(88 Ohio St. 297)

terest, and costs as should not be paid by the AMES et al. V. McCAUGHEY et al. glass company and the stockholders, and en(Supreme Court of Ohio. May 13, 1913.)

tered judgment accordingly.

It is contended by the plaintiffs in error (Syllabus by the Court.)

that in the original suit against the glass CORPORATIONS (8 30*)—LIABILITY OF INCOR- company jurisdiction was not obtained of PORATORS.

A corporation for profit was duly created that company; it being claimed that service and organized under the laws of Ohio in 1906 was made on one Edgar Berry as the duly and became indebted for personal property pur- elected president of the company, whereas it chased for use in its proposed business. No was claimed that in fact no president had part of the capital stock was paid into the been elected. As to this, it is sufficient to treasury of the company. Held, under section 3244, Revised Statutes, which was then in say that it appears from the record that the force, the incorporators are liable to the cred service on the glass company was not attackitors of the company to the amount of any defi- ed or questioned in the original action in ciency in the actual payment of 10 per cent. of the authorized capital stock. Hessler v.

any manner. On the contrary, that comCleveland Punch & Shear Works Co. et al., 61 pany filed an answer in which it admitted Ohio St. 621, 56 N. E. 469, approved and 'fol- that it was a corporation duly organized unlowed.

der the laws of Ohio and proceeded to set up [Ed. Note. For other cases, see Corporations, matters of defense to the action. This was Cent. Dig. $$ 97-100; Dec. Dig. 8 30.*]

a general appearance by the defendant and Error to Circuit Court, Knox County.

amounted to a waiver of service. Action by William D. McCaughey, receiver, It is also insisted that the circuit court and others against one Ames and others. erred in entering judgment against the inJudgment for plaintiffs, and defendants bring corporators, because it is claimed that no cererror. Affirmed.

tificate of the subscription of 10 per cent. of Waight & Moore and H. C. Devin, all of the capital stock of the Vernonview Glass Mt. Vernon, for plaintiffs in error. John D. Company was ever signed by the incorporaSnyder and Hiram Van Campen, both of Find-tors and filed with the Secretary of State. lay, and D. B. Grubb, of Columbus, for de- As already stated, the court found in the fendants in error.

original case, and also in the subsequent eq

uity case, that the Vernonview Glass ComPER CURIAM. The Findlay Foundry & pany was a corporation duly created and orMachine Company recovered a judgment for ganized under the laws of Ohio, and that it $2,037.34 against the Vernonview Glass Com- became indebted as such to the Foundry & pany at the May term, 1908, of the Knox Machine Company in the amount stated. In common pleas. Subsequently William D. Mc-such circumstances the presumption is that Caughey was appointed and qualified as re- the organization was made in accordance ceiver of the Foundry & Machine Company with legal requirements. But it is contendand in December, 1908, brought suit against ed by plaintiffs in error that this finding and the glass company as an insolvent corpora- judgment can create no presumption that tion and all of its stockholders who were anything more was done than was necessary discovered, among whom were the five orig- to legally organize the company. That is, inal incorporators, to enforce payment of the that under section 8633, General Code, 10 amount remaining unpaid on his judgment; per cent. of the capital stock was subscribed, the suit being brought in behalf of the re- of which portion 10 per cent., or $650, was ceiver and all other creditors. Judgment payable at the time of the subscription, and was rendered for plaintiff in the common that under section 8634, General Code, the pleas. On appeal to the circuit court a like liability of the incorporators is for the judgment was rendered. This proceeding is amount of any deficiency in the payment of brought to reverse the judgment of the cir-10 per cent. on the stock subscribed and cuit court.

