author: Speak, J.

text:
    Coffman, Admr., et al. v. Finney, Admr., et al.

      Decree of divorce — Judgment for alimony debt against defendant’s estate — Death of parties during appeal to circuit court — Cause survives in favor of representative of deceased plaintiff.

    1. Where a decree of divorce has been pronounced in favor of a wife for the aggressions of the husband, the right to alimony out of his real and personal property becomes vested by force of the statute, and a judgment for the same is thenceforth a debt against the husband, subject only, in case of appeal, to variation as to amount.

      2. Where, in such case, the husband appeals the cause to the circuit court, and, pending appeal, both parties die, the cause survives in favor of the personal representative of the deceased plaintiff and against the personal representative of the deceased defendant.
    (Decided June 25, 1901.)
    Error to the Circuit Court of Preble county.
    At the October term, 1898, of the common pleas of Preble, Lucy Campbell was divorced from Frank W. Campbell, for his aggressions (drunkenness and cruelty), and the defendant was adjudged to pay plaintiff $2,000, as alimony, for which execution was awarded, but if, within thirty days, the defendant should convey to plaintiff certain real estate owned by him the same should be accepted by her as satisfaction of the alimony, and if from thirty days the; defendant fails to pay the $2,000, and also fails to make conveyance, then the decree to operate as such conveyance. The plaintiff was restored to her maiden name of Lucy Gay, and judgment rendered in her favor for costs. Without satisfying the alimony or costs the defendant appealed, giving bond in $800. On May 17, 1899, and while the appeal was pending in the circuit court, the defendant shot and killed the plaintiff and her sister, and then .himself. Soon thereafter, Louis Finney, defendant in error, was appointed administrator of Lucy Gay, the plaintiff below, and W. H. Coffman, plaintiff in error, was appointed administrator of F. W. Campbell, defendant below. Thereupon Finney, as such administrator, filed in the circuit court. a supplemental petition, joining the heirs of Lucy Gay as plaintiffs, and making W. H. Coffman, administrator, and Hattie Johnson, daughter of F. W. Campbell and his sole heir, defendants, and praying that the case may proceed to judgment, that alimony be allowed as prayed in the original petition, and as granted by tbe court below, and for all proper relief. The defendants interposed a motion to strike off the supplemental petition, and that being overruled, a demurrer, which was also overruled. Defendants then filed an answer, and-the cause was tried on appeal in the circuit court, resulting in a finding and judgment for Finney, as administrator, against Coffman as administrator, in the sum of $2,000, together with costs, to be levied on the property of the intestate. Motion for new trial was overruled, a bill of exceptions taken, and the defeated party comes here on error.

      Risinger & Risinger and W. A. Neal, for plaintiffs in error.
    The authorities are that upon the death of either party to an action for alimony or divorce, or both, the suit abates. 2 Bishop on Marriage and Divorce, Sec. 363, and Sec. 437; Clark v. Clark, 6 Watts & S. (Pa.), 85; Wallingford v. Wallingford, 6 Har. & J. (Md.), 485; Glenn v. Glenn, 7 T. B. Monroe (Ky.), 286; Gains v. Gains, 9 B. Monroe (Ky.), 295; Wrenn v. Wrenn, 7 Ill., 72; McCurley v. McCurley, 60 Md., 185; Swan v. Harrison, 2 Coldw. (Tenn.), 534; Bishop on Marriage and Divorce, Secs. 549 and 550; Rogers v. Wenn, 6 Hide, 293; Shafer v. Shafer, 30 Mich., 164; Francis v. Francis, 61 Gratt. (Va.), 383.
    We claim that the appeal, in effect, vacated the judgment of the common pleas for alimony. The circuit court seemed to take the view that it was a mere matter of affirming or reversing the lower court. That the judgment of the lower court was still alive, but that execution on it was merely suspended.
    We insist that the legal effect of an appeal is to vacate and entirely set aside the judgment of the lower court, when the appeal is sustained. And the appeal is understood to be sustained when the proper undertaking is given in a case that is appealable.
    We are aware that Sec. 5235 of the statute provides that “When an appeal is taken, and bond given, the judgment is thereby suspended,” but this court has held that when an appeal from the common pleas to the circuit court is sustained, it not only suspends, but entirely vacates, the judgment of the lower court. Hull Bros. v. Bell Bros., 54 Ohio St., 228; Long v. Hitchcock, 3 Ohio, 274; Ludlow v. Kidd’s Exrs., 3 Ohio, 541.
    This cause was to be tried and such a decree rendered by the circuit court as the condition and circumstances of the parties at the time, might warrant. That is, at the time of the final trial or decree.
    The changed condition of the parties at the time of the last hearing, if there was any change, should be taken into consideration,: in'fixing the amount of alimony awarded. King v. King, 38 Ohio St., 370.

      James A. Gilmore and G. B. Gilmore, for defendants in error.
    Our view is that under Sec. 5144 an action for dower would not abate upon the death of the plaintiff, but would survive, subject to be revived for all purposes, and Sec. 5145 was enacted to limit the purpose for which the action could be revived. The fact that no limitation is made as to an action for alimony is against the claim of counsel for plaintiff in error. Such action survives and may be revived for all purposes, without any such limitation as is fixed by Sec. 5145 as to an action for dower.
    At common law an action for alimony abated upon the death of either party, as did all personal actions; but the common law does not prevail in Ohio, in the matter of abatement of actions. Our legislature has prescribed in express terms just what actions abate upon the death of one or both the parties, all other actions survive and may be revived. Ohio & P. Coal Co. v. Smith, 53 Ohio St., 313.
    In our judgment counsel for plaintiff in error misapprehend the nature of a decree for alimony. They seem to adopt the view that alimony is decreed solely for the maintenance and support of the wife; that maintenance is all she can demand, and all the court can give; and their entire argument is based on this erroneous idea. Sec. 5699, Rev. Stat.
    The court is imperatively required to allow her alimony. There is no discretion given, as to making the allowance, but the amount is left to the discretion of the court and must be reasonable.
    All property rights between the plaintiff and the defendant became fixed wfien the divorce was granted. The divorce was granted the plaintiff in this case by reason of the aggression of the husband, and her right to a portion of her husband’s estate is a result of the divorce decree. The court fixed that amount at f2,000. If the action nowT abates, she is deprived of that reasonable part of her husband’s estate that the statute says she shall have, and which the court decreed to her; and she, or her estate, loses a large amount of her own money, which is shown to have constituted a part of his estate.
    Whatever may be the viewr of the courts of other states as to the nature and effect of a decree for alimony, in Ohio it is in effect a judgment in favor of the wife.
    Section 5703, in the Divorce and Alimony act, calls it a judgment. Conrad v. Everich, 50 Ohio St., 476; Moore v. Rittenhouse, 15 Ohio St., 310; Webster v. Dennis, 2 Circ. Dec., 566; 4 C. C. R., 315; Carr v.
      Risher, 28 N. Y. St., 260; Downer v. Howard, 44 Wis., 82; McCown, Admr., v. Weiskittle, 6 Dec. (Re.), 805; 4 Bull., 803; Wren v. Moss, 7 Ill., 72; Shafer v. Shafer, 30 Mich., 163; Israil v. Arthur, 6 Colo., 85; Danforth v. Danforth, 111 Ill., 236.
    Where one party dies after a decree of divorce is rendered or after an appeal is taken, the suit may be revived in the name of the executor or administrator, and all the heirs and other parties who may be affected by a reversal of the decree must be joined, as they are necessary parties. 7 Enc. Pl. & Pr., 124, 5.
    Where in a suit for divorce, a decree for alimony has been rendered granting alimony to the wife, on the death of the defendant pending an appeal from, such decree, the suit abates; but the decree may be affirmed in order to entitle the wife to alimony up to the date of the death. Francis v. Francis, 31 Gratt., 283; Lockwood v. Krum, 34 Ohio St., 1.
    We maintain that the Ohio decisions referred to establish two propositions:
    1. The decree for alimony in this case in the court of common pleas is a judgment against Prank Campbell, not in favor of his wife, but in favor of Lucy Gay, a feme sole, she having been decreed a divorce by reason of the aggression of her husband, and restored to her maiden name, Lucy Gay,
    2. The plaintiff below was, at the time of the death of the parties, a creditor of the defendant to the amount of f2,000; and had a lien on his real estate for that sum.
    If these propositions are true, there is neither justice, reason, nor logic in the claim that the defendant could lessen his obligation to his former wife by putting in an appeal bond, and murdering his creditor, or relieve his own estate from liability by suicide.
   Speak, J.

