text:
    BIGAMY.
    [Cuyahoga (8th) Circuit Court,
    June 4, 1906.]
    Henry, Marvin and Winch, JJ.
    Judge Laubin of Seventh Circuit Sitting in Place of Judge Marvin.
    Carrie M. Harms v. State of Ohio.
    1. Second Marriage after Five Years Continuous Absence of First Spouse not Bigamy.
    When the first spouse of one accused of bigamy had been continually absent for five successive years next before the second marriage, without being known to be living within that time, the defendant is not guilty of bigamy.
    2. Statute Exception of Five Years'Continuous Absence of Spouse Exempts Showing of Due Diligence in Ascertaining Whereabouts before Second Marriage.
    When defendant relies upon the fact that the first spouse had been absent for more than five years next preceding her second marriage, without being known to be living,, the statutory exception relieves her of the burden of showing that she used due diligence to ascertain the whereabouts of her first husband as at common law.

      Error.

      C. V. Robinson, for plaintiff in error.

      S. V. McMahon, for defendant in error.
   WINCH, J.

The plaintiff in error was convicted of bigamy and relies upon error in the charge of the trial judge to reverse the judgment.

Upon the trial of the case it was conceded that the first marriage was contracted on July 16, 1896, and the second on October 21, 1902, more than six years intervening, and it was shown that the first husband was still living, though he never lived with his wife. The accused offered evidence tending to bring her within the exception of the statute, Sec. 7018 R. S. (Sec. 13022 G. 0.), which provides:

‘ ‘ This section does not extend to any person whose husband or wife has been continually absent for five successive years, next before such marriage without being known to such person to be living within that time.”

Counsel for the accused requested the court to charge that if the jury found that the first husband of the accused had been continually absent from here for five successive years next before second marriage, without being known to her to be living within that time, they should bring in a verdict of not guilty. This the court refused, but charged, in substance, that due diligence to ascertain the whereabouts of the first husband must be shown by the defendant before she can be said to come within the saving clause of the statute.

In so charging we think the court erred, and from the argument of the prosecuting attorney we are inclined to think he was lead into error by a misconception of the scope of the opinion by Judge Jones, of the district court of Cuyahoga county in the case of State v. Stank, 9 Dec. Re. 8 (10 Bull. 16). The second paragraph of the syllabus of that ease reads as follows:

"It is competent for a defendant on trial to give evidence tending to show; that at the time of. the second marriage he in good faith believed and, after exercising due diligence, had reasonable ground for believing, that his first wife was either dead or divorced, and if he satisfies the jury of either of these things he is entitled to an acquittal.”

A careful reading of the facts of the case and of Judge Jones’ opinion shows that he was not considering the proviso or exception in the statute on bigamy, but confined himself to a refutation of the claim of the state that the doctrine of Massachusetts, set forth in the ease of Commonwealth v. Mast, 48 Mass. (7 Metc.),472, obtains in Ohio. That case held than an honest belief on the part of the wife that the husband was dead, when she had made many inquiries about him, and when he had been gone several years, was no defense whatever to the charge of the bigamy. Judge Jones says:

“This ease admits the general doctrine that where there is no criminal intent there can be no guilt; but it proceeds to nullify this doctrine by saying that where a statute has made it criminal to do any act under any particular circumstances, the party voluntarily doing this act is chargeable with the criminal act of doing it.”

He then proceeds, by a consideration of the Ohio eases to show that in this state honest error of fact, where there is good faith and due care, is an excuse for what would otherwise be a criminal act.

Now this, he says is the general rule in Ohio, with regard to all crimes, and there is no exception with regard to bigamy. He makes no reference to the exception in the bigamy statute, nor could he, for Stank remarried within three years after his first wife left him. He gives the defense available at common law, to one accused of bigamy, and available though the second marriage may have been consummated within a few weeks or months after separation from the first consort.

The ease of Squier v. State, 46 Ind. 459, cited by the prosecuting attorney, is like the Stank case. Squier had been absent from his first wife only two years when he married again.

