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(88 Ohio St. 297)
AMES et al. v. McCAUGHEY et al. (Supreme Court of Ohio. May 13, 1913.)
(Syllabus by the Court.) CORPORATIONS (§ 30*)-LIABILITY OF INCOR
A corporation for profit was duly created and organized under the laws of Ohio in 1906 and became indebted for personal property purchased for use in its proposed business. No part of the capital stock was paid into the treasury of the company. Held, under section 3244, Revised Statutes, which was then in force, the incorporators are liable to the creditors of the company to the amount of any deficiency in the actual payment of 10 per cent. of the authorized capital stock. Hessler v. Cleveland Punch & Shear Works Co. et al., 61 Ohio St. 621, 56 N. E. 469, approved and followed.
[Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 97-100; Dec. Dig. § 30.*]
Error to Circuit Court, Knox County. Action by William D. McCaughey, receiver, and others against one Ames and others. Judgment for plaintiffs, and defendants bring error. Affirmed.
Waight & Moore and H. C. Devin, all of Mt. Vernon, for plaintiffs in error. John D. Snyder and Hiram Van Campen, both of Findlay, and D. B. Grubb, of Columbus, for defendants in error.
PER CURIAM. The Findlay Foundry & Machine Company recovered a judgment for $2,037.34 against the Vernonview Glass Company at the May term, 1908, of the Knox common pleas. Subsequently William D. McCaughey was appointed and qualified as receiver of the Foundry & Machine Company and in December, 1908, brought suit against the glass company as an insolvent corporation and all of its stockholders who were discovered, among whom were the five original incorporators, to enforce payment of the amount remaining unpaid on his judgment; the suit being brought in behalf of the receiver and all other creditors. Judgment was rendered for plaintiff in the common pleas. On appeal to the circuit court a like judgment was rendered. This proceeding is brought to reverse the judgment of the circuit court.
terest, and costs as should not be paid by the glass company and the stockholders, and entered judgment accordingly.
It is contended by the plaintiffs in error that in the original suit against the glass Company jurisdiction was not obtained of that company; it being claimed that service was made on one Edgar Berry as the duly elected president of the company, whereas it was claimed that in fact no president had been elected. As to this, it is sufficient to say that it appears from the record that the service on the glass company was not attacked or questioned in the original action in any manner. On the contrary, that company filed an answer in which it admitted that it was a corporation duly organized under the laws of Ohio and proceeded to set up matters of defense to the action. This was a general appearance by the defendant and amounted to a waiver of service.
It is also insisted that the circuit court erred in entering judgment against the incorporators, because it is claimed that no certificate of the subscription of 10 per cent. of the capital stock of the Vernonview Glass Company was ever signed by the incorporators and filed with the Secretary of State. As already stated, the court found in the original case, and also in the subsequent equity case, that the Vernonview Glass Company was a corporation duly created and organized under the laws of Ohio, and that it became indebted as such to the Foundry & Machine Company in the amount stated. In such circumstances the presumption is that the organization was made in accordance with legal requirements. But it is contended by plaintiffs in error that this finding and judgment can create no presumption that anything more was done than was necessary That is, to legally organize the company. that under section 8633, General Code, 10 per cent. of the capital stock was subscribed, of which portion 10 per cent., or $650, was payable at the time of the subscription, and that under section 8634, General Code, the liability of the incorporators is for the amount of any deficiency in the payment of 10 per cent. on the stock subscribed and therefore could not exceed $650. However that may be, in a case in which the question is presented, it cannot avail plaintiffs here. The statute, as it stood at the time of the occurrence of the transactions involved in this proceeding, was included in section 3244, Revised Statutes, and provided that, as soon as 10 per cent. of the capital stock was subscribed, the subscribers to the articles of incorporation, or a majority of them, should so certify in writing to the Secretary of State, and also contained the provision: "The incorporators of the company shall be liable to any person affected. thereby, to the amount of any deficiency in the actual payment of said 10 per cent. at the time of so certifying."