The contention of plaintiffs in error, in support of their claim of error, is, that the suit pending in the circuit court being one for alimony, was strictly personal, and upon the death of both the plaintiff and the defendant, the suit abated, and could be revived neither in favor of- the plaintiff nor against the personal representative of the defendant. And the whole- controversy centers about this proposition, Text books, and decisions of courts outside of our state, are cited in support of it, all of which have been examined and considered. But we find little to aid us in the array of cases cited. The question is not what is the law of other jurisdictions, but what is the law of Ohio on the subject.'

The final disposition of the case in the court of common pleas, which divorced the parties, left the plaintiff in the attitude of a feme sole, with an award of alimony in gross, which was, in legal effect a judgment. It was.a money claim, a debt collectible by execution, and operated per se as a lien on all the real estate of the defendant in the county. Moore v. Rittenhouse, 15 Ohio St., 310; Conrad v. Everich, 50 Ohio St., 476. And while 'the trial in the circuit court would be a trial de novo as to the amount of the alimony, yet had the appeal been dismissed the judgment of the common pleas would have been left in full force and the lien of the judgment unimpaired. The effect, therefore, of the appeal was not in any wise to unsettle the decree of divorce, nor to vacate the judgment for alimony, but simply to suspend it. It was founded upon a claim established by the statute. Upon the declaration of divorce by the common pleas for the aggressions of the defendant the law vested the right in the plaintiff to an allowance as alimony from the defendant’s real and personal property.^ This right was an absolute one. “Shall be allowed” is the imperative language of the statute. To the court was left simply the fixing of the amount; it must be such as the court should deem reasonable. This provision, unlike alimony pendente, was not for her temporary support; it has been held to be in the nature of a division of property arising out of her former relation as wife and because of his aggressions. Had she died after the decree and no appeal been had no one would doubt that the judgment would have been available to her personal representative just as other indebtedness due to her, and collectible by her representative. This being the nature of the claim, and the form of the judgment which embodied it, why should it not survive? If the administrator of the divorced plaintiff could have proceeded to collect the claim as a judgment, why, in reason, should he not have the right to prosecute the collection of the claim, a claim which the law had established, in any court to which it would or might be carried? As before stated, the right had been fixed by the statute itself upon the pronouncement of the divorce, and the ultimate effect of the appeal would seem to be only to give the right to the defendant to obtain the judgment of another tribunal upon the inquiry as to what amount as alimony was reasonable. It is difficult to see how the appeal could change the nature of the claim itself, for the appellate court had no jurisdiction of, or power to inquire into, the matter of divorce and, as we have found, the divorce fixed the plaintiff’s right to alimony.

But if there be doubt of the proper answer to the contention of plaintiffs in error when reviewed from the standpoint of principle, it seems quite clear that all doubt vanishes when we give effect to our statute, section 5144. It provides that: “Except as otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except an action for libel, slander, malicious prosecution, for a nuisance, or against a justice of the peace, for misconduct in office, which shall abate by the death of either party.” It is not by statute “otherwise provided” as to alimony. It is insisted, however, that the cause pending in the circuit court was not a civil action, and hence this statute does not save it. But we need hardly puzzle ourselves with this proposition, for thé suit in the circuit court, if not an action in the strict sense was at least a proceeding, and the statute ip terms covers that kind of a suit.

Complaint is made that the judgment of the circuit court is not justified by the evidence. This court is not concerned with that question. The circuit court was qualified properly to weigh the evidence, and its conclusion in that regard is final.

We are of opinion that the claim of Lucy Gay for alimony, at the time of her decease, was a debt against the defendant, fixed as to the liability, though subject to variation as to amount, and that the cause survived in favor of her administrator and against the administrator of her former husband.

Judgment affirmed.

Minshall, O. J., and Burket, Davis and Shauck, JJ., concur.


source: Caselaw Access Project

author: Burket, J.

license: Public Domain

text:
    Wellston Coal Company v. Smith.

      Mine boss in control of mine — Mine owner charged with knowledge of boss — Miner delegated with duties by boss — Such miner not fellow servant, in those duties, of other miners —Mine owner required to keep safe entries to mine — Degree of care and knowledge required of miner — Master amd servant.

      1. A mine boss who has control of a mine with power to hire and discharge employes stands for and in place of the owner or operator of such mine as to matters between such employes and owner or operator in the operation of such mine; and the owner or operator is chargeable with whatever such boss knows or ought to know in the operation or such mine.
    2. Such mine boss ought to know every fact which he would know if he used ordinary care and diligence in performing his duties in the operation of such mine.
    3. Where such mine boss, instead of performing his duties in and about the operation of such mine himself, enjoins the performance of such duties upon a miner in his employ in such mine, such miner, as to the performance of such duties, is not the fellow-servant of other miners, but as to them stands in the same relation as the mine boss; and the mine boss is chargeable with whatever notice such miner has or ought to have while so performing the duties of such boss.
    4. In the business of mining coal it is the duty of the owner or operator of a mine to furnish reasonably safe entries for the ingress and egress of those employed in such mine,- and to keep such entries in a reasonably safe condition, and the miners may rely and presume that this duty has been properly performed.
    5. It is the duty of a miner, as to such entries, to use ordinary care for his own safety, in view of what he knows or ought to know as to the condition of such entries; and he ought to know every fact which he would know if he exercised ordinary care to keep himself informed as to matters concerning which it is his duty to inquire in the employment in which he is engaged.
    (Decided June 25, 1901.)

