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Superior Court of Cincinnati.

346

the thing which is the consideration of the money or other act, is to be performed, no action can be maintained for the money or for not doing such other act before performance.” Neale v. Ratcliff 15 Q. B., 916. Hickman v. Royl, 55 Ind., 551.

The overhauling, repairing and refurnishing the house, then, was a condition precedent to the obligation resting upon the defendants to take the house. Defendants claim that there is no evidence to show that this condition was complied with, and therefore that they are entitled to judgment. This requires an examination of the evidence. If there was any evidence to show compliance, it became a question for the jury. And here it may be well to pote that the condition to be performed by Elsas was very much like the contract of a carpenter to build a house. The evidence showed an investment ou his part on the faith of the contract, of some fifteen thousand dollars. We think that the circumstances require the application of the rule so often laid down in building contracts, though applicable in a general way to all contracts, which require substantial compliance, but excuses technical, inadvertent and unimportant omissions and defects, and allows a recoupment in damages for such deficiencies. Mehurin v. Stone, 37 Ohio St. 49; Goldsmith v. Hand, 26 Ohio St., 101.

Reverting now to the parts of the condition precedent, let us examine the contract in detail.

It was conceded that the improvements in accordance with Hauvaford's plans, were made.

The next requirement is that there should be satisfactory heating apparatus in the cellar, to heat the cellar, first and second floors. This was not put in, but there was a considerable evidence to show that the performance of this was postponed by agreement, until after the lease began.

Openings were to be made in the wall, of size and position satisfactory to Meyer & Co. The evidence showed this to have been complied with. The water-closet and wash rooms were also put in. A suitable modern elevator was in and running on the first of July. There was evidence to show that the freight chute was put it. The area elevator was not put in, although Elsas liad ordered it made, and it was ready to be put up. It was not put up because the defendants said they would not have such an elevator, and would not accept it. It was in evidence that the elevator which Elsas proposed to put in, was of the kind in ordinary use in such buildings, and that it would have complied with the contract. The action of the defendants in declining to have such an elerator put in, upon which Elsas acted and put none in, constitutes, we think, a waiver of this omission, if in fact, their declination was not based on good grounds. The speaking tubes were ordered and could and would have been put in without delay, so Elsas says, but it appears that it was impossible to know where to put them until defendants arranged their furniture in their office. If this were true and speaking tubes could not be put in until after occupancy by defendants, putting them up could not be a condition precedent. An office was built under the direction of defendants, and by a carpenter selected by them. The evidence seemed to show that it was satisfactory. Gas fixtu es (new) were hung on the first floor, and others were put on each of the upper floors but not screwed on the pipes. This we think might well be described as a slight technical inadvertent omission. The buildings were to be painted and whitened throughout by Elsas. He testified that

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this was substantially done. A point was made as to whether the ceilings were whitened or whitewashed. He said he employed a man to whiten, and he thought he had done so. The floors were to be put in satisfactory good condition and repair. Elsas testified that they were in as good condition as it was possible to put old floors. Finally the entire building when complete was to be modern and first class in every respect. Elsas testified that it was and so did other witnesses. A point is made in reference to the provision that the floors and gas fixtures were to be satisfactory, that satisfactory here means satisfactory to Meyer & Co., and that unless they suited the whim of defendants, the condition could not be complied with. Where a man agrees to furnish an article to the satisfaction of another without other qualification, the rule undoubtedly is that if such satisfaction does not appear, whatever the reason for its absence, the contract is not fulfilled. But where the expression is used in connection with other words of qualification, there a different rule applies. Now, at bar, all these things were to be modern and first class in every respect. If they came up to this description, the defendants ought to have been satisfied, and a mere whim can not be urged successfully as a defense. We follow in our views of the word "satisfactory" in this contract, the case of Doll v. Noble, 18 Abbott New Cases 45, where in an elaborate note all the cases are collated and distinguished.

We have thus gone through the details of the contract, and we think we have shown that there was evidence for the jury to consider tending to show either a compliance with or a waiver of all the requirements of the contract. We must therefore overrule the motion of defendants for judgment, and send the case back for a new trial.

PECK & MOORE, JJ., concur.
Victor Abraham & John F. Follett, for plaintiff.
Louis Kramer & Lowry Jackson, for defendants,

HUSBAND AND WIFE.

366

(Hamilton Probate Court.)

