text:
    MUNICIPAL CORPORATIONS
    [Cuyahoga (8th) Circuit Court,
    November 28, 1910.]
    Henry, Marvin and Winch, JJ.
    J. A. Mastick v. Lakewood (Vil.) et al.
    1. Power of Municipal poundl to Try Officers Charged With Certain Offenses.
    Section 4263 G. C. reserves to the council of a municipal corporation the right to try and remove both elected and appointed officers of the municipality (other than police and fire department officers and those under civil service rules), charged with bribery, nonfeasance in office, misconduct in office other than that specified in Sec. 4670 G. C., gross neglect of duty, gross immorality or habitual drunkenness.
    2. Council Can Not Try Marshal on Charge of Malfeasance In Office.
    A village council can not try the village marshal on charges of malfeasance in office filed by the mayor of the village.
    Appeal.

      Hobday & Quigley, for plaintiff.

      E. B. Guthery, for defendant.
   WINCH, J.

The action was brought by a taxpayer to enjoin the council of the village from trying the marshal thereof on- charges filed against him by the mayor.

It is claimed that if the council formerly had power to try the marshal under Sec. 225 of the Municipal Code of 1902, as amended April 25, 1904 (97 O. L. 385), that power was taken away February 10, 1910, by the adoption of the General Code, which made a material change in the meaning of said section.

Said Sec. 225 of the Municipal Code we now find as Secs. 4263 to 4267 G. C. inclusive.

Section 4263 G. C. reads as follows:

“The mayor shall have general supervision over each department and officer provided for in this title. When the mayor has reason to believe that the head of a department or such officer has been guilty in the performance of his official duty of bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality or habitual drunkenness, he shall immediately file with the council, except when the removal of such head of department or officer is otherwise provided for, written charges against such person setting forth in detail a statement of such alleged guilt,” etc.

The balance of the section provides for service of a copy of the charges upon the person against whom the charges are made.

The following sections relate to hearing of the charges and action thereon by the council, suspension of accused pending hearing, power of council as to process, compulsory testimony and costs.

From an examination of the whole body of the municipal code we are convinced that these provisions of law apply to both elected and appointed officers of cities and villages.

The marshal of a village is an elected officer.

The words “except when the removal of such head of department or officer is otherwise provided for” were inserted by the code commission and adopted by the legislature when it enacted the General Code last February.

It is claimed by defendants that these words were inserted so as to exempt officers of the' police and fire departments and the chiefs thereof from trial before the council. Their removal is otherwise provided for in Secs. 4379 to 4382 G. C. inclusive, which are a re-enactment of provisions on the subject theretofore in force.

But the provisions of law which now appear as Secs. 4670 to 4675 G. C., inclusive, were also in existence at the same time.

Section 4670 G. C., reads as follows:

“When complaint under oath is filed with the probate judge of the county in which the municipality, or the larger part thereof is situated, by any elector of the corporation, signed and approved by four other electors thereof, charging any one or more of the following:
“That a member of the council has received, directly or indirectly, compensation for his services as councilman, committeeman, or otherwise, contrary to law; or that a member of the council or an officer of the corporation is or has been interested directly or indirectly in the profits of a contract,, job, work, or service,, or is or has been acting as, a commissioner, architect, superintendent or engineer in work undertaken or prosecuted by the corporation, contrary to law; or that a member of council or an officer of the corporation has been guilty of misfeasance or malfeasance in office, such probate judge shall forthwith issue a citation to the party charged in such complaint for his appearanee before him within ten days from the filing thereof, and also furnish the accused and city solicitor with a copy thereof, but, before acting upon such complaint, such judge shall require the party complaining to furnish sufficient surety for costs. ’ ’

The following sections provide as to appearance of counsel, jury, challenge of jurors, proceedings on the trial, removal of officer if found guilty and how costs shall be paid.

There can be no doubt that “an officer of the corporation” provision for whose removal by the probate judge is thus made, may be either an elected or appointed officer of a city or village.

An examination of the several provisions of law with regard to the removal of municipal officers which were in force before the code commission and the Legislature acted when the General Code was adopted, shows that council had power to remove both elected and appointed officers on charges filed by the mayor; the probate judge had power to remove both elected and appointed officers on complaint of five electors and the civil service commission had power to remove certain appointed officers.

The jurisdiction of council and probate judge was apparently concurrent as to certain matters; that the jurisdiction of the civil service commission as to the removal of police and fire department officers was also concurrent with either that of council or judge is not so apparent.

The code commission by apt, general and unambiguous words restricted the power of removal vested in council to cases not otherwise provided for.

It is said by Okey, J., in the case of Allen v. Bussell, 39 Ohio St. 336:
“Where one or more sections of a statute are repealed and reenacted in a different form, the fair inference is, in general, that a change in meaning was intended; though even in such a case the intention may have been to correct a mistake or remove an obscurity in the original act, without changing its meaning. But where all the general statutes of a state, or all on a particular subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes received, or, if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form, although the language may have been changed.” Gardener v. Woodyear, 1 Ohio 170, 176; Swazey v. Blackman, 8 Ohio 5, 20; Ash v. Ash, 9 Ohio St. 383, 387; Tyler v. Winslow, 15 Ohio St. 364, 368; Williams v. State, 35 Ohio St. 175; State v. Jackson, 36 Ohio St. 281, 286; State v. Shelby Co. (Comrs.), 36 Ohio St. 326; State v. Vanderbilt, 37 Ohio St. 590, 640; Bishop’s Written Laws (98). Of course, if it is clear from the words that a change in substance was intended, the statute must be enforced in accordance with its changed r form.

It is thought to be clear from the words used that a change in substance was intended in the statutes under consideration.

But it is said that to so conclude leads to an absurdity; that the Legislature might just as well have said to the mayors of municipalities: “We place upon you the plain duty and responsbility of filing charges before your council against officers of the municipality and upon the council of trying these charges, but, really, you are -not compelled to do anything because we have provided another method of removal of them by the probate judge and placed the responsibility of action on an elector of your municipality.”

An examination of the several statutes referred to does not warrant more criticism than many statutes warrant. Section 4263 G. C. provides for removal from office by council, if they find the officer guilty in the performance of his official duty, of bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality, or habitual drunkenness. Here are specified many grounds for removal; then follows the exception in case the removal is otherwise provided for. Looking to See. 4670 G. C., we find that the probate judge may remove an officer only when he is charged with being interested in the profits of a contract with the corporation, or with acting as commissioner, architect, superintendent or engineer in work undertaken or prosecuted by it, contrary to law, or with being guilty of misfeasance or malfeasance in office.

Only part of these grounds overlap in the two sections. Misfeasance and malfeasance appear in both; misconduct in office is a very general term, and probably includes some things specified in the probate judge section, but may include much more, so we conclude that under the statute, as it now reads, there is preserved to council the right to try and remove officers (other than police and fire department officers and those under civil service rules) charged with bribery, nonfeasance in office, misconduct in office other than that specified in Sec. 4670 G. C., gross neglect of duty, gross immorality or habitual drunkenness.

So concluding, it is necessary to examine the charges filed with council in this ease in order to determine whether the marshal is charged with having been guilty of acts that are triable by council under the law as it now is, or as it was before February 10,1910, the date of the adoption of the General Code.

The mayor says:

“I charge that the said William Frankline knowingly charged, asked, demanded and received greater fees and costs than are allowed by law for performing his official duty as marshal in cases brought in the mayor’s court from August 2, 1908, to June 18, 1910, in the total sum of eight hundred and four dollars and twenty-five cents.”

An itemized statement of “said eases” is attached which gives the date when some 287 cases were “brought.”

The gravemen of the offense is receiving unlawful fees, but there is nothing to show when the marshal received greater fees and costs than those allowed by the law, and as the mayor says, “I am filing these charges with you pursuant to Sec. 4262 and 4263 G. C., ’ ’ we are forced to conclude that the marshal received all these fees and costs after February 10, 1910.

The charge is plainly malfeasance in office and the offense appearing to have been committed since February 10, 1910, the council is without authority to proceed with trial on these charges.

Were the charges susceptible of division so that it appeared clearly that part of the acts complained of were committed before February 10, we would not enjoin trial as to said acts, but only as to acts committed since said date, as directed in Secs. 26 and 13766 G. C. See also Campbell v. State, 35 Ohio St. 70, 78.

There is little reluctance in granting the relief prayed for in this ease. The only question is whether a municipal council or a court of law having a judge and a jury shall try an officer charged with a most serious offense, punishable not only by the probate judge under the statutes referred to, by removal from office, but punishable also after conviction in court, by fine and imprisonment, involving also forfeiture of his office and incapacity to hold any office of honor, profit or trust for seven years thereafter. Sections 12916, 12917 G. C.

The mayor is necessarily an .elector of the village and no reason appears why he should not proceed with his charges before the probate judge or by criminal process, nor why council is so jealous of its claimed prerogative, contrary to the practice of courts of law which are averse to extending their jurisdiction beyond the requirements of the law.

We have made no examination of the charge that council is prejudiced and should not try the marshal, because it is unnecessary to examine it.

The prayer of the petition is granted and injunction is allowed as prayed for.

Henry and Marvin, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    WITNESSES
    [Cuyahoga (8th) Circuit Court,
    November 28, 1910.]
    Henry, Marvin and Winch, JJ.
    Frederick W. Mathews et al. v. George B. Mackey et al.
    Party not Necessary not Excluded as Witness on Account of Objector Claiming under Deceased Party.
    One who is not a necessary party to a case can not be excluded as a witness on the ground that the party objecting claims under a deceased former owner.