      Error to the Circuit Court of Jackson county.
    The coal company is a corporation owning and operating a coal mine, and has in its employ what is known as a bank boss or mine boss, and employed many men to operate its mine, one being Frank Smith, the defendant in error. There is an entry or passage way into the mine, and Mr. Smith was assigned by the mine boss to work in a room of the mine adjoining this entry. About October, 1895, he was employed by said company as a miner, and on November 6, 1896, he claims to have drilled two holes into the face of the coal and charged them with powder, and fired one off, and then returned and fired the fuse of the other, and ran into the entry to a place about sixty feet from the fuse when a part of the roof of the entry fell upon him before this last shot .was discharged, and he was severely injured. He sued the coal company for damages. He averred in substance, in his petition, that the roof of the entry became greatly out of repair and dangerous several months before his injury, by reason of a large heavy piece of slate becoming loose and liable to fall. That the condition of the roof of the entry was well known to the company, its agents and servants who were his superiors, and who were in charge p,nd control of the entry, and that the condition of the entry could have been known to the company, its said agents and servants by the exercise of reasonable care, prudence and caution, and that the condition of the roof of the entry was unknown to him, and could not have been known to him by the exercise of ordinary care, prudence and caution; in time to have prevented his injury, and that he did not have equal means with the company of knowing the unsafe and dangerous condition of the roof of the entry. He further avers that the company negligently and carelessly failed and refused to repair the roof of the entry, and that his injury was directly caused by the negligence of the company in so permitting the said roof to so become and remain out of repair, without warning to him of its dangerous condition, and that he was without fault or negligence in the matter.
    The answer admits the corporate character of the company, that it was operating the coal mine, that it employed more than twenty-five miners, that Smith was so employed and assigned to a room to work and had to pass through the entry, and was injured in the mine at the date named, and denies all and singular the other allegations of the petition, and then denies some of the allegations specially, but these special denials are not broader than the general denial. The answer further pleads contributory negligence of Smith in this: that “without making a cutting, or ‘bearing in’ of the coal in his said room, he drilled a hole of the diameter of more than two inches, and the depth of seven feet into the face of the coal, and placed therein a great quantity, to-wit, four pounds or more of blasting powder, tamped it, and after firing the fuse, went a short distance, and not to exceed sixty feet away, and stopped to await the result of the shot, and defendant says that the injury to plaintiff, if any he received, was the direct result of the explosion of said shot which took place immediately before plaintiff’s alleged injury and the concussion from which caused said slate to fall upon plaintiff, without any wrong, fault or negligence of this defendant, but solely because and on account of the carelessness, negligence and want of caution of plaintiff in putting in said shot to the depth and in the manner hereinbefore alleged, and using said very great and excessive amount of powder therein, and failing and neglecting to go far enough away and staying within the said short distance from said shot. Defendant further says that it said slate was loose prior to the date of its alleged fall, it had no knowledge thereof, and the same was caused by plaintiff and others, coservants with him, in theretofore using an excessive amount of powder in shooting said coal from the solid and without making any cutting or ‘bearing in,’ and thus causing a greater concussion from the shooting of said coal than was necessary, and which could easily be avoided by the use of less powder and the exercise of more labor by plaintiff and his said coservants, all of which plaintiff knew and in which he participated.”
    The reply is in legal effect a general denial of the answer.
    Upon the trial to a jury the following admission was made and carried into the record as an agreement between the parties:
    “That at and before the date of the injury to said Smith, defendant had in its employ at all times a sufficient number of careful and competent persons whose duty it was to look after the safety of all entries in its mine, including the entry in which plaintiff was injured.”
    The jury brought in a verdict in favor of the company. A motion for a new trial was overruled and judgment entered upon the verdict, to all of which proper exceptions were saved.
    The circuit court reversed' the judgment of the common pleas for the following reasons as shown by its judgment of reversal :
    First. The court erred in refusing to admit the evidence of Robert Pope upon cross-examination on page 7 of the bill of exceptions.
    Second. The court erred in its general charge to the jury as excepted to and set forth on page 15 of said bill of exceptions, in the use of the words “slightest degree” in describing the character, or amount of contributory negligence that would defeat a recovery.
    Third. The court erred in refusing to give the fourth special charge as requested by the plaintiff below.
    Fourth. The court erred in giving special charges numbered 8, 10,12, 17 and 2a as requested by the defendant below.
    Thereupon the company filed its petition in error in this court seeking to reverse the judgment of the circuit court, and asking an affirmance of the judgment of the common pleas.

      J. M. MeGtillivray, for plaintiff in error.

      Powell & Eubanks and G. G. McGormiek, for defendant in error.
   Burket, J.

The coal company operated its mine by means of a mine boss who had authority to hire and discharge employes. In the operation of a coal mine such a mine boss stands for and in place of the company, and his acts and omissions in the operation of the mine are the acts and omissions of the corporation. He is not a fellow servant with the miners employed by him. And if he directs one of the miners under his employ to perform some of the duties of the mine boss, such miner while so performing such duties is not the fellow servant of the other miners, but while not so performing the duties of the mine boss he would be such fellow servant. The mine boss cannot delegate his duties to a miner under his employ so as to relieve the company from responsibility for negligence in the discharge of the duties of the mine boss, whether such negligence arises from the acts or omissions of the mine boss, or of some miner under Ms employ, and by him directed to perform the duties of such boss.

The entry in which Mr. Smith was injured was not a room that he was required to keep in a safe condition himself, as was the case in Coal and Mining Co. v. Clay, 51 Ohio St., 542; but on the contrary, the entry was a place furnished to the miners by the company, through its mine boss, and the duty devolved upon the mine boss to use ordinary care in making and keeping, the entry, in a reasonably safe condition for the protection of miners passing in and out through and along the same; and this duty could not be shifted by the mine boss to one of his employes so as to relieve the company from liability for the negligence of such employe while in the performance' of the duties of the mine boss as to keeping such entry in a safe condition. The principle as to inspectors, as in Railroad Co. v. Webb, 12 Ohio St., 475, are not applicable to the relations existing between a mine boss and his employs, because the miners are completely under his control, and their safety depends upon his vigilance and the proper discharge of his duties.

Our statutes on the subject of mining, Section 6871, Revised Statutes, indicate a public policy to the effect that mine owners shall be charged with the duty of making their mines reasonably safe for miners; and miners themselves are also required in certain cases to look out for their own safety, as in propping the roofs of the rooms in which they work, the duty of furnishing the timbers being cast upon the company; but there is no provision requiring the miners to prop or look after the safety of entries; that duty rests therefore on the owners-of the mines.

The case of Troughear v. Coal Co., 62 Iowa, 576, is cited by counsel for plaintiff in error to sustain his contention. In that case there was a pit boss who had no authority to hire or discharge employes, that power being vested in a superintendent. The pit boss discovered that the roof of the mine was unsafe, and it was the duty of the road men to put it in proper and safe condition, and two of them undertook to do so, and while so doing one of them was injured by the negligence of the other. The road men were not performing the duties of the pit boss or superintendent, but on the contrary were performing their own duties, and were clearly fellow servants, and of course one could not recover against the company for an injury caused by the negligence of his fellow7 servant.

There are many cases in which it has been held that duties of officers and agents cannot be delegated so as to relieve the principal from liability, and among them are the following: Fones v. Phillips, 39 Ark., 17; Pullman Palace Car Co. v. Laack, 143 Ill., 242, 32 N. E. Rep., 285; Capper v. Railway Co., 21 Am. & Eng. R. Cas., 525, 103 Ind., 305, 2 N. E. Rep. 719; Lindvall v. Woods, 39 Am. & Eng. R. Cas., 339, 41 Minn., 212, 4 L. R. A. 793, 42 N. W. Rep. 1020; Flike v. Railway Co., 53 N. Y., 549, 5 Am. Ry. Rep. 392; Wooden v. Railway Co., 43 N. Y. S. R. 218, 16 N. Y. Supp., 840; Fuller v. Jewett, 1 Am. & Eng. R. Cas., 109, 80 N. Y., 46; Knahtla v. Railway Co., 21 Oreg., 136, 27 Pac. Rep., 91; Brabbits v. Railway Co., 38 Wis., 289; Pike v. Railway Co., 41 Fed. Rep., 95; Stockmeyer v. Reed, 55 Fed. Rep., 259; Madden v. Railway Co., 28 W. Va., 610, 57 Am. Rep., 695; Lewis v. Railway Co., 59 Mo., 495; Railway Co. v. Naylon, 17 Colo., 501, 30 Pac. Rep., 249; Elledge v. Railway Co., 100 Cal., 282, 34 Pac. Rep., 720; Justice v. Pennsylvania Co., 53 Am. & Eng. R. Cas., 604, 130 Ind., 321, 30 N. E. Rep., 303; Loughlin v. State, 105 N. Y., 159, 11 N. E. Rep., 371; Indiana Car Co. v. Parker, 100 Ind., 181; Hannibal & St. J. R. Co. v. Fox, 15 Am. & Eng. R. Cas., 325; 31 Kan., 586, 3 Pac. Rep., 320; Railroad Co. v. McKee, 37 Kan., 592, 15 Pac. Rep., 484; Daves v. Southern Pac. Co., 98 Cal., 19, 32 Pac. Rep., 708; Pennsylvania Co. v. Whitcomb, 31 Am. & Eng. R. Cas., 119, 111 Ind., 212, 12 N. E. Rep., 380; Fisher v. Railway Co., 53 Am. & Eng. R. Cas., 539, 22 Oreg., 533, 16 L. R. A., 519, 30 Pac. Rep., 425; Brown v. Railway Co., 31 Minn., 553,18 N. W. Rep., 834; Railway Co. v. Smith, 59 Ala., 245; Miller v. Railroad Co., 48 Am. & Eng. R. Cas., 294, 20 Oreg., 285, 26 Pac. Rep., 70; Moon v. Railway Co., 17 Am. & Eng. R. Cas., 531, 78 Va., 745; Railroad Co. v. McKenzie, 24 Am. & Eng. R. Cas., 395, 81 Va., 71.

