text:
    Davis v. Bauer.
    1. The erasure of the name of the payee of a promissory note, and the substitution of another name after its delivery, by a party interested' in the instrument, is a material change, and avoids the instrument as to a maker not assenting to the alteration.
    2. Where one of-several makers of a promissory note, given for the accommodation of the payee, and so altered after its delivery, voluntarily pays the same at maturity, he cannot recover on it against another maker thereof, who has not consented to oi-ratified the alteration.
    Error to the District Court of Crawford County.

      S. JR. Harris and Harrison, Olds ‡ JMJarsh, for plaintiffs in error.

      Finley & Eaton, for defendant in error.
   Dickman, J.

The original action was founded on a promissory note, with warrant of attorney to confess judgment thereon, dated June 18th, 1874, and payable one day after date, for the sum of one thousand dollars, with eight per cent interest, and was commenced in the court of Common Pleas of Crawford County, by the defendant in error, Philip Bauer, against the plaintiff’s in error, Jefferson-W. Davis, John Dodane, William F. Crowe and Peter Bauer. It is alleged in the original petition, that the note was made payable to one John Gr. Birk, and was executed by Davis in connection with the plaintiff and the defendants Dodane, Crowe and Peter Bauer, as apparent joint and several makers, but, that in fact, all the signers of the note, except Davis, executed it merely as sureties for him. It is' further alleged, that upon the non-payment of the note at maturity by Davis, the plaintiff paid off the same with the interest thereon, on the 7th day of September, 1874, since which time, nothing has been paid him on the note by Davis, or either of the other signers of the instrument.

Davis filed a separate answer, setting up several special defenses. No answer was filed by either Dodane or Peter Bauer, and no default was taken against them. Crowe made the same defenses as Davis, but, under the direction of the court, no verdict was returned for or against him. Practically there was no issue raised in the cause, save as to the liability of Davis. A verdict was returned for the plaintiff, Philip Bauer, and the judgment rendered thereon was affirmed by the district court. To reverse the judgment of the district and common pleas courts, this proceeding is prosecuted.

The evidence embodied in the record discloses a very different case from that set up in the petition. "At the date of the note in question, Jefferson W. Davis was treasurer of the school funds of the Union schools of Crestline, Ohio. J. A. Thoman & Co. were at that date bankers in Crestline, and Davis kept his bank account with them. Their bank was then owing him as an individual depositor some $675, while on his account as such treasurer, there was a balance to his credit, of over twelve hundred dollars. While Davis was treasurer he was accustomed to pay the teachers in the schools, by checks drawn on Thoman & Co., but, on the 18th day of June, 1874, he had money enough to pay their salaries then due, without drawing on his bank deposits. On that day, Henry Thoman, then a member of the firm of J. A. Thoman & Go., called upon Davis at his place of business in Crestline, for the purpose of raising $1,000, to be used in paying debts of the firm, and among them sundry checks drawn upon them in payment of teachers’ salaries. He had with him an unexecuted joint and several promissory note for $1,000, dated June 18th, 1874, containing a power of attorney to confess judgment, and made payable one day after date, to the order of J. A. Thoman & Co., at their banking house in Crestline, with eight per cent, interest after maturity. Henry Thoman requested Davis to sign the note, and agreed to obtain four other signatures thereto, representing at the time, that Thoman & Co. should in fact be the principals of the note, who would take it up when due, while the makers thereof should be, to all intents and purposes, only co-sureties for Thoman & Co. With that understanding Davis executed the instrument, and Henry Thoman thereupon procured the signatures to the same, of John Dodane, Philip Bauer, William E. Crowe and Peter Bauer. In behalf of J. A. Thoman & Co., Peter Bauer went to Bucyrus, and there borrowed the amount of the note from John G. Birk, the treasurer of Crawford County, delivered the note to Birk, and handed over the money he had received to Henry Thoman for his firm. Neither at the time of negotiating the loan of Birk, nor at any time before or after, was the name of the payees of the note— J. A. Thoman & Co. — endorsed thereon; but Birk, after the delivery of the note to him, altered the same by erasing the name of the original payees by drawing the pen through it, and writing his own name — John G. Birk — as payee therein. This alteration was made without the knowledge or consent of Davis, Crowe, or any of the signers of the instrument except Peter Bauer; and Davis did not know of the alteration until months after it was made, and did not in any way ever sanction or ratify it after it was made. About the 7th of September, 1874, Philip Bauer paid the note and took it up, and he testifies that he did not until after so paying it, learn that John G. Birk’s name was in the note as payee. Philip Bauer paid the note of his own volition, without the knowledge or request of Davis, and without his approval or acquiescence.

W e are satisfied from the evidence, that Davis executed the note solely for the accommodation of J. Thoman & Co.; that he never received any portion of the money loaned on it; and that the proceeds of the note were used entirely by the bankers — Thoman & Co. — in paying their own debts, and in meeting the checks and drafts of their depositors. We think furthermore, that under the solicitation of Henry Thoman, all the makers of the instrument became parties to it, with the understanding, that they were executing it for the accommodation of the payees; that the payees would provide for the payment of the note at maturity, and if not then paid, the contributive share of each maker would be only the one-fifth part of the amount required to be paid.

It is evident that the erasure of the name of the payees by Birk was, as to. the makers of the note, a material alteration. From the moment of the change they became strangers to the instrument. The alteration destroyed the identity of the contract, and imposed upon the makers a contract to which they had never assented. And in that view we might appropriately adopt the reasoning and language of Scott, J., in Boalt v. Brown, 13 Ohio St., 364, in which it is said, “Brown had assented to, signed and authorized the delivery of one note.; and Hurlbut, declining to accept, did accept another, which he knew Brown had never assented to, had never signed, and had never seen. In all this there is evidently no contract; for the parties, Brown and Hurlbut, did not mutually assent to the same terms. Brown’s note was never delivered, and the note Which was delivered was not Brown’s.” After striking out the name of J. Thoman & Co., as payees the makers were, on its face, made directly liable to Birk as payee instead of indorsee. Being only accommodation paper, based upon no consideration, Thoman & Co., without the alteration, upon their endorsing and taking up the note, would have had no recourse to Davis or the other makers. The instrument would have had no validity in their hands, as payees or otherwise.

The rule is elementary, that a material and intentional alteration of a written instrument will avoid it, when the alteration is made by or with the privity of one claiming a benefit under the instrument, and after the instrument has been delivered and taken effect. Fullerton v. Sturges, 4 Ohio St., 529 and cases cited. Such a material change of •the note by Birk — an interested party — as erasing the name of the payees, and inserting his own instead, avoids the instrument as to Davis and the other makers not assenting to the alteration. In German Bank v. Dunn, 62 Mo., 79, after a note was completed, in the absence and without the authority or knowledge of the maker, the name of the payee was by the holder erased, and his own name substituted. It appeared that the note was in fact made for the holder’s benefit, and there was no evidence that the erasure was made with any sinister or fraudulent motive. It was the opinion of the court that the alteration operated to discharge the maker. In that case it was urged that the alteration was not a material one, as it did not thwart the intention of the maker; but, the court, in accord with its previous decisions, enforced the rigid doctrine that fraud should be prevented even in its incipient stages, by putting an absolute interdict on all unauthorized tamperings, thereby placing the holders of paper under the strong bonds of pecuniary self interest to keep it entirely intact.

In the case of Stoddard v. Penniman, 108 Mass., 366, the action was to charge the defendant as an original promisor upon a promissory note. It appeared that the note was made payable to the maker’s order; that while it was in this condition, and before the maker endorsed it, the defendant put his name on the back of it for the maker’s accommodation; and that in negotiating it to the plaintiff, the maker altered its face so as to make it payable to the plaintiff’s order, without the defendant’s knowledge or consent. It was held that this was a material alteration, and avoided the defendant’s liability. See also Cumberland Bank v. Hall, 1 Halst., 215; Dolbier v. Norton, 17 Me., 307.

It is the general rule that if several persons become co-sureties, by the same instrument, and one surety pay the demand, or more than his own proportion of it in reference to the number of his co-sureties, and thereby relieve the latter from liability, he may recover against each co-surety his aliquot share or proportion of the debt, or of the sum paid by him beyond his own proportion, upon an implied promise to contribute. The note under consideration having been altered without the knowledge or consent of Philip Bauer, he was discharged from its payment. But notwithstanding his discharge, he paid the note sua sponte, and having done so, he could have no claim for contribution upon the other joint and several makers who were his co-sureties. To establish a claim for contribution, the payment must have been made by him under a legal and fixed obligation. Pitt v. Purssord, 8 M. & W., 538; Davies v. Humphreys, 6 id., 153; 2 Parsons’ N. & B., 253. In the emphatic language of the court in Russell v. Failor, 1 Ohio St., 327, “Upon no principle of justice or sound reason, can a surety, by voluntarily paying money on a void note, impose an obligation upon a co-surety for contribution.”

It is said, that Philip Bauer did not know that the note had been altered, until after he had taken it up. He certainly knew when he became a party to it, that it was made payable to the order of J. Thoman & Co. at their banking house in Crestline, and, if at the time of his paying it, he omitted to observe the fatal alteration in the instrument, his oversight, indifference or neglect, cannot create an obligation upon a co-surety who, by operation of law, had been relieved from all liability at the time the note was paid bj^ him. His position should be regarded in like manner with that of one who would seek to make another person his debtor against his will, by voluntarily paying a claim for which that person is not legally bound. Such voluntary payment could of course confer no right of action.

Whether Philip Bauer might have a remedy against John G. Birk for money paid under a mistake of fact on tlie ground that he paid the note in ignorance of the alteration, and without any critical examination to see that there had been no alteration, we do not deem it necessary to inquire.

From these views of the rights of parties, we are of opinion, that the judgments of the district and common pleas courts should be reversed, and the cause remanded to the court of Common Pleas for further proceedings.