      Carpenter, Young & Stooher, for plaintiff.

      Thompson & Hvne and Horr & Lowenthal, for defendant.
   WINCH, J.

The petition in this case is dismissed and an injunction refused for the reasons stated by Judge Babcock when deciding the ease made before him.

The only additional matter for consideration in this court is the competency of certain testimony given by Frank Cadwell, who appears as a defendant in the case.

The evidence shows that he is not a necessary party to the action. His wife, upon the happening of a certain contingency, might become the owner of the premises in dispute and he then become clothed with an inchoate right of dower therein, but such remote connection with the matter is insufficient to require his appearance as a party in the case.

It is true that plaintiffs claim under a deceased former owner, but they can not exclude witnesses at will by the convenient procedure of making them parties.

Henry and Marvin, JJ., concur.


text:
    ELEVATORS — INFANTS—MASTER AND SERVANT
    [Cuyahoga (8th) Circuit Court,
    November 28, 1910.]
    Henry, Marvin and Winch, JJ.
    Charles Schaber, Exr. v. Edwin David Hinig.
    1. Master’s Hiring Minor not Proximate Cause of Injury to Him.
    The fact that the owner of a building was negligent in employing a minor, who was too young to run an elevator, may render him amenable to fine under the statutes, but can not be the proximate cause of an injury to the boy himself.
    2. Defect in Petition Cured by Receiving Evidence without Objection.
    Although a petition in a personal injury damage case is faulty in not alleging that the defendant had knowledge of the defects in certain machinery which are alleged to have caused the injury, if, without objection, evidence is introduced on this subject and the case tried as though the petition contained the proper allegations, the defect in the petition is cured.
    3. Minor Under Fourteen Presumed Not to Foresee Danger.
    The presumption is that a minor under fourteen years of age has not capacity to foresee and avoid danger.
    Error.

      Howland, Moffett & Niman, for plaintiff in error.

      Robert Grosser and John 3. Hogg, for defendant in error.
   WINCH, J.

Edwin David Hinig, a minor eleven years old, was employed by John Schaber, then in his lifetime, but deceased at the time of the trial, to run an elevator in the Champ Apartment House after school hours and Until half past seven o ’clock in the evening. Part of his duty was to remove waste paper from the several floors in the building.

November 12, 1907, four days after he was employed, he ran the elevator to the third floor, got out there, left the door open, gathered up some waste paper and then stepped through the door, evidently expecting to step into the elevator, but it had passed up to the fourth floor and Edwin fell down the shaft to the bottom and was seriously injured.

The petition alleges that the elevator was out of repair in ‘that the packing in the cylinder was insufficient, allowing it to leak, thereby permitting the elevator car to move up of itself; that the freight compartment of the elevator which Edwin was instructed to use when gathering waste paper was below the passenger compartment and was unlighted and dark; that his employer failed to warn him of the danger, incident to the operation of the elevator and failed to inform him of its defective condition, and that John Schaber was negligent in employing Edwin, who was too young to operate said elevator.

Of course the last proposition, while doubtless true, rendering Schaber amenable to a fine under the statutes of this state, was not the proximate cause of the injury to Edwin.

The petition further alleges that Edwin did not know, nor by the exercise of reasonable care could he have known that the elevator was defective and had moved up from the third floor, nor did he know nor could he have known of the dangers incident to the operation of the elevator, nor of the danger due to the lack of proper lights.

There are no allegations in the petition that John Schaber knew or ought to have known of the defective condition of the elevator, or the lack of lights, but without objection, evidence was introduced on these subjects and the case tried as though the petition contained such allegations.

We think this cured the defect in the petition.

The young boy, Edwin, did not testify at the trial,' because his employer had died after the accident.

There was no evidence introduced as to his capacity, except the single fact that he was eleven years old, almost twelve, at the time of the accident.

It was not shown whether he was a bright boy or a dull boy for his years. We know, however, that he was going to school and was in good health.

No eye-witness of the accident testified in the ease. A young girl testified that she saw Edwin gathering waste paper on the third floor, passed him and saw the elevator door open and the elevator car slowly going up, several feet above the level of the floor; passed the elevator, heard a scream, looked back and saw Edwin disappearing down the shaft.

Plaintiff’s other witnesses as to the accident and the alleged negligence of the employer, and the girl witnesses as wall, had all given statements to one of defendant’s attorneys, shortly after the accident, which they contradicted on the trial. One of them, the janitor of the block, who had hired Edwin, admitted that he had lied about the accident to his employer, claiming that he did so in order that he might not lose his job. These three witnesses were all former employees of Schaber. One admitted that he had been discharged, charged with dishonesty. The evidence they did give on the hearing was contradictory.

The defendant offered no evidence, was unable to do so in fact, for the only persons who knew anything of the accident and the conditions surrounding it, testified for the plaintiff.

There was a substantial verdict for the plaintiff, but not more than he was entitled to, if he was entitled to anything.

With much misgiving, after a very careful examination of the record, assuming that the jury believed the witnesses who so testified, we find that there was evidence introduced at the hearing tending to establish the following facts:

. That the elevator was out of repair, as alleged in the petition, and that the employer knew it; that it was not properly lighted, and this the employer knew; that the employer instructed Edwin how to operate the elevator but failed to warn him of the danger incident to its operation; that Edwin was informed that the elevator would creep up, and saw it do so, but was not informed that it would do so because of any defective condition, nor was he warned of any danger likely to result to him by reason thereof, nor was he warned of any danger to himself likely to result from the absence of a light in the freight compartment of the car. The point is made by counsel for plaintiff in error that the record shows no evidence tending to prove the allegation of the petition that Edwin ran the elevator to the third floor and stopped the freight compartment level therewith; that the car may have passed np because Edwin did not fully stop it and not because it was defective.

An answer to this proposition is found in the testimony of the regular day elevator boy who testified that the elevator would creep iip “pretty near every time I would get off the elevator to put the baskets back,” and again: “pretty near every time I would get off the elevator. If I got off the elevator for a minute, it would go up about two feet.” “At the third floor it used to creep up more than it would at any other floor.”

The jury, if it believed this testimony, might well have concluded that the elevator could not be brought to a complete stop at the third floor. If so, the most necessary inference to be drawn from the circumstances shown in evidence was that the elevator passed upward because of the defect in the cylinder, and not because Edwin was negligent in stopping the elevator. Again, Edwin was sent to the third floor to get the waste paper, which required him to step out of the elevator and then re-enter it. He had no warning as to the danger from the conditions incident to this work. It was the first time he had attempted to collect the waste paper and though he may have observed all the physical facts surrounding him at the time of the accident, did his immature mind grasp their significance? This question brings us to a consideration of the charge.

In one part of the charge, the trial judge said:

“Did the plaintiff, Hinig, know of the danger and appreciate it, if there was danger ? In answering the question, was the elevator defective, if you say it was, then you will inquire what knowledge the boy had of this defect in the elevator. If you find from the evidence that the boy had been told that the elevator was defective, you will next consider the circumstances and the experience and age of the boy, and determine whether or not he appreciated fully the dangers which might result from such defective condition of the elevator. And if you find from the evidence that he was told about the defective condition of the elevator, yet, if you are of the opinion, from all the evidence in the case, that he did not appreciate the danger so as to take ordinary and reasonable care of himself and his own safety, he would not be guilty of contributory negligenca”

Also in another part of the charge, the trial court said:

“The general rule of fixing and limiting the liability of a master to his servants applies to minors as well as to adults; and when a servant is set at a dangerous work the mere fact of his minority does not in itself render the master liable for the risk incurred, if the servant has sufficient capacity to take care of himself and knows and appreciates the risk.”

Counsel for plaintiff in error claims that the test prescribed here by the court of actual appreciation and understanding of the risk involved in operating the elevator in question, is not a correct test. That it is not a question of what the plaintiff actually understood and appreciated, but what, in view of his age and capacity, and in the light of all circumstances, he ought to have understood and appreciated.

We think the charge as an abstract proposition of law is faulty, but under the evidence in this case, did any prejudice to the rights of the plaintiff in error arise from that?

The only evidence as to the boy’s capacity was that he was eleven years old. Counsel for plaintiff refrained from asking his mother, when she was on the stand, as to his mental capacity. If asked, she would doubtless have said that he was a very bright boy before he was hurt, but was dull and disabled afterward.

It is stated by Judge Spear in the ease of Lake Erie & W. Ry. v. Mackey, 53 Ohio St. 370, 384 [41 N. E. 980; 29 L. R. A. 757; 53 Am. St. 640], that the presumption that the injured person hád capacity to foresee and avoid danger will not be visited upon children under the age of fourteen.

Stating this rule affirmatively and applying it to the minor in this case, it follows that the presumption is that Edwin being under fourteen years of age did not have capacity to foresee and avoid danger.

There was no evidence of equal weight or countervailing force to overcome this presumption. Hence, no matter how charged on the subject, the jury was under the duty of finding as a fact, that Edwin did not appreciate fully the dangers which might have resulted from the defective condition of the elevator. .

"We conclude, therefore, that there was no error in the charge prejudicial to the rights of plaintiff in error and having considered all the claims of error made by him, the judgment is affirmed.

