When Mrs. Eisenzimmer was put upon the stand she testified that she went to the agent of the defendant to procure the policy of insurance, and that the information upon which the policy was issued was furnished by her and taken down in writing by the agent of the defendant, and this writing was introduced in evidence, and it shows that the plaintiff was to be the assured. The plaintiff tried to prove by his wife that all of the consideration for the purchase of the lot was paid by him, and that the cost of the erection of the building covered by the insurance was paid solely by his money. This evidence was objected to and the objection was sustained, and what the witness was expected to testify to is fully set forth in the bill of exceptions.

The plaintiff offered himself as a witness, and offered to prove that he paid the sole consideration for the purchase of said lot and the construction and erection of said house. The defendant objected to this evidence, which objection was sustained and exceptions were taken by the plaintiff, and a full offer of proof is contained in the bill of exceptions. Plaintiff also offered to prove that he superintended the construction and erection of said building, to which the defendant objected, which objection was sustained. The record further shows that the plaintiff rented the house to the tenants who occupied it, and that he otherwise looked after said property. The plaintiff also offered evidence to show that he rented to the tenants solely for dwelling house purposes, which was objected to by the defendant, which objection was sustained.

The defendant claims that the plaintiff was not the sole and unconditional owner of said dwelling house, and that it was not erected upon land of which he was the owner in fee simple, the claim being made that, when the title to said property was taken in the joint names of the husband and wife, the presumption arose that the husband intended to and did make a gift to his wife of the undivided one-half of said property, and that, therefore, he was not the sole and unconditional owner of the same and did not own the land in fee simple, and further, that the interest of the insured was not truly stated in said policy.

We agree with the claim of the defendant that a presumption did arise as claimed by it.

"The rule as to the presumption in such cases is properly laid down by the counsel for the bank, from 2 Maddock's Chancery, 112-where a person purchases property with his own funds, and places the title in the name of a stranger, the legal presumption is that he made such purchase for his own use, and that the property is held in trust for

ance is made by a man to a member of his own family, the presumption is the other way, and the property is held to be a gift or advancement. These are, however, mere abstract presumptions that may be rebutted by circumstances or evidence going to show a different intention, and each case has to be determined by the reasonable presumptions arising from all the acts and circumstances connected with it; so that it may happen, that where property is thus purchased and placed in the name of a stranger, the presumption that the law will draw, taking all the circumstances into consideration, will be that the property was intended for and vested absolutely in the person in whose name it was placed. On the other hand, it frequently occurs that property purchased and paid for by the father and placed in the name of a child, even where there is no positive evidence of trust, will be presumed, from the facts connected with it, to be intended for the use of the father, and held in trust for him." Creed v. Lancaster Bank, 1 Ohio St. 1, at p. 10.

See, also, section 1039 of volume 3 of the fourth edition of Pomeroy's Equity Jurisprudence.

As stated in the case of Creed v. Bank, supra, the presumption of a gift or advancement to a wife or child is rebuttable, and where title to real estate is taken in the name of a wife subsequent admissions of the wife are competent, with other evidence, to prove that it was not the intention of the husband to make it a gift to the wife.

:

"Where a man purchases real estate, and has the title made to his wife or child, whether the transaction is to be regarded as a settlement or an advancement, is purely a question of intention. The presumption, however, in the first instance is that the conveyance was intended as an advancement-but that presumption may be overcome by evidence." Wormley v. Wormley, 98 111. 544.

Where it appears that after a deed to a wife was given the husband continued to control and manage the property, that he improved it, and paid the taxes, and appropriated the rents to his own use, and that the wife on several occasions stated that she did not own the land, but held it in trust for her husband, the presumption of gift arising from the relationship is rebutted, and the beneficial interest in the land belongs to the husband. Elliott v. Prater, 260 111, 64, 102 N. Ε. 1015.

"A presumption of fact is an inference which the triers of fact may draw from the existence of certain established facts, but which they are not required to draw, while a presumption of law is an inference which, in the absence of direct evidence on the subject, the law requires to be drawn from the

V.

See, also, Smithsonian Institution Meech, 169 U. S. 398, 18 S. Ct. 396, 42 L. Ed. 793; Bachseits v. Leichtweis, 256 Ill. 357, 100 Ν. Ε. 197.