Judgment accordingly.


source: Caselaw Access Project

author: McCauley, J.

license: Public Domain

text:
    Kelley v. City of Columbus.
    1. A city is not liable for an injury resulting from the unsafe or dangerous condition of lands adjacent to a street where the place of danger is so far from the street that no injury can result to persons in the ordinary and proper use of the street.
    2. The owner of land is not liable for injury resulting from the unsafe or dangerous condition of his premises, to persons who go upon them without invitation express or implied.
    3. The fact that a pavement was continuous from a sidewalk on a street over the adjacent lands to the place of danger, was not, of itself, an implied invitation to a person on the sidewalk to go upon the adjacent lands.
    Errol to the District Court of Franklin County.
    The original action was brought by the plaintiff in error against the city of Columbus for damages for injury received, by falling into an open area on the east side of the city building of the defendant.
    The city building fronts northward upon State street, and an open area extends along the east side of the building northward to a point about thirty feet from the south limit of the street. The area is about five feet in width and about five feet deep below the surface of the adjacent lot. On the east side of the area is a wall up to the surface of the ground and parallel with the east wall of the building. The purpose of the area is to afford light and air to the rooms in the basement of the building. There was no walk or passage way of any kind across the lot in any direction, nor was there any door or other opening, except windows, in the open area on the east side of the building. The front wall of the first story of the building was about twenty feet from the south side of the street, and above the first story the front wall extended to the south line of the street. The entrance to the first story was over a stone pavement which was continuous from the sidewalk to the front wall, about twenty feet from the street. This pavement extended around the corner of the building about twelve feet along the east side of it to the north end of the open area.
    The plaintiff with three other men had been at a theater in the neighborhood of the city building, and some time after eleven o’clock at night going from the theater to a hotel, the American House, the plaintiff passing along the street on the pavement in front of the city building turned aside and walked across the pavement and along the east side of the building in the darkness to urinate. When he had reached a point about thirty feet from the south side of the sidewalk he fell into the open area and received the injury for which the action is brought. The record shows that the plaintiff had no business on the city lot with any person, that he did not go there for any purpose except to urinate in the darkness on the east side of the building, and that lights were provided and burning in front of the building to light the approaches to the entrance from the pavement; but the lights did not light up the east side of the building far enough from the street to show the area along the east side of it.
    Upon the trial in the Common Pleas on the motion of the defendant after the plaintiff had rested his case, the court arrested the testimony from the jury and gave judgment for the defendant. This judgment was affirmed by the District Court. It is now sought to reverse the judgment of both courts.

      Isaiah Pillars, with whom were Taylor Taylor, for plaintiff in error.
    I. A municipal corporation is liable for all injuries to persons, who are not guilty of contributory negligence, occurring by reason of defective streets, alleys, sidewalks, drains, sewers, public buildings and grounds, arising either from improper construction or want of repair; or from obstructions or excavations unguarded, in or near public highways, and of which defects, obstructions, or excavations the corporate authorities would reasonably be bound to take notice. Russell v. Men in the County of Devon, 2 Term Rep., 667; Commissioners, &c., v. Mighels, 7 Ohio St., 110; Western College v. City of Cleveland, 12 Ohio St., 337; Weightman v. City of Washington, 1 Black, 39; Nebraska City v. Campbell, 2 Black, 290 ; Barnes v. City of Columbia, 91 U. S., 540, and authorities cited: Wharton on Negligence, § 959; Rev. Stats., § 2640.
    II. The city of Columbus being the owner and having the management of the City Building referred to in the case, and being the owner of the adjoining premises in which the excavation existed, into which the plaintiff fell, it is held answerable in the same manner, and under the same rules as a private owner would be under like circumstances. See Oliver v. Worcester, 102 Mass., 499, and authorities there cited. Mill v. Boston, 122 Mass., 344 ; Providence v. Clapp, 17 How., 161; 22 Penn. St., 54.
    III. A municipal corporation is answerable for injuries resulting to travelers or pedestrians who are without fault, by reason of obstructions, open areas, excavations or pitfalls outside the line of the highway, but adjacent or near thereto. Clark v. Fry, Ohio St., 358; Railroad Co. v. Bingham, 29 Ohio St., 368; Barnes v. Ward, 67 Eng. C. Law, 393; Firmstone v. Wherley, 2 D. & L., 208, Pollock, B.; Corly v. Hill, 4 C. B., U. S., 556; Hargreaves v. Deacon, 25 Mich., 5; Young v. Harvey, 16 Ind., 314; Mullen v. St. John, 57 N. Y., 567; Wood on Nuisances, §§ 273, 279, 280, 328, and authorities there cited; also §§ 329 and 330; also Shearman and Redfield on Negligence, §§ 359, 360, 383, n. 4, 390, 391; Mason v. Town of Derby, 37 Conn., 298; City of Norwich v. Breed, 30 Conn., 535; Houfe v. Town of Fulton, 29 Wis., 296; 30 Ind., 53; 53 Mo., 290 ; 34 Iowa, 41; 35 Ill., 58; Chicago v. Gallagher, 44 Ill., 295 ; Temperance Hall Association v. Giles, 33 N. J., 260; Dillon on Municipal Corporations, § 788.
    IY. Where the owner of premises invites another to come upon the same, either expressly or by implication, he cannot permit anything in the nature of a snare to exist thereon, which results in injury to a person who avails himself of the invitation or permission. Wood on Nuisances, §§ 288-9; Beck v. Carter, 68 N. Y., 283; Bennett v. Railroad Co., 102 U. S., 577; Cooley on Torts, 604-7.

      Alexander Krumm and C. T. Clark, City Solicitors, and James H. Wright, for defendant in error.
    In order that the plaintiff may recover under the circumstances, he must be able to show, that this open area was substantially adjoining some public way, along or over which the public have a right, and are accustomed to travel. 29 Ohio St., 368; Roscoe’s Ev. at Nisi Prius, 685 ; Beck v. Carter, 68 N. Y., 283; Daily v. Worcester, 131 Mass., 452. And whether it is substantially adjoining or not, is a question of law for the court, and will not be left for the jury to determine. Hardcastle v. Yorkshire R. R. Co., 4 H. & N., 67; Hadley v. Taylor, Law Rep., 1 C. P., 53; Barnes v. Ward, 9 C. B., 392; Hounsell v. Smith, 7 C. B., N. S., 731.
    And if the excavation or open area is at a considerable distance from the public path, so that a person proceeding along such public way, might not, by making a false step, or being affected with sudden giddiness, be thrown into the excavation, no liability will arise. Saunders’ Neg., 61; 4 H. & N., 67; Shearman & Redfield, sec. 505; Barnes v. Ward, 9 C. B., 392; Norwich v. Breed, 30 Conn., 535.
    As to remoteness from highway, see Binks v. Railway Co., 3 Best & S., 244; Blyth v. Topham, Cro. Jac., 158;
      Daily v. Worcester, 131 Mass., 452; Puffer v. Orange, 122 Mass., 389; Sparhawk v. City of Salem, 1 Allen, 30.
    The plaintiff, upon this phase of his cause, in order to create a liability against the defendant, must show some omission of duty, and to do so, must aver and prove:
    1. That the construction of this paved way was such as to operate as an invitation, allurement, or inducement to the plaintiff, within its obvious purpose and design, to use it as a means of access to that part of the premises of the defendant open to the public.
    2. That, at the time of the injury to himself, he had a lawful occasion to be upon the premises of the defendant, and at the place where the injury occurred, and was proceeding with due care along this paved way to accomplish such purpose. Zoebisch v. Tarbell, 10 Allen, 385; Carleton v. Franconia Iron Co., 99 Mass., 217; Larue v. Farren Hotel Co., 116 Mass., 67; Severy v. Nickerson, 120 Mass., 306 ; Pierce v. Whitcomb, 48 Vermont, 127; Bennett v. R. R. Co., 102 U. S., 577; Corby v. Hill, 4 C. B., N. S., 556 ; Chapman v. Rothwell, El. Bl. & El., 168 ; Barnes v. Ward, 9 C. B., 392; Bolch v. Smith, 7 Hurlst & Norm., 741; Scott v. London Docks Co., 3 Hurlst & Colt, 596; Gautret v. Egerton, Law Rep., 2 C. P., 371; Sullivan v. Waters, 14 Irish C. Law Rep., 460 ; Hargreaves v. Deacon, 25 Mich., 5 ; Kohn v. Lovett, 44 Georgia, 251; Maenner v. Carroll, 46 Maryland, 193 ; Indemaur v. Dames, Law Rep., 2 C. P., 311.
    If, however, the plaintiff had gone to the City Hall for a lawful purpose — for amusement, curiosity or business, yet his negligence as shown by his own testimony was so gross as to preclude any recovery. He had no business to be wandering around in the dart, under the circumstances, without a light. Bolch v. Smith, 7 H. & N., 736 ; Wilkinson v. Fairrie, 1 H. & C., 633; Forsyth v. R. R. Co., 103 Mass., 510; Saunders’ Neg., 80.
   McCauley, J.

The liability of the city for the injury sustained by the plaintiff is contended for upon the principle of the cases of Hargreaves v. Deacon, 25 Mich., 5; Young v. Harvey, 16 Ind., 314; Mullen v. St. John, 57 N. Y., 567; Beck v. Carter, 68 N. Y., 283, and many others, that a municipal corporation is liable for injuries resulting from obstructions, excavations, pitfalls or other dangerous condition of premises outside of the street, but so near to it as to cause injury to persons in the proper and lawful use of the street, and upon the principle also of the cases of Bennett v. Railroad Co., 102 U. S., 577; Sweeney v. Old Colony R. R., 10 Allen, 368; Larue v. Farron Hotel Co., 116 Mass., 67, that the owner of land is liable to persons who go upon it, by invitation express or implied, for injury arising from the unsafe or dangerous condition of the premises.

