text:
    ERROR — JUDGMENTS AND DECREES.
    [Lucas (6th) Circuit Court,
    June 27, 1907.]
    Haynes, Parker and Wildman, JJ.

      Josie Casto v. John Casto.
    1. Opening Decree for Divorce to set Aside 'Service by Publication.
    Revised Statute 5355 (Lan. 8881), providing for the opening of judgments where service was had by publication and no actual notice was had thereof, has no application to divorce cases.
    [For other cases in point, see 5 Cyc. Dig., “Judgments and Decrees,” •§§ 1093-1241; 3 Cyc. Dig., “Divorce and Alimony,” §§ 170-184. — Ed.]

      2. Burden of Proving Want of Notice of Pendency of Suit.
    Upon one who seeks to have a judgment, obtained on service by publication, set aside on the ground that no actual notice of the pendency of the suit was had is imposed the burden of proving that he had no such notice; and a record showing that no evidence or proof was produced on the hearing of such application would disclose that the court did not err in overruling the same.
    3. When a Record may not be Corrected in Error Proceedings.
    Where a party prosecuting error with full knowledge of the state of the record, and of what actually transpired in the court the judgment whereof is to be reviewed, voluntarily submits the cause to the reviewing court, a motion of such party, after judgment of such reviewing court against him, to set the same aside on the ground that the record which he so ■submitted to the court is incorrect in some particular, will be overruled, especially where the reviewing court is clearly of the opinion that the record changed as desired by such party would still require the same judgment.
    [For other cases in point, ábe 4 Cyc. Dig., “Error,” §§ 1167-1185. — Ed.]
    [Syllabus approved by the court.]
    Motion to set aside judgment.
    Templeton & Templeton and C. A. Thatcher, for plaintiff in error.
    E. E. Davis, for defendant in error.

      Prior hearing see nest case ante.

   PARKER, J.

This case was submitted to us on March 19 on briefs. It was held under consideration until April 6, when the decision of the judge of the court of common pleas was affirmed. On June 24 — being at the «ame term — the plaintiff in error filed the following .motion in the court:

“Now comes the plaintiff in error and represents to the court that ■on the hearing of this case in the court of common pleas, the same was ¡submitted to the court upon the motion of the plaintiff in error for leave to defend, and upon a motion of the defendants in error to strike ¡said motion of the plaintiff in error from the files. That said motions were submitted to the court without the introduction of any evidence or proofs of any character, and that the court sustained the motion of the •defendants in error and overruled the motion of plaintiff in error, ¡solely on the gfound that the court was without jurisdiction to grant ¡the relief which plaintiff in error asked in her said motion.
“Plaintiff in error further represents that by a mistake of the -■clerk and irregularity in obtaining the judgment in the court of common pleas in this cause, the original entry recited the fact that said motions were heard upon proofs, while in fact said motions were not heard upon any proofs whatever.
“Wherefore plaintiff in error suggests a diminution of the record herein and moves the court to set aside the judgment, order and decree of the court heretofore entered herein, and that the same-may be remanded to the court of common pleas of Lucas county, Ohio, for the purpose of having the entry, order and judgment of said court corrected so that the same will correspond to the facts.” (Signed) “Josie Casto by Templeton & Templeton and C. A. Thatcher, her attorneys.”

In support of this motion, the affidavits of C. A. Thatcher and J. JB. Templeton are filed. In his affidavit, Mr. Thatcher says:

“ C. A. Thatcher, being duly sworn, says that he was one of the attorneys for the plaintiff in error in the court of common pleas of Lucas •county, Ohio, in the hearing of the above-entitled, case on the motion of the defendants in error to strike the motion of the plaintiff in error for leave to answer in said case, from the files, and also such attorney upon the hearing of said motion of the plaintiff in error for leave to answer in said cause.
“Affiant further says that no proofs or evidence of any character were introduced or received in evidence by the trial court on the hearing of said motions. That the statement in the journal entry that said motions were heard upon proofs, is a mistake and is not true.” (Signed) “C. A. Thatcher.”

The affidavit of Mr. Templeton is in precisely the same form. We have also had submitted to us a statement from the Legal News of a brief opinion of the trial judge in deciding the matter; and the trial judge — Judge Tyler — has been before us and has given his statement of his recollection of what transpired.

It will be noticed that counsel do not pretend that since the cause was heard and decided by us they have gained any new light or information as to what actually transpired ’in the court below, or as to what that court actually considered or did in the case.

Our opinion upon the case as submitted to us, was taken down by a stenographer, has been preserved and may be referred to, so that it’ will not be necessary to go into the history of the ease very fully. I may say, briefly, that the action in the court below was by John Casto against his wife, Josie Casto, to obtain a divorce, on the ground of adultery of the wife. Service was obtained by publication, as provided-in the- chapter -of the Revised Statutes on the subject of divorce, and a divorce was granted on the ground- of such adultery of the wife. This,, of course would have the result, in law, of depriving the wife of certain interest in the estate of her husband, if she should survive him, which but for such misconduct and the divorce on account thereof, she would have in his estate.

After this divorce was granted, the husband died. He left some-estate. Certain of his heirs, in Greece, laid claim to it, and thereupon Josie Casto came forward and became active and filed a motion in the case, in which she set forth that she had not been served with process, that she had no knowledge of the pendency of the action, and that she-had a good and valid defense; in other words, that she was not guilty of the misconduct charged, and desired to be let in to defend and have the divorce case retried in order that it might be determined and adjudged that she was not guilty — the ultimate purpose, of course, being to give her a status under which she could claim an interest in her husband’s estate.

Her proceeding was under Rev. Stat. 5355 (Lan. 8881). The court, of common pleas being of the opinion that this section of the statute-had no relation to divorce cases; that service by publication in such cases could not be set aside and a party be let in to defend by virtue of this statute, ruled against Josie Casto upon her motion. It seems that at the-time of this ruling by the trial court Josie Casto had on file in that court, in support of her application under Rev. Stat. 5355 (Lan. 8881), certain affidavits in which her innocence of these offenses was asserted, and the fact that she had not been personally served and had no personal knowledge of the pendency of the action, was stated.

As to the affidavits, it may be said that they would make a prima facie case in her favor under Rev. Stat. 5355 (Lan. 8881), if it had* any application to a suit of that character; but it appears that the trial-judge, being of opinion that that section had no application, and (as said by Josie Casto in her motion now under consideration) he overruled . the application solely on the ground; that the court was without jurisdiction to grant the relief which plaintiff in error asked, and therefore he ignored the affidavits supporting the application. When the journal' entry was drawn it set forth that this-motion to set aside the service by publication, and as well a motion to strike such motion from the files and dismiss it, were heard “upon ike-proofs, ’ ’ and that journal entry closes with a paragraph which seems-to be consistent with the theory that the hearing was upon the proofs,, or, at least, that it was so considered by the parties — that is to say, that'though the proofs may not have been given any weight or eonsideration by the court, they were properly presented so that if they were entitled to receive consideration, the court was bound to consider therm. It is this clause:

“Wherefore, it is considered, ordered and adjudged that the said) G-eorge Athan Constianto, Melpomene Papagheorgiou, Phelo SakeEarto and Maria Papadopouulo, recover of the said Josie Casto the costs herein, taxed at $-, to which judgments and orders the said Josie Casto, by her counsel, excepts, and is granted forty days in which to file bill of exceptions.”

Of course, if the court below had proceeded upon the application- a® it would upon a pleading to give judgment upon the statements thereof. without respect to any evidence which might have been submitted ox" proffered in its support, upon the theory that the sufficiency of th&>-statements were to be tested first, as in the case of a demurrer to s-pleading, and that the evidence on file was not to be considered- as-even-proffered, the statement that time was given for preparation' of a1 Bill'1 of exceptions, would be quite unnecessary and inappropriate. This; motion, however, according to our view, was not a paper or pleading- im1 the case which could be tested or treated in that way by the trial-court, -

These affidavits were on file. The motion, or the “ application ” as-it is called in Rev. Stat. 5355 (Lan. 8881), would be of no value — of n® ‘ consequence — would not entitle the applicant to the first move in’ her ' favor at the hands of the court below, unless it were supported by evs--dence, either in the form of affidavits or otherwise,’ presented or proffered to the court. The application must be accompanied by a proper showing of certain facts. The statements of the party in the so¡-ealife<I motion or application are really of no special consequence except as &■ matter of introduction of the subject to the court; but. what is -essential: in order to move the court to action in favor of the applicant, is; that' the applicant shall “make it appear to the satisfaction- of the court, that-during the pendency of the action he had no actual notice- thereof hot-time to appear in court .and make his defense.”' Counsel- for' the;plato--tiff in error -seem to have had that understanding of the matter when error was prosecuted to this court, and therefore brought up with this record — or attempted to do so — the affidavits which had been filed with the application, and insisted that the court had erred, not only in the ' view it had entertained with respect to the case not coming within the purview of Rev. Stat. 5355 (Lan. 8881), but that the court had also erred in denying the application, in view of the proof that was submitted in support thereof. The brief was very full upon this point. But counsel seem to have conceived the notion that in order to get these proofs before this court it was not necessary to have a bill of exceptions, so the affidavits are simply attached as if they were pleadings in the case — as if they were a part of the record without being incorporated into a bill of exceptions; and when we came tó consider the matter, as will be seen by the former opinion which was handed down, we held that we,could not consider the affidavits because not incorporated in a bill of exceptions. Thereupon we affirmed the judgment of the court of common pleas.

