276 F. 595 | S.D. Ohio | 1920
On Motion to Determine Points of Daw Before Pinal Hearing.
This action is brought under favor of section '9 of the Trading with the Enemy Act, as amended July 11, 1919 (41 Stat. 35, c. 6), and seeks to enforce as against seized assets of Christion Meyer and Elsa S. Meyer, his wife, German alien enemies, certain claims, among others, for support and maintenance of their children in the United States, furnished by plaintiff during the war, both before and after the passage of said act October 6, 1917, while the said parents were in Germany, pursuant to a contract made by plaintiff with the parents at the time of their departure from the United ■States before the war.
The question whether so much of the debt as accrued after the date of the passage of said act'is within the inhibition thereof, which forbids, inter alia, carrying on, completing, or performing any contract, agreement, or obligation except by license of the President, directly or indirectly with, for, or on account of an enemy, is reserved for consideration upon final hearing, when the facts will be more fully before the court.
On Final Hearing.
On complainant’s motion to dispose of questions of law before trial it has heretofore been determined that the debt for the support furnished the children after declaration of war by the United States, and prior to the passage of the Trading with the Enemy Act, October 6, 1917, was not one that was invalid on .account of the state of war, by the common law.'
The evidence offered by the plaintiff tends in general to support the allegations of the bill. When Meyer and his wife went to Europe it was with the intention of returning in two months. They made an oral agreement with the complainant, all three parties being present, that inasmuch as they intended to go abroad and stay a short time, any expenditures the complainant should have in connection with the two children to be left with him, or any remittances he should make to Meyer and his wife Meyer would reimburse, saying he had money at the-Central Trust Company. Complainant exacted no written agreement, as he knew Meyer was financially good. Mr. and Mrs. Meyer pledged themselves that in all things he should be reimbursed. Meyer and his wife had not lived with the complainant, but maintained a home of their own. Complainant took the children to his home and kept them and their governess there until the 1st of October, 1915, when the entire family moved to a residential hotel, which was within the means of the parties. The charges there were reasonable, and the
The government offered no evidence except an inventory of the property seized by the Alien Property Custodian.
The following conclusions are reached:
The evidence sufficiently shows that there was a contract to reimburse for remittances and all outlays made on account of the children. While this conclusion rests Upon the testimony of complainant alone, it is uncontradicted, the witness is unimpeached, his testimony is not improbable, but, on the other hand, is convincing. The contract, however, must be taken as he has stated it. He has stated merely that he was to be reimbursed for outlays made on behalf of the children and remittances sent to the parents. His grandchildren came to his house for- a two months’ stay while their parents went to Europe. I am unable to conclude that the intent of the agreement was that he should charge, and they should pay, board for the keep of the children while they were guests in his house. I take it that the contract related rather to direct outlays, expendituresj and advancements of money. Such were its terms as testified to by complainant. Complainant can take nothing on the theory of implied contract. He was dealing with his daughter and his son-in-law. The succor which they received at his hands will be attributed to parental generosity unless an express contract to repay be shown. And, as defendants stand in a position similar to that of an administrator defending the estate of a decedent against such a Claim, complainant must estabish the contract by evidence that is clear and convincing. Hinkle v. Sage, 67 Ohio St. 256, 65 N. E. 999, as modified by Merrick v. Ditzler, 91 Ohio St. 256, 266, 110 N. E. 493. And the same rule that requires that the evidence in cases of this kind should be clear and convincing would require that the contract should be strictly limited to, and not be extended beyond its clear purport and intent. The same ruling will apply to board furnished the governess at the complainant’s house.
It is found that the outlays for the board of the chidren and governess at the hotel, money advanced, and wages paid to the governess prior to the entry of the United States into the World War were direct
By the contract complainant was to keep and maintain the children until the return of the parents. While his daughter was in Europe she asked to have the children sent over by a trustworthy person. Pursuant to this request he himself took them abroad; his daughter being in ignorance of his coming until he arrived. The transportation of the children so requested necessitated an expenditure of money which catne within the terms of the contract to reimburse for all outlays. One-fourth of the total expense of the trip was certainly not an unreasonable portion to charge against the parents. The item is allowed.
That portion of the complainant’s claim resulting from performance of the contract after the passage of Trading with the Enemy Act Oct. 6, 1917 (Comp. St. 1918, Comp. St. Am. Supp. 1919, §§ 31151/2a-3115 1/2) must be disallowed. By section 3 of the act it was made unlawful for any person to trade with or on behalf of an enemy except by license of the President; and complainant has shown no license. By section 2 “trade” is defined to mean, among other things, to pay or satisfy a debt or obligation; to carry on, complete, or perform any contract, agreement, or obligation. By section 5 the President was given authority to grant licenses to trade, notwithstanding the provisions of section 3. The complainant contends, despite the breadth of the definition contained in the act, that the contracts thereby prohibited are only those which would have been invalid at common law between citizens of this and an enemy country, which were, generally speaking, those which involved intercourse or communication, and those which might tend to better the enemy’s economic position or be detrimental to this country, and in certain other exceptional instances. Trotter on Law of Contract During and After War, p. 61, § 13. The general principles are stated, and the cases up to that time thoroughly reviewed in Kershaw v. Kelsey, 100 Mass. 561, 97 Am. Dec. 124, 1 Am. Rep. 142, which is cited with approval in Williams v. Paine, 169 U. S. at page 72, 18 Sup. Ct. 279, 42 L. Ed. 658. Both of those cases arose during the Civil War. In the first it was held that a lease between a citizen of Mississippi and a citizen of Massachusetts residing in Mississippi, made during the war and involving neither intercourse nor trade across the line of hostilities, was valid, and in the other that a power of attorney, executed before the war by one thereafter who became an enemy to one who remained a loyal cilizen continued valid. But there is a vast difference between the terms of the act then in force, which simply forbade “all commercial intercourse” during- hostilities (12 Stat. 257; and see presidential proclamation, 13 Slat. 731) and that now under consideration. The broadest and most comprehensive language is used to define the words “to trade,” and there is no suggestion anywhere in the act of any limitation on their scope except that of presidential license. Congress evidently considered such power an ample substitute for the exceptions to the rule at common law. The language used does not indicate that it was the intention merely to declare the common law with reference to the character of trade interdicted. As the act contains no ambiguity, it is not within
In view of the foregoing, it becomes unnecessary to determine what the effect of the amendment of section 9 by the act dated June 5, 1920 (41 Stat. 977, c. 241), may be upon this portion of complainant’s claim.
A decree may be taken subjecting the property of both defendants to be sold as upon execution, the claim to be first made out of the property of the husband as far as can be, because he was primarily, and as between the husband and wife, liable for the children’s and wife’s support.