text:
    PROSECUTION FOR. FALSE ARREST.
    Circuit Court of Hamilton County.
    Edward Simper v. Lillie Carroll.
    Decided, June 5, 1909.

      False Imprisonment — Action for Damages on Account of — Competency of Evidence as to Nervous Effects Resulting from — Motive of Plaintiff — Defendant Liable for Natural Consequences of Arrest — Newly Discovered Evidence as a Ground for New Trial.

    1. Newly discovered evidence, if cumulative only, or such as might have been discovered with reasonable dilligence, is not availablé as a ground for a new trial.
    2. One causing an arrest to be made is liable for the natural and probable consequences of such arrest.
    3. It is competent for a plaintiff in an action for false arrest to testify as to the effect of the arrest upon her mental and nervous condition.
    4. Where the facts upon which an action for false arrest are based are sufficient, the motive prompting the bringing of the action is immaterial.

      Jerome D. Creed, for plaintiff in error.

      Bates & Meyer, contra.
    The defendant in error, plaintiff below, examined some rings at the jewelry store of Edward Simper with the view of purchase, as- he was led to believe. Before she left the store it was discovered that one of the rings was missing. What was said when this discovery was made led to a demand on the part of the wom'an, as Simper claimed, that she be searched. Simper thereupon called up police headquarters and two detectives responded, who -took the woman to the city, hall, where after satisfying themselves that the ring was not in her possession she was allowed to go without any charge being entered against, her. Thereafter a petition was filed by her against Simper, which contained the following averments:
    “On or about December 12, 1904, defendant caused plaintiff to be arrested, and taken to a police station and searched, and deprived of her liberty for two hours unlawfully and with force on a pretended accusation of larceny, to her damage in the sum of $2,500, for which she asks judgment with costs. ’ ’
    In the court below a verdict was returned for the plaintiff for $500, upon which judgment was entered. To this judgment error was prosecuted.
    Gikeen, P. J.; Swing, J., and Smith, J., concur.
   Newly-discovered evidence to be available on a motion for a new trial must be neither cumulative nor such as might with reasonable diligence have been obtained at the trial. All of the alleged newly-discovered evidence is open to one or both of these objections.

If the defendant caused the arrest of the plaintiff, then what the police said and did in her presence while she was detained in pursuance of such arrest was competent to bind the defendant, especially when it was the natural and probable consequence of the arrest as in this case.

There was no error in permitting plaintiff to testify 'to her mental and nervous condition as the direct result of the arrest. The following question was put to the plaintiff on cross-examination :

“Are you prosecuting this suit to get money or to get your reputation back?”

It is immaterial what the motive of a litigant may be in prosecuting an action provided the facts upon which it is based are sufficient in law. The objection to the question was properly sustained.

The question ruled out on page 38 of the bill of exceptions, is covered substantially by the next question, and hence no prejudice resulted. The two questions at page 124- of the bill were properly ruled out because calling for a conclusion and not a fact. The testimony at pages 131 to 137 was. admissible in rebuttal.

If the defendant unlawfully detained the plaintiff in his store until the police came, whether at his or her request, and whether she was searched at his or her own request, such unlawful detention was the efficient cause and rendered the defendant liable. ITence that part of the charge of the court excepted to by counsel for defendant correctly states the law.

We find no prejudicial error in the record, except that the damages in the -absence of malice are excessive, and a remittitur of $200 will be ordered, and if not consented to the judgment will be reversed.


source: Caselaw Access Project

license: Public Domain

text:
    SALE OF DRUGS BY PHYSICIANS WHO ARE NOT PHARMACISTS.
    Circuit Court of Cuyahoga County.
    John R. Vincent v. State of Ohio.
    Decided, June 14, 1909.

      Physicians — Sales of Drugs or Pharmaceutical Preparations 5y a Physician from his Own Store — Not Within his Business as a Physician, When — Exceptions to Criminal Statutes — Negative Averment not Necessary, When — Section 77 of the Act of May 9, 1908 (99 O. L., 507).

    A physician who sells from his own drug store, or a store in which he is a part owner, drugs, chemicals or poisons to one or for the use of one who is not. his own patient, does not in so doing act within the business of a physician, and if he be not a pharmacist or assistant pharmacist such action subjects him to the pains and penalties provided by statute where such sales are made by others than pharmacists or assistant pharmacists.

      William Howell, for plaintiff in error.

      Charles P. Hine, contra.
    Marvin, J.; Henry, J., and Winch, J., concur.
    Error to the Court of Common Pleas.
   The plaintiff in error was- prosecuted before a justice of the peace upon an affidavit which charged:

“That on or about the 8th day of October, A. D. 1908, at and in the county of Cuyahoga and state of Ohio, one John R. Vincent not being then and there a pharmacist legally registered under the laws of the state of Ohio, and not being then and there a legally registered pharmacist under the laws of the state of Ohio, did then and there unlawfully sell a certain poison to-wit, tincture of iodine, to Prank H. Frost, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio. ’ ’

As a result he was found guilty. Error was prosecuted to the court of common pleas, where the judgment of the justice was affirmed. It is sought here to obtain a reversal of the judgment of each of said courts.

The' prosecution was under Section 77 of the act of May 9, 1908, found in 99 O. L., p. 507. That section reads:

“No person not a legally registered pharmacist, shall open or conduet a pharmacy or retail drug or chemical store, either as proprietor or manager thereof, unless he has in his employ and places in charge of such pharmacy or store a pharmacist legally registered under the laws of this state. No person not a legally registered pharmacist shall compound, dispense, or sell any drug, chemical, poison or pharmaceutical preparation upon the prescription of a physician or otherwise; but a legally registered assistant pharmacist may compound, dispense or sell any such drug, chemical, poison or pharmaceutical preparation, when employed in a pharmacy or drug store under the management and control of a legally registered pharmacist. ’ ’

Section 78 of the same act provides for the punishment of him who violates the provisions of Section 77.

By Section 79 of the same act, it is provided that:

" The preceding two sections shall not apply to the business of a physician, or prevent him from supplying his patients with such medicines as to him seems proper.”

It is urged that the affidavit in this ease is defective in that it fails to negative the proposition that the sale charged was not done in connection with the business of a physician, or fails to aver that the party charged was not a physician. This contention is not sound. The provision as to the business of a physician, and as to such physician supplying his patients with such medicines as to him seems proper, is in a separate section of the statutes, and is not used in connection with the definition of the offense.

In the case of Hale v. State, 58 Ohio St., 657, the court in speaking of this matter of negative averment says:

“The test appears to be that when an. exception or proviso in a criminal statute is a part of the description of the offense, it must be negatived by averment in the indictment in order to fully state the offense, but where its effect is merely to take certain persons or acts out of the operation of the general prohibitory words of the statute the negative averment is unnecessary. "

And in the same case this language is used:

“An indictment which charges a violation of the general prohibitory provision makes a prima facie case, and if the accused, or the act with which he is charged, comes within any clause of the proviso, that is a matter which- lies more especially within his own knowledge and should be brought forward by him in defense.”

The facts in this case show that the plaintiff in error is a physician; that he is interested in a drug store; that he is not a pharmacist or assistant pharmacist, legally registered; that he made a sale of a drug at this drug store to the party named in the affidavit at the time named; that the medicine was not furnished to any patient of his, and was not done in his business as a physician. It is urged that because he is a physician and that the drug business carried on at the store where this sale was made is partly owned by him, that he comes within the proviso, that Section 77 shall not apply to the business of a physician. This is clearly unsound. The business of a physician in its ordinary-use means the professional business of a physician, that is, the practice of the profession of medicine. To hold that this language as used in the statute would include way other than the professional business of the physician would lead to absurd consequences. Physicians are not prohibited from engaging in banking, merchandizing, manufacturing, or any other lawful business, but in no proper sense can the business of banking, merchandizing, manufacturing and the like be called the business of a physician.

We reach the conclusion that there was no error in the judgment of the court of connnon pleas, and the same is affirmed.


text:
    RAILWAY RENDERED A COMPETITIVE LINE BY VIRTUE OF ITS CONNECTIONS.
    Circuit Court of Franklin County.
    State, ex rel Attorney-General, v. The Hocking Valley Railway Co.

    Decided, July 21, 1909.

      Monopoly and Discrimination in Railroad Rates — Arising from a-Joint Guaranty by Competing Railway Companies of Coal Company Bonds —Such a Transaction not in the Nature of a Tonnage Contract, When — Test as to Whether Railway Lines are Competing — One Line in Competition with Another by Virtue of Its Connections, When — Doubts as to the Powers Granted under Corporate Franchises Resolved in Favor of the State — Decision,p of the United States Supreme Court not Controlling on the State Courts, When.

    1. Where a court is called upon to construe a corporate franchise at the suit of the state granting it, all doubt will be resolved in favor of the state and against the grantee.
    2. An Ohio court is bound to follow the decisions of the courts of this state, as distinguished from those of the United States Supreme Court, where only state statutes and policies are involved and no federal question arises.
    3. The guaranty of the bonds of a coal company by a railway company can not be construed as a tonnage contract, but is in the nature of monopoly and leads to discrimination where under a permissive clause a competing railway company is brought in to share the guaranty on condition of an equal division of the traffic arising from the mines of the company issuing the bonds; and where such a guaranty exists, it is an unlawful exercise of power, i
    4. The state is not bound by the fact that the contracting parties to an illegal agreement are satisfied therewith, but may inquire whether others and especially the. public at large are prejudiced thereby.
    5. The Kanawha & Michigan railway is by virtue of its connections a competing railway with the Hocking Valley in the broad and practical sense, and the acquirement by the Hocking Valley Railway Company of a majority of the stock of the Kanawha & Michigan was illegal.

