author: King, J.

text:
    (Sixth Circuit, Lucas County, O., Circuit Court,
    October Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    NANCY BOWSER v. THE CITY OF TOLEDO.

      Employer’s knowledge of defect — When imputable to employe.

    The owner o£ farming land through which a city under appropriation proceedings had laid a sewer, has the right to use the surface of the soil over the sewer for agricultural purposes; but where the earth at a certain place where a catch-basin was located had settled and caved in, of which condition such owner had long been aware, a laborer who with his team had been hired by such owner to mow the field, but who had no knowledge of such defect around the catch-basin, and whose horse was injured by falling into such defective place, can not recover damages therefor from the city, the knowledge of his employer being imputable to him.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

Nancy Bowser brought her action against the city of Toledo to recover for the loss of a horse which she alleged was of the value of $125. The petition set forth that about July, 1877, the defendant, a municipal corporation, had constructed a public covered sewer across a piece of farming land which was then and is now owned in fee by one Samuel Blanchard, being a strip about 14 feet in width across that piece of land. She further charges that the defendant carelessly and negligenty constructed the sewer in an unsuitable, and unfit, and unworkmanlike manner, and that the same by reason thereof, became and was for a long period of time prior to the 14th day of July, 1891, out of repair and in a dangerous condition, in this: that it caved in so as to make a dangerous and deep hole in a part of the strip so condemned and so used by the said defendant for sewer purposes; and that the plaintiff, Nancy Bowser, was the owner of a team of horses, and was engaged in the business of farming; that Samuel Blanchard, the owner of the land, had_ growing upon his field a crop of grass, and that he employed the plaintiff to cut it for him for hire; that she, in pursuance of her employment by Blanchard,went upon the land with her team of horses, and that one of them fell into this hole or cave-in, and was injured,from which injuries it died. The action was brought before a Justice of the Peace, and judgment rendered in favor of the plaintiff for $100, and the action appealed to the Court of Common Pleas. There she filed her petition, and there was an answer to that, in which the defendant admitted that it owned the sewer in question; that it had appropriated the 14 feet of land across Mr. Blanchard’s farm for sewer purposes, and that it had constructed through that piece of land a sewer; but it denied all the other allegations of the petition — denied that the injury occurred on account of any negligence of the defendant in the construction of the sewer, but alleged that it was occasioned by want of care of the plaintiff and her servant.

The trial came on in the court of common pleas, and about this state of facts was shown: That Blanchard was the owner of this land; that the city had appropriated a strip 14 feet wide through it for sewer purposes, had entered into possession of it, and constructed a sewer of brick or tile. There was also a catch-basin constructed of brick, with a cover of wood. At the time of the happening of this injury, the earth around the catch-basin had caved in, and fallen away, so that there was considerable of a hole there. Mr. Blanchard employed Nancy Bowser to mow his field of grass, and she sent her husband in charge of the team which she owned to do the mowing, and while he was mowing across this piece, including the part which the city had appropriated for sewer purposes, one of the horses fell into this hole, and was badly injured, and died. Mr. Blanchard testified upon the trial that he had known of the condition of this sewer for about eight months, and knew of it at the time that he sent Mr. Bowser in there to mow it, and said nothing to him about it. The place around the hole was covered with high grass and weeds, and was not readily seen. Mr. Bowser did not see it.

When this evidence was all in on the part of the plaintiff the city moved that the court take the case from the jury and direct a verdict for the defendant, which the court proceeded to do. And it is this action of the court which we are asked to reverse.

■ The court placed its ruling in that matter, and very properly, we think, upon the ground that the charge made in the petition was that the city was negligent in the construction of the sewer, and that the proof had utterly failed to show that the city had been negligent in its construction.

Thereupon the plaintiff asked leave to amend their petition, and that motion was denied, to which the plaintiff excepted. She desired to amend it by inserting allegations which would cause it to read that the city had negligently controlled and managed the sewer, by reason whereof it became and was for a long time prior to the 14th day of July, 1891, out of repairr and in a dangerous condition. Considerable stress is placed in the argument upon the refusal of the court to allow that amendment.

We would not have very much trouble with that question, if the plaintiff had a case here upon the facts proven upon the trial; for we must assume that she has no other facts than those offered here, and that the only difficulty was that the peititon did net by its allegation meet those facs. These facts simply show that the city had appropriated this private property for sewer purposes. We think that gave the city the right to enter upon there and construct this sewer, and, so far as the city is alone concerned, the right to construct it in any other manner it pleased. And we are of the opinion that it owed no duty to the public with reference to the construction or the maintenance of that sewer; that this was not a highway, or a public way, like an alley, or anything else that the public had any business upon. It was Mr. Blanchard’s private property. Mr. Blanchard retained the fee to the soil — retained the right to cultivate and use the surface of it for any purpose that it was possible to use it- — ■ except the city alwayihad free and uninterrupted access to it for any purpose that was necessary in the construction and repair of that sewer. Mr. Blanchard could not interfere with the sewer or the right of the city to go to the sewer, but for any other purpose he could use the land. Mr. Blanchard’s knowledge of the use of this property was shown by the evidence to have been with knowledge of its exact condition. He testified that he had known of it forsix'jor eight months; that he had complained to the sewer inspector months before that it was out of repair. Of course, if that had been upon the public highway, there would have been a case made against the city; but being on Mr. Blanchard's own land, Mr. Blanchard could not drive a horse into the hole and sue the city. Neither could he hire a man and put him in there to be injured, and the man thereafter recover from the city for his damage by reason of the bole. If Mr. Blanchard’s own negligence contributed to the injury to the team of his employe, Mrs. Bowser, surely she could not recover. Clearly, she was Mr. Blanchard’s employe. He sent her husband in therewith a knowledge of the exact condition. That, in our judgment would be fatal to a recovery.

Again, this injury did not happen in consequence of any defect in the construction nor in the maintenance of this sewer, but from the settling or caving in of the earth, covering the sewer and around the catch-basin.

It has been said that this court decided upon a demurrer that this petition was good, (see Bowser v. City of Toledo, 6 Cir. Court Reports 291). The opinion of the court is short, but it decides nothing more than that a case might be made out under the petition. But it is clear that the evidence here shown makes no case against the city for which Mr. Blanchard or his employe could recover for any injury to their property. If Mr. Blanchard had turned his stock into that field, he would have turned it in subject to the right of the city to have a sewer there, and to have the sewer in operation, and if the sewer itself or the cover over the sewer had become destroyed or broken in any manner, perhaps a different rule would apply; but the evidence here shows that the earth around the catch-basin had simply fallen in and left a hole in the ground near the catch-basm, not into the sewer. The catch-basin was located near a ravine where it would catch some water that came from the high ground around, and let it flow into the sewer — probably from some of the streets and alleys above there. In any event, it is enough for the court to - say that the evidence in this case discloses clearly that Mr. Blanchard himself had complete knowledge of the condition of this sewer, and that his employe was chargeable with his knowledge of that condition. Even although the employe furnished his own tools and team with which to do the work that Mr. Blanchard had employed him to do, that makes no difference. Mr. Blanchard’s negligence is imputable to the employe, and if he drove his team into that hole, for that reason he could not recover against the city.

Wilkinson & Eckert, for Plaintiff.

C. E. Watts, for Defendant.

We hold, that the court below committed no error in refusing to permit the plaintiff to amend her petition, nor in its instruction to return a verdict for defendant.


source: Caselaw Access Project

author: Swing, J.

license: Public Domain

text:
    (First Circuit—Hamilton Co., O. Circuit Court
    Sept. Term, 1896.)
    Before Smith, Swing and Cox, J. J.
    STATE OF OHIO ex rel. CHAS. B. SNELL v. MOSES F. WILSON, a Judge of the Court of Common Pleas.

