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The deed tendered by the plaintiffs to the defendant recites that:

The "premises are hereby conveyed subject to and with the benefit of all stipulations, deeds contained or referred to so far as now in agreements, provisions and restrictions in said force and applicable."

In the deeds therein referred to, the partywall agreement is expressly recited. It is manifest that the deed does not as matter of law comply with the contract made by the parties wherein the plaintiffs undertook to convey the premises by "a clear title thereto free from incumbrances except Common

construction on his own land in a manner | Traute v. White, 46 N. J. Eq. 437, 440, 19 suitable to support a new or different build- A. 196. ing, provided the rights of the adjacent owner are not thereby affected or impaired. Phillips v. Bordman, 4 Allen, 147; Fleming v. Cohen, 186 Mass. 323, 328, 71 N. E. 563, 104 Am. St. Rep. 572. We are of opinion that upon this record it was the intention of the parties to the original deed from Braman to Morse that the party-wall agreement should bind and benefit the respective estates whoever might own them, and was not intended merely as a personal contract. Savage v. Mason, supra; Maine v. Cumston, 98 Mass. 317; King v. Wight, 155 Mass. 444, 29 N. E. 644; Richardson v. Tobey, 121 Mass. 457, 23 Am. Rep. 283; Berry v. Godfrey, supra; Mott v. Oppenheimer, 135 N. Y. 312, 31 N. E. 1097, 17 L. R. A. 409; O'Neil v. Van Tassel, 137 N. Y. 297, 33 N. E. 314; Crawford v. Krollpfeiffer, 195 N. Y. 185, 88 N. E. 29, 133 Am. St. Rep. 783; Bull v. Burton, 227 N. Y. 101, 124 N. E. 111; Mickel v. York, 175 Ill. 62, 51 N. E. 848; Roberts v. Bye, 30 Pa. 375, 72 Am. Dec. 710; Mackey v. Harmon, 34 Minn. 168, 24 N. W. 702; Sullivan v. Graffort, 35 Iowa, 531; Loyal Mystic Legion v. Jones, 73 Neb. 342, 102 N. W. 621. See, also, Hendricks v. Stark, 37 N. Y. 106, 93 Am. Dec. 549, where, as in the case at bar, the agreement provided for building a wall partly on land of the plaintiffs in which the adjoining owner had an easement, with the right to use it for support.

In this commonwealth in the circumstances here disclosed such exercise of control and dominion constitutes an incumbrance, and cannot be justified as matter of law on the ground that the agreement is beneficial to the owners or increases the value of their estates. It may be that an owner may not desire to build on that part of his lot; if so a party wall would be of no benefit to him. He may desire to build a wall entirely on his own land in order to have exclusive control over it; or he may prefer to

build a wall of a different thickness and material from that provided for in the partywall agreement; he may wish to erect a structure upon his lot which will require a foundation sufficient to support a weight far in excess of that which he is authorized to construct under the agreement, even if the building so erected is somewhat less in width than could be erected upon the party wall. Whether the walls have or have not been built, the agreements with reference thereto on the facts of this record create covenants which run with the land in favor of the owners of adjoining lots, and the covenants in question constitute an incumbrance on the title of the plaintiffs. McGlynn v. Maynz, 104 Mass. 263; Jeffries v. Jeffries, 117 Mass. 184; Richardson v. Tobey, supra; Cashman V. Bean, 226 Mass. 198, 203, 115 N. E. 574;

wealth avenue restrictions of record and

city of Boston taxes assessed as of April 1, 1922," and the defendant was justified for this reason in declining to accept the deed and carry out the contract of sale.

As the court rightly directed a verdict for the defendant, the defendant's exceptions have become immaterial.

Judgment for the defendant on the verdict.

DAVIS v. H. S. & M. W. SNYDER, Inc. (Supreme Judicial Court of Massachusetts. Suffolk. April 3, 1925.)

I. Pleading

48-Essentials of cause of action at common law stated.

Declaration at common law must allege all circumstances necessary to support action and contain full, regular, and methodical statement of plaintiff's injury with such precision, certainty, and clearness that defendant may be able to plead direct and unequivocal plea, and that jury may give complete verdict on issue and court give certain and distinct judgment on premises.

