source: Caselaw Access Project

author: Matthias, J.

license: Public Domain

text:
    The Akron, Canton & Youngstown Railway Co. et al. v. The Public Utilities Commission of Ohio.

      Railroads — Physical connections — Intersecting tracks — Railroads for promotion of public benefit — Statutory jurisdiction of public utilities commission — Public necessity the test for proposed connection — Lawfulness of finding by commission.

    1. The laws of this state do not make it the absolute duty of a railroad company whose tracks cross or intersect those of another company to establish and maintain a physical connection between the tracks of such railroads so as to admit of the passage of cars from one road to another.
    2. Statutes regulating railroad traffic are enacted for the purpose of promoting adequate, prompt and efficient service, not primarily in the interest of the railroad companies but for the benefit of the public, and the test to be applied in every case of a proposed physical connection of tracks is that of practicability of construction and reasonable necessity to accommodate the public.
    3. In this state jurisdiction over such matters has been by statute conferred upon the public utilities commission, and it is authorized to require such physical connection of tracks where, upon hearing, it finds the same to be practicable and reasonably necessary to accommodate the public.
    4 A charge of unjust discrimination is not made out by the mere fact of a previous connection with the tracks of one company and a refusal to establish such connection with the tracks of another company. Reasonable public necessity for the proposed connection is the ultimate test in every case.
    5. Under the circumstances shown in this case the action of the public utilities commission, in finding that the connection of tracks asked for was not reasonably necessary to accommodate the public, and in dismissing the application therefor, was neither unlawful nor unreasonable.
    (No. 15373
    Decided June 26, 1917.)
    Error to the Public Utilities Commission.
    This case comes into this court by proceeding in error from the Public Utilities Commission of Ohio, which commission denied the application of the plaintiffs in error for an order requiring that physical connection of the tracks of The Cleveland, Akron & Cincinnati Railway Company and The Akron, Canton & Youngstown Railway Company be made at a point approximately 820 feet west of the intersection of said railroads in the city of Akron.
    The record discloses that the line of railroad of The Akron, Canton & Youngstown Railway Company is constructed and operated from a point in the village of Mogadore, Summit county, Ohio, where it has physical connection of its tracks with the tracks of The Wheeling & Lake Erie Railroad Company, westwardly to and into the city of Akron, where it connects with the Northern Ohio, the Erie and the Baltimore & Ohio railroads; that it is 7 miles in length, and has about 13 miles of sidetracks; that it has no passenger station or cars, and handles only freight, its equipment consisting of 5 engines and 99 cars; that The Cleveland, Akron & Cincinnati Railway Company owns a line of railway extending from Hudson, Ohio, (at which place it forms a junction with a line of railway leased and operated by the defendant, The Pennsylvania Company, extending to Cleveland, Ohio,) to Columbus, Ohio, passing into and through the city of Akron, Ohio, and from Kill-buck, Ohio, to Morrow, Ohio; and that the defendant, The Pennsylvania Company, is in possession of and operates, among other lines of railway in the state of Ohio, The Cleveland, Akron & Cincinnati Railway, which latter road has physical connection between its tracks and the tracks of The Erie Railroad Company, The Baltimore & Ohio Railroad Company and The Northern Ohio Railroad Company, all in the city of Akron.
    It is averred in the complaint that the tracks of The Akron, Canton & Youngstown Railway Company lie contiguous to certain enumerated manufacturing plants and places of business in the city of Akron, which would use- the Cleveland, Akron & Cincinnati railway in the shipping of their products to various points reached by that railway and its connections, if the physical connection were made between said roads, and that such connection would be of advantage to the several industries and places named and to the public. It is averred further that the defendants do not secure and extend to all persons, companies and corporations the same and equal facilities for the receiving and shipping of freight, but on the contrary unreasonably, unlawfully and unjustly discriminate against the complainants; and that The Akron, Canton & Youngstown Railway Company is unable for want of such physical connection to afford reasonable and proper facilities to the shippers along its line of railroad.

      The defendants aver that the complainant, The Akron, Canton & Youngstown Railway Company, consists of a fragmentary line of railroad, approx-, imately 7 miles in length, which is without any adequate terminals either in the city of Akron or elsewhere, and without the means of acquiring the same; that said railroad is a mere switching line and renders no service which cannot now be performed and better performed by the other railroads operating in and through the city of Akron; that the sole purpose of this action is to cause the defendants to open to the Akron, Canton & Youngstown railway the valuable and exclusive property of The Cleveland, Akron & Cincinnati Railway Company in the city of Akron; and that any order such as is sought .by the complainants would be unreasonable, unlawful and void, and would deprive the defendants of their property without compensation and without due process of law, contrary to the provisions of the Constitution of the . United States and of the state of Ohio.
    The complainants by reply deny the averments of the answer.
    Evidence was submitted upon the issues made by the pleadings, upon consideration whereof the Public Utilities Commission announced its conclusion that the evidence disclosed no such public necessity as would justify an order requiring the connection. A petition for rehearing was filed by the complainants and was overruled by the commission, and thereupon a petition in error was filed in this court.

      Messrs. Taylor & Stewart, for plaintiffs in error.

      Mr. Freeman T. Eagleson; Mr. Karl E. Burr and Mr. W. E. Young, for defendant in error.
   Matthias, J.

The plaintiffs in error are in this ' court by virtue of Section 544, General Code, which provides that a final order of the Public Utilities Commission of the state may be reversed, vacated or modified by the Supreme Court on a petition in error, if upon consideration of the record the court is of the opinion that such order was unlawful and unreasonable.

The action of the Public Utilities Commission complained of is that it denied the application presented by the plaintiffs in error for an order requiring that a physical connection be made of the tracks of The Akron, Canton & Youngstown Railway Company and those of The Cleveland, Akron & Cincinnati Railway Company. The company last named refused to make or permit the connection of tracks sought by the former, whereupon the jurisdiction of the Public Utilities Commission was invoked under the provisions of the statute conferring upon it authority to act in such matters, particularly Section 614-42, General Code, which provides in substance that if any such road or .roads fail, neglect or refuse to make such connection, upon complaint of any party authorized by statute to file complaint, the commission shall proceed to hear and determine the same, and if upon hearing the commission shall find it is practicable and reasonably necessary to accommodate the public to connect such tracks and that when so connected, it will be practicable to transport over such road, cars without endangering the equipment, tracks or appliances of either company, then the commission shall make an order requiring such railroads to make connection, describing the terms and conditions, and apportion the cost thereof between the railroads.

It was argued in the presentation of this case that by force of the provisions of Section 522 and Section 8997, General Code, every steam railroad in this state has the absolute right to connect its tracks with the tracks of any railroad of the same gauge which it crosses or intersects, so as to admit the passage of cars from one road to another with facility, and that likewise an absolute duty devolves upon every steam railroad in the state to join in establishing and maintaining such connection of its tracks with the tracks' of each and every road of the same gauge which it crosses or intersects.

We are of the opinion, however, that a consideration of the provisions of the several sections of the statute having to do with the connection of tracks of railroad companies, and the interchange of traffic by them, does not warrant the conclusion that an absolúte right is thereby conferred upon one company to make or require such physical connection of its tracks with the tracks of any and every road of the same gauge which it crosses, but that its right so to do depends upon whether the proposed connection is practicable and reasonably necessary to accommodate the public.

The test of public necessity must be applied in every case, and an order requiring the connection óf tracks is invalid unless the conditions disclosed meet that test. Wisconsin, M. & P. Rd. Co. v. Jacobson, 179 U. S., 287; Oregon Rd. & Nav. Co. v. Fairchild, 224 U. S., 510; Great Northern Ry. Co. v. Minnesota, 238 U. S., 340; and Seaboard Air Line Ry. Co. v. Georgia R. R. Com., 240 U. S, 324.