      U. G. Denman, Attorney-General; Smith W. Bennett, E. C. Morion and Freeman T. Eagleson, for plaintiff.

      James H. Hoyt, Doyle, Lewis & Shauffelberger and C. O. Hunter, contra.
    Allread, J.; Sullivan, J., and Dustin, J., concur.

       For previous opinion in the same case, see ante, p. 49.

   Upon application of counsel for the railway company a rehearing has been allowed upon two propositions, viz., the discontinuance of the guarantee of the coal companies, and the competing character of the K. & M. Railway Company.

The propositions involved in the rehearing have been argued with great earnestness and ability by the respective counsel, both orally and by supplemental briefs.

These questions were somewhat overshadowed in the former decision, by the main question of the right of the railway company to hold the stock of the subsidiary coal companies, and the court has therefore reviewed and considered these propositions anew, in view of their importance and in the light of the present argument.

The “commodities clause” decision, which was announced by the Supreme Court of the United States, pending this rehearing, has been cited for its bearing upon the question of the bond guaranty, and has been considered by the court upon the main question of stock ownership in the coal companies.

The court is of opinion that the ‘ ‘ commodities clause ’ ’ ease involved the application of different principles and may, therefore, be distinguished from the ease at bar.

The railway companies there, had the charter power, expressly granted and held valid by the state, to hold the coal company stocks, and the act of Congress was in derogation of the power so granted by the state. In view of its conflict with the rights granted and held valid by the state, and of defeated amendments during the passage of .the act expressly forbidding stock ownership in subsidiary companies, the court applied a strict construction of the “commodities clause,” so as to avoid grave constitutional questions and preserve as far as possible the state charter.

In the case at bar the state denies the power, and the court is called upon to construe the charter at the suit of the state granting it. The uniform rule of construction in cases of this kind is to resolve all doubt in favor of the state and against the grantee.

This is the uniform trend of the Ohio cases. Taft, J., in Humboldt Mining Co. v. Milling Co., 62 Fed., 356, 361, says:

“There'is no court in the country which has been stricter in enforcing the principle that corporations are prohibited from exercising any powers, which are not expressly conferred upon them in their charters, or which are not fairly incidental to the express objects of their creation, than the Supreme Court of Ohio.”

The doctrine is aptly stated by Mr. Justice Brewer, sitting in circuit in the case of Chicago, etc., Ry. Co. v. Union Pac. Ry. Co, 47 Fed., 22:

“All grants, even grants of corporate franchises,- are construed strongly in favor of the government, and against • the grantee. So when the state challenges the action of one of its corporate creatures, it may insist on clear warrant for such action.”

We think the distinction between the principles applicable here, and those of the “commodities” case clearly warranted. But even if the “commodities” case be in conflict and incapable of reconciliation, 'the court is bound to follow the decisions of our own state, where as in this ease no federal question arises, and where only state statutes and policies are involved.

In this connection the case of Stockton, Atty.-Genl., v. Central Railroad Co., 50 N. J. Eq., 52, may be cited as strikingly similar to the case at bar. The claim was there made, as here, that the ownership of a majority of the capital stock of the coal companies by a railway company did not vest, the railway company with the ownership or control of the coal companies, and the claim was characterized by the chancellor as a “disguise and evasion. ’ ’ And as to the monopoly formed by the union of the coal and railway companies, said:

“ The commodity in which these three companies deal is a necessary of life in this state. It is the principal fuel of its homes and factories. The slightest increase in its price is felt by a population of hundreds of thousands of persons, for their necessity compels them to pay that increase. If once a complete monopoly is established by the destruction of competition, whether that be through lease or by co-operation, the promoters of it and sharers of it may have whatever prices their cupidity suggests. The disaster which will follow can not be measured. It will permeate the entire community, furnaces, forges, factories and homes, leaving in its trail murmurings of. discontent with a government which will tolerate it and all the evil effects of oppression.”

It is urged by the counsel for the railway company that the guaranty of the bonds of the coal companies, and the contract between the railway company and the Continental Coal Company for the equal division of the shipments, is a proper and authorized method of obtaining business and therefore within the charter of the railway company as an implied and incidental power. .

Tonnage contracts, as such and without other features, have been generally if not universally upheld. The following eases to that effect are cited by counsel for the railway company: Ry. Co. v. Furnace Co., 37 O. S., 321; Interstate Commerce Commission v. Ry. Co., 209 U. S., 108; Ry. Co. v. Hooper, 160 U. S., 514; Bald Eagle Valley Railroad Co. v. Nitteny Valley Railroad Co., 171 Pa. State, 284; Lough v. Outerbridge, 143 N. Y., 271; Temple Street Cable Ry. Co. v. Helman, 103 Cal., 634; Old Colony Railroad Corporation v. Evans, 6 Gray, Francis Mass., 25.

In Railroad Co. v. Furnace Co., supra, the question of discrimination was eliminated by the finding of the jury in the trial court, and the contract was upheld as a tonnage contract. The question of public policy and the rights of the public were not involved in the case as presented in the Supreme Court.

In the case of Interstate Commerce Commission v. Railway Co., supra, the decision was based upon the finding that the rate in question had been fixed upon actual genuine competition and in good faith. The question raised by the Interstate Commission was whether it was proper to fix a different rate for live stock than upon packed beef. And upon the finding as to competition it was held that-a different rate ip. a different elass did not affect the validity of the rate so fixed upon actual competition in the same class. In none of the other eases cited does the question of public policy arise.

Now is the contract for the guaranty of the coal company bonds, and the equal division of the shipments of the Continental Coal Company merely a tonnage contract?

In one view it may be said that the guaranty of the bonds was to enable the coal company to obtain more money, to buy more •mines and ship more coal. But in a broader sense and in the view evidently adopted by the railway company the underlying and dominant feature was the control of the coal production and transportation and the ultimate restriction of competition. This was the declared purpose of the promoters of the re-organization and the evident result.

The written contract of the Continental Coal Company was first made with the Toledo .& Ohio Central Railway’ Company. This contract standing alone, might, with some plausibility, be said to be one of tonnage. But under a permissive clause of that contract, the Hocking Valley, a competing company, is brought in by a contract between that company and the Toledo & Ohio Central Company providing for a joint guaranty of the bonds of the Continental Company and an e*qual division of the traffic.

We do not see how the conclusion can be escaped that such an agreement between naturally competing railway companies tends to monopoly and leads to discrimination. The vice of illegality taints and vitiates the contract and renders the transaction void as against the state. The charter of the defendant was granted and extraordinary powers conferred for the public good and it should not, therefore, be used to accomplish an unlawful purpose.

It is contended that all public’purposes are accomplished by forbidding the stock holding, and that it is not necessary nor competent to terminate the bond guaranty which has been executed and is outstanding.

This question has given the court a great deal of trouble. But our conclusion is, that the guaranty being an unlawful exercise of power, and that a complete separation of interest and identity can not be had while the guaranty exists and the railway company remains interested in the financial operation of the coal company and while the coal, company’s stock is pledged with the fiscal agents of the railway company, the state has the right -to have the whole relationship severed. It is no defense to the railway company to plead'the rights of third parties, nor that the illegal act has been executed.

The court agrees with counsel, that it has no jurisdiction to determine in this action the rights of the bondholders. The suggestion in the original opinion as to the validity of the bonds as against the property of the railway company was employed in an effort to distinguish the decision by Lurton, J., in the Hocking Valley case, reported in 87 Fed., 815, from the case at bar. It is clear to the court that the rights of the bondholders can only be determined when an appropriate suit is brought, wherein they are made parties. Whether, therefore, the bondholders can exact of the railway company the full amount with interest to maturity, or whether the vice of ultra vires affects the validity of the bond, is not now for decision. But as against the railway company, the state has the right to call upon the defendant, as an alternative to save its charter, that it purge itself of the illegal act.

It is also urged that the portion of the contract providing for an equal division of the tonnage of the Continental Company, is not set out in the amended petition as a foundation for relief. But we think the tenth cause of action, as to the agreement for discrimination between all the railway and coal companies, reaches this issue.

It is contended that the Continental Company and the railway-companies, being satisfied, the agreement should not be disturbed. The state, however, is not bound by the fact that the contracting parties are satisfied, but may inquire whether others and especially the public at large are prejudiced, or whether the contract tends to prejudice them. The tendency of this contract is toward discrimination against other operators in which the railway company is not interested, and through such discrimination to affect the body of consumers.

Taking up the question of the competitive character of K. & M. Railway and the Hocking Valley Railway, it may be conceded that if Athens be accepted as the terminus of the Hocking Valley, and the K. & M. be considered independently of its connections, there would be little support for the claim that the two railways are competing lines. But we think the view may. be somewhat enlarged, and treated upon a more practical basis.

The charter of the Hocking Valley Company describes its line as “extending from the city of Toledo, by way of Gallipolis to the city of Pomeroy, * * * together with all branches or sidings of said railroad. ”

From the charter, therefore, as well, as the general situation disclosed by the evidence, it appears that the main line of the Hocking Valley extends from Toledo to the Ohio river, and that the extension to Athens is a branch.

