[14 Ohio

Goldstein Co. v. Mitchell.

maining authorities cited by counsel for defendant in error on the last page of his brief do not apply at all to this case.

We think it is not necessary to hold that defendant below was estopped from setting up the existence of the corporation under the existing circumstances, as the cases cited by Cook on Corporations do not place the proposition upon estoppel at all but upon it being contrary to public policy to allow such defense to be raised in the kind of an action indicated.

It is further claimed by defendant in error that estoppel not having been pleaded, it cannot be relied upon in this action. We admit that that is the general rule with regard to estoppel, but in a case where the facts pleaded and in evidence, or attempted, show an estoppel to arise, we do not believe that it is essential to plead the estoppel, in support of which position we cite the following authorities:

"Inasmuch as an action will not lie on a note executed in furtherance of a scheme to defraud creditors, the administrator of the promisee is estopped from prosecuting such an action by evidence of fraudulent intent imported into the case, although estoppel was not pleaded." Baker, Exr., v. Hall, 9 N. P., N. S., 396.

Failure to plead the facts out of which an equitable estoppel arises will not avail after the evidence thereof has been admitted without objection. Harris v. Wallace Mfg. Co., 84 Ohio St., 104.

In the opinion in the Harris case, supra, the court says, page 107:

"Respecting the evidence tending to show the Wallace Company's disclaimer of interest in the

App.]

Goldstein Co. v. Mitchell.

later invention at the time of the purchase of its rights thereunder by the Harris Company, counsel for the plaintiffs in error admit the general rule that when there is opportunity, the facts out of which an equitable estoppel is claimed to arise must be pleaded, and that in the present case they are not pleaded by the Harris Company to which they would be availing but only by J. Harris to whom they would be unavailing because he has assigned his interest. But since in this state of the pleadings the evidence to establish an estoppel was admitted without objection, is it not entitled to be considered, notwithstanding the absence of such allegations as would make it competent?"

In view of the foregoing authorities, we think the court below erred in granting the motions of the defendant for a judgment on the pleadings and statement of counsel, and to dismiss the action, and that the judgment of the court in so doing is contrary to law, for which reason the judgment is reversed and the cause remanded for a new trial.

Judgment reversed, and cause remanded.

WASHBURN, P. J., and VICKERY, J., concur.

Rowland v. State.

[14 Ohio

ROWLAND V. THE STATE OF OHIO.

Juvenile court-Failure of father to support child-Section 1655, General Code - Defenses - Custody committed to mother in divorce proceeding.

A judgment entered in a divorce proceeding, releasing the defendant father from any further responsibility regarding his minor child, whose custody, support, and so forth, are committed to the mother, is available to him as a defense against a prosecution under Section 1655, General Code, for failing to contribute to the support of such child.

(Decided February 5, 1921.)

ERROR: Court of Appeals for Crawford county.

Mr. W. J. Schwenck, for plaintiff in error. Mr. Chester A. Meck, for defendant in error.

HUGHES, J. The defendant was convicted under Section 1655, General Code, for failing to contribute to the support of his minor child.

The affidavit under which the conviction was had was filed by his wife, charging him, in substance, with being the parent of this child and charged by law with the support and maintenance thereof.

The record discloses that the defendant and his wife had been divorced, and in the judgment of the court granting the divorce is contained the order that the custody, care, education, control, support and maintenance of the child are awarded to the wife and that the defendant is released from any further responsibility regarding the child.

Under Section 7997, General Code, the husband is charged by law with the support of himself, his

wife and minor children so long as he is able to do so by reason of property, wages or labor. And this obligation which the law casts upon the husband and father of a minor child abides with him so long as the child remains under the age of sixteen years.

Section 11987, General Code, found in the chapter on divorce and alimony, gives jurisdiction to the court to make such order as is just for the disposition, care and maintenance of the children.

Section 1655, General Code, under which this defendant was convicted, provides, that, whoever, being charged by law, with the maintenance of a child, neglects his duty, shall be guilty of an offense.

It will be observed that a requisite under this section is that the defendant be charged by law with the maintenance of the child. The court, in the divorce proceedings, having taken from him the custody and maintenance of the child, and having released him from any further responsibility regarding the child, he is, in the opinion of this court, no longer charged with the duty of maintenance.

We are not unmindful of the decisions of our supreme court in which it is held that a husband is not relieved from the responsibility of maintaining his child when in the divorce proceeding the custody has been taken from him and given to the wife. It will be observed, however, by a reading of the opinions in these cases, that in none of them did the divorce court charge the wife with the maintenance, and release the husband therefrom, as was done in the case at bar.

It is well recognized within the state that changed circumstances and conditions will warrant a court in modifying its former order regarding the welfare of the children, and so long as this order remains in force and effect we are of the opinion that it is available to the defendant as a defense against a prosecution for failing to maintain his child under such circumstances.

Section 1655, General Code, above referred to, makes no attempt to define the duties or obligations of either the husband or wife regarding their children, and the legislature, in our opinion, has given jurisdiction to the divorce court to modify the primary obligation of the husband, as defined in Section 7997, by the provisions set forth in Section 11987.

For the reasons above given, the judgment is reversed.

Judgment reversed.

KINDER and CROW, JJ., concur.