In the case last cited, which was decided in 1916, the supreme court of the United States, in upholding the order of the railroad commission of the state of Georgia, whereby it had required a physical connection of the tracks of two railroads, cited with approval the cases above referred to, and held:

“It is within the power of a State, acting through an administrative board, to require railroad companies to make physical track connections where public necessity exists .therefor.
“In determining whether such public necessity exists, just regard should be given on the one side to probably resulting advantages, and, on the other side, to the necessary expenses to be incurred.
“A finding of public necessity for a physical track connection cannot be supported by the mere declaration of the commission; there must be sufficient evidence to support it.”

It could not have been contemplated therefore that any of the statutes to which reference has been made, or any law of the state, should reqitire a railroad company, regardless of the existence of public necessity, to throw open its terminals and facilities and thereby transfer to another company valuable property rights. (Louisville & Nashville Rd. Co. v. Central Stock Yards Co., 212 U. S., 132.) It is quite obvious that the purpose of the enactment of these statutes was to promote adequate, prompt and efficient transportation service, not in the interest or for the advantage of a railroad company, but for the advantage and benefit of the public.

The following statement of the court in The L. S. & M. S. Ry. Co. v. The C., S. & C. Ry. Co., 30 Ohio St., 604, 616, is quite pertinent here: “These roads are great public highways, and as such are amenable to such reasonable regulations, not inconsistent with vested rights of private property, as will promote that object.”

Hence regulatory statutes have been enacted whereby railroads and public utilities are required to conform their operations to- the necessities of the public, and in the several states various provisions have been made for the determination of the question of practicability and reasonable necessity for the proposed connection of the tracks of railroads. In this state jurisdiction over such matters has been conferred upon the Public Utilities Commission by statute, particularly Sections 524 and 614-42, General Code. It is essential, therefore, that before an order can be made by the commission, such as is sought in this proceeding, the commission shall find that the proposed connection of tracks is practicable and reasonably necessary to accommodate the public, and, unless the conditions and circumstances laid before the commission are such as to induce and warrant such a finding, an order of the commission requiring the connection of the tracks of such railroads would be invalid.

In this casé the commission, after a full hearing, in which much evidence was adduced, .the locality visited and the conditions there investigated, found that considerations of public necessity did not require the connection of tracks as asked for by the complainants, and refused the order prayed for. This court has heretofore held that in proceedings of this character it will not substitute its judgment for that of an administrative board of the state whose finding and judgment is under review, and that before it will disturb an order of such board, made after a full hearing upon a matter within its province, it must appear from a consideration of the record that the action of the board was unlawful and unreasonable. The Hocking Valley Ry. Co. v. The Public Utilities Commission of Ohio et al., 92 Ohio St., 362.

In order to determine whether the action of the commission in refusing to order the track connection was unlawful and unreasonable, this court has fully and carefully examined the evidence and considered the same in accordance with the rule stated in Oregon Rd. & Nav. Co. v. Fairchild, supra, and adopted by this court in The Hocking Valley Ry. Co. v. The Public Utilities Commission of Ohio et al., 92 Ohio St., 9, which is that the court in reviewing such proceedings shall examine the evidence, not for the purpose óf passing upon conflicts in the testimony or of deciding upon bare questions of fact, but to determine whether what purports to be a finding upon questions of fact is so involved with and dependent upon questions of law as to be in substance and effect a decision of the latter.

The question of public necessity must be determined in each case in the light of all the facts, and with a just regard to the advantage to be derived by the public and the expense to be incurred by the carrier, and upon a consideration of the evidence showing the places and persons interested, the volume of'business to be affected, the saving of time and expense to shippers as against the cost and loss to the carrier. (Oregon Rd. & Nav. Co. v. Fairchild, supra.) It is not enough that it be shown that a mere convenience would be furnished to a few individuals by the proposed change, but it must appear that material and substantial public benefit and advantage would result therefrom. The record discloses that the extent of territory affected by the proposed connection is quite circumscribed, the volume of business to be thereby served relatively small, and the saving of time and expense to shippers inconsiderable.

It is not necessary and would not be profitable to incorporate in this opinion a recital or discussion in detail of the evidence shown by the record. It is sufficient to say that it supports the conclusion of the commission that considerations of public necessity do not warrant an order compelling the connection of the tracks of these two companies. The tracks of The Akron, Canton & Youngstown Railway Company now connect with the tracks of The Northern Ohio Railroad Company, The Erie Railroad Company and The Baltimore & Ohio Railroad Company, in the city of Akron, and with the tracks of The Wheeling & Lake Erie Railroad Company, at Mogadore, which is the terminus of the Akron, Canton & Youngstown railway. The tracks of The Cleveland, Akron-& Cincinnati Railway Company now also connect with the tracks of The Northern Ohio Railroad Company, The Erie Railroad Company, and The Baltimore & Ohio Railroad Company. The proposed connection would afford shippers but little benefit in addition to that now secured by established connections. We are of opinion that the commission was right in concluding that a provision whereby a few local points could be reached by a less mileage than at present would not result in material benefit or advantage to the public. The mere fact that a physical connection is maintained with another road in the same locality, while denied the complainant, does not establish the claim of unreasonable or unjust discrimination. What is undue or unreasonable preference or advantage, or unjust discrimination, is not a question of law but of fact. (Pennsylvania Co. v. United States, 236 U. S., 351, and Louisville & Nashville Rd. Co. et al. v. United States, 242 U. S., 60.) Under the decision of the commission the facts must have been found adverse to complainants. Such conclusion is amply supported by the record. Reasonable necessity to accommodate the public is the ultimate test in the consideration of every such application. A charge of unjust discrimination therefore is not made out by the mere fact of a previous connection with the tracks of one company and a subsequent refusal to establish such connection with the tracks of another, in the absence of the essential fact of reasonable public necessity for the proposed connection.

We find no substantial or prejudicial error in the proceeding before the commission, and its order is therefore affirmed.

Order affirmed.

Nichols, C. J., Newman, Jones, Johnson and Donahue, JJ., concur.


author: By the Court.

text:
    The Wheeling & Lake Erie Railroad Company et al. v. The Public Utilities Commission of Ohio.

      Railroads — Physical connection — Finding by public utilities commission— Necessary to show connection will be practicable and reasonable — Question of public acconmnodation.

    (No. 15400
    Decided June 26, 1917.)
    Error to the Public Utilities Commission.

      Messrs. Squire, Sanders & Dempsey and Mr. Robert F. Denison, for plaintiffs in error.

      Mr. Freeman T. Eagleson and Mr. Karl E. Burr, for defendant in error.
   By the Court.

The plaintiffs in error in a proceeding instituted by them before the Public Utilities Commission of the state sought an order of that board requiring that a physical connection be made between the tracks of The Wheeling & Lake Erie Railroad Company and the tracks of The Lake Erie & Pittsburgh Railway Company, at a point about two miles north of Kent, Ohio, where the two roads cross at different grades, the tracks of the Wheeling & Lake Erie passing under the tracks of the Lake Erie & Pittsburgh.

The Public Utilities Commission found that the complainants were not entitled to such order and dismissed the complaint. Thereafter an application for a rehearing filed by the complainants was denied by the Public Utilities Commission, whereupon a petition in error was filed in this court.

The record discloses that the complainant, The Wheeling & Lake Erie Railroad Company, owns a line of railroad extending from Cleveland, Ohio, to Zanesville, Ohio, which, at Harmon, Stark county, crosses a line of railroad owned and operated by the same company, extending from Toledo to Martins Ferry and Steubenville. The road of The Lake Erie & Pittsburgh Railway Company extends from its intersection with the New York Central Belt Line at Marcy, near Cleveland, to Brady’s Lake Junction, a short distance north of Kent, where it connects with the line of The Pennsylvania Company. It is jointly owned by the New York Central and the Pennsylvania companies. Trains are operated thereover only by the New York Central, which also has trackage rights over The Pennsylvania Company’s tracks from the terminus of the Lake Erie & Pittsburgh railway to Ravenna, and thence over the tracks of The Baltimore & Ohio Railroad Company to Youngstown. It further appears from the record that no trains are operated by The Lake Erie & Pittsburgh Railway Company; that there is no intermediate connection of its tracks with any other company; that no industries are located on said road; that it has no team tracks or terminals; and that its line and that of the complainants are parallel and competing lines between Kent and Cleveland. It does not appear from the record that any shipper has sought or is seeking the proposed connection.