Henry and Marvin, JJ., concur.


text:
    BUILDING AND LOAN ASSOCIATIONS
    [Cuyahoga (8th) Circuit Court,
    December 19, 1910.]
    Henry, Marvin and Winch, JJ.
    Economy Building & Loan Co. v. J. R. Philen.
    Building and Loan Association when Corporate Capacity and Power Denied Must Make Proof.
    When a building and loan association sues to foreclose a mortgage and for the collection of usurious interest on the debt thereby secured, to which it claims a right under special provisions of the statutes, and its corporate capacity is denied in the answer, ■ it must prove that it is a corporation possessing the powers it claims, and upon its failure to make such proof judgment as to excess interest claimed should be directed against it.
    Error.

      Foster & Foster, for plaintiff in error.

      W. T. Clark, for defendant in error.
   WINCH, J.

This action was brought in the common pleas court by the company to foreclose a chattel mortgage given to it by Philen on which it claimed a balance of $8. The verdict and judgment were for the defendant.

Various errors alleged to have occurred on the trial are set forth in the petition in error as a ground for reversal of the judgment, but we are not called upon to pass upon any assignment of error because the record discloses that in no event was the plaintiff entitled to recover; it failed to prove its corporate capacity.

The record shows that Philen borrowed $40 of the defendant company; his note called for usurious interest, conceded to amount to 18 per cent, per annum.

This rate was claimed to be lawful under the building and loan association laws, bnt plaintiff failed to prove its right to benefit by said laws. The issue of mil tiel corporation was specially raised by the pleadings.

The record shows payment of the $40 with interest at six per cent, even without application of payments to stop interest.

It was said in the case of Smith v. Weed Sewing Machine Co., 26 Ohio St. 562, approved and followed in Brady v. National Supply Co., 64 Ohio St. 267 [60 N. E. 218; 83 Am. St. 753] :

“At common law a corporation, when it sues, need not set forth its title in the declaration; but if issue be taken, it must show by evidence upon the trial, that it is a body corporate, having legal authority to make the contract which it seeks to enforce, if the action be upon contract, or to sue in that character and capacity in which it appears in court. ’ ’

Not having sustained the burden cast upon it" in this respect by the law, a verdict for the defendant might well have been directed, hence no prejudicial error to the plaintiff can be predicated upon the charge. No ruling of the court prevented plaintiff from offering the measure of proof required of it. It follows that the judgment must be affirmed.

Henry and Marvin, JJ., concur.


text:
    INJUNCTIONS — TRADE-NAMES
    [Cuyahoga (8th) Circuit Court,
    December 27, 1910.]
    W. F. Mason Hat Co. v. M. C. Abbey et al.
    Injunction Against Use of “Danbury" as Trade Name Refused.
    In an action to enjoin the use of the word “Danbury” in connection with the hat business, when the evidence shows that there are some seventy factories in Danbury, Connecticut, which manufacture hats and that hats made at all of them are called Danbury hats and have been sold by dealers generally as Dan-bury hats from a time antedating the establishment of plaintiff’s business, the relief prayed for will be denied.
    Motion to dissolve restraining order.

      Sidy, Klein & Harris, for plaintiff.

      Huggett & Collins and C. V. Hull, for defendant.
   WINCH, J.

Plaintiff and defendant are both dealers in hats. Plaintiff has several stores in Cleveland, one of which is on Bast Fourth street. At all of these stores for several years plaintiff has had signs displayed reading “Mason’s Danbury Hat Store,” and has established a reputation in its business by the use of said trade-name,-which is of gre'at value in its business.

Defendants have recently opened a store directly opposite plaintiff’s East Fourth street store and when they started business they displayed a sign reading: 1 £ This store when completed, about September 1st, will be the headquarters of the famous $2 Danbury Hats, Union Made. The Danbury Hat Company. M. C. Abbey, H. E. Cranley.”

This sign they have discontinued using, but are still advertising that they sell “Danbury hats” and have a sign displayed to that effect.

It is conceded, on the motion, that there is a town in Connecticut named “Danbury,” in which there are at least thirty factories making hats; that said hats are known to the retail trade in Cleveland and other places as “Danbury” hats and have been sold, as such, by many dealers in Cleveland ever since before the plaintiff was in the hat business.

The prayer of the petition is to restrain the defendants from using the word “Danbury” in its trade-name or in its advertising.

The defendants say that they have discontinued the use of said sign, but assert their right to advertise by signs, and otherwise that they are dealing in “Danbury hats.”

We think the sign first used came within the forbidden limits of unfair trade, but as defendants disclaim any intention to use said sign again, no injunction on that ground should now be granted against them.

As to the use of the word “Danbury,” plaintiff claims that it uses said name indiscriminately on all the goods sold by it, without reference to the place of manufacture, in a fictitious sense, merely to indicate ownership and origin, independent of location.

Defendants claim that they use the word “Danbury” to advertise the fact that they sell hats made in Danbury.

From the affidavits on file it appears that hats made in Danbury have been sold as “Danbury” hats by dealers generally in Cleveland, from a time antedating the establishment of Mason’s stores.

If such is the case, the plaintiff has not established its right to the use of the word “Danbury” as a trade-name.

The conclusion, therefore, is that the plaintiff has failed to show that it has an exclusive right to use the word “Danbury” as a trade-name in connection with its hat business and that there is no showing made that defendants threaten or intend to engage in any unfair competition in trade.

' The authorities sustaining this conclusion are found in the briefs of counsel for defendants and in Nims, Unfair Business Competition, Chap. 9, p. 226, and cases cited therein. .

The motion to dissolve the restraining order is granted.

Henry and Marvin, JJ., concur.


text:
    CORPORATIONS — EVIDENCE—PLEADINGS
    [Cuyahoga (8th) Circuit Court,
    December 27, 1910.]
    Henry, Marvin and Winch, JJ.
    Buckeye Garage & Sales Co. et al. v. William K. Caldwell.
    1. Right of Stockholder to Intervene and Defend Case for Corporation.
    A stockholder who alleges that his company has a valid defense to a suit brought against it, but which managing officers wilfully and fraudulently refuse to make, will be allowed to intervene in the suit and defend for the company upon his tender of an answer stating valid matters of defense to the action and the making of a showing by evidence of reasonable grounds to believe that such defense can be finally proved upon a trial of the case, and that the officers whose duty it is to make it are wrongfully and fraudulently refusing to do so.
    2. Professional Statements by Reputable Attorneys Admissible Regarding Pleadings.
    Professional statements by reputable attorneys are sufficient evidence of good faith and warrant the granting of leave to become a party to a suit and to file or amend pleadings.
    . 3. Pleading not Struck from Files because Demurrable.
    Because a pleading is demurrable is no ground for striking it from the files; the proper practice is to consider the motion as a demurrer, grant it and then give leave to amend, if desired and proper.
    Error.

      Calfee & Fogg, for plaintiffs in error.'

      Caldwell & Younger, for defendant in error.
   WINCH, J.

A petition was filed in the common pleas court July 5,1910, by Vm. K. Caldwell against the Buckeye Garage & Sales Co., setting up a judgment obtained by him against it in a justice court, and execution thereon returned unsatisfied, and praying for a receiver of the company to collect and distribute its assets to its creditors, including the plaintiff.

On the same day an answer to this petition was filed by W. R. Winn, as attorney for the company, sworn to by George E. Sherer as treasurer thereof, admitting the allegations of the petition and consenting to the appointment of a receiver as prayed for.

Thereafter, on August 5, 1910, one L. C. Young was given leave to become a party defendant and file an answer and cross-petition by August 9, 1910, which he did file on August 6, 1910.

This answer and cross-petition set forth that Young was the president and a director of the company and owner of approximately one-half of the capital stock thereof; that Caldwell was attorney for certain other directors and stockholders, who, for the purpose of obtaining a receiver to take charge of the business so as to prevent Young and other stockholders from participating in the control of the business, caused the plaintiff to file a suit against the company before a justice of the peace, asking for judgment in the sum of $100 alleged to be due Caldwell for legal services rendered the company; that no summons was served upon the company; that an attorney without any authority from it entered the company’s appearance and permitted judgment to be rendered against it; that all this was done without Young’s knowledge; that thereupon plaintiff commenced this action for a receiver and the answer purporting to be the answer of the company was filed without the knowledge of Young; that no meeting of the board of directors was held to authorize or approve such action.

The answer then denies that Caldwell ever rendered any services to the company or that it was insolvent, and makes further allegations of a conspiracy between Sherer and other stockholders to freeze Young out of the company.

The prayer of the answer is that the receiver be dismissed and that the answer of the company be stricken from the files.

On August 10, this answer of Young was stricken from the files and he was also refused leave to file an amended answer and cross-petition setting up the further fact that he filed it in behalf of himself and all other stockholders similarly situated and more fully setting forth facts tending to prove a conspiracy between Scherer and two other directors to ruin the company for the purpose of getting rid of Young. It also alleged that no demand had been made upon the board of directors for the relief therein prayed for because three of the five directors of the company were concerned in the fraudulent scheme set forth and were actively assisting in carrying it out.

To the order striking Young’s answer and cross-petition from the files and refusing him leave to file his amended answer, exception was taken and a bill of exceptions is filed in this court showing that the only evidence before the court when it made these orders was the amended answer itself, sworn to by Young as being true to the best of his knowledge and belief, and certain statements of his counsel tending to show his confident belief that he could establish the truth of its allegations by competent evidence, and counter statements of the plaintiff, a lawyer, but not under oath.

