case involves the construction of a will and has- no application to the instant case.

It therefore follows that George V. Miller did not die intestate “without'issue” and that the fund in question descends from him to the defendant Louella Miller Shepard as personal property under G.C. Sec. 8578.

A decree may be drawn accordingly.

(Washburn, PJ., and Pardee, J., concur.)


author: ROBERTS, J.

text:
    BANK OF ITALY v. COLLA, et.
    Ohio Appeals, 7th Dist., Mahoning Co.
    Decided Oct. 7, 1927.
    Before Judges Roberts, Farr and Pollock.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    BANKS AND BANKING — Contracts (150 N).
    (70 L) Non-resident bank holding letter of credit to secure payment of contract between a non-resident fruit growers association and Ohio concern, and having a specific information of terms of purchase and shipment of Muscat Grapes in ventilator cars, knowing through invoices and bills of lading, that the grapes were other than Muscat grapes and shipped in cars other than ventilator cars, cannot assert lack of knowledge of the con-tractural terms between the original parties and escape liability as holder of letter of credit.
    TRIAL.
    (590 E3g) _ Evidence as to custom in California of shipping grapes in ordinary box cars, properly excluded in action on contract to ship same in ventilator cars.
    TRIAL.
    (590 V2a) Fact that the verdict for damages was greater than could be recovered in case, and is not tested by interrogation, special verdict or otherwise, not reversible error.
    TRIAL.
    (590 Ji) Allowance of interest in judgment making the judgment greater than agreement specified to give the court jurisdiction, can be cured by remittitur of interest.
    Error to Common Pleas.
    Judgment affirmed.
    Kennedy, Manchester, Conroy & Ford, Youngstown, for Bank of Italy.
    McKain & Ohl, Wm. T. Swanton, Youngstown, for Colla, et.
    STATEMENT OF FACTS.
    This is a proceeding in error in this court seeking a reversal of the judgment of the Court of Common Pleas rendered upon a verdict returned by a jury in favor of the defendants in error.
    The DeColas purchased of the California Fruit Product Co. five car loads of Muscat grapes, at a price of $80 per ton. Arrangements were entered into whereby the City Savings & Trust Co., a banking institution of Youngstown, should send a letter of credit to the Bank of Italy at San Francisco, guaranteeing the payment of the five car loads of grapes under certain conditions which had been agreed upon being fulfilled.
    The City Trust & Savings Bank Youngstown, Ohio.
    Bank of Italy,
    Montgomery Street Branch,
    San Francisco, Calif.
    Gentlemen:
    We guarantee payment at sight Documentary Draft of D. Rubino, President of the California Fruit Produce Co., Colombo Bldg., San Francisco, drawn on Nicholas Colla and G. DeCola, covering not to exceed five cars of Muscat grapes át $65.00 per ton net, accompanied by order B/L, state inspection waived if shipped in ventilator cars. Entire credit not to exceed $6,000. This guarantee is conditional upon your cancelling our guarantee of September 23 in favor of the Pacific Italian Trading Co.
    Very truly yours,
    J. E. Gribbon, Treas.
    Five car loads of grapes were subsequently loaded by the California Fruit Produce Co. and started toward their destination in this city. That company then took invoices of the several cars which were shipped from different places and at different times, with bill of lading therefor, and_ attaching thereto a sight draft drawn by this firm upon itself to the Bank of Italy. These drafts were endorsed in blank. The Bank of' Italy paid the amount of the drafts, less one-fourth of one per cent, and thereby became the transferees of these drafts, and, as a matter of law, the owners of the grapes which were represented by these transactions, The Bank of Italy, with the invoices, the bills of lading and the drafts, then forwarded these papers to the Union Trust at Cleveland, which endorsed them, with notice of non-liability on its part, to the First National Bank of this city, and' papers were presented to the City Savings & Trust Co., which had given the letter of credit, which paid the amounts called for by the drafts, charged this sum to the defendants in error and the bills of lading were then delivered to the defendants in error, who were thereby, and not until then, enabled to open the cars and learned the condition of the grapes. It was then found that these ears were not ventilator cars. They were ordinary box cars in which the doors had been left open two feet and stays had been nailed over this space some three or four inches apart. The grapes were in containers or boxes and were generally in a very bad condition, very much decayed. The defendants in error being thus obliged without knowledge of the condition of the grapes so purchased, to pay the price, disposed of them without dispute to the best available advantage, and brought this action for damages sustained by reason of the defective condition of the grapes, and the jury awarded the defendants in error damages in the sum of $4,140.58, to which the jury added interest. The Bank of Italy was brought into this case by attachment proceedings and there was an agreement between counsel on the respective sides that a recovery would not be asked for in excess of the fund attached, which of course only gave the Court of Common Pleas jurisdiction against the defendants to the amount of the money attached, which was $2,700.00. The trial court requested, and there was granted, a remittitur of this amount, to which, however, the .trial court again added interest, making the judgment something over $3,000. It was claimed by the defendants in error that there was liability on the part' of the Bank of Italy upon two propositions, one that it was liable under the terms of the contract, of the letter of credit, and in this connection it seems also to be claimed by counsel for the defendant in error that the Bank of Italy was further liable under and according to the terms of the contract made for the purchase of the grapes by the defendants in error here with the California Produce Co., upon the theory, as understood, that the Bank of Italy in purchasing these bills of lading necessarily knew that they were the result of certain negotiations and contraetural relations entered into between the original negotiating parties, and that in purchasing the grapes- by the bill of lading the bank could not expect to be able to make deliveries unless that original contract had been substantially complied' with, and that the purchase therefore carried with it the effect of original liability to the California Fruit Produce Co.
    It is further claimed that the bank was liable under the provisions of Sec. 8011 Barnes Federal Code, p. 1926, which reads as follows:
    “Warranties on sale of bill. A person who negotiates or transfers for value a bill by endorsement or delivery, unless a contrary intention appears, warrants—
    (a) That the bill is genuine.
    (b) That he has a legal right to transfer it;
    (c) That he has knowledge of no fact which would impair the validity or worth of the bill;
    (d) That he has a right to transfer the title to the goods, and that the goods are merchantable or fit for a particular purpose whenever such warranties would have been implied if the contract of the parties had been to transfer without a bill the goods represented thereby.”
    It is claimed by counsel for the DeColas that under the terms of this section there was a guarantee by the bank that these grapes were merchantable, fit for the particular purpose of food consumption, and that under the terms of the letter of credit that the grapes contracted for were Muscota grapes and that there were to be shipped in ventilator cars. There is no dispute but that there were few, if any, Muscat grapes, they were largely not fit for food or for any purpose, and _ con-cededly box cars were used instead of ventilator ears.
    The Bank of Italy denies any liability in this action and claims that there was reversible error in several instances occurring during the trial. It is said first that the court erred in permitting evidence concerning the original negotiations by contract entered into between the California Co. and the defendants in error, as the contract sued on was with the Bank of Italy and which was not a party to the original contract.
   ROBERTS, J.

