Krippendorf v. Ormsby. authority than that every contract for the security of debt, by the conveyance of real estate, is a mortgage, and that all agreements of parties tending to alter, in any subsequent agreement, the original nature of the mortgage, is of no effect. * "The rule is general that where a contract and conveyance are made upon a negotiation for a loan of money, a court of equity will always construe the conveyance to be a mortgage, whatever may be the form of the contract. *** "Whatever form the transaction assumes; whatever covenant there may be in the conveyance, or in an agreement accompanying it, if it was founded upon a loan of money, and intended by the parties to be a mortgage, courts of equity will always so construe it." It is not necessary to multiply authorities to sustain the principle that once a mortgage is always a mortgage. Nor is it necessary to cite cases that a party occupying a trust relation cannot take advantage of his position. Counsel for plaintiff in error concedes both of these propositions, but he relies upon a criticism of the pleadings and insists that a technical meaning be placed upon them. It is true that the petition does not in terms declare the so-called "contract" to be a "mortgage," but it does set out the salient terms of the contract, and does in effect state a cause of action for a redemption of a mortgage although in terms it asks for a reconveyance of real estate under the terms of the contract, praying for specific performance, and at the same time praying for general relief. It is true that the petition does not set out the relation of attorney and client as existing between Mr. Krippendorf and Mrs. Ormsby, but it does set out enough of the terms of the contract to show that he held this real estate as her trustee with an obligation to reconvey to her. It is also true that the reply undertakes improperly to set out this relation of attorney and client as between these parties. Such an allegation in the reply cannot be considered as enlarging the case of the plaintiff as made by the petition. Hilsinger Hamilton County Appeals. v. Trickett, 86 Ohio St. 297 [99 N. E. Rep. 305; Ann. Cas. 1913 D. 421n]. But as stated above, the trust relation sufficiently appears from the allegations of the second amended petition. The action being in equity and the prayer for relief being a general one, the court has jurisdiction to grant relief warranted by the facts as proven. Lockhart v. Leeds, 195 U. S. 427 [25 Sup. Ct. Rep. 76; 49 L. Ed. 263]; Haggart v. Wilczinski, 143 Fed. Rep. 22 [74 C. C. A. 176]; Rexford v. Woodland Co. 208 Fed. Rep. 295; Central Improvement Co. v. Steel Co. 210 Fed. Rep. 696; 16 Cyc. 106. The defendant below contends that under a strict construction of the contract upon which he relies Mrs. Ormsby failed to perform her obligation to convey to him, as provided by Par. 8, said real estate, free and clear of all claims, demands and incumbrances. From the fact that he drew the quitclaim deed, which she executed, at the same time as the contract and that he did not ask for any other deed or further conveyance from her, it must be held that the quitclaim deed then executed by her was substituted in place of the deed referred to in Par. 8. It is natural to believe that, in her harassed and helpless condition she relied upon him to free her property from its incumbrances, and clearly did not intend to obligate herself to first free it from incumbrances for the privilege of conveying it to him in order that he might hold the title entirely free except for the mortgage to be placed on it by him for $5,000 to the University of Wooster. The construction of the contract claimed by the defendant is contrary to the evidence and contrary to its own terms. The unreliable and contradictory statements given by the defendant in his testimony with regard to the $2,000 consideration named in the deed from Mrs. Ormsby to himself lead us to give doubtful credence to his testimony, and to feel, that he will be amply repaid in the amount found by the court below to be due him for advancements. In this amount was included a $500 attorney fee, as fixed by Par. 5 of the contract. It should be observed that nowhere Krippendorf v. Ormsby. in the contract does Mrs. Ormsby agree to pay this fee, nor is it in any way made a charge upon said real estate or considered as one of the advancements to be made by Krippendorf under the contract. The evidence shows that this fee was only for services rendered in connection with this real estate and the making and performance of this contract. It is extremely doubtful whether, under all the circumstances of the case, such an allowance should be made, but as no objection was made by plaintiff below to its allowance and as there is no cross petition in error in this case on behalf of Mrs. Ormsby, we have concluded not to disturb the finding as made by the master commissioner and confirmed by the trial court. A careful consideration of the numerous points of error relied upon by plaintiff in error convinces us that there is no prejudicial error