The K. & M. charter describes the initial terminus of its railway as the village of Corning, and thence extending by way of Jacksonville, Athens and Middleport to the Ohio river at Point Pleasant, and into West Virginia, by way of Charleston to the Gauley river.

It may fairly be assumed that the chief commercial importance of the village of Corning as a starting point of a railway was, its being the terminus and connecting point of the Toledo & Ohio Central Railroad. The El. & M. Railway is a coal carrying road, extending from the Hocking Valley district to the Kanawha district of West Virginia, and reaching the markets through its connections, largely, the Toledo & Ohio Central. The K. & M. Railway was, naturally, adopted by the Toledo & Ohio Central Company as a connecting branch, and the adoption made more permanent by the Toledo & Ohio Central Company acquiring and owning a majority of its capital stock.

The Toledo & Ohio Central Railway Company was authorized by the letter and spirit of Section 3300, Revised Statutes, to acquire the stock of the K. & M. Company, as they were not competing but connecting and continuous lines, and extended thereby the competitive influence of the Toledo & Ohio Central from Corning through the coal district to Athens and -the Ohio river. This acquisition of stock by the Toledo & Ohio Central Company and its virtual ownership and control of the K. & M. was not only legal, but subserved the public interest by extending the field of competition.

It is claimed that the trackage contract between the Hocking Valley Company and the EL & ML for the joint use of the track along the Ohio river between Gallipolis and Pomeroy, which contained a clause forbidding the K. & M. taking any business off the Hocking Valley lines to or 'from any point on the.Hocking Valley lines, except Athens, so limited competition along the Ohio river, as to leave nothing substantial between the two companies. There is some obscurity as to whether the BL & M. had the right to take business off the Hocking Valley lines for the Toledo & Ohio Central connection and points beyond. Mr. Conners, superintendent of both railways, states that the K. & M. with the Toledo & Ohio Central connections was in competition with the Hocking Valley at Ohio river points and at Athens, for Columbus, Toledo and intermediate points. And we are of opinion that it fairly appears from the evidence, especially from the fact of the K. & M. line touching the Ohio river at Point Pleasant, and coming near at Hobson, that the K. & M. was in a position, independent of the trackage, to compete with the Hocking Valley for the business coming down the Ohio river, and also at Athens, for the markets of Columbus, Toledo and intermediate points accessible to both railways.

While the K. & M. and Toledo & Ohio Central were connected by stock ownership, and operated in alliance, a shipper at Athens or upon the Ohio river had a choice of routes and the benefit of competition. By the transfer of the majority of the stock of the K. & M. from the Toledo & Ohio Central to the Hocking Valley, all competition from the Ohio river and across Southern Ohio to the Toledo & Ohio Central connection was swept away, and all that territory brought under the influence of the Hocking Valley alone. The purchase by one railway company of the majority or controlling stock of another is tested as to its validity, by Section 3300, Revised Statutes, which authorizes such ownership when the lines are conecting and non-competing. The acquisition of this stock by the Hocking Valley from the Toledo & Ohio Central is not within the permissive authority of the statute, nor sanctioned by public policy, because the K. & M. Railway, considered with reference to its Toledo & Ohio Central connection, was a competitive road with the Hocking Valley, and the act of the Hocking Valley in the acquisition of said stock was illegal.

In the Hafer case (4 O. D., 478), the C., J. & M. Railway Company was declared to be a competitor of the Cincinnati, Hamilton & Dayton Railway Company between Cincinnati and Toledo, although the former depended for its entrance into Cincinnati upon a trackage arrangement, temporary in its nature.

In East Line & Red River Railway Co. v. Texas, 75 Tex., 34, the finding of fact entered by"the trial court was, that disregarding connections with other lines, those involved in the purchase were not competing, but with reference to the connections they were competitive. Upon this finding the court held the railways were competitive lines.

Still more nearly in point is the case of State, ex rel Atty.Genl., v. Montana Railway Co., 21 Mont., 22, where the connections were considered in determining the question of competition.

The broader and more practical view of competition adhered to in the eases cited, has been established as the rule of this state in the Vanderbilt case, 37 O. S., 590.

The claim is made that the rule of public policy in this state has been supplanted by the State Railway Commission Act. On the other hand, it is claimed that the commission act is supplemental to the existing laws. We do not find it necessary to express an opinion on this subject, as the offenses were committed and the suit brought before the passage of the act.

We therefore conclude that the K. & M. Railway Company in its broader and more practical sense is a competing road with the Hocking Valley. And 'that the Hocking Valley Company did not have the right to acquire and hold the majority stock of that railway company.

The former decision is therefore adhered to.


text:
    CONSTRUCTION OF CONTRACT FOR. SALE OF GOODS.
    Circuit Court of Hamilton County.
    National Bed Company v. Charles M. Bates.
    Decided, July 17, 1909.

      Commissions — Action for Recovery of — Sales—Contracts—Construction of Agreement in the Light of the Business Engaged in — Intention of the Parties.

    The contract 'for the sale of goods, involved in this case and on which it is sought to recover commissions, is held to have been an agreement to purchase during a certain period a certain amount in moneys’ worth of certain kinds of goods, the exact goods to- be agreed upon within the period specified; and until an agreement was reached as to the exact goods to be purchased, there was no contract in which the legal relations between the'parties was determined.

      Charles McCamic and F. M. Williams, for plaintiff in error.

      Charles B. Wilby and Mitchell Wilby, for defendant in error.
    Swing, J.; Smith, J., concurs; Giffen, P. J., dissents.
   This cause is in this court on error to .the judgment of the superior court. In that court Bates brought an action to recover commissions on a contract for the sale of goods made by the bed company. Bates sold the goods of the bed company in Cincinnati and Kentucky.

Bates alleged in his petition that the bed company agreed to fill all orders for its goods procured by him and accepted or approved by the bed company. He further alleged that he procured certain contracts which were accepted and approved by the bed company, but that the bed company violated its contract with him, that it discontinued making the goods and that it refused and still refuses to ship and deliver the goods sold by him.

Bates sets out in his petition the several sales made by him under his contract with the bed company. He alleged “that according to the terms of his agreement with the defendant he was to receive on the invoice price of all goods that were shipped, less the freight, a commission of five per cent, except where a reduction was made in the price and in the commission by special agreement. ’ ’

Bates sets out in his petition thirteen-sales or contracts of sale which he had procured for the bed company. At the end of each he alleges, “wherefore there is due to the plaintiff by the defendant as his commission on said order the sum of $--•. ’ ’ He alleges that no part thereof has been paid, and prays for judgment for the total sum alleged to be due.

The bed company answered alleging that by the terms of the contract between it and Bates, Bates was to be paid commissions on goods that were actually shipped, and that on all goods actually shipped Bates had been paid his commissions. It further denied that it made contracts as severally alleged to have been made in .the petition.

It is practically agreed that the contract made between the parties was that Bates was to be paid his commission “on goods actually shipped,” and that, he had been paid his commissions on all goods that have been actually shipped. The present action is one for commissions and not for damages for a breach,_.pf contract.

It would, on principle, necessarily seem to follow that Bates can not recover in this action. He has been paid all the commissions he has earned under his contract. If the bed company had violated its contract, Bates in a proper action and under proper allegations and proper proof would be entitled to recover whatever damages he proved he had sustained, and certainly what he would receive as commissions would be very strong evidence to prove the amount of the damage, but by the very terms of his contract he can only recover commissions on goods that are actually shipped, and as he sues for commissions and not damages he can only recover for commissions.

Are the contracts alleged to have been procured' enforeible contracts ? The following is "the contract of the Queen City Tin Ware Company:

“Gentlemen — Kindly enter our contract for $20,000. Gray two coat white lined first quality like samples submitted, we to have control of this ware in our city, Newport and Covington private label, specifications to follow. Contract expires November 5, 1907. Discount, 80, 71/2 per cent, freight allowed to our city. Dated November 5, 1906. Queen City Tin Ware Co., O. D.”

As a part of this contract the following is added: “Goods to be taken out as wanted. ’ ’ All the other contracts are of similar import. In considering this question the surrounding circumstances should be taken into consideration in order to understand the intention of the parties.

The bed company was a manufacturer of enameled ware, such as coffee pots, pans, etc., making over five hundred different shapes and patterns. The parties with whom the alleged contracts were made were wholesale and retail dealers, selling their ware every day. The questions involved as to the nature of this contract were fully and ably argued by learned counsel on either side, orally, and this has been supplemented by able and elaborate briefs in which the authorities are cited at length. We may say that the authorities have not been uniform, but it will not be our purpose to distinguish them or in fact to cite any of them, but after a careful consideration of them to state our conclusions.

Judge William Markby, in his concise and profound work, “Elements of the Law,” gives this definition of a contract:

• “A contract is the concurrence of several persons in a declaration of intention, whereby their legal relations are determined.”

It may be said that it is of the highest importance to the business interests of our country, that when parties enter into a contract, the contract should be enforced where the intent of the parties can be ascertained, but tested by the definition given by Judge Markby, what is the declared intention of the parties whereby their legal relation is determined? These contracts were to run one year. It was an agreement to take so many dollars worth of ware within this time, as wanted, and as specified. The specifications might include over 'five hundred different articles, or it might be one of the five hundred. The party agreeing to purchase might want the articles at any time within the year. The bed company was a manufacturer of these articles, and of course it could not know what particular kind of goods the purchaser would want or when he would want them. The articles were not in existence at the time the agreements- were made.