The circuit court made a finding of facts from which it appears that the glass company was duly incorporated under the laws of Ohio with an authorized capital stock of $65,000, and that the defendants named were incorporators thereof; that four of the defendants had each subscribed for $50, being one share of the capital stock; that no part of the subscriptions were paid; and that the glass company was insolvent. No part of the capital stock was ever paid into the treasury of the company. The court found that the incorporators were liable as guarantors to the plaintiff, who was the sole creditor of the glass company, for as much of his claim, in
Error, Cent. Dig. §§ 1068, 1069, 4153-4157, [Ed. Note.-For other cases, see Appeal and 4166;' Dec. Dig. § 1050.*]
5. CONTRACTS (§ 191*)-AGREEMENTS TO SUP
PORT AND MAINTAIN.
Under a contract to furnish plaintiff with board and food for the rest of her life, defendant her needs, and, if he did not, he was liable for was bound to furnish her food according to the fair value of the food not furnished.
In Hessler v. Cleveland Punch & Shear | less, even if as a matter of law no demand was Works Co., 61 Ohio St. 621, 56 N. E. 469, necessary. it was held that the liability of the incorporators under section 3244, Revised Statutes, is for the amount of any deficiency in the actual payment of 10 per cent. of the authorized capital stock of the corporation at the time of their certifying as therein provided and not merely one-tenth of that amount. In the opinion it is stated that the incorporators are, in effect, made guarantors of the corporation to that amount. The duty of the incorporators, as to the filing of the certificates and their liability with respect thereto, is, in addition to the personal liability of each stockholder, to pay for the stock subscribed by him.
The Constitution confers upon the Legislature authority to provide means to secure the creditors of a corporation. Such provisions are necessary to insure good faith and to secure protection to persons dealing with such organizations.
[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 852-855; Dec. Dig. § 191.*] 6. TRIAL (§ 267*)-INSTRUCTIONS-MODIFICATION-AGREEMENTS TO SUPPORT AND MAIN
In an action for breach of an agreement to furnish plaintiff with board and food for life, it was not error to modify an instruction that to entitle her to recover she should have made be excused from making such demand, if she demand on defendant, by adding that she would was under a reasonable apprehension of bodily injury in case she went to defendant to make such demand, there being evidence tending to show that she was under such apprehension. [Ed. Note.-For other cases, see Trial, Cent.
The judgment of the court below will be Dig. 88 668-672, 674; Dec. Dig. § 267.*1
JOHNSON, DONAHUE, WANAMAKER,
NEWMAN, and WILKIN, JJ., concur.
(215 Mass. 542)
SODERLUND v. HELMAN (two cases). (Supreme Judicial Court of Massachusetts.
Worcester. Oct. 20, 1913.)
7. CONTRACTS (§ 277*)-AGREEMENTS TO SUPPORT AND MAINTAIN NECESSITY OF DEMAND.
and food for life, defendant was not in default
Under a contract to furnish plaintiff board
for failure to furnish such food until demanded; but plaintiff, in making the demand, was not bound to specify what food she needed.
[Ed. Note.-For other cases, see Contracts, Cent. Dig. §§ 1217-1232; Dec. Dig. § 277.*] 8. CONTRACTS (§ 277*)-FAILURE TO PERFORM -NECESSITY OF DEMAND.
Under an agreement absolutely and unthe rest of her life, no demand was necessary before bringing suit for overdue payments.
1. APPEAL AND ERROR (§ 930*)-REVIEW-conditionally to pay plaintiff $10 monthly for PRESUMPTIONS IN SUPPORT OF JUDGMENT. In an action on a contract written in a foreign language, where the parties differed as to its translation and meaning, it must be presumed that the jury, who returned a verdict for plaintiff, found that the translation contended for by plaintiff was correct.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3755-3761; Dec. Dig. § 930.*1
[Ed. Note.-For other cases, see Contracts Cent. Dig. §§ 1217-1232; Dec. Dig. § 277.*]
Exceptions from Superior Court, Worcester County; W. P. Hall, Judge.