.The matter has stood in that way for about three months; and now comes this motion to set aside our decree of affirmance, together with the suggestion that the record is not complete,' and an application for such action as will enable the plaintiff in error to go back to the court 'of common pleas and have this entry amended so that it may show that the hearing was not upon the proofs, but that, on the contrary, no proofs were submitted in support of the application filed in that court on behalf of the plaintiff in error. Assuming for a moment that the plaintiff has shown herself entitled to this extraordinary action at the hands of this court, in her behalf, let us consider the result of granting what she asks. This, motion distinctly states that both of said motions — meaning thereby the application to set aside the service by publication and allow Josie Casto to come in and answer and the motion to dismiss that application— were submitted to the court, and further, “that said motions were submitted to the court without the introduction of any evidence or proofs of any character.”

Suppose that were true; suppose the plaintiff in error should, succeed in getting back into that court and in having the journal entry in the case so changed ? According to our view of the matter, it would then unquestionably devolve upon that court to deny the application, even if the case came within the purview of Rev. Stat. 5355 (Lan. 8881) ; because, as I have said, it is not sufficient for a party to make the application and state therein the reasons or grounds in support thereof, but it is necessary for the party making the application to support it by making it appear to the satisfaction of the court that, during the pendency of the action, he had no actual knowledge thereof in time to appear in court and make his defense; and, therefore, if the plaintiff in error should ever sue-ceed in getting back into the common pleas court and in having this journal entry of the court so changed as to make it appear that there was not an iota of evidence of any description or character submitted or proffered to the court in support of the application, she would succeed in making it appear clearly that the court had not erred in dismissing her application; or (as it is stated in the journal entry), in overruling her motion. Now that is one reason, and an all-sufficient reason, in our judgment, why this motion should be overruled.

It is somewhat extraordinary practice for parties to come into this court after a case has been submitted, and a judgment has been obtained upon a record with the condition of which the parties were well acquainted when the case was submitted, and ask the court to set aside its judgment and give the, parties an opportunity to go back into the court below and try to make up a different record in order that they may present a different question to this court; and yet, we can see that if the parties were misled about the facts, it might not only be possible but proper for the court to grant them this extraordinary relief. But, in the showing upon this motion by the affidavits filed here in its support, it is not stated and it is not pretended that when this case was submitted to this court, the plaintiff in error or her counsel were ignorant of the state of the record, so that we are bound to assume that they were fully acquainted therewith. No reason appears why they should not have been. The record is plainly typewritten, and the journal entry that counsel desires to have modified in the court below is one to which his signature is appended, approving it.

Some consideration is due to the other parties litigant, and where we are persuaded that the parties or counsel have not been diligent, but have been remiss, or where we are persuaded that what they are asking for would be of no possible avail to them, we think we should not grant a motion of this character in order to gratify a desire they may have to debate and present some other question; especially not when our minds are fully made up, as they are in this instance, that if the question were presented it would be resolved by this court against them.

As I have said, this evidence was filed in the court below; it was before that court for its consideration in the event that it concluded that the ease came within the purview of Rev. Stat. 5355 (Lan. 8881). The court could not refuse to either consider it or grant a bill of exceptions showing that the evidence had been presented and that the court refused to consider it. The very fact that the plaintiff in error brought this evidence before this court as a part of this record, and insisted upon this court’s giving it consideration upon the hearing of this case, is evidence to our minds that counsel for plaintiff in error understood ■ftaf the evidence had been so presented to the court below as that the ■jmurt was bound to consider it, if the court had jurisdiction of the application ; otherwise counsel would not be acting in good faith in asking fids court to consider the evidence — for it would not be proper, it would ilbe a gross impropriety for counsel to come to this court and ask us to .consider evidence that had not been either considered by or proffered to the court below. We conclude that the evidence was not only before ■&e court for its consideration, but that counsel so understood it, and ¡that the only mistake or oversight in that regard, was that of counsel .in failing to incorporate this evidence in a bill of exceptions. It would iJje idle to send the case back to the court‘below because it is now too 'late to have a bill of exceptions perfected in that court.

We overrule this motion: First, because the cause was submitted ito this court by counsel, who have not shown to us that they were under ¡any misapprehension at the time as to the state of the record or as to what was actually considered and done by the trial court; secondly, '¡because a bill of exceptions is necessary, and it is now too late to obtain it, and it would be, therefore, idle to remand the case to the court below; -.thirdly, because in our opinion the court below was clearly right in (holding that Rev. Stat. 5355 (Lan. 8881) has no application to divorce leases. Under these circumstances, to set aside the former judgment and give counsel an opportunity to make the application desired to the .fiourt below, would be an abuse of discretion upon our part, and an injus--.tiee to the other parties litigant.

Haynes and Wildman, JJ., concur.


source: Caselaw Access Project

author: WILDMAN, J.

license: Public Domain

text:
    DRAINS AND DITCHES — MUNICIPAL CORPORATIONS— PARTIES.
    [Wood (6th) Circuit Court,
    April 27, 1907.]
    Haynes, Parker and Wildman, JJ.

      Benjamin F. McCaslin v. Perrysburg (Vil.).
    1. Taxpayer oe Unincorporated Village Cannot Sue in Behale oe Village.
    An individual taxpayer of an unincorporated village having no solicitor cannot, under Rev. Stat. 1778 (Lan. 3281; B. 1536-668) which provides for suits by a taxpayer on behalf of a municipality, bring an action in his own name solely on behalf of the municipality and against the county commissioners to restrain them from proceeding under provisions for the improvement of a county ditch lying partly within the limits of the municipality.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 3251-3293. — Ed.]
    2. Constitutionality of Provision for Petitioning for Ditch Improvement by Municipality.
    Sections 4483, 4484 (Lan. 7667, 7668), providing procedure for the petitioning by a municipality, through its mayor, for the improvement of a county ditch lying partly within the municipal limits, is not unconstitutional for not providing for notice to property owner or for appeal, or for jury, as such sections are to be taken as part of the entire chapter applying to ditches, wherein provision is made for said matters.
    [Syllabus approved by the court.].
    Appeal from Wood common pleas court.
    F. E. Bowers, for plaintiff.
    J. E. Ladd, for defendant.

       Affirming McCaslin v. Perrysburg, 18 Dec. 196.

   WILDMAN, J.

The case of McCaslin, on behalf of the village of Perrysburg against the village of Perrysburg, Wood county, Ohio, and others is an action on appeal from the court of common pleas, and it involves the power of a citizen and taxpayer in an incorporated village to restrain proceedings by the officials of a county acting under the provisions of Rev. Stat. 4483, 4484 (Lan. 7667, 7668) in the improving of a county ditch, a part of which lies within the territory of an incorporated village.

Proceedings had been taken under Rev. Stat. 4483 (Lan. 7667) and the mayor of the village had presented a petition signed by him officially and with bond to the county commissioners for the establishment of the improvement, and the petition recites in detail the action being taken thereunder by the county commissioners. A demurrer is filed by the-county commissioners to this petition, upon the ground that the petition does not state facts constituting a cause of action.

The plaintiff seems to act under Rev. Stat. 1778 (Lan. 3281; B. 1536-668) ; which section provides that upon the failure of the solicitor-of any municipality to take certain action when requested in the way of instituting suit for the protection of the municipality, a taxpayer may act. and may institute the suit, provided that no such suit or proceeding shall be entertained by any court until such request shall have been first-made in writing, and provided further that no such suit or proceeding shall be entertained by any court until such taxpayer upon motion of the-solicitor or corporation counsel shall have given security for the costs-of the proceeding.

In this ease it is not alleged that any request was made of the solicitor but instead thereof it is alleged that the village has no solicitor. The petition does not ask to enjoin the municipality or any of its officers, from doing any act; the petition is directed solely at the county authorities — the county commissioners and other officers of the county;, and it seeks to prevent the carrying out of the proposed plan for the improvement, because, as claimed, a general system of sewerage has already-been established by the municipal authorities and the attempt made-by the county commissioners is useless, will entail great expense upon the taxpayers and the municipality .without any corresponding benefit. The-plaintiff sues, however, not in his own behalf as a taxpayer personally, but in behalf of the municipality and upon the assumed right to do so because of there being no solicitor to take action.

Revised Statutes 4483, 4484 (Lan. 7667, 7668) provide the procedure for the petitioning by a municipality through its mayor for the. establishment of such an improvement and the action of the county commissioners in accordance with such petition. It is insisted by the petitioner here that these two sections last cited are unconstitutional and invalid in that they provide no means for the protection of property - owners by notifying them of the proceedings; no time and place for presentation of claims for damages; no provision for appeal or petition in error, and no provision for jury, and for other reasons stated. The court of common pleas to whom this same demurrer and petition were-presented for consideration, sustained the demurrer and in the consideration th'ereof rendered an opinion which we have read with interest, and we find that it so clearly states the position at which we had already arrived in considering the oral and written argument and in the examination of the authorities cited, that we do not care to enter into any elaborate discussion of tbe questions involved. ¥e think that the trial judge-in the court below in passing upon the demurrer has stated very ably and correctly the principles which govern the issues presented in this-demurrer. The question is a very serious one at least as to whether the plaintiff has any right at all to sue in behalf of an incorporated, village, notwithstanding the fact that there is no solicitor whose duty it would be first so to do. We think that in any event the power of the citizen to act in behalf of the corporation can rise no higher than what, would be the power of the solicitor, if there were one; and the petition as presented to us we think is not such a petition as is contemplated by the section to which I have referred authorizing a citizen to act in lieu of the solicitor, or by the other section authorizing the solicitor to sue for the village. We think also, as held by the court of common pleas, that. Rev. Stat. 4483 and 4484 (Lan. 7667 and 7668) are not designed to-be the complete procedure of the county commissioners, but that they are to be taken as a part of the entire Chap. 1 of Title 6 applying to county ditches, and for this reason that sufficient powers are given to-the county commissioners to protect, under the forms and provisions of other sections of the chapter, the rights of citizens. We think that the statute is not invalid for the reasons urged by counsel for plaintiff or any other reasons that occur to us.