The plaintiff was walking along the sidewalk immediately before the accident occurred. The place where he fell into the excavation was about thirty feet from the sidewalk or street proper. The north end of the excavation did not come within thirty feet of the street. A person therefore in the ordinary use of the sidewalk would seem to have been out of all possible danger of falling into the excavation. If the excavation had been so near the street that a person had fallen into it while passing on the sidewalk and in the ordinary use of it, a liability for resulting injury would follow. This excavation was so far from the street that it could have caused no injury, except when the person passing along the sidewalk turned out of his way, as the. plaintiff clearly did in this case, and went to it — unless the stone pavement from the sidewalk to the north end of the excavation is to be treated as a continuation of the sidewalk, and the liability of the city is to attach for all places of danger near to the sidewalk thus extended. If the continuation of the stone pavement beyond the street, by its direction and surroundings misled the plaintiff into the belief that he was still on the .street, and if he walked upon it not thinking and having no reason to think he was beyond the street, the liability of the city doubtless would continue. But if he knew, or if from the surroundings he ought to have known that while walking on the stone pavement between the street and the north end of the excavation, he was not in the street, but had turned out of it, he should no longer rely upon protection from dangerous places into which he might wander by following the stone pavement. If he had this knowledge his right to protection from dangerous places to which it might lead him was the same whether he walked on the stone pavement or on the natural surface of the ground. He says in his testimony that when Mr. Beals, who was with him, spoke of urinating, he said, “ Then go off the street, and he then stepped hack on this pavement or walk back.” It is quite clear from this statement that while the plaintiff was walking on the stone pavement, after he left the sidewalk, he knew he was out of and beyond the limits of the street. He did not go to the place where he received the injury because he thought or supposed that while he was going there he was in the street. He knew he was not in the street, and followed the pavement because it led away from the street.

The plaintiff following the stone pavement under these circumstances is not entitled to protection from injury from places of danger adjacent to the pavement as if he had encountered similar dangers in the lawful and proper use of the sidewalk within the limits of the street.

The facts of the case are clearly insufficient to sustain a recovery on the other ground urged by the plaintiff. The facts clearly show that there was no business of any kind carried on upon the lot on which the city building stands, and that there was no path or passage way across the lot, nor anything done or permitted upon the lot which would induce any person to go there for business, curiosity, enter tainment or any other legitimate purpose. Protection against pitfalls, excavations or other dangerous condition of grounds is extended to those only who are there by invitation express or implied.

If business is carried on upon the lot, or any curiosity kept there, open to the public, or any inducement or allurement held out to the public beyond a mere permission to go there, the duty to keep the premises safe arises; but if a lot is left unfenced a person who goes upon it by bare permission because there is no obstruction to keep him off, goes at his own risk. Railway Co. v. Bingham, 29 Ohio St., 364; Beck v. Carter, 68 N. Y., 283. There is no proof in the case to show that there was anything whatever on the city lot to induce or invite any person to go upon or across it for any purpose unless for the purpose for which the plaintiff went there; nor is there any proof that the plaintiff went there upon any business with any person there, or for any purposes whatever except to get into the darkness in the shadow of the building. If there had been a business room in the building, or upon another part of the lot which would have been an implied invitation to the public to go there, it still would not help the plaintiff when he admits that he did not go upon the lot for any such purpose. The fact alone that the stone pavement extended from the street about twenty feet to the front wall of the first story and around the corner of the building about twelve feet along the east side of it, can not be treated as an implied invitation to a person passing along the street to turn aside and follow it, in the darkness, across private property, without any purpose or object that could have been foreseen or anticipated by the owner of the property. If the pavement beyond the limits of the street led to any place where persons on the street might be expected to go for any legitimate purpose, the result would be different.

The city should not be held to foresee or anticipate that persons would leave the sidewalk and go along the side of the building for the purpose for which the plaintiff went there. And if not, the fact that it extended the stone pavement to the open area, or if it had extended it much farther, would not have been, of itself, an implied invitation to the plaintiff or to any person on the street to use the pavement.

Judgment affirmed.


author: Martin, J.

text:
    Bacher v. Shawhan.
    1. In an action where property is attached and summons returned “not served,” no time is fixed by statute within which service by publication must be made.
    2. Hence: Where the service by publication was not completed until eight months after the return of summons, it is error to dismiss the action for an alleged want of jurisdiction by reason of such delay.
    Error to the District Court of Wyandot County.

      T. P. Grrisell, for plaintiff in error.
    1. An action is deemed begun at the issuance, not at the service of process. Rev. Stat., sec. 5535; Spinning v. Ins. & Tr. Co., 2 Disney, 336; Collier v. Bickley, 33 Ohio St., 523.
    When the action was begun jurisdiction attached, and it was error to dismiss it for want of jurisdiction.
    2. This was a proceeding by attachment, and the court acquired jurisdiction by the issuing of process, predicated upon the requisite affidavit and the attaching of property. Lessee of Paine v. Mooreland, 15 Ohio, 435; Lessee of Cochran Heirs v. Loring, 17 Ohio, 409.
    ■ 3. Sections 4987 and 4988 do not apply to this class of cases. Their application is expressly limited to Chapter 2, Div. 2, Title 1. They simply fix a period at which an action is deemed commenced, so as to save the running of the statute of limitation.
    4. Proof of publication was made on the 15th day of April, and the motion to dismiss was filed on the 20th day of May, 1881. So that if even service were necessary to complete the jurisdiction of the court, it had full jurisdiction over the parties and the subject matter of the action at the time the motion was filed.

      John D. Sears, for defendant in error.
   Martin, J.

In August, 1879, Bacher sued Shawhan, a non-resident, in the Common Pleas of Wyandot County for money paid; and at the same time an order of attachment was issued and levied on the defendant’s land. The summons was returned “ not found.” In March, 1880, an affidavit for publication was made, and service by publication was in due course completed. In May, 1880, the defendant appearing for the special purpose moved to dismiss the action, which was sustained for want of jurisdiction.

The district court affirmed the judgment, and it is now sought to reverse the judgment of affirmance.

It is suggested that these judgments rest on the assumption that under section 4988 Rev. Stats., the court lost jurisdiction, because the attempt to commence the action was not followed by service within sixty days. That section is found in the chapter providing limitations of actions and reads:

“ Section 4988. An attempt to commence an action shall be deemed equivalent to the commencement thereof within the meaning of this chapter, when the party diligently endeavors to procure service; but such attempt must be followed by service within sixty days.”

It will be observed that the restrictive words “ within the meaning of this chapter,” confine the operation of the section to matters concerning the limitations of actions. It seems to us that the legislative intent was to prevent parties from indefinitely prolonging a suspension of the statute by a mere attempt to sue. We thinlc this construction is in harmony with kindred provisions. Sec. 5560 Rev. Stats., found in the chapter on attachments, provides that from the time of the issuing of the order of attachment, the court shall be deemed to have acquired jurisdiction. And under Sec. 5055 Rev. Stats., when the publication is made the action is pending so as to charge third persons.

We are not aware of any statutory provision ousting the jurisdiction for plaintiff’s delay or neglect. The court has control over its docket and may dismiss for failure to prosecute. This power of course is quite different from a mandatory duty.

In this case the action was dismissed before the expiration of rule-day for answer.

Judgment reversed.


author: By the Court.

text:
    Lowe v. Union Central Life Ins. Co.
    Error to the District Court of Hamilton County.

      D. Thew Wright and Champion & Williams, for plaintiff in error.

      Ramsey & Matthews, for defendant in error.
   By the Court.

The petition charged that by a policy dated June 30,1876, defendant insured the life of L’s father for the benefit of L.; that L. had duly paid four annual premiums of 1209.46 each and tendered a fifth at the proper time and place; that defendant wrongfully refused to accept it; that L. thereupon gave notice that he rescinded the contract and demanded payment of the four premiums and interest, which defendant refused to pay. The answer averred that the polic3r contained a stipulation and condition that unless all the statements made in the application for the same were true, the said policy should be void, and all payment of premiums made thereon should be forfeited to the defendant, and the application for the policy contained a statement that Michael Lowe, the person whose life was covered by the terms of said policy, was fifty-eight (58) years of age at the date of said policy, when in truth he was several years older than the age fixed by said statement.”

There was no reply. The only evidence offered at the trial was the policy. After verdict for defendant, L. moved for judgment on the pleadings notwithstanding the verdict. This the court refused and rendered judgment on the verdict.

Held: The last “proviso” in Sec. 18, Chap. 2, of the Insurance Act, passed April 27, 1872, as amended by the act of April 2,1878, (70 Ohio Laws, 99), did not repeal Sec. 32 of said chapter and act. (69 Ohio Laws, 160.) The words in the act of 1873, conflicting with said Sec. 32, modified the terms on which the right to do business in Ohio was granted to companies of other States. While the}' deprived foreign companies of the right to set up an untrue statement as to age, it left Sec. 32 in full force as to Ohio companies.

Judgment affirmed.


text:
    Continental Life Ins. Co. v. Hamilton.
    Error to the District Court of Delaware County.

      Sayler & Sayler and Jones Lytle for plaintiff in error.

      C. H. McElroy and E. F. Poppleton for defendant in error.
   By the Court.

On Aug. 11, 1866, defendant issued to C., a married woman, a policy for $5,000 on the life of A., her husband. It was for her benefit, and payable to her, “her executors, administrators or assigns.” In case of her death before that of A., the insurance was payable to their children for their use, or to their guardian if under age.” Upon a surrender of the policy, after two annual premiums had been paid she would be entitled to a paid up policy for two twentieths of the sum originally insured. C. died intestate in October, 1866, leaving no children. A. survived her, and paid the annual premiums until 1875, when he offered to surrender the policy and demanded a paid up policy. This was refused, and he sued the company in his •own name. One half of each premium had been paid in -cash and for the other half promissory notes payable twelve months after date were given. Five of these were still owned and held by the company. For the payment of these notes the policy was pledged. The policy was of the kind entitled to dividend credits. Five dividends had been credited by the company on the last five premiums. A. claimed dividends for the first four years of the policy, but did not aver that there had been any omission by the company to declare any dividend to which the policy was entitled.