The law applicable to this case appears to be fairly stated by counsel for defendant in error as follows:

“The rule is that a stockholder, who alleges that his Company has a valid defense to a suit brought against it but which managing officers wilfully and fraudulently refuse to make, will be allowed to intervene in the suit and defend for the company upon his tender of an answer stating valid matter of defense to the action and the making of a showing by evidence of reasonable grounds to believe that such defense can be finally proved upon a trial of the case and that the officers whose duty it is to make it are wrongfully and fraudulently refusing to do so.” 4 Thompson Corporations, 2d Ed., Sec. 4560; Fitzwater v. Seneca Nat’l Bank, 62 Kans. 163, 167 [61 Pac. 684; 84 Am. St. 377].

It is presumed that this rule was complied with when leave was granted to Young on August 5, 1910, to become a party defendant and file an answer and cross-petition. The claim that the record does not show this is not important. The record does not show what evidence induced the court to grant the leave requested, but every reasonable intendment must be made in support of the judgment and so it is presumed that the court acted upon a sufficient showing.

That the first answer filed by Young was demurrable, may be conceded. It failed to show that he brought the action not only for himself but for all other stockholders similarly situated and it failed to show that he had called upon the company to defend the action and been refused, or that such demand was useless, because the controlling officers of the company would necessarily be antagonistic to the defense prepared.

But because a pleading is demurrable is no reason for striking it from the files; it would seem that the proper practice would be to consider the motion as a demurrer, grant it and then give leave to amend, if desired and proper.

Of course motions for leave to amend are addressed to the sound discretion of the court, but in this case the applicant for leave presented a perfectly good answer, and his attorney, an officer of the court, represented that he expected to be able to sustain all its allegations by evidence. It would seem, then, to be a clear abuse of discretion to refuse leave to file such an amended pleading.

Should we be wrong in holding that there was error in striking Young’s first answer from the files, still it appears that his application for leave to file an amended answer within the rule claimed entitled him to file the pleading.

He tendered an answer stating valid matters of defense to the action and made a showing, by evidence, of reasonable grounds to believe that such defense could be finally proved upon trial of the case and that the officers whose duty it was to make it were wrongfully and fraudulently refusing to do so.

He was only required to make a prima facie showing of these facts, not prove them, as upon trial. His evidence was the answer itself, duly sworn to by Young, not absolutely as an affidavit, but sufficiently for the prima facie purpose required.

His counsel stated professionally his belief that he could sustain the allegations of the answer by the evidence.

Such professional statements by reputable attorneys have always been received by the courts as sufficient evidence of good faith and as warranting the granting-of leave to become a party to a suit and to file or amend pleadings.

No precedent to the contrary has been cited. No intimation has been made that Young’s counsel is not of the best repute. Indeed we know he is.

For the reasons stated the orders striking Young’s answer from the files and refusing leave to file his amended answer are reversed and the cause is remanded for further proceedings according to law.

Henry and Marvin, JJ., concur.


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    CORPORATIONS — FRAUD
    [Cuyahoga (8th) Circuit Court,
    December 27, 1910.]
    Henry, Marvin and Winch, JJ.
    H. O. Yoder v. Lewis Hoyt.
    Fraud Pleadable In Action for Unpaid Stock Subscriptions.
    Fraud may be pleaded as a defense in an action to recover unpaid stock subscriptions, even ofter bankruptcy of the corporation, if no debts of the corporation were contracted after the subscription.
    Error.

      II. 0. Yoder, for plaintiff in error.

      C. W. Dille and II. G. Boyd, for defendant in error.
   WINCH, J.

This was an action brought by II. 0. Yoder to collect unpaid stock subscriptions. The amended answer sets up fraud and misrepresentation in obtaining the subscription and an excess issue of stock.

A demurrer to this answer was overruled and judgment entered for the defendant. This ruling is here assigned as error. The demurrer to the answer of course searches the record and it is therefore proper to first examine the amended petition to see if it is sufficient.

It alleges that the corporation involved was adjudicated a bankrupt on May 20, 1907, a receiver appointed to take possession of its assets, the appointment of a trustee to whom the receiver turned over the assets; the subscription on March 29, 1907, of the defendant for twenty-five shares of preferred stock of the company of the par value of $10 per share; the payment by him of $125 on account of his subscription and that a balance of $125 with six per cent, interest is still due thereon.

It is further alleged that at the time of filing the proceedings in bankruptcy, $48,249.04 of provable debts of the company existed which were proved and'allowed; that $18,734.60 dividends had been paid, leaving more than $29,000 of valid liabilities unpaid after exhausting.all the assets of the company, except a balance due on certain stock subscriptions.

It is further alleged that said unpaid subscriptions including that of defendant, were duly sold at auction by the trustee to the plaintiff who paid a valuable consideration therefor, which sale was approved and confirmed by the referee in bankruptcy and the United States district court and bill of sale therefore ordered and made to the plaintiff. It is also alleged that the amount of said unpaid subscriptions sold to plaintiff are much less than the unpaid liabilities of the company after the application thereto of the sum realized from the sale of said unpaid subscriptions.

There is no allegation in the amended petition that the rights of any creditors of the corporation accrued after the subscription of the defendant, or that any debts were contracted by the corporation upon the faith or credit thereof.

The absence of this allegation from the petition appears to be fatal to it.

The answer of the defendant would certainly be good if made in an action brought by the corporation itself, before insolvency.

The rule that fraud can pot be pleaded as a defense in an. action to recover unpaid stock subscriptions, after bankruptcy and after the rights of creditors have intervened is based upon the doctrine of estoppel.

Likewise a stockholder is estopped from setting up a defense that the stock is invalid, if the company is in bankruptcy and valid debts were contracted after his subscription.

The pleadings in this case do not show that any debts were contracted by the corporation after defendant’s subscription. The estoppel, therefore, does not arise and the answer is good.

There are some cases which seem to'hold that the defendant must plead and prove that the estoppel does not apply because no debts were contracted after he subscribed, but it is thought that the better practice is for the plaintiff to make out a complete ease, including the estoppel, before,the defendant is required to answer, for the answer is good in the absence of the estoppel.

This case illustrates the thought.

The petition shows that the defendant subscribed March 29, and that bankruptcy proceedings were begun May 20. The answer alleges that the corporation was insolvent March 29. If so, the natural presumption is that no debts were contracted between the two dates.

Judgment affirmed.

Henry and Marvin, JJ., concur.


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    INJUNCTIONS — SCHOOLS
    [Cuyahoga (8th) Circuit Court,
    December 27, 1910.]
    Henry, Marvin and Winch, JJ.
    J. M. H. Frederick v. Lakewood (Bd. of Ed.)
    1. Power of School Boards to Try and Dismiss Teacher Constitutional.
    The power conferred upon school boards, by Sec. 7701 G. C., to dismiss any appointee or teacher for cause, after hearing, is administrative and not judicial in its nature, and so not unconstitutional.
    2. Injunction Denied to Prevent Trial and Dismissal of Teacher fay School Board.
    A court of equity is without jurisdiction to interfere by injunction to prevent the trial and dismissal of a school teacher by a school board because to do so in advance of its action would be to invade the functions of the executive or administrative department, and after such action the remedy for erroneous proceedings lies with a court of law.
    Appeal.

      John J. Sullivan, for plaintiff.

      Edwin G. Guthery, for defendant.
   WINCH, J.

This action was brought to enjoin the defendants from trying the plaintiff, superintendent of and a teacher in the public schools of Lakewood, on charges involving improper conduct, pursuant to authority for such trial found in See. 7701 G. C.

The right to an injunction is based upon two grounds: first, that the board of education, by the preparation, filing and serving of written charges and notices, are attempting to assume judicial functions, and second, that the plaintiff can not have a fair trial for the reason that two of the five members of the board signed the charges, setting forth that they believed the plaintiff guilty of improper • conduct and will sit in judgment upon the evidence when it is produced upon the hearing, and that one of the other three members is a necessary and unfriendly witness in the matter. .That the first ground is untenable see State v. Hawkins, 44 Ohio St. 98 [5 N. E. 228].

The second ground naturally looms large to the judicial eye for the reasons so forcefully and cogently presented to the court by the learned counsel for the plaintiff. It is a principle of natural justice that no man should sit in as judge in his own cause, nor should any man sit in judgment of a cause which he has prejudged.

By the pleadings in this cause it is conceded that certain of the defendants, perhaps a majority of the board, are about to violate both of these principles.

But it seems that a court of equity is without jurisdiction to interfere by injunction to prevent the trial and dismissal of public officers or appointees because to do so in advance of executive action would be to invade the functions of the executive department, and after such action the remedy for erroneous proceedings lies with the court of law and not with the chancellor. 2 High, Injunctions, 1311, 1312, 1313; Marshall v. Illinois State Reformatory, 201 Ill. 9 [66 N. E. 314]; Cox v. Moores, 55 Neb. 34 [75 N. W. 35]; Sawyer, In re, 124 U. S. 200 [31 L. Ed. 402; 8 Sup. Ct. 482]; White v. Berry, 171 U. S. 366 [43 L. Ed. 199; 18 Sup. Ct. 917]; Delahanty v. Warner, 75 Ill. 185 [20 Am. Rep. 237]; Muhler v. Hedikin, 119 Ind. 481 [20 N. E. 700]; District Township v. Barrett, 47 Iowa 110.

The restraining order is dissolved and the petition is dismissed.

Henry and Marvin, JJ., concur.


