USA > Ohio > Darke County > Robinson's Darke County, Ohio rural directory, 1910 > Part 42
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Legal Forms and Advice on Commercial Law
ACTION.
There is but one Form of Action, which is know as a Civil Action. The code has abolished distinctions between actions at Law and Equity, so far as relates to name and form, but it has not abolished legal or equitable rights. The court is to be regarded as a court of Law or Equity, according to nature of the case. The plaintiff must be the real party in interest, except an ex- ecutor, administrator or guardian, a trustee of an expressed trust, a person with whom, or in whose name a contract is made for the benefit of another or a person expressly authorized by statute may bring an action without join- ing with him the person for whose benefit the action is brought, and officers may sue and be sued in such manner as is authorized by law.
ARBITRATION.
All persons who have any controversy, except when the possession or title of real estate may come in question, may submit such controversy to the arbitrament or umpirage of any person or persons, to be mutually agreed upon 1 by the parties, and they may make such submission a rule of any court of record in the State.
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ASSIGNED CLAIMS.
May be sued on in the name of the owner-Bonds, Bills Exchange, Prom- issory Notes-All bonds. promissory notes, bills of exchange, foreign and in- land, to any person or assigns are negotiable by indorsement thereon, and all such instruments payable to a person or bearer are negotiable by delivery. An indorsee or holder may maintain an action in his own name on any such instruments for the recovery of the money due on the same again the maker, drawer or obligor; or, after the use of due diligence to obtain the money of the maker, drawer, obligor or acceptor, such action may be instituted against the indorser. If any such instrument be transferred after due and the indorsee institute an action thereon, the maker, drawer or acceptor may set up any defense he might have made if the action were instituted in the name of the person to whom such instrument was originally made payable.
CHATTEL MORTGAGES.
A mortgage of goods and chattels not accompanied by an immediate de- livery and followed by an actual and continued change of possession of the things mortgaged, is absolutely void, as against the creditors of the mort- gagor, subsequent purchases and mortgagees in good faith, unless the mortgage or a true copy thereof is deposited with the Township Clerk of the Township where the Mortgagor resides at the time of the execution thereof if a resident of the state, and if not such resident, then with the Clerk of the Township in which the property so mortgaged is situated at the time of the execution thereof, but if the mortgagor is a resident of a township where the office of county recorder is kept, or where the mortgagor is a resident of a township entirely merged in a city or incorporated village in which the office of county recorder is kept, or when he is a non-resident of the state, and the property is within such township, the mortgage shall be filed with the county recorder. The mortgagor, his agent or attorney, before the mortgage is filed, shall state thereon under oath the amount of the claim, that it is just and unpaid, if given to secure the payment of money. If given to indemnify the mortgagee as surety for the mortgagor, such sworn statement should set forth such lia- bility, and that the instrument was taken in good faith to indemnify against loss, that may result therefrom. A chattel mortgage is void as against credi- tors and sebsequent purchasers or mortgagees in good faith after the ex- piration of one year from the filing, unless the same is renewed and refiled within thirty days next preceding the expiration of the said term of one year.
No chattel mortgage on the necessary household goods, wearing apparel or mechanics tools of any person or family, except chattel mortgages given to secure the whole or some part of the purchase price thereof, shall be fore- closed except in a court of record.
Civil Rights.
All persons within the jurisdiction of this state, without distinction of color and race, are entitled to the full and equal enjoyment of the accomoda- tions, advantages, facilities and privileges of inns, restaurants, eating houses, barber shops, public conveyances, on land and water, theatres and all other places of public accommodation and amusement, subject only to the condi- tions and limitations established by law, and applicable alike to all citizens.
Conditional Sales.
All conditional sales of personal property in which the title is retained by
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the vendor, lessor, renter, hirer or deliver of the same must be evidenced by writing, properly verified by affidavit as a chattel mortgage and such writing shall be deposited with the clerk of the township or county recorder, in the same manner as chattel mortgages, otherwise they are incoperative as against creditors and purchasers for value in so far as they reserve the title in the vendor. The vendor of property conditionally sold, cannot retake possession of the property without repaying a certain part of the price paid.