We do not think, after a perusal of the instructions of the court and the evidence that it can be said that prejudicial or reversible error occurred in this respect. The jury were expressly directed by the court not to consider that contract as substantive evidence in the case but it was admitted only as a background by which an understanding could be arrived at concerning the relations of the parties.

It is further urged that the court committed error in refusing to permit the defendant in error to show by witnesses that the custom existed in California of shipping grapes in box cars. We think the court was correct, that where there were specifications of a particular kind of cars, it was not proper to introduce testimony of custom that other cars were used for that purpose. The parties had a right to: contract for a particular kind of car.

Bills of lading indicated that these grapes were shipped in box cars and loaded by method number two, so that adopting the theory of counsel for the plaintiff in error, a scanning of the bill of lading which it purchased and which it seems to have been understood to have been the duty of the Bank of Italy to bring to that bank the direct knowledge that these grapes’ were being shipped in box cars, while the letter of credit which it had from the Youngstown bank specified that they were to be shipped in ventilator cars.

Proceeding now to the question of damages, the important proposition seems to be in connection with the use of box ears- instead of ventilator cars. There could only be a recovery under the agreement of counsel in this case, for the $2,700. The jury having found damage of over $4,000, and it is not improbable, that the jury found a total damage to the grapes by reason of lack of ventilation in a greater sum than there can be a recovery for in this action under the circumstances that have been stated, taking into consideration such sum as might also be recognized for these other matters- and conditions concerning which complaint is made.

