Volume 57 — Ohio State Reports, New Series

The plaintiff in error, Edson Prance, was indicted by the grand jury of Sandusky county for the offense of practicing medicine in that county without having obtained from the Board of Medical Registration and Examination the certificate required to entitle a person to practice medicine, in this state.

<p>Post nuptial agreement — Release by each party of all interest in property of other — Husband died intestate and without issue— Widow may inherit property of husband.</p> <p>A husband and wife made and entered into an agreement of separation, whereby the husband conveyed to the wife certain real estate, paid her $500.00 in money and allowed her to remove her own furniture, and both then stipulated, that “ each party releases any and all claim, right, title or interest, either vested or contingent in or to any property, present or future acquired, belonging to the other.’ ’ The wife survived the husband, who died intestate and without issue, leaving certain real estate, subject to descent as non-ancestral property under the provisions of section 4159, • Revised Statutes. Held: That the effect of the language was to give to the husband of the wife the full dominion of his own property, with power to dispose of it by will or otherwise, without the assent of the wife during her life, but did not affect her right to inherit from him as his widow any property of which he died seized.</p>

These cases were orally argued before the different divisions of the court, but in view of the similarity of the question presented, they have been considered by the whole court upon the briefs presented as well as upon the 'points made in the oral arguments.

This action was brought in the court of common pleas of Cuyahoga county to enforce the statutory liability of holders of stock in the Tippecanoe Stone Company, a corporation created under the laws of this state and located in Harrison county. The Tippecanoe Stone Company had become insolvent and on August 29, 1889, assigned its property to A. C. Dustin for the benefit of its ereditors.

James E. Allen, plaintiff in error, was, on the 14th day of January, 1893, sheriff of Ashtabula county, and had two writs to serve on parties at Conneaut in said county, and the most direct and convenient way to reach his destination was to go from Jefferson, the county seat, to Ashtabula, and thence to Conneaut on the L. S. & M. S. Railway.

In Mandamus. The question is presented on a demurrer to the answer; but in fact arises on the sufficiency of the petition, which is searched by the demurrer to the answer. The object of the petition is to compel the defendants to employ the relator, or some other honorably discharged soldier of the late rebellion, as janitor of the court house, he the relator, being such a soldier, a resident of the county, and having all the requisite qualifications for such place.

The plaintiff in error, Joseph B. Harris, was tried on an indictment based upon sectioa 6818, Revised Statutes, which in one count charged the crime of robbery, and in a second count charged the crime of pocket-picking, averring the property to be of the value of three dollars.

Exceptions to the ruling of the Common Pleas Court of Fairfield county.

<p>Alimony— Wife obtains decree of divorce — Cannot later obtain alimony by separate action.</p> <p>Where a wife obtains a divorce from her husband in this state without a decree for alimony, he being personally served with process, she cannot thereafter maintain a separate action against him for alimony.</p>

<p>Counsel fees — Assessments assigned by municipality to contractor — Unsuccessful suit against lot owners — Counsel fees not recoverable in subsequent action.</p> <p>Counsel fees and other expenses paid by a party in the conduct of an unsuccessful suit against lot-owners to recover the amount of a sewer assessment assigned, by a municipal corporation to such party, in payment for the construction of a sewer which suit failed because the assessment was held invalid, are not recoverable in an action subsequently brought against the corporation for damages for violation of contract even though by its contract the corporation had stipulated that the assessment should be a valid assessment.</p>

The National Bank of Commerce, commenced an action in the court of common pleas against the Rolling Mill Company, to recover $38,956.79, on several notes and bills of exchange set out in its petition. The bank also filed' an affidavit for an attachment, on the ground that the defendant had fraudulently contracted the debt for which the suit was brought.

The written instrument of which the following is a copy, was duly executed by the parties there bo and-properly recorded: “Memorandum of agreement, made and entered into this 16th of December, 1887, by and between William Snyder and Cordelia Snyder, of Hancock county, Ohio, of the first part, and Carey C. Harris, of the second part, witnesseth: “That the party of the first part for the consideration of one dollar and other considerations in hand paid, and the covenants and…

Circuit Court of Hamilton county. This action was brought against the city of Cincinnati, by Henry Emerson, defendant in error, in the court of common pleas of Hamilton county, to restrain the collection of an assessment, made by the city upon a corner lot owned by him, on account of an improvement of the street that ran lengthwise along the side of his lot. The action was tried in the court of common pleas and judgment given in favor of the city.

The plaintiff in error, William G. Ward, was sheriff of Lawrence county, Ohio; the defendant in error, James C. Russell, was probate judge of the same county. Held: that the sheriff was entitled to mileage for such assistant, and gave judgment accordingly. The circuit court-reversed this judgment. Thereupon the plaintiff in error brought the cause to this court to obtain a reversal of the judgment of the circuit court, and to reinstate that of the court of common pleas.

<p>Error to the Circuit Court of Erie county.</p> <p>On the 1st day of April, 1887, the parties in this ease entered into a written agreement, by which the defendant in error let to the plaintiff in error, certain premises in the city of Sandusky, “for the full term of five years next ensuing, and fully to be completed and ended on the 29th day of March, 1892;” the plaintiff in error agreeing to pay rent for the premises, “during the said term of five years, at the rate of three hundred and eighty-six dollars per year, payable monthly.”</p> <p>The written instrument was not acknowledged by either of the parties, nor was it recorded; but the plaintiff in error entered into possession of the premises under it, and continued in their occupancy, paying the rent according to the stipulations of the agreement, until the expiration of the term of five years. After the expiration of that term, without any new agreement or arrangement with the defendant in error, the plaintiff in' error held over, continuing in the possession of the premises, and paying rent therefor at the rate, and in the manner provided in the written instrument, until the 1st day of September, 1892, at which time it abandoned the premises without the consent of the defendant in error, and , refused to pay rent thereafter. The defendant in error, claiming that he was entitled to the rent for the whole of the year ending March 29, 1893, notwithstanding the abandonment of the premises, brought his suit therefor, after the expiration of the year; and, upon the foregoing state of facts, recovered a judgment for the amount of the rent from September 1, 1892, to March 29, 1893, at the rate fixed by the written agreement, with interest. That judgment was affirmed by the circuit court, and the plaintiff in error seeks a reversal in this court.</p>

