Sidebilder
PDF
ePub

On June 15, 1922, the instant case was filed in the court of common pleas of Trumbull county, Ohio, being brought by John Jerko, the defendant in the first case, against the Kinsman National Bank, the plaintiff in the first case, to enjoin the collection of the judgment rendered by confession in the former case in favor of the bank, and to declare that judgment null and void.

the clause fixing the sum to be forfeited by [ley, with a warrant of attorney to confess its express terms made the stipulated sum judgment thereto annexed. payable upon the failure of either party "to perform all and singular the conditions of the contract," and the further fact that by reason of the terms of the contract the damages for the breach of the sale of personal property could in no event have been other than nominal, under the rule enunciated in Berry v. Wisdom, supra, this court can reach no other conclusion than that as to that subject the sum named was a penalty. Being in gross, and a penalty as to one subject, it becomes a penalty as to all subjects, since by the express terms of the contract it was applicable alike to the covenants upon the sub-thorize entry of judgment outside of the ject of the sale of personal property and the covenants upon the subject of the lease.

The lower courts held the judgment obtained in the action upon the promissory note to be void, upon the ground that the warrant of attorney attached to the note did not au

state of Pennsylvania, nor in favor of any one except the payee, and permanently enThe judgment of the Court of Appeals is joined the defendant from collecting or ataffirmed.

Judgment affirmed.

MARSHALL, C. J., and DAY and ALLEN, JJ., concur.

KINSMAN NAT. BANK v. JERKO. (No. 18447.)

(Supreme Court of Ohio. Dec. 23, 1924.)

(Syllabus by Editorial Staff.)

1. Equity 65(2)-Plaintiff's fraudulent disposition of chattel property, to place it be yond reach of creditors, bars relief in equity.

tempting to collect the judgment.

The case comes into this court upon motion to certify the record.

G. H. Birrell, of Warren, for plaintiff in

error.

Fillius & Fillius, of Warren, for defendant in error.

PER CURIAM. Was the plaintiff entitled to secure an injunction against the enforcement of the judgment rendered by confession upon the promissory note?

The defendant in its answer, which was not denied, stated that it purchased the note in good faith for value prior to the date of maturity; that Jerko knew that the note was Fraudulent attempt of plaintiff to secure time before judgment was taken against him due and payable at the defendant bank prior by confession, in which he mortgaged his prop-to maturity, and knew the date, and agreed erty to place it beyond reach of creditors, held to pay the same within a few days after it within maxim that plaintiff must come into equity with clean hands.

[blocks in formation]

Equity will not aid one who has been guilty of inequitable conduct in matter with relation to which he seeks relief.

became due; that upon June 13, 1921, he sent a messenger to the defendant bank, requesting it to refrain from taking judgment upon the note for a few days, and upon the next day executed a chattel mortgage upon all his property to one E. H. Stewart for a consideration of $8,000; that on June 20, 1921, he (Jerko) had notice that the judgment would

Matthias, Jones, and Robinson, JJ., dissent-be taken on the said note; that on June 27, ing.

1921, judgment was taken and execution was issued, which was later returned unsatisfied;

Error to Court of Appeals, Trumbull that on or about July 1, 1921, Jerko had County.

Action by John Jerko against the Kinsman National Bank. Judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings error. Reversed and rendered. [By Editorial Staff.]

On the 27th day of June, 1921, the defendant, the Kinsman National Bank of Kinsman, Ohio, obtained a judgment by confession against the plaintiff, John Jerko, in the court of common pleas of Trumbull county, Ohio, upon a promissory note in the amount of $3,553.50, payable to the order of M. S. Pol

personal knowledge that the said judgment had been taken, and conferred with his attorney regarding the same; and that upon June 15, 1922, after various proceedings in aid of execution were had, at which Jerko was present, he filed this action, and secured the permanent injunction granted in this case.

Under these circumstances was Jerko entitled to an injunction?

[1] Plaintiff in error claims that, having resorted to a court of equity, defendant in error must be bound by equitable rules, and that he has not done equity herein, because

(146 N.E.)

he does not come into this court with clean hands.