The verdict was not tested by interrogatories, special verdicts or otherwise. If the jury had found, as a matter of fact, an amount of damages by reason of lack of ventilation and the use of box cars in excess of the amount of recovery, then there would be no reversible error in this case under this theory. The law is- well settled in Ohio that where there are two issues submitted and there is error in connection with one, if the other issue is sufficient for the verdict and no error is shown upon that issue then, the cause is not reversible. 94th O.S., 171; 106 O.S. 408; 18 O.A., 235; and another case on page 346; 107 O.S., 33-39; 23 O.S., 626; 60 O.S., 69

It is sufficient to say in conclusion that the jury may well have found the damages sufficient in amount to cover the amount recoverable under the issues in this case and the damage in the case to' result from improper ventilation resulting from the use of box cars, and that being a proposition which we think un-disputedly brought to the direct knowledge of the Bank of Italy without taking into consideration the other matters which are claimed to constitute liability on the Bank of Italy. We think that upon this proposition it is sufficient to say in conclusion that no prejudicial error can he held to exist, and the judgment of the Court of Common Pleas is affirmed.

We think that the trial court should not have allowed interest on the sum agreed upon as fixed by the amount attached to give the court jurisdiction over the defendant below, the Bank of Italy, and judgment will he reversed contingent upon the plaintiffs below remitting this interest down to the sum agreed upon.

(Farr and Pollock, JJ., concur.)


author: RICHARDS, J.

text:
    KRUEGER, et. v. FRAZIER.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 2049.
    Decided June 11, 1928
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    TRIAL
    (590 E3i) Admission in evidence of account book held error where evidence showed' that entries were of cash items in large amounts, some of which entries were not made contemporaneously with transactions.
    (590 B) No degree of preponderance. Charge that burden was on defendants to show by fair preponderance of evidence, held erroneous.
    Error to Common Pleas.
    Judgment reversed.
    Charles W. Davis, Toledo, for Krueger, et.
    O. S. Brumbaek, Toledo, for Frazier.
    STATEMENT OF FACTS.
    The original action was brought by Mabel B. Frazier against the executors of Dr. Charles H. Mills, deceased, to recover upon a claimed account due to her from the estate. The trial resulted in a verdict in her favor in the amount of $1098.00, from which a remittitur was made and judgment rendered for $909.38. The case was tried upon the second amended petition and a supplement thereto and an answer.
    By the averments of the second amended petition it appears that the decedent was a physician and the plaintiff a practical nurse rendering services for some of his patients, and that he volunteered to aid' her in receiving and caring for the money which she earned in that occupation. The items in the account are averred to be for money collected by Dr. Mills from persons nursed by plaintiff and for money received by plaintiff from patients and delivered to Dr. Mills by her for safekeeping and also for services rendered for him by her and for chickens sold and delivered.
    On the trial of the case the plaintiff produced a small memorandum book containing, among many other things, some items relating to her transactions with Dr. Mills. She testified that this book was a book of original entries, that the entries were made by herself in the usual course of business and at the times of the transactions recorded, and thereupon the book was introduced in evidence over the exceptions of the defendants.
    The plainstiff’s second amended petition is based upon a claimed book account and most of the evidence relates to the existence and accuracy of that account. The first item is dated January 16, 1917, and the last item, October 16, 1922. During that period of nearly six years there are ten charges in all, one of which is a small item for chickens sold and two are for small items covering three days’ services.
   RICHARDS, J.

The ordinary and usual matters for entry in an account book are goods sold and delivered and services rendered, and these three items properly come under that description. The remaining seven items, amount to $1125.00, one item being for $30.00, two for $60.00 each, two for $150.00 each, one for $28.50' and one for $390.00. Four of these items are for amounts averred to have been collected by Dr. Mills from patients in payment of services rendered by the plaintiff in nursing and three of the items are averred, to have been for amounts collected by plaintiff from patients and “turned over” to Dr. Mills. Only one item is charged in the book during the year 1918 and that is for $390.00 collected by Dr. Mills for services rendered by the plaintiff in nursing, and the book contains no item in either of the years 1919 or 1920. While the plaintiff testifies that she made the various entries at the times of the respective transactions, it is apparent that this could' not be true as to some of them, and as to most of those items the entries are manifestly the record of past transactions and not made contemporaneously with the transactions. The entries for four items collected by Dr. Mills from patients and for three items collected by the plaintiff and delivered to Dr. Mills for safekeeping, varying in amount from $30.00 to $390.00 and extending over a period of nearly six years, were not made under such circumstances as to render the book admissible in evidence and do not appear to have been in the usual course of business and those items were not the proper subject of a book account.