therefore could not exceed $650. However The circuit court made a finding of facts that may be, in a case in which the question from which it appears that the glass company is presented, it cannot avail plaintiffs here. was duly incorporated under the laws of The statute, as it stood at the time of the ocOhio with an authorized capital stock of $65,- currence of the transactions involved in this 000, and that the defendants named were in proceeding, was included in section 3244, corporators thereof; that four of the defend- Revised Statutes, and provided that, as soon ants had each subscribed for $50, being one as 10 per cent. of the capital stock was subshare of the capital stock; that no part of scribed, the subscribers to the articles of inthe subscriptions were paid; and that the corporation, or a majority of them, should glass company was insolvent. No part of the so certify in writing to the Secretary of capital stock was ever paid into the treasury State, and also contained the provision: “The of the company. The court found that the incorporators of the company shall be liable incorporators were liable as guarantors to to any person affected. thereby, to the amount the plaintiff, who was the sole creditor of the of any deficiency in the actual payment of glass company, for as much of his claim, in- said 10 per cent. at the time of so certifying." In Hessler v. Cleveland Punch & Shearless, 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 incorpo- Error, Cent. Dig. $s 1068, 1069, 4153-4157,

[Ed. Note.–For other cases, see Appeal and rators under section 3244, Revised Statutes, 4166;' Dec. Dig. j 1050.*]

, $$ is for the amount of any deficiency in the ac- 5. CONTRACTS ($ 191*)—AGREEMENTS TO SUP

— tual payment of 10 per cent. of the author

PORT AND MAINTAIN. ized capital stock of the corporation at the Under a contract to furnish plaintiff with time of their certifying as therein provided board and food for the rest of her life, defendant and not merely one-tenth of that amount. her needs, and, if he did not, he was liable for

was bound to furnish her food according to In the opinion it is stated that the incor- the fair value of the food not furnished. porators are, in effect, made guarantors of [Ed. Note.-For other cases, see Contracts, the corporation to that amount. The duty of Cent. Dig. 88 852–855; Dec. Dig. § 191.*] the incorporators, as to the filing of the cer-6. TRIAL ($ 267*)-INSTRUCTIONS - MODIFICAtificates and their liability with respect there

TION-AGREEMENTS TO SUPPORT AND MAIN

TAIN. to, is, in addition to the personal liability of

In an action for breach of an agreement each stockholder, to pay for the stock sub-to furnish plaintiff with board and food for life, scribed by him.

it was not error to modify an instruction that The Constitution confers upon the Legisla- to entitle her to recover she should have made

demand on defendant, by adding that she would ture authority to provide means to secure the be excused from making such demand, if she creditors of a corporation. Such provisions was under a reasonable apprehension of bodily are necessary to insure good faith and to se- injury in case she went to defendant to make cure protection to persons dealing with such such demand, there being evidence tending to

show that she was under such apprehension. organizations.

[Ed. Note. For other cases, see Trial, Cent. The judgment of the court below will be Dig. $8 668-672, 674; Dec. Dig. § 267.*] affirmed.

7. CONTRACTS ($ 277*)-AGREEMENTS TO SUPJudgment affirmed.

PORT AND MAINTAIN NECESSITY OF DE-
MAND.

Under a contract to furnish plaintiff board JOHNSON, DONAHUE, WANAMAKER,

and food for life, defendant was not in default NEWMAN, and WILKIN, JJ., concur.

for failure to furnish such food until demanded; but plaintiff, in making the demand, was

not bound to specify what food she needed. (215 Mass. 542)

[Ed. Note. For other cases, see Contracts,

Cent. Dig. $$ 1217–1232; Dec. Dig. & 277.*] SODERLUND v. HELMAN (two cases).

8. CONTRACTS ($ 277*)-FAILURE TO PERFORM (Supreme Judicial Court of Massachusetts.

-NECESSITY OF DEMAND.
Worcester. Oct. 20, 1913.)