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    PLEADING — PRINCIPAL *AND SURETY — REPLEVIN
    [Cuyahoga (8th) Circuit Court,
    February 27, 1911.]
    Marvin, Winch and Henry, JJ.
    J. S. Fisher v. Dan Stanisic.
    1. Replevin Bond Liability Extends to Final Determination of Case In Court of Review.
    A surety on a redelivery bond in replevin is bound until “the final determination of the action,” and this means until the action and all reviews of it authorized by law, have been finally determined.
    2. Pleading Wrong Interpretation as to Liability on Replevin Bond as Estoppel Denied.
    A wrong interpretation of the legal liability of a surety on a bond given by a justice of the peace to the surety, before he signs the bond, in the presence of the person for whose benefit the bond is given, and to which interpretation said person assents, can not be pleaded in an action on the bond as an estoppel or bar to said action.

      Bentley, McCrystal & Arnos, for plaintiff in error.

      F. C. Friend, for defendant in error.
   WINCH, J.

Plaintiff in error was surety on the re-delivery- bond of one George Shelley, defendant in replevin before a justice of the peace. Stanisic was plaintiff in the case.

The bond was conditioned, in accordance with Sec. 10469 G. C. “that he (the defendant) will safely keep the property and in case the judgment be against him, then return it, or pay the value so assessed, at the election of the plaintiff, and also pay the damages assessed for the taking, detention and injury of the property, and'costs of suit.”

The judgment before the justice was for the defendant, whereupon the plaintiff appealed the case to common pleas court, where judgment was rendered for the plaintiff.

Thereupon Fisher, the surety, pursuant to See. 12060 G. C., was notified to appear and show cause why judgment should not be entered against him for breach of the bond.

He filed answer, or response to the notice, which, on demurrer, was held "insufficient; thereafter judgment was duly entered against him, and he now asks this court to review the sufficiency of his said answer.

There are two parts to this answer:

1. The first paragraph alleges that the bond became void by its own terms and in law, when the justice determined the case in favor of the defendant.

This point is not well taken. The statute itself provides that upon the defendant giving bond the property shall be returned by the officer to the defendant, to be retained by him until the determination of the action.” That means final determination and an action is not finally determined until all reviews authorized by law have been exhausted. As said by Judge Minshall in the case of Richardson v. Peoples’ Nat’l. Bank, 57 Ohio St. 299, 309 [48 N. E. 1100] : “By signing the undertaking he became a quasi party to the suit, and is held to have notice of all the proceedings thereafter in the suit that may affect his liability on the undertaking.”

The bond was executed-, in reference to all the statutes in force at the time, including the statute authorizing appeals to the common pleas court, and that statute is to be read into the bond.

2. The second paragraph of the answer is as follows:

“He further says that before he signed said undertaking he applied to said justice in the presence of said plaintiff to inform him what said undertaking would mean and what liabilities he would incur by signing same and said justice then told him in the presence of the plaintiff that said undertaking provides that he would be responsible that said property should be on hand at said trial, and that if said case should be decided by said justice in favor of the plaintiff said property must be there to respond to said judgment and that that was all the liability which said Fisher would assume and thereupon said justice then and there asked plaintiff if that would be satisfactory to him and said plaintiff thereupon responded in the presence of said Fisher that that would be satisfactory to him and that that was all he wanted, and thereupon said Fisher relying on said assurance and agreement, signed said undertaking and otherwise he would not have done as the plaintiff then and there well knew; and said Fisher further says that said property was on hand at said place o'f trial to respond to said judgment. He further says that said plaintiff is estopped from prosecuting this motion against Fisher. ’ ’

The facts here pleaded do not amount to an estoppel. As said in the case of Henshaw v. Bissell 85 U. S. (18 Wall.) 255, 271 [21 L. Ed. 835] :

“An estoppel in pais is sometimes said to be a moral questian. Certain it is that to the enforcement of an estoppel of this character, such as will prevent a party from asserting his legal rights to property, there must generally be some degree of turpitude in his character which has misled others to their injury.
“Conduct or declarations founded upon ignorance of one’s rights have no such ingredient and seldom work any such result.. There must be some intended deception in the conduct or declarations in the party to be estopped, or such gross negligence on his part as to amount to constructive fraud. ’ ’

No intended deception is pleaded here; at most, the justice •is said to have given poor advice as to the law, which the plaintiff and defendant accepted; it is not said that the plaintiff knew the law to be otherwise. Indeed, it is likely the subject of the liability on the bond in case of an appeal was not discussed, and the plaintiff’s attention not being challenged to that contingency, it follows that he was guilty of no deception regarding it.

Nor have we a case of contract here; the contract was in writing and is not to be varied by the equivocal language said to have been used.

Bigelow, Estoppel (5th ed.), 773, says:

‘ ‘ The rule we apprehend to be this: ‘ That when the statement or conduct is not resolved into a statement of fact, as distinguished from a statement of opinion or of law, and does not amount to a contract, the party making it is not bound, unless he stood in a relation of confidence toward him to whom it was made. If the statement, not being contracted to be true, is understood to be opinion, or a conclusion of law from a comparison of the facts, propositions or the like, and a fortiori if it is the deduction of a supposed rule of law, the party may, with the qualification stated in the last sentence, allege its incorrectness.’ ”

Judgment affirmed.

Henry and Marvin, JJ., concur.


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    BILLS AND NOTES
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.
    Robert E. McKisson v. R. S. Thomas.
    1. Individuals Signing Promissory Note as Syndicate Managers, Liable Personally.
    A promissory note reading: “we promise to pay,” etc., and signed, “H. E. Everett, David Morrison, R. E. McKisson, as syndicate managers of the Cleveland Hippodrome Company,” is the joint note of the individuals named.
    2. Collateral Security Must First be Applied to Payment of Note Secured.
    A note with collateral security which provides, “In default of payment of this note, said collateral shall he applied on the payment of said note, or any part thereof, by the then owner of this note,” requires the holder of the note to sell the stock, or apply it in reduction of the debt, if the debt is not paid at maturity, before bringing suit against the makers of the note.
    Error.

      E. E. McKisson, for plaintiff in error.

      Smith, Taft & Arter, for defendant in error.
   WINCH, J.

Tbis was an action on a promissory note signed as follows: “H. A. Everett, David Morrison, R. E. McKisson, as syndicate managers of the Cleveland Hippodrome Company”; the body of the note reads: “we promise to pay,” etc.

Judgment was against the makers of the note as individuals; plaintiff claims that the judgment should have been against the Cleveland Hippodrome Company, which he says, was intended to be bound by the signatures.

We find no error in'the judgment on this score. General Code of Ohio, Sec. 8125; Titus v. Kyle, 10 Ohio St. 444; Collins v. Buckeye State Ins. Co., 17 Ohio St. 215 [93 Am. Dec. 612]; Anderton v. Shoup, 17 Ohio St. 125; Ohio Nat’l Bank v. Cook, 38 Ohio St. 442; Robinson v. Kanawha Valley Bank, 44 Ohio St. 441 [8 N. E. 583; 58 Am. Rep. 829]; Reiff v. Mullholland, 65 Ohio St. 178 [62 N. E. 124].

A certificate for one hundred shares of the preferred stock of the Cleveland Hippodrome Company was pledged as collateral security to the note, which also contained the following words: “In default of payment of this note, said certificate of preferred stock shall be applied on the payment of said note, or any part thereof, by the then owner of this note. ’ ’

The petition alleged that said stock was worthless, but the answer denied it. No evidence on this issue was introduced.

We think the holder of the note, by the clause quoted, was under obligation to sell the stock, or apply it in reduction of the debt, if the debt was not paid at the maturity of the note, before suit could be brought against the makers thereof. The language here used is mandatory, and thus distinguishes this case from the case of Lake v. Little Rook Trust Co., 77 Ark. 53 [90 S. W. 847; 3 L. R. A. (N. S.) 1199; 7 Am. Cas. 394], cited by counsel for defendant in error.

For. this error the judgment will be reversed and the cause remanded for new trial, but not until the petition in error is amended by bringing in all parties to the judgment below as defendants in error in this court. The judgment below was a joint judgment and can not be reversed as to one of the defendants below without being reversed as to all of them.

Marvin and Henry, JJ., concur.


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    BROKERS — INFANTS
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.
    Walter Stone, by Next Friend v. S. B. Sanders et al.
    Purchase of Stock on Commission not Purchase from Brokers.
    An action to recover money paid by a minor to defendants for stock sold him by them is not sustained by evidence that the defendants, as brokers, purchased the stock for him, on commission, from others.

      Hart, Canfield & Croke, for plaintiff.

      Squire, Sanders & Dempsey, for defendant.
   WINCH, J.

This was an action brought on behalf of a minor to recover for him some $600 which he had paid for certain shares of stock which he claimed the defendants had sold him. On the trial it was shown that defendants were brokers and had not themselves sold the stock to the minor, but had purchased it for him, on commission, from others. Verdict was directed for defendants. This was right; the variance between the allegations and proof was material and fatal.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    EMINENT DOMAIN — LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.
    George Batterman et al v. Cleveland (City).
    1. Separate Findings Required for Landlord and Tenant in Condemnation Proceedings.
    In an appropriation proceeding brought by a municipal corporation against a landlord and his tenant, each is entitled to a separate finding and a separate review of that finding.
    2. Map Evidence of Possible Special Benefits to Balance of Property not Condemned.
    A map which shows that by reason of the contemplated improvement new lines of travel past a store will be opened up, which may offset some loss of trade from the old travel, is sufficient evidence to warrant a charge that the measure of damages to property not taken may be reduced by special benefits, if any, which may be found to accrue from the improvement.
    3. Value of Tenant’s Buildings on Property not Taken Admissible.
    In an appropriation of a tenant’s interest in lands, value of the buildings on the part not taken may be given in evidence, though the tenant has a right to remove them at the termination of the lease.
    Error.