The contention is made by the complainants here that under the laws of this state they have an absolute right to establish a physical connection between the tracks of the Wheeling & Lake Erie company and the tracks of the Lake Erie & Pittsburgh company.

This court has held in the case of The Akron, Canton & Youngstown Ry. Co. et al. v. The Public Utilities Commission of Ohio, ante, 359, that the right is a relative and not an absolute right, and, therefore, that before such connection may be required it must be shown to be practicable and reasonably necessary for the accommodation of the public. No claim of discrimination is made here by the complainants; although charged in the pleadings, the complainants expressly withdrew that contention from the consideration of this court. In this case, therefore, we have only to consider whether, from the record, it appears that the action of the commission denying the relief prayed, either upon the ground that the proposed connection is not practicable or that it is not reasonably necessary to accommodate the public, is unlawful or unreasonable.

The principal ground upon which such connection of tracks was urged by the complainants was that thereby additional through routes could be established between Youngstown, Akron and Canton, and between Canton and other points on complainants’ road south of Kent and Cleveland.

The question the commission was required to determine from the evidence submitted was not whether a private benefit or advantage would accrue to the railroad company, from the proposed connection, but whether the necessities of the public reasonably required such connection; and the burden was upon the complainants to establish that essential fact.

It is quite apparent that in the consideration and determination of the question whether such public necessity exists for the proposed connection just regard was given by the commission to probably resulting advantages on the one side, and to the expense to be necessarily incurred upon the other. Adhering to the rule for the consideration of such proceedings adopted by this court in The Hocking Valley Ry. Co. v. The Public Utilities Commission of Ohio et al., 92 Ohio St., 9, and The Hocking Valley Ry. Co. v. The Public Utilities Commission of Ohio et al., Id., 362, and specifically followed and applied in The Akron, Canton & Youngstown Ry. Co. v. The Public Utilities Commission of Ohio, ante, 359, we are constrained to approve the finding and order of the Public Utilities Commission herein.

Order affirmed.

Nichols, C. J., Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: Newman, J.

text:
    Kiley v. Hall.

      Building restrictions — Purchaser not chargeable with notice — As to restrictions in other deeds — Injunction by one lot owner — To enforce similar conditions in deed of another—Cannot be maintained, when — Covenant as to “dwelling” and "business block” — Interpretation of contracts.

    1. The purchaser of a lot in an allotment whose deed contains restrictions as to the use of the lot is not chargeable from that fact alone with notice that like restrictions are contained in the deeds to other purchasers of lots in the allotment.
    2. A lot owner cannot maintain an action to enforce by injunction the observance of restrictions contained in the deed of another lot owner where it does not appear that the latter purchased his lot with notice of a general plan for the improvement of the lots of the allotment in accordance with the restrictions contained in his deed, or with notice that such restrictions were inserted in his deed for the benefit of the owners of the other lots in the allotment.
    3. A restrictive covenant in a deed that “no dwelling shall be erected on said above premises herein conveyed containing less than six rooms; said dwelling to -be located not less than twenty-four feet from the street line not including porches,” does nót prevent the erection of a business block, and the provision relating to the location of a dwelling does not apply to the location of a business block.
    (No. 15454
    Decided May 15, 1917.)
    Error to the Court of Appeals of Mahoning county.
    This action originated in the court of common pleas of Mahoning county, where defendant in error, George H. Hall, sought by injunction to restrain plaintiff in error, John W. Kiley, from the alleged violation of a building restriction. In 1903, one Elias L. Kyle was the owner of a tract of land, then in the township of Youngstown, Mahoning county, Ohio, now in the city of Youngstown, extending from Oak Hill avenue on the east, westerly to Hillman street on the west. Kyle platted this land and the plat thereof was recorded in the records of plats of Mahoning county, on June 5, 1903. On this plat was laid out a street or avenue known as Glenaven avenue, 50 feet in width, extending from Oak Hill avenue westerly to Hillman street, and there were laid out 44 lots, 22 on either side of Glenaven avenue, each lot fronting approximately 50 feet on said avenue.
    Plaintiff in error purchased from Kyle the .first three lots west of Oak Hill avenue, having in the aggregate a continuous frontage of 150 feet on the south side of Glenaven avenue, extending south the. same width 120 feet. The deeds conveying these lots were dated August 13, 1910, and December 1, 1911, and contained the following restrictions :
    “It is further agreed and made a' part of the consideration of this deed that no dwelling shall be erected on said above premises herein conveyed containing less than six rooms; said dwelling to be located not less than twenty-four feet from the street line not including porches.
    “And it is further agreed and made a part of the consideration of this deed that no intoxicating liquors shall ever be sold or manufactured, nor shall traffic in intoxicating liquors of any kind be had on said premises.”
    The deeds for all the lots on either side of Glenaven avenue included in the Kyle plat, with the-exception of the deed for two lots known as the Sigel property on the northwest corner of Oak Hill avenue and Glenaven avenue, contained these restrictions. Seventeen lots on the south side of Glenaven avenue have been improved and residences built thereon and the owners of these lots in the building of their residences have observed the uniform building line of 24 feet, in accordance with the restrictions in their deeds. On the Sigel property is a drugstore which was built before plaintiff in error acquired his property and before more than one or two residences had been built on Glenaven avenue between Oak Hill avenue and Hillman street. In the deed for the Sigel property there were no building restrictions.
    On April 6, 1912, plaintiff in error sold to defendant in error a portion of the real estate purchased from Kyle, said portion so sold being known as City Lot No. 13185, being 40 feet front on the south side of Glenaven avenue, extending south the same width approximately 120 feet, the east line thereof being 80 feet west of the west line of Oak Hill avenue. The deed from' plaintiff in error to defendant in error contained the restrictions hereinbefore set forth, and the defendant in error, in conformity therewith, erected a residence on his lot.
    Plaintiff in error, having retained 80 feet on the south side of Glenaven avenue by 120 feet on the west side of Oak Hill avenue (said parcel being at the southwest corner of Glenaven avenue and Oak Hill avenue), was proceeding to erect thereon, immediately east of the premises of defendant in error •and within about three feet of the south line of Glenaven avenue, what is alleged in the petition to be a store and dwelling to be occupied for residence and mercantile purposes. Within a day after plaintiff in error began to excavate on his property for the foundation of the building, defendant in error and other owners of property on Glenaven avenue served a written notice upon plaintiff in error, in which they protested against the erection of the proposed building.
    It is alleged in the petition that the erection of this building would be in violation of the restriction contained in the deed to plaintiff in error, and the court was asked that he and one of his employes, who was named as a codefendant, be restrained by injunction from erecting any house, building or structure on said property, nearer Glenaven avenue than 24 feet, and that defendant in error be given such other and further relief as might be equitable and proper.
    Plaintiff in error filed an answer in which he admitted practically all the allegations of the petition, but denied that in the erection of his building he was violating the building restrictions contained in his deed. In the court of common pleas the cause was heard on the pleadings and the evidence and there was a finding in favor of plaintiff in error and the petition was dismissed.
    The case was appealed to the court of appeals. No temporary restraining order was asked by defendant in error. When the case was tried in that court, plaintiff in error had completed his building, which is a two-story brick building fronting on Oak Hill avenue, the north wall thereof being about three feet from Glenaven avenue. On the first floor of the building are two storerooms which were occupied and used for business purposes. According to the testimony of the contractor who built the building, the south side of the second floor had been arranged for dwelling purposes and the north side for offices, but at the time of the trial the second floor was used exclusively for dwelling purposes.
    The court of appeals, upon the hearing of the case upon the pleadings and the evidence, found in favor of the defendant in error and that the building constructed by plaintiff in error was in violation of the building restriction. The order of the court was that plaintiff in error be enjoined from erecting upon his property any house, building or structure within 24 feet of Glenaven avenue, and that the building on said lot within said 24 feet of Glenaven avenue be removed before May 1, 1917.
    On application of plaintiff in error, the court of appeals was directed,to certify its record to this court.