The'only evidence supporting his claim was a circular of the company’s secretary, dated Dec. 15,1878, and mailed to one E., who had no connection with C. or A. It contained the following paragraph:

“ The reason of the above action is, that the experience of this company, and the experience of other companies, older, carefully managed, and successful, has demonstrated the impracticability of sustaining a yearly dividend of fifty per cent, upon life, and forty per cent, upon endowment policies, such as this company has sustained during the past six years, and which it is the last of all the companies to abandon. Aside from the impracticability of continuing the dividend at this rate, the system of large dividends deferred in payment for several years, coupled with a system of credits or notes in payment of premiums, has proved cumbersome and expensive, defeating thereby the very object intended, viz: the reduction of the cost of insurance, and, as a consequence, rendering the results unsatisfactory. The effect of continuing the dividend of the company upon the plan heretofore pursued would, in a few years, have been more apparent, and would have rendered a change of the most arbitrary nature immediately necessary, while the difficulty of making it would have been greatly augmented and the ability of the company to co-operate with the insured greatly impaired.”

The charter was in evidence, and showed that the directors were, by by-laws and resolutions, to regulate dividends. The by-laws and minutes were not offered or called for. The secretary testified that the dividends declared in favor of C.’s policy were made in the fifth and subsequent years, and were all applied in payment of the dividends for said years. The court excluded his further statement that under the rules of the company no policy holder was entitled, to a dividend until after four annual premiums had been paid. The decree allowed to A. a paid up policy and also a dividend for each of the first four years.

jWeld, 1. As C. died before the second premium was paid, her administrator had no right to a paid up policy.

2. The company having for eight years after C.’s death, treated A. as the beneficiary of the policy, it is estopped to deny his right to sue in his own name as such beneficiary.

8. The circular was not evidence that any dividend payable on C’s policy had been declared.

4. Under the issue the policy was entitled only to dividends declared by the directors as payable upon it.

Judgment reversed and decree of Common Pleas modified.


text:
    The Pennsylvania Company v. Hine.
    Error to the District Court of Lucas County.

      Rush Taggart for plaintiff in error.

      Lee, Brown Lee for defendant in error.
   By the Court.

H. at Toledo bought of defendant (acting for itself and other companies) a ticket good for a passage to Washington, D. C. and return; but so limited as to expire with the 10th day of March, 1881. He left Washington in time to arrive in Toledo before midnight of said day, but, without his fault, his train did not arrive in Pittsburg until after defendant’s train had started for Toledo. Defendant’s road extended from Pittsburg westward. Without applying at the railway office in Pittsburg for permission to use his ticket on a later train, he entered that train early on the morning of March 11, tendered, to its conductor the last coupon of the ticket, and told him of the delay and its cause. Under the rules of the company it was the duty of the conductor to remove a passenger from the train who neither presented a ticket that by its terms gave a right to ride on that train, nor tendered the proper fare in money. Having so notified H., and demanded the proper fare in money, which H. refused to pay, the conductor, without unnecessary injury, removed him from the train. H. expended about six dollars in getting to Toledo, and arrived there about twelve hours after the train from which he had been so removed. He had, however, increased the delay by stopping in Cleveland for several hours on other business of his own. He sued the Pennsylvania Company for breach of contract and wrongful removal from the train. In the charge the court said to the jurjr that in case of a finding for the plaintiff “ it will be your duty to return what we will say are compensatory damages; take into account loss of time caused by the delay in proceeding to Toledo, and also under that rule the mortification to the feelings of the plaintiff. He is entitled to compensation for that — the inconvenience, annoyance and mortification to his feelings in being ejected from the car. It is for you to say what those damages shall be for that. You are to fix the amount. You are not to fix damages in the spirit of punishment; but to cover whatever damages the plaintiff has sustained in connection with-the loss of time in proceeding upon his journey, and such as relate to his feelings, annoyance, mental suffering, mortification for being ejected from the car.”

This was duly excepted to. A verdict for the plaintiff for $500 was rendered, A motion for a new trial was overruled and judgment entered on the verdict.

Held: The removal of H. from the train was a proper exercise by the conductor, of the right of defendant, and for that removal it was not liable in damages. If the defendant was liable for breach of contract, because the train east of Pittsburg was so delayed that H. could not enter the train upon which his'ticket gave him a right to ride, that liability did not confer upon H. a right to ride upon the train from which he was removed. Shelton v. R. R. Co., 29 Ohio St., 214; Townsend v. R. R. Co., 56 N. Y., 295; Frederick v. R. R. Co., 37 Mich., 342; R. R. Co. v. Pierce, 47 Mich., 277.

Judgments below reversed and cause remanded.


text:
    The German Evangelical Protestant Church v. City of Cincinnati.
    Appeal. Reserved in the District Court of Hamilton County.

      Glidden & Crawford and Clark B. Montgomery, for plaintiff in error.

      Dawson, Mc Garry & Overbeck, for defendants in error.
   By the Court.

By will made in a. d. 1850, Ethan Stone gave and devised “to the township of Storrs ” certain leasehold lots, upon the following express conditions and trusts, to wit:

“ That the said township of Storrs shall pay to the Trustees of the Ministerial Section for Cincinnati township, forty dollars per -annum, as the* same shall become due, as rent on my lease for said fractional section twenty-nine, forever; and that the said Storrs township shall also pay to the ‘ Cincinnati Orphan Asylum ’ one hundred dollars per annum forever; and to the ‘ Society for the Relief of Aged and Indigent Females’ sixty dollars per annum forever; and that the rest and residue of said annual income, being about one thousand dollars per annum, the said township of Storrs shall hold in trust, one half thereof for the support of the Protestant Religion in said township, and one half thereof for the support of one or more protestant schools on said fractional number twenty-nine. And that to avoid disputes or any division of the fund thus devoted to the support of religion it shall be decided once in every ten years by a vote of all the Protestant Communicants of said township, who may choose to vote, to what denomination of Protestant Christians said fund shall be appropriated for the ten years next ensuing said election.”

The will was duly admitted to probate in 1852, and the trustees of Storrs’ township, by resolution, on May 2, 1858, accepted the devise, and so long as the township existed, acted as trustees under the will. For some years the township trustees supported a school under their own control on said section, and afterwards for other years paid that portion of the fund into the township school fund. In 1870 the township was annexed to the city of Cincinnati, and since that time the city has collected the rents, but instead of paying any money “for the support of- one or more protestant schools on said fractional section twenty-nine ” has added the rents (not paid out to other beneficiaries under the will) to the general fund of the city.

The plaintiff maintained a protestant school on said section and claims that it is the only one. Neither the township nor its trustees ever selected this school as one to be supported by the fund. In 1877 it began an action against the city and others, asking judgment for all of said portion of said fund for each and every year beginning on April 23, 1853. The answer denied plaintiff’s title. The common pleas dismissed the action. An appeal carried it to the district court, and that court reserved the case for decision here.

Held: The plaintiff is not entitled to said share of said fund.

Leaving undetermined all questions touching the capacity of the trustees, the validity of the bequest or devise, and the power of a court, on application by a beneficiary entitled to a share of the fund to appoint a trustee, and to establish and direct a cy pres administration of the trust, the plaintiff’s action is dismissed at its costs.


text:
    McGary v. Bevington.
    A proceeding in bastardy may be maintained in this state under chapter 3, title 1, division 7, Revised Statutes, by an unmarried woman, the mother of a bastard child, notwithstanding the child was begotten and born in another state, and the mother and child never were residents of, Ohio. .
    Error to the District Court of Columbiana County.
    This was a proceeding in bastardy in the common pleas. Upon the trial there the case was submitted upon an agreed statement of facts in substance: that on the 30th day of May, 1880, Marjr A. Bevington, an unmarried woman, was a resident of Beaver County, Pennsylvania, and on that day she became pregnant with a bastard child of which the defendant is the father; that on the 25th day of October, 1880, she came to Columbiana County, where the defendant then resided and where he resided at the time of his trial, and made her complaint in bastardy, and after the arrest and recognizance of the defendant, returned to her home in Pennsylvania; that the bastard child of the complainant was born on the 2d day of March, 1881, and that the complainant and her child still reside in Pennsylvania, and that she came to Columbiana County for the purpose of prosecuting the proceeding.
    The defendant thereupon confessed that the charge of the complainant was true as set forth in the statement of facts; but moved the court to dismiss the proceeding for the reason that the facts, so agreed upon, do not make a case .in which the complainant can maintain the proceeding.
    • The court sustained the motion and dismissed the proceeding. This action of the common pleas was reversed by the district court, and the proceeding here is to reverse the judgment of reversal.

      R. W. Taylor, for plaintiff in error.
    The purpose of the statute is to provide for the maintenance of the child in order that the State may be freed from any liability for its support. If the State has no interest in the support of the bastard child, the statute is inoperative so far as that child is concerned.
    This is shown—
    1. By the title of the various statutes which have been enacted, viz: “For the maintenance and support of illegitimate children.”
    It is not an act provided for the prosecution of a civil suit for damages — nor to permit the aggrieved female to pursue any remedy she might have under the common law.
    2. An examination of the decisions of the supreme court sustain the proposition laid down. If the State, or some political division of the State, has no interest, the protection of the statute cannot be invoked. Hawes v. Cooksey, 18 Ohio, 245; Perkins v. Mobley, 4 Ohio St., 669; Musser v. Stewart, 21 Ohio St., 356.
    For the legislation on the subject see Section 1 of the Bastardy Act of 1834; Act of April 13, 1873 (74 Ohio Laws, 111) ; Act of February 1, 1877 (70 Ohio Laws, 11) , Rev. Stats., §§ 5614, 5615, 5616, 5617, 5618, 5637, 5638.
    For what purpose could the bond required by the Act of 1880 (Rev. Stats.) be given when the child lived in a foreign State ?
    It is too violent a presumption to suppose that the child of a non-resident may become a charge upon the State of Ohio or any part thereof. No township, municipal corporation or county in this State is interested in its prosecution.
    The child’s parent is a non-resident of this State, and the child was begotten in a foreign State. The defendant was required to enter into a bond to the State of Ohio. Pray, what right has the State of Ohio to require a bond for the benefit of itself for an act committed in a foreign State, relating to a resident of a foreign State, who. always had lived and still is living in that foreign State ? The interest of the State of Ohio in the matter is absolutely nothing.

