Cincinnati Superior Court.

2

will, made a new one appointing her daughter Julia and the plaintiffs as the persons to whom the property should go.

Mrs. Parker died, and her

last will was admitted to probate on April 9, 1884.

PECK, J.

The plaintiffs claim that Mrs. Parker, having only a life estate, could make no lease extending beyond her life, and that they are entitled to an undivided half of the property either by virtue of the appointment contained in her last will, or through the direct operation of the will of their great-grandfather Richard Southgate. It is claimed on the part of the defendant that as Mrs. Parker had made a will appointing the three children of her first husband as the persons to receive the property, and covenanted with the lessee not to change it, she could not thereafter execute another will making a different appointment.

The power conferred upon Mrs. Parker was to be exercised by “last will," and it is to be presumed that those words were intended to be understood in their ordinary sense. The power to dispose of property by last will is one that may be exercised at any time during the life of the testator, and it is therefore to be presumed that when Mr. Southgate designated that as the mode of exercising the power, he intended that Mrs. Parker should have her whole life time in which to select the appointees, so that her final determination might be adapted to the circumstances last existing. If she were permitted to exercise the power by an instrument taking effect, at any time prior to the decease, she could in that manner deprive herself of the important power to change or revoke, which is implied in the power to act by last will. If such an execution of the power were permissible, it might easily happen, by change of circumstances, as the birth of some eligible person, that the appointment would be utterly opposed to her final wishes. Such an appointment, repugnant to the last will of the person clothed with the power, would be plainly inconsistent with the intention of the person conferring the power.

A power to be exercised by will cannot be exercised by deed. 1 Sugden on Powers, *256, 257, 261, 262; Moore v. Diamond, 5 R. I., 121, 130.

The fact that Mrs. Parker, for a consideration paid to herself, covenanted not to change the appointment contained in the draft of a will afterwards cancelled, does not benefit the cause of defendants—but rather operates against them. The donee of a power of appointment cannot exercise it for her own benefit. 2 Pomeroy Eq. Jur. sec. 920; 2 Perry on Trusts, sec. 511a.

Any attempt to exercise the power so as to secure a pecuniary benefit to the donee is regarded as fraudulent.

The last will of Mrs. Parker is the only instrument to which we can look for the appointment by her, and as we find there a due exercise of the power, it must prevail, and such being the case it is unnecessary to consider what would have been the effect of Mr. Southgate's will if no appointment had been made.

Judgment for the plaintiffs.

FORCE and HARMON, JJ., concur.

Wilby and Wald, for plaintiffs.

W. M. Ramsey and M. B. Hagans, for defendants

36

Block et al. v. Peebles et al.

JUDGMENT-SALE.

[Superior Court of Cincinnati, General Term, Oct., 1886.]

DAVID BLOCK et al. v. JosEPH S. PEEBLES ET AL.

36

1. Where a former judgment is pleaded in bar of a new action, and it appears from the record when offered in evidence, that the former judgment was in favor of three persons, only two of whom are parties to the action, the record does not support the plea and is incompetent as evidence.

2. Where a party obtains possession of goods by fraudulently personating another and then delivers them to a bona fide purchaser for value, the person from whom the goods were obtained may maintain an action for conversion of the goods to his own use, against such purchaser, if the latter refuses to deliver up the goods, or account for their value.

PECK, J.

This was an action to recover damages for an alleged conversion by defendants below, of certain goods claimed to be the property of the plaintiffs below. The defendants denied generally that the title to the goods was in the plaintiffs at the time they received them, and also plead an adjudication by the circuit court of St. Louis Mo. in bar of the action.

The facts as disclosed by the bill of exceptions are these: Peebles' Sons received a letter of inquiry from Evansville, Indiana, signed by the name "W. Alexander," asking for a statement of prices and qualities of imported cigars, to which they replied giving statements as requested. Thereupon they received an order for shipment of a certain number of cigars signed with the same name. It appears, from the testimony, that they did not know "W. Alexander," of Evansville, but that they consulted the books of a Commercial Agency and found that there was a substantial and responsible merchant, rated high, doing business in Evansville by that name. They took the further precaution, however, to ask a special report from the Commercial Agency concerning him, and that report was, that W. Alexander was "gilt edged." Thereupon they shipped the goods, as requested, by express, to be paid for "net cash." A few days after the shipment they received a notice from the Commercial Agency that it had been discovered that there were two parties in Evansville going by the name of "W. Alexander," and that there was reason to believe that one of the parties was not to be trusted. Thereupon Peebles' Sons immediately dispatched their attorney to Evansville to investigate the matter and secure the goods, if possible. The attorney proceeded to Evansville, and, after inquiry, found that the goods had been received there, not by the Alexander who was engaged in business there, and in good standing, but by another party, and by him immediately shipped to St. Louis, and, that being the case, the learned and very diligent attorney proceeded to St. Louis, and there, with the aid of a detective, discovered the goods in the auction house of the defendants. After some talk and negotation, an action in replevin was commenced by Peebles' Sons, in St. Louis, against the defendants, in which they ultimately failed; the judgment was for Block, Dean & Company. Afterwards this action was commenced to recover for the conversion of the goods. Under the writ of replevin in Missouri, the practice appears to be that the goods are permitted to remain in the possession of the defendants upon their giving bond for the production of them, or payment of their value, the practice being exactly the reverse of what it is with us, and in that way, the defendants below had retained posses