It has frequently been held that cash items, especially large amounts, unless perhaps in the banking business or something of that sort, are not the subject matter of an account. Kennedy vs. Dodge, Admr., 19 O. C. C., 425. This is in line with the decision of this court in Wor-land vs. McGill, 32 Court of Appeals Opinions, Sixth District unreported, p. 401, in which it was held that items of cash lost in gambling were not the proper subjects of a book account. The trial court erred in admitting the book in evidence to prove the items of cash.

At the request of counsel for plaintiff the trial judge instructed the jury before argument as follows:

“The jury is instructed that if you find any of Mrs. Frazier’s money was turned over to Dr. Mills for safekeeping, as claimed by her, then the burden of proof is cast upon the defendants to show hy a fair preponderance of the evidence that the money so received by Dr. Mills was repaid or accounted for by him.”

This was manifestly an incorrect statement of the law. There are no degrees of preponderance and a mere preponderance of the evidence is sufficient. This instruction cast an undue burden on the defendants, particularly in view of the fact that they were executors of a decedent and were deprived of the benefit of his testimony. Travelers Insurance Co. vs. Rosch, 3 C. C., N. S., 156; Cincinnati Traction Co. vs. Ruthmen, 15 C. C., N. S., 191, 192. Furthermore, the answer does not plead payment.

It is urged that although the trial court may have erred in admitting the account book in evidence, yet the judgment should not be reversed because other evidence was offered tending to sustain a recovery. The record does disclose some other evidence relating to some of the items on which the action is based, but it is manifest from the entire record that the verdict which was rendered could not have been rendered except for the evidence furnished by the so-called book account.

For the reasons given the judgment will be reversed and the cause remanded for a new trial. _

_ (Williams and Llloyd, JJ., concur.)


text:
    HARVARD MORTGAGE CO. v. NEESON
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 8928.
    Decided June 25, 1928
    Middleton, P.J. and Mauck, J., of the 4th Dist., sitting.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    REAL ESTATE
    (510 M4h) Mortgage has no vitality when note secured by it fails.
    COMMERCIAL PAPER
    (120 H) Unpaid installments alone sufficient to attach to instrument its character as dishonored note. One acquiring such note after such dishonor, takes it subject to all infirmities. TRIAL
    (590 E2) Acts not wrongful and not equivocal form no basis for estoppel. Estoppel does not arise from acts of party charged therewith unless party asserting estoppel was improperly influenced thereby to his prejudice.
    Error to Common Pleas.
    Judgment affirmed.
    Ford, Taylor & Hasselman, Cleveland, for Harvard Mortg. Co.
    Vickery & Vickery, Cleveland, for Neeson.
    STATEMENT OF FACTS
    The Harvard Mortgage Co. sought recovery on a promissory note signed by William J. Neeson and Clara Neeson, and by a second cause of action sought foreclosure of a mortgage on real estate given to secure the same. To the first cause of action of the amended petition the Neesons pleaded that the plaintiff was not a bona fide holder for value before maturity and that the note was secured by the original holder by fraud and without consideration. As a defense to the second cause of action the charge of fraud as to the note is reiterated and the nature of the transaction out of which the note and mortgage grew are set forth with some detail. The plaintiff replied to this answer, in effect, that it denied that there was any fraud in the transaction, and denied that the note was unsupported by a consideration, and alleged that at all events the plaintiff had no knowledge of such fraud. It further pleaded an estoppel against the defendants’ plea of fraud and failure of consideration. Upon the issue joined in the first cause of action, i.e., relating to the note a jury was empanelled and a trial had. At the conclusion of all the testimony the plaintiff moved “for an order to arrest from the consideration of the jury the testimony offered on the part of the defense, or, the alternative, to direct-the jury to return a verdict for the plaintiff.” Thereupon the defendant joined in the motion that the court direct a verdict, praying such judgment for the defendant. The disposition of the case having thus passed to the trial judge, judgment was entered for the defendant.
   MAUCK, J.

The first question is whether the situation was such that the plea of fraud was available to the defendant. This, of course, depends on whether the plaintiff had become an innocent holder in due course. The note was complete and regular in form. The plaintiff acquired it for value and in good faith and had no actual notice of any infirmities therein. The only question, therefore, is whether the plaintiff’s acquisition of the instrument meets the second condition imposed by 8157 GC.