Two actions by Katherine Soderlund against John Helman. Verdict for plaintiff 2. CONTRACTS (§ 349*)-AGREEMENTS TO SUP- in each case, and defendant brings excepPORT AND MAINTAIN-ACTIONS-EVIDENCE. tions. Exceptions overruled. In an action for breach of an agreement to furnish plaintiff with board and food for the rest of her life, evidence that she had been in need of food, and that she left defendant's house because she was afraid of him, was competent.
[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1096, 1781-1784, 1788-1798, 1809, 1811-1814, 1817, 1818; Dec. Dig. § 349.*] 3. CONTRACTS (8 349*)-AGREEMENTS TO SUPPORT AND MAINTAIN-ACTIONS-EVIDENCE. In an action for breach of an agreement to furnish plaintiff with board and food for the rest of her life, evidence as to the fair market price per week of a woman's board was competent on the question of damages.
[Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 1096, 1781-1784, 1788-1798, 1809, 1811-1814, 1817, 1818; Dec. Dig. § 349.*] 4. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.
In an action for breach of an agreement to pay plaintiff $10 monthly for life, evidence as to a demand on defendant for payment of the moneys due under the contract was harm
Peter F. Ward, of Fitchburg, for plaintiff. J. G. Annala, of Fitchburg, for defendant.
MORTON, J. These are two actions to recover damages for the breach of a written contract entered into, as alleged in the declaration, by the defendant and one Hanna Helman, his wife, with the plaintiff, whereby they agreed to furnish the plaintiff with board and food for the rest of her life and to pay her in addition $10 monthly during her life. Hanna Helman, the wife, died before the action was brought. There was a verdict for the plaintiff in each case, and the cases are here on exceptions by the defendant to the admission of evidence and to the refusal of the court to give certain rulings requested. The cases were tried and have been argued together.
 The contract was in Swedish and the
parties differed as to the translation and meaning of the language used. According to the translation contended for by the plaintiff, the defendant and his wife were to furnish the plaintiff with food for the remainder of her life according to her need and also to pay her $10 monthly. According to the construction contended for by the defendant the plaintiff was to receive from him and his wife board for the remainder of her life on demand according to her need, and this obligation was to be discharged by the payment of $10 monthly to her. It must be assumed that the jury found that the translation contended for by the plaintiff was the correct translation. [2-4] The plaintiff was permitted to testify subject to the defendant's exceptions that she had been in need of food, and that she left the defendant's house because she was afraid of him. The evidence was clearly competent as tending to show that the defendant had not furnished the plaintiff with food as he agreed and that the plaintiff was justified in leaving his house and in not going there for food. Evidence which was also introduced subject to the defendant's exception, of the fair market price per week of a woman's board, was competent on the question of damages as tending to show what was the fair value of the food which the defendant failed to furnish. The evidence of the deputy sheriff of the service by him upon the defendant of a demand by the plaintiff's attorney for the payment of all moneys due the plaintiff under the contract did the defendant no harm even if as matter of law no demand was necessary.
demand for food if in need thereof before the defendant could be said to be in default for failure to furnish it, she was not bound to specify what food she needed. It would have been enough to demand that she be supplied with food. Cases like Gushee v. Eddy, 11 Gray, 502, 71 Am. Dec. 728, relied on by the defendant, are not applicable.
 The fourth and last ruling requested was that to enable the plaintiff to recover she must have made a demand on the defendant. This was properly denied. According to evidence introduced by the plaintiff the defendant agreed absolutely and unconditionally to pay the plaintiff $10 monthly. That being so, no demand was necessary before bringing suit although, as already observed, one seems to have been made. Andrews v. Frye, 104 Mass. 234; 9 Am. & Eng. Encyc. of Law (2d Ed.) 199. Exceptions overruled.