      Mr. E. H. Moore and Mr. David G. Jenkins, for plaintiff in error.

      Messrs. Burky & Burky, for defendant in error.
   Newman, J.

Defendant in error purchased his lot from plaintiff in error and in his deed are found the same restrictions that are contained in the deeds of Kyle, the allotter, to plaintiff in error. No claim, however, is made that plaintiff in error is under any different obligation to defendant in error in the observance of these restrictive covenants than he is to any of the other lot owners. Defendant in error, so far as his right to equitable relief is concerned, is in the same position as the other lot purchasers.

It is alleged in the petition that Kyle platted his land in lots with the design of having the same used and occupied as private residences, and it is urged by counsel that the plat constituted, and was designed as, a residence district. So far as we are advised the recorded plat furnishes no suggestion whatever of any intention on the part of Kyle to impose any restriction upon the purchasers as to the manner in which they were to build upon the lots purchased by them. It is further alleged that plaintiff in error, by the acceptance of his deeds from Kyle, covenanted with Kyle, and his assigns as well, for the use and benefit of any and all persons who became the owners of or might have any title derived immediately or remotely from Kyle or his grantees to any lot or part thereof in the allotment, not to erect, or cause, permit or allow to be erected or placed at any time or for any purpose, any dwelling or building less than 24 feet from the street line. This is denied by answer. The burden was upon defendant in error to establish this proposition.

In all the deeds from Kyle for the lots in his allotment there are contained restrictions identical with those contained in the deeds to plaintiff in error, with the exception of the deeds for the two lots at the northwest corner of Oak Hill avenue and Glenaven avenue, which, it appears, were practically the first lots sold by Kyle. In inserting these restrictions in the deeds, Kyle, no doubt, had in his own mind and contemplated a general plan or scheme of improvement for these lots. It is also manifest from the fact that he retained none of the property that this general plan was intended by him to be for the benefit of his grantees and not for himself. But can it be said that such plan came to the notice of his grantees when they purchased their lots, or that they purchased them with reference thereto? If the plan had been noted upon the recorded plat, notice thereof would be imputed to each lot purchaser. It would be a part of his chain of title. And, again, Kyle, the allotter, in his deeds did not advise a purchaser of a general plan, and did not covenant that all sales of lots in his allotment should be made subject to like restrictions, as was done in Wallace et al. v. The Clifton Land Co., 92 Ohio St., 349; nor did each purchaser covenant and agree as well for the use of every other person who might become the owner of a lot in the allotment as for the use of his grantor that he would observe the restrictions, as was done in McGuire v. Caskey, 62 Ohio St., 419. In those two cases, which are entirely different from the case here, the court held that a lot owner could enforce by. injunction against any other lot owner the restrictive covenants written into each deed in pursuance of the general plan.

It is stated by counsel for defendant in error that the several purchasers of lots understood when they made their purchase that Kyle intended that the plat of lots should be devoted to residential purposes — in other words, that they had actual notice of a general plan. We find no evidence in support of this claim. It is true that when this case was tried, in 1916, practically all the lots had been built upon for residence purposes and a uniform building line had been observed. But it is to be remembered that plaintiff in error acquired his lots in 1911 and from aught that appears in the record the same condition as to residences did not exist then. In fact, when plaintiff in error purchased his lot, there had been erected a business house at the northwest corner of Oak Hill avenue and Glenaven avenue, and perhaps one or two residences.

The restrictions contained in the deeds are as follows:

“It is further agreed and made a part of the consideration of this deed that no dwelling shall be erected on said above premises herein conveyed containing less than six rooms; said dwelling to be located not less than twenty-four feet from the street line not including porches.
“And it is further agreed and made a part of the consideration of this deed that no intoxicating liquors shall ever be sold or manufactured, nor shall traffic in intoxicating liquors of any kind be had on said premises.”

These restrictions, so far as a purchaser knew or was bound to know, may have been inserted in his deed alone and were not intended to apply to any other lot in the allotment, for we know of no rule of law that charges one lot owner with constructive notice of a covenant contained in a deed not in his chain of title. Each purchaser, of course, knew that his grantor, Kyle, could enforce the observance of these restrictions, but we do not know upon what theory the covenant in his deed would advise him that he owed a similar duty to the other lot owners. So there is nothing on the recorded plat or in his deed that would charge plaintiff in error when he purchased his lot with notice of a general plan or with notice that the restrictions contained in his deed were for the benefit of the other lot owners.

In Mulligan v. Jordan, 50 N. J. Eq., 363, it was held: “The right of grantees from a common grantor to enforce, inter se, covenants entered into by each with said grantor, is confined to cases where there has been proof of a general plan or scheme for the improvement of the property, and its consequent benefit, and the covenant has been entered into as part of a general plan to be exacted from all purchasers, and to be for the benefit of each purchaser, and the party has bought with reference to such general plan or scheme, and the covenant has entered into the consideration of his purchase.”

In that case the same covenant had been inserted in each deed made by the allotter and it is said by the court that this has been held not to be sufficient evidence of the covenant having been entered into for the benefit of the other lands conveyed by the same grantor. Several cases are cited in support of this holding, among which is DeGray v. Monmouth Beach Club House Co., Id., 329, 340, where Green, Vice Chancellor, after reviewing and analyzing numerous cases relating to building restrictions, uses this language: “The law, deducible from these principles and the authorities, applicable to this case, is, that where there is a general scheme or plan, adopted and made public by the owner of a tract, for the development and improvement of the property, by which it is divided into streets, avenues and lots, and contemplating a restriction as to the uses to which buildings or lots may be put, to be secured by a covenant embodying the restriction, to be inserted in each deed to a purchaser; and it appears, by writings or by the circumstances, that such covenants are intended for the benefit of all the lands, and that each purchaser is to be subject to and have the benefit thereof; and the covenants are actually inserted in all deeds for lots sold in pursuance of the plan; one purchaser and his assigns may enforce the covenant against any other purchaser and his assigns, if he has bought with knowledge of the scheme, and the covenant has been part of the subject-matter of his purchase.”

In the DeGray case the conclusion reached was that the right of the complainant to maintain his action was clear. But the court was of the opinion that the right of action was dependent as much upon the fact of the general scheme as on the covenant in the deed. There was no doubt in the mind of the court that each purchaser had bought with the understanding that all deeds were to contain the covenant, and had bought with that consideration in view. On page 341 are stated numerous facts and circumstances which clearly established a general plan and from which knowledge thereof was chargeable to each lot owner.

But in the instant case defendant in error failed to show that plaintiff in error when ’he purchased his lots knew that the restrictions in his deeds were for the benefit of other lot owners or that he bought with notice that a plan was to be- carried out with respect to the lots sold or to be sold in pursuance of it. Our holding is, therefore, that defendant in error was not in a position to maintain an action to restrain plaintiff in error from violating the restrictive covenants contained in. his deed.

But assuming that the right of action did exist in defendant in error, was the court of appeals correct in holding that the building constructed by plaintiff in error was in violation of the restriction? The restrictive covenant with which we are concerned is an agreement on the part of the grantee that no dwelling shall be erected upon the premises containing less than six rooms, the dwelling to be erected not less than 24 feet from the street line not including porches. It is urged that this restriction contemplated the use of the lot for residence purposes. To give it this construction it would be necessary to extend and enlarge the meaning of the language used. This would be in violation of the well-established rule that words restricting the use of property are to be construed strictly against the grantor and those claiming the benefit of such restriction. The covenant simply describes the kind of a dwelling that shall be erected upon the lot and defines its location. It does not provide that a dwelling' only shall be erected thereon. If the restriction had been: “No business house shall be erected on said premises less than two stories in height to be located on the street line,” would it be seriously contended that such restriction would have precluded the erection of a dwelling house? It is to be noted that immediately following the restriction we have been considering is a clause prohibiting the sale of intoxicating liquors on the premises. If the lot were to be used for residence purposes only, reference to the sale of intoxicating liquors would have been wholly unnecessary. If business was to be prohibited, it would be business generally and there would have been no necessity of specifying a particular kind that was to come within the prohibition. According to our view, the restriction in question did not prohibit the use of the lot for business purposes, and, as the clause defining the location refers to a dwelling, the language cannot be extended to apply to a business house.