      H. R. Hill, for defendant in error.
    Prior to the change made by the Act of 1873 the statute provided “ That on complaint made to any justice of the peace in this State, by an unmarried woman resident therein, who shall hereafter be delivered of a bastard child, &c.” S. & C., page 176.
    The Act of 1873 provided “ That when any unmarried woman, who has been delivered of, or is pregnant with a bastard child, shall make complaint thereof in writing under oath, before any justice of the peace, &c.” 70 Ohio Laws, 111.
    It seems that it was clearly a purpose in the enactment of the latter statute to authorise “ any unmarried woman ” to file her complaint and obtain the relief contemplated by the Act, as the words limiting the right to maintain the action to unmarried women resident in this State were undoubtedly purposely omitted from the latter Act.
    Section 5614 of the Revised Statutes now in force and under which this case was brought does not limit the right to make complaint to unmarried women resident in this State. It provides “ when an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes complaint thereof in writing, under'oath, before any justice of the peace, &e.”
    The statute as it reads would seem to determine this case without argument.
    The Act is not for the benefit of the mother, and her place of residence has no bearing upon its object and purpose. The Act is for the benefit of the child, and the obligation of the father to contribute to its maintenance is the same no matter where the child is maintained. Carter v. Krise, 9 Ohio St., 405; 4 Ohio St., 669; 21 Ohio St., 356 ; Cottrell v. Slate, 9 Neb., 125.
   McCauley, J.

The bastardy act of February 2, 1824, Swan’s Statutes, 124, provided, “that on complaint made to any justice of the peace in this state by any unmarried woman resident therein,” the justice should issue his warrant for the arrest of the accused. This statute in terms required that the complainant should be a resident of the state. Subsequent sections of the statute provided for giving bond to the trustees of the township in which the child was born conditioned that it shall not become a township charge. In 1873, 70 Ohio Law, 111, this statute was so changed as to provide, “ that when any unmarried woman who has been delivered of, or who is pregnant with a bastard child, shall make complaint thereof in writing under oath before a justice of the peace,” the justice shall issue his warrant for the arrest of the accused. And the second section provided that when the person accused was arrested and brought before the justice, a compromise might be made by the complainant and the accused, and that when “the party accused shall pay or secure to be paid to the complainant such sum of money, or other property as she may agree to receive in full satisfaction, and shall further give bond to the trustees of the township in which such complainant shall reside, conditioned to save such township free from all charges towards the maintenance of said child, the justice shall discharge the party accused out of custody.”

The fourth section of this act preserves the local nature of the proceeding by the provision that in a . certain case, the justice may bind the accused in a recognizance to appear at the next term of the court of common pleas in a sum not less than three hundred dollars nor more than six hundred dollars, for the benefit of the township in which such bastard child shall be born, to answer such accusation. The second, third, and fourth sections of this act are similar to corresponding sections of the act of 1824. And while the requirement that the complainant shall be a resident of the state is left out of the first section, the local features of the act in other respects remain.

The Revised Statutes, sections 5614-5638, have none of the local features of the older statutes. The complaint maybe made by an unmarried woman who has been delivered of, or who is pregnant with a bastard child. All recognizances for the appearance of the accused party, and all security for the maintenance and support of the child are required to be given for the benefit of any county, township, or municipal corporation within the state in which such bastard child may become a charge. This radical change of a statute which authorized a proceeding to be commenced only by a resident of the state, and in which 'many of the objects of the proceeding were for the benefit of the township in which the mother resided, or in which the child was born, into a proceeding without limitation as to residence of the complainant, and in which the remedies provided are for any locality that may become interested in the support of the child has enlarged its application to any case in which jurisdiction of the defendant or his property may be had within the state. Casting off the limitations that formerly surrounded the proceeding is only following the changes in the statutes.

Residence in the state, when the cause of action arose, or when proceedings are commenced is not necessary to maintain any other kind of action or proceeding. In many cases the same action or proceeding may be maintained in any state, depending altogether upon what the faót is as to the place where the defendant may be summoned or jurisdiction otherwise acquired of the person. If the complainant in bastardy, although the child was begotten and born in another state, and the mother and child still remain residents of such state, can, by coming into this state, get jurisdiction of the defendant under our statute, there is nothing in the statutes, nor in the reason or purpose of the proceeding to hinder her from maintaining the proceeding here.

Judgment affirmed.


text:
    Robbins v. Clemmens.
    1. The jurisdiction of a justice of the peace in this state is inferior and limited; and to support a judgment of his court the record must show that it had obtained jurisdiction over the person of the defendant.
    2. Sec. 14 of the Act of March 18th, 1853 (S. & C., 773) regulating the jurisdiction and procedure before justices of the peace, provides that summons must be served by delivering a copy thereof with the indorsements thereon duly certified to the defendant, or leaving the same at his usual place of residence: Held, That a return by the constable of service of summons in these words, “ served on the second day of January, 1861, by reading” shows a want of service and not merely a defective service or return; and where the record does not otherwise show that jurisdiction of the defendant was obtained, a judgment by default is a nullity and may be attached collaterally.
    Error to the District Court of Licking County.
    The original action was brought in the Licking common pleas by Robbins against Clemmens, administrator of Nei barger and Priest, to recover a balance d,ue on a judgment rendered in his favor against Neibarger and Priest in January, 1861, before a justice of the peace of the same county. The defense was nul tiel record. On the trial the plaintiff introduced as testimony a transcript from the docket purporting to show a recovery as claimed. The justice testified that Neibarger after the rendition of the judgment filed with him on the same day a receipt for $4 on the debt which was credited on the judgment. No other testimony was offered. The transcript shows the return of the officer in these words: “Served on the 2d day of January, 1861, by reading.” It also contains a return that certain chattels levied on had been set off to Neibarger on his demand under the exemption law. It does not show an appearance or an acknowledgement or waiver of service.
    The common pleas gave judgment for the defendants, which was affirmed in the district court.
    The object here is to reverse the judgment of affirmance.

      Chas. Follett & Son, for plaintiff in error.

      J. R. Davies, for defendants in error.
   Martin, J.

The jurisdiction of a justice of the peace in this State is inferior and limited, and to support a judgment of his court the record must show that it had obtained jurisdiction over the person of the defendant. It is otherwise as to courts of record of general jurisdiction. In favor of their jurisdiction presumptions are indulged which are not inconsistent with the record or where it is silent.

When the proceedings before the magistrate were had, the 14th section of the Justice’s Act (S. & C., 773) was in force. That section provides that the summons shall be served by delivering a certified copy to the defendant, or by leaving the same at his usual place of residence. The constable’s return was of service by reading. Some kinds of process issued by a justice may be served in this mode; but not a summons. The return is specific and excludes the idea of a service by copy; and as the record imports absolute verity it cannot be contradicted. The record is not silent as it wpuld be if no return had been made and there was no appearance or waiver.

In that contingency the judgment would be void because jurisdiction was not affirmatively disclosed. But the record speaks, and in saying what was done, shows that no service was in fact made. This would probably be fatal to the jurisdiction of a court of record. The principle is concisely stated in Freeman on Judgments, 125, thus:

“ If it appear that the process was served in a particular mode no other or different service can be presumed. To indulge such a presumption would be to contradict the record which imports absolute verity. When, therefore, the record shows that certain steps were taken to procure jurisdiction, and the law does not consider those steps sufficient, the judgment will be regarded as void for want of jurisdiction over the defendant.”

The case then is not one of defective service merely.

Had it been by copy accompanied by defects in the summons or its copy the judgment might be voidable only. In such case the notice is of the statutory character. The defendant is notified of the pendency of the action and has an opportunity to appear and take advantage of the irregularity before or after judgment.

We are aware that objections of this class even when valid are generally technical and without real merit, and are sometimes made when the plaintiff has lost the ability by lapse of time or loss of testimony to maintain his right. And we are not unmindful of our duty to regard with great indulgence the proceedings of a justice. Yet it will be observed that the defendants here set up no equity and ask no relief. If that were the case other considerations might have weight. This action is at law, and as we take it we have no right to ignore a strict defense.

As to Neibarger’s subsequent acts of filing the receipt with the justice and procuring the exemption of property from sale, we are not advised of any principle that gives them the retro-active effect of vitalizing the void judgment. Nor is anything pleaded or shown in connection with them to estop him to deny the judgment.

