knowledge to pass on the question without aid of the evidence of title would disclose, the judge such testimony.

stated that as it was a question who owned [Ed. Note. For other cases, see Evidence, the property he would at present exclude the Cent. Dig. $S 1969–1971, 1973, 1974; Dec. Dig. evidence. The matter was not again called

529.] 13. New TRIAL Om56 – MISCONDUCT OF Ju-to his attention. This exclusion was not a RORS-EXPERIMENTS.

definite and final ruling entitling the plaintiff For the jury, properly having before it in the to an exception; if it later appeared that jury room a specimen of roofing, the inflamma- there was evidence of the plaintiff's title for bility of which was a question at the trial, to the jury to pass on, the attention of the try matches thereon, especially where there is pothing to show the result thereof, is not so judge should have been called to the excludharmful as to require, as matter of law, the set-ed testimony. Magnan v. Fuller, 222 Mass. ting aside of the verdict.

530, 534, 111 N. E. 399. Apart from this, the [Ed. Note. For other cases, see New Trial, finding of the jury that the fire was not causCent. Dig. 88 116–119; Dec. Dig. Om56.]

ed by the defendant, made the question, of Exceptions from Superior Court, Franklin the extent of the damages and the value of County.

the property, an immaterial one. Cotter v. Action by Gilbert M. Bradford against the Nathan & Hurst Co., 222 Mass. 433, 110 N. Boston & Maine Railroad. Verdict for de- E. 1037. fendant, motion for new trial overruled, and

[4] The plaintiff claiming title as devisee plaintiff brings exceptions. Exceptions over- under the will of Gilbert H. Mann, the deruled.

fendant was permitted to show that Mann's Homer Sherman, of Charlemont, and Harry estate had been represented insolvent and E. Ward, of Greenfield, for plaintiff. Dana commissioners appointed, together with the Malone and Chas. N. Stoddard, both of amount of the debts according to the repreGreenfield, for defendant.

sentation of insolvency and according to the

return of the commissioners. Fred Shaw, the CARROLL, J. On the 18th of June, 1912, a other plaintiff, offered in evidence a deed dwelling house and other property known as from the deputy sheriff to Cook, the plaintiff the Mann property, were damaged by fire. It excepting thereto, Shaw having derived his was claimed that a spark from one of the title from the administrator of Cook. AN defendant's locomotives set fire to a mill of these questions of title are now of no imthe Massachusetts Talc Company and thence portance because of the finding of the jury, spread to the premises in question. In an- and we need not consider them. The third, swer to a specific inquiry submitted to them, fourth, fifth and sixth exceptions are therethe jury found:

fore overruled. "The fire that damaged the Mann property" [5] A witness was asked, "Whether or not was not "communicated to that property by a you have seen fires set from other sparks locomotive engine of the Boston & Maine Rail- from engines.” The question was excluded. road."

The same witness was permitted to testify The title was in dispute, one Fred R. Shaw and the plaintiff each claiming to be the to her knowledge of fires in this particular owner. Shaw's action for damages was pend. This exception must be overruled. See Mc

locality caused by sparks from locomotives. ing and by order of the judge the cases were Ginn v. Platt, 177 Mass. 125, 58 N. E. 175. tried together.

[6, 7] The evidence showed that the fire [1] In 1909 the property was owned by Gil

started in the Massachusetts Talc Mill which bert H. Mann. Shaw claimed title under a

Frederick deed from the administrator of Dexter B. stood near the railroad track. Cook, who was a purchaser at an execution K. Daggett was the treasurer and general sale. The administrator's deed to Shaw was manager of the Talc Company. executed July 22, 1913, subsequently to the witness for the plaintiff and testified that fire. Mann died before the fire and by his shortly before noon on the day of the fire, will gave the whole estate to the plaintiff. he bought some cigars and matches and The plaintiff also held a second mortgage went upstairs to the second floor where the thereon, having become the purchaser at the fire started. It was in evidence that a large foreclosure sale after the fire. His first ex- amount of inflammable material was stored ception is to the order of the court directing on this floor. At this time the machinery that the cases be tried together. This was a was running, none of the employés being matter within the discretion of the judge and present. Adney White, a schoolboy, testified there was no error of law in the course taken that on the day of the fire he walked through by him. Burke v. Hodge, 211 Mass. 156, 97 the mill on his way home from school and N. E. 920, Ann. Cas. 1913B, 381; Lumiansky saw Daggett on the stairway looking up to v. Tessier, 213 Mass. 182, 188, 99 N. E. 1051, the second story; that some time after this, Ann. Cas. 1913E, 1049.