Under an agreement absolutely and un1. APPEAL AND ERROR (8 930*)-REVIEW

ERROR (8 930*)-REVIEW-conditionally to pay plaintiff $10 monthly for PRESUMPTIONS IN SUPPORT OF JUDGMENT. the rest of her life, no demand was necessary

In an action on a contract written in a before bringing suit for overdue payments. foreign language, where the parties differed as [Ed. Note.--For other cases, see Contracts to its translation and meaning, it must be Cent. Dig. 88 1217-1232; Dec. Dig. 8 277.*] presumed that the jury, who returned a verdict for plaintiff, found that the translation con

Exceptions from Superior Court, Worcestended for by plaintiff was correct.

ter County; W. P. Hall, Judge. [Ed. Note. For other cases, see Appeal and

Two actions by Katherine Error, Cent. Dig. $$ 3755-3761; Dec. Dig. 8

Soderlund 930.*)

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

Peter F. Ward, of Fitchburg, for plaintiff. to furnish plaintiff with board and food for the rest of her life, evidence that she had been in J. G. Annala, of Fitchburg, for defendant. need of food, and that she left defendant's house because she was afraid of him, was competent.

MORTON, J. These are two actions to re[Ed. Note. For other cases, see Contracts, cover damages for the breach of a written Cent. Dig. $$ 1096, 1781-1784, 1788–1798, 1809, contract entered into, as alleged in the dec1811-1814, 1817, 1818; Dec. Dig. $ 349.*]

laration, by the defendant and one Hanna 3. CONTRACTS (8 349*)—AGREEMENTS TO SUP-Helman, his wife, with the plaintiff, whereby PORT

MAINTAIN-ACTIONS-EVIDENCE. In an action for breach of an agreement to they agreed to furnish the plaintiff with furnish plaintiff with board and food for the board and food for the rest of her life and rest of her life, evidence as to the fair market to pay her in addition $10 monthly during price per week of a woman's board was com- her life. Hanna Helman, the wife, died bepetent on the question of damages. [Ed. Note. For other cases, see Contracts, fore the action was brought. There was a

Cent. Dig$$ 1096, 1781-1784, 1788–1798, 1809, verdict for the plaintiff in each case, and the 1811-1814, 1817, 1818; Dec. Dig. $ 349.*] cases are here on exceptions by the defendant 4. APPEAL AND ERROR (8 1050*)-HARMLESS to the admission of evidence and to the reERROR-ADMISSION OF EVIDENCE.

AND

parties differed as to the translation and demand for food if in need thereof before the meaning of the language used. According defendant could be said to be in default for to the translation contended for by the plain- failure to furnish it, she was not bound to tiff, the defendant and his wife were to fur- specify what food she needed. It would have nish the plaintiff with food for the remainder been enough to demand that she be supplied of her life according to her need and also to with food. Cases like Gushee v. Eddy, 11 pay her $10 monthly. According to the con- Gray, 502, 71 Am. Dec. 728, relied on by the struction contended for by the defendant the defendant, are not applicable. plaintiff was to receive from him and his wife [8] The fourth and last ruling requested board for the remainder of her life on demand was that to enable the plaintiff to recover according to her need, and this obligation was she must have made a demand on the defend. to be discharged by the payment of $10 ant. This was properly denied. According monthly to her. It must be assumed that the to evidence introduced by the plaintiff the jury found that the translation contended for defendant agreed absolutely and uncondiby the plaintiff was the correct translation. tionally to pay the plaintiff $10 monthly.

[2-4] The plaintiff was permitted to testify That being so, no demand was necessary besubject to the defendant's exceptions that fore bringing suit although, as already obshe had been in need of food, and that she served, one seems to have been made. Anleft the defendant's house because she was drews v. Frye, 104 Mass. 234; 9 Am. & Eng. afraid of him. The evidence was clearly Encyc. of Law (2d Ed.) 199. competent as tending to show that the de- Exceptions overruled. fendant had not furnished the plaintiff with food as he agreed and that the plaintiff was justified in leaving his house and in not

(216 Mass. 79) going there for food. Evidence which was

TOWN OF WINTHROP v TOWN OF also introduced subject to the defendant's

ATHOL. exception, of the fair market price per week of a woman's board, was competent on the

(Supreme Judicial Court of Massachusetts.