Judgment affirmed.


author: Dickman, J.

text:
    Kerosene Lamp Heater Co. v. Monitor Oil Stove Co.
    By the terms and conditions of a license to manufacture and sell kerosene oil stoves, under certain letters patent of the United States, if the royalties on stoves manufactured and sold during each month were paid by the licensee on or before a given day in the succeeding month, the owner of the patent was to make a reduction of 60 per centum, on the amount of the royalties then due and payable, “ until such time as a decision of the United States Circuit Court” might be had, “sustaining such letters patent;” and after such decision, the reduction was to be only 25 per centum, on the amount of such royalties. Held:
    1. That in a suit in a Circuit Court of the United States, to restrain by injunction the making, using, or vending of the patented article, a decree pro confesso — upon failure of the defendants to plead, answer, or demur to the bill of complaint — with a reference to a master to ascertain the profits and the damages, and report the same to the court, was not a decision of the court sustaining the letters patent, within the terms and conditions of the license. ■
    2. Though the decree in such suit may have prevented an unauthorized use of the plaintiff’s patent, by the defendants therein or their agents, it did not meet the provision in the license for establishing the validity of the patent.
    3. A decision of the court within the purview of the license, contemplated the establishment of the patent by a judgment or decree, after a judicial investigation.
    Error to the District Court of Cuyahoga County.
    On the 16th day of March, 1880, The Kerosene Lamp Heater Co., plaintiff in error, as owner of certain letters patent for a “ coal oil stove,” entered into a written contract with The Monitor Oil Stove Co., defendant in error, whereby a license was granted to the latter company to manufacture and sell coal oil stoves, during the entire unéxpired term of said letters patent. The following is a copy of those portions of the contract, which relate to the questions that arise on the record:
    “Know all men by these presents, that The Kerosene Lamp Heater Company, a company organized pursuant to the laws of the State of New York, hath granted and by these presents doth grant to The Monitor Oil Stove Company a license to manufacture and sell kerosene oil stoves, under certain letters patent of the United States granted to William B. Billings, dated January 17th, 1865, and numbered 45957, re-issued March 16th, 1880, No. 9121, within the states and territories of the United States, for and during the entire unexpired term of said letters patent, upon the terms and conditions as follows:
    First — That this license is a personal one, and shall not be assigned, transferred, or otherwise disposed of without the consent of The Kerosene Lamp Heater Company.
    Second — That the said licensee shall pay or cause to be paid to said The Kerosene Lamp Heater Company a royalty of ten cents per inch, wick measure, being the width of the wick tube or wick tubes in such stoves, for each and every stove manufactured and sold by said licensee during the unexpired term of said letters patent, which said royalties shall be paid on all stoves manufactured and sold during each month, before the expiration of the month, thereafter succeeding, and if paid on or before the tenth day of such succeeding month, then and in that case a reduction of sixty per centum shall be made on the amount of royalties at that time due and payable, until such time as a decision of the United States Circuit Court sustaining the said letters patent may be had. And in case of such decision, then from that date the reduction as aforesaid shall be only twenty-five per centum on said royalties, if the same are paid as aforesaid.
    Third — That said licensee shall keep just and true books of account, showing the number and size of all stoves so manufactured and sold, to whom sold, and the date of such sales, and the said The Kerosene Lamp Heater Company, by its lawful agents or attorneys, shall have free access to said books at all reasonable times, until said royalties shall have been finally satisfied and discharged.
    Fourth — That the said licensee shall furnish to the said The Kerosene Lamp Heater Company a report duly verified, on or before the 10th day of each and every month of all stoves sold by said licensee during the preceding month.”
    On the 15th day of May, 1880, The Kerosene Lamp Heater Co. commenced two suits in the Circuit Court of the United States, for the second circuit, and northern district of New York, one against James H. Shaut, and the other against J. T. Shaut and Charles M. Shaut, alleging infringement of said letters patent, by the manufacture and sale of a coal oil stove known by a certain trade name, and asking for an injunction restraining such infringement, and an accounting of profits, and an assessment of damages.
    In both suits the defendants failed to plead, answer or demur, and the bill of complaint was, in both, taken pro eonfesso by a rule duly entered. On the 8th day of December, 1880, an interlocutory decree was entered in both suits,.. awarding a perpetual injunction to the complainant, an accounting of profits and assessment of damages, and decreeing a reference to a master, to take and state and report to the court, an account of gains, profits and advantages received by the defendants, and of damages sustained by the complainant. Upon the coming in of the master’s report, a final decree was .made and entered in both of said, suits, on the 21st day of June, 1881.
    On the 8th day of March, 1881, The Monitor Oil Stove Co. paid to The Kerosene Lamp Heater Co. the royalties for stoves manufactured by it in the month of February, 1881, reserving sixty per cent.' on the amount of royalties due, as provided in said contract and license; but The Kerosene Lamp Heater Co. refused to accept the sum paid as in full satisfaction. On the 8th day of April, 1881, The Monitor Oil Stove Co. tendered and offered to pay to The Kero-, sene Lamp Heater Co. the amount due for royalties on stoves manufactured under said contract and license in the month of March, 1881, after deducting sixty per cent on the amount of royalties due; but the latter company refused to receive the amount so tendered, claiming, that by the terms of said contract and license, and after the entry of the decrees in said suits on the 8th day of December, 1880, The Monitor Oil Stove Co. was entitled to a discount or reduction of only twenty-five per cent, on the amount of royalties if paid on or before the 10th day of each month, as provided by the terms of said contract.
    An action was brought by The Kerosene Lamp Heater Company, in the Court of Common Pleas of Cuyahoga County, to recover the sum of $688.08, with interest, as royalties alleged to be due under said contract, for stoves manufactured in the months of February and March, 1881. In the court of common pleas there was a verdict and judgment for the plaintiff for $268.50,- which judgment, upon a petition in error filed by The Kerosene Lamp Heater Company, was affirmed, by the district court. This proceeding is now prosecuted to reverse the judgment of the district court.

      Foster & Carpenter, for plaintiff in error.

      R. F. Paine, for defendant in error.
   Dickman, J.

The main and controlling question in this case is, whether the decrees entered in the circuit court of the United States for the northern district of New York, constituted a decision sustaining the letters patent, within the full intent and meaning of the contract under consideration.. If equivalent to such a decision, the Monitor Company would no longer be entitled to claim a reduction of sixty per centum on the amount of royalties paid under the contract on or before the tenth day of each month.-

The contract does not clearly reveal the intention of the parties as to payment of royalties, in the event that a court of competent jurisdiction should at any time hold the letters patent to be worthless. It would seem rather to assume that the patent would be upheld when brought under adjudication, and in that view regulates the per centum of reduction to be made on the amount of royalties, up to and after the time when the patent should be sustained.

But how was the patent to be sustained or established as good and valid within the meaning of the contract? Not certainly by an interlocutory decree pro confesso, but only by a final judgment or decree, after a judicial investigation, in which, upon proper issues joined, the merits of the patent had been fully examined and passed upon. The defendant who declines to plead, answer or demur to a bill of complaint, may, upon entry of decree, be estopped from afterwards denying that the patentee is the true and original inventor. But, as against all others who are strangers to the proceeding, it cannot be reasonably claimed that the validity of the patent is fully sustained or established, because the prima facie right under the patent has been supplemented with a decree pro confesso or by default, which for aught that appears may have been obtained by collusion. Such a decree, instead of establishing the validity of the patent, might be only a cover for concealing its worthlessness, which would be brought to light by a full hearing and trial.

By the second article of the contract it is provided, that the royalties on all stoves manufactured and sold during each month, shall be paid before the expiration of the month next succeeding, and if paid on or before the tenth dajr of such succeeding month, “a reduction of sixty per centum shall be made on the amount of royalties at that time due and payable, until such time as a- decision of the United States circuit court, sustaining the said letters patent, may be had. And in case of such decision, then, from that date, the reduction, as aforesaid, shall be only twenty-five per centum on said royalties, if the same are paid as aforesaid.” It was in view of obtaining such a decision that on the 15th day of May, 1880, the Lamp Heater company began the two suits in the circuit court of the United States, alleging an infringement by the defendants therein of the letters patent of which it was the owner, and asking for an injunction restraining such infringement, and for an account of profits, and an assessment of damages. In both suits there was a failure to plead, answer or demur to the bill of complaint, and on the 8th of December, 1880, a decree pro confesso was entered in both suits, awarding a perpetual injunction to the complainant, with a reference to a master to take the account, assess the damages, and make report to the court. Upon the coming in of the master’s report, a final decree was entered in both suits on the 21st of June, 1881.

When the Monitor company paid the royalties for the ■ month of February, 1881, and tendered the royalties for the month of March, 1881, only interlocutory decrees had been entered in the pending suits. The rule is well settled in the federal courts, that a decree for an injunction in a patent case, with a reference to a master to take an account of profits, and ascertain the damages by reason of infringement, is not final, and an appeal does not lie therefrom. Barnard v. Gibson, 7 Howard, 650. And in the state courts, when a cause is retained for reference to a master, for the purpose of ascertaining a material fact, the decree is interlocutory only, and does not become final until the whole merits of the cause have been disposed of and nothing remains for the further action of the court. Kelley v. Stanbery, 13 Ohio, 408; Jaques v. Methodist Episcopal Church, 17 Johns, 548; Baugh v. Baugh, 4 Bibb, 556. Such an interlocutory decree, subject as it is to be modified, corrected or vacated, at any time before entry of the final decree, is not, we think, a decision of the court sustaining the letters patent, within the meaning of the contract and license. Though there be no inquiry before the master, into the novelty, utility or validity of the patent, yet his report would be the basis for a final decree, which, with execution, would be effective to restrain at least the defendants in the suits from infringing the patent.

But whether there had been entered an interlocutory or final decree when the Monitor Company paid and tendered the royalties for February and March can, in our opinion, make no difference in the determination of this case, as the decree was not the result of any judicial investigation of the merits of the patent. We cannot make a new contract for the parties, but must leave them to their own engagements. There was no stipulation for sustaining the patent by a decree simply without reference to its form or character, but by “a decision of the United States circuit court.” A decree pro confesso or by default is manifestly not a “ decision ” as contemplated, but is rather the waiver of a decision, and a mode of relieving the judicial mind from the necessity of an investigation. Within the purview of the license a decision of the court contemplated that the patent should be established by a judgment or decree after a judicial investigation. There was to be judicial action, with a weighing of adverse claims, and which has been defined as “ an adjudication upon the rights of parties who in general appeal’, or are brought before the tribunal by notice or process, and upon whose claims some decision is rendered.” In Matter of Saline Co. Subscriptions, 45 Mo., 53.