when the Talc Company's case was on trial, [2, 3] The plaintiff was a witness and was he went to the office of Daggett's lawyer with asked the value of the buildings destroyed by Daggett, 'who told him “not to say that at fire. This evidence was excluded. Both the time he saw him in the mill, on the day cases were then on trial. Not knowing what of the fire, he had an oil can in his hand,

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

because he did not.” Daggett was then asked on cross-examination, the plaintiff excepting, whether the plant of the Talc Company, standing in the same location, was burned the year previous. He also testified that he had a deed of trust of the property; the deed was admitted in evidence. We think this evidence was admissible, according to the discretion of the presiding judge. The defendant contended it was not responsible for the fire; that it started in the mill of the Talc Company. As a step toward showing its origin and cause the evidence of the former fire was admissible. The deed was admissible as explaining the motive and intent of Daggett. See Everson v. Casualty Co. of America, 208 Mass. 214, 94 N. E. 459; Noyes v. Boston & Maine R. R., 213 Mass. 9, 99 N. E. 457. [8] While the question of the financial condition of the Talc Company and the admission of its records, which was confined to the vote authorizing the deed of trust to Daggett, as well as the evidence of what ocCurred at the meeting when this vote was passed, were somewhat remote, we cannot say, in view of the nature of the issue involved, that there was any error of law in the admission of the evidence. This disposes of the eleventh, twelfth and thirteenth exceptions. [9] The plaintiff asked Daggett: “Whether or not, prior to the fire of June 18, 1912, his property, located where the Talc Mill was burned, was injured by a fire communicated by sparks from an engine or a locomotive of the Boston & Maine Railroad causing a loss for which they adjusted with you?” This question was excluded. It was entirely irrelevant whether the defendant had Caused a prior loss which it had adjusted with Daggett or not. [10] The plaintiff also asked Daggett this question: “How many buildings—wooden buildings—have you owned in your lifetime?” —the plaintiff offering to show that ever since Daggett was 21 years of age he had owned wooden buildings in various parts of New England, and that the only fire he ever had was in Zoar next to the Boston & Maine Railroad. In the exclusion of this question we see no error in the ruling of the court. [11] The defendant's train dispatcher at North Adams testified from his record as to the time when trains passed Charlemont station. The record was made up from information reported to him by telegram from the agents at different stations, showing the passing of trains, and was kept in the usual course of business. The plaintiff excepted to this evidence. It was properly admitted. See Donovan v. Boston & Maine R. R., 158 Mass. 450, 33 N. E. 583. Therefore, the sixteenth exception is overruled.

[12] It appeared that the roof of the Talc Mill was covered with a substance known as Carey's magnesia roofing. This roofing had been exposed for about a year and was broken in places. Edward P. Harrison, qualified as an expert, was asked by the plaintiff:

If “there is a weak spot in the roof for a spark from an engine to lodge and eventually set fire to the wood underneath, and the fire has been set, will you tell the jury whether or not it would be possible for the fire to smoulder undiscovered before it broke out into flame, for a period of three-quarters of an hour or more?”

The judge ruled that the matter was not One of expert knowledge, to which ruling the plaintiff excepted. We think the jury had sufficient knowledge to pass on this question without the aid of expert testimony. Lyman v. State Mutual Fire Ins. Co., 14 Allen, 329; Higgins v. Dewey, 107 Mass. 494, 9 Am. Rep. 63; Com. v. Rodziewicz, 213 Mass. 68, 99 N. E. 574.

