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Hancock Circuit Court.

find that to be the contract, and further find that he left the service of the defendant without just cause therefor, against defendant's consent, that he would forfeit and lose his pay, which would be in the nature of a penalty for his own breach of the contract, and that the defendant could not go beyond that amount, or recover other or further damages in consequence of his breach of the contract, regardless of what his damages might actually be.

On the other hand, it was contended by defendant on the trial of the case, and defendant's cross-petition was framed upon the theory that, if it should appear on the trial that plaintiff had forfeited his right to recov er in the action in consequence of his breach of the entire contract, in estimating defendant's damages for the breach thereof, he would not be limited to defeating plaintiff's right to recover by showing the breach of contract alone, but that he could go further and recover such actual damages growing out of the transaction as were directly caused by plaintiff's wrongful act.

On the trial of the case, the defendant undertook, on this theory, in support of his cross-petition, to give testimony tending to show that he was directly injured in his business by reason of the breach of the contract on the part of the plaintiff. To the introduction of such testimony, the plaintiff objected, and the court sustained such objection, to which defendant then excepted. Some of the objections were well taken, as the proof offered was hearsay only. Other evidence offered was incompetent, for the reason, as appears of record, that the party was not competent and qualified to speak regarding the matter inquired of. Some of the testimony however, was freed from these objections and was compete it, unless the theory of the plaintiff was the correct one. If it is the law in a case of this kind, that for a breach of an employee's contract to serve for a fixed period, the only remedy left the employer is to interpose the breach of the contract as a shield and defense against a recovery of unpaid wages, and that he cannot be allowed, in such action, to recoup for the damages sustained by him in consequence of the employee's wrongful breach of contract, then this testimony would not have been competent, and was therefore properly rejected.

It is apparent from the charge that the court took this view of the question, because it withdrew from the jury a consideration of damages growing out of the cross-petition of the defendant, in the following language:

"As to the question of damages claimed by defendant in his answer and cross-petition in this case, for the alleged violation by Mr. Walker, the plaintiff, of his contract to work a year certain, gentlemen of the jury, you have nothing to do with that; that question is not in the case.'

To the exclusion of this class of testimony, as well as this clause of the charge of the court, the defendant below excepted at the time, and in his motion for a new trial alleges this action on the part of the court as ground for a new trial, and in his petition in error alleged that the court below erred in overruling his motion for a new trial upon these grounds.

We have carefully examined the pleadings, record and evidence in the case, and find no substantial error for which the verdict and judgment should be reversed, unless there was error upon the part of the court in excluding this class of testimony tending to show damages fo: defendant, as claimed in his cross-petition, and in charging the jury not to consider the question of damages claimed by defendant.

Snyder v. Walker.

Did the court err in excluding testimony teading to show damages to the defendant as claimed in his cross-petition, and in taking from the jury all consideration of that question? We think it did. We think that the contract between the plaintiff and the defendant, if it be proved to be an entire one, was, nevertheless, mutual. That if on the trial of the case it should have been made to appear to the jury that the contract, on the part of the plaintiff, was that he should work for the defendant for the period of one full year, and on the part of the defendant that he should pay him for such labor the sum of $1,500.00 for said year, whether the wages were payable monthly or at the end of the year, that a breach of the contract on the part of either party, entitied the other, who had been without fault, to recover the actual damages flowing from and directly caused by said breach of contract. To hold otherwise would enable one party to a contract to violate it with impunity and go scot free, though the other might sustain great loss from his wrongful act. Apply the rule in this case. Suppose, after making the contract, and after plaintiff had engaged in the performance of it, and made his arrangements accordingly, and moved his family to the city of Findlay, and rented a home. for himself and family, and had otherwise been put to large expense in so doing, the defendant, Snyder, without just cause, had discharged him. from his services, and refused to permit him to perform his part of the contract, would any one dispute that in an action against his employer to recover for a breach of the contract he might not recover such damages as he would prove were directly caused by the wrongful act of the employer?