Consignments.
If any carrier, warehouseman, factor, storage, forwarding or commission merchant, or manufacturer, or his clerk, agent or employee, with the intent to defraud, sells, or in any way disposes of, or applies or converts to his own use, and bill of lading, custom house permit, or warehouse keepers receipt, intrusted to or possessed by him, or any property intrusted or consigned to him, or the proceeds of profits of any sale of such property, or fails to pay over such proceeds deducting charges and usual or agreed commission, or the product of any property delivered to him to be maufactured, after deducting any com- pensation to which he may be entitled as commission for the manufacture, shall be imprisoned in the penitentiary not more than four years nor less than one year.
Deeds, Mortgages, Leases.
A deed, mortgage or lease shall be signed and acknowledged in the pres- ence of two witnesses, who shall attest the signing and subscribe their names, and the execution shall be acknowledged before a judge of a court of record, county auditor, county surveyor, notary public, mayor of justice of the peace, who shall certify the acknowledgement and subscribe his name and official character on the same sheet on which the instrument is printed or written.
False Pretense.
Whoever, by any false pretense, with intent to defraud, obtain from any person anything of value, or procures the signature of any person as maker, indorser, or guarantor thereof, to any bond, bill, receipt, promissory not, draft or check, or any other evidence of indebtedness, and whoever sells, barters or disposes of or offers to sell, barter or dispose of any bond, bill, receipt, prom- issory note, draft or check, knowing the signature of the maker, indorser or guarantor thereof to have been obtained by any false pretense, shall, if the value (of the property or instrument so procured sold, bartered or disposer of, or offered to be sold, bartered or disposed of) is thirty-five dollars or more, be imprisoned in the penitentiary not more than three years, nor less than one year or if the value is less than that sum, be fined not more than one hundred nor less than ten dollars, or imprison not more than sixty nor less than ten days, or both.
Mechanics Liens.
Persons performing manual labor have a lien upon the realty of their employers for their wages. Any person who performs labor, or furnishes ma- chinery, fuel or material for constructing altering or repairing any boat, etc., or erecting, altering,
for repairing Or removing house, mill, manufactory, furnace, or other buildings, appurtenace, fixture, bridge, or other structure, or for digging, drilling, plumbing, boring, operating,
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labor in altering, repairing or constructing any oil derrick, oil tank, oil or gas pipe line, or furnishes tile for drainage of land, by virtue of a contract with the owner, part owner or lessee thereof, or his agent, shall have a lien to secure the payment of such claim upon the interest, leasehold, or otherwise, of the owner in the lot or land on which the structure may stand, or on which the labor was expended.
If several liens be obtained, by several persons, upon the same job in the manner prescribed, they shall have no priority among themselves and all pay- ments on said liens shall be made pro rata.
To obtain such liens, such person shall within four months from the time of performing such labor or furnishing such machinery or material, file with the recorder of the county wherein the labor was performed on the machinery or material was furnished, an affidavit containing an itemized statement of the amount and value of such labor, machinery, fuel or material and a description of the land on which such structure may be located-
Any sub contractor, material man, laborer or mechanic who is performing labor or furnishing material or machinery, may, within ninety days from the completion of such labor or the delivery of such machinery or material, take a lien to secure the payment thereof. Such person must give notice to the owner, and in order to notify his fellow sub-contractors, material man, me- chanics and laborers, must file a copy of said lien with the recorder of the county. Upon receiving such notice all subsequent payments due the prin- cipal or sub-contractor shall be detained. The supreme court has decided that, Insofar as it gives a lien on the property of the owner to sub-contractors, laborers and those who furnish machinery, material or tile to the contractor, is unconstitutional and void. All to whom the contractor becomes indebted in the performance of his contract, are bound by the terms of the contract between him and the owner.
Landlord and Tenant.