[13] The jury found for the defendant. The plaintiff filed a motion to set the verdict aside because of the misconduct of the jury. The motion was overruled, the plaintiff excepting. An exhibit of the roofing material before its exposure to the weather was in evidence, and was taken to the jury room. It was a question at the trial whether the roofing material in use on the building was inflammable. A number of burned matches Were found in the jury room, and the plaintiff offered to show that the jury experimented with the material and attempted to light it. The judge ruled that even if this fact Were established it Would not be a Sufficient ground for disturbing the verdict. Assuming that the jury did experiment and test the material by attempting to burn it and that this fact could be shown without invading the privacy of the jury room, and relying on the testimony of the jurors (Murdock v. Sumner, 22 Pick. 156; Woodward v. Leavitt, 107 Mass. 453, 460, 471, 9 Am. Rep. 49; Simmons v. Fish, 210 Mass. 563, 570, 97 N. E. 102, Ann. Cas. 1912D, 588; Randall v. Peerless Motor Car Co., 212 Mass. 352, 386, 99 N. E. 221), notwithstanding this, we are of opinion that there was no such misconduct on the part of the jury as to require a new trial. In the discussion and deliberation of the jury room, it is to be expected that some examination and inspection will be made of the exhibits in the case. The specimen of roofing material was properly before them and even if matches were burned to test its inflammability, such action, especially where there is nothing to show the result of the experiment, is not so harmful as to require, as matter of law, the setting aside of the verdict. See Indianapolis v. Scott, 72 Ind. 196, 205; Burho v. M. & St. L. Ry., 121 Minn. 326, 141 N. W. 300.

Exceptions overruled.

(91 Ohio St. 171)

formance of the above promise and at any time STATE ex rel. LATTANNER, Deputy Super- thereafter, and without advertising the same or intendent of Banks, v. HILLS. (No. 14957.)

otherwise giving to me any notice. In case of

public sale, the holder may purchase without be(Supreme Court of Ohio. April 25, 1916.) ing liable to account for more than the net pro

ceeds of such sale. (Syllabus by the Court.)

“And it is also agreed that the holder or as1. BILLS AND NOTES 98-WANT OB FAIL- signs may also hold said property as security for URE OF CONSIDERATION.

or out of the proceeds thereof may pay any other Where a note is executed to a bank for the claims the holder may have against me while purpose of meeting the requirement of the state said property or the proceeds thereof remain in superintendent of banks that deficiency of the holder's hands. assets of said bank be made good, and for the "Collateral Note No. 6949. purpose and with the result of enabling such

"Frank A. Hills." bank to continue its business for some period

On the back of the note are the following during which debts are created and new depositors acquired, neither the defense of want of con- credits and indorsements: sideration nor failure of consideration for such "For the protection of the maker of this note note is available in an action brought to recov- the Gambier Banking Company deposits the er thereon by the state superintendent of banks. one-twentieth part of the following securities:

[Ed. Note. For other cases, see Bills and 9.983 shares Pref'd-32,488 shares common stock Notes, Cent. Dig. 88 1371, 1375; Dec. Dig. Om of the Cashier Mining & Milling Co.--1,950 98.)

shrs., Pref'd stock of the Oppenheimer Institute.

Equity in 1,300-acre farm in Pike county, Ohio, 2. BILLS AND NOTES m104 - VALIDITY DURESS.

and $10,000 policy No. 57612 in the Berkshire However, the defense of duress is available these securities realize more than the face value

Life Insurance Company. In the event that to the maker of such note, and if the execution of this note and interest due, the balance shall thereof was induced

solely by threats of criminal be the property, of the said banking company. prosecution of a brother of the defendant, made

"Int. Pd. to Feb. 1, 1911. for that purpose by officers of the payee bank and a representative of the state superintendent

"Int. Pd. to Feb. 1, 1912-$60.00.” of banks, and under such circumstances as to By an amendment to the petition it is constitute a reasonable and adequate cause to control the will of the maker of said note, he averred that the collateral mentioned on the may be relieved from payment thereof.

back of the note, and which came into plain[Ed. Note. For other cases, see Bills and tiff's possession, was sold for the highest Notes, Cent. Dig. 88 242-247;' Dec. Dig. Om price obtainable, the total amount realized 104.]

therefrom being $5,774.34, which entitles 3. APPEAL AND ERROR 1062(1)-HARMLESS plaintiff to a credit on the note in the sum ERROR-SUBMISSION OF ISSUES.

