Superior Court of Cincinnati. 375 must necessarily be presumed that the court in special term made a correct finding. The presumption would arise, either that the contract was entered into for the leases prior to the execution of the bond and mortgage, or that the bondholders and trustees had consented that the leases should take precedence of their mortgage, or that some other equity existed by which the court was justified in its finding. It can not be presumed by a reviewing court, which has none of the evidence before it, that the trial judge made a finding without evidence to sustain it. Whether or not a sale subject to lease reduces the value of the property sold depends very much upon whether the lease is a beneficial one; for anything that appears these leases may be of great value to the Cincinnati Hotel Company. The court would hardly be justified in the presumption that the court in special term, with all the evidence before it, directed a sale to take place under circumstances which would injure the legal rights of any party to the action. It is claimed that the amount fixed in the decree in the foreclosure proceedings was excessive in that it computed interest upon the principal at the rate of seven per cent. per annum after the time the principal was declared due by the trustee, in May, 1889, for previous default in payment of interest. This claim was not set up in the pleadings in this case and can not well be urged, since there is nothing to sustain it. It will be observed that the bond promises to pay interest not merely as per coupons, but generally at seven per cent. per annum; and, further, that it refers to the mortgage specifically for information as to the terms and conditions on which the bonds are issued. In this respect these bonds differ from the case of McClelland v. Bishop, 42 Ohio St., 113-123, cited by counsel for plaintiff in error. In that case the note made no reference to the mortgage. The recital in the mortgage making the bonds payable upon default in interest at the election of the trustee, or bondholders, does not cut down the interest upon the principal after such precipitated maturity to six per cent., but leaves the interest to run at the rate promised; and such rate should be computed in the decree by force of Rev. Stat., sec. 3179 and 3180, as interpreted in the Hydraulic Co. v. Chatfield, 38 Ohio St., 575-577; also Monnett v. Sturges, 25 Ohio St., 384; Marietta Iron Works v. Lottimer, 25 Ohio St., 621. Nor do the notes in Samyn v. Phillips et al., 15 Ohio St., 218, contain any stipulation as to the rate of interest. The bond does in the case at bar, and the bond not only makes the mortgage a part of its terms by reference, but the mortgage also contains the bond in terms. There is another objection urged to the decree in that it provides that the Cincinnati Hotel Company shall pay to the Central Trust and Safe Deposit Company its expenses herein, and such compensation as may be fixed by the court. As to the compensation of the trustee, the trustee has no right to receive it until fixed by the court, so that until the court has fixed the compensation of the trustee the Cincinnati Hotel Company is entitled to redeem by paying the bonds and coupons without compensation to the trustee. The Hotel Company evidently has not been prejudiced by this, for the record discloses that the sale has not been confirmed, and until the sale has been confirmed the Hotel Company would, notwithstanding the expiration of the thirty days, be permitted to come in and redeem. The court would still have power to fix the amount of any expenses or compensation, if any such expenses or compensation were legal. It cannot be denied that in this state a warrant of attorney to confess judgment attached to a promissory note in which 375 Cincinnati Hotel Co. v. Central Trust and Safe Deposit Co. it is provided that the judgment conferred shall be for the principal and interest of the note, and a percentage thereon as a collection fee, is usurious and void. In Bronson v. LaCrosse & Milwaukee Railroad Co.. 2 Wall, 283, it was held that where a mortgage allows the payment of the expenses of the mortgagee, it is proper for the court to allow a trustee in addition to the taxed costs, reasonable counsel fee. See also Munter & Faber v. Linn, 61 Ala., 492; Weatherby v. Smith, 30 Iowa, 131; Parham v. Pullian, Ex. etc., 5 Caldwell (Tenn.), 497; Daily v. Maitland, 88 Pa. St., 384; Clawson v. Munson, 55 Ill., 394; Renshaw v. Richards, 30 La. Annual 398. And in Trustees v. Greenough, 105 Ü. S., 527, it is held that a trust state must bear the necessary expenses of its administration. It will be found in the case of Coe v. Columbus, Piqua & Indiana Railroad Company, 10 Ohio St., page 372, and cited by counsel for plaintiff in error, that the mortgage upon which the decree for sale was based in that case provided that "the trustee should be entitled to receive proper compensation for every labor or service performed by him in the discharge of his trust in case he shall be compelled to take possession of such premises, or any part thereof, and manage the same.' This may explain the language on page 409, where Gholson, J., says: "We do not understand that the mortgagees in that case came before the court in the character of trustees of any property or fund which would authorize the court to charge upon that property or fund their expenses. They are not and never have been in the possession of the property." In the present case, the mortgage expressly allows the trustee compensa. tion and expenses, regardless of possession. It must be said that the court in the case just cited did not feel at liberty to allow ordinary mortgagees compensation for their trouble, or for counsel fees, out of the proceeds of a sale of mortgaged property, and this we conceive to be the law of this state. In our view of the proceeding, however, it is not necessary to reverse the judgment of the court