In the case of Pleasant Hill (Vil.) v. Commissioners, 71 Ohio St. 133 [72 N. E. Rep. 896] the Supreme Court, having these sections before it, recognized, by implication at least, their validity, so far as any constitutional questions are concerned; and while this might not be a conclusive determination of the question of constitutionality, fetill the fact that the matter is so treated by the Supreme Court is not to be overlooked.

It may be remarked before completing our consideration of the case, that some analogy to the procedure adopted here under Rev. Stat. 4483 (Lan. 7667) is to be found in Rev. Stat. 4450 (Lan. 7631) wherein provision is made for an application for a ditch improvement to the county commissioners, to be signed not only by the individual owners of the lots and lands which will be drained or benefited thereby, but also by the street commissioner or supervisor of the road district in which the same is to be constructed, or the trustees of any original surveyed township owning land granted by congress for the support of common schools; or the infirmary directors of any county. Each of these bodies is treated as a landowner,- or a person interested in the construction of a ditch, upon precisely the same basis as private owners. So a municipality, an incorporated village or a city, is treated as if it were an individual owner. It may have no such especial interest in the construction of a sewer for the drainage of a street as would induce it to adopt a particular sewer or a particular ditcb, whereas tbe contemplated county ditch improvement passing into or through a city or village might be essential to the welfare, the convenience or health of the people living along the line of the proposed improvement. I see no reason why one person, natural or artificial, who may be liable to pay a portion -of the cost of such improvement, should be permitted to maintain an action to enjoin the construction of the entire improvement upon the . ground stated in this petition.’ As already stated, this petitioner, although he says he is a heavy'taxpayer in the municipality, is suing only on behalf •of the municipality as a corporate entity.

Our judgment is that the demurrer to the petition should be sus-» tainéd for the reason that the petition does not state facts constituting •a cause of action.

Parker and Haynes, JJ., concur.


author: COOK, J.

text:
    ERROR — EVIDENCE—MASTER AND SERVANT.
    Geauga (7th) Circuit Court,
    February Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    Aaron D. Baird v. Burton Telephone Co.
    .1. Pleading oe Breach oe Service Contkact.
    In an action for damages by a servant against the master for discharging him before his time of service has expired, it is the duty of the master to aver and prove that the discharge of the servant was for reasonable cause, and a charge of the court, “that the burden of proof rests upon the servant to show that the discharge was without any just cause therefor,” is error.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 1129-1139. — Ed.] 2, Examination oe Evidence in Error Proceedings.
    Where the whole evidence adduced upon the trial is made part of the record by a bill of exceptions, the court in determining whether the judgment should be reversed will examine the evidence as well as the . i charge with a view to determine whether under all the circumstances substantial justice has been done and if it has, the judgment will not be reversed for error in the charge.
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1620-1624, 1718-1730, - 1660. — Ed.]
    [Syllabus by the court.]
    Error to Geauga common pleas court.
    W. H. Bostwick and N. H. Bostwick, for plaintiff in error.
    W. G. King, for defendant in error.
   COOK, J.

The action below was by Aaron D. Baird, plaintiff in error, against tbe Burton Telephone Company, defendant in error, to recover damages for breach -of contract in wrongfully discharging him from its employ before his term of employment had expired.

Burton was employed by the telephone company as its manager and •collector and the evidence shows that he was employed for at definite period.

The first question that is presented is upon whom the burden of proof rests to show whether or not plaintiff in error was discharged without cause. The court charged the jury:

“If you find in this case by a preponderance of the evidence that the plaintiff and defendant entered into a contract by which he was, as general manager and collector of the company, to perform certain services for the company at an agreed price to be paid him therefor by the •company and that that contract was to continue for a definite period of time; and you find also that before the contract had expired the defendant without any cause discharged the plaintiff, then the plaintiff would be entitled to recover such damages as he actually sustained by reason oí such wrongful discharge.
“The burden of proof in this case rests upon the plaintiff; it is incumbent upon him, to entitle him to recover, to prove that the contract of service was entered into between him and the defendant, and that the defendant, without any just cause therefor, discharged him from: such employment and refused to allow him to continue longer therein.”'

Is the charge correct in this regard? "We do not think it is. The-law would not presume that the servant was derelict in his duty simply because his employer discharged him. Who would know whether or not the servant was derelict in duty better than the master ? He justifies for the reason that the servant was derelict in duty. It is in the nature of confession and avoidance, and the master must allege and prove the-ground of avoidance.

In this case one of the allegations of the petition is, that the discharge was without reasonable cause, and by reference to the approved books of pleading this is the usual form of petition in cases of this; character; but that is of no importance. The answer was a general denial and that only puts in issue the necessary averments of the petition but. not the unnecessary averments or such as are merely surplusage.

The duty devolved upon the defendant specifically to aver and prove-the cause of discharge — in what respect the servant was derelict in duty. Such was the holding in the well-considered case of Linton v. Fire Works Co. 124 N. Y. 533 [27 N. E. Rep. 406]. The syllabus of that case is as. follows: ;

“The law will not assume that a servant has been derelict in duty simply from the fact that his employer has discharged him before the-expiration of the term of employment, and in an action by him for a breach of the contract of employment, upon proof that he was discharged while engaged in the performance of the contract, and before his term of service had expired, the burden is cast upon the employer of proving, and hence of alleging, facts in justification of the dismissal.
“A general or specific denial in an answer controverts only material allegations, or such'facts as-the plaintiff would be compelled to prove to. establish his cause of action.
“In such an action the complaint set up the contract of employment and alleged that plaintiff entered defendant’s employ under it; that before its termination defendant, without right or cause, discharged him. The answer admitted the contract, denied the breach, alleged that plaintiff was discharged for cause, and separately specified twelve acts of plaintiff in alleged violation of the contract. Both parties gave evidence tending to sustain the allegations in their respective pleadings, and in addition thereto defendant offered to show other acts of misconduct .and unfaithful service on the part of plaintiff not alleged in its answer. This was, upon objection, excluded: Held, no error.”

In the opinion it is said:

“The law will not assume that a servant has been derelict in duty from the fact that his employer discharged him, but upon proof under proper allegations that he was discharged while engaged in the performance of the contract and before his term of service had expired, “the burden is cast upon the employer of proving, and hence of alleging, facts in justification of the dismissal. Such a defense confesses the contract and the discharge, but avoids the cause of action by showing new matter which, by the command of the statute, must be pleaded. Code Civ. Pro. Sec. 500; Code Pro. Sec. 149; McKyring v. Bull, 16 N. Y. 297 [69 Am. Dec. 696]. Any other rule, as was said by this court in the case cited, would ‘lead to surprises upon the trial, or to an unnecessary extent of preparation.’ A general or a specific denial controverts only ‘material’ allegations or such facts as the plaintiff would be compelled to prove to establish his cause of action. Griffin v. Railway, 101 N. Y. 348, 354 [4 N. E. Rep. 740]; Fox v. Turner, 17 N. Y. St. Rep. 666 [1 N. Y. Supp. 164]. It does not put at issue immaterial averments, because the code does not require that they should be denied. See. 500. The language of the statute is, that the answer ‘must contain a denial ■of each material allegation of the complaint controverted by the defendant, ’ etc. That the plaintiff was discharged beforé the contract had •■expired was material. That he was discharged without cause was immaterial, so far as the complaint was concerned, because a recovery could be had without proving it. It was sufficient for the plaintiff to allege a violation of the contract by the defendant. His effort to anticipate and deny any possible defense to his cause of action was surplusage.”

But while there is no doubt about there being error in the charge, was the error prejudicial? We think it was not. The whole evidence is before us and it conclusively shows that the judgment is right; that "the jury could not, at least should not, have rendered any other verdict •than it did.

The evidence clearly shows that Baird was not discharged at all but that he left the employ of the company upon his own accord. There is some little evidence to the contrary, but it is very slight and not worthy ■of consideration.

“The court, in every stage of the 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.” Rev. Stat. 5115 (Lan. 8630).

“An erroneous instruction to the jury is not a ground for the reversal of the judgment, where it clearly appears from the record that the party objecting was not prejudiced, thereby." Berry v. State, 31 Ohio St. 219 [27 Am. Rep. 506] ; Banning v. Banning, 12 Ohio St. 437; Fuller v. Coats, 18 Ohio St. 343; Marietta & C. Ry. v. Strader, 29 Ohio St. 448.

It would be difficult to find a case where this just rule of law could be more appropriately 'applied.

Judgment of common pleas court affirmed.

Burrows and Laubie, JJ., concur.


author: TAGGART, J.

text:
    NEGLIGENCE — RAILROADS—ERROR—TRIAL.
    [Richland (5th) Circuit,
    1907.]
    Taggart and Donahue, JJ.
    (Judge McCarty not sitting.)
    Baltimore & O. Ry. v. Maggie M. Collins, Admx.
    Erroneous Charge in an Action eor the Violation! oe Lan. Rev. Stat. 5421 (EL 3365-14).
    It is error for a court, in an action for damages against a railroad company* for wrongful death of an employe, caused hy the alleged keeping of a crew on duty over time in violation of Lan. Rev. Stat. 5421 (B. 3365-14), to-charge that, “If the train on which Grimes was conductor was delayed at Sherwood hy reason of an accident occurring to its engine, that statute.which I have, read to you has no application to the facts in this case, unless you find that the defendant, -knowing that said Grimes had been oa duty for more than fifteen consecutive hours, could have reasonably provided, in the due and proper operation of its trains, other servants competent to relieve said Grimes and his crew.”
    [Syllabus approved hy the court.]
    Error to Richland common pleas court.
    Cummings, McBride & Wolfe, for plaintiff in error.
    Sidles, Green & Skiles, for defendant in érror.
   TAGGART, J.