An unwritten lease is not valid for more than one year, unless there is delivery of possession, when a parol lease may be good, not exceeding three years should be in writing, and for more than three years must be in writing, attested, acknowledged and recorded as deeds are recorded.
Leases of natural gas and oil lands must be recorded forthwith to be of any force and validity, except between the parties thereto.
Landords have no lien upon the chattels and goods of tenants, except such as may be contained in the lease, similar to a chattel mortgage, when it should be filed as such rent ceases upon destruction of building by fire or other cause. Tenants holding over after expiration of term may be evicted by the action of forcible entry and detention, up the giving of three day's notice before commencement of action, before the justice of the peace; when trial may be had three days after summons served upon th defendant.
Witnesses.
There must be two witnesses to all instruments required to be witnessed, viz: deeds, mortgages, Wills, leases, etc. .
Contracts.
In law, a contract is an agreement between two or more persons, com- petent to contract, based upon a sufficient consideration, to do or not to do a particular thing. Therefore, it not only "takes two to make a bargain," as the old saying goes, but it also requires a valid consideration to support it. By con-
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sideration is meant what is given by one party to the contract in return for the performance of the other contracting party, as where A buys a horse of B for $100.00, the money is the consideration which prompts B to perform, and the horse is the consideration which A receives in return for the money paid.
Without a consideration there is no contract, and though A promised to give B $100.00, or B to make A a present of the horse, neither could enforce the other's promise in law, as both promises were made without consideration, each being what the law denominates nudum pactum, or a naked promise.
But if the money or the horse had been actually delivered as a gift, a re- covery would not lie in law though the giver should subsequently change his mind and desire to have back the property or its value.
Mutuality.
A contract must be mutual, that is, each party must be bound to do or to omit &to do certain things, for it is a fundamental principle of law that both parties must be bound or neither is held.
Written or Verbal.
With certain exceptions, verbal agreements are as binding as written con- tracts, though not as readily or certainly proven. Prudence dictates that all transactions of any considerable importance, or which are likely to be some time in performance, should be reduced to writing. Care should be exercised that the writing include the full subject matter and terms of the mutual agree- ments. No technical knowledge is necessary to draw the ordinary contract. The language should fully set forth the obligation assumed by each party; it should be made out in duplicate, signed by both parties, (witnesses are not usually necessary) and one of the copies retained by each of the contracting parties.
Promissory Notes, Bank Checks, Etc.
A promissory note is a written promise or agreement to pay a specified sum of money at a time therein limited, or on demand, or at sight, to a person therein named, or to his order, or to bearer. The one to whom the note is payable is called the payee, and the one signing the note, the maker. All such instruments are assignable by indorsement in writing, though notes made payable to bearer or those which are already indorsed in blank, need no further writing to pass title, their mere delivery being sufficient for that purpose. An indorsement in blank is the signing of the name of the payee on the back of the note without any restriction as to whom it shall be paid. Passing title by delivery only and without indorsement creates no liability on the note, though if goods were bought and such a note delivered in payment thereof, or in payment of a prior indebtedness, and the note proved to be worthless, and ac- tion at law would lie to recover the price of the goods or the amount of the indebtedness, but, in such case, the note must be surrendered in court. Bank checks are governed by similar rules.
The indorsement of a note "without recourse" over the signature of the owner or payee passes title with the delivery of the note, but restricts the liability of the indorser the same as though it were a note payable to bearer and was passed without endorsement.
By endorsement, unless his liability is expressly restricted, the endorser promises that he will discharge the note according to its terms upon its pre- sentment and notice, that the instrument itself and all prior signatures are genuine, that he has the right to transfer it, and that it is valid.
If a promissory note is not paid when due it usually must be "protested" in order to hold endorsers, and such protests consists, among other acts, in the formal presentment of the paper and a demand for its payment by a notary
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public, but for notes drawn and made payable within the same state, no protest is required, though it is usually made.
The words "I guarantee the payment of the within note," over a sig- nature on a note is called a guaranty, and the guarantor undertakes to pay, if with due diligence, the debt cannot be made out of the maker.
Care in Drawing.