<p>furisdiction of common pleas court over its own orders — Nunc pro tunc order — Assignment for creditors — Sale of chattel property by assignee — Respective rights oj conflicting mortgagees— Section 4155, Revised Statutes.</p> <p>1. The control of a court of common pleas over its own orders and judgments during the term at which they are rendered, and the power to vacate or modify the same at discretion, is not affected by the incidents that a motion for a new trial has been heard and overruled, and that a bill of exceptions has been taken. And where an order vacating and ■ setting-aside such order overruling the motion, has in fact been made at the term at which it was entered, but by inadvertance no entry of the same has been made upon the journal, such omission may be supplied by an order nunc pro tunc at the succeeding term.</p> <p>2. Where, in the administration of an assignment for the benefit of creditors, the assignee, having sold chattel property which is subject to certain conflicting mortgage liens, held respectively by S. and H., and having filed a proper application for the purpose of bringing the mortgagees into court, in order that their conflicting liens and claims to the fund may be adjudicated, and the same are set up by proper pleadings, and it appears that either claim, with the costs, will exhaust the entire fund, leaving nothing for general creditors, and the question for the court is found to be only one of priority and of distribution, the controversy becomes one between the mortgagees alone, and is to be determined solely by a consideration of the respective claims of the mortgagees as between themselves.</p> <p>3. In such case, the settled rule that a person taking a subsequent mortgage of chattels with actual notice of an unsatisfied prior mortgage on the same property is not a mortgagee in good faith within the meaning of section 4155, Revised Statutes, applies. And where it appears that S. has a mortgage which was not refiled within the yefir after its first filing, and another given later upon the same property to secure the same debt, duly filed before the assignment, and that the mortgage of H. was taken and duly filed before the second mortgage of S., and after the expiration of the year from the filing of the first mortgage of S., but with actual notice of that mortgage, the lien of S., by virtue of the first mortgage, will be held superior to the lien of H., although such mortgage, by reason of the failure to refllo it in conformity to the statute, would be invalid as against general creditors.</p>

George Lowry brought an action in the court of common pleas against William R. Anderson, defendant, seeking to cancel and set aside a license given by him to Mr. Anderson to manufacture a rock breaker and ore crusher under letters patent held by Mr. Lowry. The grounds alleged for the cancellation of the license were that Mr. Anderson had failed to comply with the conditions of the license, which failure avoided the same. The answer was in effect a general denial.

<p>Contract for labor or material — Part performance — Breach of contract — Right of performing party.</p> <p>1. Where a contract for the performance of labor or the delivery of material is wrongfully terminated by one party, after part performance by the other, the right of the party performing', to recover the value of the labor performed or material furnished, irrespective of the contract price, depends upon the question, whether having regard to the contract, the party wrongfully terminating it, would thereby enrich himself at the expense of the other. Doolittle v. McCullough, 12 Ohio St., 360, distinguished and limited.</p> <p>2. Where one party who, to obtain a permanent market for his coal for a certain time, had entered into a contract to deliver to another the coal the latter might need in his business at a fixed price per ton, for one year, and the market price was then known to vary with the season, being higher in the late fall and winter months, and lower for the other months of the year, furnished the coal and was paid therefor under the contract, during the season when the market price was higher 'than the contract price, and the other party then wrongfully terminated the contract and refused to receive any more coal, the contract and market price being then about the-same: Held, that the party furnishing the coal, may waive the contract and maintain an action on its wrongful termination for the difference between the contract price and the market price, at the time the coal was delivered.</p>

The first entitled action was brought in the common pleas of Lucas county by the filing of a peti-. tion, copy of which follows: The Board of Commissioners of Licas Co., Ohio, plaintiff, v. Charles H. Jones, Auditor of Lucas Co., Ohio, defendant. “Petition for submission of case under section 5207, Revised Statutes of Ohio. “The said plaintiff and defendant represent that the plaintiff is the duly constituted board of commissioners of Lucas county, Ohio, and that the…

<p>Party device on ballot — Requirements for — Duty of state supervisor of elections — Section %966-%5, Revised Statutes.</p> <p>The state supervisor of elections is not required by section 12 of the Australian Ballot law (Bates’ Revised Statutes, section 2966-25), to cause to be printed on the ballots to be used at an election, a device selected and certified by a state convention which did not represent a political party that at the next preceding election polled at least one per cent, of the entire vote cast in the state: nor a device certified in nomination papers for a ticket nominated by that method.</p>

Exception to a decision of the Common Pleas of Portage county. John Ruedy was tried before a justice of the peace' of Portage county, and found guilty of selling oleomargarine which contained coloring matter, and was sentenced by the justice to pay a fine of $50.00, and the costs of prosecution.

This action was brought by the defendant in error against the plaintiffs in error, to enjoin them from fishing and hunting in waters which are claimed by the shooting club to lie on both sides of the Sandusky river and Mud creek, southwest of Sandusky bay. Henry Bodi, and those joined with him in the action claim that those waters constitute an open navigable bay in which the rights of navigation and fishing ar vested in the public.

The action in the court of common pleas, was one in which an appeal would lie to the circuit court.

Possession was delivered to the son, and he made valuable and lasting improvements. The father signed and acknowledged a deed to James for the lands, but retained possession thereof, and the same was never delivered, and it was not intended to be delivered until the balance of the purchase money should be paid. James, the son, died intestate in 1878, still owing his father two thousand, two hundred dollars, of the purchase money.