Plaintiff in error urges that it was entitled to a peremptory instruction for a verdict in its favor in view of the admission on the trial:

“That at and before the date of the injury to said Smith, defendant had in its employ, at all times, a sufficient number of careful and competent persons whose duty it was to look after the safety of all entries in its mine, including the entry in which plaintiff was injured,” and in view of the further fact, as it claims, that there was no statement of any evidence tending to prove knowledge_of the defect on the part of the superintendent or mine boss, nor that the defect was open obvious, apparent and dangerous, or of common knowledge among the employes in the mine, and no other or further evidence concerning it than that of Edward Gordon, who says that he did not consider the matter of sufficient importance to call the attention of the mine boss to it.

A sufficient answer to this claim may be' found in the fact that the record fails to show that any such instruction was asked by the plaintiff in error, or refused by the court. . Again assuming that the above admission concedes that the mine boss and the track layer, Edward Gordon, who had the duty enjoined upon him, in addition to his duty as track layer, to inspect and keep in repair the entry in question, were careful and competent persons whose duty it was to look after the safety of said entry, yet it may be that they were negligent in the performance of their said duty of looking after the safety of said entry. The evidence tended to prove that the mine boss was not observed by anyone testing the roof of that entry for three months before the accident. It urged that there is no evidence tending to prove that he knew the unsafe condition of the entry, but his want of inspection for three months while blasts of powder in the adjoining room were of frequent, if not daily occurrence, tended to show that he ought to have known its unsafe condition. “Masters are charged with notice, not only of what they know, but also of what they ought to know, that is, of every fact which they would have known had they used ordinary care and diligence in performing their duties.” Sherman and Redfield on Negligence, Section 206.

Again the evidence tended to show that this Ed-ward Gordon while assisting the mine boss in the performance of his duty of looking after the safety of the roof of this entry, discovered that it was unsafe, but he did not report it to the boss because he did not consider it very dangerous, and did not think it worth while to tell him. This knowledge so obtained by Edward Gordon while performing the duties of the mine boss is the same as if the knowledge had been obtained by the boss himself and binds the company. There was therefore sufficient testimony of knowledge of the unsafe condition of the roof of the entry, and of negligence in not repairing it, to submit to the jury, and the company was not entitled to a direction for the jury to bring in a verdict in its favor.

Robert Pope was a boss driver, and tbe mine boss, Thomas Stiff, enjoined upon him in addition to bis duty as such driver, tbe duty of inspecting and keeping in repair tbe entry in question, thus performing one of tbe duties of said mine boss. Tbe defendant company offered Mr. Pope as a witness in its behalf, and tbe following question was asked and answer given:

Q. “What, if any, knowledge at tbe time did yon have that tbe slate in tbe roof of tbe entry at tbe point where plaintiff was injured ivas loose, defective or liable to fall?”

A. “I bad no knowledge whatever.”

On cross-examination be was asked tbe following question by counsel for plaintiff below:

Q. “When, if at any time, while you were working under Thomas Stiff as mine boss, did you inspect, by the use of ordinary means used for that purpose* tbe entry at tbe point where plaintiff was injured, or elsewhere in said entry?”

Objection being made to this question by counsel for tbe company, tbe objection was sustained and an exception taken. Tbe circuit court held this ruling to be error. Wbile we do not regard this as of much importance, we think that tbe bolding of tbe circuit court was right. Tbe answer would tend to show whether or not Mr. Pope bad used sufficient diligence in tbe performance of tbe duties of tbe mine boss.

Tbe court charged tbe jury as follows:

“I instruct you that tbe plaintiff in bis work bad tbe right to assume that tbe roof where tbe slate is alleged to have fallen was in a reasonably safe condition. If the plaintiff, acting upon this assumption, used a greater quantity of powder in shooting tbe coal than a reasonably prudent miner under the same conditions and circumstances would have used and said charge or shot produced a concussion that in the slightest degree contributed to produce the alleged fall of slate, he cannot recover in this case, because such act would constitute negligence upon his part.” The circuit court held this part of the charge erroneous, by reason of the words “in the slightest degree.” This holding of the circuit court was in accordance with the holding of this court in Schweinfurth v. Railway Co., 60 Ohio St., 215, and was right.

The fourth special charge requested by the plaintiff below and refused by the court, and which refusal the circuit court held to be error, is as follows:

“If you find from the evidence that the roof of the entry at the place mentioned had become out of repair and dangerous, and that its condition was known to the defendant, or that the same could have been known to said defendant, its servants and agents who had charge and control of said entry, in time to have prevented said injury complained of, by the exercise of reasonable care, prudence and caution, and if you should further find that the condition'of said roof was unknown to plaintiff and that he had not equal means with the defendant of knowing of the unsafe and dangerous condition of said roof, and you should further find that while he, the plaintiff, was passing through and along said entry a piece of slate which had become loose fell upon and injured him, then your verdict must be for the plaintiff.”

This request is too broad, as it allows the plaintiff below to recover even though he was at fault himself. The limitation that if he was without fault on Ms part should have been incorporated into the request- to make it sound law. True this limitation is found in the general charge, but that cannot have the legal effect of making this request sound, so as to constitute its refusal reversible error. To make the refusal of a request to charge reversible error, the request must be sound law throughout and lacking no required limitation

Again the general charge fully and carefully covers the phase of the case included in this request, and incorporates the limitation as to the plaintiff being without fault, and the proposition having been correctly given in the general charge, there was no error in refusing a special charge on the same subject, even if correct.

Knowledge of the unsafe condition of the roof of. the entry on part of the servants and agents who had charge and control of the entry, would be notice to the company, whether such servants and agents were or were not the superiors of the plaintiff and in authority over him in other matters. In that regard the request was not defective, but for the reasons above given the reversal founded upon the refusal of the request is not approved by this court. The second request of plaintiff should have been given without modification, because notice to the servants and agents who had control of the entry, and cared for and inspected it, was notice to the mine boss and company, and whether they were “superior to plaintiff and in authority over him” or not in other matters, could make no difference.

The court charged the eighth special request of the defendant below as follows:

“If you find from the evidence that plaintiff, at the time of and before his injury knew that the roof of said entry was unsafe, or had the means and opportunity to ascertain its defective condition, and did not' avail himself of such opportunity, or use the means at hand, then he was guilty of such negligence as will prevent his recovering in this action for any injury he may have received, and your verdict must be for the defendant.”