Where, upon the issues made by several of $288.87. defenses to a claim sued upon, a general ver

The defendant by his amended answer, dict is found for the defendant, it not being dis- after admitting the execution of the note closed by answers to interrogatories or otherwise sued upon and denying other averments of upon which issue the verdict was based, and the record disclosing no error touching either the the petition, set up further defenses, in subpresentation or submission of at least one of stance as follows: Second, that there was such issues, a finding upon which in favor of no consideration for the execution of said the prevailing party would justify a general note; third, that it was executed for the judgment which is rendered, error of the trial court in the submission of other issues will purpose of being held by said bank as a prebe disregarded.

tended asset to meet the requirement of the [Ed. Note. For other cases, see Appeal and state superintendent of banks that the asError, Cent. Dig. $ 4212; Dec. Dig. Om 1062(1).] sets of said bank be replenished, that it was

Error to Court of Appeals, Delaware expressly understood and agreed that there County.

would be no obligation upon the defendant Petition by the State, on the relation of to pay said note, and that the only purpose Emery Lattanner, Deputy Superintendent of on the part of the superintendent of banks Banks, against Frank A. Hills. From a was to lead the creditors of said bank and judgment affirming a judgment for defend the general public to believe that said note ant, plaintiff brings error. Affirmed.

was a valuable asset of the bank; fourth. The original petition filed by the relator, that said note was signed under duress, the Emery Lattanner, deputy supervisor of defendant being induced to execute the same banks, was for the recovery of $2,000 and by threats of officers of said bank and the interest upon a promissory note of which the state superintendent of banks that his brothfollowing is a copy:

er, a former official of the bank, would be “$2,000.00 Gambier, Ohio, Feb. 1, 1910.

criminally prosecuted unless the defendant "On or before three years after date I prom

executed said note; fifth, that said note was ise to pay the Gambier Banking Co. or order paid by subsequent cash contribution to the two thousand no/100 dollars for value receiv- assets of said bank by the brother and brothed, payable at the office of said company, with er-in-law of the defendant, and that it was interest at 3 per cent. per annum, having deposited as collateral security for the payment understood and agreed that said payment of this note as stated on back hereof.

constituted a settlement of said note as well “And I hereby give to the holder hereof full as all notes theretofore given by said brothpower and authority to sell or collect at my ex-er and brother-in-law of the defendant: pense all or any part or portion thereof, at any place, either in Ohio or elsewhere, at public or sixth, that there was a failure of consideraprivate sale, at holder's option, on the nonper- / tion for said note, in that said bank was not

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

o permitted to continue in business for a period of three years, and criminal prosecution was Caused to be instituted against defendant's brother, contrary to an agreement made and in consideration of which said note was exeCuted.

The court of common pleas having overruled a demurrer to the answer and each defense set forth therein, the plaintiff filed a reply which, in addition to admitting certain allegations and denying others, averred that by reason of the execution of the note said bank was permitted to continue until May 16, 1911, and that after the delivery of the note a large amount of deposits were received from persons who are now unpaid Creditors of said banking company, that said note was listed among the assets of said banking company, and that the defendant is estopped to deny the validity thereof or his liability thereon as against plaintiff.

The case was submitted to a jury, which returned a general verdict in favor of the defendant, upon which the court of common pleas rendered judgment, which judgment was affirmed by the Court of Appeals. Error is now prosecuted to this court and a reversal sought.

Edward T. Powell and John M. Elliott, both of Columbus, for plaintiff in error. Marriott, Freshwater & Wickham, of DelaWare, Ohio, for defendant in error.