Having in mind this common-law defense, what did the legislature intend when it added the exception to the bigamy statute which has been quoted ? If it simply intended to affirm the common-law rule, why did the legislature say anything about absence for “five successive years” and say nothing about good faith and due diligence in ascertaining the whereabouts of the absent first husband or wife

The only answer to these questions is, that the legislature intended to and did leave the common-law defense available during the first five years separation, but established a milder rule, more favorable to the accused, available after five years separation.

We think that under this statute the accused, having shown that the first husband was continually absent from her for five successive years next before her second marriage, is only required to show further that, in fact, during said five years it was not known to her that her first husband was living during that time.

We realize that this makes it incumbent upon the accused to prove a negative, a very difficult thing to do, and for this reason the English cases simply require the accused to establish the separation for the statutory time, placing the burden upon the Crown of proving that the accused knew of the continuance of the marriage ties, but this rule we apprehend arises by reason of the English laws forbidding the accused to testify in his own behalf. See the case of the Queen v. Curgerwen, L. R., 1 Cr. Cas. Res., 1.

Should the accused in this state testify that she did not know that her first husband was living during the five successive years next before her second marriage, it would seem that, to test her credibility, she might be cross-examined as to her means of knowledge and the efforts she had made to find her husband, and the jury would then, have to determine whether she was telling the truth. The state might also be able to show, from other sources, that she in fact was aware of her first husband’s existence within the five years.

Complaint is also made that the court charged that the defendant must show that the first husband was the aggressor; in other words, that he left her, or that by his conduct she was justified in leaving him. There is warrant for this part of the charge in the words of the statute, for it reads: “whose husband * * * has been continually absent.” If the wife left the husband without cause, she would be the absent one, not he. This view is sustained by the authorities.

Because by the charge the trial court placed a greater burden upon the accused than the statute provides, in the respect pointed out, the judgment is reversed and the cause remanded for a new trial.

Henry and Laubie, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    EXECUTORS AND ADMINISTRATORS.
    [Cuyahoga (8th) Circuit Court,
    June 11, 1906.]
    Henry, Winch and Laubie, JJ.
    Judge Laubie of Seventh Circuit Sitting in Place of Judge Marvin.

      Anna Devereaux v. E. K. Hutchinson, Adm.
    Statute Prescribing Time for Presentation of Claims and Commencement of Actions against Personal Representatives not Available after Long Delay in Asserting.
    When a petition against an administrator does not show that the claim was presented and disallowed, or that the necessary time has preceded the commencement of the action, and the administrator makes no objection either by demurrer or answer, but goes to trial upon an answer denying the validity of the claim, it is too late after several trials have been had and costs incurred, for him to raise that issue by demurring to an amended petition.
    Error.
    Hart, Canfield & Croke, for plaintiff in error.

      W. P. Dunlap and T. E. Dissette, for defendant in error.

       Affirmed, no op., Devereaux v. Hutchinson, 78 Ohio St. 415.

   WINCH, J.

April .12, 1904, the plaintiff, Anna Devereaux, brought 'her action before a justice of the peace to recover of defendant, as administrator of the estate of John Ferens, deceased, for personal services rendered the deceased during his last sickness and caring for his remains after his death and until his burial. After judgment the ease was appealed to the common pleas, by the filing of a transcript therein June 1, 1904, followed by the filing of a petition, on June 18, 1904.

To this petition the defendant filed a motion to make more definite and certain, which was granted, and an amended petition filed January 28, 1905.

This amended petition alleged an indebtedness on an account thereto attached; that a copy of her account duly authenticated, was presented to the administrator May 19, 1902, and allowed by him; that more than two years had expired since the date of the bond of the administrator, but that he had wholly failed, refused and neglected to pay, etc.

To this amended petition an answer was filed admitting the presentation of the claim, but denying all else. The defendant further pleaded that when said claim was presented, then and there he informed plaintiff that he disputed the claim and refused to pay it, and on September 30, 1902, indorsed a rejection of the claim upon it and advised plaintiff thereof.

The defendant further alleges that the plaintiff neglected to sue on her claim within the time required by law and that no demand for payment was made within two years after the presentation and rejection of the claim.