This agreement must be read in the light of the business that each was engaged in. The dealers were engaged in selling their goods daily and the manufacturer made the goods for daily consumption, and yet by the terms of the agreement the purchasers were not bound to take any goods until the last day of the year, and untibthat time he was not bound to specify what kind of goods he would take and the manufacturer could not know what particular kind of goods should be' made so as to fill the order when it came, if it should on the last day of -the contract.

It follows, therefore, that the particular goods to be purchased was not known to the parties at the time the agreement was made, and was not a part of the agreement, and, as- to this the concurrent declarations of the intentions of the parties had not been made; but it is clear that it was not the intention of the parties that the agreement contemplated that the provision in the agreement that the goods could be ordered as wanted and as specified, up until the last day of the year, and yet such is the exact reading of the agreement. It would seem manifestly unjust and contrary to the intentions of the parties that the purchaser could on the last day of the year send in an order for particular goods, and if the order were not filled, recover damages for a breach of the contract. That this was not the intention of the parties seems clear from the way the business was carried on and the correspondence between Bates and the bed company.

As we read this contract it amounts to this, that it was an agreement to purchase during a certain period a certain amount in money’s worth, of certain kind of goods, the -exact goods to be agreed upon within that time, and that until the agreement was reached as to the exact goods to be purchased there was- no contract in which -the legal relations between the parties was determined.

Judgment reversed.


author: (Dustin, Sullivan and Allread, JJ.).

text:
    LOAN CHARGED AGAINST DEVISE.
    Circuit Court of Madison County.
    J. W. Goodson, Executor, v. Thomas Goodson.
    Decided, March 29, 1909.

      Parent and Child — Devise of Real Estate — Loan to Son Charged Against Devise — Contract Written in Third Person — Construction of Receipt.

    Where- a father, after executing a will containing provision for all his children, furnishes to one son a sum of money, under the receipt following: “Received of G nine hundred dollars ($900) to be taken out of his estate, (signed) T. G.”

      Held: That after the father’s death the amount furnished was properly chargeable against the devise to the son.

      A. T. Cordray and McCloud & Lincoln, for plaintiff.

      George W. Wilson; contra.
   By the Court

(Dustin, Sullivan and Allread, JJ.).

This action was brought in the court of common pleas by the plaintiff in error to recover of defendant the amount of an alleged loan and to charge the amount against a devise of real estate.

A demurrer was sustained to the petition and final judgment rendered. The case is brought here by petition in error.

The petition in the court below sets forth that plaintiff’s decedent, George Goodson, devised certain real estate after the death of his wife to his son Thomas (the defendant), and certain other real estate to his son John; that the personalty was devised to the testator’s daughters, and that after the execution of the will the testator loaned to Thomas, who was then insolvent, $900 under agreement -that Thomas was to repay it out of any portion of the father’s estate the son might receive, and that said loan was evidenced by the following receipt:

“London, Ohio, April 13th, 1900.
'“Received of George Goodson nine hundred dollars (900) to be taken out of his estate.
“Thomas Goodson.”

We think the rights of the parties may be determined by a construction of this instrument in the light of surrounding circumstances.

The signing of the receipt by Thomas, and its preservation by the father by fair inference sustains the view that he (Thomas) was in some way to be charged with .the amount. This inference is supported and strengthened by the clause.“to be taken out of his estate.” The clause alludes to a future event or occasion. It.can not, fairly, be held to refer to the delivery of the money to Thomas, or the taking of it out .of the father’s hands. That had already been done and no obligation or receipt of Thomas was necessary to accomplish that object. The terms contemplated a future adjustment or settlement of the amount receipted for. The term ‘ ‘ estate ’ ’ is often used with reference to one’s property after death. An order, draft or cheek implies that the amount is to be charged against the drawer, although not expressed.

That Thomas was to be charged with the amount of the receipt- may be implied and read into the receipt, as is done in case of bank checks. •

There is, we think, a fair inference that Thomas was to be charged with the amount of this receipt, to be taken out of his father’s estate upon distribution, or at the-time he came into enjoyment of it and it was charged to. him (Thomas). The word “his” before estate might and does refer to Thomas, as contracts are often written in the third person, and we think the construction given by us is the most tenable.

While we think the plaintiff is not entitled to a personal judgment, yet it is appropriate that the amount be charged .in equity upon the real estate devised to Thomas.

The petition justifies this relief -and to that extent states a cause of action.

The judgment below is therefore reversed, with instructions to overrule the demurrer.


text:
    PROOF AS TO QUALITY OF GOODS SOLD.
    Circuit Court of Hamilton County.
    The Mihalovitch-Fletcher Company v. William H. Bartlett.
    Decided, June 26, 1909.

      Sales — Quality of Goods Sold — Alleged Breach — Evidence that is Insufficient to Establish a Contract or Its Breach.

    The filing of an affidavit charging that the goods sold did not come up to the contract does not prove breach of contract, nor does the fact that the plaintiff pleaded guilty to the charge of adulteration prove that the goods were adulterated.

      Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.

      Johnson & Levy, contra.
    Swing, J.; Giffen, P. J., and Smith, J., concur.
   Plaintiff’s right to recover in this action in the court of common pleas depended on proof of the fact that the goods sold did not comply with the laws of Pennsylvania.

It seems to us that the proof in the record is not sufficient to establish this fact. The filing of an affidavit in the courts of Pennsylvania charging that these goods as not coming up to the requirements of the law of that state does not prove or tend to prove that the goods did not comply with the law and the fact that the plaintiff pleaded guilty to the charge does not prove the fact of the adulteration.

The petition does not contain a charge that the goods did not comply with the laws of Pennsylvania, but both parties seemed to have tried the case on the theory that it did. For these reasons we think the judgment should be reversed and the cause remanded .to the court of common pleas for further proceedings according to law.

Our construction of the contract would wari ant the recovery of the damages claimed if the breach of the contract had been proved.


text:
    SUBJECTING REAL ESTATE TO PAYMENT OF DEBTS OF ANCESTOR..
    Circuit Court of Coshocton County.
    Milo S. Ling v. Adam Strome, Administrator, et al.
    Decided, May, 1909.

      Quieting Title — Right of Owner of Estate in Remainder to Bring Proceeding — •Liability of Land to Payment of Debts of Ancestor — Application of the Statute of Limitations — When the Statute 'Begins to Run — Sections 5779, 6137, 4981 and 4985.

    Inasmuch as liability to have title by descent divested by a proceeding to subject the land to payment of debts of the ancestor is cast upon the heirs by statute, such a proceeding is not exempt from the statute of limitations, but must be brought within six years from the discovery by the administrator of the fact that the personalty is insufficient to pay the debts; and after the running of the statute it\is the right of an owner of an estate in .remainder, though not in possession, to bring an action to quiet his title in said estate against the claims of the administrator.

      J. C. Daugherty and J. C. Adams, for plaintiff.

      E. Z. Hay and C. B. Hunt, contra.
    Taggart, J.; Voorhees, J., and Metcalf, J. (sitting in place of Donahue, J.), concur.
   This case is in this court by appeal and was heard upon an agreed statement of facts. The action is for the quieting of the title to the interest which plaintiff claims in lot No. 11 in the village of Warsaw, county of Coshocton and state of Ohio.

The defendant, Adam Strome, is the administrator of Charles Senft, deceased, and the other defendants are the heirs at law of Christian Strome. A brief summary of the facts will disclose the question involved.

Christian Strome obtained two judgments against Charles Senft in the year 1874. In 1888 Charles Senft died seized of lot No. 11 in the village of Warsaw, and leaving surviving him his widow, Barbara Senft, and certain heirs at law. These heirs' at law by their deeds conveyed all their interest in this lot so as to vest the title in the plaintiff, subject to the life estate of the widow, Barbara Senft. There seems to be no question made as to the title of the plaintiff in the remainder after the termination of the life estate of the widow.

The defendant, Adam Strome, was appointed administrator of the estate of Charles Senft in May, 1894. No assets came into his hands to be administered, and at said date it was known to him that there was no personal estate to be administered, and this fact was made to- appear' in his application at the time of his appointment.

On July 31, 1894, an action in revivor was brought, on these two judgments against the administrator and heirs of Charles Senft, deceased, and the judgments were .revived as against them. The plaintiff, Milo Ling, having an estate in remainder, commenced this action, asserting in his amended petition that the defendant, Adam Strome, as the acting administrator of the estate of Charles Senft, threatens -to subject the estate and interest of the plaintiff in said property to the payment of these alleged judgment claims. He further avers that none of the defendants have any vaild claims or interest in said premises whatever by reason of said alleged judgments or otherwise, and said pretended claims are unfounded and are a cloud upon his title.

The administrator files an answer and makes this . averment: Defendant says that the title of plaintiff in said lot No. 11 in said village of Warsaw is subordinate to the rights of this defendant as administrator of the estate of Charles Senft, deceased, to sell said lot to pay the debts of said decedent. And defendant further says that as the administrator aforesaid it is his official duty to sell the same, which he intends to do immediately upon the death of said widow, Barbara Senft, and to apply the proceeds of such sale to the payment of the debts of said decedent, to-wit, these judgments.