MATTHIAS, J. The substance of the pleadings heretofore stated sufficiently shows the issues upon which the case went to trial. The controlling facts may readily be gleaned from the record, and there is little conflict or dispute in the evidence. Harry N. Hills, a brother of the defendant in this action, in the year 1900 opened a private bank in Gambier, Ohio, known as the Gambier Savings Bank, and as the president and general manager continued such business about five years. During that periOd he had borrowed large sums of money from the bank, executing his individual notes and pledging as collateral security therefor his equity in a Pike county farm, shares of stock of the Cashier Mining & Milling Company and the Oppenheimer Institute, and alSo a life insurance policy upon his own life in the sum of $10,000. In 1905 the Gambier Banking Company Was Organized under the laws of the state and took Over all the assets of the Gambier Savings Bank. Harry N. Hills then ceased to have any connection with the bank except as a debtor; the successor bank having among its assets the notes of Harry N. Hills and the property heretofore referred to as collateral Security. In the year 1909 the state superintendent of banks ascertained that the Gambier Banking Company had not assets sufficient to meet its obligations, and that it was in an unsafe and unsound condition to transact the business for which it was organized. Un

der authority of section 730, General Code, he required the bank to make good such deficiency in its assets or suffer its doors to be closed and its business liquidated. In accordance with the requirement of the superintendent of banks, the officers of the Gambier Banking Company raised the Sum of $25,000 as additional assets of the bank, included in which was the note for $2,000 executed by the defendant, sued upon herein, a note for $3,500 executed by Frederick P. Hills, another brother, and a note for $2,000 executed by Dr. G. N. Ferris, a brotherin-law of said Harry N. Hills. At the time of the execution of these notes the property which had been assigned to the bank by Harry N. Hills and carried by the bank as assets was no longer carried as assets of the bank, the notes being substituted therefor, and the property, in accordance with the condition indorsed on the notes, was deposited for the protection of the makers thereof. The bank was permitted to continue its business, but later a demand was made by the Superintendent of banks for a further increase in the assets of the bank, in response to which $27,741.69 additional assets were raised in September, 1910, of which $11,741.69 was furnished by Frederick P. Hills and Dr. G. N. Ferris, the defendant, Frank A. Hills, having refused to contribute anything thereto. The Gambier Banking Company was permitted to continue its business until May, 1911, when the state superintendent of banks found it necessary to take possession thereof for the purpose of liquidation. Among the assets which came into the hands of the superintendent of banks was the note of the defendant, Frank A. Hills, herein sued upon. At the close of the evidence counsel for plaintiff below, plaintiff in error here, moved the court for a directed verdict against the defendant, and also asked for Specific instruction to the jury to disregard the claims made by the several defenses set up in the amended answer. These Several motions were overruled, the case was submitted to the jury, and a general verdict rendered for the defendant. The action of the court in overruling the motions, and also in refusing to instruct the jury upon the issue of estoppel made by the reply, is urged as prejudicial error for which the judgment should be reversed by this court. [1] In our opinion, the trial court might properly have stated to the jury that under the facts disclosed by the record the defenses of want of consideration and failure of Consideration were not available to the defendant. However, the court did instruct the jury in substance that if they found from the evidence that at the time the note Sued upon was made the bank was in a failing condition, and that the note was executed for the purpose and with the result of enabling the bank to continue its business for some period, that would constitute a sufficient consideration for the note, and that

the closing of the bank subsequently because the imposition of the principle of estoppel. of further impairment of its assets would It clearly appears from the record that neinot constitute a failure of consideration of ther the defendant nor his brother, Fredersaid note. The jury could not have under-ick P. Hills, nor his brother-in-law, Dr. G. stood this instruction otherwise than as a N. Ferris, prior to or at the time such notes direction not to consider the defenses of were executed, had any relation whatever want of and failure of consideration, to the bank, either as officer, director, or set up in


amended answer. By stockholder, and that neither of them was a such instruction, therefore, the trial court debtor or creditor of the bank, and that neidid in fact sustain the motion of counsel |ther would be affected financially if the bank in such respect, and properly took from the were closed by order of the state superinjury the consideration of the defenses in- tendent of banks and its business liquidated. dicated.