With this proposition we are in agreement. The answer of the defendant in the original action was not denied, and is therefore admitted. This shows a fraudulent attempt upon the part of the plaintiff to secure time before judgment was taken by the bank, in which he conveyed away his property by chattel mortgage in more than double the amount of the note. It shows knowledge upon the part of the plaintiff, Jerko, that the judgment was to be taken and actual notice that the judgment had been taken four days after the entry of judgment. It shows that Jerko first tried to place his property beyond the reach of his creditor, and then put his creditor off repeatedly until it found property upon which to levy, at which time he applied to a court of equity for relief.

In this view of the question it is immaterial whether the judgment was merely irregular, as plaintiff in error contends, or absolutely void. In either case equity will not allow relief unless the plaintiff himself does equity.

[2] Equity refuses to lend its aid in any manner to one seeking its active interposition who has been guilty of inequitable conduct in the matter with relation to which he seeks relief. 21 Corpus Juris, p. 182, and cases cited.

For the foregoing reasons the judgment will be reversed, and judgment will be rendered for the plaintiff in error.

Judgment reversed, and judgment for plaintiff in error.

MARSHALL, C. J., and DAY, ALLEN, and CONN, JJ., concur.

MATTHIAS, J. (dissenting). I cannot concur in the above judgment of reversal for the reason that the judgment upon which this injunction proceeding was predicated was absolutely void for want of authority conferred by warrant of attorney to confess judgment, which a full statement of the facts would disclose, and which I understand is conceded.

The note in question was payable to M. S. Polley, was indorsed by him in blank, and also by Smith & Holcomb in blank; the plaintiff nowhere appearing to be a payee.

clusion of law of the Court of Appeals, based upon its finding of facts, and the judgment of that court should be affirmed. The defense that a judgment is void is always a complete defense against an attempt to enforce collection thereof.

JONES and ROBINSON, JJ., concur in the dissenting opinion.

JAMES v. CINCINNATI TRACTION CO. (No. 18044.)

(Supreme Court of Ohio. Dec. 23, 1924. Rehearing Denied Jan. 20, 1925.)

(Syllabus by Editorial Staff.)

1. Trial 258(1)—Inquiry of counsel held sufficient to direct attention to, and require charge on, contributory negligence, if it was in issue.

Inquiry of counsel in jury's presence as to whether court was going to charge on contributory negligence was sufficient to direct attention to that issue, and require charge thereon, if it was an issue, even though raised by evi

dence alone.

2. Carriers ~348(14)-Evidence held insufficient to call for instruction on contributory negligence of passenger.

In passenger's action for personal injury in alighting from street car, evidence held insuffi

cient to call for instruction on contributory negligence.

Conn, J., dissenting.

Error to Court of Appeals, Hamilton County.

Action by one James against the Cincinnati Traction Company. Judgment for plaintiff was reversed by the Court of Appeals, and plaintiff brings error. Reversed, and judgment of superior court affirmed.-[By Editorial Staff.]

Otto Pfleger, of Cincinnati, for plaintiff in

error.

James G. Stewart, of Cincinnati, for defendant in error.

PER CURIAM. This cause was tried in the superior court of Cincinnati upon the petition, the amended answer thereto, and the evidence, and grew out of an injury which the plaintiff in error received as a passenger of the defendant company, by falling while making her exit from a car of the company.

The warrant of attorney is such in terms that no authority was thereby conferred which authorized or could authorize the confession of judgment in favor of any one in Ohio or elsewhere than in the state of The amended answer admitted the defendPennsylvania, where it was executed, and, ant's corporate capacity; that it was enfurther, the authority, being merely "to enter gaged in the business of carrying passenand confess judgment against us," cannot be gers; that plaintiff fell while leaving one of construed to authorize the confession of a its cars; and specifically denied its neglijudgment in favor of such indorsee, or any gence and each and every allegation containone other than the payee. This was the con-ed in the petition not expressly admitted.

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

The cause was tried to a jury and verdict | that she grabbed the horizontal rod at the side, rendered for plaintiff. Judgment was enter- trying to recover her balance, and went over ed upon the verdict. Error was prosecuted the platform down onto the first step, not to the Court of Appeals, where the judgment reaching the street at any time. was reversed and an entry spread upon its journal, the pertinent portion of which is

as follows:

"Upon consideration whereof the court finds that there is error apparent upon the face of the record to the prejudice of the plaintiff in error."