The circuit court held this to be error, and we concur in that holding. If the plaintiff below knew the roof of the entry to be unsafe, and entered notwithstanding such knowledge,, he was negligent and ought not to recover; but as it was the duty of the mine boss to furnish a reasonably safe entry, and to keep it in a reasonably safe condition, the miners could •rely upon that duty being performed, and were not required to test and inspect the roof of the entry themselves, and were not charged with knowledge of its unsafe condition, further than the knowledge they would ordinarily obtain in the proper discharge of the work they were employed to perform. The law is stated thus by Sherman and Redfield on Negligence, Section 217: “A servant is chargeable with actual notice of every fact which he would have known had he exercised ordinary care to keep himself informed as to matters concerning which it was his duty to inquire.”

A miner is required by Section 6871, Revised Statutes, to prop the room in which he works and keep it in a safe condition, and therefore he must use the means at hand to ascertain its safety before entering, hut no such duty is enjoined upon him as to an entry. The court also erred in giving the seventh special charge asked by defendant in so far as regards the means and opportunity of plaintiff to ascertain the condition of the roof of the entry.

Special charge number ten given at -request of defendant below is as follows:

“That if yon find from the evidence that the fall of slate upon plaintiff was caused by the jar or concussion from the shot fired by plaintiff in an adjacent room, and that such slate fall did not extend into the middle of the entry, where drivers, miners and other employes walked while going to- and from their work,' then your verdict must be for the defendant for the reason that the plaintiff was not injured at a point or place, where defendant had any reason to expect that any of its employes would pass.”

The giving of this charge the circuit court held to be error, and we think rightly It was the duty of the company to keep the roof of the whole entry in a reasonably safe condition. Miners passing in and out would often meet cars and would be compelled to turn aside, and they had a right to be protected while doing so. On the occasion of the injury in question there was a car on the track which compelled plaintiff below to take to the side of the entry, and while so doing he had a right to be reasonably protected, and the company should have anticipated such occurrences.

The 17th special charge is in substance the same as the tenth, and is open to the same objection.

The twelfth special charge on behalf of defendant below is as follows:

“If you find from the evidence that the fall of slate which injured plaintiff was simultaneous with the explosion of the shot by him fired in an adjacent room, or very shortly thereafter, it is your duty to inquire whether the said slate would have fallen at said time but for the concussion of said shot, and if you find that the said shot was excessively large, then your verdict must be for the defendant.”

The circuit court properly held the giving of this to be error. Under this charge the jury might find that the slate would have fallen at the time it did without the concussion of the shot, and yet if they should find that the shot was excessively large, even though it did not' cause the .slate to fall, they must bring in a verdict for the defendant.

If the shot was excessive, and not such as was ordinarily used, and caused the slate to fall, the roof being in a reasonably safe condition, the plaintiff caused his own injury and should not recover. And' if the shot was not excessive, and was such as is ordinarily used, and still caused the slate to fall, the roof being in a reasonably safe condition, the falling of the slate was what is known as an inevitable accident for which there could be no recovery, and a charge along those lin’es would be proper, but the special charge as given was error.

Special charge number 2a given at the request of defendant below is as follows:

“If you find from the evidence that there was a fall of slate in front of the room which Smith worked some time prior to the date of alleged injury which was cleaned up by defendant’s employes who were competent for the purpose, and who, at said time, put the roof of said entry at said point in such condition that they considered it reasonably safe, then plaintiff cannot recover in this action, even though you should find that said work was not properly done, or said roof made reasonably safe, and the defendant could not in the exercise of ordinary care have known that it was improperly done.”

The circuit court held this to be error, in which holding we concur. The fall of slate in front of Smith’s room was some four months before the accident, and not at the place in the entry where the slate fell upon Mr. Smith, and what was done at that place could not rule the law as to the place in the entry where Smith was injured. •

It seems that the circuit court was of opinion that Edward Gordon and Robert Pope upon whom was enjoined the duty of performing the duties of the mine boss as to looking after the safety of the roof of said entry, in addition to their other duties, were, while so performing the duties of the mine boss, the fellow servants of plaintiff below and the other miners, and therefore held several charges good which were clearly erroneous, among them being special charge la which was, in effect, that knowledge on the part of Gordon of the defect in the roof of the entry, could not charge the defendant with notice of such defective condition, either actual or constructive.

Upon a retrial of the case, the charge, and especially that part covered by the request of defendant, should be recast so as to conforta as near as may be to this opinion

The judgment of the circuit court is

Affirmed.

Minshall, C. J., and Williams and Speak, JJ., concurred.

Davis and Shauck, JJ., dissented.


author: Williams, J.

text:
    Kling, Admr., etc. v. Bordner.

      What agreements must be in writing — Statute of frauds — Section Jfl99, Revised Statutes — Valid contract to leave estate by will must be certain and identify the property — Verbal agreement to leave property by will is void, when — Payment of consideration does not validate, when — Effect of part performance in contract void by statute — Wills—Contracts.

    1. The memorandum in writing which is required by the statute of frauds (Section 4199, Revised Statutes), is a memorandum of the agreement between parties; and it is not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, without the necessity of resorting to parol proof.
    2 To make a valid contract to leave an estate including real property to another by will, it is not only necessary that the contract, or a memorandum thereof, shall be in writing, signed for the purpose of giving it authenticity as an agreement, but the terms of the agreement must be expressed with reasonable certainty in the writing, and it must contain a sufficiently definite identification of the property to be so disposed of.
    S. Where the parties themselves have construed the writing as not constituting such a contract between them, and subsequently entered into a verbal agreement on the same subject, the court will adopt and give effect to that construction.
    4. A verbal agreement to leave real property to another by will, or otherwise, in consideration of personal services to be rendered by the latter, is within the statute of frauds, and void; and the payment of the consideration by rendering the services is not such performance as will take the agreement out of the operation ot the statute.
    5. The doctrine of part performance obtains in equity only, and does not avail to render a contract which is void by the statute because unwritten or unsigned, capable of being sued on in a court of law.
    (Decided June 25, 1901.)