The court of appeals in its order required that only that part of the building within 24 feet of Glenaven avenue be removed. The building unquestionably is not a “dwelling” as that term is understood and as it is used in the restrictive covenant. It is primarily a business block. We infer, therefore, from the order made by the court of appeals, that it found no objection to the erection of such a building but was of. the opinion that it should not have been built within 24 feet of Glenaven avenue. We cannot concur in this view. The uniform property line regulation, as we have said, related solely to a dwelling and could not apply or be enforced where a business block was built.

Judgment .of the court of appeals reversed and judgment for plaintiff in error.

Nichols, C. J.,.Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.


author: Wanamaker, J.

text:
    Weirick et al. v. The Mansfield Lumber Co. et al.

      Construction of remedial statutes—In obtaining justice — Section 10214, General Code — Attachment—Form of return—Section 11836, General Code—Court may not amend statute — Addition to return not 'essential, when.

    1. Remedial statutes require a liberal construction and a liberal application to the facts of any given case.
    2. Statutes pertaining to attachment and the procedure incident thereto are of a remedial nature.

      3. To reenforce this general rule the general assembly of Ohio has specially enacted Section 10214, General Code, providing that “The provisions of -part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.” Thereafter the general assembly made all the statutes pertaining to attachment a part of such “part third.”
    4. The return made upon the writ of attachment is governed by Section 11836, General Code, in which certain things “must” be shown. ■ The legislature having specified those things a court is not authorized to amend the statute by adding thereto. That is, as applied to this particular case, an amendment to the return showing that a copy of the order was left with the owner is not essential to the validity of the return.
    (No. 15383
    Decided June 26, 1917.)

      Error to the Court of Appeals of Richland county.
    The court of appeals found the facts of this case, so far as they are pertinent to this proceeding in error, as follows:
    “1. That on and prior to August 16, 1911, the defendant, Charles H. Walters was the owner in fee simple of lot number 1974, situated on Sturges Avenue, and lot number 3063, situated on Park Avenue West, of the consecutive numbers of lots in the City of Mansfield, Ohio. That prior to said 16th day of August, 1911, and on said.date, the defendant the Charles Hoffman Company had asserted a mechanic’s lien against said real estate, also, the plaintiff, The Mansfield Lumber Company, had prior thereto asserted a Mechanic’s lien on said premises, and the defendant, Edward Wentz, had obtained a judgment against the defendant, Charles H. Walters, and had issued execution thereon, and placed a levy on both of said lots.
    “2. That on August 16th, 1911, the defendant, W. M. Hahn, commenced an action against the defendant, Charles H. Walters, in the Court of Common Pleas of Richland County, Ohio, cause 11688, for $1,250.00, in which a proper affidavit of attachment was filed, making all proper allegations for a legal attachment under the laws of Ohio, properly verified; and an attachment was allowed to issue thereon to the Sheriff of Richland County, Ohio, on said date, and on said date, the Sheriff of Rich-land County, Ohio, did levy on said lots as the property of the debtor, Charles PI. Walters, and on the same day, the same Sheriff filed his return of his proceedings under said order in said Court of Common Pleas. ' Said return showed all'the facts, and that the Sheriff had done all things necessary by him to be done in the making of said attachment, and the only defect in said proceedings by the Sheriff was in not making a return of all of his proceedings. He omitted to return the fact that he had left a certified copy of the order of attachment with the occupant of the premises so attached, and the amendment of said return was for the purpose of showing that fact.
    “That subsequent thereto, to-wit, August 17th, 1912, the Sheriff of Richland County, Ohio, on his own motion, was by the said court in said cause 11688, permitted to amend his return, so as to show what he had actually done in his proceedings under said order, and had omitted to state in his said original return, and to state in his amended return, the.following as an amendment thereto: T also on the same day, August 16th, 1911, left a certified copy of the order of attachment with the occupant, C. H. Walters, of the residence on lot number 1974, and I also left a certified copy with the occupant, Dr. C. M. Morgan, in the residence on lot number 3063.’ That all proceedings by said Sheriff to amend said return were regular in every respect, and that the Court of Common Pleas of Richland County, Ohio,'Upon the evidence found that said Sheriff, in making said levy, had complied with the law in every respect, but had omitted to state all said facts in said return. That on February 25, 1915, the defendant W. M. Hahn, by the consideration of said Court of Common Pleas, obtained a judgment against the said Charles H. Walters on his said claim in said cause in said court, in the amount of $1508.25. The court further finds that in other respects the proceedings of the Sheriff under his order were regular, and that the attachment was in all other respects regular and legal, save as hereinafter held.

      “3. That on the 22nd day of November, 1911, the defendant, W. J. Weirick, commenced an action against the defendant Charles H. Walters, in the Court of Common Pleas of Richland County, Ohio, cause number 11792, to recover as damages the purchase price of certain shares of stock of the Mansfield Rubber Company, an Ohio Corporation, located at Mansfield, Ohio, of which the said Walters had been the promoter and chief manager, setting out in his petition certain false and fraudulent representations inducing said purchase by the said ■ Weirick, from, the said Walters, which false and fraudulent representations the said Weirick relied upon at the time of said purchase of said stock, believing the same to be in all respects true, in the amount of $650.00. At the same time, the said Weirick in said cause filed his affidavit in attachment, which affidavit is in the following words, save and except the caption thereto, the signature of the affiant, and the jurat: ‘W. J. Weirick, being duly sworn, says that the claim sued upon is for fraud and deception, on the part of the defendant Walters to induce said Weirick to purchase certain shares of stock in The Mansfield Rubber Company, an Ohio corporation, doing business in Mansfield, Ohio, and engaged in the manufacture of automobile tires. That said claim is just. That the amount he believes he ought to recover is six hundred and fifty dollars and interest from May 2, 1910. That the defendant is a non-resident of the State of Ohio.’ That on the same date attachment was ordered to issue, and in pursuance thereof, the Sheriff of Richland County, Ohio, attached the same premises, lot number 1974, and lot number 3063, and thereupon made the following return:
    “The State of Ohio, Richland County, ss: “Received this writ November 22, 1911, at eleven o’clock A. M., and in obedience to the command thereof, I did on the 22nd day of November, 1911, at 11:25 o’clock A. M. by the appraisement of a prior attachment, attached the property described in the schedule marked ‘A’ hereto attached and made a part of this return, as will fully appear by reference to said schedule ‘A’.
    “That on August 29, 1912, the Sheriff of Rich-land County filed his motion in said cause, praying for an order permitting him to amend his return by adding the following thereto:
    “ T also on the same day, November 22nd, 1911, left a certified copy of the order of attachment with the occupant (C. H. Walters) of the residence on lot number 1974. And I also left a certified copy of the order of attachment with the occupant (Doctor C. M. Morgan) of the residence on lot number 3063, November 22, 1911.
    “‘(Signed) P. S. Carroll, Sheriff,
    “ ‘By C. L. Hartenfels, Deputy.’

