Walker & Ireland, Assignees v. Walker et al.

of the father, and probably of the mother, to save something for themselves and their children out of the wreck, no doubt prompted the belief that he at sometime had entered into such a contract with his children.

Such contracts as detailed under the circumstances in this case, are, in the language of the court, "extremely suspicious," and a court should not uphold them in the face of the rights of creditors, unless, as the law requires, they are satisfactorily proved. I do not think that the mother's testimony aids in making out these contracts. She says that she was present at each time as cach child became of age and entered into the contract with the father, but she does not give such information as shows the existence of a binding or legal contract, taken with the other circumstances, evidence, acts and declarations of the parties, as would entitle the child to recover in a suit at law.

Harry testifies that at the time of his assignment his father owed him on account of partnership stock sold, over $3,000.00. This was a valid debt and justly due him from his father, according to his own testimony, and yet he did nothing and said nothing to his father about securing this claim; no effort was made to have his father secure it; no demand was made in relation to it. The only thing that was looked after about the 4th of June, 1896, was the claim for wages for Harry, extending back to the time of his becoming of age.

It is not necessary to enter into the discussion of the execution of the notes dated March 5, 1895, further than to say that the fact that they are, including the mother's note, exact copies, save as to amounts and dates, of the notes drawn by Mr. McKemy in his office at Dayton, Ohio, June 4, 1896-rare and unusual form of notes in phraseology and clearly the wording of a lawyer-is a striking coincidence, and it becomes more striking when we are informed that the notes were drawn by a person without any experience in such matters. What appears as to these notes also appears as to the mortgage, the acknowledgment of which was antedated. It is an exact copy of the mortgage drafted by Mr. McKemy.

McKemy could not have obtained his form of notes from these notes made in March, 1895, because his form is printed; and then the evidence is by all the defendants that they did not entrust their notes to their father when he went to Dayton to fix up the business, but only gave him the amounts due each of them, and when he came back and delivered them the notes and mortgages they surrendered to him their old notes. The words, "paid June 4, 1896," written on the face of the notes of March 5, appear, when submitted to a strong glass, to have been put there at about the time the notes were drawn, or a short time thereafter and before the notes became creased or worn, as the ink does not enter the fiber of the paper where the letters cross the creases.

Under the evidence, therefore, the court is forced to conclude that as far as the notes given to H. G. Walker, Maud and Nancy Walker, express a claim for services they are without any real consideration and void.

As to the claim of Mary C. Walker the court is satisfied from the evidence that she received from her father's estate about the year 1863, $3,000.00; that the money went into the hands of her husband, and that the note given June 4, 1896, was given as the evidence of that money and interest, and that the note is supported by a valid consideration.

Inasmuch, however, as the court has found that the mortgage given to H. G., Maude and Nancy Walker were given and taken with the intent to hinder and delay creditors, it is not necessary for the court to consider what knowledge Mrs. Walker had of her husband's designs and what participation she took in the carrying out of these designs on the part of her husband and her children, or what effect such a participation and knowledge in the fraudulent acts of the husband and children in relation to their own mortgages unconnected with her own, had upon the validity of her mortgage, because her mortgage becomes a nullity, by reason of the law which relates the finding of the court back to the consummation of the fraud which was the filing of the mortgage of H. G. Walker for record at 11: 20 o'clock A. M., of July 2, 1896 and prior to the filing of the mortgage given to Mrs.

Superior Court of Cincinnati.

Walker, by 15 minutes. The act of the filing of the Harry Walker mortgage was the consummation of the fraud against the creditors ot C. C. Walker, and by virtue of that act it became an assignment for the benefit of all the creditors, and for the purpose of distribution relates to the time of filing the mortgage with the recorder. Blomngdale v. Stein, 42 O. S., 168-173.

This case has lately been followed and approved by our own circuit court. but not reported. Same doctrine is announced in Betz v. Snyder, 48 O. S., 492.

The finding of the court is, that the mortgage given to H. G. Walker was made with the intent to delay, hinder and defraud creditors, and is therefore void and the same is set aside. The judgment of the court is that the mortgages of Harry, Maud, Nancy and Mary C. Walker, are fraudulent and void. And it is ordered that a copy of the entry and decree herein of the court be certified to the probate court for the administration of the trust.