      Change of venue under sec. 5033 Rev. Stai.—
    Under Sec. 5033, Rev. Stat., which provides that the court shall change the venue to an adjoining county in actions where one party is a corporation and has more than fifty stockholders and its principal office in the county, on the filing by the other party of an affidavit that he believes he can not have a fair trial in such county, corroborated by the several affidavits of five credible persons residing in such county, the court is clothed with a judicial discretion to decide as to the sufficiency of such affidavits, the credibility of the affiants, etc., and a petition in ' mandamus, to compel the judge on the filing of such affidavits to transfer the action to an adjoining county, will not lie.
   Swing, J.

This is a suit in mandamus involving the construction of Sec. 5033, Rev. St. This section provides that, when a corporation having more than fifty stockholders is a party in an action pending in a county in which the corporation keeps its principal office, if the opposite party make affidavit that he cannot as he believes have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county, the court shall change the venue to the adjoining county most convenient for both parties.

Snell being a party plaintiff in an action in the court of common pleas of this county, against the Street Railway Company of Cincinnati, made an affidavit in accordance with this provision of the statute, and also filed in said court the affidavits of five other persons in support of his own, and asked for the removal as therein contemplated. But the court of common pleas, his Honor, Judge Moses F. Wilson, presiding, held the affidavits of the five other persons than the defendant insufficient in law, and refused to grant the order of removal as sought. This action is brought to compel said judge to grant said change of venue.

The law applicable to mandamus is thus stated by High on Mandamus, Sec. 24, p. 25, as follows:

“But the most important principle to be observed in the exercise of the jurisdiction by mandamus, and one which lies at the very foundation of the entire system of rules and principles regulating the use of this extraordinary remedy, is that which fixes the distinction between duties of a peremptory or mandatory nature, and those which are discretionary in their character, involving the exercise of some degree of judgment on the part of the officer or body against whom the mandamus is sought. This distinction may be said to be the kej to the extended system of rules and precedents forming the law of mandamus, and few cases of applications for this extraordinary remedy occur which are not subjected to the test of this rule. Stated in general terms, the principle is that mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance, but that as to all acts or duties necessarily calling for the exercise of judgment and discretion,on the part of the officer or body at whose hands their performance is required, mandamus will not lie. The application of the rule is universal, and its illustrations are as multiform as are applications for the aid of this extraordinary remedy. It applies with especial force to cases where the aid of mandamus is sought against inferior courts or judges, public officers, municipal authorities and corporate officers generally, and in all these cases it is the determining. principle in guiding the courts to a correct decision. And wherever such officers or bodies are vested with discretionary power as to the performance of any duty required at their hands,or where in reaching a given result of official action they are necessarily obliged to use some degree of judgment and discretion, while mandamus will lie to set them in motion and to compel action upon the matters in controversy, it will in no manner interfere with the exercise of such discretion, nor control or dictate the judgment or decision which shall be reached. But if, upon the other hand, a clear and specific duty is positively required by law of any officer, and the duty is of a ministerial nature, involving no element of discretion and no exercise of official judgment, mandamus is the appropriate remedy to compel its performance, in the absence of any other adequate and specific means of relief, and the jurisdiction is liberally exercised in all such cases.”

This general statement embodies the very substance of the law of mandamus.

The third proposition of the syllabus in the case of the State ex rel. v. Crites, 48 Ohio St. 460, is as follows:

“The remedy for mandamus,while appropriate to compel an officer to proceed in a judicial or quasi judicial matter confided by law to his jurisdiction, cannot be invoked to correct his errors or control his discretion.”

Our statute itself is almost as explicit as the above authorities. Sec. 6742, Rev. St, provides:

“And although it may require an inferior tribnal to exercise its judgment or proceed to the discharge of any of its functions, it cannot control judicial discretion.”

It seems to us in this case, that the court of common pleas was called upon in determining the fact whether or not the affidavits of the five persons filed therein sustained the application of the plaintiff, and whether or not these affidavits were made by credible persons, involved judicial discretion, or in the language of High supra, the court in this case was necessarily obliged to use some degree of judgment and discretion, and if so, this action is not the proper remedy.

Wolfe & Michie, for Petitioner.

Paxton, Warrington & Boutet and Kittredge & Wilby, for Defendant.

As the demurrer of plaintiff to the answer of the defendant searches the record, it follows that the plaintiff’s petition must be dismissed.

Other questions have been argued, but they are not in the case if the view we have taken of the law is correct.

(We might add that in our judgment the affidavits of the persons other than the plaintiff did not state facts which sustained his affidavit, although this statement is not necessary to the decision of the question here involved.)


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court,
    Sept. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    BURNAP et al. v. THE SYLVANIA BUTTER CO. et al.

      Scheme to erect Butter Factory — Contract under which contractors are not entitled to mechanic’s lien for balance due on unpaid subscriptions. —
    A promotor of a scheme to erect a butter factory, entered into a contract with a number of persons severally, that he would erect a factory costing a certain amount, the subscriber's to the scheme to take each a certain number of shares at 8100.00 a share, and when a sufficient number of shares were subscribed to cover the cost of the factory, then a corporation should be formed to whom the factory would be conveyed, with the proviso however, that each subscriber should be held liable only for the amount of his subscription. A sufficient number of shares having been subscribed, the factory was erected and conveyed to the corporation formed, but several of the subscribers refusing to pay from whom nothing could be collected by law, the sum realized from the subscriptions was insufficient to pay for the factory. The contractors thereupon attempted to secure a mechanic’s lien on the factory, and brought suit to enforce the same. Held: The contractors under the contract were not entitled to a mechanic’s lien.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

In this case the plaintiffs are partners, and The Sylvania Butter Company is a corporation incorporated under the laws of the state of Ohio, doing business at Sylvania, Ohio. At the time the occurrences commenced upon which arose the matter in controversy, Burnap & Burnap were engaged in the business, it seems, of erecting butter factories, or creameries. The course of business they pursued was,in substance, to proceed to some place and obtain signatures from persons who might be willing to take an interest in the erection under contract of a creamery building, The parties who signed, signed a paper or a contract to which I will refer later on, and when a certain number and amount of signatures were obtained, Burnap & Burnap proceeded to put up a building on property which was dedicated for that purpose, to be designated by Burnap & Burnap, And it was agreed and expected that the parties who signed this paper would proceed to become an incorporated company, and the ultimate result would be that there would be a conveyance of the property .to the corporation. The parties who made signature, signed for a certain number of shares in the corporation, provisions being made that they should be entitled to share in the proportion to the amount they should pay upon their subscriptions. In this case the contract provided, among other things:

“Burnap & Burnap, of Toledo, Ohio, party of the first part, hereby agree with the undersigned subscribers hereto, party of the second part, to build, erect, complete and equip for said party of the second part, a butter factory at or near Sylvania, Lucas County, Ohio, as follows, to-wit:“

And then follows a description of the property, building, etc.

“Said building shall be constructed in substantial accord■anee with the specifications hereon, in a workmanlike manner, the boiler and all other machinery and fixtures, shall be properly set up, and shall be in good running order before the party of the second part shall be required to pay for said factory. The party of the second part agrees to select suitable and reasonable level land for said building, together with well, spring or reservoir on said lot, for the use of the business; and it is further understood that in case the said second party shall fail to furnish said laud and water within ten days after the execution of this contract, the full one-fourth part face value of each of the subscriptions hereto shall constitute and be liquidated damages to be paid by said subscribers to said first party.”