The defendant in error filed her petition in the court of common pleas of this county, alleging that she was the administratrix of the estate of James W. Collins; that he -met his death while in the employ of the Baltimore & Ohio Railroad Company on the morning of December 28, 1904, near Sherwood in the state of Ohio; that the death of said James "W. Collins was caused through the negligence of the defendant company in that it permitted and required a certain conductor Grimes, and his crew to be on duty for more than fifteen consecutive hours, to wit: forty-eight hours, without relief and without at least eight hours rest, in violation of Lan. Rev. Stat. 5421 (B. 3365-14) ; that the defendant below had full knowledge that said Grimes and his crew, at and! prior to the time of said collision, bad been on duty at least thirty-six hours without rest or sleep or relief; and that in consequence' of the-extreme cold and by reason of said Grimes and his crew’s being tired, weary and exhausted in consequence of said continuous duty and service,, and loss of sleep and rest, they were incompetent to perform properly-the duties devolving upon them, and that while in that condition, the-conductor Grimes negligently and carelessly opened -the switch and permitted the same to remain open; that the train upon which the deceased was employed was wrecked and his death was caused.

She avers that the company had full knowledge of the violation of' said statute and of the condition of said Grimes, and she prays a recovery.

The answer of the company is, in substance, a general denial with the plea of contributory negligence. On a verdict’s being returned in favor of the defendant in error and a judgment rendered thereon, this proceeding to reverse said judgment was instituted.

Numerous errors are presented for our consideration as to the admission of evidence. The only error of substance that we discover in this record on the admission of evidence is found in the bill of exceptions on page 74. The witness, W. A. Miller, was introduced on behalf of the plaintiff and testified that he was a member of the crew of the relief train which was sent out on the night of the accident. He was inquired of as to whether he had seen Grimes after that, and he answered, “Yes, sir.” This was after the accident occurred. He was then asked: “What did you hear him say?” This was objected to and overruled, the court permitting the answer: “Well, all I heard him say was, ‘I don’t know how I came to leave that switch open.’ ” Here was a declaration permitted to go to the jury as having been made by the conductor, Grimes, of an admission that he had left the switch open which caused the accident. We think that this was prejudicial error. .

In respect to the charge of the court,, it is claimed that this violates the rule in the case of Baltimore & O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071], but we think the court clearly defined the issues in this case, as shown on pages 157 and 158 of the bill of exceptions. The fact that he designated one issue in this case as the real issue is of no prejudice to the plaintiff in error. The defendant in error might complain if there were several issues upon which she might be entitled to recover, and the court singled out one issue and designated it as the real issue. She might complain but the defendant company has no ground to complain as to this action of the court.

The defendant company requested the court to charge the jury as follows:

“Any company operating a railroad over thirty miles in length in whole or in part within the state shall not permit or require any conductor, engineer, fireman or any train man on any train, who has worked in his respective capacity for fifteen consecutive hours again to be required to go on duty or perform any work until he has had at least eight hours’ rest, except in cases of detention caused by accident, unavoidable ■or otherwise.' •
“The above statute does not apply to this case, no difference how long the time occupied by Grimes in his run from Deshler to Garrett, unless the defendant company had either permitted or Required Grimes' to undertake this run without at least eight hours’ rest subsequent to the next preceding run and not then unless the jury find from the evidence that such next preceding run occupied more than fifteen consecutive hours of time.”

We think that this request states the law 'governing this case and should have been given. The court, however, on page 160, instead of giving this charge, gives the following erroneous instruction to the jury:

“If the train on which Grimes was conductor was delayed at Sherwood by reason of an accident occurring to its engine, the statute which I have read to you has no application to the facts in this case unless you find that the defendant, knowing that said Grimes had been on duty for more than fifteen consecutive hours, could have reasonably provided, in the due and proper operation of its trains, other servants competent to relieve said Grimes and his crew.”

This charge is erroneous in that it instructs the jury that if said Grimes had been on duty more than fifteen consecutive hours, notwithstanding his train was delayed by accident, yet if the company could have reasonably provided, in the proper operation of its trains, other servants competent to relieve Grimes, and failed to do so, it would be guilty of negligence. We think this is clearly erroneous and unwarranted by the section of the statute under consideration.

The court also, on page 159, places, as we think, a wrong construction of said section of the statute for he, in effect, instructs the jury that more than fifteen hours’ service on a continuous trip, without eight hours’ rest, would be a violation of this statute. This, we think, is clearly erroneous and prejudicial.

For the errors indicated in the admission of testimony and for the misdirection of the court to the jury as indicated, the judgment of the court of common pleas will be reversed, the cause remanded for a new trial and further proceedings according to law. Exceptions noted.

Donahue, J., concurs.


author: WALTERS, J. JONES, J.

text:
    CONTEST OF ELECTION.
    [Brown (4th) Circuit Court,
    February, 1907.]
    Jones, Walters and Cherrington, JJ.

      State ex rel. Gottlieb Bambach v. John W. Markle
    1. Necessity of Averment of Contestee's Residence.
    In a contest of an election for common pleas judge in a subdivision composed of two counties, failure to aver that the contestee is a resident of the county in which the action is brought does not deprive the court of jurisdiction.
    [For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 266-271. — Ed.]
    2. Admissibility of Parol Evidence of Destroyed Ballots.
    Where ballots have, been destroyed by the judges of election, which the statute does not require shall be destroyed, oral testimony is admissible in a contest of, the election to show how these ballots came to be destroyed, and for whom they were voted, and how they were marked.
    3. Parol Evidence to Identify Poll Books and Tally Sheets. .
    The will and judgment of voters cannot be rendered ineffectual through a disregard by the judges of election of their duty as laid down in the statute, whether such disregard be due to fraud, accident, mistake, misapprehension or negligence; and where such omitted duties with reference to the ballots cast were of a ministerial character, oral evidence is admissible to show the true character of the ballots as to which there is doubt, and to identify with certainty the poll books and tally sheets, and when the ballots in question are found to be truthful, they should be counted for the candidate for whom the voters intended they should be counted if that intention can be ascertained.
    [For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 284-292. — Ed.]
    4. Sufficiency of Marking Vote for Nonpartisan Candidate.
    Inasmuch as a single candidate on a nonpartisan ticket has no party emblem and no one else can go on that ticket, the printing on the nonpartisan ticket of words indicating various offices to be filled and voted for, with a circle above and blocks outside of the column will be regarded as surplusage; and if a voter makes a mark above or below or on the side or at the top of the column occupied by the name of the nonpartisan candidate, his intention to vote for such candidate is clearly indicated and the ballot should be counted.
    [For other cases in point, see 3 Cyc. Dig., “Elections,” §§ 175-181. — Ed.]
    5. Right of Residents of Illegal District to Vote.
    Where territory is transferred from one township to another by an unconstitutional statute, electors in such territory are not thereby made legal voters of the township to which it is sought to attach the territory.
    6. When Voter may be Compelled to Tell How He Voted.
    While the law does not permit the questioning of a legal voter as to how he voted, and an illegal voter might decline to answer on the ground that his answer might tend to incriminate him, yet where an illegal voter does not claim his privilege of refusing to testify, but voluntarily discloses that he did vote, he may be compelled to tell for whom he voted.

       Affirmed, without report, Markley v. State, 52 Bull. 359; 76 Ohio St. 636.

   WALTERS, J.

This case, as specially provided by statute, is in the nature of an. appeal from the report and finding of the board of deputy state supervisors of Brown and Clermont counties, which counties constitute a. common pleas subdivision.

The petition challenges the report mqde by the boards, of the result, of the election for judge of common pleas court at the November election, 1906. In brief it states that the relator is an elector of this subdivision; that he was a candidate for judge of common pleas court upon a nonpartisan ticket at said election;'that the deputy state board of supervisors in making up their report did not. give him the required number1 of votes, and he alleges that if the vote had been counted as cast, he would have received a majority over the defendant. It is also alleged that John M. Markley was the candidate on the democratic, and R. M„ McKinley was the candidate on the republican ticket. The relator further states that he applied to the clerk of the board of deputy state supervisors of Brown county, before the election, to obtain from him the form of the ballot that was to be used at the election. He received in answer from the clerk a typewritten copy of the form that was to be used; and he states that he used that form during the campaign in circulating sample ballots over the district, and representing that that would be the form of the official ballot which would thereafter appear and be voted. He says that it did not appear as handed to him by the clerk, and thereafter at the election, and by reason of that fact, there arose great confusion in the minds of the voters as to where to place their mark. He further says that in Byrd township, there should have been counted for him 142 votes. That in Hamersville he should have received 29 votes in the count, and in Mt. Oreb 77 votes, which the board of deputy state supervisors threw out. He further alleges that in the township of Perry John M. Markley received 205 votes which were counted for him, when in fact he only received 201 as the report of the judges show. There were 65 disputed ballots returned not counted, most of which will show he was entitled to the votes. That a large number of ballots were destroyed by the election judges, which were in dispute, and should have been sent up, but were not, and were votes for the contestor. That minors and nonresidents voted for the contestee and other illegal voters.