      “This motion the court granted on said 29th day of August, 1912, and on the same day, the return was amended as herein indicated to correspond with the facts of the proceedings had by the Sheriff at the time of the original levy. That on December 20, 1911, the said Walters filed his answer in cause and joined issue with the plaintiff in the allegations of his petition, and on February 13, 1915, W. J. Weirick, obtained a judgment on his said petition against the said defendant in the amount of $733.75 by the consideration of the court of Common Pleas of Richland County, Ohio. The court further finds that in other respects the proceedings of the Sheriff under his order were regular, and that the attachment was in all other respects regular and legal, save as hereinafter held.
    “4. On December 27, 1911, the defendant, The Richland Savings Bank Company, obtained a judgment on a cognovit note against the defendants, Charles H. Walters, Charles Hoffman, Jesse E. LaDow, B. L. Chase, William Isaly, Jas. E. Waite, C. R. Grant, and The Mansfield Rubber Company, in the Court of Common Pleas of said County of Richland, Ohio, subsequent thereto some part of said judgment was paid, leaving a balance due on said judgment of $1890.07, and on said date December 27, 1911, a judgment was caused to be rendered in said court against the said defendants, the said Charles H. Walters et al., on a cognovit note in favor of the defendant, The Farmers Savings and Trust Company, subsequent thereto, some part of the same being paid, leaving a balance due of $1276.97. On May 3rd, 1912, the defendant, ■

      The Ashland Bank and Savings Company, obtained a judgment on a cognovit note against the defendants, Charles H. Walters et al., which judgment amounts to $2176.92. That no execution on said judgments of said banks or either of them was caused to issue against the defendant, Charles H. Walters, until the 15th day of Septembér, 1914, at which date a levy was attempted, and a second return appears then to have been made. That on August 7, 1912, the plaintiff, The Mansfield Lumber Company, began this action, in the Court of Common Pleas of Richland County, Ohio, on its mechanic’s lien against the defendants, seeking to sell the property, the said lots, and to marshal liens. On June 30, 1913, Van C. Cook was appointed Receiver of the said real estate, took possession of the same, then renting and collecting the rents thereof, and on October 17th, 1914, the said receiver was given an order by the court to sell said real estate, and in pursuance thereof, the same was then sold.” Upon this finding of facts the court, of appeals determined the following conclusions of law relative to the claims of plaintiff in error:

      “1. That the Court of Common Pleas of Rich-land County, Ohio, was within its jurisdiction, and had authority in law, to permit the said Sheriff of Richland County to amend his respective returns of said attachments to correspond with the facts, but that said attachments were without any virtue or force in law to create a priority until on and after the dates of their respective amendments; that the several defendant banks were not suspended as preferential liens to said attachments or either of them by reason of no executions being issued thereon until the 15th day of September, 1914. That said affidavit of W. J. Weirick does not present a claim ‘arising upon contract’, within the purview of section 11819, G. C., nor does it show the ground of an attachment, to-wit: ‘Fraudulently incurred the obligation for which suit is about to be brought,’ within the purview of paragraph 10, of said section 11819, and said attachment is of no virtue or force in law by reason of such insufficiency of said affidavit.”
    “7. That said W. M. Hahn, by reason of the lien obtained by him in attachment perfected August 17, 1912, and the judgment thereafter obtained, has the sixth best lien upon said monies and funds in the sum of $1573.25, which sum is ordered, paid, provided there be money sufficient in the hands of said receiver partially or wholly to pay the same.
    “It is therefore ordered, adjudged and decreed that said receiver shall pay out and distribute said funds, to-wit:
    1. To payment of costs, receiver’s and attorney’s fees, and compensation as above set forth, and found, taxed and to be taxed at $. ..'.....
    2. To the Charles Hoffman Company,
    the sum of.................. 1,106.50
    3. To The Mansfield Lumber Com-
    pany, the sum of............. 275.34
    4. To Edward Wentz, the sum of... 3,419.51

      5. To The Richland Savings Bank
    Company................... 1,890.07
    6. To the Farmers Savings and Trust
    Company .................. 1,276.97
    7. To The Ashland Bank and Savings
    Company................... 2,176.92
    8. To W. M. Hahn, the sum of..... 1,573.25”
    Plaintiffs in error are in this court to reverse this judgment.

      Mr. C. H. Workman; Mr. W. J. Weirick; Messrs. Brucker, Voegele & Henkel and Mr. James W. Galbraith, for plaintiffs in error.

      Mr. J. E. La Dow; Messrs. Douglass & Hutchison; Messrs. Semple & Sherrick; Mr. W. S. Kerr; Mr. C. H. Workman and Mr. C. H. Huston, for defendants in error.
   Wanamaker, J.

The questions arising in this case grew out of attempted attachments by William M. Hahn and W. J. Weirick, the plaintiffs in error, and the one question that is common to both claims, as considered and determined by the courts below, relates to the sheriff’s return upon the writ of attachment. Did the attachment date from the amendment of the return or from the date of the original return?

An examination of the record herein, together with the statutes applicable thereto, discloses the fact that there is a prior and paramount question upon this return w'hich this court must consider and determine; and that is, Was or was not the amendment essential to the validity of the return?

The amendment in both returns relates solely to a report of the fact that “a certified copy of the order of attachment was left with the occupant of the residence.”

Under the statute was the amendment necessary to the validity of the attachment ?

It is a familiar and elementary rule that remedial statutes shall be liberally construed. In some states statutes of attachment have received such liberal construction, but in other states the policy of strict construction has obtained.

The general assembly of Ohio, however, has settled this question for the people and courts of this state in the following words, Section 10214, General Code:

“The provisions of part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.”

It should be observed here that the statutes relating to attachment, and the proceedings thereunder, are embraced within said “Part Third.” And hence the polestar in their construction shall be to “assist the parties in obtaining justice.”

What must be stated in a return upon a writ of attachment ?

This question is one not to be answered by the court; but one already answered by the general assembly of Ohio, by virtue of Section 11836, General Code:

“The officer shall return upon every order of attachment what he has done under it. The return must show the property attached and the time it was attached. When garnishees are served, their names, and the time each was served, must be stated. The officer shall return with the order all bonds given under it.”

Clearly there is nothing specifically said in this statute requiring the return to show that “a copy of the order” was served on the owner or occupant of the premises.

But it is urged that the first sentence of this statute is so general and comprehensive, and so imperative, as to make that duty mandatory. This answer would have much force but'for the language following, which expressly specifies certain things which the return “must” show, to-wit: 1. The property attached. 2. The time it was attached.

Here is the meat of the cocoanut. Return made upon these two facts completes the attachment and brings the property within the custody of the court, unless there are garnishees, when that fact must also appear in the return, agreeable to the statute.

It should also be noted that this same section requires that there shall be returned with the order the bonds given under it. So that we have here another specific thing to be done.

Further reference as to the return is made in Section 11826:

“Then with the freeholders, who must be first sworn by him, he shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and freeholders, and returned with the order. When the property attached is -real property, the officer shall leave with the occupant thereof, or, if there is no occupant, in a conspicuous place thereon, a copy of the order.”

Nothing here is said about the return showing that “a copy of the order” was so left.

It is an old rule of construction that where a statute specifically and expressly mentions certain things, other things belonging to the same class, or occurring at the same time, are excluded. In short, when a statute makes certain definite things mandatory, the presumption is that the other things associated therewith are not mandatory.

The old Latin maxim expressio unius est exclusio alterius has become a primary and well-settled rule of statutory construction.

In support of this contention it should be further observed that the copy of the order so served on the occupant of the premises is clearly for the sole benefit of the owner. The public have no interest in it. It is like a summons issued upon a petition. It is to advise the owner, through the occupant, that the court has seized his property awaiting the determination of a cause of action now pending in court, or to be brought in court.

The returns made by the sheriff in both the Hahn and the Weirick writs were originally sufficient in law under the statute, and, therefore, all matters pertaining to the amendments thereto become unimportant by reason of such amendments being merely so much surplusage.

A court cannot add to the requirements of a return specifically provided by the general assembly of Ohio by virtue of a statute in such case made and provided.

It should be noted, however, that the defendants in error strongly urge two Ohio cases upon the consideration of the court, The Ohio Life Insurance and Trust Co. et al. v. Urbana Insurance Co. et al., 13 Ohio, 220, and Green v. Coit, 81 Ohio St., 280.

The third paragraph of the syllabus in the first of these clearly distinguishes it from the instant case:

“An execution in favor of A. was levied upon the northwest quarter of section 35, but in the sheriff’s return it was described as being levied on the southwest quarter of that section. An execution in favor of B. was afterward levied upon the same land, and correctly described in the sheriff’s return.
“Held, that the return upon the execution of A. can not be amended so as to affect the priority of B’s lien.”

It will be observed that the defect in the return was a substantial misdescription of the real estate, upon a thing made specifically mandatory through the word “must” in Section 11836, General Code.