      Erroe to the Circuit Court of Summit county.
    Action on alleged contract of defendant’s intestate to leave her estate, by will, to the plaintiff. Plea of the statute of frauds. Judgment for plaintiff, affirmed by the circuit court. Reversed.
    The action below was brought in the common pleas by Anna E. Bordner, against Adam E. Kling as administrator of the estate of Susannah Maconaky deceased, on an alleged contract of the decedent to leave her estate, by last will, to the plaintiff. The petition is as follows:
    “The plaintiff alleges the following facts, which constitute her cause of action in this behalf: On or about the 5th day of June, 1896, the plaintiff was living at Harrisburgh, ih the state of Pennsylvania; on said last named day she received a letter from Susan-nah Maconaky, then alive and residing at Akron, Ohio, in which letter the said Susannah requested this plaintiff to leave her home at said Harrisburgh, and come to Akron, aforesaid, for the' purpose of caring for and nursing the said Susannah, who was at the time ill, which this plaintiff accordingly did. Thereupon and thereafter, to-wit: on the 11th day of June, 1896, the sáid Susannah Maconaky and this plaintiff entered into a verbal contract, whereby the plaintiff agreed to abide with, nurse, attend and care for the said Susan-nah, in sickness or in health, for as long a time as she, the said Susannah might live. In consideration of which promise of the plaintiff, the said Susannah Maconaky on her part agreed to give to this plaintiff, all of her estate and property, except so much thereof as might be necessary to pay the debts and funeral expenses of the said Susannah.
    “The plaintiff duly kept, observed and performed all and singular the conditions and stipulations of said agreement on her part to be carried out; she left her own family and home, and stayed with, nursed, cared for and attended, faithfully and diligently, the said Susannah all the time from said last named date until her death, which took place on the — day of July, 1896. Thereupon the defendant was duly appointed and qualified as the administrator of the estate of said Susannah Maconaky, deceased, and is still acting as such.
    “The said Susannah Maconaky did-not perform or keep her part of said agreement, although the plaintiff had fully executed her part of it, and did not give to this plaintiff, by last will or otherwise, any part of the estate or property whereof she was the owner at the time said agreement, was entered into, but died intestate.
    “The defendant, as the administrator aforesaid, has converted all the assets of said estate into money, and the entire amount therefrom is the sum of $1,740.32. Out of said money so in his hands the defendant is obliged to pay the debts and funeral expenses of his said intestate, which amount to the sum of $605.35 and no more. The costs of administering the said estate, including the commissions and compensation of the defendant as such administrator, is the sum of $191 and no more. And the reasonable expense of a tombstone for said decedent is $55. Leaving of the assets of said estate, after deducting the said sums expended in payment of said debts, funeral expenses, custs and compensation, the sum of $848.65 which would have accrued and belonged to this plaintiff if the defendant’s intestate kept and observed her said contract.
    “By reason of the premises and the violation of said contract by said decedent, after the same had been fully executed on the part of this plaintiff, she — that is to say, the plaintiff — has been damaged in the sum of |848.65.
    “On the 27th day of April, 1897, the plaintiff duly presented her claim against said estate, as above set forth, duly verified as required by law, to the defendant, as the administrator aforesaid, for allowance. But the defendant thereupon refused to allow the same as a valid claim against said estate, but disputed and rejected all and every part thereof:
    “Wherefore the plaintiff prays judgment against the defendant as the administrator aforesaid, for the said sum of $848.65, for such other relief as she may be entitled to.”
    The answer avers that the estate left by the decedent, with the exception of a few household goods of small value, consisted entirely of real estate; and that the proceeds of said real estate, which was sold by the defendant under the order of the court in the course of administration, after the payment of the debts and costs of administration are the only assets of the estate in his hands for administration and distribution. The answer denies the contract set up in the petition, and alleges that if such contract was made, it is within the statute of frauds, on which he relies in defense to the action. The answer further avers the fact to be that plaintiff, recognizing that there was no such contract, “presented to said administrator an account for her services to decedent Maconaky during the whole of her last illness, and for services before said last illness, and for services after the death of said Maconaky; and that on November 30,1896, defendant allowed plaintiff in full on said account for all she claimed for services during said last sickness of decedent, and which allowance on said account plaintiff accepted by her silence and by her neglect to sue on same within the timé allowed by law, and this defendant has at no time recalled or rejected said account as so allowed but the said allowance still stands.”
    The trial of the cause to a jury, at the January Term, 1898, upon the. issues joined by the foregoing pleadings, resulted in a verdict for the plaintiff for the amount claimed in the petition; and, after the overruling, of a motion for a new trial made by the de fendant, judgment was rendered on the verdict. Thereafter, but still at the same term, the court, on motion of the plaintiff, granted leave to amend the petition, as stated in the record, “to conform to the facts proved on the trial.” This leave was granted against the defendant’s objection, and he duly entered his exceptions. Thereupon the plaintiff filed her amended petition, containing as her first cause of action, a copy of her original petition, and adding the following as a second cause of action:
    “For her second cause of action, this plaintiff here adopts and repeats all of the allegations of her first cause of action herein, in regard to her leaving Harris-burgh, her receipt of a letter from Susannah Maeonaky then alive and residing at Akron, Ohio, and the purport of the said letter in regard to the death of the said Susannah Maconaky, the appointment and qualification of the defendant as her administrator, and in regard to the defendant’s conversion of the assets of said estate into money, and the amount thereof, and in regard to the amount of the debts and funeral expenses of said decedent, and costs of administering her estate, and the reasonable expense of a tombstone at her grave, and in regard to the amount of the assets of said estate after deducting all of said sums expended and to be expended in the payment of said debts, funeral expenses, costs, compensation and tombstone; and thereupon she further says, that on the said 7th day of June A. D., 1896, the said Susannah Maeonaky being then alive, caused and directed to be written a letter, mentioned in said first cause of action of the purport and effect in said first cause of action named, a true copy whereof is hereto attached, marked ‘Exhibit A.’ Whereupon this plaintiff accordingly did, immediately after the receipt of said letter, accept the proposition therein contained, and did come to the said city of Akron, aforesaid, and there duly kept, observed and performed all and singular, the conditions and. stipulations by the said letter required of her to be kept and performed, left her own family at home, and staid with and nursed, cared for and attended faithfully and diligently the said Susannah, all the time from the date of her said arrival in Akron, until the death of said Susannah, which took place as alleged in'said first cause of action, and which letter, and acceptance and performance of the same by this plaintiff constituted a written contract between her and the said decedent, by which the said Susannah Maeonaky on her part agreed to give to this plaintiff all of her estate and property, all of the assets of her estate, which might be left at her decease, except so much as might be necessary to pay the debts and funeral expenses of the said Susannah. The said Susannah Maeonaky did not perform or keep her part of said agreement in any wise, although the plaintiff had fully executed her part thereof, and did not give to this plaintiff by last will or otherwise any part of the assets or estate whereof she was the owner at the time the said agreement was entered into, but died intestate. And the plaintiff says on the 27th day of April, A. D. 1897,' she duly presented her claim against the estate of said decedent, as alleged in said first cause of action, for allowance, to the defendant, who thereupon refused to allow the same as a valid claim against said estate, but rejected every part thereof. By reason of the premises, and the violation of said contract by said decedent after the same had been duly executed on the part of this plaintiff, she, the plaintiff, has been damaged in the sum of $848.65, which she claims, and for which she prays judgment against said defendant.”
    The exhibit referred to in this second cause of action is as follows:
    “Exhibit A.
    “Aicron, O., June 7, 1896.
    “Dear Mother:—
    “Aunt Susan is very low and if you can possibly come do so at once. She wants you to take care of her. She has to be all alone part of the time. She says she will make it all right with you if you come. If you haven’t money to pay your fare she will send it to you. If you come and stay with her after her death all that is left after her debts and funeral expenses are paid shall be yours. She wants.you to come if you possibly can. I told her I thought you would come, poor thing, she cried when she told me to write for you. I think she thinks she is going to die before Jong. If you can not come let her know by return mail, but come if possible for she seems to want you so bad, and it may be the last you can do for her which I hope not. I am well at present, hoping this will find you the same.
    “Your son,
    “Address “WILL.
    “Mrs. Susan Maconaky,
    “600 Locust St.,
    “Akron, Ohio.”

      The defendant, protesting against the allowance of the filing of the amended petition, filed an answer thereto denying the contracts alleged, pleading the statute of frauds, and the other facts set forth in his answer to the original petition.
    A bill of exceptions was duly taken, setting out all the evidence, the charge of the court, exceptions to the admission and rejection of evidence, to the giving of certain instructions requested by the plaintiff, to the refusal to give instructions requested by the defendant, and to portions of the general charge; which, so far as deemed important in the decision of the case, will be noticed in the opinion.
    The judgment rendered by the common pleas court having been affirmed by the circuit court, the case has been brought here.

      A. E. Kling and Harvey Musser, for plaintiff in error.
    The petition alleges a verbal contract only; and the plaintiff below claimed that because of a breach of the verbal contract set forth in her petition that she was damaged in the sum of' $848.65. The amount of damages was determined by the pleader who drew the petition, by taking the aggregate of the proceeds of the sale of the chattel and real property, and by deducting therefrom the costs of administration, funeral expenses and debts." We maintain that under this petition the measure of damages was not what the estate was worth, but what the services of Mrs. Bordner were fairly worth. If the contract alleged in the petition was made and the same was violated, then the measure of damages for such breach, was what the services of Mrs. Bordner were fairly worth.