The answer protests, first, that this court has no jurisdiction whatever, because the petition does not allege that the contestee is a resident of Brown county, Ohio. He further avers that as to Byrd, Hamersville and Mt. Oreb, he also is entitled to certain votes if they are to be counted at all. He objects to the poll books and tally sheets, alleging that some-of them were not properly sealed, or transmitted in the form required-by the statute; and that the ballots sent up by the judges did not contain a proper statutory certificate, certifying for whom, or whether they were counted at all by the judges of election, and that some of the ballots-had no certificate whatever.

Some of the contentions on behalf of the contestee have been deposed of by this court during the progress of the trial. The objection, to the jurisdiction of this court was so disposed of, the court holding' that jurisdiction had been obtained. Also the court ruled during the progress of the trial that oral testimony was admissible to identify the ballots which were destroyed by the judges of election, and for whom said ballots were cast. These ballots were not counted. The majority of the court are still satisfied to adhere to the opinion thus rendered during' the trial; and hold that the legislature having directed that all the' ballots which have been counted and read, as provided by Rev. Stat. 2966-39 (Lan. 4538), and as to which ballots all requirements in that-section had been complied with should be destroyed. That in the direction to destroy, and the destroying of such ballots, so counted and read,it was evident that the legislature meant by this destruction of the evidence, the best evidence, that the decision of the election judges should-be final. But as to all ballots that were not required to be destroyed, they, after having been destroyed, might be the subject of review in a contest, and that oral evidence was competent to show how they cam©' to be destroyed, and as to whom they were voted for, and how they were marked. The presiding judge has some doubt about a portion of this-ruling — he holding that oral evidence was admissible concerning the ballots which the election judges had some dispute about, but did not certify up; and that the inquiry should be limited to that class of ballots.

It is further contended on behalf of the contestee that this court could not take into consideration any of these certified ballots where they have not been certified correctly, or not at all, by the judges, or how they were voted or counted, or whether counted at all, and that the want of such certificate required by the statute cannot be supplied by oral testimony.

He further objects that the poll books and tally sheets have not been properly sealed, and other formalities as required by the statute not complied with, that those omissions by the judges of election cannot now be inquired into, nor the want thereof supplied by oral evidence.

The view this court takes of these propositions, is this: The legislature has attempted to surround the election with every safeguard, in •order to insure tbe voter, when he easts his ballot in the ballot box, that •it shall be thereafter honestly and correctly dealt with, and counted, in order that his individual conscience and will and judgment should be made effectual. The legislature to that end has provided the forms of ballots, directed how the ballots shall be marked, how the judges shall receive them, in what manner they ?hall be taken, counted and read, from the ballot box, how the results thus announced by them shall be recorded by the clerks, the manner and the form of the poll-books and tally sheets, in what manner they shall be transmitted to the board of deputy state supervisors, how they shall be indorsed and sealed, and disputed ballots certified, and how, and by whom, and what the certificate shall contain. These safe guards are proper. But, let me inquire, was it the purpose of the legislature to take away from the voter the privilege of‘having his vote cast, and his will, and his conscience, and his judgment, oh for that matter collectively the judgment of the entire voting precinct, made ineffectual because perchance the judges of election have disregarded their duty laid down by the statute, either through fraud, accident and mistake, or misapprehension or negligence, because perchance they have failed to seal up the poll books in the jackets provided, or properly to direct them, or properly to certify as to the disputed ballots, or properly to address or direct the envelope?

It would hardly strike the common sense or righteous judgment •of' any voter that that ought to be done. The voter has a right, having done his part to express his opinion, to have his vote counted and returned correctly. It is not the fault of the voter that the poll books, for .instance, were not properly sealed; it is not the fault of the voter that the judges did not properly certify the disputed ballots; and it would seem evident that the negligent acts, omissions and mistakes or misapprehensions of the judges of election in failing to conform to the requisites should not work a disfranchisement of the individual' voter, or all the voters of a precinct. To hold otherwise would seem to shock the sense of right and justice of most men. These acts of the judges which are simply ministerial in character may be inquired into. And oral evidence is admissible to show the true character of the ballots, and to identify with certainty the poll books and tally sheets; and when so clearly identified and shown to be truthful, they should be received as a verity by the court, and the ballots counted as the voter intended they should be, if that intention can be ascertained.

The same may be said of the destroyed ballots, if the electors who cast those ballots were entitled to have them counted and read and tallied, we do not see why they should be deprived of their votes because the judges of election, through misapprehension of the law, or the manner in which they were marked, destroyed them without counting them for any one; at least evidence should be admitted, and if of a convincing character, should indicate that the votes should have been counted, the duty of the court would be to do so.

It is claimed that the vote from Mt. Oreb was thrown out because it had no jacket; the vote from Byrd township was thrown out because the clerks instead of putting down tallies in the boxes used for that purpose opposite the name of the common pleas judge, used numerals. No dispute has arisen from any single source during this trial which impugns the correctness of these poll books and tally sheets; there is no testimony to show that the numerals were incorrect; no complaint is made except as to the want of the formalities required by the statute. In Perry township there seems to have been four tallies following the first tally which now distinctly appears in the column opposite John .Markley’s name, which four tallies were at some time erased or rubbed out; the poll books now show that there were other marks there at one time. The judges and clerks certified that Judge Markley received 201 votes, which result was carried out in figures, and also written out in long-hand. The board of deputy state supervisors counted these partial or wholly obscured or erased ballot marks for Judge .Markley. The contestee has offered no evidence in any way tending to show that those four erased or rubbed tally marks represented votes. The duplicate required to be transmitted to the clerk of the township shows 201 votes. Without any evidence that the count was incorrect we could not disturb the return and decision of the .judges of election.

Before going further with this opinion it might be well to state, in a general way, the rule which we think should govern this court in the counting of these ballots, supplementing what has already been stated* A large number of these ballots are marked in an irregular way, especially the marks for Mr. Bambaeh in the nonpartisan column: some being above his name; some being in the place where the name of the secretary of state would appear; some in the circle in the Bambaeh column: and some immediately above Mr. Bambaeh’s name; some in the block to the left of the Bambaeh column, but not in the block immediately to the left of Mr. Bambaeh’s name; some in the block that appears on the right of the Bambaeh column; and in most every case where a mark is made in the Bambaeh circle the voter has voted one of the regular party tickets, by also making a mark in the circle. The contention of the contestee is, that no vote of any voter who voted the straight democratic or republican ticket by placing his mark under the eagle or under the rooster, and then passing over to the circle and making a mark in the nonpartisan ticket in the circle, should be counted for Mr. Bambach; nor should any (Other vote be counted for him unless the mark is made where the legislature directed — in the block at the left hand of the candidate’s name.

It is a rule of construction laid down by all text-writers upon the .•subject of counting votes that the primary step is to determine, if possible, the intention of the voter, and where that can be done, no vote should be thrown out. This would seem to be a just rule as we all know •that a great many people in this country give but little attention to the manner of voting under the Australian law, and especially where it is .•desired to vote a mixed ticket, and that a great deal of confusion has arisen. It takes a pretty intelligent man, from one election to another, ;jhis attention not having been called to the matter, and having given no -thought to the manner of voting, to step into the voting booth, and without hesitation to vote a mixed. ticket, and He sure it is correctly done. ■'The courts, therefore, have construed all those Australian ballot laws •in a liberal manner. The legislature in adopting that system, and carrying out that idea of construction in Lan. Rev. Stat. 4534 (B. 2966-35), .provided as follows:

“No ballot shall be rejected for any technical error which does not make it impossible to determine the voter’s choice.” ^

In obedience to this rule of construction, if from an inspection, and ■from the evidence, it is possible to determine the intention of the voter -you must do so. In other words, if it is possible, in the language of the (Statute, for us to determine for whom he intended to vote, it is our jgolemn duty to preserve that vote.

It would seem that this nonpartisan ticket might just as well, and -rightfully, have been printed without any other designation upon it than simply printing in the column opposite the other designation for the same office, judge of common pleas court, straight across, in simply printing his name there; there need be no circle at the top; no spaced blank places, or printed words containing the words, “for secretary of state” or for anybody else for either the state or county ticket. If a candidate is put upon a nonpartisan ticket he is put there by petition; lie has no party emblem as the other parties ’have, and there would seem to be no use for a circle upon that ticket. No other person can go on that ticket excepting they get on by petition as Mr. Bambach did; no other person has a right to have his name printed' on that ballot excepting the man who got it up for himself. In the circle above the nonpartisan ticket, around the edge of the same, is printed for a straight ticket, “make mark within the circle.” The voters knew there was but one man upon that ticket, Mr. Bambach, and it would seem to be an error of construction in terms to say, when only one man is upon a ticket, for a, straight ticket “make mark within the circle.” The words, “for secretary of state” and other words printed on the nonpartisan ticket indicating the various offices to be filled and voted for, as well as the circle above the column, were simply surplusage, and that Mr. Bambach, so far as that nonpartisan ticket is concerned, has the whole of that space above his name, below his name, the blocks at the right and left outside the column, as well as the circle, and if a voter votes, makes his mark in any of those places, his intention can be ascertained and would seem to be clear.

Why should a voter mark under the eagle for a straight republican ticket, and then pass over and make a mark in the nonpartisan ticket, and make it in the circle where it is not required to be by law? Why should he do that if he does not intend to vote for Mr. Bambach? If he puts the mark at the top of the column above Mr. Bambach’s name, or below his name, or in any of the blank blocks at the right or left of that column, he knows that there is no other person than Mr. Bambach running on that nonpartisan ticket; that no other candidate’s name appears there. On all the rest of the party tickets on the ballot there is a space left to rub out or write in somebody else’s name; therefore, that blank in the Bambach column is not necessary for that purpose. When a voter makes a mark in any of the circles in the regular party ticket, and then makes a mark in the Bambach column anywhere, knowing that Mr. Bambach 'is the only candidate, and the only name on the whole nonpartisan ticket, isn’t it clear that the voter intended to vote for him? We think so.