Then follow two clauses:

“As soon as the above amount ($3,150), is subscribed, or in a reasonable time thereafter, the subscribers agree to incorporate under the laws of the state, as therein provided, •fixing the aggregate amount of stock at not less than the amount subscribed, to be divided into shares of $100 each. Said share or shares, as above stated, to be issued to the subscribers hereto in proportion to their paid up interest herein, and each stockholder shall be liable only for the amount subscribed by him.

“It is further understood by and between the parties hereto, that if the subscriptions hereto shall amount to more than $3,150 and less than $4,500, the foregoing agreement, designated “Form A,” shall constitute the agreement between the parties, except as hereinafter specified. If' the subscriptions hereto shall amount to $4,500 or more, than the agreement hereto attached, designated “Form B,” shall constitute the agreement between the parties.”

Form “B 2” containing the above provisions, the same as form “A.”

The signatures to these papers are substantially in the same form in the printed heading — '“Names of subscribers, ” “No. of shares,” “Amount of stock after incorporation. ” The first one is “Earl Harroun, 1 share, $100“ The others follow, a certain number of shares and a certain amount.

The agents or persons employed by Burnap & Burnap proceeded to solicit subscriptions to this stock until they obtained the requisite amount of $4,500 subscribed to the stock of the company. They got one party to subscribe for two shares, to be paid for in land. The plaintiff • went to work and put up the building, and finished it completely, and at a meeting of those who had subscribed to the stock, it was delivered to them,and they took possession of it. Subsequently to that certain of the stockholders formed a corporation, and these premises were deeded by the person who had made that subscription to that corporation, and they are now held by the Butter Company. It turns out in the end that the amount of stock that was subscribed was not all paid; that there was only collected some $3,000, or an amount which would leave an indebtedness of about $1,300 unpaid. There are $300 of subscriptions that the parties making them say that they agreed with the agents to pay in land, and they are willing to make the conveyances in land as they agreed, but money they will not, leaving about $1,000 subscribed by parties who can not be compelled to pay by action at law — ’execution proof, it is said — who have not at any time made any payments whatever, nor have they become stockholders in the corporation.

Under this state of facts Burnap & Burnap proceeded in due time to file a mechanic’s lien against this property, and an action at law was begun against the parties, and also to enforce the mechanic’s lien. The action at law has been disposed of. This action, which was a part of that one, remains, and has been brought into this court for the purpose of enforcing the mechanic’s lien upon the premises. The plaintiffs claim that they were entitled to a mechanic’s lien upon the whole premises, or at least upon a pro rata share of the premises equal to the amount of stock that is still unpaid, to-wit: $1,300; and the question here is whether they are entitled to maintain an action to enforce the mechanic’s lien, or whether they have rightfully any mechanic’s lien upon the premises.

The question is an interesting one, and has been argued very fully by counsel, and authorities have been cited; but there are not many authorities to be cited upon this particular question. The primary question that suggests itself to the mind of the court is, whether this contract is a joint or several contract. We think there is no question, under the authorities, that it is a several contract; and it is not very strongly contended; indeed, it is admitted, that the weight of authority is in favor of that proposition. There is only one case that really approaches this case, in regard to the mechanic’s lien, and that is 63 Mo. 477, which was decided by the Missouri Court of Appeals, sitting at Kansas City. It was held in that case that there was - no mechanic's lien obtained by the promoters who were, there, Da,vis & Rankin, who had a contract substantially like this. It was suggested that there might be a lien on some part of the property, but the court held, under the proofs and pleadings of that case, that the lien could not be sustained.

There is a case found in the Iowa reports that throws a little light upon the subject — Smith v. Iowa City Loan Association, 30 Ia. 164. That is a case where a building company had agreed to sell a lot to a third party, B. and C. the contractor, agreed with the building company to put upon the premises a house for B. The association was to pay $875,and B. was to pay $125, the title still remaining in the association. C. contracted directly with the association to build. Afterwards B. refused to pay the $125, the building having been built, and eventually refused to take the property. C. sought to enforce a mechanic’s lien on the premises, and the Supreme Court held he could not do so. The only person to whom he expected to look or could look was the association, and the contract with it being for $875, and it having tendered that and offered to pay it, there was no mechanic's lien.

R. S. Holbrook, for plaintiffs.

George O. Boone and J. C. Jones, for defendants.

. Without discussing the question at length, we think, as was intimated on the trial, that no lien should be allowed in this case upon any portion of this property— largely for the reason that under this contract there was an agreement that persons were to take this number of shares, and the property was to be deeded to the corporation, and stock was to be issued to the parties in proportion to the amount paid,and none others; and there was also an agreement between Burnap & Burnap and these parties that the persons who subscribed for stock should not be held in any manner or form for the action of the other parties, or for the debt of the other parties. To fasten the lien upon an aliquot portion of this property would be simply to make a provision that unless the owners of a balance of the stock of the corporation itself paid the amount of $1,300, then th’eir property should be sold. It is as bad for them as if they had sold the Whole of it, so far as that is concerned, Underthe circumstances Burnap & Buruap, promoting this scheme, making arrangements for the corporation, making provision that the slock should be issued to persons only who paid for it, and that the property should be deeded to the corporation, we think have no right to take a mechanic’s lien, and they ought not, either in equity or justice, have any lien on the property as against the corporation. Whether or not they should be subrogated to the rights of the parties who have not paid for the stock we do not decide, but as the case now stands, the petition will be dismissed.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    July Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    KLINE, ADM’R v. MARSH ET AL.

      Construction of Wills.—
    The main and controlling rule in construing wills is that the intention of the testator when ascertained, must prevail.

      Bequest of realty to executor, the proceeds to be distributed among the children — ■
    Where the testator places realty in the hands of the executor, to lease it, mortgage or sell it under various contingencies, and after sale to distribute the net proceeds among the children, it is a' bequest of money, and the title to the realty does not vest in the children.
    This was an action to construe the will and codicils thereto of William E. Marsh, who died in August, 1879. The will was dated May 20, 1863, and there were appended five codicils of dates from 1865 to 1877. The principal question was whether the children of the' testator, at his death, acquired a vested estate, either legal or equitable, in the Galt House property in this city, or its proceeds; and if they did, whether the vested estate so acquired by each child was determinable upon the death of such child without leaving issue.
   Swing, J.

We are of the opinion that the matter in controversy here falls within the rule in the case of Richey v. Johnson, 30 Ohio St., 288. By the will of Marsh,as to the Galt House property, there was no vesting of the real estate in the Marsh children; but the gift was of personalty, and to the heirs living at the time distribution of the proceeds could be made, to-wit: August, 1895.

We have gone over twice the briefs of counsel in this case, and have given them such careful consideration as we are capable of. We do not think it necessary in deciding the case to review the authorities cited. All cases and all authorities recognize the fact that the main and controlling rule is that the intention of the testator when ascertained is to prevail; and further, that generally the construction placed on one will very seldom furnishes much aid in the construction of another. You can get general rules, but when you want to get the real meaning of a will, the words used taken in connection with the surrounding circumstances must furnish the most reliable means of getting at the true meaning.

James JE. Robinson, for Plaintiff.

Bateman & Harper, contra.

Our reading of the will indicates to us that the testator intended to place this particular property in the hands of his executor to lease it, to mortgage it, or sell it under the various contingencies provided for, and after sale the net proceeds to be divided equally between his children, or^to their heirs in case of their death before such sale. It is a gift of personalty, and to those living at that time; or in case of death before such sale, their heirs, if living, and those who take the bequests.


author: Haynes, J,

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court,
    January Term 1895)
    Before Bentley, Haynes and Scribner JJ.
    THE CITY OF TOLEDO v. CLARA HIGGINS.