Thereafter a nunc pro tunc entry was spread upon the journal by that court, the pertinent part of which is:

"Upon consideration whereof the court finds no error upon the weight of the evidence, but the court finds that there is error apparent upon the face of the record in the failure to charge upon the subject of contributory negligence to the prejudice of the plaintiff in error."

Error is prosecuted here.

[1] At the conclusion of the charge of the trial court, counsel for the defendant stated: "As I understand it, your honor is not going to charge on the subject of contributory negligence?

"The Court: No. (To which ruling of the court counsel for defendant excepted.)"

This court is of opinion that the inquiry of counsel in the presence of the jury at the close of the charge was sufficient to direct the court's attention to that issue, and to require a charge upon that subject, if it were an issue, even though raised by the evidence

alone.

[2] Was there any evidence tending to prove negligence on the part of the plaintiff? Plaintiff's testimony, as summarized by counsel for defendant, for the purpose of showing that that evidence raised a question of contributory negligence, was as follows:

"Plaintiff's testimony as to how her accident occurred starts on page 211 of the bill of exceptions. She said that she entered the car about 6:35 p. m., at Fifth and Race streets,

and that there was one vacant seat as she en

tered; that she could not remember whether the platform was crowded at that time, but that she knew it was not overcrowded; that the platform became crowded between her entrance and Central avenue; that, as she was about to leave the car at her destination, the platform was crowded to the extent that she had to ask men to step aside at the door to permit her to leave; that at Smith street (which was the stop before her destination) the crowd was considerably eliminated, and that it was there that the conductor said, 'If you get out of this car you will squeeze your way out' that at her destination the conductor was

in the front of the car and did not assist her in getting out; that she arose from her seat, went to the door, asked the people to step aside to let her out; that as she started to leave she stumbled over a foot, or feet, and started to fall face forward toward the street;

"In her cross-examination plaintiff practically repeated what she narrated upon direct examination, and she admitted, in addition, that

when she had described her accident to her accident insurance company, in answer to the question, 'State particulars fully,' her reply had been, 'In an effort to get off the car, I struck something with my right foot causing me to lose my balance. Holding to rod kept me from falling forward.'

"John Lynch, a witness for plaintiff, testified that he was on the car with his young boy; that a lot of colored people got on at Sixth street, and that he went inside; that he had to squeeze his way through the crowd when he got out; and that the conductor was up in the front of the car; that some time before the street car stopped at his destination the conductor made the remark to the crowd substantially to the effect that they would have to squeeze through; that he got off the car, and that as Miss James got off she slipped over somebody's feet or something-he could not see how it was-and fell down, and one foot went to the step of the car and the other leg was under her sitting on the platform; that he took her into the hospital, for which place they had both The witness further said that been bound. plaintiff had either made a misstep or tripped; that he was not looking at her feet.

"James Lynch, son of John Lynch, testified for plaintiff that he was with his father; that he saw plaintiff get off the car, and that she fell with one foot on the step and the other one on the platform, and that he did not know whether she stumbled or not, that he just saw her fall; that he did not know where the conductor was, nor did he hear him say anything; that the car was crowded, and that he had to push his way through. He further said, in contradiction to his father, that his father did not come into the car, but stood on the back platform; that plaintiff stepped right off down to the lower step toward the ground, and that he just saw her fall, and that he did not see her stumble over anybody."

Whatever this evidence may have tended to show, or failed to tend to show, in proof of the negligence of the defendant, that question is not before this court, a jury having found negligence of the defendant company. and the Court of Appeals having specifically found "no error upon the weight of the evidence." It is urged here solely as tending to show negligence on the part of plaintiff in error contributing to her injury.

We are unable to discover anything in this evidence which tends to show negligence on the part of plaintiff in error in any respect, unless we should hold that it was negligence upon her part to attempt to leave the car while it was in a crowded condition. To so

hold, it would be necessary for us to declare that the crowding of the street car by the defendant in error company created a dangerous situation, which situation deprived plaintiff in error of her right to leave the car at

(146 N.E.)

the end of her journey, at a regular stop, in the usual way provided by the company, and that an attempt so to do amounted to negligence upon her part. A mere statement of the proposition answers it.