below for this reason, inasmuch as no amount was mentioned in the decree for expenses and compensation. A redemption from sale could have been effected simply by paying the amount due on the bonds as fixed in the decree, and disregarding all reference in the decree as to the expenses and compensation to the trustee. The amount of the trustee's expenses and compensation is indefinite and unfixed in the decree and practically could have no effect whatever without further order of the court. It certainly never stood in the way of redemption, nor is there any claim that there was ever any intention or desire on the part of anyone to redeem, or that anyone was prevented or that anyone had been prejudiced in his rights. Section 5115, Rev. Stat., requires that the court, in every stage of an action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed, or affected, by reason of such error or defect. The record must show that the error complained of was prejudicial. Scovern v. State, supra; Dickey v. Beatty, 14 Ohio St., 389; Oviatt v. The State, 19 Ohio St., 573; Dallas v. Ferneau, 25 Ohio St., 635-638. Where, on error, it is apparent from the record that the judgment of the court below was right, technical errors intervening in the trial, will not avail to disturb the judgment. Way v. Langley, 15 Ohio St., 392. In Dayton Insurance Co. v. Kelly, 24 Ohio St., 345 it was held that a failure to aver in the petition the performance of a condition precedent Superior Court of Cincinnati. 375 in the contract sued on was not sufficient ground for reversing the judgment where it appeared from subsequent pleadings and record that the defendant had not been prejudiced thereby. In Jack v. Hudnall, 25 Ohio St., 255, the court has distinctly declared that where the finding of fact by the court admits of a construction which will support the judgment, that construction will be adopted rather than a different one which would render the judgment erroneous. There is nothing in the record to show that the Cincinnati Hotel Company was injured in any manner whatsoever by the order, and a reviewing court would hardly interfere, unless something was shown in the face of the record to be prejudicial. The Supreme Court has said in the case of McHugh v. The State, 42 Ohio St., p. 154, "The duty of regarding any record brought before this court for review, as being wholly free from error until the contrary is clearly shown, is one which we endeavor to faithfully perform; and, except as to matters relating to jurisdiction, or the practice of the court, or where counsel have overlooked a statute or decision of this court controlling the case, the court confines itself, ordinarily, to the errors assigned as grounds of reversal. Nor does it necessarily follow that the judgment will be reversed because error has intervened. In Scovern v. The State, supra, the court again says: "In order to justify the reversal of a judgment on error, the record must affirmatively show, not only that error had intervened, but that it was to the prejudice of the party seeking to take advantage of it.” It is not necessary to consider further the alleged grounds of error. No error is apparent in the record and the decree and judgment should stand. AS TO THE MOTION TO VACATE. In regard to the motion filed January 12, 1891, to vacate the entry of judgment and order for sale, the principle is fundamental that every court has a right to judge of its own records and minutes; and if it appear satisfactorily to it that an order was actually made at a former term and omitted to be entered by the clerk, it may at any time direct such order to be entered upon the records, as of the term when it was made. Benedict v. The State, 44 Ohio St., 679; Bothe v. Railway Co., 37 Ohio St., 147, 149; Elliott v. Plattor, 43 Ohio St., 198, 205; Freeman on Judgments, sec. 56 to 68. It is suggested, however, that by reason of entering the decree upon the December minutes plaintiff in error was deprived of his right to file a motion for a new trial within three days as provided in sec. 5307 of the Rev. Stat. It would appear from the reason ing in the case of Landon v. Reid, 10 Ohio Rep., 202, that the decision having been rendered at the December term it was the duty of the person aggrieved to file their motion during that term, but if the absence of the decree from the minutes prevented in some way the filing of the motion and the party was unavoidably prevented from filing the motion within three days after the decision is rendered, then the limitation would not apply. Indeed the very relief is now invoked by the motion. The subject is carefully discussed in In re Cook, 77 California, 220, by McFarland, J., it can hardly be questioned that the decree might have been entered in the January minutes nunc pro tunc with the same effect. The December minutes were open and the court in the exercise of a proper discretion could order the decree to be entered upon them 375 Cincinnati Hotel Co. v. Central Trust and Safe Deposit Co. directly instead of by reference. The ordering of the decree was a judicial act; the entering it was purely ministerial and could have been done at any time without affecting the validity of the judicial act. The decision of the court is the judgment the entry; the entry by the clerk is the evidence of it. The judgment is as final when pronounced by the court as when it is entered and recorded by the clerk, as required by statute. Cal. St. Tel. Co. v. Patterson, 1 Nev., 124. The motion to vacate the entry of judgment and order for sale filed January 12, 1891, and submitted to the court, is based on irregularity in entering the same, and it is contended that it was not in fact entered at the December term, 1890. The testimony of the witnesses upon the matter of the entering of the decree will be found as follows: Mr. Wulsin, pp. 92, 95, 135, 141, 142; Judge Harmon, p. 465, 469; Judge Taft, in his deposition in response to interrogatories. The