      Defective sideioalk — Injury—Admissible testimony. —
    In an action against a city for damages for permanent injury sustained by falling on the sidewalk in a dark night in consequence of a defect in such sidewalk, testimony need not be confined to show the length of time such defect has existed to prove knowledge by the city, but testimony as to the character of the defect is admissible.

      Request given in final charge and not before argument, when not error. — •
    Where certain requests to charge are submitted to the court prior to the argument, with the request that the same be made part of the charge of the court, but no request is made that' they be given to the jury before the argument of counsel, the fact that the court did pass upon them and give most of them in his final charge to the jury, and not before argument of counsel, is not error.

      Not excessive verdict.—
    Verdict for S1200 under the circumstances of this case not excessive.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J,

The case of The City of Toledo v. Clara Higgins is prosecuted for the purpose of reversing the judgment of the court of common pleas. There are three points made in the case, and one is, that the verdict is not sustained by sufficient evidence, and is contrary to law; and another is, that the court refused to charge the jury certain requests that were asked, and the third is that the judgment is excessive.

The record shows that a petition was filed simply to recover from the defendant damages for an injury that occurred to the plaintiff below, Clara Higgins, by reason of a defective place in the sidewalk on Wisconsin street into which the plaintiff below had stepped or stumbled on a dark night, whereby she had been thrown to the ground and her arm broken and she had received severe injuries. The testimony, we think, shows very clearly that the injury happened in the manner in which the plaintiff stated it in her testimony, which corroborates the statements of her petition.

Criticism was made upon the testimony, but we see no reason to doubt that there was a place in the sidewalk into which her foot either slipped, or upon which she stumbled in passing over it, and that she was thrown and injured. In fact, she was seen to fall by a disinterested witness, or rather two disinterested witnesses, and was picked up by them, lying in the condition which she had .stated. She testifies that she fell, and that she went home and the next day visited a physician. Thereupon he told her that her arm was broken, and he set it.

It appears by the testimony that the doctor had sometime afterwards discharged her, thinking her arm was well; that the arm commenced swelling about that time,and continued to do so until finally tome of the bones worked out and she consulted another physician near her, and he examined the wound, as he testifies, and discovered that there was a sloughing off of the bone at the mouth of the wound,and he opened the arm and took out the affected bone, and took such steps for the recovery of the patient as surgery would require, and the result was that she recovered in time, but that arm is ‘smaller than the other, and is defective in strength, so that she apparently has suffered a permanent injury, and her body is permanently weakened for labor, and heavy labor especially.

The plaintiff, for the purpose of showing knowdedge on the part of the city of this defect in the sidewalk, offered testimony tending to show by witnesses that they had been in the habit of passing along the street; that that sidewalk in the immediate vicinity of this place had been taken up and relaid; that the planks were unequal, and there were some holes in the sidewalk. This was all objected to by the defendant, the city of Toledo, claiming that the testimony should be confined to the statement in regard to the length of time that the hole had- existed into which' the plaintiff had stepped; that they could not go any further; the court, though, overruled the objection, and allowed the testimony to be given of the character which I have stated. In doing so we think the court did not err in admitting testimony of the defects in the sidewalk of this character, by which the plaintiff’s injury occurred.

We have examined this question before in a case where the city of Toledo was a party, and we sustained the action of the court below in that case. We think the greád body of authorities cited by the counsel for the defendant in error sustains the position which was taken by the court, and we therefore hold that on the facts of the case and the character of the testimony which was offered in this case, that there as no errorjin permitting the testimony to be given.

It is claimed that the court erred in refusing the third and tenth requests as prayed by the plaintiff. It was argued that the court erred in not giving these charges prior to^the argument of the case, but the record shows that the defendant submitted certain requests, and asked the court to pass upon them before the case was presented to the jury, and that the same be included and given as a part of what the court would charge. There was no request that the court should charge the jury upon this proposition before argument, but only that he should pass upon them which he did do, and the request that he should charge them afterwards, as a part of his charge. He did that in regard to allofthenq except the third and tenth, and exceptions were taken.

The third request is, that:

L,‘‘The city owes no duty to negligent persons; that is, to persons who thoughtlessly, or who, without using proper precaution for their own safety, expose themselves to manifest perils, or who, by the use of ordinary • and reasonable care, mightjavoid injury to themselves.”

The tenth request is:

' ‘‘The city owes no duty to persons that thoughtlessly, or who without the use of proper précaution for their own safety, expose themselves to manifest perils, or who, by the use of ordinary and reasonable care, might avoid injury to themselves. "

The court did charge the jury in regard to the question of contributory negligence, and charged the jury correctly. We think the court did not err in refusing to charge the jury in the language as prayed in this third and tenth requests.

We do not think the law is better stated in language than that which the court did use in stating the rules of law in that regard, which are laid down by courts of the state. The damages that were given, I think, were $1,200. This person has suffered a great deal with a broken arm, and has suffered a great deal from the result of the injuries she received, because, so far as the testimony goes, so far as the judgment of the witnesses are concerned, the conclusion is drawn that the sloughing of this pus and the bone was the result of the injury. Of course, no man can say absolutely that it is, but it is the best judgment of those who are qualified, from their knowledge of surgery, that it did happen by reason of this injury, and as a result of that, the arm has been permanently weakened.

C. F. Watts, for City.

In view of all these facts, and in view of the fact that the party may not be able to do full work hereafter, we think the damages are not excessive, and the judgment of the court will be affirmed, but without any penalty.


author: King, J,

text:
    (Sixth Circuit, Lucas County, O., Circuit Court,
    Sept. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    ROB’T CUMMINGS, GUARDIAN, v. THE CITY OF TOLEDO.

      Sewer — Negligent construction — Liability of city. —
    A city is only liable for damages to buildings inconsequence of,[the construction of a sewer in the street whereJLthe damagejs caused by the negligence of the city in constructing the”sewer.

      Same — Measure of damages. —
    The true measure of damages is the difference in the value of the property immediately before and after the injury.
    Error to the Court of Common Pleas of Lucas county,
   King, J,

This is a case brought in the court of common pleas by Robert Cummings, guardian, to recover from the city of Toledo damages done to a building situate on the westerly side of Ontario street, between]M'adison and Jefferson streets. He avers that the city had.provided sewerage for the district in which that building is situated, and had provided a sewer located in Jefferson street, with which the plaintiff’s property was connected by himself by a sewer running along Ontario street, and connected with the main sewer on Jefferson. He alleges that the plaintiff, in constructing its sewer, had carelessly constructed it; and this carelessness of the city consisted mainly in building it so that it did not have sufficient capacity to carry off the water from the plaintiff’s premises and from the territory that it was expected to drain, and that at a point on Jefferson street, it had been constructed around an obstruction,so that there was a curve in the main sewer in that street; and instead of running it directly down Jefferson street to its outlet,there was an angle turning up Huron street, and then another angle at Monroe street; and also that they had provided certain gates which were intended to prevent the water from the river coming back,and these were left in such a manner that they cut off the outflow; and in that way, by means of these angles and curves and gates, the capacity of the sewer had been diminished, although its original capacity was never sufficient. That at some time previous to the commencement of this suit,water had backed up and flowed in and upon the plaintiff’s premises,into his cellar,and damaged his building and walls, and injured them in several material respects.

The city denied all allegations of negligence, and also claimed that the plaintiff had been negligent in constructing his connections; also that at the time when the plaintiff was injured, it was by a storm that was unprecedented, and not anticipated.