<p>Error to the Circuit Court of Ross county.</p> <p>The case is sufficiently stated in the opiuion.</p>

The suit below was commenced in the common pleas of the county, by the Cincinnati Camp Meeting Association of the Methodist Episcopal Church, incorporated under the laws of this state, against the auditor of the county to enjoin him from assessing the lands of the plaintiff for taxation and causing the taxes to be collected by placing them on the duplicate, on the ground that it is organized and holds all its property, for purposes of purely public charity, and that the same…

The plaintiff’s action was commenced in the court of common pleas, April 22, 1892, by the filing of a petition alleging in substance, that the plaintiff was, and has been for more than twenty-one years, the owner of, and in undisputed possession of certain lots in the city of Toledo; that the defendant company, and the other defendants, its officers, with full knowledge of plaintiff’s ownership and possession, had entered upon said land and placed stakes, etc., thereon, and…

The errors complained of in these two actions, were rulings of the court of common pleas, dismissing the appeals, taken by the plaintiffs respectively, from judgments of the probate court sustaining exceptions to their respective-accounts. The facts will appear in the opinion of the court.

<p>Error to the Circuit Court of Greene county.</p>

The plaintiff in error was plaintiff below. The cause came on for hearing in the circuit court on appeal, upon the following petition and supplemental petition: The defendant is a corporation formed and organized under the laws of Ohio. “One John F. Hastings, of Findlay, in said county, is owner in fee seized and possessed of one hundred and sixty-five acres of valuable mineral oil land, in Findlay, Ohio, and .more particularly designated as the west half of the northwest…

Miss Woodburn brought an action in the court of common pleas against Mrs. Morris, and the city of East Liverpool, to recover on account of personal injuries sustained by her being precipitated into a coal vault under a sidewalk in the city, and in front of abutting premises owned by Mrs. Morris, and occupied by her tenant.

This action was brought in the court of common pleas of Wood county, by the village of Bowling Green, to recover of the Railroad Company, plaintiff in error, a sum of money to reimburse the village for expenditures incurred by it in maintaining electric lights at certain places that by ordinance it had required the railroad company to maintain, and which the latter had neglected to do.

<p>BUI of exceptions — On overruling of motion for new trial — Must be presented to opposite counsel — Trial judge loses jurisdiction over subject-matter, when — Rule as to voluntary submission to jurisdiction.</p> <p>1. A bill of exceptions taken on the overruling of a motion for a new trial, must be presented to opposite counsel for examination and to the trial judge for his signature, in the time prescribed by statute. If this is not done, the trial judge loses his jurisdiction over the subject-matter, and his approval and signature thereafter against the objection of the opposite counsel is of no avail. And this is not varied by the fact that prior thereto, but after the time for its presentation to opposite counsel and to the trial judge, had elapsed, a stipulation had been signed by the former, authorizing the judge to sign the bill, but was withdrawn before-its presentation to the judge.</p> <p>2. In order to enable a defendant to object to the jurisdiction of the court over his person, the objection must be made at the earliest opportunity of the party. If before making such objection, the party appears and makes a motion that the plaintiff be required to attach an account of the items of his claim to his petition, or, that he be required to separately state and number his causes of action, or, that he be required to strike certain matter from his petition, in either of these cases, the party voluntarily submits himself to the jurisdiction of the court, and he cannot afterwards be heard to object thereto.</p>

The defendant in error commenced his action against the plaintiff in error, by filing in the court of common pleas of Richland county, a petition of which the following is a copy, viz.: aThe plaintiff says: That on the first Monday of April, 1895, he was, and still continues to be, an elector and resident of the seventh ward of the city of Mansfield, Richland county, Ohio, and on that day at said city election, he was duly elected by the voters of said ward, one of its…

The Elyria Gas and Water Company, the plaintiff in error, a corporation, and resident tax-payer of the city of Elyria, brought suit- against the city and its mayor and clerk, to enjoin the issue and sale of bonds of the city for the purpose of raising a fund with which to build water-works.

<p>In Quo Warranto.</p>

<p>In Quo Warranto.</p>

<p>In Quo Warranto.</p>

The plaintiff brought suit in the court of common pleas for the foreclosure of a mortgage. Upon issues of fact joined the cause was there determined, and an appeal was taken to the circuit court.

<p>Erection of armory — Use of national guard, — General purpose oj state — Invalidity of act of April £7, 1898 — Constitutional Law.</p> <p>1. The erection of an armory for the use of the national guard is a general purpose of the state, and taxes to be devoted to that purpose, must, in obedience to the requirement of section 2, of article 12 of the Constitution, be levied by a uniform rule upon all the taxable property within the state.</p> <p>2. The act of April 27,1893, (LocalLaws, vol. 90, p. 115,) entitled “ an act to authorize the commissioners of any county containing a city of the first class, second grade, to borrow money and issue bonds therefor, for the purpose of building and furnishing a central armory in any such city for the use of the Ohio national guard, and procuring a site therefor ’ ’ is void, being an attempt to make such general purpose the subject of a local imposition.</p> <p>(Wasson et al. v. The Commissioners, 49 Ohio St., 622, followed and approved.)</p>

Tbis action was brought in tbe court of common pleas of Wayne county by Hannab Jackson, plaintiff in error, to recover of tbe defendant in error, as executor, compensation for personal services rendered by ber in ‘ ‘nursing, feeding, washing the person and clothing” of the testator, while he was “sick and confined to his room” during the last years of-his life.

