*1 action, promoted which the broker part, of which his commission is a in the time and with- pre- the terms journal entry approved scribed by Court, and as an extension of sought granted, time was not nor nor were the directors of defendant so, thirty the vendee after the days could enforce his breached contract and the broker is not entitled
to the commission. INDEMNITY
ROYAL COMPANY McFADDENet v Appeals, 1st Hamilton Co.
No. 5686. Decided Jan. Cash, Cincinnati, Dolle, & O’Donnell Stewart, Cincinnati, and James G. Columbus, appellants. Bejrne, C. R.
OPINION MATTHEWS, By J. a cas- In this company, ualty seeks to insurance compel observe the defendant to' settle of an $8000.00 claims reading the evi- a collision be- out of an insured shortly after discloses' automobiles, dence one of which two tween collision, automobile McFadden was Ida M. the defendant *2 in their agent op- the defendants visited riding, which was other of and the thereafter, by home, either invi- and plaintiff’s by The the insured. erated initiative, con- tation, or his own indemnify policy the it to time to time. from per- visit against tinued on account of sured loss of no talk there was damage first visit At the property injury and sonal settlement, long before is was opera- bur persons in the third occasioned purpose the was visits manifest the the insured’s automobile. tion of openly in It is manifest that discussed. policy de- the also leading parts were the these discussions instituted all actions fend and agent by plaintiff’s the and damages taken the against ac- for the insured defendant, was Ida M. McFadden. She property personal count injured. Her one had been the who damage operation of the the was limited to that of husband’s claim insured’s automobile. more loss of services and was never instituted ac- The defendants had incidentally mentioned- —if at all. than insured, against and ac- tions the $10,000.00 McFadden demanded Mrs. seeks court declare tion to have the position recede and did not from that into, compromise that a was entered long plaintiff’s time —if ever. binding upon that the de- agent offered various sums. At one time fendants, specific performance the $7500.00, he offered which was declined injunction re- the and an by McFadden, Mrs. rnd then with- straining prose- from the defendants by drawn the situation cuting against their the insured. actions March, 1936 continued from to Febru- pe- The defendants demurred to this ary, During time, that the by tition, which was the overruled directly dealing was with Mrs. They answered, denying court. then McFadden. It she who refused the any agreement that of settlement was by plaintiff’s the offers made various affirmatively alleging that plaintiff’s agent agent, knew and the the the Certainly, nothing transpired had this. co-operate sured was bound to in the up led time that would have brought against defense of person reasonable to conclude that she including duty the to al- clothed Mr. McFadden with au- had lege by way of defense thority agree plaintiff upon with the claim she settle. the amount would upon, that, juris- has court drawn, If inference could be subject diction of the of this action. one be that she was the that would would issues, As the result of trial of these of the settle- determine the amount the Common Pleas in fa- found claim, ment, for her own upon request, and, vor dam- also that his findings stated its conclu- physical injury. age on of her account separately. sions February, 1938, Now in while the ne- granted specific performance gotiations juncture, at contract which it found as a matter of appeared plaintiff’s McFadden per- fact had been entered into and plaintiff’s office, and it conten- petually enjoined the from defendants suggested agent tion that he prosecuting against their actions $8,000.00, authority secure to settle for insured. saying, however, he to con- would have appeal sult Mrs. McFadden find out wheth- is on How- fact. accept ever, presented er she statement to this Court upon con- Mr. McFadden at this the record made in the Common up to that firms conclusion Pleas Court without additional evi- time Mrs. McFadden had authorized dence. upon assuming McFadden Even amount of a settlement —and is con- asserted or told the point. claimed,— agent agreed clusive on that It she had support and there is it —that evidence be no evidence her. Gibson v agent telephoned later he Belting Co., that Mrs. Bradford 68 Oh St 442. accept plaintiff' succeed on $8000.00. The its authorized of actual There had $8000.00, pay any prior and he so no- never been similar transac pred tified Mr. McFadden. tions which to holding icate a from denies could be $8000.00, accept offered to and denies implied. transaction, This was the first told the ever and, reason, evidence of ac that Mrs. McFadden tual was essential. also denies analysis of this evidence has ever authorized Mr. McFadden to ac- *3 reach the us to conclusion that cept such or make offers. complete proof there is failure of plain- If this a case in which ever conferred asserting tiff with Mr. any authority Mr. McFadden to alone, we be her on to the amount of a set- behalf weigh and determine to the evidence injuries. tlement for her plaintiff had sustained the whether prove Having McFad- failed to resting upon proof it But burden of authority, failed den’s primar- not is is such a case. McFadden made that Mrs. ily and Mrs. Mc- between the upon. There is a com- contract agreement was Fadden. This plete Mc- evidence that Mrs. dearth of and could been not have unless actually agreed and authorized Fadden necessary She was a her to communicate party the minds. to the it is not claimed urges resort Counsel any direct communi- necessary because an this action was agreeing cation from Mrs. McFadden binding is unsatisfied accord only to this claim is settlement. equity. enforced in law can be for and deciding Assuming there her, therefore, behalf. To bind between is distinction McFadden had to have subject, equity such on that so. And was on the burden require to an distinction recourse show that notwithstanding dependent action item that be consid- pendency enforce of actions ered evidence of such to which the unsatis- causes of action testimony fied accord relates? agreed, and, Mr. McFadden infer- in which Pleas Common entially, she had authorized is a were instituted these actions to so state. equity juris- general he was her fact jurisdiction di- is not diction. raised no inference of au purpose. All it is vided for thority. 21 O. Jur. 419. same avail- voked in the also had single in a action able exercised and is a claim of his wife’s system pleading. a uniform conferred no him to set procedure makes The code of civil tle her claim. pro- GC, By §11315, distinction. The husband’s admissions are not vided that: binding compet on or may in his ent “The set defendant forth wife. defense, grounds many answer as O. Jur. 405. may as set-off counter-claim CO. McKELVEY M. v G. heretofore have KEESECKER as have, such whether equitable, or denominated been must defenses the several But both. be consistent Mahoning Co. Appeals, 7th other, and each each with intelligible manner in an refer must is in- cause of action Feb. to the tended Decided No. 2563. answer.” section, provisions Under be awarded relief coiild se- it could in this the cure this to insist self it duty plaintiff in actions. The in other right under its has a him- defendant that the avail policy gives every defense. Its imposes upon it the actions, and, defend such even express provision, the absence of an in inasmuch as it it could liable over in to be has been vouched defend them. The court therefore holds that action cannot be maintained because the
plaintiff’s remedy adequate, by at law is pendency reason of the *4 orig the actions inal claims in which the plaintiff here can secure all the relief possible
which it w’ouldbe to award it in this action.
(3) Treated as an action under seq., GC, declaratory §12-102-1 et judgment must fail for the already given. reasons “A declaratory judgment proper not a mode of de de termining sufficiency pending fense to a action.” 16 Am.
Jur. 295. For reasons, these finds the court has failed to a case for relief in this case declaratory judgment or other-
wise. will, The therefore, be dis- missed, Youngstown, Osborne, at the and B. costs C. W. Youngstown, appellant. Williams, L. Rowers, Manchester, Ford, Bennett & HAMILTON, J., ROSS, Youngstown, PJ. & concur.