The only motive apparent, therefore, for the It clearly appears from the record that by giving of their notes was to avert the threatreason of the execution of the note suedened criminal prosecution of Harry N. Hills. upon, and others which went to make up the There is evidence that the president, vice required amount of additional assets, the president, and cashier of the bank, in their bank was permitted to continue business for endeavor to procure the execution of these a period during which further credits and notes, had impressed upon the brother and deposits were acquired, and it would there brother-in-law of Harry N. Hills the very fore be entirely inequitable to permit the grave danger confronting him, and on several defendant to avert liability on his note on occasions had said to Frederick P. Hills that the ground that there was a want or fail- if the notes were not furnished the bank ure of consideration for said note, nor was would be closed, and Harry N. Hills, the the defense available that officers of the bank brother, would be prosecuted for a criminal represented that such note would be treated offense, and it further appears that additionas assets only for the purpose of misleading al force was given these statements by clear the public. No evidence was offered tending intimations of similar consequences made by to support such claim, and, even if it had examiners of the banking department. It been, it would have been clearly incompetent. further appears from the record that these Beecher v. Dunlap et al., 52 Ohio St. 64, 38 representations and threats were communiN. E. 795.

cated by Frederick P. Hills to his brother, We are also in accord with the contention the defendant, and there is evidence in the of counsel for plaintiff in error that there record that by means of such threats the dewas no evidence warranting the trial court fendant was coerced into signing the note, in submitting to the jury an issue of pay- and that but for such representations and ment. The defendant pleaded the payment threats he would not have executed the note, of $11,741.69 into the assets of the bank by now sued upon. The evidence further indiFrederick P. Hills and Dr. G. N. Ferris, as cates that such threats were made under such a settlement of his note, and that question circumstances as to constitute a reasonable was submitted to the jury in the face of and adequate cause to control the will of the the statement made by the defendant him- defendant, and that it was intended that self that "he refused to contribute anything they should be communicated to and influence to that end" and the undisputed evidence the action of the defendant and induce the that no reference whatever was made to the execution of the note. It was therefore comnote of the defendant, directly or indirectly, petent to show that they were in fact comeither in the conversation at the time such municated to the defendant, and also to show sum was furnished by Frederick P. Hills and what, if any, effect they had in inducing the Dr. G. N. Ferris or in the receipt then given. defendant to sign the note. Objection made Frederick P. Hills, who now claims to have to such evidence was therefore properly then represented his brother, the defendant, overruled. Fountain v. Bigham, 235 Pa. 35, testified that when that sum was paid no 84 Atl. 131, Ann. Cas. 1913D, 1185, Henry et reference whatever was made to the note of al. v. State Bank, 131 Iowa, 97, 107 N. the latter, and there is no evidence that the w. 1034, and Sharon v. Gager, 46 Conn. 189. note of the defendant entered into the second In our opinion, the evidence disclosed by transaction.

the record justified the submission of but The trial court might well have followed one issue to the jury, that of duress, and the the admonition of the judge announcing the record does not disclose any error either in opinion in the case of Cincinnati Gas & the admission or rejection of evidence touchElectric Co. v. Archdeacon, Adm'r, 80 Ohio ing the issue of duress or in the submission St. 27, 88 N. E. 125, who there said:

of that issue to the jury. "It is subversive of the public interests and promotive of no right of either party to continue

[3] The verdict returned by the jury is a a contest before a jury when nothing is involved general verdict. No request for a special but the application of the law to a state of facts verdict was made, and no interrogatories conclusively established.”

submitted; hence it is not disclosed upon [2] However, the defense of duress is which defense the verdict was based. If any available to the defendant, and as against presumption is to be indulged, it would be that defense there are no facts warranting that the verdict is not based upon defenses

« ForrigeFortsett »