Following this rule, it becomes a very easy task to count these disputed votes that were sent up and sealed. Before, however, passing from this subject, while I have these ballots at hand, I will refer to another phase of this case: It seems from the Ripley precinct there are five votes which are either marked in the democratic or republican circle, and then at the left of Judge Markley’s name is a cross; and also, out some place in all of them but one, on the Bambach ticket, is a mark.

It is claimed by the contestor that the mark at the left of Judge Markley’s name was not there at the time these ballots were sealed, or, at least, at the time they were taken out of the box; that when they were taken out of the box no mark appeared at the left of Judge Markley’s name. This contention is supported by two witnesses, Mr. ITite and Mr. Norris. These gentlemen appear to us to be, and it was conceded in argument .that they were, reputable gentlemen, livingdn the vicinity or village of Ripley. They were intelligent men, whose testimony seemed1 to have been, given with a sincerity born of truth. Each swears positively, each testifies pointedly and specifically and emphatically that at the' time these ballots were turned out of the ballot box they examined each one of them, and that no such mark appeared or was there.

The testimony of the contestee relating to this point, consisting of' the members of the board of deputy state supervisors, the auditor and the treasurer, each and all testified that after the votes were delivered to them they were never since disturbed, and were kept securely in the auditor’s or treasurer’s office in the safe, from that time until the time they were opened in this court.

During the progress of the trial this court indicated that counsel for the contestee should go no further on that subject, that they were' satisfied that neither the board, the members thereof, the treasurer or auditor, nor anybody else, from the time these ballots were delivered to the board, tampered with them. And we think so now.

What is this court, however, to do with the testimony of these two witnesses. Mr. Hite, from recollection, testified as to in what manner the nineteen votes from this precinct were certified up, were marked, and he missed it in the three instances only. We have, as opposed to the testimony of these gentlemen, the written record, if you please, of the mark opposite Judge Markley’s name and to the left thereof. Is that written record upon the face of it overthrown by the testimony of these witnesses ? One of the judges, Mr. Lemons, in that Ripley precinct, is reported sick, and could not be here. The other judges and clerks were not called. Is the failure of Hite and Norris to recollect to be attributed to the failure and fallibility of the human mind and memory; have they forgotten? They, themselves, do not put it that way.

Upon this point the case made is not different from any other cases, which we have often heard and decided. If, for instance, a petition which contained an allegation therein that the clause in a mortgage was. not there at the time the mortgagor executed the same, and the witnesses and notary public should appear before this court and testify that that clause in that mortgage was not there at the time it was signed, that they read it over, and that their object in being there was to see whether or not that clause was there, and would testify positively that it was not there, would that be enough to override the solemnly executed and acknowledged mortgage instrument in writing ? The court would have no hesitancy in declaring that the alleged stipulation in the mortgage was not there at the time it was signed. Two judges of that election were not called upon to testify. We are constrained to believe that that mark to tbe left of Judge Markley’s name was not there — that the testimony clearly shows that it was not. "We are well satisfied that the members of the board of deputy .state supervisors kept these ballots securely and safely; that when they came into their possession they were not. thereafter tampered with.

There is another singular thing about Ballot A (1) in this connection, and that is, that in the republican circle there is a mark — there are traces of. a mark having been made in the circle under the rooster. There is no mark in the nonpartisan column whatever. This is a mark to the-left of Judge Markley’s name. The judges certified in their certificate sent up that they counted all this ballot excepting for judge. The mark being made in the republican circle, and one at the left of Judge Mark-ley’s name, if those were the only marks, there was no necessity of sending this ballot up, as it would be a straight republican ticket except for' Judge Markley. They could not have been in doubt as to the erased mark in the democratic circle, because they certified they counted the-ticket for all excepting judge. If there was a mark in both circles, one-each in the democratic and republican circles, it would count for nobody. In any event, we cannot see how, consistently, with the fact that the ticket was counted for all the candidates excepting judge, that there ■ could be any necessity for certifying this ballot at all. I only refer to-this as showing that this ballot appears to have gotten into this package as a stray one — no possible necessity for its being certified at all — as showing that there might possibly have been some little carelessness at that polling precinct on that day.

There is a further contention here in regard to what may be called the infirmary vote. It seems that in 1900, the township of Lewis, adjoining the village of Georgetown, included a small stream of water, and that in that year a special act was passed by the Ohio legislature detaching that portion of Lewis township on which the infirmary buildings are located from Lewis township and transferring that territory to Pleasant township, in which township the village of Georgetown is. located. It is claimed that that law is unconstitutional. I need not here enter into any discussion as to whether that act is so or not, for it is admitted. Being, therefore, unconstitutional and the record showing that since 1900 the voters in the infirmary have been voting in Georgetown, would the voter have still a legal right to vote there notwithstanding the act was local in character and unconstitutional, until the act was so declared- by a court of competent jurisdiction? The Supreme Court in Findlay v. Pendleton, 62 Ohio St. 80, 88 [56 N. E. Rep. 649], in speaking; of an unconstitutional law, uses this language:

“It was void not only from the time it was declared unconstitutional, but it never had any validity, and could not be invoked as a foundation of a right to be enforced in a court of justice.”

The Supreme Court of the United States in the case of Norton v. Shelby Co. 118 U. S. 425 [6 Sup. Ct. Rep. 1121; 30 L. Ed. 178], in the syllabus says:

“An unconstitutional act is not a law; it confers no rights, it imposes no duties, it affords no protection, it creates no offices. It is in legal contemplation as inoperative as though it had never been passed. ’ ’

The unconstitutional act of 1900 did not operate to make the residents of Lewis township legal voters in Pleasant township or the village of Georgetown. The inmates and others, who voted at Georgetown, were asked by' counsel for the contestor while on the stand whom they voted for in the fall of 1906 for judge of the common pleas court. This testimony, it was claimed on 'behalf of the contestee, ought not to have been received. It is true that a legal voter cannot be asked for whom he casts his vote. The object of the ballot system now in force is, that the voter shall have the right to keep secret all his life as to whom he did vote for. The same rule does not apply to the illegal voter; the man who has no right to vote his vote in a township or precinct other than that of his legal residence. People v. Pease, 27 N. Y. 45 [84 Am. Dec. 242], which last case has a voluminous note by Mr. Freeman collating the authorities. See also McCrary, Elections Sec. 196.

It is further contended that the witnesses could not be required to answer as to whom they voted for, because the answer might tend to criminate them. This is a personal privilege on the part of the witnesses. None of the witnesses in this case claimed that privilege until after they had voluntarily testified that they had voted. And, if a witness discloses that he did vote, and it is shown clearly to be an illegal vote, then he may be compelled to answer as to whom he voted for. There may be some doubt as to whether or not the answer to this question disclosing for whom these different witnesses voted would have any tendency to criminate them. In most all crimes the intent is the gist of the crime; and it certainly wo^ld be admitted by every one that these electors did not intend to cast any illegal vote, but honestly thought they were casting their votes in the proper precinct. We are satisfied that these votes, under the evidence and the law, should not be counted for Judge Markley. See same authorities cited above.

There was one witness, Mr. Henize, who was not an inmate of the infirmary, but was an employe, a single man, and had lived at the infirmary since 1904; he voted not in the village of Georgetown, but in -the township of Pleasant, in which township is situated the voting precinct-of the village of Georgetown. He testified that his parents had lived for many years in Pleasant township, and were living there at the time of the election, and that when he left his home to take up the work at the infirmary, or other places, his intention was, when out of a job, to return to his parents’ home. Under these circumstances we think he had a right to vote where he did. If we had doubts, we should be Hound to resolve the doubt in favor of the voter.

Samuel Smith, an inmate of the infirmary, says he voted the republican ticket; that should be taken off of Mr. Bambach’s vote. This would seem to dispose of most of the disputed-ballots in this case; and it seems to be a very easy matter, having once laid down the principle, to count these votes.

There is another subject, about which there is some difficulty, however, and that is in regard to the destroyed ballots. In Higginsport precinct there were four witnesses; Mr. Lyons testified that there were four destroyed ballots not counted for judge, two under the eagle in the circle, and in the Bambach circle, and one was marked under the eagle, and just above Bambach’s name in the nonpartisan column. Mr. Cahill testifies the same as Mr. Lyons as to the two first, and says one was in the democratic circle, and just above Mr. Bambach’s name in the center of the column ;■ four voted in the republican circle, one above Markley’s name. Mr. Hanselman also testified in regard to it, and Mr. Schaaf agreed substantially that three votes -were -marked for Bambach. In Eagle township there are five in question, and destroyed. O. P. Hare testified that two democrats voted in the circle, one in the democratic circle, about where the secretary of state’s name should He, and one in the democratic circle under Bambach’s name, three spaces below, and one was in the democratic circle and in the socialist column. Mr. Winters testified to the'same thing; Mr. Hunley does not remember so much about it. Mr. Moore remembers what he heard the judges say during the time they were counting the ballots, and therefore we have disregarded his testimony entirely as hearsay. Mr. Alexander says three .were not counted; one was a clean ballot, one marked in the republican circle, and a mark made where the secretary of state’s name should be in the nonpartisan column, and one in the nonpartisan column in the place for sheriff. We have counted four ballots for Mr. Bambach under that testimony.