A reply to this answer denies the new matter therein, set forth, and says that the administrator having agreed to pay the claim, the plaintiff could not maintain an action thereon before she did sue.

It will be noticed that no issue was raised, either by demurrer or answer, that plaintiff had sued on an allowed claim before the expiration of the time limited by Sec. 6108 R. S. (Sec. 10740 G. C.), to-wit, eighteen months from date of the administration bond, or the further time allowed by the court for the collection of the assets of the estate.

The case was submitted to a jury, which found for the plaintiff, but a motion for a new trial being filed, the same was granted and the case again submitted to the jury on. the same pleadings, which resulted in another judgment for the plaintiff on May 23, 1905

This second judgment was likewise set aside and on December 2, 1905, plaintiff was granted leave to file a second amended petition, which she did, alleging, in addition to her former allegations, that “there is now in the hands of the administrator about $2,000 and that all of the debts have been paid, except the claim of the plaintiff,” and further that at the expiration of two years within which the administrator was to file his final account, he had said time extended, but that the time within which the administrator was granted leave to file his final account had long since expired.

A demurrer was interposed to this second amended petition on the ground that it showed upon its face that suit was brought by plaintiff within the time limited by said Sec. 6108, and this demurrer ivas sustained and judgment thereafter rendered against plaintiff, from which judgment error is prosecuted to this court.

The claim being alleged to have been allowed by the administrator, it must be conceded that the case was originally brought too soon; but, by the time the second amended petition was filed, the time limited in See. 6108, within which such a claim could not be sued upon, had expired. The plaintiff could then have dismissed his original ease without prejudice and immediately brought a new action, to which the statute would not apply. Such course would have compelled the plaintiff to pay the costs accrued before such dismissal, and it was conceded upon the hearing that the one vital interest in this case is the question of costs. By the judgment of the common pleas court all the costs were charged against the plaintiff, and of this he complains. Let us therefore inquire as to how costs were incurred in this action and the rules of law by which they should be assessed.

I read, in the opinion of Judge Boynton in the case of Pepper v. Sidwell, 36 Ohio St. 454, beginning with the bottom of the page:

“That a petition against an administrator is defective that does not show that the claim was presented and disallowed, or that the necessary time has preceded the commencement of the action, was held in Hammerle v. Kramer 12 Ohio St. 252; and it was also there held that the petition might be demurred to as not stating facts sufficient to constitute a cause of action against the administrator. In commenting of the question as one of practice, Scott, C. J., said: ‘As under the provisions of this section no action can be maintained against an administrator, by a creditor, till after the lapse of eighteen months from the date of the bond, unless in certain specified cases, we think the petition of the creditor should aver the necessary lapse of time. This is a condition essential generally, to the plaintiff’s right of action. It is also affirmative in its character, and if denied, the burden of proof is on the plaintiff, and we think, unless it is averred, the plaintiff does not show even a prima fade right to sue.’ This language had reference to the right of the administrator to raise the question of the plaintiff’s right to sue, by demurrer, where the petition did not show that the claim had been presented and rejected, or the lapse of the time necessary to the maintenance of the action.
‘ ‘ To the rule there laid down we fully adhere. In that case the objection was timely taken and insisted upon, that the petition failed to show such facts as rendered the administrator liable to an action at the time the action was brought. The ease, however, does not support the proposition that the administrator, who takes no objection, either by demurrer or answer, to the failure of plaintiff to bring the case within the statute, may go to trial under a defense by which he contests the validity of the claim sued on, and in case of failure in such defense, may fall back and defeat a recovery on the ground that the claim was not presented for allowance, and consequently, that the action was prematurely brought. The provision of the statute exempting the administrator from liability to be sued, until certain preliminary steps are taken, or a certain period of time has elapsed, is a privilege that may be waived. The object of the statute is to afford the administrator an opportunity to allow all valid claims against the estate, and thereby avoid litigation and expense. It was designed to protect estates from unnecessary costs and vexation, where the administrator is satisfied that the claim is just and valid. Here the validity of the claim was in fact disputed, at the trial, and the liability of the defendant thereon denied, and the plaintiff subjected to large expenses and trouble in resisting a defense made to its merits.
“To subject him to the expense and: hazard of a trial, and then to deprive him of a judgment, notwithstanding the issues were determined in his favor, upon the ground that the petition is defective in the particular mentioned, would be manifestly unjust. The conduct of the administrator, in contesting the claim, shows that the estate lost nothing by the omission to present the claim for allowance. In onr judgment, where the petition fails to show that disallowance of the claim, or that the time allowed for the collection of the assets of the estate elapsed before the commencement of the action, and the defendant takes no objection either by demurrer or answer, but goes to trial upon issues in which he contests the validity of the claim, it is too late to insist on the non-presentation of the claim, or the premature bringing of the action as a defense to the plaintiff’s right to recover.”