Worcester. Oct. 22, 1913.) question of damages as tending to show what was the fair value of the food which the de- 1. REVIEW (8 5*)-WRIT-DISCRETION. fendant failed to furnish. The evidence of ing in a large measure on the sound discretion

Ordinarily it is a question of fact, dependthe deputy sheriff of the service by him upon of the trial court, whether justice requires the the defendant of a demand by the plaintiff's issuance of a writ of review. attorney for the payment of all moneys due [Ed. Note. For other cases, see Review, the plaintiff under the contract did the de-Cent. Dig. & 5; Dec. Dig. & 5.*] fendant no harm even if as matter of law 2. REVIEW (8 5*)_WRIT OF REVIEW-DISCREno demand was necessary.

TION.

Where an excepting party failed to get his [5-7] The first ruling requested, that on all exceptions passed on for three years after filing the evidence the plaintiff was not entitled them, at the expiration of which time the judge to recover, was rightly refused. There plain- who had heard the case died, and three years ly was evidence warranting verdicts for the ed, whether a writ of review should be grant

more elapsed before the exceptions were dismissplaintiff. The second request that the plain-ed' was a pure matter of discretion. tiff could not recover for the food was also [Ed. Note. For other cases, see Review, rightly refused. The defendant was bound to Cent. Dig. § 5; Dec. Dig. § 5.*] furnish the plaintiff food according to her 3. JUDGMENT (8 707*) CONCLUSIVENESS

PARTIES. need, and if he did not he was liable to her for the fair value of the food not furnished. action against it by the town of S. involving

A judgment in favor of defendant in an So much of the third request as was to the the settlement of a pauper was no bar to a effect that in order to entitle the plaintiff to subsequent action by another town involving recover for food she should have made de the same question; the parties being neither mand therefor on the defendant, was given

the same nor privies.

[Ed. Note. For other cases, see Judgment, by the presiding judge with the qualification Cent. Dig. § 1230; Dec. Dig. $ 707.*] that the plaintiff would be excused from making such demand if under a reasonable Exceptions from Superior Court, Worcester apprehension of bodily injury in case she County; John H. Hardy, Judge. 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,

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.

Harold W. Orcutt, of Boston, for petition- Contract on a note given by defendant to er. Jas. A. Stiles and Clifford S. Anderson, the plaintiff, a brother of defendant's deboth of Gardner, for defendant.

ceased husband. The note represented the

amount of property which defendant had in PER CURIAM. [1] Ordinarily it is a her hands belonging to her deceased husband, question of fact, the decision of which de- and was given to Charles Crosier, the nominal pends in large measure upon sound judicial plaintiff, for the benefit of children of Reuben discretion, whether, under the law, justice Crosier, the defendant's husband. to all parties concerned requires the is

C. P. Niles and J. W. Lewis, both of Pitts-
suance of a writ of review. Scituate Water field, and F. M. Myers, of North Adams,
Co. v. Simmons, 167 Mass. 313, 45 N. E. 750; for plaintiff. Noxon & Eisner, of Pittsfield,
Stillman v. Donovan, 170 Mass. 360, 49 N. E.

for defendant.
628; Welch v. Chase, 213 Mass. 519, 100 N. E.
634.

HAMMOND, J. [1] At the trial the sig-
[2] The decision of the court below was nature of the defendant to the note was ad-
based 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 brother, and all this by the knowledge and
years more elapse before the exceptions are consent of Charles. This was a good delivery
dismissed, it was a pure matter of discretion to the payee. From the time of such delivery
whether review should be granted. See the note belonged to Charles.
Meeban, Petitioner, 208 Mass. 60, 94 N. E.