The plaintiff offered his evidence on the trial of the case, and proved that he was the owner of the premises; that the water had backed in two or three times, and that it had done some damage; that it had weakened some pillars through the center of the building. There was some claim made that the floor had been injured; that a brick floor was originally built, and either because of the water or for some other reason, the plaintiff had seen fit to take that brick floor up and put in a cement floor, which he claimed was necessary. Of course, while the water was there, it was a very great nuisance, and it had entailed some expense to the tenant, who was occupying the property under a lease for ten years. Clearly, for any damage or injury to the tenant’s property, the owner could not recover. The only damage he could recover for, if he made out a ease, was the injury to the freehold — the building, and land, as it stood there. He offered evidence upon the trial tending to show what that damage consisted of, and how much it amounted to. Some of this evidence was in the first instance, ruled out by the court, and then there was other evidence which,' I think, was read to the jury and ruled out, after it had been read from a deposition. When the evidence was all closed, the court, on motion of the defendant, took the case from the jury.

There are two complaints made. One is, that the city would be liable for the injury done to this buiding, regardless of any question of negligence-upon its part; that if it constructed a sewer, and it contributed to the injury to this building, the city would be liable. And in the second place, that the court erred in its ruling as to the kind of evidence that should be given in order to prove damages.

Upon the first question,I only need say a word. Several authorities were cited in support of the proposition that the city would be liable. These were the cases of Rhodes v. Cleveland, 10 Ohio, 159, and McCombs v. Akron, 15 Ohio, 474, and a reading of the opinions seems to sustain the claim of the plaintiff; but a careful reading of them will show that it was unnecessary for the court to decide that a corporation would be liable without negligence for an injury to the improvements on any property. In the case of Cincinnati v. Penny, 21 Ohio St. 499, those cases are reviewed by Judge McIlvaine, who delivered the opinion of the court, and are limited in their doctrine to an injury to the land. The syllabus is:

‘‘As a general rule, a municipal corporation is not liable for injuries to buildings on lots abutting upon streets and alleys, resulting from the improvements of such streets or alleys, or from their appropriation to public use, provided its officers and agents, in making such improvements or appropriation, act within the scope of their authority, and without negligence or malice.”

In Keating v. Cincinnati, 38 Ohio St. 141, where the city was held liable for changing the grade of a street along a hillside, whereby the plaintiff’s lands was caused to slide out,to the injury of his lot and buildings, the court there cite these same cases, and in referring to the case of Gilmore v. Driscoll, 122 Mass, 199, they say, quoting from the opinion:

‘‘This unqualified rule is limited to the injuries caused to the land itself, and does not afford relief for damages by the same means to artificial structures. For an injury to buildings, which is unavoidably incident to the depression or slide of the soil on which they stand, caused by the excavation of a pit on adjoining lands, an action can only be maintained when want of due care or skill, or positive negligence, has contributed to produce it.”

And the court further say:

‘‘It is upon this principle that the City of Cincinnati v. Penny (21 Ohio St. 499) was decided. The city in that case, was held exempt from liability for damages to buildings, because it was free from negligence in making the excavation.”

The same rule of liability for want of proper care and skill is held in City of Quincy v. Jones, 76 Ill. 232.

Second. As to the question of damages: It is contended that the court erred on that. The tenant, Mr. Roff, was a witness, and he was inquired of—

“What did it become necessary to do with the brick floor that was in the building at the time you entered into possession, to avoid, as far as possible, the injuries occurring from the flooding of that floor?’*

That was objected to, and objection sustained, and plaintiff stated that he expected to show that it was necessary to put in a concrete floor at an expense of $1507.

On page 48, another witness, called by the plaintiff, was asked this question:

“From what you knew of the building before the overflow at these different times, and what you know of the effects of that overflow, what would you say would be the difference, if any, before and after the overflow?”

That was objected to, and sustained, and plaintiff stated that he expected to prove by the witness that the difference in value would be 20 per cent, of the value of the property.

“How much damage, in your judgment, was done to the property by reason of the saturation and effects of the overflow?”

That was objected to, sustained, and they stated:

“We offer and intend to prove by this witness, that the actual damage to the piers.and the damage resulting by the saturation of the piers, by these overflows, amounted to $1500.”

On pages 52 and 58 the testimony of the plaintiff himself is given by a deposition, and in the course of that examination, he was inquired of as follows (the objections there and throughout the deposition do not appear, and the deposition was read in evidence,and thereafter ruled out):

“Q. What was the value of that property in 1890, before these floods occurred? A. My impression is, that I gave $120 a foot; it was either $120 or $130, I don’t remember exactly.

“Q. What was the cost of the building? A. I think it was $23,000 — the building.

“Q. Then what was the building and lot at that time worth? A. I think it was worth all that it cost.

‘‘Q. How much less valuable, if any, was the property after the inundations', occasioned by the overflow of the sewer into the basement? A. That would be pretty hard for me to say, how much less.

“Q. I want a matter of judgment. A. I should say probably 20 per cent, on the cost of the building, anyway.

On the next page:

“Q. Was there any damage to them (the piers)? A. I think the great damage was the deposit of filth.

“Q. Tell us whether there was or was not any damage to the piers by their being saturated with the overflow of this water that came in there? A. I wouldn’t be capable of judging as to that.

“Q. What was necessary to be done, or what did you do with the floor that was originally in the building? A. I removed the brick floor entirely, and put down cement.

“Q. Why did you do that? A. Oh, it couldn’t be occupied, flooding the cellar with filth from the sewer.

“Q. What was the expense of removing the brick floor and replacing it by a cement floor? A. $1504.

“Q. For what amount is the building renting,and for what length of time ? A. It is rented for ten years at 6 per cent, on its costs, and they pay all taxes and insurance.”

That is all of his testimony, except that on cross-examination he says that he never examined the building after it was flooded, and that he had based his twenty per cent, on what he thought it would hurt the property,as a tenantable property; so far as he knew, it hadn’t hurt the walls at all. So, according to his cross-examination, his whole testimony didn’t amount to anything.

But it is claimed that the court did not adopt the .correct rule of damages, when it ruled out all this testimony with reference to damages. We have examined that question with a little care, because it has been before this court once in the case of Toledo v. Grasser, the opinon in which is to be found in 12 Circuit Court Reports 520, and we still adhere to the opinion there expressed. None of these questions directed the attention of the witnesses to the facts and circumstances upon which they are allowed to pass an opinion; nor did any of them direct the attention of the witnesses to the kind of opinion they are allowed to express in actions of this character. It is said in argument, that the rule which the court briefly laid down in the Grasser case, is only applicable in appropriations. Where damage has been caused to real property by the acts of public authorities, or will be so caused, the issue to be tried is, what the amount of the damage is to the property. We think there can be no question, but that the amount of damages to be determined by the jury is, the difference in the value of the property before and immediately after the injury has occurred. That is the issue submitted to the jury; and that is arrived at by ca'ling witnesses who know the value of the property before, and who know the value of the property after the injury. They give those two valuations' to the jury, and nothing else. They are not allowed to say what the damage is, nor are they allowed to say how much less valuable whether the injury has occurred, or whether it is prospective — they are confined to give the valuation; and before they can give the valuations, they must have had some experience, they must have examined the property in question, and have acquired some knowledge upon that point. A witness is called here in this case, who is asked as to the value of this property after this injury occurred,who testified that he didn’t know anything about it, or what the injury was,or how it affected the building in question. Clearly he was not a witness who could give an opinion, because he had no facts upon which to base it, and he gave no facts to the jury. We think the rule is well settled. We cite one or two authorities only. In Jones on Negligence of Municipal Corporations, it is said in section 259.

“Where property is totally destroyed through the negligence of a municipal corporation, the damage recoverable is the value of the property; and if property of an individual, whether real or personal, is injured, the damage is ordinarily the difference in its value before and after the injury.”