From the foregoing authorities it is clear that the presumption which did arise in this case might be overcome by other evidence.

[2] We are therefore unanimously of the opinion that the evidence tendered by the plaintiff that he furnished all of the consideration for the purchase of said lot, and, for the erection of said building, was properly offered and ought to have been received by the trial court, and that its rejection was prejudicial error. This evidence was competent, first, to show that although the deed was taken in the joint names of the plaintiff and his wife, she did not furnish any of the consideration therefor, and it therefore was not held by her by right of purchase; and, second, plaintiff having furnished all of the money for this purpose, this fact, taken with other competent evidence, might show that he did not intend to make a gift to his wife, and thus overcome the legal presumption that would arise from the mere taking of title in the name of the wife. Whether or not the plaintiff intended it to be a gift was a question to be determined from all the evidence, and could not rest entirely upon the deed which was offered in evidence, which raised only a presumption in favor of its being a gift.

[3] The evidence admitted in this case tended to show that the plaintiff had the control and supervision of the construction and erection of this house; that he was in possession of the same, through his tenant, from the time of its construction until the time of its destruction. The evidence further tended to show that the wife was not making any claim that she owned either the house or the land upon which it was built, because it was she who had the property insured in the name of the plaintiff. This was in the nature of a disclaimer on her part

that she owned said property, and an admission that both the house and lot belonged to the plaintiff.

The policy required the plaintiff to be the sole and unconditional owner of the property insured, and he was required to own the land upon which the building was situated, in fee simple. It was conceded that he owned one-half of the same in fee simple, and the question of whether he owned the other half in fee simple was one of fact to be determined by the jury, under proper instructions from the court. The plaintiff might have owned all of the property in fee simple without having any written evidence of title at all, or he might have written evidence of title to only one-half of the property and the other one-half might be held in trust for

title.

As is said in the defendant's brief:

"Construing the provision of the policy requiring sole and unconditional ownership the rule is well settled that the test of sole and unconditional ownership is whether the insured must sustain the entire loss in case property be destroyed, and if the insured's title is such that some person other than the insured will share in the loss in case of fire-then the insured's title is not that of sole and unconditional ownership. 2 Clement on Fire Insurance, p. 152, rule 7:

"To be unconditional and sole the interest must be completely vested in the insured, not conditional or contingent, nor for years, or for life only, nor in common, but of such a nature that the insured must sustain the entire loss if the property be destroyed; and this is so whether the title is legal or equitable.'

"This language is cited as settled law by the court in Hartford Fire Ins. Co. v. Keating, 86 Md. 130, 145 [38 A. 29, 31, 63 Am. St. Rep. 499]."

The author then continues:

"A test of sole unconditional ownership is to inquire whether the interest, legal or equitable,

as owner is of such a nature that the insured must sustain the entire loss if the property be destroyed."

This, then, presents a question of fact for determination by the jury: Whether the plaintiff was the real owner of the property in fee simple, and whether he must sustain the entire loss of the property destroyed. The fact that the technical legal title to part of the property stood in the name of another is not conclusive and controlling, and competent evidence was admissible to show that the insured was such real owner that the entire loss in case of fire would fall upon him.

When the defendant made its motion, at the close of plaintiff's case, it thereby made certain admissions which the trial court was

required to take into consideration in arriving at a proper decision upon the motion.

In the case of Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 Ohio St. 628, 64 Am. Dec. 610, the syllabus reads, in part:

"The courts of this state, in a proper case, have the power to take the evidence given by the plaintiff from the jury, and order a peremptory nonsuit.

"Such a motion involves an admission of all

the facts, which the evidence in any degree tends to prove, and presents only a question of law, whether each fact indispensable to the right of action, and put in issue by the pleadings, has been supported by some evidence.

"If it has, the motion must be denied; as no finding of facts by the court, or weighing of the evidence, is permitted."