      Norris, Admr., v. Clark, 7 Dec. (Re.) 564; 3 Bull., 994; Crabill v. Marsh, 38 Ohio St., 331; Howard v. Brower, 37 Ohio St. 402.
    The alleged contract attempts to dispose of real estate by parol. Such contract is void under the statute of frauds. Section 4198, Rev. Stat.
    As stated above no claim was made in the petition that the contract was in writing, or that Will. Bordner was the agent of Mrs. Maeonaky and that he, Will, was authorized by her, “by writing f’ so that we contended and now contend, that the alleged contract was absolutely void and of no effect. Hopple v. Hopple, 2 Circ. Dec. 59; 3 R. 102.
    We further maintain that plaintiff’s petition shows an effort to dispose of property after the death of Mrs. Maeonaky. Such disposition can only be made by will. Section 5914, Rev. Stat.; Phipps v. Hope, 16 Ohio St., 586.
    The contract alleged is merely a personal contract of Mrs. Maeonaky. It is not one that can be enforced by or against her administrator. It did not survive Mrs. Maeonaky. It is one that attempts to defeat the laws of descent and distribution. It takes effect, if at all, at the death of Mrs. Maeonaky. Courts do not favor such contracts.
    Part performance takes a contract out of the statute of frauds, in equity only, and hence it does not entitle the plaintiff to maintain the judgment in this case. Brown on Statute Frauds, 458; Fry on Specific Performance, 251, Section 384; Wheeler v. Reynolds, 66 N. Y., 227; Pomeroy on Specific Performance, 152; Story on Equity Jurisprudence, Sections 762, 764; Cronk v. Trumble, 66 Ill., 428; Gosse v. Jones, 73 Ill., 508; Knatt v. Harvey, 19 Wisc., 110; 1 Parsons on Contracts, 531; Titman v. Titman, 64 Pa. St., 480; Pillage v. Pillage, 34 Wisc., 136.

      This suit is for money damages only, against the administrator, not for the specific performance in equity, against the heirs at law. Hence the principle of part performance cannot control and does not take the case out of the statute.
    The mere payment of the purchase money, whether made in money or services, will not take the case out of the operation of the statute. Sites v. Keller, 6 Ohio, 484; Pollard v. Kinner, 6 Ohio, 528; Armstrong v. Kattenhorn, 11 Ohio, 265; Ham v. Goodrich, 37 N. H., 185; Horn v. Ludington, 32 Wisc., 73; Temple v. Johnson, 71 Ill., 13; Sulton v. Rowley, 44 Mich., 113.
    Courts of equity enforce specific performance of a parol agreement for the devise or conveyance of real estate not on the ground of part performance, but because the breach is a fraud: “A mere refusal to perform a parol agreement, void under the statute' of frauds, is in no sense a fraud, either in law or equity.”
    Again, before Mrs. Bordner can claim damages for the breach, (which we do not concede she can,) other than such sum as will fairly compensate her for her services, she must prove that her services were peculiar, — not of the ordinary — and that the same were incapable of being measured by pecuniary compensation.

      Grant é Bieber, for defendants in error.
    There seems to be a ^general complaint in the brief of the plaintiff in error that the kind of contract sued on — that is, a contract by which one agrees, upon a sufficient consideration, to convey property by will — is in some undefined and undisclosed way under the ban of the law and not to be enforced by the courts.
    The very reverse of this is the truth.

      In Phipps v. Hope, 16 Ohio St., 586, this court seems fairly to recognize the action for a breach of this kind of agreement. And the conclusion thus reached is sustained by authority. Emery v. Darling, 50 Ohio St., 160; Canada v. Canada, 6 Cush., 16; Fitch v. Fitch, 8 Pick., 478; Trull v. Eastman, 3 Metc., 121; Jenkins v. Stetson, 9 Allen, 128; Logan v. McGinnis, 12 Pa. St., 27; Parsell v. Stryker, 41 N. Y., 480; Wright v. Tinsley, 30 Mo., 380; Gupton v. Gupton, 47 Mo., 37; Rivers v. Rivers, Exrs., 3 Dessau., 90; Pollock’s Principles of Contracts, 309.
    A great, deal of the plaintiff’s brief is concerned with the question of whether the contract sued on is within the statute of frauds.
    If the controversy turned wholly upon a verbal agreement declared on in the original agreement, and if it were admitted by us that the contract was one concerning real property, and the proof showed that it had not been completely performed on one side of it, then perhaps some of the many authorities cited would be pertinent. But since the amended petition declares upon a written contract, to which all the proof was directed,. any extended discussion of the cases referred to in the brief would be a bootless task.
    We think the controversy not an open one in Ohio. It seems to have been directly settled. Thayer v. Luce, 22 Ohio St., 62; Himrod Furnace Co., v. Railroad Co., 22 Ohio St., 451; Chase v. Lowell, 7 Gray, 33; Sanborn v. Flagler, 9 Allen, 470; Tuft v. Mining Co., 14 Allen, 407.
    When one party to a contract of the kind sued on here has voluntarily put it out of his power to perform, the remedy to the one aggrieved is in damages, and the measure of damages is the value of the estate to which the plaintiff here would have succeeded had the agreement been fully carried out by both parties to it. This proposition seems to be the one to which the language of this court necessarily leads in the case of Shahan v. Swan, 48 Ohio St., 25; Frost v. Tarr, 53 Ind., 390.
   Williams, J.

The amended petition declares on two distinct contracts between the same parties, both of which, it is claimed, created precisely the same obligation. The first contract, it is alleged, arose from the acceptance by the plaintiff of the terms of the letter written to her by her son, and known in the record as exhibit “A.” This is construed by the pleader as constituting a written contract on the part of the defendant’s intestate to give the plaintiff by last will, or some other mode of transfer, all of the estate, real and personal, of which the intestate should die seized, except only so much as should be necessary for the payment of her debts and funeral expenses. The other contract, which,- it is alleged, was entirely yerbal, and was made a few days after the first one, was exactly to the same effect. The consideration for each of the alleged agreements on the part of the intestate was precisely the same, which was, that the plaintiff should attend upon, nurse and care for her as long as she lived. The alleged'breach of each contract' is identical, which is that the intestate did not give her estate, by last will, or otherwise, to the plaintiff; and the relief demanded for such breach is the same under both eontrácts, namely, that the plaintiff recover all of the estate of which the intestate died seized, except sufficient to pay her debts and funeral expenses. It is entirely clear there could not be a recovery on both contracts; for a recovery on either, would exhaust the subject of the action, necessarily supersede the other contract, and preclude a recovery upon it. This situation is not alluded to for the purpose of putting the plaintiff to an election; but it is of importance in the consideration of a feature of the case that will be noticed hereafter. If the plaintiff’s action can be maintained on either contract, her election to rely on that one may be presumed.

It is admitted that, at the time of the making of' tfyese alleged agreements, and at the time of the intestate’s decease, her estate consisted principally of real property situated in this state, and that the only assets in the hands of the defendant as her administrator, is the balance of the proceeds of that property, it having been sold by him in the due course of administration, remaining after payment of the debts, and cost of administering the estate. This balance is, itself, under our statute real, and not personal property, and goes by descent to the heirs. Section 6171, Revised Statutes. So that, both of these contracts, allowing them the effect claimed by the plaintiff, are agreements for an interest in and concerning lands, on which an action is forbidden by that provision of our statute of frauds contained in Section 4199 of the Revised Statutes, unless the agreement, or a memorandum thereof, is in writing signed by the party to be charged, or by some person by him lawfully authorized. This is authoritatively settled by the case of Shahan v. Swan, 48 Ohio St., 25.