So that there is the assertion on the part of the plaintiff that the defendants claim an interest, estate or right in and to the property of the plaintiff, to-wit, lot 11.

Section 5779 is the section in respect to quieting title:

“An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, ior the purpose of determining such adverse estate or interest; or such action may be brought by a person out of possession, having or claiming to have an estate or interest in remainder or reversion in real property, against any person who claims to have an .estate or interest' therein, adverse to him, for the purpose of determining the interests of the parties therein.”

And the Supreme Court has said that this interest or claim may be determined for the purpose of settling all doubtful claims, and that there may be repose as to the rights of parties- in and to real estate. There is in this ease assertion upon the part of the defendants that they proposed to subject if possible the interest of plaintiff in this lot to the payment of the debts of Charles Senft, deceased, and that said lot is- liable for said debts. That being so, it falls clearly within the second clause of that section of the statute.'

Now it became the duty of the administrator under Section 6136 to apply to the courts for power and. authority to sell land of the deceased to pay debts. When did this right accrue to him? The section provides:

“As soon as the executor or administrator shall ascertain that the personal estate in his hands will be -insufficient to pay all the debts of the -deceased, with the allowance to the widow and children, for their support, twelve months, and the charges of administering the estate, he shall apply to the probate court or the court of common pleas- for authority to sell the real estate of the deceased.”

Section 6137:

“In order to obtain such authority, the executor or administrator shall commence a civil action in the probate court-or the court of common pleas of either the county in which the real estate of the deceased or any part thereof is situate, or of the county in which were issued his letters testamentary or of administration. ’ ’

So that in 1891 this administrator had information that the personal estate was insufficient to pay the debts- of the deceased. It then became his duty and his right to go into either the probate court or -the common pleas court, of this county, apd by a civil action obtain authority to sell this land to pay debts. That being so, this property was cast upon the heirs, through whom the plaintiff in this ease obtains title, subject only to be divested by a court of competent jurisdiction granting authority to the administrator to sell it for the payment of debts.

Now, it is insisted that he has no right in consequence of the lapse of time, to sell this land to pay debts, and that is the foundation of the plaintiff’s claim.

As to this contention, we think unquestionably the plaintiff is right. We think the right of the administrator to commence his proceeding is limited, either to six years or to ten years. It does •not make any difference in this case which statute of limitation obtains. But the question arises: Does the statute of limitations obtain in respect to this class of proceedings? We think the Supreme Court has spoken on the subject and authoritatively.

We call attention to the case of Webster et al v. Bible Society, 50 O. S. at page 9, wherein Williams, J., speaking for the court, uses this language:

“It is well settled since the code, and was so before, that only those eases of technical, 'continuing, and subsisting trusts, which are within the proper, peculiar, and exclusive jurisdiction of courts of equity, are exempt from the operation of statutes of limitation. Other trusts, which might be the ground of an action at law, have always been subject to such statutes.” Citing Okey, Judge, Carpenter v. Canal Co., 35 O. S., 317, and cases above cited.

-If this civil action whereby the administrator could obtain authority to sell land to pay debts is within the operation of the statute of limitations, the question then obtains, What section of the statute is it that would be a bar ?

Section 4981 provides the limitation is six years on “an action upon a liability created by statute, other than a forfeiture or penalty.” The laws of descent and distribution casting upon the heirs the real estate, the liability to have the land taken from them and applied to the payment of the debts of the ancestor, is one created by statute. It required the enactment of a statute to confer upon the administrator a right to proceed to sell the land, take it frojn the hw? and apply it to the payment of debts. No such right existed at common law. No such right existed prior to the enactment of the statute. Therefore, it may well be said to be a liability created by statute.

But assuming that this section of the statute does not control, the general statute for limiting the time of actions, Section 4985, would control, “an action for relief not hereinbefore provided for, can only be brought within ten years after the cause of action accrues. ’ ’ This cause of action accrued in 1894 when the administrator had knowledge that there was no personal property that was applicable to the payment of debts, and it was necessary to take this property and apply it to the payment of debts.

More than ten years before the commencement of this suit has elapsed from the time this administrator was appointed, and he has done nothing, and he is still asserting the right to subject this lot to the debts of the decedent; either section of the statute would obtain, and there is no right existing in his favor as against his property. The attention of counsel is called to the 5 N. P.—N. S., 403, wherein we think the reasoning of Judge Hunt is very persuasive to our minds that the statute of limitations obtains.

That being the ease, then, no right existing in this administrator to proceed to sell this property for the payment of debts, which he could successfully maintain by a civil action, and he asserting that he has such right and other defendants contending that he should proceed in that way, the plaintiff is entitled to the relief prayed for, and a decree may be entered in favor of the plaintiff as against these defendants.

Exceptions will be noted and twenty days may’be given for special findings of fact. Motion for a new trial is overruled and exceptions noted in that regard.


text:
    PETITIONS UNDER. THE JONES RESIDENCE LOCAL OPTION LAW. .
    Circuit Court of Hamilton County.
    J. Elbert Thomas v. Leopold Markbreit, Mayor of the City of Cincinnati.
    Decided, April 3, 1909.

      Liquor Laws — Construction of Section 2 of the Jones Local Option Law —Time for Filing Second Petition and for the Talcing Effect of the Mayor’s Decision.

    By the provisions of the Jones residence local option law a petition may be filed under Section 2 at any time after two years from the filing of a petition under Section 1, but the decision of the mayor under Section 2 can .not take effect until two years after his decision under Section 1.
    In the matter of the petition against prohibition of the sale of intoxicating liquors in a residence district (part of Winton Place) in the city of Cincinnati, Vice-Mayor Galvin rendered the following, opinion:
    “Under the provisions of what is commonly called the Jones law, being the act passed March 2, 1906, it is- provided in Section I that whenever a majority of the qualified electors of a residence district in a municipal corporation shall sign a petition in favor of prohibiting the sale of intoxicating liquors as a beverage in such district and file the petition .with the mayor or with a judge of the court of common pleas of the county in which the municipal corporation is situated, the mayor or judge shall examine the petition at a public hearing and decide whether a majority of the residents of such district have signed the same, and cause a copy of his decision to be filed with the clerk of the municipal corporation or council.
    “Under this section, on the ,10th day of January, 1907, a petition for a certain residence district embracing a part of what was-formerly Winton Place was filed in the mayor’s office. Thereafter this petition was found to contain the signatures of a majority of the residents of the district, and thereby under the provisions of the law, the said district became ‘dry’ or in the language of the states, ‘the sale of 'intoxicating 'liquors as a beverage’ in said district became' prohibited and unlawful.
    “Section 2 of the same law provides that any time after two years shall have elapsed after the filing of a petition provided for in Section 1 of the act, another petition may be filed by a majority of the qualified electors against prohibiting the sale of intoxicating liquors as a beverage in such district, and upon a similar hearing before the mayor, or a judge of the court of common pleas, and a finding that a majority of the qualified electors of such district have signed the same, it shall be prima facie evidence that the sale of intoxicating liquors as a beverage in such residence district is not then and there prohibited.
    “Under the provisions of this section, on the 13th day of February, 1909, a petition was filed in the office of the mayor against prohibiting the sale of liquor in the same residence district.
    ‘ ‘ This petition is signed by more than half of the residents of the district and it is conceded by the-contestants that more than a majority -of such residents have signed the same, and that the signatures are regular and the petition in proper form.
    “The contestants however make one objection, and that is that the petition should not be entertained because it is filed before the time authorized by law.
    “More than a majority of the residents of the district having signed the petition, the mayor must make the certificate to that effect, unless as claimed by the contestants, the mayor has no jurisdiction to entertain the petition because filed before the time provided.
    “Section 2, if taken alone, clearly gives the right to a majority of persons in a residence district declared ‘dry’ under Section 1 to file a petition making the territory ‘wet’ again any time after two years from the filing of the petition under the first section.
    “It is clear, therefore, to my mind that notwithstanding the provisions of law that the mayor or judge may wait forty days from the filing of the petition before making an order, and notwithstanding the provision that the territory shall not then become dry for thirty days thereafter, making seventy days after the filing of the petition when the territory really becomes ‘ dry, ’ nevertheless a second petition may be filed against the territory continuing ‘dry’ after the lapse of two years from the filing of the petition, although this may be seventy days less than two years after the territory really becomes ‘dry.’
    “It is claimed however that Section 6 of the act means that when a territory has been declared ‘dry,’ -it shall so continue for two full years. I do not think that this section affects the time within which a petition under Section 2 shall be filed with the mayor or judge of the common pleas court, and I am not called upon to construe that section or to determine whether the territory once declared ‘dry’ shall remain ‘dry’ for two years notwithstanding the filing of a petition under Section 2, and the finding of the mayor that said petition is signed by a majority of the qualified electors of the district. It may be possible that the construction put upon Section 6 by the counsel for the contestants, that it meant ‘to give the petitioners under Section 1 two full years of undisturbed privilege under their petition,’ may be upheld, and that the territory shall remain ‘dry’ for two years notwithstanding the filing of a petition before the expiration of two years against prohibiting the sale of liquor in the territory. I am not called upon to determine in any way, and I express no opinion as to the meaning of that section, but it is certain that under this law and under the provisions of Section 2 a majority of the qualified electors of the district may sign a petition against prohibiting the sale of liquor in the district and file the same with the mayor at any time after two years shall have elapsed from the filing of the petition upon which territory was declared ‘dry.’
    “It therefore follows that the petition having been filed after the time allowed by law, and containing decidedly more than a majority of the qualified electors of the district, that the finding must be made, certifying to the clerk of council that fact, and the same will be done.”
    Following the above decision the case was taken to the circuit court, where the subjoined decision was rendered:

      J. D. Creed, Fred P. Muhlhauser and Yeatman & Yeatman, for the petitioner.

      George W. Crabbe, for the contestants.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The only question involved in this application for leave to file a petition in error is, whether a petition under Section 2 of the act of March 22, 1906 (98 O. L., 68), was prematurely filed with the mayor of Cincinnati.