<p>Sale of building materials — In another state and delivered in this state — Right of mechanics' lien — Law of inter-state contract.</p> <p>One, who, in another state, sells and delivers tó a principal contractor, materials to be transported by the latter to this state and used by him here in constructing a public improvement, is entitled to the same rights under the mechanics’ lien laws of this state, that one may assert who sells and delivers, within this state, materials to be thus used. To apply to such a transaction the mechanics’ lien laws of Ohio, is not giving to them an extra territorial operation.</p>

<p>Action by receiver of corporation — Collection of unpaid stock subscription — Nature of suit — Defendants residing out of county— Method of service.</p> <p>3. An action to collect an unpaid subscription to the capital stock of a corporation, instituted by a receiver appointed under chapter 5, div. 7, of title 1, Revised Statutes, to wind up the affairs of the corporation, is a suit at law to recover a money judgment.</p> <p>2. It is not proper practice for such receiver to join in one action all delinquent stockholders as defendants, those who reside out of the county where the suit is brought as well as those who reside within such county, and issue summons to another county to obtain service upon such non-residents.</p> <p>3. Where this method of service is ttempted. a proper motion to set aside the service and quash the summons will be sustained.</p>

<p>Error to the Circuit Court of Perry county.</p> <p>The action in the courts below was brought by Upton Holland, defendant in error, against William E. Detlor and others, plaintiffs in error, seeking to quiet title to eighty acres of land, the possession of which was in the plaintiff below, and the defendants below claimed some interest therein under two several oil and gas leases. The validity of one of the leases depends hpon the construction to be placed upon a conveyance of a mining right in the same lands.</p> <p>Issues were joined involving the questions disposed of in the opinion. The material facts of the case, as shown by the record, are as follows:</p> <p>Francis G. Deaver made a conveyance of a mining right in said lands to Michael L. Deaver as follows:</p> <p>“Do hereby grant, bargain, sell and convey to the said Michael L. Deaver, his heirs and assigns forever, all the coal of every variety and all the iron ore, fire clay and other valuable minerals in, on, or under the following described premises, * * * together with the right in perpetuity to the said Michael L. Deaver, or his assigns, of mining and removing such coal, ore, or other minerals, and the said Michael L. Deaver, or his assigns, shall also have the right to the use of so much of the surface of the land as may be necessary for pits, shafts, platforms, drains, railroads, switches, sidetracks, etc., to facilitate the mining and removal of such coal, ore, or other minerals and no more. ’ ’</p> <p>Afterward, Michael L. Deaver made and delivered an oil and gas lease of these lands to one James W. Taylor, claiming that he had title to the oil by virtue of the said mining right. James W. Taylor assigned this oil and gas lease to one of the defendants below, and said lease had not expired by limitation, at the commencement of this action.</p> <p>After granting said mining right, Francis G. Deaver died, leaving two sons, one of full age and the other a minor for whom a guardian was appointed in the state of Wisconsin, where they both resided.</p> <p>After the death of the father, the two sons by separate deeds conveyed the lands to Upton Hoiland, the plaintiff below. The deed from the son, who was a minor, is signed by himself and his guardian, but there is nothing to show any proceedings in any court authorizing the making of the deed, but Mr. Holland went into possession of the lands under said deeds, and has held the same ever since. The said conveyances and lease were all properly recorded.</p> <p>On the twenty-sixth day of May, 1893, Upton Holland and wife, and William E. Detlor and his associates, executed and entered into a written instrument as follows:</p> <p>“This lease made and entered into this twenty-sixth day of May, A. D. eighteen hundred and ninety-three, by and between Upton Holland, party of the first part, and W. E. Detlor, James P. Lang, Henry Rosier and William Rosier, parties of the second part, witnesseth, that in consideration of the covenants herein contained and by said second parties to be performed, do hereby grant ulito second party, their heirs and assigns, the sole right to produce petroleum and natural gas from the following named tract of land, situate in Monroe township, Perry county, Ohio, to-wit: The northeast quarter of the northeast quarter of section twenty-seven (27), township twelve (12), range fourteen (14), in said county, containing about forty acres (40), reserving five acres (5) around the buildings to be located by first party, and whereon there shall be no wells drilled by either party, specifically granting to said second party for and during the term of ninety (90) days from this date and as much longer as oil or gas is found, operated and produced in paying quantities, with the exclusive right to drill and operate oil and gas wells, to lay and operate pipe line, the necessary rights of way over premises: the use of enough land on which to preserve the products of such wells; to erect such buildings as may be necessary to carry on such work, the right of sufficient gas and water from the premises to run the necessary engine, reserving to first party all wells now on said premises, the right to remove all machinery, buildings and fixtures, belonging to them and the full rights to release and subdivide said premises.</p> <p>In consideration for which the second party covenants and agrees as follows: To use and occupy only so much of said lands as may be actually necessary for the purpose herein granted. 2d To complete one well in addition to the one already on said premises in ninety (90) days from said date, unavoidable casualties excepted, and to continue to complete one well each succeeding ninety (90) days thereafter until four (4) wells have been completed on said premises, provided that oil is found in paying quantities in such succeeding wells. 3d. To pay said party of the first part one hundred dollars ($100) upon the delivery of this lease and to pay said first party his attorney fees herein. 4th. To pay all increase taxes by reason of such oil operations and all damages to fences and growing crops. 5th. To deliver to first party in pipe lines free of charge the one-eighth part of all the oil they may produce and save from said premises. 6th. To pay first party for each well from which gas is obtained and marketed the sum of two hundred dollars ($200) per year, first payment to be made at Corning, Ohio, thirty (30) days after the sale of said gas and thereafter yearly in advance at the same place so long as sale of gas continues.</p> <p>Provided that if second party shall violate any of the conditions of this lease on their part to' be kept and performed, then this lease shall cease, terminate and be void at the option of the first party, and all moneys paid hereon be forfeited to the party of the first part.</p> <p>It is understood by the second party hereto that one M. JL. Deaver claiming the oil and gas under premises prior to this date leased the oil and gas to one J. W. Taylor, said second party accepts this lease knowing said fact and agrees to operate this land and not to recognize said Deaver claim, and to pay all royalty to said first party as herein stipulated, and protect said first party against any loss by reason of any litigation upon the part of said Deaver. In witness whereof, we, the first and second parties, have hereunto set our hands the day and year above written.”</p> <p>Said instrument was signed by all the parties, and was duly attested, and was acknowledged by the grantors, but was never recorded.</p> <p>After the expiration of ninety days, and after Mr. Holland had notified the grantees that the term of the grant had expired, they drilled one well on said lands, and thereafter drilled another ,well, but always refused to pay plaintiff below any royalty for oil produced, and denied his right to royalty, and claimed all the oil themselves under the James W. Taylor lease. All the wells were drilled without the consent of plaintiff below, and against his protest, both in writing and verbally. The grantees paid the one hundred dollars at the time the grant was delivered, and did not comply with any other condition of the lease. At the time said mining right was granted, petroleum oil was produced in small quantities within ten to twenty miles of these lands.</p> <p>: The cause was tried in the circuit court on appeal, and the court stated its findings of facts and conclusions of law separately, and rendered a decree in favor of the. plaintiff' below quieting his title to the lands as against the defendants below, and sustaining the right of the plaintiff below to the oil and gas in said lands.</p> <p>A motion for a new trial was made and overruled and exceptions taken, and a bill of exceptions containing all the evidence, was also allowed and made part of the record.</p> <p>Thereupon the defendants below filed their petition in this court, seeking the reversal of the judgment of the circuit court.</p>