Superior Court of Cincinnati.

36

sion of the goods, having given bond, and had afterwards sold them at auction and refused to account to Peebles' Sons for the proceeds. At the trial of the action below the plaintiffs offered evidence tending to prove the facts which I have stated, except as to the action of replevin in St. Louis, and rested their case. Thereupon the defendants offered a record of the judgment in the action in replevin in the circuit court of St. Louis, as part of their defense, and, upon objection, the court excluded the record. Several objections were made to the record, the first being that it was not the record which was pleaded in the answer. Such turned out to be the fact. The answer alleged that in the action between the same parties in the circuit court of St. Louis a judgment had been rendered in favor of these defendants. The record, upon examination, showed that the defendants in that action were three persons, who then constituted the firm of Block, Dean & Company. The defendants in this action were only two of the three persons. The parties were not the same, and as it was alleged in the answer that they were the same, and issue had been taken on that allegation in the reply, the record was inadmissible under the ruling of the Supreme Court in the case of Newberg & Goldsmith v. Munshower, 29 Ohio St., 617, which is in accordance with a great number of similar cases decided in this country and in England.

A request for leave to amend the answer so as to meet the alleged variance was then made and refused by the court. Whether leave to amend pleadings shall be given, is within the discretion of the court, and a court of error will not interfere with the exercise of the discretion except where it plainly appears that it has been abused. In this case the answer setting up this record had been on file some two or three years. The reply denying that there was such a record, had been on file nearly the same length of time, and the trial had progressed so far that the plaintiffs had rested their case when defendants asked leave to make this amendment. It was apparently only an offer to plead the record as it was; but if they had pleaded the record and then offered it as it was, it would not have been a defense, for the reason that it would then have appeared from the record itself that the parties were not the same in the two actions, and it would have been necessary for the defendants to allege and prove, further, that, in some way or other, the defendants in this action had become the successors in interest to the successful parties in the other action. No offer of that sort was made, and we do not think there was any abuse of discretion in refusing leave to amend as asked. The verdict was in favor of the plaintiffs below, and Block, Dean & Company now seek to reverse the judgment entered upon that verdict.

Plaintiffs in error claim to have been innocent purchasers of the cigars; that they acquired a good title from the party who turned out to have been the person who ordered them from Peebies' Sons, and who called himself, in St. Louis, "P. Anderson," and they contend that the title had passed from Peebles' Sons to this party by reason of the transaction between them which I have already stated. They urge that, although brought about by fraudulent representation, there was a sale to Anderson, and if such were the case their title may be good; but if no title passed to Anderson, of course they acquired none.

Now, it seems to us quite plain that there was no intention on the part of the plaintiffs to sell to this party. They supposed they were dealing with an entirely different person. It is not a case where a person,

36

Block et al. v. Peebles et al.

by false representations as to his credit, or by other false statements, induces a sale to himself and thereafter transfers the goods to a bona fide purchaser without notice and for value; for, in this action there was no intention, as I have said and as the record conclusively shows, on the part of Peebles' Sons to entrust this person, this Alexander, or this Anderson, or whatever his name was, with either the possession or the title to their goods. They supposed they were dealing with a reputable and responsible merchant in Evansville, by the name of Alexander. And the case is very closely analogous to that of Cundy and others against Lindsay and others, reported in 3 Appeal Cases, 459, and commented. upon by the Supreme Court in the case of Hamet v. Letcher, 37 Ohio St., 358. Speaking for the court Judge Okey there says: "The principle involved is, perhaps, more fully considered in the case of Cundy v. Lindsay than any other. Lindsay & Co. were manufacturers of linen goods at Belfast, Ireland. Alfred Blenkarn, who occupied a room in a house looking into Wood Street, Cheapside, wrote to Lindsay & Co. proposing to purchase a certain quantity of such goods, and in his letter used this address, 37 Wood Street Cheapside,' and signed the letters (without any initial for a christian name) with a name so written that it appeared to be 'Blenkiron & Co.' There was a respectable firm known to Lindsay & Co. of the name 'W. Blenkiron & Co., carrying on business at 123 Wood Street. Lindsay & Co. sent letters, and afterwards supplied goods, being all addressed to 'Messrs. Blenkiron & Co., 37 Wood street,' which they supposed was the address of the respectable firm above mentioned. The goods were received by Alfred Blenkarn at that place, of which goods he sold 250 dozen of cambric handkerchiefs to Messrs. Cundy, who had no knowledge of the fraud, and who re-sold them in the ordinary course of their trade. On the hearing of the case before the judges of the Queen's Bench, 1876, it was held that the property in the goods passed to Alfred Blenkarn, consequently that Lindsay & Co. could not maintain an action against Messrs. Cundy, innocent purchasers. But the decision was reversed the next year, in the court of appeals, and the latter decision was affirmed in the House of Lords in 1878."