2. Pleading 53(1)—Causes of action in contract and in tort must be alleged in separate counts.

Under G. L. c. 231, § 7, cls. 2, 4, 6, when cause of action in contract and cause of action in tort are alleged, allegations must be made in separate counts with averment that they are for one and the same cause of action.

3. Pleading 53(1)—Joinder of cause of action in contract and tort not permitted in single count.

der of count in contract with count in tort Although G. L. c. 231, § 7, authorizes joinfor same cause of action, it does not permit joinder of action in contract with action in tort in a single count.

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

Mass.)

DAVIS v. H. S. & M. W. SNYDER

(147 N.E.) Declaration joining 4. Pleading 193(6) action in contract with action in tort in same count was demurrable.

A declaration which was defective as joining action in contract with action in tort in same count was demurrable.

5. Contracts 334-Absence of averment of consideration held fatal.

Even though allegations of declaration were sufficient to state cause of action in contract, provided there had been averment of consideration, absence of such averment was fatal.

against H. S. & M. W. Snyder, Inc., to re-
cover on alleged liability of defendant to
Defendant's demurrer
plaintiff's decedent.

to declaration was sustained, and plaintiff
appeals. Order sustaining demurrer af-
firmed.

See, also, 248 Mass. 387, 143 N. E. 319.
E. F. McClennen, of Boston, for appellant.
J. E. Hannigan, of Boston, for appellee.

CROSBY, J. This is an action by the plaintiff as administrator of the estate of

6. Contracts 334-Consideration must be Marcus A. Tockel, deceased, upon an alleged alleged unless contract itself implies it.

Where action is founded on contract, consideration must be alleged unless contract itself implies it, as in actions on notes or bills of exchange.

7. Contracts 333 (8)-Declaration held not to set forth contract enforceable in plaintiff's

favor.

Where moneys were deposited in bank as payment of commissions owed by depositor to plaintiff's decedent, subsequent letter to bank by depositor to cable decedent amount of dollars on deposit for his account including rubles, giving original amount in dollars, and that depositor would send check to cover same unless rubles were sold, in which event depositor would pay loss incurred, not having been made to decedent or to any one representing him, did not set forth enforceable contract in favor of decedent's personal representative.

8. Pleading 49-Declaration held not to set forth cause of action in tort.

The

liability of the defendant to the plaintiff in
his capacity as such administrator.
Writ when originally brought described, the
action as one in contract; it was subsequent-
ly amended by the insertion therein after the
words "in an action of contract" the words
"or tort, for one and the same cause of ac-
tion, as the plaintiff is uncertain as to which
class the said cause of action belongs." A
demurrer to the declaration upon various
grounds was filed, and thereafter an amend-
ment to the demurrer was allowed, and an
order sustaining it as amended wa's entered.
The case is before this court on an appeal
from that order.

[1, 2] The declaration, in one count, undersounds in contract and also a cause of action takes to set forth a cause of action which sounding in tort. The rule of pleading at common law was that the declaration must allege "all the circumstances necessary for Declaration, which alleged that defendant the support of the action, and contain a full, without knowledge or authority of plaintiff's decedent and contrary to latter's rights direct-regular and methodical statement of the ined bank to send to decedent certain moneys jury which the plaintiff has sustained, with deposited in bank to Russia, and thereupon such precision, certainty and clearness that bank did send it, setting forth manner in which loss of money occurred, and alleging that defendant's assurances decedent relying on was deprived of entire sum deposited in bank, personal representative's right to recover, not on wrongful conduct, but on its failure to keep its promise to bank. 9. Pleading 18-Declaration held not to state substantive facts necessary to consti

based decedent's

tute cause of action as required by Practice

Act.

Where substantive facts were not stated

the defendant, knowing what he is called upon to answer, may be able to plead a direct and unequivocal plea; and that the jury may be able to give a complete verdict with the rules of law, may give a certain upon the issue, and the court, consistently and distinct judgment upon the premises." Read v. Smith, 1 Allen, 519, 520. The rule so stated is the same under the Practice

Act, now G. L. c. 231, § 7, cl. 2. Prentiss v.