It is the contention of the plaintiff that the letter received from her son, which has already been referred to, constitutes a memorandum in writing of the first alleged contract that is in compliance with the requirements of the statute; and that, performance of her part of the subsequent verbal agreement is sufficient to take that contract out of the operation of the statute. It is that view, which appears to have been sustained by the courts below, of which the plaintiff in error chiefly complains, and it becomes the important subject of inquiry in the case.

As is the case in most instances of legislative innovation upon long established rules and practice, some courts were reluctant to accord to the statute of frauds its intended scope and effect; and it is not surprising that cases are found in which its provisions have been held satisfied by writings that were quite vague and incomplete. The salutary character of the statute, however, is now generally recognized, and full effect given to its terms. The memorandum which the statute requires “to be in writing,” is, to use its language, a memorandum of the “agreement,” between the parties; and it is now well settled, as held by Chancellor Kent, in Parkhurst v. Van Cortlandt, 1 Johns. Ch., 273, that thb memorandum in writing, “to be valid within the statute of frauds, must not only be signed by the party to be charged, but must contain the essential terms of the contract, expressed with such clearness and certainty, that they may be understood from the writing itself, or some other paper to which it refers, without the necessity of resorting to parol proof.” The rule is not less explicitly stated in Reed on the Statute of Frauds, Section 392, as follows: “First, the memorandum must show an agreement, that is to say, a concluded contract; secondly, it must be intended as evidence of such contract; and, thirdly, it must show the whole contract. A contract, then, must be shown by the writing, in which the minds of the parties have met. The memorandum must be so reasonably certain and definite in itself that the contract can be made out without requiring additional proof in parol. ‘It must contain such words as will enable the court, without danger of mistake, to declare the meaning of the parties; it must obviate the necessity of going to oral testimony and, relying on treacherous memory, as to what’ the contract itself was.’ ” No special formality in the execution of the writing is necessary, provided, as held in Anderson v. Harold, 10 Ohio, 399, it is signed for the purpose of giving it authenticity as an agreement; and the consideration need not be expressed. Nor, is it doubted that a valid agreement may be made upon sufficient consideration, to make provision by will out of one’s estate for the benefit of another, or to so dispose of his whole estate; but no promise to do so, which includes real property, is binding unless it is in writing containing the terms of the agreement expressed with reasonable certainty, and a sufficiently definite identification of the subject matter, as required by the rule above stated.

The instrument relied on in this case, tested by that rule, is inadequate. Assuming that the letter written to the plaintiff by her son is signed as required, it does not contain a promise of the defendant’s intestate to make a will in favor of the plaintiff, nor to transfer to her, by any mode of conveyance, the decedent’s estate, or any part of it that is capable of identification. The particular clause of the letter from which it is claimed such promise arose, is the statement that: “If you come and stay with her, after her death all that is left after her debts and funeral expenses are paid shall be yours.” This statement falls short of the promise that is sought to be derived from it, even if it may be considered as a direct communication from the intestate. As was said by the court in White v. Bigelow, 154 Mass., 593, where a similar statement in a letter was relied upon to establish a like promise, it “is the expression of an intention to give the property in the future, rather than an agreement binding upon her and her estate.” Maunsell v. White, 4 H. L. Cas., 1039; Caton v. Caton, L. R., 2 H. L., 127, and Maddison v. Alderson, 8 App. Cas., 467, are analogous cases. Then, it may be inquired, what was meant by the expression in the letter “all that is left,” etc.; “all” of what? The claim of the plaintiff is that all the property both' real and personal of the decedent, was intended. That is supplying by conjecture what the writing does not contain. It_ is apparent, however, that the letter referred to, not only fails to contain the promise and agreement-claimed from it by the plaintiff, but the statement above quoted, from which the agreement is supposed to have arisen, does not purport to be made to the plaintiff as a promise or agreement of the intestate, but rather as expressive of the writer’s own expectation. Most of the contents of the letter, including the statement referred to, appear to be communications to the plaintiff from her son in his individual and filial relation, and not in behalf of, or as the agent of the decedent. The only statement contained in the letter, of the latter character, is as follows: “She says she will make it all right with you if you come.” It is obvious that both parties so understood and acted upon the letter; for. soon after the arrival of the plaintiff in Akron, they, proceeded to, and did, negotiate a verbal agreement of precisely the same effect that it is now claimed had recently before been made in writing by the plaintiff’s acceptance of the terms of this letter. This they would not have done if they had understood that such a written agreement had already been entered into, and was then subsisting between them. Accepting the plaintiff’s statements as entirely true, that is the construction which both parties placed upon the letter when both were living and acting together; when both could speak, and both did speak; and it is the construction to which the plaintiff adhered after the death of the other party, until after trial and judgment in this case. In her original petition the plaintiff avers the fact to be, that upon the receipt of the letter in question, which was written on the 7th day of June, 1896, she went to Akron, where the said Susannah Maconaky then resided, for the purpose of nursing and caring for her, and “thereupon, and thereafter, to-wit: on the 11th day of June, 1896, said Susannah Maconaky and this plaintiff entered into a verbal contract whereby the plaintiff agreed to abide with, nurse, attend, and care for the said Susannah in sickness or in health, for as long a time as she, the said Susannah, might live, in consideration of which promise of the plaintiff, the said Susannah Maconaky on her part agreed to give to this plaintiff all of her estate and property, except so much thereof as might be necessary to pay the debts and funeral expenses of the said Susannah.” This verbal agreement, with the averments of the time and manner it was entered into between the parties, is reasserted and set forth as the foundiation of the plaintiff’s first cause of action in' her amended petition filed after judgment; that cause of action being an exact copy of the original petition. The second cause of action in that amended petition is not founded on a new or changed state of facts, but rests entirely upon a different construction which the pleader seeks to establish for the letter. As still further showing the understanding of the plaintiff that the letter did not constitute a contract as now claimed, it is admitted that a few months after the decease of the intestate, the plaintiff presented to the administrator for allowance and payment, a verified claim for the value of her services in taking care of the decedent until her death, and for taking care of her house after her death; which claim Was allowed by the administrator, and has never been withdrawn. It is not a question of estoppel interfering with the right of amendment. But the practical interpretation which the parties have put upon their transactions is always a proper subject of inquiry in the ascertainment of their rights and obligations under them. If it be conceded that the letter is of doubtful interpretation, the mutual recognition by both parties while both were yet living, and the continued recognition by the plaintiff since the death of the other party, that it did not create the contract, as now claimed, and that none existed between the parties until the verbal agreement was entered into as alleged in the petition, could not be disregarded, and would seem conclusive that it was neither intended nor understood to contain the terms of a contract of the purport eventually claimed from it. The law has provided with certainty for the succession to intestate property, and the rights of those so lawfully entitled to succeed to it, should not be defeated, except by some other lawful disposition by the owner that can be distinctly established.

That the judgments below cannot be supported by the verbal agreement, has been settled by the former decisions of this court. The agreement is within the statute which expressly denies the right to bring an action upon it. The performance relied on to take the agreement out of the statute is the payment of the consideration by the plaintiff, which, although it consisted of personal services rendered by her, is insufficient. Shahan v. Swan, supra; Crabill v. Marsh, 38 Ohio St., 331; Howard v. Brower, 37 Ohio St., 402, 403. It does not aid the plaintiff’s case, as her counsel seem to suppose, to treat it as one at law for damages. The doctrine of part performance is enforced only in equity, and cannot avail to render a contract which is void by the statute because unwritten or unsigned, capable of being directly sued on in a court of law. The extent of her remedy at law would be to recover the value of her services. Her action is not of that nature.

Judgments below reversed and judgment for plaintiff in error. '

Minshall, C. J., Bukket, Spear and Shauck, J J., concur; Davis, J., dissents.