In Franklin township, Dr. W. L. Faul testified that six ballots were destroyed, not counted for anybody; one bad a cross mark in the circle, and one a cross under the eagle and tbe rooster; those of course could not be counted. On three of the ballots the name of Judge Markley was scratched; two of those were in the Bambach box and one in the Bam-bach circle. W. L. Kautz, judge, does not remember much about it; the clerk says that there was one under the rooster and in the nonpartisan circle, and one under the rooster, and Markley’s name scratched, and at the right of Bambach’s name was a cross mark. We have given three votes to Mr. Bambach under that evidence.

In Bardwell precinct, F. M. Kratzer, presiding judge, testified that one was marked in the republican circle and a cross in Bambach ticket in the circle, the other a democratic ticket with cross in the circle and a cross in the Bambach circle. We have given Bambach these two votes.

In Jefferson township, George B, Carey testified that four ballots: were destroyed, one only not counted, the other three counted; one properly should have been counted for Bambach, the other three would be counted ballots. Under the ruling of this court no evidence could be admitted in regard to them; we have therefore thrown them out.

In Washington township, B. P. Calvin testified that there were two ballots certified up, one only reached the board of deputy state supervisors, the other it is shown was clearly identified' as marked for judge, Mr. Bambach. .

As to one vote in Higginsport, two in Eagle, and one in Washington, there appears to have been a clear dispute as to whether or not these ballots should be certified up; therefore, in the opinion of the presiding judge, these votes could be inquired into and should be counted for Judge Bambach.

As to the other of the disputed ballots, the presiding judge has some doubts as to whether they could be inquired into.

Cherrington, J., concurs.

JONES, J.

I concur in the judgment by a plurality of thirteen only. It is undisputed-that ten of the destroyed ballots were so marked for judge, that the judges of election were unable to count them for that office but counted them for the other offices. These were not sealed up but were destroyed without protest from a single judge; they became, therefore, counted ballots. The Ohio election laws having securely guarded the canvass of votes; provided for inspectors and bipartisan judges; stipulated that all disputed ballots shall be sealed up for “judicial review”; and 'that all the ballots counted shall be destroyed, thus effacing the primary •evidence of the voter’s intention, I hold that parol evidence is not admissible to show how such ballots were, marked. Any other rule would •open the door to fraud and perjury. As to four other destroyed ballots, •disputed by one or more judges who voted against their destruction, I am inclined to agree that oral testimony may be received showing how they were marked.

Tabulated statement of votes: Supervisor of elections counted for •Judge Markley, 4,686 votes; supervisor of elections counted for Judge Bambach, 4,259 votes.

Votes for judge rejected: Markley-Byrd township, 61 votes; Mt. Oreb, 48 votes; Hamersville, 22 votes. Total rejected for Markley, 131 votes.

Bambach-Byrd, 142 votes; Mt. Oreb, 77 votes; Hamersville, 29 votes. Total rejected for Bambach, 248 votes.

Total for Markley on face of returns, 4,686 votes. Add number of rejected votes, 131 votes. Total,as corrected, 4,817 votes.

Total for Bambach on face of returns, 4,259 votes. Add number of rejected votes, 248 votes. Total as corrected, 4,777 votes.

Deducting from Markley’s vote of 4,817, thus corrected, the Bam-baeh votes of 4,777, so corrected, leaves Markley over Bambach 40 votes.

Deduct four votes from Perry township counted for Markley leaves 36 votes for Markley over Bambach.

Disputed ballots: Markley now has over Bambach 36 votes; Union township Exb. B (9) of sealed ballots, 1 vote; Union township Exb. B (7) of seáled ballots, 1 vote; Union township Exb. B (6) of sealed ballots, 1 vote-; Union township Exb. B (3) of sealed ballots, 1 vote; Hamersville Exb. K (1) of sealed ballots, 1 vote. Total 41 votes. Deduct eleven illegal infirmary votes leaves Markley 30 votes.

As to ten of the fourteen destroyed ballots, the presiding judge is •doubtful as to whether testimony being introduced should be confined to those ballots concerning which there was a dispute among the judges, ■ and that they should have certified.

Bambach votes: Ripley, A (2), 1; Ripley, A (3), 1; Ripley, A (4), 1; Ripley, A (5),1; Ripley, A (6), 1; Ripley, A (8), 1; Ripley, A (11), 1; Ripley, A (13), 1; Ripley, A (15), 1; Ripley, A (16), 1; Ripley, A (17), 1; Ripley, A (18), 1; Ripley, A (19), 1; Ripley, A (12)„ 1; Ripley, B (11), 1; Ripley, B (10), 1; Ripley, B (8), 1; Ripley, B (5), .1; Ripley, B (4), 1; Ripley, B (2), 1; Ripley, B (1), 1; Franklin township, C (1), 1; Franklin township, C (2), i; Huntington township,, seven ballots all marked alike, 7; Aberdeen, I (6), 1; Aberdeen, I (5), 1; Aberdeen, I (3), 1; Aberdeen, I (2), 1; Jackson, G (2), 1; Hamers-ville, K (2), 1; Feesbnrg, H (1), 1; Washington township, F (1), 1;. Russellville, E (1), 1; Clermont, North Franklin, L (1), 1.

Destroyed ballots: Higginsport, 3; Eagle, 4; Franklin, 3; Bard-well, 2; Jefferson township, 1; Washington township, 1. Total, 54.

Deduct from same, Smith, infirmary vote, 1; deduct Markley vote,. 30; Bambach over Markley, 23 votes.

One, Higginsport, disputed; 2, Eagle; 1, Washington; 4 destroyed, ballots.

This leaves Bambach over Markley twenty-three votes in the whole subdivision. A decree will be entered accordingly.


text:
    CONTRACTS — FRAUDS, STATUTE OF.
    [Guernsey (7th) Circuit Court,
    April Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    Jennie Barber v. Stephen R. Heade.
    Hkokee Entitled to Commissions for Sale of Land Notwithstanding Contbact with PUBCHASEB IS NOT IN WRITING.
    When an owner contracts in writing with a broker to sell a parcel of land and the broker secures a purchaser who offers to take the land in accordance with , such contract, and duly tenders the money to and demands a deed from the owner; such broker is entitled to his commission although no memorandum in writing, of the contract between the broker and purchaser, is signed by the purchaser.
    [Syllabus by the court.]
    Error to Guernsey common pleas court.
    Troette & Baker, for plaintiff in error.
    R. T. Scott, for defendant in error.
   COOK, J.

Jennie Barber entered into a contract in writing duly signed by her by which she employed Stephen R. Heade to sell a parcel of land situated in the city of Cambridge. The contract provided: “I agree that in the event of the sale of the property by S. R. Heade, agent, at the consideration of sixty-four hundred dollars that I will make a good deed of general warranty to such grantee as shall be named by the1 said S. R. Heade, agent. Said option to expire within fifteen days.. Said S. R. Heade to receive a commission for his services in making the-sale the sum of one hundred and thirty dollars.”

S. R. Heade sold the land to Marrietta H. Keenan for the sum of $6,400, but had no contract in writing with her or memorandu'm signed by her of such sale. Within the fifteen days Marrietta H. Keenan went with S. R. Heade to the owner, Jennie Barber, and duly tendered her the purchase price, $6,400 in gold, and demanded a deed for the premises in accordance with the contract with her agent, S. R. Heade, but she refused to make the same; stating she had concluded not to sell the premises. S. R. Headé demanded payment of his commission but she refused payment, and suit was brought for the same. The court below rendered judgment for the plaintiff for his commission.

Plaintiff in error, defended below, solely upon the ground that, defendant in error never secured a purchaser for the property, and makes that claim upon error as her only defense to the nayment of the commission. Counsel insist that as no memorandum in writing had been signed by Marrietta H. Keenan that there was no binding obligation upon her part to take the property and that although she was willing and anxious to take it and duly tendered the purchase price, .yet defendant in error was not entitled to his commission.

It is not necessary for us to consider the relative rights of Marrietta H. Keenan and plaintiff in error; as to whether or not she could insist upon her purchase and compel plaintiff in error to fulfill her contract; although upon that question we have little doubt as the contract between plaintiff in error and defendant in error provided that Heade should sell the land.

Plaintiff in error was to make a sale of the land at a certain price •and in a certain time. He did so, and went with the purchaser to plaintiff in error, who tendered the money and demanded the deed in accordance with her contract with Heade. It was no fault of the purchaser or of plaintiff in error, that the contract was not completed. The contract between plaintiff in error and the purchaser through the agent was not void but only voidable. Lefferson v. Dallas, 20 Ohio St. 68. The purchaser did not see fit to avoid the contract but claimed its fulfillment, and by so doing, made the obligation of plaintiff in error to pay defendant in error his commissions absolute.

In Luney v. Healey, 44 L. R. A. 594, it is said:

“It has been held that there is no meritorious distinction between the case of an agent undertaking to sell and one undertaking to find •a purchaser, upon the ground that the agent in undertaking to sell must not alone find a purchaser but must place the parties in such a position that the sale may be enforced between them by law, for the reason that the broker in either case is required to do no more than find a purchaser, and cannot do the selling unless specifically authorized to do so by power of attorney, the undertaking to sell in such cases being no more than an engagement to find a purchaser who is ready and willing to buy. McFarland v. Lillard, 2 Ind. App. 160 [28 N. E. Rep. 229; 50 Am. St. Rep. 234]. To the same effect, Treat v. De Celis, 41 Cal. 202; Duffy v. Hobson, 40 Cal. 240 [6 Am. Rep. 617]; Goss v. Broom, 31 Minn. 484; Reynolds v. Tompkins, 23 W. Va. 229; Lockwood v. Rose, 125 Ind. 588 [25 N. E. Rep. 710].”

The judgment of the court of common pleas is affirmed.