      Patterson <& Neiding, for plaintiff in error.

      Newton D. Baker, for defendant in error.
   WINCH, J.

The city of Cleveland began proceedings in the Insolvency Court of Cuyahoga County to appropriate certain lands for approaches to a new bridge over the Nickel Plate tracks on West 25th street in the city of Cleveland and for the assessment of damages to those injured by the improvement. The Batter-mans had a lease of two buildings on land owned by David Morison, abutting the improvement, and both landlord and tenant were made defendants in the action.

The jury was instructed to find separately for the landlord and his tenants, which they did, and the latter are here with a separate petition in error complaining of the award to them.

We think they were entitled to a separate finding and are properly before this court without bringing with them their landlord. Gluck v. Baltimore, 81 Md. 315 [32 Atl. 515; 48 Am. St. 515]; Clark, In re, 137 N. Y. 95 [32 N. E. 1054]; Stubbings, In re v. Evanston, 136 Ill. 37 [26 N. E. 577; 11 L. R. A. 839; 29 Am. St. 300].

The verdict in favor of the Battermans was in the sum of $800; it is claimed that the uncontradicted evidence presented to the jury required a verdict of at least $1,800.

It is true that the Battermans’ witnesses testified that the damage was that much or more, but the city, while it offered no witness who gave different figures, did place in evidence a map which showed that new lines of travel past the Battermans’ store would be opened up, which might offset some loss of trade from the old travel. This was sufficient evidence to warrant a charge that the measure of plaintiffs in error’s damages to property not taken might be reduced by special benefits, if any were found to accrue to them from the improvement, as provided by law.

We are unable to say that the verdict was inadequate, or unsupported by the evidence. The good sense of twelve men upon this subject is not lightly to be set aside, in the absence of any showing of passion or prejudice.

There was no error in admitting evidence as to the value of the buildings, although the tenants had a right to remove them at the end of their five years’ lease. Of course the measure of damages, as charged by the court, was the difference between the rental value of the premises before and after the improvement; that is, the diminution in the value of the leasehold. Value of the buildings might throw some light upon their rental value, although it. would not be conclusive. We see no prejudicial error in admitting this evidence.

We are unable to say that any error intervened by the exclusion of an answer to a question asked of a witness for the Battermans, for there was no offer to prove what the witness would testify to.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    ERROR — EVIDENCE—RAILROADS
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.

      Erie Ry. v. Sam Ciofalo.
    1. Injury to Eye Caused by Gravel Thrown by Fast Train.
    A laborer on a railroad may recover damages for injuries to his eye caused by a stone or cinder thrown or shot into it by a fast passenger train, from a pile negligently left between the rails where he was working.
    2. Inconsistencies in Evidence Reconcilable by Jury.
    Inconsistencies may occur in the testimony of truthful witnesses; it is for the jury to reconcile them.
    3. Right of Trial Judge to Correct Gill of Exceptions.
    A trial judge may make such annotations and corrections on a bill of exceptions as, in his judgment, it requires.
    Error.

      Gushing, Siddall c& Palmer, for plaintiff in error.

      Harry F. Payer, for defendant in error.

      Affirmed no opinion, Erie Ry. v. Ciofalo, 86 Ohio St. 322.

   WINCH, J.

This was a personal injury damage case in which Ciofalo, a laborer on the road, recovered damages for injuries to his eye which he claimed were occasioned by a stone or cinder thrown or shot into it by a fast passenger train from a pile negligently left between the rails where he was working.

Counsel for plaintiff in error had given us a very full brief on the evidence introduced at the trial which has been carefully examined, as well as the record. There are some contradictions in the testimony of different witnesses, but the plaintiff himself sustained his claim by his own testimony, and we see no reason for upsetting the verdict on the weight of the evidence.

The railroad company claimed that Ciofalo had a bad eye and had been seen with a bandage over it sometime before the day on which he claimed that he was injured. What of that? It is shown by his doctor that at this time he had a laceration of the eye and Dr. Burke testified to a recent scar. It is fate that one always gets hurt in his tender spot. A good eye might have closed in time to avert the damage. The verdict was not large.

It is claimed that one witness for plaintiff, Joe Granato, who testified that he was present when Ciofalo was hurt, could not have been present on that day. Perhaps Ciofalo was mistaken as to the date of the accident. His doctor could not give the exact date and the plaintiff was an ignorant foreigner.

Ciofalo says Granato was with him on the same side of the track, when the passenger train went by. He says he was on the south side of the track; Granato says he was on the north side of the track. One or the other is mistaken. What of it? They both claim they were together.

Other inconsistencies in the testimony are pointed out, but they have not impressed us as graver than those usually found in the testimony of truthful witnesses.

Complaints made regarding a want of certain allegations in the petition, are not verified upon an examination of it, and criticisms of the charge, though numerous, are not grave. We find no prejudicial error in it

We also think the trial judge had a right to make such annotations on the bill of exceptions as in his judgment it required. We find none, however, that prejudice the rights of the plaintiff in error.

It is claimed that the plaiutiff’s counsel was guilty of misconduct both in the examination of witnesses and in his argument to the jury.

As to the examination of witnesses, the claim agent of the company was not submitted to any more embarrassing examination than is usually and lawfully indulged in, when such agents are introduced as witnesses. Tbe same is true of other employees of the company, who were witnesses. Said counsel’s claims as to what the evidence showed were always corrected by him or the court, when he was mistaken.

The trial judge certifies that some unfortunate wrangling between counsel during the argument was provoked by counsel for plaintiff in error.

It may be assumed that this was true, but, while showing some unnecessary heat and irrelevant allusions, we are unable to conclude that the verdict was influenced thereby.

We have examined all the rulings on evidence called to our attention on the argument, and in the brief of counsel and find no error.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    BUILDINGS — DAMAGES—TRIAL
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.
    Louis M. Greif v. Joseph Kiewell.
    1. Exemplary Damages Allowable for Malicious Destruction of Property.
    In an action for removing fixtures from a house, whereby the house itself was damaged, the evidence showing malice, lawlessness and unnecessary damage and a malevolent spirit, exemplary or punitive damages may be awarded.
    2. Measure of Damages to Real Property Difference In Values Before and after Injury.
    When damage has been done to real property, the measure of damages is the difference in the value of the property before and immediately after the injury occurred.
    3. Consent to Erroneous Statement In Charge not Bar to Exceptions to Misleading Charge.
    The consent of the parties in one instance to an erroneous statement of the law, by the court, to the jury, does not bar one of them from complaining of other parts of the charge when the same incorrect statement was made, if the context shows that the charge as a whole was misleading.
    Error.

      H. W. Ewing and W. E. Boyd, for plaintiff in error.

      Alexander <& Dawley and William, Eowell, for defendant in error.
   WINCH, J.

Greif was the owner of certain premises on Carroll avenue in the city of Cleveland which he sold, through an agent, to Kiewell.

On the premises was a twelve room residence, fitted up with electric lights, hot water furnace, hot water boiler, wine room, cupboards, bath tubs, marble slab, book case, cabinets, a sideboard, and other ornamental and useful fixtures, attached to the building. When Greif delivered possession of the premises and moved out, he tore out and carried away with him many of the fixtures, claiming the right to do so, partly on the ground that some of them were not permanently affixed to the building, and partly on the ground that he had expressly reserved the right to do so in the contract of sale.

Thereupon Kiewell brought suit, alleging that Greif out of malice and ill-will and for the purpose of harassing him and injuring the premises had wrongfully, wilfully and malicously torn out and removed said fixtures, and that in tearing out and removing them he had broken and injured the walls, decorations, finish, stairs, cement floor in basement and other parts of the house and had purposely and maliciously driven nails into the wood work and finish of the house and nailed rough boards over the places from which said shelves, cabinets, etc., had been torn and removed, for all of which he asks damages.

The issues were made up and tried to a jury which brought in a verdict in the sum of $1,300 for the plaintiff, upon which judgment was entered.

Greif now complains of said judgment in this court, alleging that it is excessive, unwarranted by the .evidence and that the trial judge erred in his charge to the jury.

An examination of the record shows that the jury might well have found as it did, if the charge was correct; but two complaints are made with respect to the charge; first, that the jury was instructed that it might assess exemplary damages, and second, the rule as to measure of damages was incorrectly stated.

There was evidence in this case tending to show that Greif acted in a malicious and lawless manner in removing fixtures from the premises; he did unnecessary damage, one instance of which shows clearly his^ malevolent spirit. Not only did he remove all the push buttons and switches on the electric wiring in the house, but he pulled out some of the wires and shoved others back between the partitions, so that they could not be used again.

It was said in the case of Lake Shore & M. S. Ry. v. Hutchins, 37 Ohio St. 282, 294:

“For every wrong done, if it can be redressed in damages the rule is that the injured party shall have compensatory damages, and if the wrongful act was willful, wanton or malicious, punitive damages may also be awarded.”

This was an action for cutting down and removing timber from a freehold. The timber had passed into the hands of an innocent holder and the court held that punitive damages could not be assessed against such holder. To the same effect is the case of Peckham Iron Co. v. Harper, 41 Ohio St. 100, where an agent, by a false and fraudulent representation to his principal, obtained possession of his principal’s goods and converted them to his own use.