(216 Mass. 79)
TOWN OF WINTHROP v. TOWN OF
(Supreme Judicial Court of Massachusetts.
1. REVIEW (§ 5*)-WRIT-DISCRETION.
Ordinarily it is a question of fact, depending in a large measure on the sound discretion of the trial court, whether justice requires the issuance of a writ of review.
[Ed. Note.-For other cases, see Review, Cent. Dig. § 5; Dec. Dig. § 5.*] 2. REVIEW (§ 5*)-WRIT OF REVIEW-DISCRE
Where an excepting party failed to get his exceptions passed on for three years after filing them, at the expiration of which time the judge who had heard the case died, and three years more elapsed before the exceptions were dismissed, whether a writ of review should be granted was a pure matter of discretion.
[Ed. Note.-For other cases, see Review, Cent. Dig. § 5; Dec. Dig. § 5.*] 3. JUDGMENT (§ 707*) CONCLUSIVENESS PARTIES.
action against it by the town of S. involving A judgment in favor of defendant in an the settlement of a pauper was no bar to a subsequent action by another town involving the same question; the parties being neither the same nor privies.
[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1230; Dec. Dig. § 707.*]
[5-7] The first ruling requested, that on all the evidence the plaintiff was not entitled to recover, was rightly refused. There plainly was evidence warranting verdicts for the plaintiff. The second request that the plaintiff could not recover for the food was also rightly refused. The defendant was bound to furnish the plaintiff food according to her need, and if he did not he was liable to her for the fair value of the food not furnished. So much of the third request as was to the effect that in order to entitle the plaintiff to recover for food she should have made demand therefor on the defendant, was given by the presiding judge with the qualification that the plaintiff would be excused from making such demand if under a reasonable apprehension of bodily injury in case she went to the defendant to make a demand for Petition for writ of review by the Inhabitfood. This was correct. There was evi- ants of the town of Winthrop against the dence tending to show that she was under Inhabitants of the town of Athol to review a such apprehension. The rest of the ruling judgment obtained by the town of Athol asked for to the effect that the demand must against petitioner in the action of Athol v. be accompanied with appropriate specifica- Winthrop for the support of one Daniels and tions of what food was needed, and unless family, alleged paupers. The petition was the jury were satisfied that a demand with filed December 2, 1912, and an order of notice such specifications was made the plaintiff duly issued thereon returnable December 16, could not recover, was rightly refused. 1912, on which date, after hearing, the petiWhile the plaintiff, unless excused by the tion was denied, and petitioner brings exdefendant's conduct, was bound to make a ceptions. Exceptions overruled.
Exceptions from Superior Court, Worcester County; John H. Hardy, Judge.
Contract on a note given by defendant to
Harold W. Orcutt, of Boston, for petitioner. Jas. A. Stiles and Clifford S. Anderson, the plaintiff, a brother of defendant's deboth of Gardner, for defendant.
PER CURIAM.  Ordinarily it is a question of fact, the decision of which depends in large measure upon sound judicial discretion, whether, under the law, justice to all parties concerned requires the issuance of a writ of review. Scituate Water Co. v. Simmons, 167 Mass. 313, 45 N. E. 750; Stillman v. Donovan, 170 Mass. 360, 49 N. E. 628; Welch v. Chase, 213 Mass. 519, 100 N. E. 634.
ceased husband. The note represented the amount of property which defendant had in her hands belonging to her deceased husband, and was given to Charles Crosier, the nominal plaintiff, for the benefit of children of Reuben Crosier, the defendant's husband.
C. P. Niles and J. W. Lewis, both of Pittsfield, and F. M. Myers, of North Adams, for plaintiff. Noxon & Eisner, of Pittsfield,
HAMMOND, J.  At the trial the sig The decision of the court below was nature of the defendant to the note was adbased upon this principle and plainly no error mitted. There was evidence from which the of law is disclosed in its application. Where jury might have found that the note thus an excepting party failed to get his excep- signed was delivered by the defendant to tions passed upon for three years after filing her husband, to be kept by him as the agent them, at the expiration of which time the of the payee Charles Crosier, her husband's judge who heard the case died, and three years more elapse before the exceptions are dismissed, it was a pure matter of discretion whether review should be granted. See Meehan, Petitioner, 208 Mass. 60, 94 N. E. 393.