This reasoning seems to apply to the case before us. Here the validity of the claim was in fact disputed, the administrator, indeed, claiming in his answer that the claim had been rejected and the action brought too late, not too soon, and the plaintiff subjected to large expense and trouble in. resisting a defense made to its merits, not once, but twice, for there were two jury trials before the defendant ever raised the proposition now contended for, by either answer or demurrer. He must then be deemed to have waived what Judge Boynton denominates his privilege to claim exemption from suit until the statutory time had elapsed.

This was the situation up to the time the last judgment was set aside and the second amended petition filed, to which the demurrer was sustained. That demurrer is sustainable only upon the suggestion that the second amended petition speaks as of the commencement of the action, which is the ordinary rule, for when the last petition was filed the time had elapsed. To apply that rule would be manifestly unjust. We think it was then too late for the administrator, therefore, to insist on the preihature bringing of the action. He had theretofore twice gone to trial upon issues in which he had contested the validity of the claim and put the plaintiff to large expense and much trouble.

The judgment is therefore reversed and the cause remanded for a new trial.

Henry and Laubie, JJ., concur.


text:
    JUDGMENT AND DECREES.
    [Cuyahoga (8th) Circuit Court,
    June 11, 1906.]
    Henry, Winch and Lauhie, JJ.
    Judge Lauhie of Seventh Circuit Sitting in Place of Judge Marvin.
    Minnie M. Folliette v. Anney M. Brett.
    1. Petition to Vacate Judgment after Term Filed as Independent Action.
    A petition to vacate a judgment after term may be filed as an independent action.
    2. Retaining Attorney to Defend Action Sufficient Ground for Vacating Default Judgment.
    The fact that defendant had retained an attorney to defend the action, had filed an answer, and been assured by her counsel that the case would not be reached for three years, after which she removed from the city, holding herself in readiness to return upon notice from her attorney, and that the attorney without notifying her withdrew from the case and allowed it to go to trial without defense, constitutes sufficient grounds for vacating the judgment after term.
    Error.

      A. W. Lamson, for plaintiff in error.

      John A. Thompson and TL. D. Messiah, for defendant in error.
   WINCH, J.

This is a special proceeding, after judgment, instituted by the filing of a petition, under favor of Secs. 5351 and 5358, R>. S. (Sees. 11631, 11635 C-. C.), to vacate the judgment obtained by Folliette against Brett, at a former term of the common pleas “for unavoidable casualty or misfortune, preventing the party from defending.”

The grounds for vacation of the judgment were tried, found to exist and the original case ordered tried to a jury as to the merits of the defense to the original action.

In this court three reasons are alleged why said order should be reversed:

First, because said petition to vacate was filed as an independent action, and on this proposition the language of the court on page 172 of the opinion in the case of Taylor v. Fitch, 12 Ohio St. 169, is referred to. That case holds that such proceeding is not, of itself, a civil action, but a special proceeding in an action after judgment, and it is said that the proceedings to vacate the first should be included in the record of the original case, so that there may not be two judgments, both based upon the same claim, should judgment again be rendered against the defendant.

There is nothing in the record and transcript before us to indicate that such possibility may occur in this case, unless it may be that the common pleas court gave a new and different number to the special proceedings..

Its judgment, however, requires the original action to be retried, and the special proceedings are ended without possibility of further judgment therein.

Second, it is said that the petition fails to disclose good grounds for the vacation of the judgment complained of, and that an objection made to the introduction of any evidence under it should have been sustained.