On the measure of damages the trial judge charged as follows:

“If you find that the plaintiff owned these fixtures and that the defendant took them away from there, you should give him a verdict for the fair and reasonable cost of restoring them in as good a condition as they were.”

Again:

“The rule of damage in such cases is that the plaintiff would be entitled to recover any damage done by the removal of property, and the cost of restoring the property to as good a condition as it was before.”

Opposite this phrase on the margin of the bill of exceptions is a statement signed by the trial judge that:

“The language used by the court as follows, ‘and the cost of restoring the property to as good a condition as it was before, ’ was used by the court by consent of the parties. ’ ’

This annotation by the trial judge shows that he was doubtful of the rule he enunciated. Of course it was wrong. It permitted the plaintiff to obtain new fixtures for old and secondhand ones. The rule laid down repeatedly in this state is that where damage has been done to real property, the measure of damages is the difference in the value of the property before and immediately after the injury occurred. Cleveland, C., C. & St. L. Ry. v. McKelvey, 5 Circ. Dec. 561 (12 R. 426); Toledo v. Grasser, 6 Circ. Dec. 782 (12 R. 520); Cummings v. Toledo, 5 Circ. Dec. 495 (12 R. 650).

The consent of the parties in the one instance to an erroneous statement of the law, should not now bar the plaintiff in error from complaining of other parts of the charge where the same incorrect statement was made, if the context shows that the charge as a whole was misleading. Such as we find to ,be the case for several times the court speaks of the cost of restoring the property to as good a condition as it was before, as referring to a repair of the damage done to what was left, by the tearing out of fixtures and several times as including not only that, but also the cost of purchasing new fixtures, and installing them.

On the whole, it seems that justice will be done by granting a new trial, in order that a jury may be properly directed to a correct conclusion by a correct statement of the measure of damages to be applied in a case like this.

Judgment reversed for error in the charge.

Marvin and Henry, JJ., concur.


text:
    MASTER AND SERVANT
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Marvin, Winch and Henry, JJ.
    John Kump v. Kilby Manufacturing Co.
    Provision for Guarding Saws not Extended to Prevent Particles Being Thrown Therefrom.
    While Sec. 4364-89e R. S. (Sec. 1027 G. C.) requires owners and operators of factories and workshops to make suitable provisions for guarding all saws and wood-cutting and wood-shaping machinery so as to prevent injury to persons who may come in contact with them, it does not require that such machinery be so guarded as to prevent material or párticles being thrown off from such machinery, to the injury of workmen using it.
    Error.

      R. G. Boyd and C. W. Dille, for plaintiff in error.

      Royt, Dustin, Kelley, McKeehan & Andrews, for defendant in error.
   WINCH, J.

This was an action for damages for personal injuries sustained by the plaintiff December 15, 1909, by reason of the alleged negligence of the defendant company in failing to properly guard a circle power saw, as required by the statutes.

Plaintiff alleges in his amended petition that he was a pattern maker and while cutting some prints for patterns “and attempting to push a sawed-off piece of wood away from said unguarded saw, suddenly, by reason of the defendant’s negligence in not guarding said saw, said wood was caught in the teeth of said saw and was hurled violently against said plaintiff’s right eye, rupturing the eye-ball and permanently destroying the sight of the same,”

A verdict was directed for the defendant at the close of the plaintiff’s evidence, the trial judge holding that the plaintiff had shown no violation of the statute relied upon, which is Sec. 4364-89c R. S. (Sec. 1027 G. C.).

The sole question here is whether the court below properly interpreted and applied said statute.

The original act was passed March 20,1900, and is found in 94 O. L. 42, and is entitled: “An act to provide for the guarding of machinery.”

The first section of the act provides:

“That owners and operators of factories and workshops, which terms shall mean all manufacturing, mechanical, electrical and mercantile establishments, and all places where machinery of any kind is used or operated, shall take ordinary care, and make such suitable provisions as to prevent injury to persons who may come in contact with such machinery, or any part thereof; and such ordinary care and such suitable provisions shall include casing or boxing of all shafting when operating horizontally near floors, or when in perpendicular or other position operating between, from, or through floors, or traversing near floors, or when operating near passageways, or directly over the heads of employees; the enclosure of all exposed cogwheels, fly-wheels, band-wheels, all main belts transmitting power from engine to dynamo, or other kind of machinery, and all opening through floors, through, or in which such wheels or belts may operate, with substantial railing; the covering, cutting off, or counter-sinking of kegs, bolts, set-screws and all parts of wheels, shafting, or other revolving machinery, projecting unevenly from and beyond the surface of such revolving parts of such machinery; the railing in all of unused elevator openings, the placing of automatic gates or floor doors, and the keeping of same in good condition, on each floor from which and whereon each side or sides, of elevator openings entrance to the elevator carriage is obtained, the frequent examination and keeping in sound condition of ropes, gearing, and other parts of elevators, the closing of stair openings on all floors, except where access to stairs is obtained, and the railing of stairs between floors, the lighting of hallways, rooms, approaches to rooms, basements and other places wherein sufficient daylight is not obtainable; the guarding of all saws and other wood cutting and wood shaping machinery, providing shifters for shifting belts, and poles or other appliances for removing and replacing belts on single pulleys, and adjusting runways, and staging used for oiling and other purposes, more than five feet from floors with hand railing, and providing counter shafting with tight and loose pulleys or such other suitable appliances, in each room, separate from the engine room, for disconnecting machinery from other machinery when in operation.”

The second section provides that any owner or operator of a factory or workshop who violates any provision of the first section shall be fined.

The third and fourth sections provide for inspection of shops and factories, to the end that the act may be enforced.

Section 4238o-l R. S. Sec. 6245 G. C. abolishes the defense of assumed risk, where an employee has been injured by the negligent omission of hjs employer to guard or protect his machinery in the manner required by any penal statute of the state or United States, but limits the recovery to $3,000 where injury does not result in death.

The operative words of Sec. 4364-89c (1027) applicable to this ease, which require construction, are as follows:

“The owners and operators of factories and workshops, which terms shall mean all places where machinery of any kind is used or operated, shall take ordinary care, and make suitable provisions so as to prevent injury to a person who may come in contact with any such machinery, or any part thereof, and such ordinary care and such suitable provisions shall include the guarding of all saws and wood cutting and wood shaping machinery.”

The trial judge held that the plaintiff could not recover in this case, because, in his judgment, the statute provided only for the guarding of saws in such manner as to prevent any person being injured by coming in contact with the saw and did not require a guard which would prevent an injury by pieces of material thrown off by the saw and striking some person not in contact with the machinery.

The whole of this statute has been quoted so as to show how carelessly it was drawn. Other parts of the statute, not applicable to this case, have been before the courts. The circuit court of Lucas county, speaking by Kinkade, J., in the ease of Marine Boiler Works v. Shuck, 33 O. C. C. 184 (13 N. S. 118), calls attention to the defect in the statute as to the protection of cogwheels. On page 121 he says:

‘‘It will be observed, as I have said, on a careful reading of tin's statute, that there is nothing in the section which provides that exposed cog-wheels shall be boxed or covered. The statute distinctly and plainly states that exposed cog-wheels shall be enclosed with a substantial railing. It is perfectly apparent to anybody that a railing in front of cog-wheels, if a man is obliged to have his hand near the cog-wheels, might be sufficient to protect his body from getting into contact with the cog-wheels, and at the same time have no effect in preventing his hand from coming in contact with the cog-wheels and being ground off. Of course it is not the business of the court to legislate; it is our business to find out what the statute says and declare it, and after the fullest consideration we have unanimously arrived at the conclusion that this statute, insufficient though it may appear in that form, provides only for.a substantial railing to protect the one operating near exposed cog-wheels. ’ ’

While this legislation has penal features, yet, on the other hand, it is humanitarian in its purposes, so that a middle course should be taken in its construction. A reasonable meaning should be given to the words used; not too narrow, because of its penal features, nor too liberal, on account of its remedial nature.

The attention of the court has been called to the wording of this statute, as now found in the Sec. 1027, G. C.

There it is made the duty of manufacturers to prevent injury to persons who use or come in contact with machinery. The question would be more difficult if the accident had happened since the adoption of the General Code; but, if the legislature intended to extend the scope of the statute by inserting the word “use,” we are not helped by it. If, on the other hand, as claimed by counsel, the word “use” was inserted only as showing the interpretation put by the legislature upon the meaning of the words “come in contact with,” we can only say that this legislature conceived the words to have a different meaning from that understood by the legislature which adopted the act, and so we are left to pass our own judgment upon it, guided by the rules of construction referred to.

Without referring to the lexicographers’ definitions, the ordinary persons would understand that the law here involved plainly means that employers of labor are required to guard saws so that employees may not be injured by coming in contact with them.

Had the legislature intended that they should guard saws so that material or particles should not be thrown off from them to the injury of workmen requiring other and different devices from those which prevent contact with the saws, such intention might have been clearly expressed in simple language, leaving no doubt as to the intention of the legislature.

Two years before the act in question was adopted, the legislature had before it the prevention of accidents from just such causes, where dust creating machinery is used, and we find that it required that blowers or similar apparatus be placed over, beside or under emery wheels, etc., in such manner as “to protect persons using the same from the particles of dust produced and caused thereby and to carry away the dust arising from or thrown off by such wheels or belts while in operation.” Sec. 4364-86 R. S. (Sec. 1027 G. C.), 93 O. L. 155.