 The only question of law presented on this record is whether a judgment in favor of this defendant in an action against it by the town of Stoughton involving the settlement of the same pauper was a bar to this action. Clearly it was not. The parties were not the same, nor were they privies. Braintree v. Hingham, 17 Mass. 432; Shutesbury v. Hadley, 133 Mass. 242. Exceptions overruled.
(215 Mass. 535)
CROSIER v. CROSIER.
(Supreme Judicial Court of Massachusetts. Berkshire. Oct. 20, 1913.)
1. BILLS AND NOTES (§ 63*) DELIVERY OF INSTRUMENT-SUFFICIENCY.
There was a good delivery of a note to the payee, where it was delivered by the maker to her husband with the knowledge and consent of the payee, to be held by the maker's husband as the payee's agent.
[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 95-103; Dec. Dig. § 63.*] 2. BILLS AND NOTES (§ 92*)-CONSIDERATION -SUFFICIENCY.
Defendant held property belonging to her deceased husband, and, pursuant to his wishes that its value be distributed among the children of defendant's husband, executed to plaintiff a note for the amount of such property for that purpose, and plaintiff received the note for the children's benefit. Held, that the note was supported by a sufficient consideration.
[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 166–173, 175-205, 208212; Dec. Dig. § 92.*]
Exceptions from Superior Court, Berkshire County; John C. Crosby, Judge.
Action by Charles Crosier against Kate L. Crosier. Verdict for plaintiff, and defendant excepts. Exceptions overruled.
brother, and all this by the knowledge and consent of Charles. This was a good delivery to the payee. From the time of such delivery the note belonged to Charles.
 Upon the question of consideration it appeared that Charles gave nothing for the note, but there was evidence that there was property in the hands of the defendant belonging in justice and equity to her husband and which in case of his decease should be regarded as a part of his estate and to be distributed as such; that the husband was willing that she should hold the property until his decease, but wanted to be sure that, to the amount of $1,800 at least, it should go to his children in certain definite shares named by him; that the defendant, intending to accede to his wishes and for the purpose of securing to his children this amount, executed this note to the plaintiff for the benefit of the husband's children, and that the plaintiff consented to act as trustee for the children, and that in pursuance of that arrangement the note was executed and delivered as above stated. Upon such findings there was a consideration for the note.
There was evidence therefore of the execution and delivery of the note and of a valid consideration.
The questions of the amount of the consideration and of the mental capacity of the husband were left to the jury upon instructions full, correct and illuminating. We see no error in the action of the court. Exceptions overruled.
(215 Mass. 591)
DELANEY v. BERKSHIRE ST. RY. CO. (Supreme Judicial Court of Massachusetts. Berkshire. Oct. 23, 1913.)
1. TRIAL (§ 267*)-INSTRUCTIONS-REQUESTS. Requested instructions, though applicable to the evidence and sound in law, need not be that they are given in substance; the degree of adopted in the words presented, but it is enough amplification with which a governing principle
shall be charged, as well as its phraseology, [ings to the effect in substance that the moresting almost wholly in the discretion of the judge.
[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 668-672, 674; Dec. Dig. § 267.*] 2. TRIAL (§ 115*)-ARGUMENTS-SUBJECT OF COMMENT.
Though defendant waived its motion, under St. 1911, c. 593, to compel disclosure of the names of plaintiff's witnesses, on agreement of her counsel to furnish them, and he omitted the name of one, such omission, having been an innocent inadvertence, does not authorize comment thereon in argument.
[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 279-283, 295, 298; Dec. Dig. § 115.*] 3. TRIAL (§ 129*)—ARGUMENTS-SUBJECT OF COMMENT.