“That he became the holder of it before it was over due, and without notice that it had been previously dishonored, if such was the fact.”

The note was dated January 15, 1925. It was deposited with the plaintiff as collateral security for value on May 8, 1925, and on that day the equitable rights therein of the plaintiff vested.

It is clear that two installments of $75.00 each were then due. These unpaid installments alone were sufficient to attach to the instrument its character as a dishonored note. The rule is too well fixed to warrant quoting the authorities or to indulge in the refinements and distinctions of particular cases. 8 Corpus Juris 410; 3 Ruling Case Law 1048.

The Neesons were the owners of two parcels of suburban property at Cedar Point, Cuya-hoga Co. One of these was: a nine acre tract, the other a one acre tract on which the Neesons lived. • They were induced to trade the larger tract to George E. Whitehouse for some real estate on Beaver Avenue, Cleveland, and to consummate the exchange gave as additional consideration a mortgage for $6,500 on the one acre tract on which they lived. This action was predicated on that note and mortgage which were originally made payable to Whitehouse and by him transferred to a third party who in turn transferred it to the plaintiff, both transfers being subsequent to its dishonor.

In the exchange the Neesons were swindled.

The note was so saturated with the fraud of Whitehouse that he could have had no recovery thereon and as we have pointed out the plaintiff by acquiring the note after it had been dishonored is charged with all its infirmities.

It has been argued, however, that if all this be true, the Neesons are estopped from availing themselves of the defense of fraud by virtue of the facts that they took over the Beaver Avenue property, improved it, collected rents therefrom and received from the sheriff a small residue after the payment of the liens on foreclosure. These things work no estoppel. The acts charged were not wrongful and not equivocal and, therefore, form no basis for an estop-pel. Moreover, an estoppel does not arise from the acts of the party charged therewith unless the party asserting the estoppel was improperly influenced thereby to his prejudice. Nothing of the sort appeared in this case and the plea failed.

Complaint is made, however, that the court not only rendered judgment on the first cause of action but entered a cancellation of the mortgage. This relief was not granted the defendants by virtue of any prayer for rescission, nor any issue joined on the first cause of action. The mortgage was, however, before the court by reason of the second cause of action in which the mortgage was pleaded and its foreclosure prayed. The mortgage had no vitality when the note secured by it failed. The second, cause of action was addressed to a court of equity and the court sitting as a chancellor was clothed with power to do equity when jurisdiction was acquired over the instrument. When it was found that the mortgage secured nothing, why should not the cancellation be made and the record cleared? The plaintiff in error could not be prejudiced in any event by the cancellation of a mortgage that secured nothing of value.

The judgment is affirmed.

(Middleton, P.J., concurs.)


author: LEVINE, J.

text:
    KONYHA v. WARADY
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9020.
    Decided May 7, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    ATTORNEY AND CLIENT
    (40 C2) A woman settling with the claim adjuster of a railroad company and informing, in writing, an attorney with whom previously she had contracted to secure damages for her, that she had settled with the company and directing him to cancel the paper (contract for attorney services) justifies an inference of the trial court that the settlement was brought about by the attorney’s negotiations with the. railroad.
    Error to Municipal Court.
    Judgment affirmed.
    W. N. Briggs, Cleveland, for Konyha.
    Frank W. Warady, Cleveland, for Warady.
    STATEMENT OF FACTS.
    The defendant in error who is an attorney, entered suit against plaintiff in error, under a contract of employment, and recovered the sum of $333.33 which represented the amount to which the contract entitled him.
    It seems that the parties entered into a contract whereby defendant in error was employed as an attorney and which contract contained the provision that for his compensation, the attorney was to receive one-third of the amount received as damages from the Pennsylvania' Railroad Co. That after the agreement was signed, the case was settled direct by the railroad company with plaintiff in error for $1000.00.
    The plaintiff in error testified on cross-examination that at the time she signed the contract to employ the attorney she did not know what she was signing and that she told the man who came there for the attorney, that she had agreed upon a settlement with the railroad company. That the man or men who came to see her in behalf of the attorney, in order to induce her to sign this paper, misrepresented to her that they were from the railroad company.
   LEVINE, J.

