Ferguson v. Ferguson.

Taking the alternative of the proposition, that these are irregularities for which error would lie, what is the situation? Plaintiffs in error say that this is a direct attack, as it is brought in the same proceeding. This is true, but the exceptions are not taken within time. The removal of Ferguson and the appointment of Smith were made in 1900. The original order of sale in the second case was made in 1903. No exceptions were taken at the time to either of these orders of court. Indeed, the record shows that these petitioners consented to all of these steps. If this were not a sufficient estoppel, they insist that they can, three years after such removal and appointment, and ten years after the original order to sell, and without a bill of exceptions taken within the time required by the statutes, set aside such proceedings, merely because exceptions were taken in the same case. It is insisted that this can be done because the entries in such case do not affirmatively show that the decision was had after a hearing of evidence, and that the record being silent, it follows that no evidence was heard, and, therefore, no bill of exceptions is required. It is unnecessary, from what has been stated heretofore, to reiterate that such a findng is not essential, and to cite authority for holding that this court cannot set aside the actions of the probate court without a record indicating the basis of that court's determination.

If, however, a bill of exceptions were now before the court, the proceedings in error to remove the first administrator can not form the basis of a review in this court. Monger v. Jeffries, 62 Ohio St. 149 [56 N. E. Rep. 654]; Schumacher v. McCallip, supra.

There has been no change in this respect in legislation. There was a law passed in 1902 (95 O. L. 406; Rev Stat. 6407; Lan. 9983), permitting appeals from the removal of administrators, but none, so far as the court can find, relating to proceedings in error.

The court sees no necessity, therefore, for examining authorities to sustain the acts of Smith as administrator de bonis non, on the theory that he was nevertheless a de facto officer.

There is but one exception which was taken in time. This was to the confirmation of a sale to a purchaser, made in 1903, under the old order of sale. It appears from the record that in seeking to vacate a sale of a large tråct of land adjoining the city, there were seven appraisements and fourteen different offerings before the property was disposed of. The costs amounted to over $5,000, and the assessments to over $6,000. As has heretofore been stated, the petitioners raised no objection to what took place in those ten years, until the final entry was made disposing of the property to the present purchaser. It is asserted that no good faith has been shown by them. The objection to the sale is that after the court had ordered the property subdivided into three

Hamilton Common Pleas.

parcels, and it was separately appraised, it made a subsequent order fixing an upset price (which was two-thirds of the last appraisement) without revoking the former decree, and that as both stood, the appraisements and sales thereunder were improper and irregular. Brown v. Insurance Co. 3 Circ. Dec. 350 (6 R. 65), is cited. In that case the court stated that a party litigant is not entitled to have two appraisements of the property made at the same time. I fail to see the application of the authority, or, indeed, any merit in this contention. The sale realized more than two-thirds of the last appraisement and more than the upset price fixed by the court. There was no real inconsistency in the two orders, and in no respect can there be any possible prejudice if it were an irregularity. Indeed, it is not so conceded by counsel making the objection.

cases.

There is, therefore, no error apparent of record in either of the two

The judgment of the lower courts is affirmed, with costs against the plaintiffs in error.

BANKS AND BANKING-NEGLIGENCE.

[Cuyahoga Common Pleas, February 19, 1906.]

JACOB ANDERSON V. HOUGH AVENUE SAV. & BANK. Co.

1. RULE OF BANK THAT PAYMENT UPON PRESENTATION OF DEPOSIT BOOK SHOULD DISCHARGE IT IS INVALID IN ABSENCE OF ORDINARY CARE.

A rule of a savings bank company that a payment upon presentation of a deposit book should operate to discharge the company to the extent of the amount so paid will not release the company from the exercise of ordinary care in paying deposits.

2. PLACING BANK BOOK IN TRUNK AND LEAVING IT FOR NINE MONTHS IS NOT CONTRIBUTORY NEGLIGENCE AS MATTER OF LAW.

The testimony showing that a depositor in a savings bank placed his bank book in a trunk and did not look for it for nine months thereafter, the court will not say as a matter of law that this was such negligence on his part as would relieve the bank from liability for paying the account to one who had unlawfully obtained such book in the interim.

3. QUESTIONS OF ORDINARY CARE IN PAYMENT OF SAVINGS ACCOUNT AND OF CONTRIBUTORY NEGLIGENCE IN FAILURE TO NOTIFY BANK OF LOSS OF BOOK ARE FOR JURY.

The question as to whether or not a bank exercised ordinary care in paying out money upon the presentation of a savings bank book, as well as the question as to whether or not the plaintiff was guilty of contributory negligence by his failure to notify the bank of the loss of such book are matters for the decision of the jury.

[Syllabus approved by the court.]

MOTION to direct verdict.

Herman J. Nord, for plaintiff.

White, Johnson, McCaslin & Cannon, for defendant.

BEACOM, J.

Anderson v. Savings & Bank. Co.

The defendant objected to the introduction of any evidence under the pleadings.

The opinion of the court on that motion was reserved. Now, at the conclusion of plaintiff's evidence, defendant moves the court to direct a verdict for defendant.

It is undisputed, that in 1903 the defendant was a savings bank company in the city of Cleveland; that in the summer of that year the plaintiff deposited in said bank $61; that in October of that year one Christianson appeared at the bank with plaintiff's book and an order upon the bank for the payment to Christianson of the entire account, said order purporting to be signed by plaintiff; that defendant then paid to Christianson the entire account; that subsequently, about April, 1904, plaintiff appeared at the bank and demanded this money, claimed he had not signed the order, claimed that his bank book had been stolen. The bank refusing to make payment, plaintiff brings this action to recover the amount deposited.