[2] Upon the question of consideration it 393.

appeared that Charles gave nothing for the [3] The only question of law presented on note, but there was evidence that there was this record is whether a judgment in favor property in the hands of the defendant beof this defendant in an action against it by longing in justice and equity to her husband the town of Stoughton involving the settle- and which in case of his decease should be rement of the same pauper was a bar to this garded as a part of his estate and to be disaction. Clearly it was not. The parties tributed as such; that the husband was willwere not the same, nor were they privies. ing that she should hold the property until Braintree v. Hingham, 17 Mass. 432; Shutes- his decease, but wanted to be sure that, to bury v. Hadley, 133 Mass. 242.

the amount of $1,800 at least, it should go to Exceptions overruled.

his children in certain definite shares named by him; that the defendant, intending to

accede to his wishes and for the purpose of (215 Mass. 535)

securing to his children this amount, exeCROSIER v. CROSIER.

cuted this note to the plaintiff for the ben(Supreme Judicial Court of Massachusetts. efit of the husband's children, and that the Berkshire. Oct. 20, 1913.)

plaintiff consented to act as trustee for the

children, and that in pursuance of that ar1. BILLS AND NOTES (8 63*) DELIVERY OF INSTRUMENT-SUFFICIENCY.

rangement the note was executed and deliverThere was a good delivery of a note to the ed as above stated. Upon such findings there payee, where it was delivered by the maker to was a consideration for the note. her husband with the knowledge and consent

There was evidence therefore of the execuof the payee, to be held by the maker's husband as the payee's agent.

tion and delivery of the note and of a valid [Ed. Note.-For other cases, see Bills and consideration. Notes, Cent. Dig. $$ 95–103; Dec. Dig. § 63.*] The questions of the amount of the con2. BILLS AND NOTES ($ 92*)–CONSIDERATION sideration and of the mental capacity of the -SUFFICIENCY.

husband were left to the jury upon inDefendant held property belonging to her deceased husband, and, pursuant to his wishes structions full, correct and illuminating. We that its value be distributed among the children see no error in the action of the court. of defendant's husband, executed to plaintiff a Exceptions overruled. 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.

(215 Mass. 591) [Ed. Note. For other cases, see Bills and DELANEY V. BERKSHIRE ST. RY. CO. Notes, Cent. Dig. $$ 166–173, 175–205, 208– 212; Dec. Dig. & 92.*]

(Supreme Judicial Court of Massachusetts.

Berkshire. Oct. 23, 1913.) Exceptions from Superior Court, Berkshire 1. TRIAL (& 267*)-INSTRUCTIONS-REQUESTS. County; John C. Crosby, Judge.

Requested instructions, though applicable Action by Charles Crosier against Kate L. to the evidence and sound in law, need not be Crosier. Verdict for plaintiff, and defendant adopted in the words presented, but it is enough

that they are given in substance; the degree of excepts. Exceptions overruled.

amplification with which a governing principle

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

shall be charged, as well as its phraseology, (ings to the effect in substance that the moresting almost wholly in the discretion of the torman was not required in the exercise of judge. [Ed. Note. For other cases, see Trial, Cent. wise reasonable speed until the action of

[Ed. Note.-For other cases, see Trial, Cent. due care to stop his car or slacken its otherDig. $8 668-672, 674; Dec. Dig. § 267.*]

the horse was such as to afford ground for 2. TRIAL (8 115*)-ARGUMENTS–SUBJECT OF COMMENT.

reasonable apprehension that unless he did Though defendant waived its motion, un- so a collision would ensue, nor to assume der St. 1911, c. 593, to compel disclosure of that an apparently gentle horse under control the names of plaintiff's witnesses, on agreement of her counsel to furnish them, and he suddenly would jump in front of the car or omitted the name of one, such omission, hav- become unmanageable. These requests were ing been an innocent inadvertence, does not applicable to the evidence and sound in law. authorize comment thereon in argument. But the judge was not obliged to adopt them

[Ed. Note. For other cases, see. Trial, Cent. in words presented. Dig. $$ 279-283, 295, 298; Dec. Dig. $ 115.*]

It was enough if he

gave them in substance. This was done by 3. TRIAL (8 129*)—ARGUMENTS_SUBJECT OF the instruction: “If a team is being driven COMMENT.