Merely because frequently, in personal injury cases against a street railway, counsel for plaintiff urges that defendant is in a position to produce more witnesses than is plaintiff, and that this should be borne in mind in weigh ing evidence, is no reason for allowing defendant's counsel, at least in a case where no such suggestion has been made in behalf of plaintiff, to call attention in argument to St. 1911, c. 593, providing for an order compelling a party
to disclose the names of his witnesses.
[Ed. Note. For other cases, see Trial, Cent. Dig. § 310; Dec. Dig. § 129.*]
4. APPEAL AND ERROR (§ 1078*)-WAIVER OF EXCEPTIONS-FAILURE TO ARGUE.
Exceptions taken by a party, not having been argued, will be treated as waived. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4256-4261; Dec. Dig. § 1078.*]
Exceptions from Superior Court, Berkshire County; George A. Sanderson, Judge.
Action by Helen Delaney, by next friend, against the Berkshire Street Railway Company. There was a verdict for plaintiff, and defendant brings exceptions. Exceptions overruled.
Clarence P. Niles and Jos. Ward Lewis, both of Pittsfield, and Frederick M. Myers, of North Adams, for plaintiff. Henry W. Ely and Jos. B. Ely, both of Springfield, for de
RUGG, C. J. This is an action of tort for personal injuries received by a traveler with horse and vehicle upon the highway through an alleged collision with a car of the defendant. The evidence was conflicting. There was some which tended to show that the horse driven by the plaintiff showed no sign of fright or escape from control until it jumped in front of the car when almost alongside. There was other testimony from which it might have been found that the horse and attached vehicle were so near the track that the motorman, if looking, must have seen the danger of a clash for a considerable distance before he reached the place where it occurred. The court ruled that there was no evidence that the uneasiness or fright of the horse was caused by the car.
 1. Upon this state of the evidence thé defendant presented several requests for rul
torman was not required in the exercise of due care to stop his car or slacken its otherwise reasonable speed until the action of the horse was such as to afford ground for reasonable apprehension that unless he did so a collision would ensue, nor to assume that an apparently gentle horse under control suddenly would jump in front of the car or become unmanageable. These requests were applicable to the evidence and sound in law. But the judge was not obliged to adopt them in words presented. It was enough if he gave them in substance. This was done by the instruction: "If a team is being driven along outside of the line of the electric car, and there is nothing to show that it is likely to turn and nothing to call the motorman's attention to the possibility that it will turn, and he is running his car at a reasonable speed, in reasonable control, and suddenly without any warning, and before he has time to stop, the horse turns or is turned in front of his car, you could not say that he was careless." The degree of amplification with which a governing principle of law shall be stated in a charge to the jury, as well as its cretion of the judge. The record shows no phraseology, rests almost wholly in the diserror in this regard.
 2. The defendant waived a motion which it had filed under St. 1911, c. 593, that the plaintiff disclose the names of her witnesses, upon agreement by her counsel to furnish them, but by oversight of plaintiff's counsel (as the court found without objection upon statements made to him), the name of one was omitted. Under these circumstances the court rightly ruled that the defendant's counsel could not comment upon the incident.
An innocent inadvertence of
the attorney touching such a matter under the conditions disclosed afforded no just foundation for argument upon the merits of the issues.
 3. The defendant excepted to the refusal of the court to allow its counsel in his closing argument to the jury to refer to St. 1911, c. 593, which authorizes the court to compel either party upon terms to disclose the names and addresses of its witnesses, "if * * * where justice seems to require it, the names of witnesses are in the exclusive possession of one party to the action." There is nothing in the exceptions to show that this argument would have been pertinent to the issue. It did not relate to any evidence in the case nor to the failure of either side to produce evidence within his exclusive control or knowledge. The only ground upon which it now is sought to sustain the propriety of such an argument is that frequently in actions for personal injury against a street railway company it is urged by the plaintiff's counsel that the defendant is in a position to produce more wit