The allegation that a patent has been sustained by a decision of court, with no other evidence of the fact than a decree pro confesso or by default, even though final, will have but little or no weight with courts, which require letters patent to be established before granting relief by injunction against alleged infringers. In Hayes v. Leton, 5 Fed. Reporter, 521, there was a motion for a preliminary injunction to restrain the infringement' of a patent. "The ground upon which the application rested was, that the acts of infringement were not denied in the answerj and that the validity of the plaintiff’s patent had been upheld by a final decree rendered by the circuit court of the United States for the district of New York, in an action there brought by the same plaintiff upon the same patents against August Erickson et al. Benedict, J., says: “ It is sufficient for this occasion to say that the circumstances under which the decree of the circuit court for the southern district of New York was madé, were such as to deprive that decree of any ■greater effect than- as evidence of an acquiescence in the plaintiff’s claim under these patents, by the particular persons there sued. For that decree was in substance a decree by default. In point of fact no opposition was made to its entry; no contest was had between the parties before the court; and it is plain to see that the decree was because of an understanding between the parties that contest should cease, and not because the court had examined the plaintiff’s patents, and found them to be valid.”

In Grover & Baker Sewing Machine Co. v. Williams, 2 Fisher’s Patent cases, 133, upon a motion for a preliminary injunction to restrain the defendants from making a certain kind of sewing machine, to the- manufacture of which the plaintiffs claimed the exclusive right by virtue of a patent, Sprague, J., says: “ The prima facie right under the patent must be strengthened. In this instance there has been no judicial investigation. There have been cases — one in this court, at law, and three cases in Pennsylvania in equity, in which the defendants have, by an arrangement with the plaintiffs, submitted, and a judgment and decrees have been given against them; but no case has been presented where the judicial mind has been called to the investigation of this subject, and to determine upon such investigation the validity or invalidity of the plaintiff’s claim.” Other well adjudged cases might be cited, recognizing the principle that where the sustaining of a patent by a judgment or decree is a pre-requisite to granting relief by injunction, the judgment or decree must be after due investigation or trial, and not pro eonfesso or by default.

It is said in behalf of the plaintiff in error that the real intention of the Monitor Company was to contract for the privilege of manufacturing and selling the patented article, and to be protected in that manufacture and sale against injury from infringers of the patent; and that such protection was afforded by the decrees rendered in the federal court. In our judgment, when the Monitor Company entered into the contract it had in view not only such privilege and protection, but also the amount of royalty it was to pay. It was doubtless a material consideration with the company, whether the reduction on the amount of monthly royalty paid, was to be sixty or only twenty-five per centum; and whether it was to be the larger or the smaller discount, was to be contingent upon sustaining the patent by a decision of the circuit court of the United States, within the meaning of the contract and license.

The judgment of the district court we think should be affirmed.

Judgment accordingly.


author: Nash, J.

text:
    Carpenter v. Dick.
    Under the statute relating to insolvent debtors tbe creditor of an assignor, wbo does not present bis claim prior to tbe payment of a dividend and within six months after publication of the notice of assignment, may afterwards present bis claim and receive a dividend thereon, equal to that paid to other creditors in case there .is money or assets remaining in the bands of tbe assignee sufficient to make such payment.

      Error to the District Court of Cuyahoga County.
    On the second day of January, 1880, Carpenter was duly appointed and qualified as the assignee of Matthew G. Rose, and at once gave notice thereof. • On the third day of August, 1880, the assignee filed a partial account of his trust and on the twenty-sixth day of the same month the account was approved and the assignee was ordered to pay a dividend of twenty per cent, to the creditors of Rose upon claims presented and allowed prior to the making of the order.
    On the nineteenth day of October, 1880, Dick & Meyer presented a claim to the assignee against Rose. After the payment of the dividend the assignee had in his possession sufficient money to pay the same dividend upon the claim of Dick & Meyer that had been paid to other creditors. In compliance with an order of the court of common pleas the assignee upon the twenty-second day of December, 1880, accepted the claim of Dick & Meyer, but refused to pay thereon the dividend of twenty per cent, paid on the claims of other creditors.
    Thereupon Dick & Meyer asked the probate court for an order directing the assignee to pay a dividend upon their claim of twenty per cent, out of money remaining undistributed in his hands. The probate court granted the order asked for by Dick «Sc Meyer and upon appeal the court of common pleas rendered the same judgment. Upon error the district court affirmed the judgment of the court of common pleas. We are asked to reverse the district court.

      Foster & Carpenter, for plaintiff in error.

      James Lawrence, for defendants in error.
   Nash, J.

Section 6852, Rev. Stats., which is a part of the chapter relating to insolvent creditors, provides among other things that creditors shall present their claims to an assignee for allowance within six months after the publication of notice of his appointment. The plaintiff in error claims that the effect of this provision is to bar a creditor, who presents his claim to an assignee after the expiration of six months, from any participation in a dividend, before that time ordered to be paid to creditors, even when the assignee has in his hands after the payment of the dividend sufficient money to pay this creditor the same dividend.

Justice Day says: “The requirement of the statute that creditors must present their claims for allowance within a certain period was not intended to be a limitation in bar of their right to a subsequent allowance of claims, but was intended to expedite the settlement of the trust and to protect the assignee in any lawful dividend or settlement that may have been made, and vigilant creditors in such rights as they may have acquired thereby. Whatever a creditor may lose by not presenting his claim for allowance within the statutory period by reason of a partial settlement of the trust, he may come in, at any time, for at least his equitable share in the assets unadministered andnot properly disposed of at the time he presents or prosecutes his claim for allowance in the mode prescribed by the statute.” Owens v. Ramsdell, 32. Ohio St., 442. If all the assets of an estate are exhausted in making any lawful dividend or settlement before the presentment of a claim which has not been offered to the assignee for approval within six months after the publication of notice, the tardy creditor must suffer by its non-payment. If, however, there are sufficient assets remaining he must be paid his equitable share therein. A due consideration of what is fair requires that he should be paid in the same proportion as the more vigilant creditors. By construing the section, in controversy, in this way its objects, to wit, to expedite the settlement of insolvent estates, to protect the assignee in any lawful dividend and settlement that may be made and to secure vigilant creditors in rights acquired thereby, will be attained, and at the same time equity will be done as between the creditors. We therefore agree with the court below and affirm the judgment of the district court.


author: Granger, C. J.

text:
    Franc v. Nirdlinger.
    If a wife, when asked to permit her husband to apply a specified part of her separate estate in payment of his debt, delivers said property to him, and he, with her knowledge and without objection by her, transfers it to his creditor for said purpose, she thereby makes her express assent that her husband may dispose of said property for his own use and benefit.
    Error to the District Court of Lucas County.
    On June 19th, 1878, Augusta Nirdlinger, a married woman, began a civil action in Lucas Common Pleas against Leopold Franc and others. Her petition charged ■that, in December, 1877, she sold to defendants a bill of exchange, drawn by Hall, Weaver & Co., of La Porte, Indiana, upon the National Park Bank in the city of New York, payable at sight, to the order of Simon Wile, in the sum of fl,079^¡- —Wile having indorsed said bill to her before that time; that she was then the holder and owner of - said bill and indorsed and delivered it to the defendants, who agreed to pay her therefor $1,079¶^, upon request; that she had 'so requested and they had refused to pay. Leopold Franc answered. He denied that she had made anísale to the defendant; and averred “that said draft was indorsed by said plaintiff, and delivered by her to her husband, Jacob Nirdlinger, and by him assigned and transferred to said Leopold. Franc for the purpose and to the end of paying and reimbursing said Leopold Franc for moneys before that time-paid out by him as surety upon debts owing by J. Nirdlinger & Sons, of which the husband and sons, of said plaintiff were the only principals; and to meet debts of J. Nirdlinger & Sons then about maturing, and upon which said answering defendant had become before that surety, and for no other purpose.
    “ That said draft or bill- of exchange was drawn for the very use and purpose for which it was used, and it was agreed by and between said answering defendant and said J. Nirdlinger, that the same should be placed with said Leopold Franc for the purpose of reimbursing him for' payments as aforesaid, and to meet the debts of said J. Nirdlinger & Sens then about maturing, to all of which said plaintiff had notice and knowledge and assented.
    “ Said defendant says that said moneys realized on said draft, together with a large amount of his own funds, amounting to several thousand dollars, has been used by him in paying said debts of said J. Nirdlinger & Sons, and arranging a compromise and composition with the creditors of J. Nirdlinger & Sons to all of which said plaintiff had full notice and knowledge and assented.”
    No reply was filed, but the cause was tried as if the new facts stated in the answer had been duly denied. The verdict was for the plaintiff, $1,265. Franc then moved for judgment on the pleadings notwithstanding the verdict. This was overruled and judgment entered on the verdict. A bill of exceptions was duly made part of the record. The district court affirmed the judgment of the common pleas. The evidence at the trial tended to show that Franc had assisted Nirdlinger, the husband, by advancing money to his creditors, and in other modes, for which the latter owed Franc a large sum; that the husband had promised to procure for Franc money or property of the wife; that about a month prior to the delivery of the bill of exchange, the husband told Franc that she had some money coming from La Porte and he would give that on his debt. The wife never said a word to Franc about it. She indorsed the note “in blank” only. Franc testified that the transaction occurred thus: “Mrs. Nirdlinger didn’t speak a word to me. I spoke to her and said ‘ good morning.’ Mr. Nirdlinger handed me the draft and says, ‘ here is the money from Laporte.’ Of course, having previously had a conversation with him, I knew what the money was. It was money that I had expected to pay his debts with.
    “I took the draft from Mr. Nirdlinger, and all he said was, ‘ Here is the money from Laporte.’ Mrs. Nirdlinger didn’t say a word to me; didn’t say a single word. It is my impression that it was indorsed when I got it.”
    Franc asked the court to instruct the jury thus: “ If the jury find that this draft was the separate property of Mrs. Nirdlinger, and she, with a knowledge of the use and purpose to which the proceeds thereof was to be put, indorsed the draft in blank and delivered it to her husband and he delivered it to Franc in payment of past-due debts, or to meet debts then maturing, such indorsement by her in blank and delivery to her husband, in the absence of other proof, passed to him the title to said draft and the unqualified power of disposing of the same; and such indorsement and delivery by her, in the absence of other proof, amounted, in law, to an express assent or contract on her part that he might use it and dispose of it for his own use and benefit.”
    The court refused; and he excepted. The charge as given contained the following instruction:
    “ There is no law in this state that inhibits a married woman appropriating or subjecting her separate estate towards the liquidation and payment of her husband’s and son’s debts, or the debts of third persons; but, on the contrary, such transactions are upheld and sustained. And in such appropriation, or subjecting, of her said estate to payment of the debts of others no express assent is necessary, but the question is one purely of intention, and her intention to so appropriate or subject may be shown or presumed from her acts, declarations, dealings, and the circumstances surrounding the transaction. And if the jury find from the evidence that Mrs. Nirdlinger so intended when she endorsed and delivered this draft to Franc, then she cannot recover in this action.”