testimony seems to establish the fact that the decree was complete and in the hands of the trial judge prior to the fourth day of January, 1890. The court, having directed at the December term that this decree should be entered in the minutes of the last day of that term, it could afterwards, in the January term, have ordered it entered upon the minutes of the January term, nunc pro tunc as of the last day of the December term; and had the court done so the decree would have had precisely the same effect that it has appearing as it does now upon the minutes of the December term. Benedict v. The State, supra; Elliott v. Plattor, supra; Potter v. Meyers, 31 Ohio St., 103; Lambert v. Mustard, 18 Ohio St., 419; Landon v. Reid, 10 Ohio, 202. No exceptions to the decree was taken, although under the authority of the Commercial Bank v. Buckingham, (12 Ohio St., 402) it may be claimed that it is not necessary in order that a final judgment may be reviewed, reversed, vacated or modified, that the party seeking its reversal should have excepted as such final judgment at the time. It is the testimony of the trial judge (p. 8 of deposition) that at the time of the endorsement of the entry the court was sitting in the submitted room, and in the December term, that the court declared to counsel for the defendant in error that he was entitled to his decree, that the court endorsed the decree to be entered on the last day of the term, and at the same time handing the papers to counsel and speaking to the clerk about it. It is further the statement of the trial judge (p. 5) that the delay in the entry of the decree of judgment and order for sale was caused by an intervention in the interest of the plaintiff in error. The petition in error will be dismissed, and the judgment of the court in Special term affirmed; and motion to vacate entry overruled. MOORE, J., concurred; SAYLER, J., did not sit. Kramer & Kramer, Lowry Jackson and William L. Avery, for plaintiff in error. Drausin Wulsin, Frank O. Suire, Edward Colston, William M. Ramsey and William Worthington, for defendant in error. [The Supreme Court, on motion for leave to file petition in error, May 9, 1891, ordered that the judgment of the superior court of Cincinnati be modified by striking out of the decree as rendered by the court in Special term, and affirmed in General term, the provision requiring the plaintiff in error to pay the expenses and commissions of the trustee, the Central Trust and Safe Deposit Company, the defendant in error, and in all other respects affirmed the decree.] Hamilton Common Pleas. 385 385 CONTRACTS INJUNCTION. [Hamilton Common Pleas, May 20, 1891.] COLUMBUS BASE BALL CLUB V. CHARLES T. REILEY. A court of equity will not enforce a contract for personal services, by injunction, unless the services contracted for were peculiar, unique, and extraordinary in their nature, and the person sought to be enjoined is shown to be a person of exceptional skill and ability, so that his place could not reasonably be filled, and that irreparable pecuniary injury would result. MAXWELL, J. This case was submitted to the court upon an application by the plaintiff for an injunction against the defendant. The facts briefly stated are as follows: The plaintiff desiring to secure the services of the defendant-who is said in the petition to be a player of exceptional and peculiar skill and merit-for the season of 1891 and 1892, employed a Mr. Elliott, of Philadelphia, a member of the bar, and connected with the Athletic club, as an officer, to go to Princeton, N. J., where the defendant lived, and obtain defendant's signature to a contract. Mr. Elliott went to Princeton pursuant to the request of the plaintiff, on February 16th of this year, saw defendant, and after some conversation they agreed upon the terms of employment as to advance money and salary, and thereupon defendant signed a form of contract which had been used the year before between the American Association and its players. The terms agreed upon were four hundred dollars advance money, to be paid within ten days, and twenty-seven hundred dollars a season, salary. So much is without dispute. Now comes the disputed matter as between Mr. Elliott and the defendant, the only persons testifying as to what occurred at the time of the signing of the contract. The original contract, a printed form, contains the words: "Conditions and Provisions of the National Agreement," meaning the agreement between the League and the two Associations, American and Western, providing for a board of arbitration to settle all differences between the respective clubs and their players. The contract as now presented has the words "National Agreement" erased, by drawing a pen through them wherever they occur in the contract. As to this matter there is a serious contradiction between Mr. Elliott and the defendant. Mr. Elliott testifies that the matter of the Association breaking away from the National Agreement was talked over by himself and the defendant before the contract was signed, and that the words "National Agreement" were erased with the consent and approval of the defendant. The defendant denies this in toto, and insists that he placed great reliance on this clause. The difference between the testimony of Mr. Elliott and the defendant cannot be reconciled or explained away. Either one or the other has testified to what is not true. Unfortunately there is nothing to throw much light on this difference in the testimony, one way or the other, and I must leave it there for the present, somewhat in the shape of a Scotch verdict. The Association formally renounced the National Agreement at the meeting of its representatives in New York, on February 18th, two days after the signing of the contract in dispute. There is some testimony tending to show that this action was advertised as imminent on Sunday morning, February 15th, in the varous metropolitan papers, by reason of |