That is the issue submitted to the jury. That is not what the witness is to testify to, but he is to give the value before and the value after, and the jury will arrive at what will be the measure of the damages. Sedgwick on Damages, sec. 243:

“One fundamental principle may be stated at the outset, and we shall find frequent examples of it as we proceed with our examination; and that is, that wherever the measure of damages involves the question of value, however much the market may be resorted to to determine what the value is, this resort is had,not as a conclusive test,but to aid in getting at that real value to which the plaintiff is entitled. What he is entitled to recover is the real value of the article of property, the time, the labor, or the services, as they would be if unaffected by the defendant’s tort, or if the defendant’s contract had been performed.”

So far there is no difference in cases for breach of contract and actions in tort. In Rhodes v. Baird, 16 Ohio St. 574, in discussing casually this question, the court say —and this was an action for breach of contract:

“To the extent that the damages depended on the loss of the use of the property, its market value at the time of the eviction, subject to the performance of the contract on the part of the plaintiff,furnished the standard for assessing the damages. If it had no general marKet value, its value should have been ascertained from witnesses, whose skill and experience enabled them to testify directly to such value, in view of the hazards and chances of the business to which the land was to be devoted.”

In 45 Ohio St. 309, which was an action by the owner of property abutting on a public street of a municipal corporation, to recover against a railroad company that was permitted to put its track in the street with the assent of the corporation, witnesses were permitted, against objections, to testify how much less per year was received as rent for. the property affected since than before the track was laid in front of it; to give their opinions concerning the amount of damages sustained; and also their opinions as to the difference in value of the property with the track in the street and if it was some other place. This was held to be error. On page 322 the court say:

Cummings & Lott, for Plaintiff in Error.

G. F, Watts, for Defendant in Error.

“It is too well settled in this state to admit of controversy, that the true rule of damages in such cases is the difference in the value of the property affected before, and the value after the location of the railroad, and that this is to be determined by the jury, in the light of the facts established by the evidence, and not upon the mere opinion of witnesses, except so far as opinions may be received upon questions of value.”

There is a long discussion of this matter in that case. Questions were asked substantially like these in the case at bar — -“How much less valuable will your land be in consequence of this appropriation?” — that being an appropriation case; and there the rule is laid down that the points to which the witnesses are to be directed are the value of the property before and the value of it after; the question all the time being for the jury to determine — -and that they are to determine it from these two facts, submitted to them by the witnesses: How much less valuable was the property rendered in consequence of the injury to it?

We do not think that the plaintiff directed the attention of the witnesses in this case to that point, and we think that the court was entirely justified in sustaining the objections to that testimony, and that it was justified in instructing the jury to find a verdict for the defendant.

Therefore, the judgment will be affirmed.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Nov. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    THE STATE OF OHIO ex rel. City of Cincinnati v. FRED BADER et al., COMMISSIONERS OF HAMILTON COUNTY.

      Act authorizing county commissioners to improve avenue unconstitutional — Taylor avenue.—
    An act authorizing county commissioners to improve a certain avenue and issue bonds to pay for such improvement, is in violation of sec. 26, art. 2 of the constitution, and also in conflict with the principles announced instate ex rel v. Broerman, 35 Law Bulletin, 213, as a matter administrative, and not legislative in character.
    Mandamus.
   Smith, J.

The allegations of the petition in this case are in substance these: That the relator is a city of the first grade of the first class, and that it owns a portion of the street in Cincinnati called Taylor avenue (describing its location), said avenue having been dedicated to said city for street purposes to the full width of sixty feet. That on February 18, 1891 an act was passed by the General Assembly of the State to authorize the Commissioners of Hamilton County to construct certain avenues in the city of Cincinnati and Spencer township, in said county, to issue bonds to pay for the same, and to assess a tax to redeem said bonds. That sec. 1 of said act provided that such Commissioners, in addition to their powers of taxation, be authorized to construct Taylor avenue in said city, from Eastern avenue to Union avenue, to the grade established by said city, setting curbs and crossings,flagging and paving the gutters,macadamizing the roadway and constructing the necessary drains, said avenue to be improved to the full width of sixty feet on the following line (giving a description thereof). Thai by sec. 3 of said act the Commissioners of Hamilton county were given exclusive and complete jurisdiction of the improvement and the levy therein provided for, and by sec. 4 of said act it was provided that the said Commissioners of Hamilton county should proceed forthwith to construct said improvement.

It was further averred that on a day of May, 1892, the Commissioners commenced the improvement of said avenue in said citj', under the authority conferred by said act, and prosecuted the same until October 1, 1892, when they ceased to do any further work thereon, leaving the improvement in an unfinished condition, no curbs nor crossings having been set nor the gutters paved. By reason of said omission and neglect to complete said improvement, said avenue has been greatly damaged and rendered unfit for travel; and the relator avers that notwithstanding its incomplete and unfinished condition, the Commissioners have sought to turn said avenue over to the city, thus shifting and evading the responsibility for completing the same.

Wherefore relator prays that a writ of mandamus issue commanding the defendants to domplete the improvement of said avenue by setting curbs, crossings and flagging, and paving the gutters, etc., in conformity with said act.

To this petition a general demurrer was filed; aud the question is, is it well taken?

We are of the opinion that it is. It seems to come clearly within the principles settled by the decisions of the Supreme Court in the cases of Hixon v. Burson, 85 Law Bul., 280, and State ex rel. v. Davis, 35 Bul., 387, holding that laws in relation to the construction of roads and bridges in a certain locality are local laws, and as they are a subject of a general nature, are therefore repugnant to sec. 26 of art. 2 of the constitution, which ordains that “all laws of a general nature shall have a uniform operation throughout the state;’’ aud that the statute on which this proceeding is based (88 O. L., 658) was unconstitutional, and does not warrant us in granting the relief prayed for.

Fred Hertenstein, for the Relator.

Spiegel, For alter & Bendigs, Contra.

It seems also to be invalid on the principles announced in the case of State ex rel. v. Broerman, 35 Law Bul., 213, viz., that “it is an assumption of powers over the affairs of a county not possessed by the general assembly,” it is administrative in character, and not legislative.

The demurrer will therefore be sustained,and the petition dismissed.


text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Nov. Term, 1894.)
    Before Smith, Swing and Cox, JJ.
    FARIN v. DeGOLIA.

      Set off — Right to set off one claim against another claim in hands of assignee thereof — Acknowledgment of justness of claim, when no estoppel.—
    Where a claim against another is assigned by the holder thereof to a third party,and the'debtor at the time has a larger claim against the'assignor, he may set up his own claim against that in the. hands of such assignee, and he is not estopped from doing this by^the fact that he acknowledged to such assignee the justness of the assignor’s claim against himse'f, without asserting his own claim, 'where such assignee was not induced by such acknowledgment to buy the claim against him, it appearing that he, at the time he made the acknowledgment, was not aware of his legal right to set oil his own claim against that of such assignor.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

A majority of the court is of the opinion that it very clearly appears from the bill of exceptions in the case which sets out all of the evidence taken on the trial of the case in the court of common pleas, that at the time of the assignment of the claim sued on, by Howland to DeGolia & Webster, the plaintiffs below, the defendant Farrin, had an existing claim against Howland in the nature of a set-off or counter-claim to an amount far exceeding the claim assigned by Howland to DeGolia & Webster, and sued on in this case, and that under the provisions of section 5077, Revised Statutes, the two demands, notwithstanding the assignment of his claim by Howland, must be deemed compensated so far as they equal each other.

Marsh & Ritchie, for Plaintiff in Error.

Gobb & Howard, for Defendant in Error.