It appears that at the time the contract was signed, Mary Konyha was not alone. Her daughter was there, also her husband. The evidence given by both daughter and husband of plaintiff in error, leads to but one reasonable conclusion, namely, that the settlement was not agreed upon between Mary Konyha and the railroad company, at the time the contract was signed,'but that the matter was in process of negotiation with the claim adjuster of the railroad. An exhibit attached to the record which is a letter signed by plaintiff in error forwarded to the attorney, and bearing date of August 12, 1927, informed him that she had received her check for $1000.00 and that she desired; to have him “cancel the paper.” The letter is couched in careful legal phraseology and was written on the same day when the claim adjuster brought the check to plaintiff in error. It is not beyond reasonable hypothesis to infer that the claim adjuster assisted her in the writing of that letter to the attorney, and that the matter of a contract with the attorney was discussed. If it be true that she did not know what paper she signed, why did she urge in her letter, that the attorney cancel the paper? The attorney, on the other hand, stoutly maintains that there was no misrepresentation. That he sent his man to her place at her solicitation and that the contract was signed with the full and clear understanding between them as to what the terms were. That immediately upon the signing of the contract he mailed a letter to the Pennsylvania Railroad Co., informing them that he was employed as attorney for plaintiff in error.

It is quite a coincidence that within a day after the letter was mailed by the attorney to the railroad company, the claim adjuster brought to plaintiff in error a check for $1000.

We are of the opinion that the trial court was justified in inferring that while there were negotiations between the railroad company and plaintiff in error, directly looking toward a settlement, and while there was a conference between them on August 3rd, that after waiting a week she tired of waiting, and therefore decided to employ an attorney. That after the contract of employment was signed, and after the attorney had' notified the railroad company of the fact that he was so employed, that the claim adjuster, in order to forestall any action by the attorney, settled the claim behind his back and without his knowledge or consent.

We cannot agree with the view of counsel for plaintiff in error, condemning the action of the attorney. Plaintiff in error tells an unreasonable story in view of all the events surrounding this transaction. As far as we know, the attorney conducted himself in a proper manner, and that he has just ground for complaint. In theory at least, attorneys are regarded as officers of the court, and subject to its discipline. Care, therefore, must be exercised not to condemn the action of áttorneys, unless the proof clearly justifies it.

It is said that the laborer is worthy of his hire, and we see no reason why an attorney should be excepted from this benefieient protection accorded to all those who labor.

We see no reason for disturbing the judgment of the Municipal Court. Judgment will therefore be affirmed.

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


author: SULLIVAN, P.J.

text:
    GLOWATCH v. STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 9050.
    Decided June 25, 1928.
    First Publication of This Opinion.
    Syllabus by Editorial Staff.
    CRIMINAL LAW
    (190 D2) The expression of an accused that “that was a hell of an identification” made either in the presence or immediate hearing of the accuser, subsequently succumbing to the injuries inflicted by the alleged accused, does not amount to a denial of such identification.
    (190 E4) Although conflicting statements may have been made by one mortally wounded, at different times, the statements were admissible in order to determine what the real facts were, such question being for the determination of the jury.
    (190 A9) Whether an alibi of an accused is sustained or not, is a question for the jury, the evidence being conflicting.
    (180< C) Instructions to jury as to silence of accused as bearing upon his guilt or innocence, examined and held not to be erroneous.
    (190 S7) Evidence examined and conclusion reached that no error was committed in failure to grant separate trials for defendants charged with same crime.
    Error to Common Pleas.
    Judgment affirmed.
    W. J. Corrigan, Cleveland, for Glowatch.
    E. C. Stanton, J. J. Sexton and M. A. Pie-ciano, Cleveland, for State.
    STATEMENT OF FACTS.
    Plaintiff in error, Glowatch, was indicted with one Gallo, for murder in the second degree, and they were tried jointly and a verdict of guilty under the indictment was found and judgment thereon pronounced by the court, and sentence proceeded accordingly.
    In the early morning of January 7, 1928, one Bruno Gedwillo, was shot and in a couple of davs died in a hospital from his wounds.
    Just prior to noon of January 7, 1928, the police took the dying statement of the decedent anc-i partly by reason of the information contained therein, arrested the plaintiff in error, Glowatch, together with one Charles Gallo, a co-defendant, who was tried, convicted, and upon review in this court the same was sustained and therefore he is now under sentence as co-defendant with Glowatch, for the commission of the crime of murder in the second dfigrec.
    The co-defendants, as soon after the dying statement as possible, were taken to the.room in ¿he hospital where Gedwillo was confined, and when he confronted Gallo and Glowatch, among other things he said:
    “That man (pointing to Gallo) that is Gallo. That is one of the men that shot me. That is the other man that shot me (indicating Glowatch). He (indicating Gallo) struck me with the gun and (pointing to Glowatch) that is the man that shot me.”
   SULLIVAN, P.J.