That part of Section 2 applicable to the question is as follows:

“The petition provided for in this section shall not be filed until after two years or more shall have elapsed after the filing of the petition provided for in Section 1 of this act. ’ ’.

While it is plain that the provision permits a filing of a petition at any time after two years from the filing of a petition provided for in Section 1, it does not attempt to limit the operation and effect of the decision of the mayor or judge upon the original petition. This is provided for in Section 6 as follows:

“And the law shall remain in full force and effect in said .residence district for two years and thereafter until another petition is presented under the provisions of Section 2 of this act.”

This provision does not mean that the law, under the decisions of the mayor or the judge, shall remain in force only until another petition is presented under Section-2; but at least two years and thereafter also, unless another petition is presented. It seems to contemplate a filing of the petition at such time as a decision thereon would not conflict with or annul the decision rendered under Section 1. The petition under either section amounts to nothing until approved by the mayor or judge, and it is his decision that gives effect to the law, which according to Section 6 shall operate for at least two years from the time the petition is held sufficient by the mayor or judge. The decision of the mayor or judge is, in the language of the act, only prima facie evidence, and a later one can not annul a former one, the duration of which is determined by.the act itself.

It seems clear, therefore, that a petition under Section 2 may be filed at any time after two years from the filing under Section 1, and it is equally clear that the decision of the mayor under Section 2 can not take effect until two years after this decision under Section 1. Leave to file petition in error denied.


text:
    PASSENGER. STRUCK BY CAR HE WAS SIGNALING TO STOP.
    Circuit Court of Franklin County.
    Maurice Meeker v. The C., D. & M. Traction Co.
    Decided, July 1, 1909.

      Negligence — Rule as to Going upon Track 'of Electric Road in Open Country — Last Chance — Pleading as to Subsequent or Willful Negligence.

    Where an intending passenger signals an interurban car to stop in the open country, he is presumed to know that the car may be run- ■ ning at a high rate of speed or that his signal may not be observed in time to stop, and he is therefore bound to observe reasonable care for his own safety; and if while leaning over or standing upon the track he is blinded by the headlight, and as a consequence misjudges the distance or speed of the car and is struck by it, he is guilty of contributory negligence, and in the absence of any allegation of subsequent or willful negligence as a ground for recovery the doctrine of last chance does not apply..

      J. R. Horst and E. G. Lloyd, for plaintiff.

      C. C. Williams, contra.
    Allread, J.; Sullivan, J., and Dustin, J., concur.
   The plaintiff sought tó recover damages from the defendant for personal injury. The injuries were received by him in an effort to signal and stop a car upon which he intended to take passage. At the time of signalling the car he stood just beyond the rail outside the track and leaned over the rail so as to be more readily observed by the motorman and .signalled by waiving a handkerchief. The signal was not answered and the ear continued at the usual rate of speed. The plaintiff claims that he was blinded by the glare of the headlight and did not withdraw his person from the position over the rail until too late to avoid the car, which struck him, inflicting serious injury.

The court of common pleas at the conclusion of the plaintiff’s evidence instructed the jury to return a verdict for the defendant, which was done. Error is now prosecuted here.

The question here is as to whether the plaintiff’s evidence establishes contributory negligence.

The negligence of the traction company in not observing or ‘heeding the plaintiff’s signal and stopping the car may be conceded. But it was also incumbent upon the plaintiff to use due care. Terminal Co. v. Hancock, 75 O. S., 88.

When the plaintiff approached the railway to signal he was presumed to know that the car might be approaching at a high rate of speed — as it is authorized in the open country — and that his signal might not be observed in time to stop. He-was therefore bound.to observe reasonable care for his own safety.

A railway track is always regarded as a place of danger and calls for a proportionate amount of care, and the rule is not different as to a traction company running in the country, from that of a steam company. Electric By. Go. v. Lohe, 68 O. S., 101; Terminal Go. v. Hancock, 75 O. S., 111.

It is contended that the plaintiff was misled by the glare of the headlight and misjudged the distance as well as the speed. This danger the plaintiff observed when he first came upon the tracks, and instead of relieving him ‘from the imputation of contributory negligence added to his duty of care. He was bound to use-care in proportion to the added peril. B. & O. R. R. Co. v. McClellan, 69 O. S., 142.

The plaintiff concedes that he knew by the custom that a signal to stop would be recognized, if a stop is to be made, by a signal by the motorman, and that he had been unable to obtain this signal of recognition from the motorman. He was therefore chargeable with knowledge that his signal was unobserved, or for some other reason not acknowledged, and that the ear was approaching at its usual speed. He knew also, or was fairly chargeable with knowledge, of his inability to see the car or judge its speed; under these circumstances he was not justified in remaining on the track or dangerously near, until the car struck him, and his remaining in the way of the car when his view was blinded by the glare and when he was unable to judge the distance of the car was at his own peril. Common ordinary prudence would suggest the safer course, of keeping out of 'the pathway of the car and not to take unnecessary risk.

Counsel for the plaintiff urge the doctrine of “last chance”; that is, that the traction company knew or ought to have known of the plaintiff’s peril in time to have avoided the injury, and neglected to do so.

Subsequent or willful negligence must be pleaded and set forth in the petition as a grounds for recovery, to be available. Drown v. Traction Co., 76 O. S., 234; Railroad Co. v. Lockwood, 72 O. S., 582; Traction Co. v. Johnson, 10 C. C.—N. S., 467.

We have carefully analyzed the second amended petition and are inclined to the opinion that it does not set forth subsequent or willful negligence as a ground of recovery. But at any rate the evidence does not make out a case of willful or subsequent negligence. It did not appear that the motorman, even if he saw the plaintiff, knew that he was within the pathway of the car or knew or was presumed to anticipate his failure to step away from the front of the car. Railroad Co. v. Kistler, 66 O. S., 340; Traction Co. v. Johnson, supra. And it is only when the motorman knew or was bound to know from the situation, that the plaintiff was unable to step aside or get out of the pathway of the car or did not intend to do so, that his negligence became willful or subsequent.

The evidence fairly shows concurrent negligence of both the plaintiff and the defendant contributing to and producing the injury, and this justified the action of the common pleas court in instructing the jury to return a verdict for the defendant, and the judgment should be affirmed.


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    BREACH OF CONTRACT FOR. THE SALE OF CATSUP.
    Circuit Court of Hamilton County.
    J. Weller Company v. Columbia Conserve Company.
    Decided, July 24, 1909.

      Sales of Catsup — Action for Breach of Contract for the Sale of — Shortage in Measurement — Belay in Payment — Waiver—Charge of Court —JSrror—Custom and Usage — Pleading.
    1. Where no waiver is pleaded as to the most important of the breaches of a contract, it is error to charge the jury that the defendant had no right to rescind the’contract if he had waived all the breaches of its material provisions.
    2. If catsup had been sold by the barrel, and the testimony shows that it was customary and necessary to run the catsup into barrels and close them up while hot, there is an implied agreement between the parties that the shrinkage shall be borne by the purchaser.
    3. And if there is a provision in the contract that the measurements shall be made at the place of shipment, it amounts to a condition precedent, and a refusal by the buyer to be bound by this provision justified the seller in repudiating the whole contract.

      Phares, Gusweiler & Phares, for plaintiff in error.

      Paxton, Warrington &. Seasongood, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   This action is based upon an alleged breach of a contract of sale of 600 barrels of catsup at 16% cents per gallon f. o. b. ears Cincinnati, terms — cash ten days, less one and one-half per cent. Delivery to be made seventy-five barrels at a time, as follows : October 1, 8, 15, 22, 29 and November 5, 12 and 19, 1906. Barrels to be tightly coopered, and to be correctly gauged, and goods to be billed at net measurement. The failure to deliver the balance of the installments after delivery of the first two, constitutes the alleged breach of the contract.

The plaintiff, the Columbia Conserve Company, also avers full performance on its part. The defense is an alleged breach by the plaintiff in making payment long after the ten days from shipment, in deducting one and one-half per cent., and in deducting as shortage 199 gallons on the first car. ducting as shortage 199 gallons on the first car and 220 gallons on the second car.

Plaintiff, by reply, admits delay in payment a few days beyond the period of ten days and deduction of one and one-half per cent., but avers that the delays were with the consent of the defendant. It is nowhere averred, however, that the defendant consented to or waived the alleged breach in deducting 419 gallons from the amount billed. Upon the question of waiver the court charged the jury as follows:

“If the defendant waived all breaches of the material items and provisions of this contract committed by the plaintiff, then the defendant had no right to rescind the contract and refuse to carry out its part thereof, and by so doing rendered itself liable to respond in damages to the plaintiff.”