The case of Hamet v. Letcher, is one where a party, fraudulently representing himself as an agent for a third party and that the latter desired to purchase certain goods, secured possession of the goods, the parties who parted with the possession believing that he was the agent and that he was purchasing for and on behalf of the person whose agent he represented himself to be; but the fact was that he was not an agent for that party, that he got possession of the goods and then sold them to the party whose agent he pretended to be, who bought them in good faith and paid value for them. The Supreme Court held that the parties, who had parted with the goods upon false representations as to the person with whom they were dealing, could reclaim them, distinguishing between that case and one where a person is induced by false statements to sell to the party making the same. In the latter case the seller intentionally parts with his goods to a person known to him; in the former there is no intention of selling to the person who obtains possession by fraudulently personating or pretending to represent another.

We think that the case at bar is within the rule laid down by the Supreme Court, and the judgment is affirmed.

FORCE and HARMON, JJ., concur.

Walter S. Logan, for plaintiffs in error.

William Worthington and Rankin D. Jones, for defendants in error.

Hamilton Probate Court.

37

NUNC PRO TUNC ENTRIES.

[Hamilton Probate Court.]

IN RE HENRY R. DICKSON.

37

On the hearing of an application for the appointment of a guardian for Henry R. Dickson on the ground of imbecility, said Dickson appeared in open court and submitted to an examination of his mental condition. A judgment was entered finding his imbecility and appointing a guardian, but such entry omitted to show notice to Dickson. Held: That such omission may be supplied by nunc pro tunc entry even after the term.

GOEBEL, J.

On the thirtieth day of July, 1886, this court on the evidence found Harry R. Dickson an imbecile, and that it was necessary to appoint a guardian for the person and estate of the said Harry R. Dickson, and thereupon did appoint a guardian, all of which appears of record. Now comes the guardian and files his motion for leave to amend the record, alleging that said record does not disclose the fact that at the time of the hearing of said cause, and the appointment of said guardian, said Harry R. Dickson appeared in open court and had notice of the intended application of the guardian, and praying the court for a nunc pro tunc entry. This motion is now resisted by Harry R. Dickson, through his counsel, for the following reasons:

First-That at the time of the finding of the imbecility of said Dickson, the court had not decided that said Dickson had notice, and it is maintained that a nunc pro tunc entry can only be made where the court had rendered a judgment and made a finding, which judgment and finding were for some reason omitted to be entered on the record.

Second-That the term having elapsed this court has no jurisdiction to make a nunc pro tunc entry, and no jurisdiction to alter, amend or modify the judgment or finding.

Third-That Harry R. Dickson, being an adjudged imbecile, could not voluntarily enter his appearance and consent to the appointment of a guardian.

There is no statutory provision which provides for a notice on the hearing of an application to have a person adjudged an imbecile and for the appointment of a guardian for such person. Neither has it been the practice during the existence of this court to give such notice. The mode and manner of such proceeding, the amount of evidence necessary, are matters entirely within the discretion of the court. But it is maintained that inasmuch as it deprives such an adjudged imbecile from the control and management of his property, that upon some authorities such person ought to have notice of such application. In determining the questions presented, this court assumes the correctness of the views expressed by the authorities. As to the first objection, I can not agree with counsel that a nunc pro tunc entry can only be made to complete a record of a judgment pronounced by the court, and omitted to be put upon the record. The record in this case does not fail to disclose the judgment and finding made by the court, and if the theory of counsel be correct, there is now a full and complete record of such judgment and finding, and such entry nunc pro tunc would be useless. Notice is a jurisdictional fact, therefore is prerequisite to a valid judgment. If the judg ment entry omits to find notice, and notice was in fact had, the omission