Some discredit is thrown upon the assertion of this claim by Farrin by the fact, which appears, that he had on various occasions, after the assignment of the claim by Howland to DeGolia & Webster, acknowledged the justice of it, and perhaps promised to pay it, and did not assert his counter-claim or set-off. But we think his explanation of this is satisfactory, viz., that he did not know that he could assert his claim against Howland, against his assignees, to satisfy their claim, until so advised by his attorney long afterwards. There is no pretense that DeGolia & Webster were led to purchase the claim from Howland on the faith of any of these statements or admissions of Farrin, and there is therefore no estoppel.

We think the verdict was against the manifest weight of the evidence, and that the court erred in refusing to grant a new trial..

The judgment will be reversed, and the cause remanded to the court of common pleas for a new trial.

Judge Swing dissents.


author: Bentley, J., (Orally).

text:
    (Sixth Circuit—Wood Co., O., Circuit Court,
    April Term, 1894.)
    Before Bentley, Scribner and Haynes, JJ.
    EPHA ROBINSON et al. v. GEORGE F. ALLBEE and ROSETTA ALLBEE.

      Deed by aged people made in consideration of being tahen care of, etc.,—

    In actions to set aside deeds of this kind, courts always look into the circumstances of the case and size of things which in other cases might not appear of great moment, to see whether there is any inequity.
    Appeal from the Court of Common Pleas of Wood county.
   Bentley, J., (Orally).

This cause cumes into this court on appeal from the judgment of the court of common pleas rendered in the action. The plaintiffs, as heirs at law of one Frederick Rickard and Mary Rickard, ask the court to set aside a certain deed made by Frederick and Mary Rickard to the defendant, George F. All-bee, on the 25th day of June, 1892, upon the ground that when this deed was made the grantors' were incompetent to make the same, being old people and mentally infirm and incapacitated; that their deed should not be allowed to stand; also upon the ground that the deed being made upon consideration that defendant Allbee should maintain and support the grantors during their lives or the life of either ot them, and provide suitable funeral for them when they died, furnishing them during their lives or the life of either of them with everything necessary for their comfort; that the contract thus made was unfulfilled; that Mr. Allbee failed to comply with the requirements of the contract he had thus made, and it is also claimed that the deed itself was procured by the exercise of undue influence upon the part of Mr. Allbee over the grantors, by which they were induced to make and deliver the same. The defendants, husband and wife, deny the allegations of the petition regarding the incapacity of the gr .ntors to execute that deed; denying the^exercise of any undue influence by the defendants or either of them by which the deed was obtained ;and they also deny that there was any failure to carry out the provisions of the contract. The case ■ was tried in this court upon the pleadings and the evidence introduced by the parties respectively.

It appears from the evidence that this deed was made on the 25th day of June, 1892, and delivered at that time; that concurrently with the making and delivery of the deed a written contract was entered into between Frederick Rickard and George F. Allbee, whereby in consideration of the making and delivery of this deed and the turning over by Frederick Rickard to Mr. Allbee of certain personal property, Mr. Allbee agreed to do the following things, that is, the contract provides that, “The said George F. Allbee hereby promises and agrees to and with the said Frederick and Mary.Rickard, that he will suitably provide for the said Frederick and Mary Rickard for and during their natural lives or the life of either of them, providing them with a suitable and proper home on said farm where they now live, with all necessary and suitable provisions, fuel, wearing apparel, nursing and care in sickness and medical attendance, and at their death a respectable funeral and tombstones at the grave of each of them, to cost about $80.00 It is understood that said second party shall do, or cause to be done, all of the work in and about the. farms occupied by said Frederick and Mary Rickard, including the cooking of all their provisions,and also that he shall furnish food for one cow. It is further understodoh and agreed that at the death of Frederick and Mary Rickard, said second party shall cause their bodies to be properly and decently buried in the W--■ — cemetery in Sandusky county, Ohio, and their graves properly marked with the tombstones above mentioned.”

And this is the contract, which it is said, was not fulfilled by Mr. Allbee. At the time of the making of the contract and of the deed the defendants executed and delivered to Rickard a mortgage back upon the premises, securing the fullfilment on their part of the terms of this contract. The parties, after the making and delivery of these instruments, continued to reside in the house on the farm conveyed by the deed until January, 1893, when the said Frederick Rickard died,and a little less than a month thereafter, May,his wife, also died, and it is shown that the plaintiffs are the heirs at law of Frederick Rickard.

When the contract was made, in June, 1892, Mr. Rickard was an old man, between 75 ad 80 years of age, and, while he had considerable vigor as a man of his age, like old men of that age, naturally, he was somewhat feeble in mind. His wife, some years younger than himself, was, at the time, mentally deranged, but resided in the house with him.

It is claimed by the plaintiff that Mr. Rickard for some time prior to this occasion, in June, 1892, had become so weak and feeble ’ in intellect that he could not understand the nature of this contract which he was thus making. There is some proof tending to show and showing that about that time and within a month or two afterward his memory had become somewhat impaired, so that, as is usual in persons of extreme old age, the recent things did not impress themselves upon his mind, as did the things of long ago. It seems he was capable of recalling clearly the things of earlier years, but his memory was not so good as to recent years. It is shown by the testimony that on certain occasions and quite frequently the old man would cry. Some of the witnesses, most of the witnesses, say that these occasions would be when he was recounting some circumstance of his life or was remembering some old associates, and some of the witnesses say that on some occasions he would cry without any apparent good reason for his emotion.

Some of the plaintiffs testify, in general terms, that, having seen him about these times, in their opinion, he was incapable of fully understanding the kind of contract he made in June, 1892, and that some time after that, on-various occasions, he expressed himself as dissatisfied therewith, and made certain other expressions which, as he made them, indicate, perhaps, that he would desire to make some other arrangement than the one he had made. The great bulk of this general testimony regarding his incapacity is ■given in depositions by the plaintiffs themselves. While other witnesses who spoke of him, detailed some of these ■characteristics or weakness on the part of the old man, their testimony does not go to the extent that the testimony of the plaintiffs does in showing this feebleness of mind on the part of the old'man. It is shown in the testimony that very shortly after the making of this contract, I think on the 27th of June, two days after the contract, one of these witnesses came with the old man to Bowling Green to the probate judge of that county, and on his application to the probate judge appointed the old man as guardian for his wife; and sometime after this, in August, of 1892, Mr. Rickard walked the distance from his farm to the village where the nearest railroad station was, and made the necessary .arrangements himself for a visit to his relatives in the state of New York, made the journey alone, and visited at various houses among his relatives there, stayed there several weeks, and during the time certain of his relatives sent him upon •errands, seemed to entrust him- with 'doing certain matters as if at that time they recognized his capacity at least to do •ordinary chores and things about the house.

We think, from the whole testimony -bearing upon his-conduct, and this habit that he had of crying on occasions, it fairly appears that his sensibilities had become considerably tender; that he had no control over-his emotions, but that this crying was almost invaribly occasioned by his recounting of some of the circumstances of his life or recalling to memory old acquaintances; and while on such occa- • sions a person in vigorous intellect would not ordinarily thus give way to his emotions, yet it is in the experience of all of' us that there is a great difference in persons regarding this-matter; it does not necessarily indicate entire breaking down of the intellect, nor such a mental failing as to show that the person is incapable of understanding the ordinary transactions of life.