      Haynes & Potter, for plaintiff in error.

      Charles Kent and Isaac P. Pugsley, for defendant in error.
   Granger, C. J.

The motion for judgment on the pleadings was properly overruled. Lovell v. Woodworth, 39 Ohio St., 614. By treating the new facts in the answer as denied, Franc waived his right, if any he had, to call for judgment in default of a reply.

The question raised upon the action of the trial court touching the charge to the jury calls for an examination of the Act of March 30th, 1871, (68 Ohio L., 48.) (Section 3109 Revised Stats, is substantially the same.) It reads thus: “Any personal property belonging to any woman at her marriage, or which may have come to her during coverture * * shall be and remain her separate property, and under her sole control, and shall not be liable to be taken by any process of law for the debts of her husband. This act shall not affect the title of any husband to any personal property reduced to his possession with the express assent of his wife; provided that said personal property shall not be deemed to have been reduced to possession by the husband by his use, occupancy, care, or protection thereof, but the same shall remain her separate property, unless by the terms of said assent, full authority shall have been given by the wife to the husband to sell, encumber or otherwise dispose of the same for his own use and benefit.”

It is not necessary that the assent of the wife shall be established by evidence proving words spoken or written by her. If it be clearly proved that the wife was called to act upon a definite proposal that she should consent to her husband’s reduction to possession of a specific article, or part, of her separate property, for Ms own use and benefit, and that she did act affirmatively upon that proposal, the assent is express within the obvious meaning of this statute. Pollock’s Principles of Contract, 28, and cases cited; 1 Story on Contract, sec. 14, Alexander v. Vane, 1 M. & W., 511. If legal evidence established that Nirdlinger said, in substance, to his wife “ Franc has paid my debts, I owe him more than the amount of your La Porte draft; I have told him I would get that draft for him as a payment on my debt. If you consent to this write your name on the back of the draft and give it me. I will then pay it to him on my debt: ” that she then, without saying a word, got the draft — wrote her name on its back and handed it to him; and he, with her knowledge, handed it to Franc as a payment on said debt, her express assent under this act would have been shown. “ Yes ” may be, substantially said by the wife, although neither her lips nor tongue be used. An affirmative nod of the head in response to a. question, saj^s “yes ” to what is asked as effectually as if the words were spoken. In the case just supposed the getting of the draft, the indorsement, the delivery, and the omission to recall either, although the wife knew that the husband was on his way to use her draft in paying his debt, unmistakably expressed her assent to it all. But under the evidence in the case before us the mere indorsement and delivery of the draft by Mrs. Nirdlinger did not constitute the assent required by the statute. It was a consent that he might collect the money, but not that he might do so “ for his own use and benefit.”

When Franc presented his request for the charge herein-before quoted, there was no evidence in the case on which he could rightfully claim that the jury should find that Mrs. Nirdlinger had any knowledge of her husband’s promise to Franc, or_ that she indorsed and delivered the draft in response to any request for her consent to its application on his debt. If there had been evidence tending to prove that her consent had been asked and that, in response to such asking, she had indorsed and delivered the draft and permitted its transfer to Franc, it would have been the duty of the court to tell the jury that if she had so acted, she thereby fully divested herself of all property in the draft and that the defendant wouíd in such case be entitled to a verdict. But, as the case was, the refusal to charge as requested was right. The instruction actually given, and hereinbefore quoted, was pertinent to the evidence and, as we think, gave to defendants the full benefit of the law' applicable to the case made. As a reviewing court looking only at a record, and seeing no witness, we cannot adjudge that the verdict was not supported by the evidence.

Judgment affirmed.


text:
    Landon v. Payne.
    Error to the District Court of Licking County.

      Charles Pollett & Son, for plaintiff in error.

      J. Buckingham, for defendant in error.
   By the Court.

In a civil action for partition. L., who was tenant by the curtesy in one undivided fourth of the premises, and his children, who held the fee of said fourth part subject to said estate by the curtesy, were parties defendant. L. made no claim, and a decree entered in 1862, did not recognize title in him, but set apart to each of his children in fee simple absolute, a distinct parcel of the land. Each child entered and held possession, and one of them, for value, duly conveyed her parcel to H. In 1877, L. sued EL, asking possession of the premises and damages. H. pleaded the decree of 1862 in estoppel. The trial court sustained his defense. Held: This was right. The decree defined and determined, as between all the par-, ties thereto, the nature and extent of their respective interests. It recognized no right in L., and, in legal effect, found that he had no title. So long as that decree remains Unreversed he cannot assert against his child, or her grantee, any claim that would lessen the estate then adjudged to be hers.

Judgment affirmed.


text:
    Grove v. Graham.
    Error to the District Court of Morrow County.

      Dalrymple & Powell, for plaintiff in error.

      Andrews & Allison and Olds & Fluckey, for defendants in error.
   By the Court.

In December, a. d. 1851, the County Commissioners of Morrow County made an order establishing a road forty feet wide, “ commencing at the southwest corner of the southeast quarter of section twelve (12), township seventeen (17), range twenty (20); thence north l-|-° east to the northwest corner of the northeast quarter of section thirty-six (36), township eighteen (18), range twenty (20), where it intersects a road leading from the Tiffin to the Delaware road; distance three miles and six rods.”

At the time of making such order, and for a long time prior thereto, there had been a private lane or way meandering along and near the center of said section twelve (12) for the sole use and convenience of the then owner of the southwest quarter of said section, whose dwelling-house stood near the center of said quarter, on said lane, which began in a county road on the south line of said section, running thence north through, or near, the center of said section, and intersecting a county road running east and west through the north half of said section near its center, and another county road running east and west on the north line of said section, which said lane or passage way was not more than twenty feet in width.

So much of the road as was north of the north end of the lane was duly opened. Travellers used the lane but no change was made in it, or in its fences, until in April, 1859, when, by request of the land owners in said section, the county surveyor surveyed a line through the middle of the section and they placed their fences on each side of said line and fifteen feet from it. J. G. owned one of these fences. It stood within the forty feet designated for the road of A. d. 1851. In 1881 the supervisor of the district notified him to remove it from the road, and on his refusal to comply, moved it off the said forty feet, doing as little damage as practicable. J. G. sued for damages because of this.

.Held: 1. The part of said road along the lane did not, under these facts “remain unopened for public use for the space of seven years.” (Sec. 29., S. & C., p. 1296; Sec. 4668, Rev. Stat.)

2. The removal of the fence by the supervisor was lawful.

Judgment affirmed.


text:
    Tompkins v. Starr.
    Where T. claimed and had offered evidence to show that S., her brother, had agreed to furnish her a home as long as she lived, if she would act as his housekeeper, and S. claimed that by the arrangement between them T. was to be "his housekeeper only so long as they could agree, or as long as they could get along together, Held: That it was competent for S., as tending to support his claim, to prove that T. was a person of peevish, nervous and disagreeable temper, and that none of her relatives who had tried to live with her could do so; and that these facts were known to S. when the arrangement to live together was made.
    Ekkor to the District Court of Cuyahoga County.
    The original action was by the plaintiff in error against the defendant in error, her brother, for the failure to perform a contract, as she claimed, by which the defendant had agreed to furnish her a home during her life, in consideration that she should act as the housekeeper of the defendant during that time. The defendant admitted that an arrangement existed between him and the plaintiff, by which she was to be his housekeeper; but he claimed that the arrangement was not to continue for any definite time, but was to last only while they could agree, or while they could get along together. The plaintiff had given evidence in support of her claim and the defendant after testifying to the arrangement he claimed to exist between them, was asked by his counsel, what was the character and disposition of the plaintiff as to being peevish, nervous, illnatured or otherwise. Objection was made to the question. Counsel for defendant thereupon stated that the defense proposed by the testimony of the witness to show that the plaintiff was of a very peevish, nervous and disagreeable temper and that none of her relations who had tried to live with her, could do so — and to show further that these facts were known to the defendant when the arrangement to live together was made.
    The court sustained the objection and refused to allow any of these facts to be stated by the witness. The trial resulted in a verdict and judgment for the plaintiff. This judgment was reversed by the district court, for the refusal of the common pleas to admit the proof so excluded.

      Mix, Noble & White, for plaintiff in error.

      S. O. Grrimold, for defendant in error.
   McCauley, J.

The plaintiff had made her claim as to what the arrangement was between her and the defendant, her brother, and the defendant had made his claim. The oafly difference between them was as to the length of time the plaintiff should continue as his housekeeper — she claiming it was during her life, and he claiming' it was to continue only while they could agree or get along together. The testimony excluded by the court had no direct tendency to sustain the claim of the defendant, because it did not purport to prove the terms of any agreement of the parties; but it showed a state of fact which must have influenced the defendant in the kind of contract or arrangement he would make with a person known to him as the plaintiff was — and to some extent helped to show whether the arrangement claimed by the plaintiff or the one claimed by the defendant was the more probable as matter of fact.

If the plaintiff was of such peevish and disagreeable temper that none of her relatives could live with her, and this was known to the defendant when the arrangement to keep house was made, these facts would strengthen the probability that the arrangement was temporary, as claimed by the' defendant, rather than for life, as claimed by the plaintiff. The proof, we think, was competent to go to the jury for what it was worth in connection with the other evidence in the case. A similar question was made and the same view taken in Allison v. Horning, 22 Ohio St. 138, and cases therein referred to.

Judgment affirmed.