than

Barnes, 6 Allen, 410, 411. The fourth clause concisely and with substantial certainty, but of the same section provides in part that the were so obscure, indefinite, and involved that declaration "need not contain more it was impossible to determine on what ground one count for each cause of action. plaintiff charged defendant with liability, it Two causes of action arising on different contracts shall not be embraced in one count failed to meet requirements of Practice Act. 10. Pleading 18-Declaration must set forth except in a count on an account annexed." A cause of action for trespass cannot be issues in definite terms. Allen v. Edwards, 136 Mass. Declaration must set forth issues in defi- joined in one count with one for malicious prosecution. nite terms. 138, 139. In Cunningham v. Hall, 7 Gray, 559, the writ, describing the action as "an Appeal from Superior Court, Suffolk Coun- action of tort and an action of contract, both being for one and the same cause of action" ty; Marcus Morton, Judge. Action by George P. Davis, administrator and containing a single count in tort, was of the estate of Marcus A. Tockel, deceased, amended by adding a count in contract with For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

1

an averment that both counts were for one and the same cause of action. It was held that after such amendment the action could be maintained under the Practice Act. St. 1852, c. 312, § 2, now G. L. c. 231, § 7. The sixth clause of the same section provides that

"Actions of contract and actions of tort

shall not be joined; but if it is doubtful to which division a cause of action belongs, a count in contract may be joined with a count in tort, with an averment that both are for

one and the same cause of action."

[3, 4] Under this provision it is plain that when, as in the present case, a cause of action in contract and a cause of action in tort are alleged, such allegations must be made in separate counts with the averment that they are for one and the same cause of action, and cannot be included in a single count. Cunningham v. Hall, supra. Although the statute authorizes the joinder of a count in contract with a count in tort for the same cause of action, it does not permit joinder of a cause of action in contract with a cause of action in tort in a single count. Sullivan v. Fitzgerald, 12 Allen, 482; Garvan, Inc., v. New York Central & Hudson River Railroad, 210 Mass. 275, 281, 96 N. E. 717. The declaration being defective, it manifestly is demurrable..

[5, 6] Apart from improper joinder of an action of contract with one in tort in one count, the declaration is demurrable for the reason that it fails to set forth a cause of action either in contract or in tort. If the allegations were sufficient to state a valid cause of action in contract provided there had been an averment of consideration therefor, the absence of such averment is fatal. It is elementary that where an action is founded upon contract consideration must be alleged unless the contract itself implies a consideration, as in actions upon promissory notes or bills of exchange. Stone v. White, 8 Gray, 589; Murdock v. Caldwell, 8 Allen, 309, 310; Cochran v. Duty, 8 Allen, 324; Woodruff v. Wentworth, 133 Mass. 309, 313. The case of Wood v. Danas, 230 Mass. 587, 120 N. E. 159, cited by the plaintiff, is distinguishable in its facts from those in the case at bar.

[7, 8] The allegation relating to the promise of the defendant, contained in its letter to the National City Bank dated April 13, 1918, to send the bank a check in payment

for the rubles unless they were sold in which event the defendant would pay the loss incurred, not having been made to the plaintiff's intestate or to any one representing him, sets forth no enforceable contract in favor of the plaintiff. So far as the declaration undertakes to allege a tort it avers that

thority, or consent of said Tockel and contrary to his rights, directed said National City Bank to send the said Tockel's said money to Russia. Thereupon, said National City Bank wholly by reason of said direction sent said money to Russia."

"The defendant, without the knowledge, au

The rest of the declaration may be taken as a statement of the manner in which, due to the defendant's act, a loss occurred. It is then alleged that the "said Tockel believed the assurances aforesaid of the defendants and relied thereon, and wholly by reason thereof was deprived of and lost said entire sum of $7,671.18 and the interest thereon, and the defendants wholly failed to make the payment set forth in said letter of April 13, 1918, or otherwise to meet said Tockel's loss as aforesaid." It appears from these allegations that the plaintiff does not rely upon the alleged wrongful acts of the defendant in directing the bank to send the money to Russia without authority from Tockel, but upon the assurances contained in the defendant's letter to the bank in which it promises in effect to make good the loss; those promises, for the reasons above stated do not make the defendant liable to the plaintiff. The declaration in this respect bases the plaintiff's right to recover not upon the wrongful conduct of the defendant, but upon his failure to keep his promise to the bank. [9, 10] The allegations fall far short of stating concisely and with substantial certainty the substantive facts necessary to constitute a cause of action as required by the Practice Act. They are so obscure, indefinite and involved that it is impossible to determine upon what ground the plaintiff charges the defendant with liability. A defendant is entitled to know with reasonable certainty the ground upon which the plaintiff seeks to recover, that he may be able to make answer thereto and be informed of the issues he is called upon to meet. Unless the declaration sets forth in definite terms what those issues are, it cannot be determined what rules of law are applicable thereto. Order sustaining demurrer affirmed.