Apply the rule on the other side of the question. Suppose, under this contract, the defendant had employed him to do particular and peculiar work, requiring the knowledge and skill of an expert in this line of business, and suppose he had hired him at a price one-third or one-half less than an expert like him, peculiarly fitted to do his work, could be employed for, and he had hired him for one year, and in so hiring him had obtained a profitable bargain, and suppose the plaintiff, after making the bargain, had worked one week, and then, finding that he could get double as much wages somewhere else, should, thereupon, regardless of his contract, and in reckless violation of it, pull up in a busy season and leave his employer at a time when his services, owing to their expert quality, were culiarly valuable to his employer, and should refuse to perform hi contract, could it be said the only remedy the employer had for breach of it would be the gain of plaintiff's one week's wages, which he had not paid? Or is he not entitled to recover of the employee the full measure of his damages growing out of the breach of the contract and directly resulting therefrom? We think, clearly, that he would be. We think that the code contemplates, in an action of this kind, that a party defendant may recover by way of counter-claim, such damages as he sustained, provided they grow out of and are connected with the same transaction. And we think this view is emphasized and sustained by section 5529, of the Revised Statutes, which provides as follows:

"Where a counter-claim or set-off established at the trial, exceeds the plaintiff's claim so established, judgment for the defendant must be given for the excess; or, when appears that the defendant is entitled to any affirmative relief, rágment shall be given therefor."

Hancock Circuit Court.

We think that the common law rule that a counter-claim, in an action like this, can only be used as a defense, is abrogated by the statutes of Ohio, and that therefore a party may not only plead the breach of a contract by way of defense to a plaintiff's claim, but can go further, and by way of cross-petition recover such damages as he may show he sustained in consequence of such breach of contract, within the limit that such damages must be referable to the breach of the contract, and flow directly therefrom.

With this view of the case we hold that the court erred in taking from the jury all consideration of damages claimed by defendant in his cross-petition, and erred in excluding testimony tending to establish such damage.

The judgment of the court will, therefore, be reversed, and cause remanded at the costs of defendant in error.

DAY, J., dissents.

J. Poe, for Plaintiff in Error.

E. T. Dunn, for Defendant in Error.

CONVEYANCE-EVIDENCE.

[Hancock Circuit Court, May, 1896.]

Seney. Day and Price, JJ.

PEPPLE, GUARDIAN V. PEPPLE, ET AL.

1. CONVEYANCE BY FATHER TO SON.

Where a father in his old age conveys and leases certain real estate to his son, in consideration for which the son was to care for, and support his father during his natural life; such transactions will be allowed to stand where the evidence shows that the transactions by which the lands were conveyed were not invalid by reason of want of capacity on the part of the grantor to make them, and where the evidence also shows that no coercion was exercised on the grantor.

2. ADMISSIONS OF NOTIONS AND BELIEFS OF WITNESSES.

Notions and beliefs of a witness, however, as evidence of a fact or condition, are only valuable when formed and based upon intelligent and careful observation under favorable opportunities, and utterly without value or weight unless it appears that the notice taken was careful and judicious and under favorable conditions.

3. DISPOSITION OF AN ESTATE BY A PERSON IN OLD AGE.

Where a person in old age is making a final disposition of his estate, as if by will, and he has what is known in law as ''testamentary capacity," that would be sufficient, and such conveyances would be allowed to stand.

ARPEAL from the Court of Common Pleas of Hancock county. DAY, J.

The plaintiff, Eli W. Pepple, as guardian of John Pepple, an imbecile person, brings this action against David E. Pepple, Ella M. Pepple and Loa Curtis, defendants, to vacate and set aside certain conveyances of real estate made by John Pepple to David E. and Ella M. Pepple, in November, 1891, and February, 1893, on the grounds of incapacity on the part of John Pepple to contract, and of coercion of defendant Pepple by which the conveyances were compelled. Loa Curtiss is made a defendant because she claims a lien on the said real estate by virtue of

Pepple v. Pepple et al.

a mortgage from her co-defendants to her. Issue is joined on the claims made in the petition, by an answer of defendants Pepple, in which they assert that John Pepple, at the time of the transactions, and for a time afterward, was not imbecile, but was possessed of judgment and capacity sufficient to properly transact the business which he did, in good faith, uninfluenced and uncoerced by any one. That the transactions were proper ones, made upon good and proper considerations, and wronging no person, least of all the grantor named in said conveyances, and dedefendants ask that the conveyances be sustained.