IN RE ESTATE OF PHILIP Kock. Money which a wife had in a building association and which was with her ap

proval and consent drawn out by her husband and used by him to improve his real estate and pay debts, does not become a debt against his estate, un

less a promise by him to repay is proven. No promise is implied. GOEBEL J.

In the matter of the estate of Philip Koch, deceased, Emma Koch, the widow of Philip Koch, and the administratrix of his estate, presented a claim in the sum of $2,574.70, and asked that the same be allowed as a valid claim against the said estate. This sum, less the accrued interest and dividends, was paid to the Price Hill Eagle Loan and Building Association upon twenty shares, which stood in the name of Emma Koch, and was withdrawn in installments by the husband, with the approval and consent of the wife, and expended by him in the improvement of his real estate and the payment of debts. The allowance of this claim was resisted oy the heirs.

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Upon trial Emma Koch testified that her husband had on two occasions promised to repay her, or convey to her certain property in settlement thereof; that he died without making such payment or conveying the real estate. To the testimony relating to the declarations of the husband, objection was made. It subsequently appearing that such declarations of the husband were not made in the presence of a third party competent to be a witness, and having been admitted subject to such objection by the heirs, the testimony relating to the declarations of the husband to the wife was ruled out by the court.

In deciding the case the court say: “Tiere was no other testimony offered to prove a promise on the part of the husband. We think that the testimony is sufficient, however, to warrant us in holding that this money was the separate property of the wife, and that the husband in his life-time did not repay the same. There being no competent testimony to establish a promise on the part of the husband to repay, the question arises whether the law will imply an undertaking by the husband to repay the wife for money given him under such circumstances.

"By the rules of the common law, married women are placed under many and severe disabilities, both as to their personal and property rights. The husband's dominion over the person and property of his wife is fully recognized. She is utterly incompetent to contract in her own name; her personal chattels are absolutely his.

"Under sec, 3109, Rev. Stat., as it stood before the amendment of 1884 (Ohio L., vol. 81, p. 209), the wife could hold personal property separately, and the husband could not reduce it to possession without her express assent. By the amendment the wife may hold her separate property under her sole control, and she may in her own name during coverture contract to the same extent and in the same manner as if she was unmarried. She could contract with reference to it even with her husband, and when such property comes into his possession she could not be divested of her right, but may sue for its recovery.

“The object of this legislation was to abrogate the disabilities imposed by the common law. But we do not think these provisions, either in letter or spirit, affect the question before us. The mutuality of interests between husband and wife which arises out of the relation is, in our judgment, not affected by this legislation. The presumption is that when a wife makes advancements to her husband, in view of the mutual benefits which are likely to accrue from such advancements, she has 110 claim against him or his estate, unless there be an express promise to repay her. In the absence of such promise she cannot recover against her husband, his creditors or his heirs. The law will not create, under such circumstauces, the relation of debtor and creditor. 68 Md. 540; 72 Iowa, 48; 121 111. 250; 2 N. W. 461.

“We do not mean to say that she could at no time be a creditor of her husband. The court will enforce the contracts of parties, if any exist, but it will not imply an agreement when the parties have not entered into a contract. If such money or other separate property has been received by the husband without an express promise to repay her at the time, no implied assumpsit, either legal or equitable, will arise to support a claim against the husband or his estate. 63 Md. 496.

"To support the claim of the wife for money received by the husband, against the rights of bona fide creditors of the husband, it must appear that it was received by the husband under an agreement to repay her or to invest it for her use. 65 Md. 215.

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"It is maintained for Emma Koch that the money given by her to her husband cannot be treated as a gift. It is not claimed by the heirs that it was a gift, nor does a presumption arise that it was; nor is it claimed that it was held in trust. But the claim is that the money so given by her to her husband was a loan, and the case was tried upon that issue. And we place this decision on the ground that, there being no testimony of an express promise to repay the money by the husband, an implied promise to repay cannot arise, and he was therefore in no legal sense her debtor, and she cannot recover. Her claim will be rejected, as not being a valid claim against the estate."

Albert Bettinger, for Emma Koch.
Ferris, Morrow & Oldham, for the heirs.