The danger in such cases apprehended is from objects thrown off from the machine; in the case of a saw the danger apprehended is from coming in contact with the saw. In other words, the Legislature had in mind the well known danger one runs of having his fingers cut off by coming in contact with a circular saw, if he uses it without a proper guard.

The record shows that a guard to prevent the cutting off of fingers does not prevent accidents such as befell the plaintiff.

The question here involved is not free from difficulty and doubt, and we are therefore unable to say that the trial judge was clearly wrong in directing a verdict for the defendant.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    COURTS — MECHANICS’ LIENS
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Marvin, Winch and Henry, JJ.
    Samuel Clarke et al. v. Theodore Cannon.
    1. Jurisdiction of Common Pleas in Foreclosure of Mechanic’s Lien for Less than $100.
    When an action is brought in the common pleas court to foreclose a mechanic’s lien for less than $100, said court may retain the case and enter judgment for the amount claimed, although it adjudicates that the lien is invalid.
    2. Material Man May Obtain Judgment against Husband and Wife on Joint Undertaking.
    One who upon the order of a husband furnishes material for the construction of a house upon land the title to which stands in the wife, may have judgment therefor against both, if it appears that the whole project was a joint and family undertaking, to which both contributed of their means as far as they could, and in the benefits of which both parties were to share.

      W. T. Black aud O. J. Campbell, for plaintiffs in error.

      Seidman & Seidman, for defendant in error.
   WINCH, J.

Defendant in error was plaintiff below, where he filed a petition containing two causes of action, one setting up a mechanic’s lien and the other asking for judgment on the account claimed to be secured by said mechanic’s lien; this account was for less than $100.

He failed as to his mechanic’s lien, because notice to the owner was not given as provided in the amendment to See. 3185 R. S. (Sec. 8314 G. C.), found in 97 O. L., 499, which provides:

“Such persons so filing the affidavit herein provided, shall within thirty days thereafter notify the owner of the property, his agent or attorney, that he claims such lien, and if he fails to do so, the lien so secured shall be null and void.”

This clause appears as Sec. 8315 G. C. On his other cause of action, on the account, he recovered judgment against both plaintiffs in error, who are husband and wife, the wife owning the property and claiming that her husband was not her agent in ordering the work done for which the plaintiff sued, but that she had made a written contract with her husband for the erection of a house on her own lot, and that he had made a personal contract with the plaintiff as a sub-contractor, upon which the husband alone, as principal contractor, was liable.

The case here requires an answer to two questions:

First, had the common pleas jurisdiction to render any judgment on the account, the amount thereof being less than $100, the limit of said court’s original jurisdiction?

The action involving a lien upon real estate, it was properly brought in the common pleas court, although the amount claimed was less than $100; the proof showed that the plaintiff had complied with the law and secured a lien, but"that it afterwards became null and void by the plaintiff’s failure to notify the owner of his claim within thirty days after filing his affidavit.

The analogy between the situation here and in a case where the plaintiff sues for more than $100 but recovers less, is apparent. It is said in the case of Draper v. Clark, 59 Ohio St. 336, 340:

“It has been uniformly held that the amount claimed and not the amount recovered, determines the jurisdiction of the common pleas. If it were otherwise, the absurd result would follow that the court would be compelled to hear and determine a case on its merits in order to determine its jurisdiction.”

See also Jenney v. Gray, 5 Ohio St. 46; Brunaugh v. Worley, 6 Ohio St. 597, and Linduff v. Plank Road Co., 14 Ohio St. 336.

It would seem that the reasoning of these cases requires us to hold that where an action is brought in the common pleas court to foreclose a mechanic’s lien for less than $100 said court may retain the case and enter judgment for the amount claimed, although it adjudicated that the lien is invalid.

Second, was the wife liable on this debt?

An answer to this question requires an examination of the weight of the evidence. We have read the record and think that it shows clearly that although the wife held title to the lot on which the house was built, and although she pretended to make a written contract with her husband for the erection of a house thereon, still the whole project was a joint and family undertaking, to which both parties contributed of their means so far as they could, and in the benefits of which both parties were to share.

The pretended contract was in the sum of $2,400; by a mortgage on the property $1,800 was raised; both parties signed the note secured by this mortgage. The wife wholly fails to explain where the other $600 was to come from. She says she left that to her huband.

The judgment being against both husband and wife, we are unable to say that it was not supported by the evidence.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    ANIMALS
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Marvin, Winch and Henry, JJ.
    Raymond Frerich, an Infant, v. Mathew C. Blake.
    Sufficient Averments to Show Cause of Action for Bite by Vicious Dog.
    A petition which states that the plaintiff was lawfully on the defendant’s premises and while there was bitten, without his fault, by defendant’s dog while it was running at large thereon in the day time, unmuzzled, shows a cause of action.
    Error.

      Webber & Metcalfe, for plaintiff in error.
    P. II. Kaiser, for defendant in error.
   WINCH, J.

A demurrer to the petition was sustained in this ease.

It avers that the plaintiff, an infant nine years old, was lawfully on the defendant’s premises and while there was bitten without his fault by defendant’s dog while it was .running at large thereon, in the daytime, unmuzzled.

It will be noticed that the dog was upon its owner’s premises and there is no allegation that he had knowledge of its vicious propensities.

Under Hayes v. Smith, 62 Ohio St. 161, such knowledge and negligent keeping of the dog thereafter, is the gist of the action.

About a month after that case was decided, the legislature passed an act, now known as Sec. 5838, G-. C., which reads as follows:

“A dog that chases, wories, injures or kills, a sheep, lamb, goat, kid, domestic fowl, domestic animal or person, can be killed at any time or place; and, if in attempting to kill such dog running at large, a person wounds it, he shall not be liable to prosecution under the penal laws which punish cruelty to animals. The owner or harborer of such dog shall be liable to a person damaged for the injury done. ’ ’

It is Conceded that this statute does away with the necessity of alleging that the owner knew the dog to be vicious. Guies v. Zech, 24 Ohio St. 329.

But it is said that the statute gives a right of action to a person bitten by a dog running at large and not by a dog upon its owner’s premises.

This is said to follow from the provision that only when you wound such dog running at large, are you not liable to prosecution for cruelty to animals.

We do not so read the statutes, “such dog” in the last sentence, the same as “such dog” as previously used, refers to “a dog that chases, worries, injures or kills a sheep, lamb, kid, goat or domestic fowl or domestic animal or person.”

The policy of the statute seems to be to permit a man to keep a dog at his peril and to make him responsible for any damage or injury the dog may do, whether the owner has a reason to apprehend it or not. Those who do not like dogs will approve of this law, and the people are about equally divided between those who like dogs and those who do not.

There seems to be no good reason for exempting a dog owner from liability to one bitten while lawfully upon the owner’s premises. That is where dogs get bold and do the most damage to innocent visitors. The wording of the statute requires no such restrictive interpretation as plaintiff in error urges, and the petition is held to make a case under the statute.

Judgment reversed.

Marvin and Henry, JJ., concur.


text:
    SALES
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Bell Garment Co. v. Unity Silk Co.
    Breach by Purchaser Relieves Seller from Contract.
    A garment company being indebted to a silk company for silk furnished it, agreed to pay its bills when due, if the silk company would furnish it further silk, “up to twenty-five pieces, as many as you can at once.” Accordingly the silk company shipped two more pieces of silk but the garment company, instead of paying its bills when due, sent on a check for only part of the amount keeping' out a certain sum, as it claimed, “for the purpose of protecting it and guaranteeing that the silk company would perform its contract in the future.” Held: By so doing the garment company gave good excuse to the silk company to terminate the contract.
    Error.

      Fred Desberg, for plaintiff in error.

      Weed, Miller & Bothenberg, for defendant in error.
   WINCH, J.

The silk company sued the garment company on an account for goods sold and delivered. The garment company counterclaimed for damages arising out of the silk company’s failure to deliver all the goods ordered. Judgment was for the silk company.

It appears that in November, 1906, by correspondence, an agreement was entered into between the parties for the sale of sixty-six pieces of black taffeta silk to be according to sample. Certain pieces were shipped in November and December, which were not according to sample, but the garment company kept them and an allowance in price was made. Terms of payment were seventy days, and the bills for these shipments came due in February, 1907. Meanwhile, the silk company appears to have tried to get out of delivering the balance of the order, the price of such silk having gone up. However, in February, the garment company wrote the silk - company that if the latter would ship it “up to twenty-five pieces, as many as you can, at once,” it would pay its bills when due. And a few days later, after another bill had come due, it wrote: “We would ask you to hurry some of this forward as we are only wanting to see how this comes up as compared to the material originally purchased of you, before remitting on account.”

Accordingly, the silk company on March 7 shipped two more pieces of silk of the required quality to the garment company, but the latter, instead of paying its bills then due, as it had agreed to, sent on a check for only part of the amount, keeping out a certain sum, as it claimed, for the purpose of protecting it and guaranteeing that the silk company would perform its contract in the future.

We think that by so doing the garment company gave good excuse to the silk company for terminating the contract.

No matter what the conduct of the silk company had been before that time, the garment company had waived all breaches of the contract by urging that twenty-five more pieces be sent on, and agreeing to pay its pending bills upon receipt of part of said order. The earnest of the silk company that it would continue to ship, was very small, only two pieces, but it complied with the agreement and the garment company was obliged to pay its bills. This it refused to do and thereby authorized the silk company to terminate the contract. The judgment was properly for the silk company.

We find no error in the ruling on evidence complained of, and the judgment is affirmed.

Marvin and Henry, JJ., concur.