The most of the facts of the transactions are undisputed-all of them, in fact, except the incapacity of John Pepple to do business, and that he was coerced and controlled in the matter by David E. and Ella M. Pepple. These two alleged facts are in dispute. The undisputed facts are: In October, 1891, John Pepple, who before that time had been duly adjudged an imbecile and was under guardianship as an imbecile, was by the court of common pleas of the county, in a matter pending therein, found to be sane, and was discharged and restored from such disability. Soon thereafter, in November, 1891, he conveyed a forty-acre tract, his homestead, to his son David E. Pepple, and also leased to David E. a sixty-six acre tract for a term during the lifetime of the old gentleman. As considera tion for this conveyance and lease the grantor was to be furnished a comfortable home, cared for and supported during his natural life, and decently interred at his death. In February, 1893, the sixty-six acres, being the same tract leased to David E., was conveyed to Ella M. Pepple, wife of David E., for an expressed consideration of $1,650; $450 of which was paid in cash, and notes bearing interest to the amount of $1,200 for the balance were executed and delivered as a consideration for the conveyance. Before these transactions, and before the appointment of a guardian, John Pepple had made advancements in various amounts to some of his children other than David E., and had become liable, as surety, for others, for the payment of money, and the cash payment received for the conveyance to Ella M. Pepple, was required and used in payment of a judgment against a son-in-law for whom Mr. Pepple had so become liable as surety. Since November, 1891, David E. has been in possession of the two tracts, receiving and enjoying the rents and profits thereof, and the old gentleman has been furnished a home with defendants, and has been supported and properly cared for Since 1894 he has become entirely imbecile and helpless, wholly incapable of caring for or helping himself in any way, and has been, and is now, and so long as he lives will be, a serious charge and burthen on defendants. This plaintiff was appointed guardian in May, 1894, and is now and since then has been, the duly appointed, qualified and acting guardian, and brings this suit to set aside the said conveyances made by the old gentleman to defendants, and also for an accounting by defendants with him for the rents and profits derived from the farm.

If it shall appear that the transactions by which the lands were conreyed were invalid, by reason of want of capacity on the part of the grantor to make them, or, because of coercion on the part of defendants, then an accounting will of course become necessary; but otherwise if the conveyances are sustained. So, in the first place, the single question is presented: Had John Pepple sufficient capacity to transact the business, and did he transact it in freedom and unrestraint? The plaintiff has the affirmative side of this issue, and the burden is on

Hancock Circuit Court.

him to establish it affirmatively, by the weight of the evidence. For that reason the testimony has been produced and submitted to the court and it is but fair to say there is a serious conflict in it. On the question of capacity, the witnesses were limited to six on a side, and they all testified sincerely and honestly, we think, according to their various notions and beliefs on the subject. Notions and beliefs of a witness, however, as evidence of a fact or condition, arc only valuable when formed and based upon intelligent and careful observation under favorable opportunities, and utterly without value or weight unless appears that the notice taken was careful and judicious and under favorable conditions. Some of these witnesses were interested in the results of the litigation, Some were very general and casual in their observations and opinions, while others were disinterested, entirely so, and having regard for their fair reputation as professional men, were of necessity required to very carefully observe and note the precise condition of the old gentleman's mind at the precise time of the transaction, with a view of fairly and properly transacting important business for him in a way that would be both lawful and right. To this last named class of testimony we are disposed to give controlling influence in determining the question before us. Very few of the witnesses on either side had occasion to more than casually notice the old gentleman's condition of mind. None, perhaps, except the gentlemen who were called upon to advise with him and to prepare the legal documents necessary to carry into effect his wishes in regard to the matter. All noticed he was forgetful-lived more in the past than in the present, as most old people do. That he could not remember readily, and sometimes repeated quotations and statements over and over again. All these things are, perhaps, evidence of senility or approaching senility, but they alone do not evidence total absence of capacity. They do evidence impairment of mental forces, but not total absolute wreck. and may all very well exist, and the old gentleman still be possessed of sufficient capacity to make such proper disposition of his property as must be upheld. The rule in this case, and all similar cases, I imagine, will not require as high degree of judgment and sense, as if the contract was with strangers or persons not of his immediate family, or was of an adversary character. All of these elements are absent in this case, and, in effect, to all intents and purposes, John Pepple was making a final disposition of his estate, as if by will, and if he had what is known in law as "testamentary capacity," that would be sufficient. It is a general rule, of general, if not universal, application, that a person having sufficient mind to know and comprehend the extent and value of his property, and the names and rights of his children or those who are naturally dependent on and entitled to his bounty, such person has testamentary capacity, and may properly dispose, finally, of his estate, and any disposition he may see fit to make, if it is his free act, will be sustained.

Having reference to the proofs submitted, we regard John Pepple, at the time of the conveyances, as having had even more than testamentary capacity. After the removal of his disability and discharge from guardianship, in October, 1891, he seemed to rally all his waning faculties, and to become alive to the exact requirements of the situation. He not only knew the extent of his estate and the names and rights of all his children, but he was able to recall the fact that part of them had been provided for, in the way of advancements, and that certain other ones were entitled to be provided for as well; and one of the purposes he had

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