shown by the record as against him, but that substantial justice has been done. The judgment below is therefore affirmed. ELECTRICITY-MUNICIPAL CORPORATIONS STREETS. [Lucas (6th) Court of Appeals, June 7, 1915.] Richards, Chittenden and Kinkade, JJ. ELLEN HUSS v. TOLEDO RAILWAYS & LIGHT Co. 1. Private Électric Light Company May Erect and Maintain Poles and Wires in Front of Residence Property for Lighting Streets Notwithstanding Private Lighting is also Conducted thereon. A private company may erect and maintain in the streets of a municipality and in front of residence property, electric light poles and wires for lighting the public streets under contract with the city, and such construction does not invade the rights of the abutting owner; and such owner cannot main Lucas County Appeals. tain injunction even though a portion of the current carried is for private purposes, provided such additional use does not impair the abutter's property in any essential degree. 2. Municipal Authorities Regulate Location of Poles and Wires in Streets. The location of the poles and wires for lighting the public streets rests with the city authorities and will not be interfered with by the courts in the absence of fraud or an abuse of discretion. [Syllabus by the court.] APPEAL. Charles A. Thatcher, for plaintiff. Tracy, Chapman & Welles, for defendant. RICHARDS, J. This action was commenced by filing a petition in the court of common pleas on April 30, 1915, seeking to enjoin the defendant from erecting poles and stringing wires thereon in front of the property of the plaintiff on Williams street in the city of Toledo. To this petition the defendant filed an answer in which it avers that it has a contract with the city of Toledo, by the terms of which it is to furnish street lights for the streets, boulevards and parks in the city of Toledo, and is proceeding to erect a line on Williams street for that purpose, having received a permit there for from the proper officials of the city. The defendant further avers that no wires are to be placed on the line of poles except such as carry current for the above purposes. The evidence discloses that the plan of construction involves the placing of only one pole in front of the premises of the plaintiff, and the precise location of that pole has been heretofore fixed by order of this court. It appears further from the evidence that the plan involves the placing of eleven high tension wires to be used almost, if not entirely, for street lighting purposes. The poles are also to carry four wires composing a 3-phase, 60 cycle, A. C. circuit, carrying 4600 volts. No serious question can be made as to the right of the defendant to construct the line in the place located, for the purpose of street lighting, including the eleven wires carrying current for arc Huss v. Railways & L. Co. lights; but it is strenuously insisted that the defendant has no right to erect or maintain the four other wires which are used not only for street lighting, but for other private purposes. The evidence discloses that these four wires compose one circuit and that such method is proper for good construction. It appears that the current from these four wires is used for lighting the streets; the drives, walks and buildings in Walbridge Park; the union depot and the grounds and streets adjoining the same; and also for general lighting of the fire departments on Broadway, and lighting and power at the waterworks station on Broadway, and general distribution of incandescent lighting in the vicinity of Broadway and extending to Glendale avenue. None of the wires named will carry current to be used solely for private incandescent lighting, nor solely to carry energy for private power plants. On the contrary, the four wires named serve a dual purpose, one of the chief purposes being the lighting of the public streets in that portion of the city. It does not appear from the evidence that the use of a portion of this current for private purposes has necessitated, or will necessitate, any larger poles or wires, or a greater number of wires or cross-arms. We assume that the defendant has the right in this state, without any doubt, to erect and maintain a line of poles and wires for the purpose of lighting the public streets of the municipality, and the question here for determination is whether that right is in any wise curtailed by the fact that the same line of poles and wires carries current which is used in part for private purposes. The leading case in Ohio on this matter is Callen v. Light Co. 66 Ohio St. 166 [64 N. E. Rep. 141; 58 L. R. A. 782]. In that case it was announced by the court that it was a diversion of the street from the purposes to which it was dedicated, for a private lighting company to erect poles and string wires thereon of electric light cable lines for furnishing light and energy to private takers. It was further held in that case that this diversion of the street from the purposes for which it was dedicated was not relieved against by the fact that a fire alarm box used by the city was placed on |