<p>Appeal was taken to the court of common pleas, from an order of the probate court, of Hamilton county, directing the distribution of a fund in the hands of the assignee of P. Wilson’s Sons & Co., an insolvent copartnership. In the appellate court the cause was submitted upon an agreed statement of facts concerning the matter in dispute, which is as follows:</p> <p>“The firm of P. Wilson’s Sons & Co. was a partnership, consisting of Chas. P. Wilson, John Wilson, Herman Besuden, and William II. Besuden, and having its place of business in Cincinnati, Ohio. The firm made an assignment in June, 1892, to F. Jelke, Jr. All of said partners lived in Cincinnati township, except Wm. H. Besuden, who lived in Millcreek township, Hamilton county, Ohio, On the 22d day of December, 1890, said firm made a chattel mortgage for $20,000.00, and one for $10,000.00, to Edwin Besuden•, and on the--day of June, 1892, it made a third chattel mortgage, for $25,000.00, to Henry Besuden; all of which mortgages were on the same property covered by the plant, machinery, tools, fixtures, stock, etc., of said firm. All of said mortgages were properly filed in the recorder’s office of Hamilton county; but none were filed or recorded with the clerk of Millcreek township. When the mortgage for $25,000.00 was made to Henry Besuden, said Henry Besuden had actual notice and knowledge of the prior mortgages which had been given to Edwin Besuden, which said notice was also had by all the general creditors of the firm; and all of said mortgages were received and given for money advanced to the firm at the time of the execution of said mortgages. It is further agreed that the property covered by said mortgages was sold by this assignee, and out of the fund realized therefrom a dividend of ten per cent, was ordered to be paid to all the creditors ox said firm. ’ ’</p> <p>The common pleas rendered the following judgment: “This cause came on this day to be heard and was submitted to the court on the transcript from the probate court of this county, the original papers in the case and the evidence, and on consideration thereof the court find the chattel mortgages on their stock, machinery, and fixtures, in Cincinnati, Ohio, given by the firm of P. Wilson’s Sons & Co. to Edwin Besuden, dated December 22, 1890, and filed oh the--in Cincinnati township, Hamilton county, Ohio, where three members of the firm reside, but never filed in Millcreek township, Hamilton county, Ohio, where the fourth member of the firm resided, and the chattel mortgage given by said firm on the same property to Henry Besuden, dated June, 1892, and filed on June, 1892, also in Cincinnati township, Hamilton county, Ohio, but never filed in Millcreek township, Hamilton county, Ohio, are all void; and that said Henry Besuden and other creditors had notice of the said existing mortgages to Edwin Besuden; and that said Henry Besuden and Edwin Besuden are each entitled to share equally and ratably with all other genera] creditors of said firm of P. Wilson’s Sons & Co. in the distribution of the fund in the hands of the assignee for the benefit of creditors of said firm of P. Wilson’s Sons & Co., which fund is the proceeds of said property covered by said chattel mortgages; and that said Edwin Besuden is entitled to no priority over said Henry Besuden in such distribution. It is therefore ordered that said assignee pay to said Henry Besuden on his claim the same dividend of 10 per cent, which has been paid to Edwin Besuden and to the other general creditors of the firm of P. Wilson’s Sons & Co. It is further ordered that the clerk of this court made out and filed in said probate court a transcript of the proceedings and judgment herein; to which said order the said Edwin Besuden excepts.”</p> <p>This judgment was affirmed by the circuit court; and error is presented here by Edwin Besuden, against Henry Besuden.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The plaintiffs in error brought suit in the court of common pleas against the Lime Company upon the following original petition filed April 20, 1893:</p> <p>“Plaintiffs, complaining of the defendant, The Sloss Marblehead Lime Company, say, that it is a corporation duly organized and existing’ under and by virtue of the laws of the state of Ohio, and as such was engaged in quarrying, manufacture and sale of stone; that on or about March 1, 1893, the defendant agreed with the plaintiffs to furnish and provide the plaintiffs with five thousand cords of pier' stone, so-called, and did then and there sell the plaintiffs said five thousand cords of stone to be delivered during the year 1893, at defendant’s dock at Marblehead, f. o. b. vessel, at the rate and price of one dollar and seventy-five cents ($1.75) a cord, but disregarding its promise and agreement in that behalf, the defendant, although requestéd by the plaintiffs, wholly refuses and declines to fulfill and perform its agreement aforesaid.</p> <p>That the plaintiffs are under contract and agreement with the government of the United States to build and construct for it a pier in the harbor of the city of Cleveland, Ohio, and are compelled in the performance of said contract to use stone in amount to five thousand cords, and by reason of the failure and refusal of the defendant to perform its contract and agreement, as aforesaid, plaintiffs have been compelled to contract for and purchase stone elsewhere; that they have been unable to purchase stone of the kind and character which they purchased of defendant at a price less than two dollars and seventy-five cents ($2.75) a cord, and that the defendant by its failure and refusal to perform the contract and agreement aforesaid, so made and entered into with the plaintiffs, has caused the plaintiffs to expend the sum of five thous- and ($5,000) dollars, over and above the price agreed upon between the parties hereto, to the damage of plaintiffs five thousand ($5,000) dollars for which amount the plaintiffs pray judgment against the defendant.”</p> <p>June 5, 1893, the Lime Company filed the following answer:</p> <p>“Now comes the defendant, The Sloss Marble-head Lime Company, and for answer to the plaintiff’s petition admits that it is a corporation existing under the laws of said state, and as such was engaged in the quarrying, manufacture and sale of stone, but as to each and every of the remaining allegations of said petition it says that the same are not true, wherefore it denies said allegations and each of them.”</p> <p>March 6, 1895, the plaintiffs filed the following supplemental petition:</p> <p>“Now come the plaintiffs and by way of supplemental petition say, that since the 19th day of April, 1893, by reason of the failure and refusal of the defendant to perform its contract and agreement to deliver stone as alleged in the. petition, they, the said plaintiffs, have received and paid for under the contract which they were compelled to make for the purchase of stone elsewhere alleged in the petition, the amount of four thousand five hundred eighty-four and 12-100 cords of pier stone at and for the price of two and 75-100 ($2.75) dollars per cord.</p> <p>And plaintiffs say, that by reason of the failure of the defendant to deliver the said pier stone in accordance with said agreement of the defendants to deliver, and of the plaintiffs to receive the same, at and for the price of one and 75-100 ($1.75) dollars per cord, they have been compelled to, and have bought the said four thousand five hundred eighty-four and 12-100 cords of pier stone, and have paid therefor the sum of twelve thousand, six hundred six and 33-100 ($12,606.33) dollars; and plaintiffs say that said price of two and 75-100 ($2.75) dollars per cord was the lowest market price at which they could obtain said stone after the refusal and failure of the defendants to perform their said contract to furnish stone as-alleged in the petition. Wherefore plaintiffs pray judgment against the defendants in the sum of $4,584.12, with interest thereon from the first day of July,. A. D. 1893.”</p> <p>And on the said 6th day of March, 1895, the Lime Company answered said supplemental petition as follows:</p> <p>“Defendant for answer to the supplemental petition, filed herein, says it denies each and every allegation therein contained.”</p> <p>March 8, 1895, the cause was tried to a jury, the trial resulting in a verdict in favor of the plaintiffs for $4,584.12 Within three days a motion for a new trial was filed by defendant upon the grounds, among others, that the court erred in its charge to the jury and that the verdict was contrary to the evidence. This motion was overruled, and a judgment followed the verdict. A bill of exceptions was taken containing all the evidence offered upon the trial, and a petition in error was filed in the circuit court, one of the assignments of error being’ that the common pleas court erred in overruling’ the motion for a new trial.</p> <p>The circuit court reversed the judgment and remanded the cause to the court of common pleas for a new trial for the reason as shown by its journal entry, “that inasmuch as the evidence did not show that plaintiffs in error knew when said contract was made that the defendant had a contract with the United States government under which the stone was to be used, the rule of damages given to the jury under which they could give special damages, was error, and this cause is remanded to said court of common pleas for a new trial.”</p>