And on page 646, the court, in its opinion, says:

"The motion involves not only an admission of the truth of the evidence, but the existence of all the facts which the evidence conduces to

tion, principally the case of Chysky v. Drake Bros. Co., 235 N. Y. 468, 139 Ν. Ε. 576, 27 A. L. R. 1533, where the court, in its opinion,

said:

"The general rule is that a manufacturer or seller of food, or other articles of personal property, is not liable to third persons, under an implied warranty, who have no contractual relations with him. The reason for this rule is that privity of contract does not exist between the seller and such third persons, and unless there be privity of contract, there can be no implied warranty. The benefit of a warranty, either express or implied, does not run with a chattel on its resale, and in this respect is unlike a covenant running with the land so as to give a subsequent purchaser a right of action against the original seller on a warranty.

"It may be assumed that under certain facts and conditions the manufacturer of an article would be liable to a third person, even though no contractual relation existed between them. if the article sold were negligently prepared or manufactured."

Also the case of Pelletier v. Du Pont, 124 Me. 269, 128 A. 186, 39 A. L. R. 972, in which case propositions 1 and 7 of the syllabus as it appears in 39 A. L. R. 972, read:

"1. No implied warranty runs from a manufacturer of food products to a consumer who purchases from a middleman."

"7. There can be no implied warranty without privity of contract, and warranties as to personal property do not attach themselves to and run with the article sold."

It is claimed by the Baking Company that the above entitled case was applied to an action by a purchaser from a middleman against a manufacturer, involving the purchase from the middleman of a loaf of bread containing an imbedded pin.

The defendant in error cites a number of authorities sustaining his position that an implied warranty arose in favor of the ultimate purchaser, particularly the case of Liggett & Myers Tobacco Co. v. Cannon, 132 Tenn. 419, 178 S. W. 1009, L. R. A. 1916A, 940, Ann. Cas. 1917A, 179, where it is held that the preparation of foodstuffs, whose only use is to be taken and consumed by human beings for the nourishment of the body, and which serve through organic action to build up normal tissue, is one of the few exceptions to the general rule that ordinarily the manufacturer of the articles placed by him on the market for sale, and sold by a middleman to an ultimate consumer, is not liable to the last named for injuries due to impurities in the commodity. Quoting from 1 Williston on Sales (2d Ed.) § 244, wherein this proposition is discussed and the following paragraph is found:

"The general rule that warranties do not run in favor of any but an immediate purchaser has been held applicable in a number of cases where food has been sold to a subpurchaser. Several recent cases, however, have imposed

the absolute liability of a warrantor on such manufacturer in favor of the ultimate purchaser. There should be no doubt that the manufacturer is liable in tort to the ultimate purchaser for the consequences of negligence if negligence can be established, but to go further seems somewhat severe."

[1] In view of the seeming conflict of authorities upon the subject there being no direct authority in Ohio covering a case exactly like the case at bar, we find ourselves on virgin territory and are free to resort to our own processes of reasoning and consideration of the demands of justice.

[2, 3] The Baking Company, when it delivered the cake in question to the groceryman, to say the least, impliedly represented to the public, who is the ultimate consumer, that this cake is free from injurious substances and fit for consumption as food. There is no doubt that an implied warranty arises between the groceryman who purchased the cake and the Baking Company. Since the Baking

Company was fully aware that the groceryman did not purchase the cakes for his own consumption, but purchased the same instead for the purpose of selling the same to members of the public, who are the ultimate consumers, this implied obligation which unquestionably arose in favor of the groceryman may be legally said to have also arisen for the benefit of the consumer. The gro

ceryman, who is in effect merely a distributing medium for the articles of food furnished by the Baking Company, and the Baking Company, having full knowledge of that fact, dealt with each other and entered into a contractual relationship for the benefit of the public, which is the ultimate consumer. In other words, this contract between the groceryman and the Ward Baking Company to all intents and purposes was a contract entered into for the benefit of a third party, to wit, the ultimate consumer. Whatever implied warranty arises in favor of the groceryman, who established the contractual relationship with the Baking Company, is for the benefit of this third party, namely, the ultimate consumer.

While we have not made a minute examination of the authorities cited, and that are claimed to bear upon the legal point in question, we are content to place ourselves in the category of the minority states, if such be the case, and to hold that there is imposed the absolute liability of a warrantor on the manufacturer of articles of food in favor of the ultimate purchaser, even though there are no direct contractual relationships between such ultimate purchaser and the manufac

turer.

We therefore find no error in the refusal of the court to direct a verdict in favor of the Baking Company, or in the action of the court in instructing the jury on the question of implied warranty.