Burrows and Laubie, JJ., concur.


author: JPARKER, J.

text:
    CONTRACTS — PLEADINGS.
    [Lucas (6th) Circuit Court,
    June 27, 1907.]
    Haynes, Parker and Wildman, JJ.
    Toledo Gas-Light & Coke Co. v. Toledo.
    3.. Causes oe Action should be Separately Numbered.
    Numbering paragraphs of a pleading is not approved by the courts; hut causes of action should be distinctly stated and numbered.

      <2. When DÍeeebent Causes oe Action abe Merged into One.
    The different breaches of a contract are separate causes of action if sued on when occurring, but when no action is brought until after, the term of the entire contract the different breaches become one cause of action, and it is error to require plaintiff to separately state and number the different breaches as separate causes.
    [For other cases in point, see 6 Cyc. Dig., “Pleading,” §§ 260-287. — Ed,]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    King & Tracy, for plaintiff in error.
    C. S. Northup and O. W. Nelson, for defendant in error.
   JPARKER, J.

Action was brought by the Toledo Gas-Light & Coke Company, m .the court of common pleas of this county, to recover on account of gas furnished to the city for the lighting of streets and public places through a series of years beginning with 1866 and ending with 1877. 'It is alleged that this gas was furnished under certain contracts with "the city, presumably in the form of resolutions or ordinances, and that -covering this period there were several contracts — one for ten years, one for one year and one for five years; and that by the terms of these con-■traets the bills were payable by the city semiannually. The gas company had a right to receive at the hands of the city for each period of six months, the assessments upon certain property levied for the purpose of paying this expense, and it appears from the pleadings that it devolved ■upon the city to collect these assessments and pay the moneys over to the gas-light and coke company on demand. There was a petition filed, to which a motion was interposed to require the.plaintiff to separately ■state and number its causes of potion. These' matters that I have stated were all set forth in this petition, and in addition thereto.it was alleged therein “that on or about the first day of October, 1882, this said defendant and this plaintiff by their duly authorized officers made a computation ,of the amount due the said plaintiff at that time upon the bills rendered from the first, day of January, 1866, up to the said time, and agreed that the amount due the said plaintiff from the said defendant at that time was $40,243.01;” and it was also averred in the petition that the gas was furnished; that bills were rendered (the dates and amounts being set forth in the petition) and that payments were made from time to time (and the dates and amounts of these payments are set forth) and that they continued from year to year until November 13, 1899, and there is a prayer for an accounting and for judgment.

The motion to require the plaintiff to separately state and number the causes of action was sustained. The order of the court that such amendment should be made was not complied with promptly — the matter ran along for some time — but finally, before the action was dismissed, an amended petition was filed. In that the plaintiff has undertaken to. set forth four causes of action. There are four separate statements of what are evidently intended to be causes of action, and these statements are numbered consecutively from one to four. We think the form of’ separately stating and numbering adopted by the pleader is not to be approved, because it leaves room for doubt and uncertainty as to' whether the parties mean to simply number the paragraphs or to number causes of action. While the numbering of paragraphs is not approved, yet it is sometimes practiced. Therefore we think that where parties intend to state and number causes of action separately, they should state and number them distinctly; as, for instance, “The First. Cause of Action; The Second Cause of Action,” etc. However, it seems-to be understood by all concerned that each of these various paragraphs is intended for a separate and distinct cause of action.

The first cause of action is based upon an alleged contract entered-into by the parties on December 30, extending over a period of ten years from January 1, 1866. It sets forth the rate at which gas was to be furnished, the amount of gas furnished, the payments made and closes with the averment that the sum of $25,050 is due under the aforesaid contract.

The second cause of action is a like statement of facts, based upon a contract entered into for the period of one year on January 1, 1876, and a balance of $4,000 is claimed under this contract.

The third cause of action is based upon another contract, which is-said to be for a period of five years from January 1, 1887.

We are inclined to think, from comparing this cause of "action with the statement of the same matter in the original petition, that counsel has made a mistake in the date — that it was intended to be 1877. We-are not certain about that, however; the mistake may be in the original1 rather than in this; the dates do not correspond. The balance claimed under this contract is $20,030.

The fourth cause of action is founded upon an alleged accounting and agreement of the parties on October 1, 1882, as to the amount due, and a promise of the defendant to pay the amount so agreed upon as. due, and this agreement and computation is said to have covered the period from January 1, 1866, to January 1, 1882, so that it covers the same matters as stated in the first cause of action, and also those in the second cause of action, and if the date in the third cause of action should be “1877” instead of “1887,” it covers that also. If the date is correctly stated in the amended petition, that period is not covered by the alleged agreed statement of account.

This amended petition was stricken from the files and the action dismissed by the court, on the ground that the plaintiff had not complied with the order'of the court to separately state and number the causes of action. The contention on behalf of the defendant, which seems to have been sustained by the' court, is, that a cause of action arose in favor of the plaintiff, if at all, at each period when an amount became due under either of these contracts and upon the nonpayment of such amount; that, therefore, under the contract providing for a period of ten years, .and that payments should be made every six months, there would be twenty causes of action, if full payment was not made at each period when a payment became due, and so on of the other claims under the contract set forth in the second and third causes of action.

The plaintiff in error contends that it complied with the order of the court when it set forth in its amended petition four causes of action. Counsel have filed briefs, but have not cited many authorities upon the: question of what constitutes a cause of action under circumstances; like these that I have stated. In the brief for plaintiff in error we* are cited to one authority, a decision of this court, and that was, probably deemed sufficient for the purpose of the hearing in this, court. The authority seems to be in point and sustains the contention of the plaintiff in error. It is the case of Bowman v. Fuher, 5 Circ. Dec. 218 (11 R. 231). In addition to this we have examined a. large number of authorities, some of which I will cite: Bliss, Code Pleading Sec. 118; Kinkade, Code Pleading Sec. 19; Pomeroy, Remedies, & Rem. Rights Sec. 460- and there are several other sections upon the.subject, some preceding and some following this; Monarch Cycle Mfg. Co. v. Wheel Co. 12 O. F. D. 277 [105 Fed. Rep. 324; 44 C. C. A. 523] ;, 4 Enc. Pl. & Pr. 941; Whitaker v. Hawley, 30 Kan. 317, 327, 328. I shall read only what is stated in that opinion at the pages cited. The statement of facts is somewhat lengthy and complicated, but the principle involved is made very plain in what I shall read.

“The defendants claim, in the language of the court of appeals of New York, that ‘in respect to contracts, express or implied, each contract affords one and only one cause of action. The case of a contract •containing several stipulations, to be performed at different times, is no ■exception, although an action may be maintained upon each stipulation ;as it is broken, before the time for the performance of the others. ’ ’ ’

Citing Secor v. Sturgis, 16 N. Y. 558, and what I have just read is quoted from that case.

“The defendants cite several other cases as tending to sustain this doctrine, among which are the following: Barton Co. (Comrs.) v. Plumb, 20 Kan. 147; Bond v. Sewing Mach. Co. 23 Kan. 119; Madden v. Smith, 28 Kan. 798; Bendernagle v. Cocks, 19 Wend. 207 [32 Am. Dec. 448] ; Stein v. Steamboat Prairie Rose, 17 Ohio St. 471-475 [93 Am. Dec. 631].

“The plaintiff denies the authority of some of these eases, and (denies the applicability of all of them. He cites on his side the following, among other cases: Badger v. Titcomb, 32 Mass. (15 Pick.) 409 [26 Am. Dec. 611]; Shaw v. Beers, 25 Ala. 449; Stifel v. Lynch, 7 Mo. App. 326; McIntosh v. Lown, 49 Barb. 550; Perry v. Dickerson, 85 N. Y. 345 [39 Am. Dec. 633].

“We suppose that the doctrine enunciated in the case of Secor v. Sturgis, ante, is generally correct; and, generally, that a breach or any number of breaches of a single contract can furnish, at one time, only •one single cause of action. Of course where a contract contains several stipulations to be performed at different times, a cause of action may arise upon the breach of any one of such stipulations, and an action may be maintained at once upon such breach without prejudice to future actions upon subsequent breaches; but if no action is in fact commenced until after other breaches have occurred, then all the various breaches of the several stipulations will constitute only one comprehensive breach of the general contract, only one comprehensive cause of action on the entire contract. All of the various causes of action founded upon the several breaches in such case will be merged into one comprehensive cause of action. At each successive breach of a contract the cause of action on such contract will be enlarged, and no new cause of action will be created. The law abhors a multiplicity of suits, and for this reason, among others, courts generally construe all existing breaches of a single contract as constituting in the aggregate only one general breach of one general contract, one comprehensive infringement of one com-prebensive primary right — the right to have the contract fulfilled in its entirety. According to the great weight of authority, such a breach in the aggregate constitutes only one cause of action.”

Citing Pomeroy, Remedies & Rem. Rights Secs. 552 to 561, and case theretofore cited.

“Hence, if the three items upon which the plaintiff now claims a right to recover are founded upon the aforesaid contract between the parties, then of course such items are a part of one general cause of action, of which the plaintiff’s previous cause of action for rent was another part, and the plaintiff cannot recover in this action.”

It will be observed that the plea of res judicata was interpose^ and was sustained by the application of this principle.

That, we think, is the law applicable to this ease, and it follows that the court of common pleas erred in holding' that the plaintiff had not complied with the order to separately state and number the «causes of action. The question chiefly debated by counsel, i. e., as to whether valid causes of action are well stated, is not presented by this record; the only question presented by the record is, whether the court erred in dismissing the action upon the ground stated.

Haynes and Wildman, JJ., concur.