Miller v. Sands

30 Ohio C.C. Dec. 670, 23 Ohio C.C. (n.s.) 483, 1912 Ohio Misc. LEXIS 376

• Court: Cuyahoga Circuit Court
• Decided: October 28, 1912
• Status: Published

Opinion

NIMAN, J.

This action was brought by the plaintiff in error, who was plaintiff in the court of common pleas, to recover of the defendants there, compensation and expenses for acting as trustee under a chattel mortgage or deed of trust executed by the Riggi Candy Co. The mortgage given by the company to the plaintiff in error, as trustee, provided that the trustee should be entitled to reasonable compensation and all necessary and reasonable .expense, to be paid by the mortgagor or out of the trust estate.

The petition does not, by positive averments, charge any agreement on the part of the defendants to become liable for the foes and expenses sought to be recovered, but the case was tried on the theory that the mating of such an agreement was sufficiently averred in the petition.

The action was dismissed as to the defendant, the Union National Bank. All the other defendants, except C. S. Homer, defended on the ground that the services performed by the plaintiff as trustee trader the mortgage were rendered as the result of an agreement between him and Horner .alone, and that the latter, who was alleged to have been the attorney for the Riggi Candy Co., bad been paid in full for all Ms services and tbe services of the plaintiff in connection with said mortgage.

The defendant, C. S-. Homer, in Ms answer alleged in substance that the plaintiff, in acting* as trustee, acted at the request of the said defendant and no one else, under an arrangement whereby an equal division of the fees and charges was to be made between plaintiff and the said Horner; that the sum of $900 was paid by the Riggi Candy Co. to the aforesaid defendant as full compensation for all work done by both himself and plaintiff; that the plaintiff, being indebted to said defendant in the sum of $950, said defendant retained the half of said $900 clue the plaintiff as his share of the fee paid by the Riggi Candy Co., and applied it on the account due said defendant from the plaintiff.

The verdict was for the defendants, and the plaintiff in error prosecutes error to reverse the judgment entered thereon.

The first ground on wMoh the plaintiff in error bases his claim for a reversal is that the court erred in overruling his motion for a new trial on the ground that one of the jurors was disqualified because of insanity.

The views of the court on tMs subject were expressed on the hearing, and no reason has been found for adopting any different views than were then indicated. There oan be no dispute with the proposition of law laid down in Waits v. Ruth, 20 O. S., 31, and found also in other decisions, that jurors must have the qualifications of electors. But in this case there was no satisfactory proof offered in support of the motion for a new trial that the juror complained of did not at the time of the trial possess the necessary qualifications to act as a juror. Even though he might have been disqualified when Ms name was originally selected, yet if he possesses the-necessary qualifications, at the time he served as a juror, the verdict would not be invalidated.

A similar question was presented in Toledo Consolidated Street Ry. v. Toledo Elec. St. Ry., 5 Circ. Dec. 643 (12 R. 367). The syllabus of that case reads as follows:

“Where a juror is summoned and another party appears and answers to his name under a misapprehension, and is sworn and serves as a juror, it will not invalidate the verdict, if the party serving would be a legal juror when properly summoned and none of the parties to the ease knew of the substitution until after the verdict. ’ ’

The second ground of error is based upon the admission of testimony given by the defendant, O. S. Homer, as to the indebtedness of the plaintiff to said defendant.

A book constituting the record of the law firm of Hile & Homer, of which the defendant Horner had been a member, was produced and by reference to this book said defendant testified to various items of charges against the plaintiff, and to a credit of $450 thereon. This evidence was offered in support of the averment in the defendant Homer’s answer, that $450 due the plaintiff on account of the fee received from the Riggi Candy Company had been retained by said defendant and credited on an indebtedness from the plaintiff to him, greater in amount than this sum.

The objection urged against this testimony is that it permitted an indebtedness due from the plaintiff to the firm of Hile & Homer to be utilized as a set-off by Homer alone to defeat a claim asserted against him individually.

We think the answer to this objection is found in that portion of the testimony of Mr. Horner in which he states that at the time of the dissolution of the firm of Hile & Homer, be assumed the liabilities and took over the assets of the firm. There was evidence, therefore, before the jury that the defendant Hor-ner was the sole owner of the indebtedness shown by the books of Hile & Homer to be due from the plaintiff. In this view of the case, the testimony to which objection was made was competent for the purpose of showing that the claim asserted by the plaintiff against the defendant had in fact been paid by the giv ing of credit therefor on an account against the plaintiff owned by said defendant.

The language of the petition in error indicates that a claim of error is made because of the fact that the defendant Homer was permitted to refer to and read from the account book of Hile & Homer referred to, although it was not offered in evidence. The witness, however, testified that he, himself, made the entry in the boob. This being so, it was proper for him to refer to the entries for the purpose of refreshing his recollection as to the transactions there indicated.

No error prejudicial to the plaintiff was committed by the trial court, and the judgment is affirmed.

Winch and Marvin, JJ., concur.