Andy v. State.

subject, went beyond the rule of law embodied in said written request, and beyond the rule of law laid down by our Supreme Court upon this subject. An analysis of the instruction given leads us to disagree with the contention thus made; but granting that the words "and to some degree contributed thereto" were added, could, or did, such addition work any prejudice to plaintiff in error? We think not, for if the evidence showed that he was not a principal, but an aider and abettor in the commission of this homicide, such a conclusion could not have been reached by the jury, under the charge given, unless it appeared in evidence that he said or did something in furtherance of a common purpose to take the life of the decedent, and if such fact did so appear, it would contribute to the execution of such felonious purpose. We are of the opinion that this follows from the very definition of terms "aiders" and "abettors," and that such additional instruction is mere surplusage at most.

Entertaining these views, the exception taken in this respect is held to be untenable, and affords no ground of prejudicial or reversible error.

Fifth. It is also contended that the court below erred in receiving the verdict as returned by the jury, because said verdict does not specify the degree of the crime of homicide of which plaintiff in error was found guilty. This is not a case wherein the verdict of the jury was for any degree or crime other than that charged. He was indicted for second degree murder, and was found guilty of said crime; or, in the language of the verdict returned, "guilty as he stands charged in the indictment." The court below properly instructed the jury that the crime charged included also the lesser crime of manslaughter, assault and battery, and assault, for either of which a verdict of guilty might be returned by the jury, and not guilty of the crime of murder in the second degree as charged in the indictment. But the verdict was: Guilty of the crime charged. In a case where a defendant is charged with first degree homicide, and the jury should find him guilty of second degree, or manslaughter, under the statute as it was prior to the enactment of Sec. 13692 G. C., then the contention of plain

Stark County Circuit.

tiff in error might merit consideration, but not under the present statute; nor under the facts in this case where, under the charge of the court, the jury were instructed that they might return a verdict of guilty of either of the offenses hereinbefore mentioned, on one of the several forms of verdict sent to the jury room, or a verdict of not guilty. For the foregoing reasons, we hold that this exception is not well taken.

We have also examined said record in reference to the other assignments of error set out in the petition in error, and we find no such error therein as to call for a reversal of the judgment of the court below.

The judgment of the court of common pleas will, therefore, be affirmed, and said cause is remanded to said court for execution. Exceptions.

Voorhees and Powell, JJ., concur.

SPECIFIC PERFORMANCE.

[Williams (6th) Circuit Court, October 31, 1911.]

Wildman, Kinkade and Richards, JJ.

RHINOLD BANKEY V. J. E. MANON.

Specific Performance Refused Where Enforcement Would be Harsh and Inequitable.

A decree for specific performance will not be granted, where to
compel performance would be extremely harsh, oppressive
and inequitable by reason of the fact that the option of pur-
chase was not exercised by the lessee until the lessor, at
the request of the lessee, had put in improvements which
doubled both the market and rental value of the property, and
double rental was paid by the lessee until about the time
of the termination of the lease when an attempt was made
to exercise the option of purchase.
[Syllabus by the court.]

APPEAL.

John H. Schrider and Newcomer & Gebhard, for plaintifr. Cited and commented on by the following authorities: Crawford v. Kastner, 26 Hun. 440; 63 How. Pr. (N. Y.) 90;

Bankey v. Manon.

Rothschild v. Williamson, 83 Ind. 387; Harding v. Seeley, 148 Pa. St. 20 [23 Atl. Rep. 1118]; Gilbert v. Port, 28 Ohio St. 276; 36 Cyc. 625; De Rutte v. Muldrow, 16 Cal. 505; Wilkins v. Evans 1 Md. Ch. 156; Bras v. Sheffield, 49 Kan. 702 [31 Pac. Rep. 306; 33 Am. St. Rep. 386]; Schroeder v. Gemeinder, 10 Nev. 355; Elston v. Schilling, 42 N. Y. 79; Smith v. Gibson, 25 Neb. 511 [41 N. W. Rep. 360]; Hartman v. McAlister, 5 N. C. 207; 24 Cyc. 1021, 1023; Wiedemann Brew. Co. v. Maxwell, 78 Ohio St. 55, 63 [84 N. E. Rep. 595]; Bacon v. Daniels, 37 Ohio St. 279; Woodland Oil Co. v. Crawford, 55 Ohio St. 161 [44 N. E. Rep. 1093; 34 L. R. A. 62]; Brown v. Fowler, 65 Ohio St. 507 [63 N. E. Rep. 76]; Monihon v. Wakelin, 6 Ariz. 225 [56 Pac. Rep. 735].