The evidence above summarized carries with it no reasonable inference of negligence upon the part of plaintiff in error.

The judgment of the Court of Appeals is reversed, and the judgment of the superior court of Cincinnati is affirmed.

Judgment reversed.

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

CONN, J. (dissenting). I dissent from the judgment for the reason that the court erred in failing to instruct the jury as to the contributory negligence of plaintiff, to which failure the defendant below properly saved the question.

INDUSTRIAL COMMISSION OF OHIO
MONROE et al. (No. 18506.)
(Supreme Court of Ohio. Dec. 23, 1924.)

PER CURIAM. In this case, Industrial Commission v. Monroe, it appears that Wilbert Monroe died on May 3, 1922, suffering from what was claimed to be an occupational disease known as lead poisoning. An application was made by his parents, defendants in error, to the Industrial Commission for compensation, which was refused. appeal was prosecuted to the court of common pleas of Perry county, and a finding made in favor of the applicants for compensation. Error was prosecuted to the Court of Appeals, which court affirmed the finding of the court of common pleas.

An

The sole question for determination is whether by the terms of section 1465-68b, General Code, this action was appealable from the findings of the Industrial Commission. That section reads as follows:

"Every employé mentioned in the next preceding section and the dependent or dependents of such employé and the employer or employers of such employé shall be entitled to all the rights, benefits and immunities and shall be subject to all the liabilities, penalties and regulations provided for injured employés and their employers by sections 1465-44 to 1465-108, V. General Code, inclusive, save and except section 1465-90, General Code, which shall not apply to any case involving occupational disease, and also subject to such other modifications or exemptions hereinafter provided.

(Syllabus by Editorial Staff.) 1. Appeal and error -Right of appeal is statutory and may be given or denied. Right of appeal is statutory, and by legislative action it may be given or denied.

2. Master and servant 417(34)-Appeal from order denying compensation for occupa

tional disease not allowed.

Though Gen. Code, § 1465-68a (109 Ohio Laws, p. 183, § 1), grants right to compensation for occupational disease, section 1465-68b (109 Ohio Laws, p. 185, § 1), denies privilege of appeal from order of Industrial Commission denying compensation therefor, and no appeal under section 1465-90 lies.

Allen and Conn, JJ., dissenting.

Error to Court of Appeals, Perry County. Application under the Compensation Act by William Monroe and others for compensation for the death of Wilbert Monroe, claimant. Order refusing compensation by the Industrial Commission was reversed by

the court of common pleas, and on error to

the Court of Appeals, the judgment of the
court of common pleas was affirmed, and the
Industrial Commission brings error.
versed and rendered.-[By Editorial Staff.]

Re

O. C. Crabbe, Atty. Gen., R. R. Zurmehly, of Columbus, and Vincent Tague, Pros. Atty., of New Lexington, for plaintiff in error.

T. E. McElhiney, of Zanesville, for defendants in error.

"The Industrial Commission shall have all of the powers, authority and duties with respect to the collection, administration and disbursement of the state occupational disease fund as are provided for in sections 1465-44 to 1465108, General Code, inclusive, providing for the collection, administration and disbursement of the state insurance fund for the compensation of injured employés."

[1, 2] It is claimed on the part of the Industrial Commission that, in cases of this character, its findings are final, and that the right of appeal given by section 1465-90 is taken away. The Legislature by the state Constitution is given the right to enact laws relative to the compensation fund; the right of appeal is a statutory right and by legislative action this right may be given or denied, The sole question then being whether in tended to allow an appeal, a majority of the occupational disease cases the Legislature incourt are of opinion that the plain letter of the statute denies this right.

It is not for this court to pass upon the wisdom or reasons for denying such privilege. At common law there was no liability for damages for occupational diseases, but by statute (109 O. L. 183) the Legislature has classified in 15 different divisions diseases occupational in character that are compensable, and in granting this right it by the same act denies the privilege of appeal. It would seem that any injury which the spirit and letter of the Compensation Act regarded

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

as entitled to compensation should be placed upon the same footing as other injuries with respect to the right to have a denial of compensation reviewed upon appeal, but the Legislature has seen fit to provide otherwise, and we cannot deny its right so to do.