Jas. A. Gilmore and Thos. Study, Attorneys for Walkers.

Anderson & Bowman, J. C. Allread, M. B. Trainor and Sater & Robeson, Attorneys for Banks.

AGENCY-CONTRACT.

[Superior Court of Cincinnati, General Term, June, 1897.]

ANDREW J. HEINTZ ET AL v. MARIA Agnes Boehmer.

RIGHT OF AGENT TO RECOVER HIS COMMISSION.

In a suit for recovery of a commission for the sale of real estate, the failure of the owner to incorporate into the contract with the intending purchaser found by the agent provisions which make it binding, does not militate against the agent's right to recover.

JACKSON, J.

This action was originally brought by plaintiffs against Maria Agnes Boehmer, seeking to recover $450 on account of commissions alleged to be due plaintiffs as real estate agents in finding a purchaser for a certain lot, with improvements, owned by defendant, and situated at the southwest corner of Elm and Liberty streets, Cincinnati. Plaintiffs were to find a purchaser for said property at the price of $22,500, in consideration of which they were to be paid the fair and reasonable value of their services according to the custom of real estate agents and brokers in Cincinnati. It is admitted that plaintiffs did find a party, viz.: one Henry Mulhauser, of Cincinnati, who was willing to purchase the property at the price aforesaid, and who entered into a written contract with defendant in which he agreed to purchase the property for said sum, the defendant guaranteeing that the title should be free and unincumbered. It appears that there was a mortgage of $20,000 on the property, of which however the plaintiffs were not advised, and that after the making of the contract aforesaid Mr. Mulhauser refused to purchase the property because of the existence of this mortgage. The defendant, Maria Agnes Boehmer, died intestate, and the action herein was revived in the name of the administratrix, Rosa Boehmer. Defendant insists that no binding contract was entered into between Maria Agnes Boehmer and Mulhauser inasmuch as there was an outstanding mortgage on the property, whereas the contract provided that the title should be free and unincumbered, and that in the absence of such binding contract the plaintiffs are not entitled to recover. Accordingly defendant asked and obtained from the court the following instruction to the jury:

"If the jury find from the evidence in the case that the contract of sale obtained by the plaintiffs contained a provision that the property should be clear, free and unincumbered, and they further find that there was a mortgage on the property, then I charge you that the defendant could not maintain an action for

State ex rel. Bishop v. Chamber of Commerce et al.

specific performance against the purchaser without first paying off that mortgage.'

In any view of the case this instruction was misleading inasmuch as it was intended to make the right of plaintiffs to recover depend absolutely upon the right of defendant to enforce a specific performance against Mulhauser. But the instruction is clearly erroneous when we considered that plaintiffs were not employed to effect a binding contract for purchase of property, and that the plaintiffs did not in fact act as the agents of the defendant's intestate in executing the contract, but that the contract was signed by Maria Agnes Boehmer herself. Her failure to effect a binding contract can not militate against the rights of plaintiffs, since their duty was performed and their commission earned when they found a purchaser ready and willing to buy and brought the parties together. The duty of effecting a binding contract then devolved on, and, in fact, was assumed by Maria Agnes Boehmer herself. It was for her and not for the plaintiffs, to incorporate in the contract such provisions as would make it binding notwithstanding the existence of the mortgage.

The court in its general charge to the jury, proceeded upon the assumption that the plaintiffs were bound, and, in fact, assumed to execute the contract of sale, and that they could not recover unless a binding contract was made. This was error and the plaintiffs excepted at the time.

The judgment is therefore reversed and the case remanded on a new trial. HUNT AND SMITH, JJ., concurred

O. B. Jones, for Plaintiffs.

S. N. Maxwell, Contra.

BOARD OF TRADE AND CHAMBER OF COMMERCE.

[Hamilton Common Pleas Court, July 2, 1897.]

STATE EX REl. Charles H. BISHOP v. THE CINCINNATI CHAMBER OF COMMERCE AND MERCHANTS' EXCHANGE.