<p>fudg77ieni against firm — By co7ifessioii of firm by oiiepartner only —Firm creditor cannot impeach judgment — Proceeds of execution sale iii hands of sheriff — Action against sheriff attacking validity of judgment — Nature of such action — Appealable under section 5228, Revised Statutes.</p> <p>1. Where, in good faith and for a firm debt, a judgment has been rendered against the firm, by confession, on a warrant of attorney executed in its name and on it's behalf by one partner only, without the assent of his co-partner, such judgment cannot be impeached or set aside by a creditor of the firm.</p> <p>2. Where a number of judgments had been recovered against a mercantile partnership by its creditors, executions issued on them by virtue of which all the partnership property had been seized and sold, and the proceeds are in the hands of a shei’iff for distribution ; one of the execution creditors made a demand on the sheriff for the share of the fund which it claimed, and on payment being refused by such sheriff, brought an action against him, not as sheriff, but as an individual to recover the sum thus demanded. The sheriff made no defense, but procured an order of court substituting for him certain other execution creditors of the firm. Thereupon the latter filed cross-petitions in the action, setting forth their respective claims to the fund, and also setting forth facts designed and tending to impeach the validity of the plaintiffs’ judgment, and to procure a decree cancelling and setting aside that judgment, together with the execution thereon, and thereby exclude the plaintiff from participating in the distribution of the fund, but asking no relief against the sheriff.</p> <p>Held: That the cause of action set forth in such cross-x>etitions is not for the recovery of money only, and that as the trial in the court of common pleas was conducted, exclusively on the issues joined between the plaintiff and the substituted defendants, on the cross-petitions, neither party was of right entitled to a trial by jury, and the action was therefore appealable under the provisions of section 5226, Revised Statutes.</p>