(147 N.E.)

the Commission to the court of common

STATE ex rel. WILLYS-OVERLAND CO. v. pleas. The case was heard upon evidence in

CLARK et al. (No. 18839.)

(Supreme Court of Ohio. March 24, 1925.) (Syllabus by the Court.)

1. Master and servant 417(9)-Judgment of court of common pleas against claimant until vacated, modified, or reversed is final adjudi'cation against claim.

When an application is made to the Industrial Commission, pursuant to the provisions of the Workmen's Compensation Act, for an award to cover an injury alleged to have been received by an employé in the course of his employment, and the Industrial Commission rejects the claim, and an appeal from such order is perfected to the court of common pleas, pursuant to the provisions of section 1465-90, General Code, and judgment is rendered against the claimant in that court, such judgment, until vacated or modified by the court entering the same, or reversed or modified by a higher court upon proceedings in error, is a complete and final adjudication against the validity of such

claim.

2. Prohibition 6(2)—Employer held entitled to writ restraining further action by Industrial Commission in favor of compensation claimant.

When the defendant in such appeal is the employer of the appellant, and the appellant, ignoring the judgment entered against him, seeks a rehearing of his claim before the Industrial Commission, and the Commission, also ignoring the judgment, grants his application, and makes an award in his favor, the employer is entitled to a writ of prohibition from this court restraining further action by the Commission in favor of the appellant.

Prohibition by the State, on relation of the Willys-Overland Company, against J. D. Clark and others. Writ allowed.

Tyler, Northup, McMahon & Smith, of Toledo, for relator.

C. C. Crabbe, Atty. Gen., and R. R. Zurmehly, of Columbus, for respondents.

KINKADE, J. The parties interested in this action are the Willys-Overland Company, referred to herein as the company, Frank Parker, referred to herein as Parker, and the Industrial Commission of Ohio, referred to herein as the Commission. Dates are not material, and will be omitted.

the common pleas court before a jury, and the jury returned a general verdict in favor of the company. Judgment was entered upon that verdict in favor of the company. Parker did not prosecute error to the Court of Appeals. The judgment so entered in the common pleas court still stands in full force and effect.

At a later date Parker, wholly ignoring the judgment so rendered against him, filed an application with the Commission for a rehearing of the same claim The company filed an answer to this application before the Commission, setting up the judgment of the court of common pleas. No reply to this answer was filed by Parker. The Commission, with full knowledge that the judgment was in full force and effect, also ignored the judgment, considered the application, granted the motion for a rehearing, and upon rehearing made an award upon the same claim

in favor of Parker.

Thereupon the company instituted this action in this court, praying for a writ of prohibition to restrain the Commission from taking further action in favor of Parker. The petition of the company filed in this court alleges the facts to be as here stated. The Commission demurs to the petition of the company on the ground that the petition fails to state sufficient facts to warrant this court in granting the company the relief prayed for, or any relief whatever.

[1] There is no dispute between the parties about the facts as here stated. The demurrer, of course, admits the facts to be as stated in the petition. The sole question in this case is: Does the judgment of the court of common pleas operate as a complete and final adjudication of all the issues between the company and Parker in relation to the alleged injury, which was the basis of the first application by Parker to the Commission, and which was the sole subjectmatter of the appeal prosecuted by him in the court of common pleas?

The company contends that the doctrine of res judicata applies; that the judgment is a finality, and must be respected as such not only by Parker but by the Commission as well.