A note or a bank check should be made out carefully and in legible writ- ing, the blanks should be filled so that the amount of the note or check can not readily be altered or added to, and preceding and following the words specifying the amount, it is well to insert marks or lines to fill the unused space, for, if the amount be "raised," and such "raising" was rendered poss- ible through the careless manner in which the instrument was drawn, and some innocent persons has paid the amount fraudulently inserted, the maker of the note or drawer of the check is liable, on the grounds that, where one or two innocent persons must suffer, the one who, by his careless conduct has made such loss possible, must bear the consequence of his act.
Signature.
It is a good rule to adopt a certain form of signature and not vary there- from, though, of course, where the usual signature is made with the initial of the given name, the full name should be used in signing formal instruments, as deeds, mortgages, wills, etc.
Date.
Attach a date to all instruments. It need not necessarily be the date of signing, as the written contract is only the means of proving the verbal agree- ment, and the latter may have been made at an earlier date.
Writing and Figures.
Where, in any instrument, a certain thing is indicated both by writing and by figures and they do not agree, the writing will govern as being more like- ly to be correct; and where a written form is useed and the writing and the printed portion is not reconcilable, the writing will control.
Payment.
Payment is the discharge in money of a sum due. The giving of a note or check will not be considered a payment unless expressly so agreed.
Payment must be made to the person rightfully entitled thereto, if the in- debtedness is evidenced by a note, to the holder by proper indorsement there- of, and such note should be exhibited and the payment indorsed thereon.
Payment of an account may safely be made to the creditor, unless notice of an assignment has reached the debtor, or he is chargeable with notice of some legal proceeding, or has constructive notice in relation thereto. Where an agent holds a note for collection after due he may receive payment and de- liver the note to the maker, but such payment must be in money unless the owner agrees to take other property. A claim against the agent cannot be offset against a note owned by his principal, and, though the agent pays his own indebtedness by cancelling and surrendering a note owned by his principal, the latter may sue for and recover from the maker the amount due by the terms of the note if he can prove the same. This, also, would give the debtor under the note a cause of action against the agent who had paid his own debt. in his principal's property.
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Lost or Stolen Bills or Notes.
Where a note payable to bearer, or indorsed in blank is lost or stolen, a payment by the maker to the holder is good.
In the usual contract of sale, where it is not expressly agreed that credit shall be given or the time of payment specified, the buyer is bound to pay as soon as the seller is ready to deliver, and in contracts for the hiring of labor, wages should be paid when the work is done unless a custom to pay at certain intervals is shown to exist.
Payment by Mail.
The general rule is that payment must be made to the creditor or his agent personally, but a payment made in any manner requested or agreed to by the creditor will discharge the debtor, though the money never reaches the creditor.
Receipts.
A receipt is only prima faci proof of payment and evidence may be offered to show that the statements of the receipt are incorrect.
Full Performance Before Recovery.
An adult who contracts to labor for a certain period can recover nothing until such period is complete, unless a default by the other contracting party excuses the performance. -
Gratuitous Services.
Gratuitous services rendered without intention to charge therefor and so accepted, cannot be recovered for in law, but a written memorandum showing them to be gratitious is of considerable importance if suit is brought, on ac- count of the tendency of juries to (perhaps unintentionally) favor the poorer suitor.
Sunday Laws.
By the common law Sunday contracts are valid but the legislatures of sev- eral of the states have passed laws which make such contracts void in those states. In Illinois, Nebraska and Ohio any agreement entered into on Sunday is valid if it might legally have been made on any other day, but in Indiana, Iowa, Michigan, Minnesota, Mississippi, Wisconsin and other state, Sunday contracts are absolutely void.
Extra Pay for Sunday Work.
Unless contemplated in the agreement, extra pay for the necessary Sunday work on a farm, cannot be recovered for as overtime.
Infants or Minors.
Person of less than legal age are, in law, called infants.