Remember, this was an old man, and the feebleness of age-alone is not sufficient to set aside the contract or agreement or deed which an old person may enter into, unless some-other things occur. The old man and his wife never had any children. They lived alone, and they had taken to bring up- and live with them the defendant George Allbee, when he-was a small boy, taking him from an infirmary, and keeping' him with them until he arrived at the age of majority. It does not appear that Rickard had any relatives in this part of the country, his relations being, so far as the testimony shows, in the state of New York. As old age came upon him and he had leisure to reflect upon these matters, the testimony indicates that from time to time his mind would revert to these relatives in the state of New York, and the natural and asked some of them to come and make some arrangement by which he should be taken care of. No arrangement of the kind was made, and in August, 1892, after making' this contract, he makes this visit to his relatives in New York. No change in the general provisions for his life was' made when he was there among his relatives, and in the situation that this old man found himself in, with a demented wife, separated from his kindred who had not visited him for 20 years, it would be quite natural that, in reflecting" upon these matters, his sensibilities should be somewhat disturbed and that these reflections, coupled with the weakness- and helplessness of old age, might naturally cause his emotions from time to time to get the better of him, and while-it would appear to a person not interested who should see-him break down and weep on these various occasions that it was without cause, and therefore an indication of mental malady, yet by the person who realized the situation of the-old man weeping on these occasions might not be justlv so regarded.

The whole testimony, taken together, we think comes far short of indicating that this old man when he made this-contract was incapable of understanding it. Soon after-wards he told his relatives in New York exactly what he had. done, and seemed to understand and remember the terms of the contract and the situation in which he was placed, and: while one of them says that he expressed regret that the arrangement was not made with him instead, proof of that is made only by the testimony of that person himself, he being-one of the plaintiffs. The testimony shows that Allbee, thedefendaut, while not, perhaps a man of exceeding industry and energy, yet while he lived in the community and resided! with these old people, he maintained a good reputation in every other respect, and was fairly industrious and did the things that seemed to be necessary to do. At any rate, he. lived on good terms with the old people for many years;; seemed to be regarded by them in the place of a son, and,, when he became of age, there was a sort of settlement made1 with him; the old man gave him a sort of setting out usual» in old times when a boy was apprenticed, and the young man-took his departure, and went some little distance and engaged in labor, and finally was married; married a daughter of one of his employers. After a while, in about a year, he-came back(evidently by an arrangement with the old people), and stayed nearly a year with them, and then went away and was gone several years, and was living apart from the old couple in the fall of 1891, having then a wife and several children. At that time the old man visited him where he lived, and requested him to come and make some sort of arrangement whereby he should take the property belonging to the old man, and take care of him and his wife during the time in which them should live, and, in fact, do the-things which were afterwards mentioned in this written contract. It is shown that the old man then offered to deed: him the property outright, even before he should come, and; while that may be claimed as an evidence of mental weakness, it is to be remembered that this young man at that-time stood to the old man almost in place of a son,never having had any difficulty, being upon good terms, and the old' man evidently having the fullest confidence in him. The-young man then suggested to Mr. Rickard that perhaps it would be better, in view of the fact that he had several children and that the old gentleman and lady were not especially acquainted with his wife, that they had better come without making any permanent arrangement in the first place, and see how they should get along, and then in time they might enter into a contract.

In the fall of 1891, All bee moved on this place, and began ¡living in the same house with these people, bringing his ■wife and children. Things proceeded properly, so far as any testimony indicates, between the young people and the old people until the summer of 1892, when they had then lived there several months.

Then from the uncontradicted testimony delivered to us, fit appears that from time to time the old man suggested "that it would be proper to have this thing put in writing in proper shape, and the young man, instead of being exceedingly anxious to get the property into his hands and to get ■the title to it, delayed and put it off, saying he was busy •with his work, etc.; and so matters run along with no con“tract in writing at all until shortly before June, 1892. Then the old man, it seems, after special consultation with the young man, went to the office of a lawyer with whom he was .acquainted and told him what he wished drawn up, and •afterwards, on the 25th of June, 1892 the old man himself -suggested that that was the proper time to go and have these papers executed. The young man yielding to that, went ■with the old man and lady to the office of the lawyer, and ■these papers were then drawn up and fully explained to them, -and while it is said that the old lady at that time was not ^mentally sound, yet when her attention was called she could 'hold her mind upon a matter and seemed to understand it •for the moment, but would seem to soon get off from it; but ■the old man seemed fully capable of understanding the contract and desirous of entering into it. These contract papers were drawn up and signed and delivered,and the parties continued to reside together as before.

Now, it seems to us that the testimony would not at all warrant us in finding that these contracts ought to be set aside on account of any mental infirmity of the old man, or •any incapacity on his part to understand them. It is true that these contracts are regarded with great scrutiny by the courts, and properly so. Courts at all times look into the •circumstances of the case and size of things which in •other matters might not appear to be of great moment as to reason for setting them aside where there is any inequity, sometimes even regarding a failure to comply with the contract of this kind as being the non-fulfillment of a sort of condition of the deed itself, although no condition was expressed in the deed. Some lawyers refuse to draw contracts of this kind at all when applied for, on account of the fact that a great many times trouble arises from them, and they do not want to have anything to do with it, and do not wish to entourage it. On the other hand, it is known that sometimes •old people find themselves in the condition where they really desire something like this; they have a little property, and have no other way of making any arrangement whereby their old age can be made comfortable. It is entirely proper that the court scrutinize any arrangement of this kind and see that it is fairly understood and fully carried out, but to hold that such agreements are not tobe upheld at all, would in many instances be a cruelty to the old people,and deprive them of the only disposition of their property which they could make íd order to make their old age comfortable. In this case it seems that instead of a refusal to draw the contract, the terms were made so explicit and the charge made upon the property itself in such away that it would be impossible that any great injustice should be accomplished. It is not a case where the grantee could make over this title to some stranger and refuse to fulfill his contract.

Now, what we have already said would indicate that in the judgment of this court it cannot be at all fairly said that this old man was unduly influenced or hoodwinked or deceived into the making of this deed. It was a matter of his own suggestion, and, if it was fairly carried out, we are not able to see that it was an improvident arrangement for the old man to make.

The remaining question is, whether or not the contract was fairly carried out. After the death of the old people.a neighbor, an intelligent man, a witness before this court upon the trial, was appointed administrator of the estate. He seems to have known something of the family, and been at the house during the time that these people lived together, and when the young man brought the receipts showing that he had complied with the contract regarding funeral expenses and erection of tombstones provided by the contract, he, without hesitation, canceled this mortgage, declaring that it had been fully and faithfully performed, and he says as a witness upon the stand, that he did that. There is some testimony tending to show that some criticism was made upon the young people on account of the way that they treated the old lady. That is, that they had some pickets put in, a sort of a partition in a large room, and the old lady was kept there for the most part behind these pickets; but it appears that some sort of protection was necessary considering her condition. She was liable to run off, go away; she was liable to injure herself; she was liable to put her hands into the téa-kettle, etc., so it became necessary that something be done to protect her, and here was this man having his work to do upon the farm, his wife with several children and housework to attend to, and it would be impossible without hiring a person especially, to keep the old lady out of danger without taking some such precaution. The pickets were put up, as it was thought by some, a little too low, and upon suggestion being made of that kind, they were increased in height, but that she ivas ever injured or ever in danger of being injured thereby does not appear. She ate with the family, and as far as we can determine by the testimony, she was taken care of as well as, under the circumstances, could reasonably be expected.

Baldwin & Harrington, for Plaintiff.

L. K. Hollenbeck and Thomas N. Bierly, for Defendant.

The testimony of Mr. Allbee, given id an apparently very candid manner, goes a great ways to convince the court that so far as he was able to, he complied with the provisions of this contract and fairly kept the terms of it on his part to provide comfortably for these old people, and we see no cause whatever for depriving him of the property or for setting aside these conveyances that this property may go to the plaintiffs who claim it in this action.

Judgment of the court will be in favor of the defendants. The petition will be dismissed at the cost of the plaintiffs.