<p>Error to the Circuit Court of Montgomery county.</p> <p>The controversy had its origin in the court of common pleas, by the filing of a petition by John P. Charch as executor of John S. Charch, deceased, against Emma B. Charch, Kate Brendel, Nettie Bonner, Minnie Charch and John P. Charch, in which it was averred in substance, that John S. Charch died testate in the summer of 1891, and his will and codicil thereto were thereafter probated, and plaintiff appointed executor; that he left Emma B. Charch, widow, and the other defendants, his children, all of full age; that during his life John S. Charch united with an order called the Legion of Honor, which order created a fund for the protection and benefit of families or mem-, bers thereof, the family or such, or any of them as the member directs, to receive, upon his decease not to exceed $3,000; that when said Charch became a member he directed that in the certificate issued to him, his wife Emma B., should receive the amount payable at his decease, and that after his decease, in the fall of 1891, Emma B. received that amount from the order, no other direction having been given the said order. Then follow like averments respecting membership, etc., in Lodge No. 48, of an association known as the Ancient Order of United Workmen ; the issue of a certificate also payable to Emma B., which was never changed, and the receipt by her, about January 1, 1892, of $2,000 from the association thereon. The petition further stated that the defendants other than Emma B. and John P., claim that the testator, at the time of making the codicil referred to, made an agreement with Emma B., whereby she was to receive a further sum by will, and she in turn was to pay over the amounts she would derive from the aforesaid insurance; that in the codicil the testator bequeathed to her an additional sum of one thousand dollars; that the will and codicil are still in force; that she has accepted under the same, but refuses to pay over the insurance money; that if Emma B. is liable for the return of the money, the amount due is $5,000, with interest, etc., for which judgment is prayed.</p> <p>Emma B. Charch answered, asserting her rightful claim to the insurance money, and denying the making of the contract alleged; also setting up the provisions of the will in her favor in these words: “ That the said will provides for the payment to her, during her life, of the sum of $100 per month, so long- as her two daughters, Anna M. Charch and Minnie Charch, remain unmarried, and after their marriage the sum of $70 per month and also secures to her the use of the residence, No. 348 South Main Street, Dayton, Ohio, during her natural life, free of taxes, assessments, and expenses of repairs ; and the furniture contained in said house, and a horse, harness and carriage was devised to her absolutely.” She also averred that the estate was of the value of at least $80,000, and that the provisions under the will which she accepted were much less than she would have been entitled to under the law. She further averred that during her married life she inherited from her father one thousand dollars ; that her husband took charge of it and purchased a piece of land which conveyed to a son-in-law, and that at the time of the making of the codicil she requested him to provide for the payment to her of that sum, which he did by the bequest of one thousand dollars, and that sum was bequeathed for that purpose and no other.</p> <p>Kate D. Brendel and Nettie Bonner answered, denying, for lack of information, the averments of the petition as to the certificates providing that Emma B. should receive the amounts named therein; also denied that the widow received the money from the companies, and averred that it was collected by the executor and improperly paid over by him to her. And, by cross-petition, set up that the dues and assessments in both orders were paid by John S. Charch personally; that the widow had no vested right therein; that the sum to be paid by each order upon the death of John S. Charch were subject to his disposition, either by assignment or by will; that by his last will said testator directed that his said executor should collect the insurance upon his life (intending to include and dispose of the insurance in the petition mentioned), and that he should distribute the proceeds of the same in accordance with, the terms of the will and codicil; that this intent was made known to Emma B. at the time of the execution of the codicil, 'and that she then expressed her approval of and satisfaction with the same, and subsequently, after the probate of the will and codicil, elected to take under the same, and has since received the benefit thereby given; that they (these defendants) are legatees and devisees under the will, and that as such there is due to each of them a balance of $2,000, and interest; that the same should properly be paid out of the proceeds of the insurance on the life of decedent, including that improperly paid to said Emma B., and they therefore join in the prayer of the petition for judgment.</p> <p>To this pleading Emma B. replied, denying the new matter.</p> <p>The common pleas, upon trial, found the issues for Emma B. Charch, and rendered judgment for her. This judgment was reversed by the circuit court. Its finding is: “1st. It was manifest from the will and codicil of said John S. Charch, testator, that he intended to, and did, dispose of all the insurance on his life, amounting to the sum of sixteen thousand, five hundred dollars ($16,500), without regard to the beneficiary stated in the policy. 2nd. That the said widow, Emma B. 'Charch, elected to take under will of her husband, and continues to assert her right under the said will, and that if she demanded the insurance money aforesaid, which is bequeathed to other party than herself, she acts in contravention of said will. 3rd. That having elected to take under the said will, and continuing to assert her right to all the benefits thereby conferred, she is estopped to make any claim to the insurance money covered by the</p> <p>bequest in the will and codicil, and that she must, therefore, return the said sum of five thousand dollars so received by her, with interest.” Then follows a final judgment against Mrs. Charch for five thousand dollars, interest and costs. She asks a reversal of this judgment.</p>

<p>Release and transfer of prospective estate— Written contract read to and asse?ited to by one who cannot read — Cannot be set aside, when.</p> <p>1. A written instrument in the following terms :</p> <p>‘ ‘ In consideration of five hundred dollars, ($500,) tome this day paid by Thomas Cassilly, I hereby release and give to him all the interest I have, or may ever have, in the estate of Francis Owens, deceased, whether said estate, or any part thereof passes, or may ever pass to me, by descent, bequest, gift, devise or otherwise. I further agree, in consideration of said five hundred dollars, not to contest the probate of the will of the late Francis Owens, dated February 25, 1890 ; and not to bring an action or to be a party to the same to set said will aside. her</p> <p>Margaret (X) Cassilly. • mark.</p> <p>Witnesses :</p> <p>Edw. A. Foy,</p> <p>Wm. F. Foy.</p> <p>Dated July 26, 1890.”</p> <p>embodies a contract which cannot be contradicted by parol evidence.</p> <p>2. Where mother and son enter into a written! contract, which is correctly read to her before its execution, and she then voluntarily executes it, she is bound by its terms until it is set aside by a proceeding brought for that purpose. The facts, if satisfactorily established, that she could not read writing, and on account of the confidence reposed by her in her son, did not carefully weigh, so as to comprehend the terms of the instrument, when it was read to her, afford no ground to treat it as a nullity or to permit her to contradict its terms by parol evidence when interposed by the son as a defense to an action at law brought by her against him.</p>