The Commission contends that by reason of the provisions of section 1465-86, General Code, the courts must put such liberal construction upon the Workmen's Compensation Law as will enable the Commission at all times to work out substantial justice, as the Commission sees it, between employé and employer, and that to this end the courts must hold that the Commission, after it once takes jurisdiction of a claim by an injured employé for compensation for an alleged injury, must continue to hold that jurisdiction

The company had duly undertaken to pay direct to its own employés compensation found to be due them under the Workmen's Compensation Law (Gen. Code, §§ 1465-37 to 1465-108) for injuries received in the course of employment. Parker was an employé of the company. He made application to the Commission for an award to cover an injury which he alleged he had sustained in the course of his employment. The commission considered his application and rejected his claim. Parker appealed from the decision of unimpaired by any and all proceedings

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 147 N.E.-3

which may be had according to law in courts | sion, in order that the judgment as finally on appeal or on error. Surely no one will entered in court may be carried into execucontend that such a construction of the law tion by the agencies under the command of would be less than liberal so far as the con- the Commission in more convenient form tinuing power of the Commission is con- than this can be done by the officers of the cerned. An injured employé, if his claim be court entering the judgment. rejected by the Commission, may, under section 1465-90, General Code, appeal to the court of common pleas, and there retry the issue, and, if dissatisfied with the judgment of the court there entered, he may carry the case to the Court of Appeals on error, and, if dissatisfied with the judgment of that court, he may, on leave, prosecute error to this court.

Jurisdiction in a lower court or tribunal to aid and assist in executing the judgment of a higher court is a very different thing from jurisdiction to do that which is tantamount to a reversal of a final judgment entered by the higher court.

The Commission is designed and equipped to carry into effect judgments entered in favor of those found entitled to relief under The claim of the Commission in effect is the Workmen's Compensation Law, and the that, after he shall have availed himself of law should be liberally construed in this reall these remedies provided by law, if he spect in favor of aiding the Commission in still is dissatisfied with the results, he may properly carrying out the purposes of its creproceed to treat all the judgments as nulli- ation. This was very fully decided by this ties, return to the original source of power, court in the case of Roma v. Industrial Comthe Commission, and there begin all over mission, 97 Ohio St. 247, 119 N. E. 461. again, because overarching all these proceed- [2] Were we to sustain the demurrer in ings on appeal and error in the courts the this case, we might as well announce that continuing jurisdiction of the Commission the doctrine of res judicata is no longer of has abided in his favor. In other words, his first appeal is to the courts to correct claimed wrongs done to him by the order of the Commission in rejecting his claim. His last appeal would be back to the Commission to correct claimed wrongs done to him by the courts.

any force in the administration of justice.
Without this fundamental doctrine in full
force and effect the proper enforcement of
law would be quite impossible there would
be no end to any litigation. The demurrer
will be overruled, and, there being no dis-
pute between counsel as to the real facts in
the case, judgment will be entered in favor
of the company. The writ of prohibition
will issue as prayed for.
Writ allowed.

MARSHALL, C. J., and JONES, MATTHIAS, DAY, ALLEN, and ROBINSON, JJ., concur.

(316 III. 143) BOARD OF EDUCATION OF SCHOOL DIST. NO. 41 v. MORGAN, County Superintendent of Schools. (No. 16523.) (Supreme Court of Illinois.

It might be interesting to speculate as to what further method of relief he would have sought if the Commission had declined to act on his last application. Perhaps he would then have appealed to the courts for a writ of mandamus to compel the Commission to act favorably upon his last application. If the argument made by counsel for the Commission be sound, then, if the finding on appeal had been in favor of Parker, the company and the Commission might have ignored that judgment, if so disposed, and defeated Parker's rights as fixed by the verdict of the jury and the judgment of the court by having the Commission enter a new order again rejecting Parker's claim. If the judgment on appeal adverse to Parker did. not bind him, how could a judgment on appeal adverse to the company bind the company? If the jurisdiction of the Commission be continuous, the result on appeal cannot affect such continuing jurisdiction. The judgment will operate with the same force regardless of which party wins on appeal.

Manifestly, the jurisdiction resting in the Commission by virtue of section 1465-86, General Code, pending an appeal, is only a jurisdiction to be exercised in carrying into effect the final judgment of the court entered on appeal or on error, and such jurisdiction can have no force until set in operation by a remanding of the cause or a certifying of the result in court to the Commis

Feb. 17, 1925. Motion to File Petition for Rehearing Denied, with Modification, April 10, 1925.) Statutes 188-Words presumed used in ordinary meaning.

Words are presumed to be used in their ordinary meaning.

2. Statutes 208-Context considered to determine meaning of words in case of ambiguity.

In case of ambiguity, context may be considered to determine meaning in which words are used.

3. Statutes 212-Word presumed to have been used with same meaning throughout statute.

A word will be presumed to have been used with the same meaning throughout a statute, unless there is something to show that a different meaning was intended.

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

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