No waiver was, pleaded to the most important breach by the defendant, and hence it was error to give, this instruction. Insurance Company v. Baldwin, 62 O. S., 368.

The following special instruction was given to the jury before argument at the request of plaintiff:

‘ ‘ If you find from the evidence that the plaintiff made certain deductions from th'e amount of the defendant’s invoice on account of a claim of deficiency in the amount actually delivered you are not to take such deductions as a breach of contract sufficient to justify a rescission by the defendant, unless the deductions so made were made in such a way as to evince a renunciation of the contract by the plaintiff and a refusal to abide by its terms. ’ ’

In view of the evidence that the measurement was made and deficiency ascertained by the plaintiff at Indianapolis where the cars were unloaded, .the words “actually delivered” contained in this instruction would naturally lead the jury to believe that delivery was to be made' at Indianapolis, although the court after argument instructed the jury in the general charge that the contract required delivery at Cincinnati, the place of shipment, and they might well find that the measurement thus made was correct, and therefore the deductions thus made did not evince a renunciation of the contract by the plaintiff.

Assuming that the question was one,to be submitted-to the' jury, there was left to the jury too much room for speculation as to what way of making deductions would evince a renunciation of the contract. If the conduct of the plaintiff in measuring the catsup at Indianapolis instead of Cincinnati, and deducting in accordance with measurement regardless of what loss occurred between such points, showed an intention on the part of plaintiff to treat subsequent shipments in the same manner, it evinced a plain renunciation of the contract in one of its important elements, which justified a recision by the defendant.

The same objection may be urged to special instruction No. 6 which, after quoting the terms of sale, time of deliveries and manner of gauging and billing goods, reads as follows:

“Before the seller under the contract is entitled to discontinue shipments and claim a cancellation by reason of an alleged breach on the part of the buyer, there must have been such breach on the buyer’s part as evinced an intention not to be bound by the contract as a whole.”

Just what particular breach or number of breaches would evince such intention the court does not say, although it does 'say in conclusion of this instruction:

" The mere fact that the discount was deducted after ten days had elapsed was not such a breach of the contract of sale as would warrant the defendant in refusing to continue deliveries. ’ ’

The provision of the contract that the guage or measurement of thé catsup should be made at the place of shipment is a material incident amounting to a condition precedent to any shipment, and if the plaintiff refused to be bound by this condition the defendant was justified in repudiating the whole contract.

This principle is announced in the case of Norrington v. Wright, 115 U. S., 188:

“In a mercantile contract, a statement descriptive of the subject-matter or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, or condition precedent, upon the failure or non-performance of which the party aggrieved may repudiate the’whole contract.”

The retention by the plaintiff of the one and one-half per cent, discount does not come within the rule, although we do not question the decision of Supply Co. v. Cement Co., 4 C. C.—N. S., 225, upon the facts there disclosed. We are of opinion therefore that these two instructions were misleading and prejudicial. The question whether the barrels should be filled, measured and bunged up while the catsup is hot or after cooling was fairly presented by special instruction No. 5 requested by the defendant, and there being no like instruction in the general charge it was error to refuse it.

The plaintiff gives no good reason for delaying payment several days beyond the ten days allowed, and the fact that its own measurement of the catsup at Indianapolis shows an outage of precisely two gallons in every barrel of the one hundred and seventy-seven shipped except four is convincing proof that the barrels were full when bunged up, and that the two gallons outage represents the shrinkage in cooling.

The testimony fairly shows that it was customary and necessary to run the catsup into the barrels and close the same while hot. It was impliedly contemplated therefore by the parties that the shrinkage should be borne by the purchaser. It follows that the verdict was not sustained by sufficient evidence.

Judgment reversed and cause remanded for a new trial.


text:
    ASSAULT BY A CONDUCTOR. UPON A PASSENGER..
    Circuit Court of Richland County.
    B. & O. Ry. Co. v. William Reed.
    Decided, 1909.

      Torts — Assault upon a Passenger by a Railway Conductor is Within the Scope of His Authority, When — Company Liable for Punitive as Well as Actual Damages — Master and Servant — Charge of Court —Error—-Purpose of Sections SJ/3S and SJfiJf.

    A different rule applies to assault by a conductor of a railway train upon a passenger in transit upon his train, than to ordinary cases of injuries inflicted by servants acting in other capacities; and where a conductor makes an assault upon a passenger whose conduct is peaceable and who is not violating any of the rules of the company, he must be held 'to have acted within the scope of his authority and to have rendered the company liable for punitive as well as actual damages.

      Cummings, McBride & Wolfe and F. A. Durban, for plaintiff in error.

      Douglass & Mengert, contra.
    Donahue, J.; Taggart, J., and Voorhees, J., concur.
   This proceeding in error is brought to reverse the .-judgment of the common pleas court in an action brought by William Reed against the Baltimore & Ohio Railway Company for damages inflicted upon his person by the conductor of one of the railway company’s trains, while he was en route as passenger on. said train from one station to another, and for delaying him in his journey and compelling him to leave his car against bis will before the termination of his journey. The trial in the common pleas court resulted in a verdict for Reed; the motion for new trial was overruled and judgment entered upon the verdict.

The plaintiff in error contends that there was error in the admission of evidence of William Reed as to what occurred at Chicago Junction, but looking to the petition we find that it not only charges damages for 'the injuries received in the assault which he claims the conductor made upa» him,.but algo'for. being compelled to leave the train at that point. So that we think that evidence was pertinent to the issue and was properly admitted.

It is also contended that there was error committed by the trial court in permitting the plaintiff’s wife to testify as to what plaintiff was going to do with the pocket-book. Turning to page 45 of the record, we find -the following:

• , /‘-Q. What was he going to do with it ? A. Why, gi-ye it to the-conductor. ” . ■ •

To which question defendant objected and moved that, thq answer be excluded, which objection and motion the court sustained and instructed the jury not to consider the answer..

“Q. Do you know where he went to putting the pocket-book in his pocket ? A. Pie told me he was going —•
'“Court: You must not testify to anything he'may have said to you. The jury will not consider the answer.”

It is apparent that this evidence was not admitted and that this, contention of the plaintiff in error is not sustained by the record. . -

The next contention, and a more, serious, one, is that the charge of the court is erroneous. It is claimed that;'it violates the doctrines announced in the 72d O. S., 586, but with that contention we dp.not agree. In fact, .we think the only serious question raised upon .this charge, is in reference to that part of it wherein ..the-court charges as follows:

“An obligation rested on the- defendant on'the -24th day of .March, 1906, being then and there a common carrier -.of passengers, to carry the plaintiff, if he was then a.passenger on s-aid train, safely and promptly from the city of-Mansfield, Ohio, to his destination on this road, and if the defendant entrusted this duty to servants, the law holds the defendant responsible' for the manner in which it executes it. A carrier is bound to protect its passengers from violence from, its own servants in charge of its trains while.in transit.”

If that portion of the charge is correct, then there was no errbr in refusing the special request of the plaintiff in error, nor' is the charge open to the other objection raised against it. We’- are pf the-opinion that a-'different rple applies to-assaults by a'’eonductor iu charge -of a train upon passengers in. transit''upon.their train, than in the ordinary case .of injuries inflicted.by. servants in other capacities. That is to say, as a matter of .law,', it 4s-a part of the duty of that conductor, who is a servant, of the'Company, to carry out the contract made.by the'compauy with the passenger to carry the passenger tó his destination and to protect him as far as possible -from injuries,'either from'accidents or assaults froin other passengers or -.from servants upon the train. :

In Voorhees on the Measure of Damages and Personal Injuries, at 13101, this doctrine is announced:

“It is among the implied provisions of the contract between •the passenger and the railroad company that the latter has -’employed suitable servants;to run. its trains,.and .that passengers shall receive proper treatment from them, and a violation of .this implied-duty and contract is actionable iu favor of the person,injured by this breach, although the 'act of the servant' Was will-full and malicious, as' for malicious assault upon 'a passenger, or by any óf the'train hands, whether in the line of his: Employment or not. The duty of a carrier towards a passenger 'is contractual, and among the implied obligations, is that of protecting the passenger’ from insults or assaults from other passengers or by their own servants.” •' ’

. In support of that doctrine the author cites a great many-aur thorities and in the foot notes copies very largely from, those authorities and, xtnless the law in this respect be different in Ohio than in other states, we think the doctrine is correctly stated .in the text. - - . •

The Legislature of this state seems to have recognized this duty of the railroad company and in aid and’ furtherance of the company in performing that duty, have conferred police powers upon the conductor. Section 3433 of the Revised Statutes of Ohio invests conductors of steam and mterurban railroad companies with powers, duties -and responsibilities of police officers while, on duty on their train and authorizes such conductors to wear the badge of a special policeman. Section 3434' authorizes them to eject any passenger guilty, of disorderly conduct or of any .obscene language, .etc..

We. think the provisions of these statutes were- not solely for .the .purpose, cff ..enabling;,the railroad companies,to protect:-.their property, but also for the purpose of enabling them to protect passengers from assaults of fellow passengers or from the servants of the road, and in other respects to preserve and secure the peace, safety and convenience- of passengers. And if a conductor, while in charge of his train, makes an assault upon a passenger who is then in the peace of the state and not violating any rule of the company, as a matter of law, he would be held to be acting within the scope of his authority and the master would be liable.