In the second case, the Coit case, there was also a misdescription as to the property attached, which in itself is a fatal defect under said section regulating the return, and in and of itself sufficient to support the judgment in that case.

True, the second paragraph of the syllabus holds that the provisions which make it the duty of the officer to leave a copy of the order are “mandatory requirements,” and that a return that fails to show compliance with these requirements is insufficient to give the court dominion over the property, yet, in so far as the Coit case extends the requirements of the return beyond the plain mandatory provisions of the statute, the same is disapproved.

The statute regulating what the return “must” show, rather than any previous decision of the court, is obligatory upon this court.

So far as the two cases above cited may be in conflict with this decision, the same are disapproved.

This holding disposes of all questions as to the return, and makes the Hahn attachment a. lien as of the date of the original return.

There is one question remaining as to the Wei-rick attachment, and that grows out of the affidavit. The question in short is: Was the affidavit legally sufficient to authorize a writ of attachment?

Let us examine the affidavit of Weirick in order to learn the “nature of the plaintiffs claim/” for obviously it is to this we must look in order to determine whether or not the claim was one “arising upon contract.”

The affidavit is as follows:

“W. J. Weirick, being duly sworn, says that the claim sued upon is for fraud and deception on the part of the defendant Walters to induce said Wei-rick to purchase certain shares of stock in the Mansfield Rubber Company, an Ohio corporation, doing business in Mansfield, Ohio, and engaged in the manufacture of automobile tires. That said claim is just. That the amount he believes he ought to recover is six hundred and fifty dollars and interest from May 2, 1910. That the defendant is a non-resident of the State of Ohio.”

Now, what does the statute require by way of affidavit before the attachment shall issue? Section 11820, General Code, reads:

“An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the next preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing:

“1. The nature of the plaintiff’s claim;
“2. That it is just;
“3. The amount which the affiant believes the plaintiff ought to recover; and
“4. The existence of any one of the grounds for an attachment enumerated in such section.”

This statute must be applied to the affidavit in question not with the strictness required in a criminal proceeding nor with the particularity essential in a formal pleading. It is enough if the owner is substantially advised as to the matters set forth in said section providing for the affidavit.

This affidavit clearly shows that “the claim sued upon is for fraud and deception upon the part of the defendant Walters to induce said Weirick to purchase certain shares of stock” etc.

• Any business man would understand the nature of this claim from said allegation. Read this language in a newspaper, or anything else than a law book, and any reader of average intelligence would understand it.

The language of the affidavit clearly shows that the claim arose out of a sale of stock and that said sale was brought' about by fraud and deception upon the part of the defendant Walters.

There might be a question as to whether the fraud preceded the contract or the contract preceded the fraud. This may well be left to the casuist.

One thing is quite sure, had there been no fraud there would have been no contract, and had there been no contract there would have been no fraud.

It might be more correct to say that the claim was one “arising from a contract,” or “because of a contract,” or was one “arising upon fraud that induced a contract.” But it is not the purpose of courts to play with phrases in order to juggle justice.

There was a contract of sale. The plaintiff in error paid his money pursuant to that contract. His injury was due to that contract, and no matter how deep such contract may have been steeped in crookedness and crime, within the spirit of the law this was a claim “arising upon contract.” Here is a practical illustration of “The letter killeth, but the spirit giveth life.”

It must be admitted that if the contract were an honest one, and culminated in a promissory note, upon which suit was brought, and an attachment ordered- and had, that then clearly said claim would be one “arising upon contract.” When, however, the contract made by the parties is crooked, fraudulent or criminal, and the party seeks to recover back the money paid on such contract, why should it then be held that it sounds exclusively in tort and the right of attachment does not exist?

The plain paramount purpose of this statute was to provide a remedy for an injury within the scope of the several statutes providing for attachment; that injury was not to be limited merely to honest transactions and honest debts resulting therefrom, but certainly with equal force and reason applies to dishonest transactions inducing contracts growing out of frauds and crimes. To hold that the attachment statutes related only to the former, and did not include the latter, is too absurd to require further argument. It is just such judicial jugglery that has put some courts into deserved disrepute. Such distinctions are too technical to promote justice, and the legislature evidently meant what it said when it laid down for courts the rule of construction in such cases in the following language, “shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.”

Within the provisions of this statute the claim was one “arising upon contract,” and the “nature of the plaintiff’s claim” was sufficiently shown by the affidavit.

And the further fact that the affidavit charges fraud in connection with the contract shows sufficiently that the debt or claim was fraudulently incurred.

This is not inconsistent with the claim that it arose on contract, because a contract may grow out of dishonest as well as honest transactions.

In substance and effect an attachment is after all only an execution in advance. It subjects the property to the satisfaction of a debt, if the debt be properly proved as pleaded. Naturally there must come a time when that attachment shall ripen into an execution, which execution shall date from the time of the attachment. The attachment is subject to dissolution at the instance of the debtor. If no motion is made to dissolve it, if it is permitted to stand until the final adjudication, it is then too late for any other person in another or independent proceeding to attack or assail its validity. It is clearly too late for the defendant in the original proceeding to attack it.

It must follow that it is likewise too late for third parties in another proceeding to attack it.

The judgment of the court of appeals is reversed and the cause is remanded to the court of appeals for such other and further proceedings in accordance with this judgment and opinion as may be agreeable to law.

Judgment reversed.

Nichols, C. J., Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.


text:
    The First National Bank of Van Wert v. Houtzer et al.

      Suretyship contract — Construction of terms — Presumption as to intent of parties — Liability upon dissolution of partnership — Bank credit.

    (No. 15343
    Decided May 29, 1917.)
    Error to the Court of Appeals of Van Wert county.

      Mr. H. L. Conn and Mr. Hathaway Kemper, for plaintiff in error.

      Mr. H. C. Glenn, for defendants in error.
   By the Court.

The whole question in this case turns upon the matter and meaning of two certain suretyship contracts executed by the defendants in error in favor of the plaintiff in error.

The first contract is of the date of October 7, 1896, and the pertinent parts thereof read as follows:

“The condition of the above obligation is such that, whereas, the above named V. H. Houtzer and Son, V. H. Houtzer, W. H. Houtzer is now indebted to said Bank and wishes hereafter to use his credit and create other indebtedness to said Bank by way of renewals and new obligations and said Adaline Houtzer and Lodema Houtzer intends to and does hereby become surety for said V. H. Houtzer & Son, V. H. Houtzer, W. H. Houtzer, and this is to give V. H. Houtzer & Son, V. H. Houtzer, W. H. Houtzer credit at said bank to the extent of Fifteen Hundred Dollars. Now if the said V. H. Houtzer & Son, V. H. Houtzer, W. H. Houtzer shall pay to said The First National Bank of Van Wert, Ohio, all and any indebtedness and obligations he or either or any of them [italicized words interlined in pen and ink] may owe to said Bank, on notes, now owing, or hereafter given, drafts, checks, accounts,” etc., “and all renewals of any of them and every other indebtedness he or either or any of them [italicized words interlined in pen and ink] may owe to said Bank in any form or character said indebtedness may assume,” etc.

This contract is signed V. H. Houtzer & Son, V. H. Houtzer, Adaline Houtzer, W. H. Houtzer, Mrs. Lodema Houtzer, and witnessed by several signatures.

The second suretyship contract is of the date of June 22, 1904, and of similar import, signed by the same parties, and given to the same bank.

The pertinent part thereof is as follows:

“The condition of the above obligation is such that, whereas, the above named V. H. Houtzer & Son, V. H. Houtzer and W. H. Houtzer, is now indebted to said Bank and wishes hereafter to use his, their and its [italicized words interlined in pen and ink] credit and create other indebtedness to said Bank by way of renewals and new obligations and said Adaline Houtzer and Lodema Houtzer intends to and does hereby become surety for said V. H. Houtzer & Son, V. H. Houtzer and W. H. Houtzer, and this is to give V. H. Houtzer & Son, V. H. Houtzer, W. H. Houtzer credit at said bank to the extent of One Thousand Dollars. Now if the said V. H. Houtzer & Son, V. H. Houtzer, W. H. Houtzer shall pay to said The First National Bank of Van Wert, Ohio, all and any indebtedness and obligations he, they and it [italicized words interlined in pen and ink] may owe to said Bank, on notes, now owing, or hereafter given,” etc., “and all renewals of any of them and every other indebtedness he, they or it [italicized words interlined in pen and ink] may owe to said Bank in any form or character said indebtedness may assume and in any relation that he may be liable thereon, then this obligation shall be void.”