1. A MEMBER OF AN ASSOCIATION IS BOUND BY ITS RULES AND REGULATIONS.

A person becoming a member of an association is bound by the constitution, by-laws, rules and regulations of such an association.

2. IRREGULARITIES IN THE TRIAL OF A MEMBER BY THE ASSOCIATION.

When a member of an association is placed upon trial for the violation of its rules, and where such association has acquired jurisdiction of the person and subject matter, upon a collateral attack upon the judgment of such an association a court of law will not look into the irregularities of such proceedings or errors committed.

3. RIGHT OF MEMBER UPON TRIAL.

A member of an association, upon trial, may waive any of the provisions of the constitution, rules and regulations of such an association.

4. FORMAL AND INFORMAL BALLOTS.

An informal ballot may be taken by committee or trial court of such an association, and when agreed by committee or trial court to be an informal ballot, such ballot neither acquits nor convicts.

DAVIS, J.

The relator, Charles H. Bishop, filed his petition against the Cincinnati Chamber of Commerce and Merchants' Exchange, asking that he be restored as a member of said association. The petition avers that the board of directors of the said association consists of fifteen members, and that the constitution, bylaws, rules and regulations of said association contain provisions for the trial of a member for misconduct against the association, or against a member of such

Hamilton Common Pleas Court.

association, and that it requires a majority of the board of directors to convict. That such charges shall be addressed to the president of the association in writing, who shall appoint a committee of three of the directors to endeavor to reconcile matters in dispute, and should said committee fail, and find that the charge is a proper one, they shall report the same to the board of directors for trial. Notice in writing of the time of the trial and a copy of the charges shall be served upon the accused member.

That said association is incorporated under the laws of the state of Ohio, and is the owner of certain valuable property, consisting both of realty and personalty, in the city of Cincinnati.

That said relator, Coarles H. Bishop, has been a member of the Cincinnati Chamber of Commerce and Merchants' Exchange for a great many years, and that on or about the 31st day of December, 1896, one Lyman Perin, Jr., filed charges against the relator, C. H. Bishop, which charges were in writing, setting forth that said C. H. Bishop had been guilty of violating the rules and regulations of said association and guilty of unmercantile conduct. Said charges contained an exhibit, which it is admitted by the relator herein was caused to be published by him in the Cincinnati Post, which exhibit is as follows:

"TO THE TRADE: The Pillsbury-Washburn Flour Mills Company has irequently suffered considerable annoyance because its 'Pillsbury's Best' brand of flour has been counterfeited, and genuine barrels repacked with low grade of flour and sold as the real 'Pillsbury's Best' by unscrupulous parties. In Chicago, J. W. Eckert & Co. were recently detected in refilling 'Pillsbury's Best' barrels and were promptly enjoined by the federal court from continuing this kind of work. It has always been the custom of the Pillsbury Company to insure the delivery of genuine flour by securing a responsible and exclusive distributing agent for each city or district. The C. H. Bishop Flour Company is the only authorized agent by which the genuine 'Pillsbury's Best' flour is distributed in Cincinnati and vicinity, and the source from which the firm of Lyman Perin & Sons has for months past obtained its 'Pillsbury's Best' flour has been J. W Eckert & Co. of Chicago, and the Pillsbury Company have in their possession the affidavit of a responsible grocer who was an eye witness to the refilling of 'Pillsbury's Best' barrels by Perin & Sons. When these facts and the cut price of Perin & Sons are considered, the public can draw their own conclusions. The Pillsbury Company give notice that they are not, and will not be, responsible for flour distributed in Cincinnati by any other firm than the C. H. Bishop Flour Company.

"DURST MILLING CO., "Dayton, Agents. "NOTE. Our mill numbers are placed on bottom of every barrel of genuine 'Pillsbury's Best,' and should always be there. Look for them."

That the hearing and trial of said charges was set for January 12, 1897. The petition further avers that at the conclusion of the taking of the testimony on January 12, 1897, said board proceeded to take a vote as to whether the said C. H. Bishop was guilty or not under said charges; and further avers that said vote resulted in finding the relator not guilty, for the reason that only eight members of the board of directors were present upon that occasion, and that only six out of the eight votes were for guilty, and that two were for not guilty; and that thereupon the board adjourned to January 15, 1897, for further consideration of said case.