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[Cuyahoga Common Pleas, 1889.) STEVENSON BURKE V. CLEVELAND, COLUMBUS, CINCINNATI &

INDIANAPOLIS Ry, Co. 1, Where two railway companies, owning lines of railroad, seeking consolidation,

are connected by the tracks of a “Union” company, organized by several railway companies to secure union depot and terminal facilities for such roads; and where by the provisions of the act authorizing such “Union" company "the interest of each proprietary company in the union company, in its capital stock, and in its property and effects of every kind, shall be deemed an appurtenance to the railroad of such proprietary company, and shall not be transferable or alienable otherwise than with and as a part of the railroad of

such proprietary company,” etc. Held: 1. That proprietary railway companies so connected, have such a property interest

in such' union company as that they do “unite and form a continuous line"

within the meaning and requirements of sec. 3380 of the R, S. 2. The lines of two or more railway companies, which are not, "in their general

features parallel and competing,” inay become consolidated into one corpora

tion under secs. 3380 to 3384 R. S. 3. Railway companies seeking consolidation, under the consolidation act, secs. 3379

to 3388 R. S., may agree upon the number and amount of shares of the proposed consolidation company; may classify such new stock into “common” and preferred," and may issue a greater or less number of shares than that of the aggregate of the constituent companies to secure a just and equitable division

of property between the shareholders of the constituent companies. STONE, J.

In March of the present year the Cleveland, Columbus, Cincinnati & Indianapolis Railway Company, the Indianapolis & St. Louis Railway Company, and the Cincinnati, Indianapolis, St. Louis & Chicago Railway Company, by and through their respective boards of directors, agreed upon a contract of consolidation, by the terms of which the companies named were to become one company, to be known by the name of "The Cleveland, Cincinnati, Chicago & St. Louis Railway Company," this agreement being subject to the ratification of the stockholders of said companies, the new company to succeed to all the property, rights, and franchises of the several companies, and to be bound to the payment of all the liabilities and obligations of each of the several companies, parties, thereto. The capital stock of the companies forming the agree. ment is as follows:

526

Cuyahoga Common Pleas.

Vol. XXII.

The C., C., C. & I Railway Co., (common stock)
The C., I., St. L. & C. Co., (common stock)
The Ind. & St. L. Railway Co., (common stock)

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$15,000,000 10,000,000

500,000

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Making their present aggregate capital..

$25,500,000 By the terms of the tripartite agreement, the capital stock of the consolidated company is to be $30,500,000, divided into common and preferred stock, as follows: Two hundred and five thousand shares of one hundred dollars each, amounting to $20,500,000, of common stock, and one hundred thousand shares of $100 each, amounting to $10,000,000 of preferred stock, the net earnings of the consolidated company in each year to be divided as follows: First not exceeding 5 per cent. (in quarterly installments) to the holders of the preferred stock, and the residue, as may be ordered from time to time by the board of directors, among the holders of the common stock, beginning with the fiscal year next after the ratification of the agreement.

The manner of converting the capital stock of each of the constituent companies into the stock of the consolidated company is provided for as follows: For each share of the present capital stock of the C., I., St. L. & C. Railway (the Big Four) shall be issued, upon the surrender thereof to the consolidated company, one share of the preferred stock and 30 per cent. of one share of the common stock of the new company. For each share of the capital stock of the C., C., C. & I. Railway Company surrendered shall be issued to the holder thereof common stock of the consolidated company at the rate of one hundred and thirteen and ore-third dollars in stock of the consolidated company for one hundred dollars of the stock of the said C., C., C. & I. Railway Company. The entire capital stock of the Indianapolis & St. Louis Railway Company being now the property of C., C., C. & I. Railway Company, five thousand shares of the stock of the consolidated company are to be issued therefor to the holders of the stock of the C., C., C. & I. Railway Company in proportion to their respective holdings of stock in the last ramed company, being at the rate of three and ope-third dollars in stock of the new company, for each share of the C., C., C. & I. Railway Company. Accordingly, the stock of the consolidated company is to be divided as follows:

To the stockholders of the Big Four: Prelerred .....

$10,000,000 Common

3.000.000 To the stockholders of the Bee Line: Common

17,500,000

:

......

Making the total

$30,500.000 It is further provided that the consolidated company shall not issue any evidences of funded debt or execute any lease of railway property which may entail fixed charges, except by the consent of a majority in interest of the holders of the preferred stock, to be expressed in writing, or declared at a meeting of such preferred stockholders called for that purpose, the agreement for consolidation to take effect upon its being adopted by the directors of the constituent companies, and upon ratification and adoption by the stock holders of each of the constituent companies. It appears that the stockholders of the several companies named

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