Merely because frequently, in personal in- along outside of the line of the electric car, jury cases against a street railway, counsel and there is nothing to show that it is likely for plaintiff urges that defendant is in a posi- to turn and nothing to call the motorman's tion to produce more witnesses than is plaintiff, and that this should be borne in mind in weigh- attention to the possibility that it will turn, ing evidence, is no reason for allowing defend- and he is running his car at a reasonable ant's counsel, at least in a case where no such speed, in reasonable control, and suddenly suggestion has been made in behalf of plaintiff, without any warning, and before he has time to call attention in argument to St. 1911, c. 593, providing for an order compelling a party to stop, the horse turns or is turned in front to disclose the names of his witnesses.

of his car, you could not say that he was [Ed. Note.For other cases, see Trial, Cent. careless." The degree of amplification with Dig. $ 310; Dec. Dig. $ 129.*]

which a governing principle of law shall be 4. APPEAL AND ERROR (8 1078*)-WAIVER OF stated in a charge to the jury, as well as its EXCEPTIONS-FAILURE TO ARGUE.

Exceptions taken by a party, 'not having phraseology, rests almost wholly in the disbeen argued, will be treated as waived.

cretion of the judge. The record shows no [Ed. Note.-For other cases, see Appeal and error in this regard. Error, Cent. Dig. $8 4256–4261; Dec. Dig. 8 [2] 2. The defendant waived a motion 1078.*]

which it had filed under St. 1911, c. 593, that Exceptions from Superior Court, Berkshire the plaintiff disclose the names of her witCounty; George A. Sanderson, Judge.

nesses, upon agreement by her counsel to Action by Helen Delaney, by next friend, furnish them, but by oversight of plaintiff's against the Berkshire Street Railway Com- counsel (as the court found without objecpany. There was a verdict for plaintiff, and tion upon statements made to him), the name defendant brings exceptions. Exceptions of one was omitted. Under these circumoverruled.

stances the court rightly ruled that the deClarence P. Niles and Jos. Ward Lewis, fendant's counsel could not comment upon both of Pittsfield, and Frederick M. Myers, of the incident. An innocent inadvertence of North Adams, for plaintiff. Henry W. Ely the attorney touching such a matter under and Jos. B. Ely, both of Springfield, for de- the conditions disclosed afforded no just fendant,

foundation for argument upon the merits of

the issues. RUGG, C. J. This is an action of tort for ,

[3] 3. The defendant excepted to the refuspersonal injuries received by a traveler with al of the court to allow its counsel in his horse and vehicle upon the highway through closing argument to the jury to refer to St. an alleged collision with a car of the defend1911, c. 593, which authorizes the court to ant. The evidence was conflicting. There compel either party upon terms to disclose was some which tended to show that the the names and addresses of its witnesses, "if horse driven by the plaintiff showed no sign justice seems to require it,

where of fright or escape from control until it the names of witnesses are in the exclusive jumped in front of the car when almost possession of one party to the action." alongside. There was other testimony from There is nothing in the exceptions to show which it might have been found that the that this argument would have been pertihorse and attached vehicle were so near the nent to the issue. It did not relate to any track that the motorman, if looking, must evidence in the case nor to the failure of have seen the danger of a clash for a con- either side to produce evidence within his siderable distance before he reached the exclusive control or knowledge.

The only place where it occurred. The court ruled ground upon which it now is sought to susthat there was no evidence that the uneasi- tain the propriety of such an argument is ness or fright of the horse was caused by that frequently in actions for personal inthe car.

jury against a street railway company it is [1] 1. Upon this state of the evidence thé urged by the plaintiff's counsel that the dedefendant presented several requests for rul- | fendant is in a position to produce more wit

*