The conclusion of the majority therefore is that the right of appeal in this case has not been granted, and that the Court of Appeals erred in affirming the court of common pleas in allowing an appeal to be taken.

The judgment of the Court of Appeals is therefore reversed, and final judgment rendered for plaintiff in error.

Judgment reversed.

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

D'ARCY SPRING CO. v. ANSIN.
(No. 24225.)

error

(Supreme Court of Indiana. Jan. 28, 1925.)
1. Appeal and
1070(1) - Buyer's
specification that verdict not sustained by
evidence presents no error, where defendant
admitted partial liability.

Where, in action by seller against buyer to recover for goods delivered, buyer admitted, by stipulation, that it was indebted to seller for agreed price of three shipments sued for, buyer's specification that the verdict in favor of seller was not sustained by sufficient evidence and was contrary to law presented no available error.

2. Sales 363-Direction of verdict for seller held proper, where purchaser did not sustain burden of proving facts reducing amount of recovery.

Where, in action by seller against purchaser to recover for goods delivered, buyer's liability for amount recovered was established without conflict of evidence, and was admitted, except as reduced by facts specially pleaded by buyer, of which it had burden of proof, direction of verdict in favor of seller was proper, unless there was competent evidence tending to prove some of these facts.

3. Sales285(2)-Purchaser failing to exercise right of rejection within stipulated time cannot sue for breach of warranty.

Parties to a contract of sale may by contract fix and limit buyer's right to reject for defects, and such stipulation is binding upon them, unless waived, and failure to comply with it precludes purchaser from recovering for breach of warranty.

4. Sales 445 (5)-Refusal to submit buyer's counterclaim for breach of warranty held proper, where he did not comply with condition requiring rejection for defects within stipulated time.

Where contract for sale of certain sheeting contained stipulation that goods were not to

[ocr errors]

nor allowance made for any be returned cause, after 30 days from receipt, and evidence showed that buyer did not comply with conditions, but relied upon a defect which did not constitute a latent defect, excusing such noncompliance, held that refusal to submit buyer's counterclaim for breach of warranty was proper.

5. Appeal and error 758(2) — Failure to show offer to introduce evidence, its exclusion, or exception thereto, precludes review of objection to its exclusion.

Where exclusion of certain evidence, alleged to have been error, was not mentioned in appellant's brief among the "errors relied on," and brief did not recite any of record showing that proper offer was made to introduce such evidence, that court excluded it, or that appellant duly reserved exceptions to ruling excluding it, no question thereon is pre

sented for review.

Appeal from Superior Court, Marion County; Linn D. Hay, Judge.

Action by David Ansin, etc., doing business as the Royal Textile Company against the D'Arcy Spring Company. Judgment for Affirmed. plaintiff, and defendant appeals.

Mason & Sharpe, of Kalamazoo, Mich., and Herman W. Kothe and W. F. Elliott, both of Indianapolis, for appellant.

Ralston, Gates, Lairy, Van Mys & Barnard, of Indianapolis, for appellee.

EWBANK, J. Appellee as plaintiff below recovered a judgment against appellant, defendant below, for $10,910.48 on a verdict for that amount returned in obedience to a peremptory instruction given by the court. The only error assigned is overruling the motion for a new trial, under which appellant calls in question the direction to return a verdict for the plaintiff for $10,910.48, and also insists that the verdict is not sustained by sufficient evidence, and is contrary to law, and that the amount of the recovery was too large.

The complaint was in three paragraphs. The first was a "common count" for goods, wares, and merchandise, alleged to have been sold and delivered, as specified in a bill of particulars, with interest, in the total amount for which judgment was recovered. The second and third paragraphs were for the purchase price of goods of the values of $2,600.32 and of $1,304.48, respectively, purchased on April 20, 1920, which the parties stipulated was owed by defendant to plaintiff. The fourth paragraph counted on a written contract, dated April 17, 1920, by which plaintiff agreed to sell and defendant agreed to purchase a quantity of "56-inch 4.50 sheeting, price 95 cents per pound, net 30 days from date of invoice, f. o. b. mill," with a stipulation that "these goods shall not be returned, nor will allowances be made

« ForrigeFortsett »