Exception is taken by able counsel for plaintiff in error to the admission in evidence of this dying declaration, on the ground that Glo-watch denied the accusation and it is claimed that under the authorities such evidence is inadmissible.

It is urged that there is evidence in the record that Glowatch, while being confronted by the decedent, did not have an opportunity to deny the accusation, because of menaces on the part of the police officérs and circumstances which were of an intimidating nature, existing at the bedside of the decedent.

It is claimed also that immediately after the accusation, when the co-defendants were being led out of the bedroom that just after passing the threshold, that Glowatch denied the accusation, and that.notwithstanding that he had just left the bedside of the decedent, yet he was close enough so that the denial became part of the res gestae and this being so, the admissibility of the dying declaration is error on the part of the trial court.

Upon an examination of the record we find that whatever was said by either Glowatch or Gallo immediately' upon their departure from the bedroom does not amount to a denial but simply was the passing of an opinion upon the weakness of the identification by the decedent, because in substance all that was said in reference to the accusation is something to the effect that “that was a hell of an identification.” This cannot be construed as a denial, and in no way does it disturb the record that under the accusation of guilt the plaintiff in error did, at the interview, in the bedroom, remain silent as to- the direct charge made against Glowatch at the bedside of Gedwillo that he was the man who fired the shots.

It is claimed that the court committed error again, in permitting the statement of Charles Gallo, made January 8, 1928, to be admitted because subsequently thereto, to-wit, January 16, 1928, the police officers obtained from Gallo statements which contradicted the statement of January 8th.

It is urged that the decedent and Gallo made conflicting statements as to the part which Glowatch took in the murder. That Gallo made another statement on January 16, 1928, does not make the statement of January 8th incompetent, even though there may be some conflicting statements. The two statements must be taken together- and the court allowed their admissibility upon the ground that the question, as to what the real facts were was to be submitted to the jury, which was done under proper instructions from the court.

From an examination of the record we think the credible evidence to support the charges of the indictment, reaches the rules required to operate in order to sustain .a verdict of guilty.

It is also urged by counsel for plaintiff in error, that the testimony relating to the alibi on the part of Glowatch, is sufficient in and of itself to raise a presumption of innocence because it irresistably creates in and of itself the existence of a doubt. The jury in determining this question undoubtedly took into consideration the other testimony in the record, both positive and circumstantial, tending to show that the plaintiff in error was with Gallo at the scene of the crime, and both before- and after the fatal shooting. The jury weighed this testimony and it was its province to determine wherein lay the truth. The attempt of plaintiff in error to prove an alibi was a peril which Glowatch assumed and the consequences are usually fatal in the claim for an alibi if the contradictory testimony applying thereto annihilates or shatters it. The testimony of Fred Jones and Nick DeFranko which was proof that the plaintiff in error was at the scene of the shooting at about 2:30 A. M. undoubtedly made a strong impression upon the jury’s mind against the plaintiff in error, especially when his own testimony placed him sleeping with one Cohen.a long distance away.

Wle have carefully examined the evidence in the case and we have come to the conclusion that under the rules which govern the reviewing court we are not warranted in disturbing the verdict of the jury, on the ground that it is clearly and manifestly against the weight of the evidence.

As to the silence of the plaintiff in error under the fire of accusation of guilty, the following charge of the court relating thereto is urged as error:

“Page 670. If you find that an innocent person, under the same circumstances, would either not have denied these statements of Gallo, or not have done otherwise with respect to them, than the defendant, Glowatch, did, then all this evidence is to be wholly disregarded by you as of no consequence whatever in determining the issues of, this case.”
Page 671, the court there charged: “If on the other hand, in view of said circumstances, which surrounded the defendant, Glowatch, at this time and place, you find that his conduct, at this time was different from what the conduct of an innocent person would have been, under the same circumstances, then you may give such weight to that fact, in determining the issues in this case, as you think it justly and fairly entitled to.”

We have examined these charges and it is our judgment that there is no error therein.

We have examined the other charges of error such as the claim that separate trials should have been granted and we have come to the conclusion that there is no prejudicial error in the record below and thus holding, the judgment of the Common Pleas Court is hereby affirmed.