It is also insisted that punitive damages can not be allowed in this character of cases, and that the charge in that behalf is erroneous. In the ease of Telegraph Company v. Smith, 64 O. S., page 117, the court quotes with-approval the following:

' ‘ That a corporation may be subjected to exemplary or punitive damages for tortuous acts of its agents and servants done within the scope of their employment in all cases where natural persons acting for themselves, if guilty of like tortuous acts, would be liable for such tortuous damages. ’ ’

We are of the opinion that there is no prejudicial error apparent upon this record and, therefore, the judgment of the common pleas court is affirmed with costs but without penalty. Exceptions of plaintiff in error .noted and ease remanded for execution.


text:
    CONVEYANCE OF PROPERTY BY INFIRM PARENT TO SONS.
    Circuit Court of Hamilton County.
    John H. Taphorn v. Theodore Taphorn et al.
    Decided, June 26, 1909.

      Deeds — Action to Set Aside — Doubt as to Grantor’s Capacity — But the Purpose Accomplished was Evidently in Accordance with an Intention Long Entertained — Burden of Proof as to Fairness of Transaction. v
    Notwithstanding some doubt by the court as to the weight of the evidence, deeds will not be set aside on the ground of undue influence and lack of mental capacity, where they accomplish substantially • ’ the' same result- achieved by the grantor by the execution of a will six years before when no doubt existed as to his mental condition or freedom of action.

      John C. Healy, for plaintiff.

      Louis J. Dolle, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The original action was commenced to set aside, on the ground of undue influence and mental incapacity, four deeds conveying all the real estate of the grantor to his two sons, Theodore' and John. A decree was entered for the defendants which it is now sought to set aside.

In deeds of gift from parent to child undue influence will not, because of that relation, be presumed as it sometimes is in deeds of gift from child to parent, but must be proved like other, issues of fact.

The due execution and delivery of the deeds having been established, the burden did not rest upon the defendants to show that the transaction was fair and free from undue influence; but on the contrary the burden was east upon the plaintiff to- establish by clear and convincing proof one of the grounds relied upon to set aside the deeds. Willis v. Baker, 75 O. S., 291.

The degree of influence that will be undue is relative and dependent upon the circumstances of each ease. If the' grantor is old and his mind weakened by disease, slight influence may be sufficient to overcome his power of resisting the importunities of those about him, and thereby become undue, although under other conditions it could not be so regarded. The relation of the sons to the father in this case prior to January 5th, 1907, was one of dependence rather than authority over him, and if at the time the deeds were executed (January 10th, 1907), they exerted any undue influence, it was possible only because of his weak mental condition resulting, from a stroke of paralysis suffered on the 5th day of January, 1907.

It is imp'ortant, therefore, to inquire to what extent, if any, his mind was affected thereby. The testimony shows that he suffered a marked and distant hemipligia as the result of a hemorrhage -of the brain, from which he has never fully recovered, although the improvement has in many respects been remarkable. lie was, at -the timé; past'eighty years of' age but apparently in good health except a condition 'of "arterio-sclef osis thickening and hardening of the arteries...

The only expert testimony in the case was offered by the plaintiff, and Dr. G-. A. Fackler, a specialist in nervous diseases who examined the patient on the morning of'the day following the stroke, testified as follows;:

"At the time of my visit' he was almost totally unconscious. With some difficulty and some efforts at arousing him, he would be aroused. Nothing- more than an exclamation. One or two words. Nothing further. He was to all intents and purposes in an. unconscious state. His-entire ..left side was immovable. No motion to the arms of legs or the left side of the face.
"‘Q. What was the condition of his-intellect at that time? A. Absolutely'in abeyance; ‘He had no intellect at the'time at all.
"Q. And with reference to the will what would you say was his power? A. He had no will power at all at that time..' He was unconscious practically. ”

It is manifest-froin-this testimony that the patient, at that time, was incapable of transacting any business or of' knowing the amount of his property and the natural objects of his bounty.

Dr. LaFayette Neufarth, the attending-physician, testified as follows:; '

"Q. Do you remember whether or not you saw him with Dr’. Fackler? A. ° Yes, sir; I seen him with Fackler. I believe that was on Sunday’ evening.
" Q. What was his condition at that time ? A. That left side was devoid of feeling' and motion -and I think even the face.. Although he could use his tongue, and drink some, he could not use his, lips very well? or drink without spilling a good deal of the water that he attempted to drink. I don’t remember whether he could- take several swallows of the liquid, but he could drink some; but the- sense of feeling and motion Avas completely gone.
"Q. How Avas he-at that time AAÚth regard to maintaining ,a conversation with any one? Á. I -guess he.was very much in the morning as the day before. You could, get his attention and get an answer straight, but his mind would not stay, didn’t stay long enough to carry on much of a conversation, or remember very much of what was going on. ‘
"Q. Fully a w.eek. or ten- days béfore-there AA'as any marked change? A. Yes, sir.
"Q. Do you remember being present when Mr. Hauck was there with some.papers for the purpose of having him sigh them? Did he ask you any questions with regard to his condition? A. Yes, sir.
“Q. Was that the day on which the’ papers were signed or before, do you remember? A. I don’t know that. • I was in there one day to see the' old gentleman when Mr'. Hauek was'- there in the sitting room, and asked me whether Mr. Taphorn was in a condition to do business. Of course standing right, on the side of the bed with Mr. Taphorn in it and looking right at me, I said he was. The old gentleman was in bed right in front of me lying down.
"Q. I will ask you what his condition was mentally at that timé ?. A. When you attracted his attention he would: answer you apparently clearly, but then he would either go to si pep ..or talk on some subject not in connection, not answer yoiir.ques-: tion. He would talk of something that had no direct connection with the' affairs that were going on.
“Q. I will ask you, were there any symptoms to your mind indicated his mental condition on the 10th day' of January.?' A. As-I said before you could, not retain his attention. He would answer.your question apparently mechanically, and then would wander off to something else or on some other subject or just lay. without saying anything.”

This -testimony was much shaken in the cross-examination when the witness’s attention was directed to'his deposition taken nearly a year before, in which he testified that the patient recognized and conversed in an intelligent manner with those, about him, and described his sensations at the time he .was stricken,', and that in his opinion Mr. Taphorn on the 9th and 10th, day of January understood both the amount of his property and who his children and grandchildren were. Yet upon examination concerning his deposition he stated facts and drew conclusions in' harmony with his testimony in chief. There- are, however, -so many contradictions throughout his testimony that it would be very unsafe to base any judgment upon it. Of one fact h.e testifies clearly and that is, having heard in another part of the house that Mr. Taphorn was about to transfer some property, he suggested to him- that he protect the old lady, his wife; but even this seems to have made no impression on the mind of Mr. Taphorn, as he gave-no instructions to Mr:- Hauek-,,-the attorney, to make provision for his wife; but it was done by the latter of his own motion, although approved by Mr. Taphorn before signing the deeds.

Dr. B. F. Beebe examined the patient the day before he testified, and about a year after the hemorrhage, and while he says that he found the mental condition much better than he expected, an unusual mental condition so far as a man of his age is concerned, yet his testimony throws very little light on the question of the grantor’s mental condition at the time the deeds were executed and delivered.

It is undisputed that about six years prior to the execution of the deeds Mr. Taphorn executed a will in which he devised all his property to his sons, John and Theodore, and which was then still in force — that the sons, believing that the will might be more easily set aside, importuned the father to execute deeds instead, which he steadfastly refused to do up to the time of his illness. ITe himself testifies that he has no recollection of Mr. Hauck bringing four deeds to him to be signed or of hearing them read, although he remembers being requested to and that he did sign something.

On the other hand the evidence shows that on the 7th or 8th of January he instructed his housekeeper, Mrs. Buenning, to go to Hamilton and ascertain whether a note for $5,000 on which he was endorser, and which had been protested, had been since paid; •that about the same time he instructed his- sons to buy some pigs but strangely enough, after the purchase was made, he requested the sons to bring the live pigs in a crate into his bed room that he might see'them; that he directed his housekeeper to deliver to his son the keys to certain drawers in his desk for the purpose •of procuring certain deeds and other papers; and that he recognized his friends and members of the family and conversed with them on different subjects, but more particularly concerning his physicial condition.

Each and all of these facts indicate that he was conscious and .rational to that degree necessary to perform such acts, although not necessarily that he comprehended the scope and effect of the deeds at the time they were executed. The circumstances surrounding the execution of the deeds, including the anxiety of the sons to have title by deeds rather than devise; the declaration of one of the sons to the attorney, “whatever you do make it stick”; the effort to secure a particular witness from a distance of a half a mile, when there were present in the house persons competent to act; the extreme effort required by the grantor to sign his name although he had, as one witness testified, a firm grip in his right hand, and his crying at intervals during the performance, cause us to doubt his mental capacity and the fairness of the influence exerted by the sons; but a mere difference of opinion upon the weight of the evidence will not justify the reversal of a decree, and as the doubt entertained is not of that convincing nature required, we are constrained to affirm the judgment, and do it with less reluctance because the deeds accomplish substantially-the same thing that the grantor had, six years prior, attempted to do by a written will, and had repeatedly reaffirmed when there was no question of his mental capacity or of undue influence.

Judgment affirmed.