Bowersox & Peck, for defendant.

RICHARDS, J.

This case is pending in this court on appeal from the common pleas court. It is an action to enforce the specific performance of a contract containing an option to purchase certain real estate, situated in Williams Center, this county. It appears from the evidence that the property was leased by J. E. Manon to certain lessees, and that the lessees assigned to the plaintiff, Rhinold Bankey. This lease was executed on November 1, 1905, and was for one year with the privilege of five, and it contains a clause giving the right of purchase for the sum of $700 at any time while the contract was in force. The rental reserved in the lease is five dollars per month. Some time after the execution of the lease and after possession was taken under it, the parties agreed to a modification, at least to the extent that the owner was to erect an addition to the building on the premises and that the rent should be increased to $11 per month. The improvements were made by the owner, and are conceded by the plaintiff in his reply to be of the value of at least $300. We find from the evidence that the value of these improvements, so made by the defendant, is at least the sum of $700. The increased rental was paid by the plaintiff until the expiration of the lease, or substantially to that date. The plaintiff has elected to exercise the option contained in the lease, and asks from this court

Williams County Circuit.

that the defendant be required to specifically perform by conveying the premises to him upon payment of the sum of $700. We think it entirely clear from the evidence that these improvements were made by the defendant, and the value of the premises enhanced accordingly, under circumstances which show that the defendant did not understand that he was still bound, after the change in the rental price and the completion of the improvements, to convey the premises to the plaintiff for the price named in the option. He had good reason to believe and apparently did believe that the substantial improvements made which at least doubled the value of the property, coupled with the change of the rent from $5 per month to $11 per month released him from the option in the lease. Under the circumstances existing in this case the plaintiff must not expect a court of equity to compel the transfer to him of property worth at least $1,400 upon the payment by him of $700. The agreed rental value of $11 per month is equal to $132 per year, which would amount to an income of 8 per cent on a valuation of $1,650. The later rent paid amounts to nearly 20 per cent. on the sum of $700, which is the amount offered by the plaintiff, in return for which he demands the conveyance of these premises. It is clearly a demand that a court of equity should do that which is inequitable. We call attention to the following cases: Tiffin v. Shawhan, 43 Ohio St. 178 [1 N. E. Rep. 581]; Hughes v. Roth, 7 Circ. Dec. 441 (18 R. 804).

To compel the specific performance of the agreement contained in the lease would be extremely harsh, oppressive and inequitable. The defendant in this case filed a motion for judg ment upon the pleadings in his favor, and we think he is not entitled to have the same granted. Upon the merits of the case, however, we find for the defendant, and refuse specific performance.

Wildman and Kinkade, JJ., concur.

Oldham, Ex parte.

COURT-PROHIBITION.

[Montgomery (2nd) Court of Appeals, March 21, 1914.]

Allread, Ferneding and Kunkle, JJ.

EX PARTE DAVID OLDHAM.

Writ of Prohibition Denied Until Jurisdiction Denied in Court Challenged.

The writ of prohibition will not ordinarily be allowed until the
question of jurisdiction has been made and overruled in the
court or tribunal whose jurisdiction is challenged.
[Syllabus by the court.]

WRIT of Prohibition.

Horace Andrews, H. H. McKeon and P. R. Taylor, for petitioner.

John A. McMahon, J. Warren Kiefer. O. B. Brown, John Galvin and E. A. Belden, amicus curiae.

C. C. Hall, Pros. Atty., for Shelby County, J. Guy O'Donnell. Pros. Atty., for Miami County, F. G. Long, Pros. Atty, and A. J. Metler, for Logan County, G. S. Thomas, city solicitor, and Robert A. Black. for City of Troy.

ALLREAD, J.

David Oldham, a citizen and taxpayer of Shelby county, petitions for a writ of prohibition against the judges of the courts of common pleas, to restrain them from acting as a conservancy court, upon the ground that the conservancy act is unconstitutional and void.

The preliminary question is whether this court as a matter of right can, or, as a matter of discretion, should entertain the writ in advance of action upon the jurisdictional question by the tribunal whose jurisdiction is questioned.

The writ of prohibition is a remedy revived or brought into the jurisprudence of our state by constitutional amendment taking effect January 1, 1913. This remedy was not intended to become a substitute for, or supersede, the ordinary or usual procedure of courts of general or special jurisdiction.