Mortgages were executed to secure the full satisfaction and execution ■ of said suretyship contracts and were signed by the same parties.

The world’s business to-day is done by contract and most of those contracts take the form either of some formal writing or informal memorandum.

When the written contract appears on its face to be full and complete and to bear the signatures of all the parties to said contract, the terms and provisions, as written in the bond, must control the rights and obligations of all parties thereto, unless said contract be challenged as contrary to public policy, as having been procured by fraud, or as needing reformation in equity because of some mutual mistake. There is no such challenge appearing on this record, and the only question appearing before this court is, What is the contract between the parties ?

If the words and terms of the contract are plain and clear, there is neither room nor right for any court to attempt construction.

The parties under the issues in this case are presumed to have intended to contract in the manner and form in which they did contract. ' They are presumed to have intended to have given to the language of the contract the ordinary and usual meaning given to such language.

True, this is a suretyship contract, and the rule has been well established for many years that such shall be strictly construed in favor of the surety. But that does not warrant a court in reading into a contract something that is not there by act of the parties, whether that something be a word, phrase or clause, varying the terms of the contract, or in reading into the contract doubt and ambiguity where the meaning is perfectly clear.

The rule of reason applies to the understanding and application of all contracts. Here we have a business firm dealing with a business bank to obtain the necessary credit to enable said firm to carry on its business, which presumably furnished a livelihood for said firm and the families represented therein, including of course their wives, who became sureties on these bonds. No claim is made that the bank did not advance the money to the partnership, or to one or the other of its members.

The sole question is as to whether or not the sureties are liable for the amount of the bond, which at most would be but a small part payment of the total furnished by the bank to the partnership, or its members, under the bond.

The language of the first bond, “he or either or any of them,” as well as the language of the second bond, “he, they and it,” is so broad and comprehensive that it clearly includes not only the firm, but each member thereof as individuals, and it is quite manifest that the parties must have so understood it; at least the law' presumes such understanding in the face of this simple and ordinary every-day language.

The very foundations.of business make it obligatory that all parties shall fully and faithfully carry out the terms and conditions of each contract according to its spirit and purpose as shown by the four corners of the contract.

The most superficial reading of these contracts clearly shows the wives of these partners were simply pledging certain interests in property in order that the bank might extend future credits to their husbands who were conducting the business.

The mere fact that one of the husbands died, dissolving by law the partnership, does not, in face of the language especially written into the formal contracts above quoted, in any wise lessen the liabilities of all parties to the bond. The construction placed by the court of appeals on these contracts absolutely ignores or destroys the language above quoted, and-in fact the principal obligations created by the bonds.

The parties made their own contracts. It is neither the right nor privilege of this court to make new ones for them. They took the benefits thereunder and they must now assume the burdens.

It is wholly immaterial as to whether the liability to the bank was incurred before the partnership was dissolved, or after. Partnership names mean nothing. Business may be conducted by an individual under a partnership name that is founded on the name of a deceased partner. The liability of the husbands in this case, who were parties to the bond, was not merely joint, but joint and several, and under the terms of the suretyship contracts their liability and the liability of the sureties was a continuing liability. It is clear that future credit by the bank to enable the Houtzers to continue the business was the chief purpose of the making of these contracts, and that the extension of credits was thereby effected.

It is the duty of courts to look to the substance of things and hold the parties responsible according to the actual facts and conditions of their written obligations and what was done pursuant thereto.

There is nothing for this court to interpret. The language is plain and clear, and effect must be given to all of it as written in the bond.

Therefore, the judgment of the court of appeals is reversed and judgment rendered for plaintiff in error.

Judgment reversed and judgment for plaintiff in error.

Wanamaker, Newman, Jones, Matthias and Johnson, JJ., concur.

Nichols, C. J., not participating.


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    The State of Ohio v. Lopa.

      Evidence — Impeaching or cumulative in character — Testimony as to sound — Question of prejudicial error — Court procedure — Death from assault—Criminal law.

    (No. 15468
    Decided May 29, 1917.)
    Error to the Court of Appeals of Allen county.

      Mr. John L. Cable, prosecuting attorney, and Mr. O. O. Barr, for plaintiff in error.

      Mr. Joel G. Hersh and Mr. W. W. Sutton, for defendant in error.
   By the Court.

The defendant in error, Nick Lopa, was tried and convicted of murder in the second degree. The court of appeals reversed the conviction on two grounds: first, that a new trial should have been awarded by the trial court because of newly discovered evidence; and, second, for the refusal to rule from the jury certain evidence given by Estella Lawler, a witness for the state. The state prosecutes error to this court.

The testimony of the state tended to show that at the time of the assault there were two persons present in the room with the defendant, viz., James Patton, the deceased, and a woman by the name of O’Reagan; that after Lopa’s assault upon Patton, Patton left the house and did not thereafter return. The defendant testified in his own defense, claiming that Patton after leaving the house returned and made an assault upon him.

After conviction, upon a motion for a new trial, in support of the claim of newly discovered evidence, the defendant offered the affidavits of two witnesses tending to support the claim of the defendant and to contradict the testimony of the O’Reagan woman, and to the effect that after Patton had left Lopa’s house he returned thereto, as testified to by the defendant.

It is manifest that this newly discovered evidence proffered on the motion was in its nature both impeaching and cumulative. It was the former in that it tended to impeach the statements of the O’Reagan woman, and cumulative in that it supported the testimony of the defendant upon the issue whether Patton returned to the defendant’s house” as claimed.

The granting of a motion for a new trial upon the ground named is necessarily committed to the wise discretion of the court, and a court of error cannot reverse unless there has been a gross abuse of that discretion. And whether that discretion has been abused must be disclosed from the entire record. The rule of procedure in this regard has been frequently announced by this court. The new testimony proffered must neither be impeaching nor cumulative in character. Were the rule otherwise the defendant could often easily avail himself of a new trial upon the ground claimed. Unless the trial court or court of error, in view of the testimony presented to the court and jury, finds that there is a strong probability that the newly discovered evidence will result in a different verdict, a new trial should be refused.

In this case were the evidence proffered not impeaching and cumulative in character, we hold that the evidence tendered in the affidavits would probably not change the result, especially in view of the written confession made by the defendant.

The ground of newly discovered evidence was also supported by the affidavit of one Dr. Stafford, which purported to give a statement made by Patton just previous to his death. It is sufficient to say that Stafford was called as a witness on behalf of the state, and was cross-examined by the defendant’s counsel, who knew that Stafford was with Patton just prior to his death. Counsel for defendant had full opportunity then to develop, by way of cross-examination, the fact which is now claimed to be material for the defendant, and since that was not done, counsel cannot now claim the privilege of future development.

Estella Lawler, a witness for the state, testified that she was present at Lopa’s house just before the assault; that Lopa left the room where she was. She was then asked this question:' “Q. And what did he do ? A. I could not swear what he did, but I heard something in this room, — this adjoining room that he' left, like somebody would be whetting something of some kind or grinding it.” The witness later said that when Lopa returned she noticed a knife in his right hip pocket.

The court of appeals held the answer quoted to be prejudicial error, Upon authority of Crowell v. Western Reserve Bank, 3 Ohio St., 406. The case cited was .'not applicable. The answer of the witness was not merely the expression of an opinion or an impression gained from a conversation, as in the Crowell case, but was a description of the sound which could be described probably in no other manner than the answer employs, and it was not error for the trial court to refuse to rule out the answer.

For the reasons stated the judgment of the court of appeals is reversed, and that of the common pleas is affirmed.

Judgment reversed.

Nichols, C. J., Wanamaker, Newman, Jones, Matthias and Johnson, JJ., concur.