An answer was filed by respondent admitting many of the averments of the petition, and denying others.

A person becoming a member of an association or a religious society, whether the same is incorporated or not, is bound by the constitution, by-laws and regulations of such society or association.

The testimony in the case discloses that a trial was had on the 12th day of January, 1897, of the relator. And that relator was present in person. And

State ex rel. Bishop v. Chamber of Commerce et al.

that if he had not been served with a full copy of the charges that he waived the same by his appearance and by making a defense for himself, and at no time did he object to the trial.

"Constitutional or statutory provisions intended for persons, benefit may be waived by them." Butt v. Green, 20 O. S., 667, 671. If a citizen can waive constitutional and statutory rights, then certainly a member of an association can waive any of the provisions of the rules and regulations of an association or society. Blumenthal v. Chamber of Commerce, 8 Dec. R., 410; State v. Society, 7 Dec. R., 334; State v. Verein, 7 Dec. R., 449; 110 Cal., 297-308; 149 N. Y., 401-404; 80 Ill., 137.

At the close of the trial there were only eight members of the board of directors present; there had been, however, eleven directors present at the beginning of the trial, three members asking to be excused at or near the completion of the taking of the testimony. The excusing of said three members by the president of the board of directors was not objected to by C. H. Bishop at that time or at any other time.

At the conclusion of the hearing of the evidence a proposition was made by some one, that an informal ballot be taken to get the sense or feeling of the eight members then present; although Mr. Jones, one of the members present, testifies that he considered or understood that it was to be a final ballot, and that a motion to reconsider the action of the eight members present, was made, and that the motion to reconsider was carried. But the testimony of a majority, or more than a majority, of all the members present, is to the effect that it was simply and purely an informal ballot to get the sense and feeling of the members present; and whether the vote was reconsidered, as testified by Mr. Jones, or whether it was an informal ballot, as testified by a majority of the eight members, it was unanimously agreed by the eight members then present that no record should be made of this vote, and no record was ever made of it, which clearly shows that it was never intended to be a formal ballot, but an informal one; said informal vote stood six votes for guilty and two for not guilty. Thereupon, by unanimous consent of all the members present, no record was ever made of any vote, except the motion to adjourn until January 15, 1897, to further consider the case. Thereupon ballot of the the 12th being informal and by consent of all no record made of the same, such vote neither acquits nor convicts. On January 15, 1897, eleven members out of the fifteen members of the board were present. The testimony on January 12th had been taken by a stenographer and was transcribed, and was before the board of directors on January 15, 1897. And the relator, Mr. C. H. Bishop, sent a long communication which was presented to the board of directors, and the same was read as an argument or reason why he was not guilty.

The testimony was read in parts, and after some consideration a motion was made as to whether the relator, C. H. Bishop, should receive a reprimand or not. It is admitted that eight directors voted that he should receive a reprimand, three of the directors voted that he should not. Mr. J. W. Dunn, one of the directors who voted that he should receive a reprimand, was one of the directors who left before the conclusion of the testimony on the 12th, and it is urged now that inasmuch as Mr. Dunn voted to find Mr. Bishop guilty, or that he should receive a reprimand on the floor of 'Change, that said action was null and void.

Mr. Bishop in his communication to the board of directors, on January 15, 1897, admits that he published in the Cincinnati Post, “Exhibit A," attached to the charges of Lyman Perin, Jr. Mr. Dunn was present when the evidence was offered. In fact this is the only charge made against Mr. Bishop. Whatever other evidence was taken, it does not appear and cannot appear in this trial, and it is for the committee of the chamber of commerce or its trial body to determine as to whether Mr. Bishop was guilty or not guilty of unmercantile conduct when he published in the Cincinnati Post "Exhibit A" referred to in the charges of Lyman Perin, Jr. If the board of directors or the trial body of said association finds that publication to be a violation of the rules and regulations of said asso