By the old common law persons of both sexes become of age when twenty- one years old but by state the common law in changed so that in several other states females become of full age at eighteen and males at twenty-one, as formerly. This latter is the law in the state of Ohio, Illinois, Iowa, Minne- sota, Kansas, Nebraska, and Missouri and some others. A person becomes of age at the beginning of the day next preceeding the anniversary of his twenty- first year or if a female, her eighteenth anniversary; thus, if a male person's twenty-first "birthday" occured on the fifth day of January he would be of full age, capable of contracting, conveying his lands by deed or mortgage, voting and doing all other acts which a person of full lawful age might do, during all of the fourth day of January.
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Hiring Infants or Minors.
A person hires and pays a minor at his peril.
Infant's Wages.
The usual rule is that the wages of an infant may be sued for and recov- ered by the father (or by the mother if the father be dead), and it is not a good defense that the employer has paid the minor. In practice, however, this rule is not strictly observed, and minors enter into contracts to labor and collect their wages as if of full age, but the law is as first stated.
Emancipation by Father.
The father may consent, either orally or in writing, that wages be paid to his minor child, and such agreement will be valid and binding upon him; or he can emancipate the child and thus waive his right to any wages which the latter may earn.
A minor cannot sue in law in his own name, but must bring the action by his "next friend" who should be one of the parents, as before stated, if either be entitled to the minor's wages or by any other person of full age if the minor is entitled to receive his own wages.
Recission by Infant.
A minor may rescind his contract of hiring at any time and recover for the value of the services as though there had been no contract, and no dam- ages caused by his breach thereof can be charged against him; but the adult,. is bound by the contract unless it is avoided by the minor.
Sound moves 743 miles per hour.
A mile is 5280 feet, or 1760 yards.
A span is ten and seven-eight inches.
A storm blows thirty-six miles per hour.
A hurricane moves eighty miles per hour.
A moderate wind blows seven miles per hour.
A rifle ball moves at the rate of 1000 miles per hour.
Electricity moves at the rate of 288,000 miles per hour.
TO FUMIGATE A POULTRY HOUSE.
Remove everything, nests, perches and all. Put a pound of sulphur in an iron kettle, set it in the middle of the house, put a shovelful of hot coals into it, close the house up tight and don't open it for two or three hours. Burn all the old nest straw, paint the nest boxes inside and out with hot coal tar, and also the roosts. Whitewash the house thoroughly inside and outside, and you are rid of the mites.
Legal Forms
Forms of Wills.
I. of the in the county of.
.and state of. do hereby make, publish and declare this to be my last will and testament.
First :- I direct that all my just debts and funeral expenses be fully paid ..
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Second :- I give, devise and bequeath unto my wife, (Here state property given).
Third :- I give, devise and bequeath unto my son,
(Same form of each legacy.)
Fourth :- I nominate and appoint and.
executors of my last will and testament.
In witness whereof, I have hereunto subscribed by name this.
day of A. D.
The above and foregoing instrument was at the date thereof signed, sealed, published and declared by the said .as and for his last will and testament, in presence of us, who, at his request, and in his presence and in the presence of each other , have subscribed our names as witnesses.
Name Residence.
Name
Residence.
NOTE .- Must be signed by the testator before acknowledged by him to be his will, and must be signed by him in presence of at least two witnesses.
Artcles of Co-Partnership.
This agreement made and entered into this day of
19 by and between .of. .and . of business of
Witnesseth :- That the said parties hereby agree to become partners in the at for the term of
year from the date hereof, underthe firm name of.
Said parties have each contributed the sum of. dollars as the capital stock of said firm.
Both parties are to donate their entire time and skill for the common benefit.
All expenditures of the business, and all losses, are to be borne in common, and the profits are to be equally divided.
Books of account are to be kept, in which shall be entered all money re- ceived or paid, all purchases and sales of goods, and all matters of account re- lating to the business of the firm, which shall at all times be accessible to both.
No money or other property shall be withdrawn by either partner, or ap- plied to his own use except with written consent of the other partner; and in every such case the same shall be charged, and his share of the profits shall be reduced in proportion to the amount withdrawn.
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