(Levine and Vickery, JJ., concur.)


author: VICKERY, J,

text:
    HART et v. HART, Admrx.
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    Nos. 9113, 9118.
    Decided June 4, 1928.
    Syllabus by Editorial Staff.
    DECEDENTS’ ESTATES
    (220 M) As against residuary clause in will, property devised with mortgage upon it, when there has been provision that all debts be paid, passes free and clear and mortgage debt is chargeable to estate.
    (220 Wa) Bequest of all property to heirs, subject to specific bequests, held to be residuary clause.
    Error to Common Pleas.
    Judgment affirmed.
    Hart, Curry, Sklenicka and Murray, Cleveland, for Hart.
    Cull, Burton & Laughlin, Cleveland, for Hart, Admrx.
    STATEMENT OF FACTS.
    On or about the 6th of October, 1926, Theresa Hart died, leaving Clara V. Keeley, a daughter, Wm. J. Hart, a son, James P. Hart, a son, Thomas Hart, a son, Agnes Hart, a daughter, Louis E. Hart, a son, and Robert W. Hart, a grandson, the son of Ignatius Hart, deceased, and was seized of certain parcels of real property and some personal property. The will was duly probated and Agnes Hart was appointed administratrix under said will, and in order to determine the rights of the various children under said will, this suit was brought, to obtain a construction upon sections three and four of said will.
    Theresa Hart was the wife of Wm. J. Hart, who died a few months prior to the death of his wife.
    Item First of Theresa Hart’s will provides as follows:
    “My wish is that all my just debts and funeral expenses be paid as soon after my death as possible.
    Item Second provides:
    “I give and bequeath to my beloved husband, William J. Hart, a life interest in all of the real and personal property I may own wheresoever the same may be situated, but as long as my daughter, Agnes Hart, remains unmarried it is essential and I make it an obligation on my husband to live with her and support her and to keep house just the same as we are now.
    Item Third provides:
    “I give and bequeath to my beloved daughter, Agnes Hart, the property now occupied by us at 2504 Euclid Boulevard, to her and her heirs forever.”
    At the time of her death there was in force on the property, the homestead which is mentioned in article three, a mortgage of some Twelve Thousand Dollars, and the question that the court has to decide is whether Agnes Hart, the devisee under Item three of this will is to take this homestead free from the debt that is upon it, the evidence showing that there is enough property aside from this particular parcel to pay all the debts including this mortgage and that there will be something remaining.
   VICKERY, J,

The record shows that this piece of property, the homestead was worth something over $30,000 and that there was a mortgage upon it of about $12,000, leaving an equity of some $20,000, but it was a homstead. The record also shows that there was not enough personal property to pay all the debts of Theresa Hart with the mortgage included, but it also shows that there was a farm in Cuyahoga County that was worth more than enough to pay all the debts including the mortgage upon the homestead and leave something for the heirs besides.

Now with that in mind we come to Item four of the will which is as follows:

“I bequeath to my beloved children, Clara V. Keeley, my daughter now living in Akron, Ohio, William J. Hart, James P. Hart, Thomas Hart, Louis E. Hart, Agnes Hart and my grandson Robert W). Hart, son of my deceased son Ignatius Hart, all of my property real and personal wheresoever the same may be situated, each to take share and share alike subject to the life interest of my husband as contained in bequest No. 2 and subject to all of the conditions therein provided for.”

Now it is claimed that this provision of the will is in a measure inconsistent with Item two; that is, that is gives the property after the personal property has been used for the payment of debts, and after excluding property in Item three, to these various children and the grandson named in Item four of the will as a specific devise. Taking this whole will together, it seems to us that Item four of this will, although it does not use the terms, is nothing more than a residuary clause. Of course if there was not enough property to pay the debts including the mortgage, then the other debts would have to be paid first, and Agnes would have to bear the balance or all of the mortgage if necessary, but the record in this case, as already pointed out, shows a different state of facts with relation to the extent of the estate.

We think the authorities all hold that as against a residuary clause in a will the property devised with a mortgage upon it when there has been a provision that all the debts be paid, the taker of that mortgaged property takes it free from the mortgage and the mortgage is a. debt chargeable to the estate. Now our construction of the .fourth item in this will is that it amounts only to a residuary clause in the will.

The judgment of the Court of Common Pleas, therefore, was right and the same will be affirmed.

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