It is not disputed as matter of law that plaintiff is bound by the rules of the bank.

The first rule I wish to consider is this: "As the officers of the company may not be able to identify every depositor, the company will not be responsible for loss sustained where a depositor has not given notice of his or her book being stolen or lost if such book be paid in whole or in part upon presentation."

That raises the question whether or not the plaintiff contributed to this loss by his own want of care. Plaintiff says he took this book and put it away in a trunk, placing it within some book, and from the time of making this deposit until nine months thereafter he never saw the book. Two minds might differ on that subject. My personal opinion is that that does not constitute negligence on his part. There is nothing. exceptional in that a young man earning wages every day, without family to support, in good health, should not have any occasion to look at his bank book during that time. Having no occasion to draw this money, it is not surprising that he should not have looked at the book for nine months. Therefore a court cannot say as matter of law that he was negligent.

The next question has to do with the further rule of the bank, that, "In all cases, a payment, upon presentation of a deposit book, shall be a discharge to the company for the amount so paid." This rule is in its terms absolute, that, if the book is presented and the company pays out the money, the whole matter becomes then and thereby a closed incident. In other language, it means that a savings bank book is a piece of negotiable paper payable to bearer. Whosoever walks into a

Cuyahoga Common Pleas.

bank with it in his hands, if the bank sees fit to pay him because he has that book in his hands, then the bank is thereby released. Several courts of last resort have held that a bank can make such a rule and that it is a binding and proper one. Others have held contra; that the rule is not absolute,. that no one can contract that he shall not be required to exercise reasonable care. The cases are considered in 24 Am. & Eng. Enc. Law (2 ed.) 1262 et seq. No court in this state seems to have passed on the question. I have no hesitation as to what this court should declare the rule to be. It seems to me that the rule ought to be, that, while the bank is not an insurer that it will never pay to the wrong person, it is bound, any rule to the contrary notwithstanding, to exercise reasonable care in accordance with the circumstances. Reasonable care by a bank is a very high degree of care. That such ought to be the rule is evidenced by the manner in which banks ordinarily act about making payments. No one can ordinarily walk into a bank and get money easily. The ordinary manner in which banks are managed is one of great carefulness, and banks do not ordinarily pay to a person simply because he brings in a book if he be not known to any one in the bank and if there be not some circumstance beyond the mere presenting of the book which indicates that he is entitled to the money. We would have to keep our bank deposit books locked in safety vaults were it not for this carefulness. It is clearly not the rule that a bank may fail to exercise ordinary care and rely absolutely on the rule.

That leaves nothing for the court to speak of but this: Could there be two opinions about whether or not the bank had exercised reasonable care in the payment of this money. If it be clear that the bank did exercise reasonable care, if no two minds could differ on that subject, then it becomes a matter for the court. I cannot say that. It being a matter that people may differ about, the question of whether or not the bank exercised ordinary care in paying out the money must be submitted to the jury. Manifestly, it is not a question for the court to pass on. The issue will be submitted to the jury to say whether or not the plaintiff contributed to this loss by his failure to exercise reasonable care to notify the bank of the loss of his book, and also whether, if he did not so contribute, this bank did exercise reasonable care in paying out this money.

Huebner-Toledo Brew. Co. v. Zevnik.

COVENANTS-RESTRAINT OF TRADE.

[Lorain Common Pleas, January 22, 1906.]

HUEBNER-TOLEDO BREWERIES Co. v. ANNA ZEVNIK.

1. CONTRACT IN PARTIAL RESTRAINT OF TRADE MUST NOT BE OPPRESSIVE. Before a contract in partial restraint of trade can be enforced, it must appear from the pleadings and evidence that the same is founded upon a valuable consideration and is reasonable and not oppressive.

2. INSTANCE OF NEGATIVE COVENANTS NOT ENFORCIBLE IN EQUITY. Where it appears that defendant borrowed a certain sum of money of the plaintiff corporation which was to be repaid in monthly installments, giving a mortgage on her premises as security therefor, and agreed to erect a saloon thereon and to buy only plaintiff's beer, etc., for consumption therein, at a price to be mutually agreed upon, the contract further stipulating that on failure to pay for same, or to pay the monthly installments, or to repay certain advancements on the Dow tax, such debts should become a lien on the property, these covenants to run for ten years, or almost twice as long as the term of the mortgage, such a contract is unreasonable and oppressive and its enforcement by a court of equity will not do substantial justice between the parties and will be denied.

[Syllabus approved by the court.]

MOTION to dissolve injunction.

W. L. Hughes, for plaintiff.
G. A. Resek, for defendant.

WASHBURN, J.

The plaintiff in this case is a brewing company, and the defendant is a resident of Lorain, and the owner of a saloon at that place.

The petition alleges that the plaintiff made the defendant a loan of $1,700 to be paid in sixty-eight monthly installments of $25 each and to secure the same took a mortgage upon the defendant's premises in which the saloon is conducted at Lorain; that said mortgage contained the following covenant:

"And I, the said grantor, do for myself and my heirs, executors, administrators and assigns, covenant with the said grantee, its successors and assigns, that for a period of ten (10) years from and after the date hereof, the premises above described shall not be used for the sale of any beer, ale or porter whatsoever, except of the manufacture. of 'The Huebner-Toledo Breweries Company,' its successors and assigns; and this covenant and agreement shall run with the land and be a limitation and restriction upon the use thereof for said period of time, without reference to the conditions on which said mortgage deed is made, and shall be held as a grant for the benefit of the said 'The Huebner-Toledo Breweries Company,' its successors and assigns, wholly independent of and in addition to the above conveyance of the premises by way of mortgage, and shall not be discharged by performance of any