<p>Error to the Circuit Court of Cuyahoga county.</p> <p>The suit below was brought to enforce an agreement claimed by the defendant on demurrer to be in general restraint of trade and therefore void, The petition is as follows :</p> <p>The plaintiff says it is a corporation under the laws of Ohio; that the defendants, Xavier and Lucas Pringeli are partners under the firm name of the Pringeli Rule Company.</p> <p>The plaintiff further says that on January 28, 1893, and prior thereto, the said Xavier Pringeli and Lucas Pringeli, partners as the Pringeli Rule Company, and the said Prank and Charles Pringeli were all engaged in the city of Cleveland, Ohio, in the business of manufacturing and dealing in wood, iron, steel and copper rules, pencil holders, calipers and gauges for measuring timber, logs, lumbef and other thing's, and said defendants then had a factory located at No. 7 Bergen street, equipped with machinery, tools, implements, furniture, patterns, dies, molds, engine, boiler, shafting, belting and other property and appurtenances used in the manufacture of said rules, etc., and in handling’ the materials therefor; and then had on hand large quantities of manufactured rules and materials of various kinds in process of being made into rules and other things, and also had accounts receivable and other choses in action and resources connected with said business, including a leasehold interest in certain real estate, and had an established business, trade and good will; all of which property, interest, business and good will, the said defendants then sold, assigned and transferred to the plaintiff by an agreement in writing dated January 28, 1893; and the said defendants further stipulated in said agreement that the_ demand for the kind of goods, which they were then producing, owing to the nature of the goods, was limited in quantity and restricted chiefly to ihe sections of the United States where lumber is manufactured and handled, and said defendants also.agreed that the plaintiff, who was then engaged in the same business, extensively, had ample facilities to supply the demands for said goods throughout the United States, promptly and at reasonable prices.</p> <p>Said defendants jointly and severally bound themselves not to engage in, or be in any way, directly or indirectly, connected with, the manufacturing, dealing in, or handling of board or log rules, lumber gauges, log calipers, pencil holders, or any í of the other goods which the defendants were then .making or dealing in, within the state of Ohio, or elsewhere in the United States, at any time during the next ensuing twenty-five years; and the said Frank and Charles Fringeli, specially agreed that they would not, directly or indirectly, engage in the manufacturing or production of any of said articles within the United States, during the said period of twenty-five years; and said defendants further agreed to promote the interest and aid the business of said plaintiff and agreed that the said plaintiff should receive all orders, letters, documents, papers and correspondence then in the possession of the defendants, and all such letters and orders as they might thereafter receive; and said defendants then agreed and authorized the plaintiff to use the name of the Fringeli Rule Company for any purpose connected with the business or which the plaintiff might deem essential to promote its business, and the said defendants also agreed not to use said name, or any of their names in connection with the rule business throughout the United States during the said period of twenty-five years.</p> <p>As consideration for the transfer of said property and the agreement above specified, the plaintiff agreed to pay to said defendants, the sum of four thousand two hundred and seventy-seven dollars and forty-five cents, ($4,277.45), in- certain installments ending March 1, 1894; all of which installments have bée?.i paid according to said agreement, by the plaintiff.</p> <p>It is further stipulated in said agreement that if said defendants, Xavier and Lucas Fringeli, or either of them, shall in any respect violate the provisions thereof, as to engaging in the manufacturing or handling said rules and other articles, then, and in that case, they shall become liable to the plaintiff, as for so much liquidated damages in the sum of five thousand dollars (S5,000), and said Frank and Charles Fringeli, also separately agreed, in said contract, to not engage, directly or indirectly, in the manufacturing, dealing in or handling any of the goods in the foregoing agreement mentioned, and if they, or either of them do so, they shall become liable and indebted to the party of the second part in the sum of five thousand dollars ($5,000) liquidated damages. The plaintiff further says that the said defendants, Xavier, Lucas, Frank and Charles Fringeli have violated said agreement, and are infringing’ the same, in the manner following, to-wit:</p> <p>They have established a factory, at 272 Wellington avenue, in Cleveland, Ohio, and have equipped it with machinery and are now therein engaged in manufacturing board and log rules, lumber gauges, log calipers and other articles, which they agreed not to manufacture in said contract; and they are also selling the same and sending out circulars to dealers in said articles, all over the United States, offering to fill orders for all of said materials and soliciting orders and correspondence, all in violation of said agreement and without any right or authority from the plaintiff..</p> <p>The plaintiff further says that said conduct of said defendants causes a constantly and increasing damage to its business, by interrupting’ and interfering therewith, and such damage is irreparable owing to its peculiar nature and because each and all of the defendants are insolvent and have no property or resources to pay damages, and the plaintiff has no adequate remedy at law.</p> <p>The plaintiff farther says that the said defendants are carrying on said business, at No. 272 Wellington street aforesaid, in the name of The Cleveland Rule Company, which all of the defendants claim is a partnership composed of the defendants, Andrew Fringeli and George Junglas, but the plaintiff says that neither said Andrew Fringeli nor George Junglas have contributed any money or capital to said business; nor have they done, nor do they intend to do, anything in connection therewith; that they are not acquainted with the business, are not' mechanics, have no money or resources and are unable to take any part in the business which the other defendants are carrying on; that the names Andrew Fringeli and George Junglas are used by the other defendants collusively for the purpose of cheating and defrauding-the plaintiff and concealing their real purpose and actions and evading liability under said contract.</p> <p>The plaintiff says that all of the business carried on at said place, under the name of The Cleveland Rule Company, is directed and carried on in all respects by the defendants, Xavier, Lucas, Frank and Charles Fringeli.</p> <p>The plaintiff says it will sustain great and irreparable damages unless the further conduct and management of said business, by said defendants, is restrained by order, of this court.</p> <p>The plaintiff further says that a copy of said contract, dated January 28, 1893, is hereto attached and filed herewith.</p> <p>Wherefore the plaintiff prays that the defendants may be restrained by order of this court, and enjoined from manufacturing, handling, dealing in or offering for sale any of said rules, calipers, or other things, which they agreed not to manufacture, as aforesaid ; that on the final hearing hereof, the plaintiff may have a judgment against said Xavier Fringeli and Lucas Fringeli for $5,000, and against said Frank Fringeli and Charles Fringeli for $5,000, and that all of said defendants be perpetually restrained from doing said acts and from in any way interfering in the plaintiff’s business, in violation of said contract, and that the plaintiff may have such other and further relief in the premises as it may be entitled to have in equity.”</p>

This action was brought in the Court of Common Pleas of Richland county by Hood, Faulkrod & Co. against Mrs. P. L. Harrison, and a number of her creditors.

<p>Error to the Circuit Court of Ottawa county.</p>

<p>Error to the Circuit Court of Guernsey county.</p>

<p>Error to the Circuit Court of Crawford county.</p>

<p>Error to the Circuit Court of Lucas county.</p>