It must be conceded that there are some inconsistent allegations in the petition and some that are open to the charge of equivocation, but Are find that said petition, among other things, alleges that she retained counsel to defend the original action, filed answer therein, Avas told by her counsel that the case would not be reached for trial for three years, Avhereupon she left the city, being ready, willing and able to return at any time to defend and testify as the trial, and so advised her counsel. That she awaited patiently to be notified by her attorney when to appear and testify, but that he withdrew from the case and alloAved it to go to trial without defense, in her absence. She further alleges “that she Avas wholly unapprised and unaware of •the AvithdraAval of her said retained attorney” and that she Avas without negligence on her part.

We think these allegations, considered by themselves, sufficiently allege unavoidable casualty and misfortune, within the purvieAv of the statute. There AA-as no motion or order to compel the petitioner to make her allegations more definite and certain, to separately state and number, or to elect upon which claims she would stand. We may therefore disregard the other allegations in her petition and consider it sufficient. The case of Taylor v. Fitch, above referred to, is some authority for this conclusion.

Third, it is claimed the bill of exceptions shows that the court improperly admitted evidence tending to establish the plaintiff’s defense to the original action. As that defense was triable by a jury, and not by the court, it is said that this was error for which the order should be reversed.

We find no prejudice in the admission of this incompetent evidence. The court made no finding or judgment as to the defense submitted, but on the contrary specifically reserved that matter for the consideration of a jury. His order is therefore conclusive that he gave no consideration to the evidence objected to. We can see no reason why the judge should not be advised as to the nature of the defense, as well as of' the claims of the plaintiff. Indeed, the defense might have been of an equitable nature, requiring the reformation of a written instrument, for instance, and completely extinguishing the plaintiff’s claim. In that event the court could have gone on and determined the merits of the defense, at once, and without a jury. That was not the case here, but we suggest it as exhibiting the greater freedom with which the court can listen to evidence which would be incompetent and prejudicial to bring before a jury. The test of the prejudice of such evidence produced before a judge, is the order or. judgment thereafter made by him. .

We find no error in the order and it is affirmed.

Henry and Laubie, JJ., concur.


text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    February 23, 1907.]
    Winch, Marvin and Henry, JJ.
    Maud Eggleston et al v. C. H. Gardner et al.
    1. Acknowledgment of Will Includes Acknowledgment of Signature.
    An acknowledgment by a testator that a paper already signed by her was her will, would include an acknowledgment of her signature to such paper.
    2. Acknowledgment of Will not Required in Presence of both Witnesses at Same Time.
    It is not necessary that an acknowledgment be made in the presence of both witnesses at the same time, or by any particular form of words.
    Error.

      Blandin, Rice & Ginn and A. A. Carpenter, for plaintiff in error.

      H. M. Nason, Carr, Stearns é Chamberlain and Hoyt, Dustin & Kelly, for defendants in error.
   WINCH, J.

This was an action to contest a will. The contestants relied upon lack of testamentary capacity in the testatrix and informality in the execution of the will.

The jury found for the will and the only question raised by these proceedings in error is whether the will was executed according to law.

We think that the evidence on this subject warranted the verdict of the jury, if the law on the subject was properly charged by the trial judge. Not only the witnesses to the will, but Judge Caldwell, its scrivener, the testatrix’s attorney, who was present when the will was signed, testified upon this subject.

It appears that the testatrix signed the will in the absence of the attesting witnesses. She then called them into the room, one at a time, and said to each of them: ‘ ‘ This is my will, I -want you to sign it.” The will, with the signature of the testatrix upon it, was unfolded and spread upon the table, when the witnesses signed their names, in the presence of the testatrix.

Plaintiffs in error claim that the will was not properly executed because the testatrix failed to acknowledge to the witnesses that the signature upon the will was her signature; in other words, their claim is that when attesting witnesses do not see the testator subscribe or heard her acknowledge the same. If either clare to them not only that the instrument is her will, but that the signature upon it is her signature.

The charge of the court upon this branch of the case is as follows:

“Section 5916 R. S. (Sec. 10505 G. C.) provides: Every last will and testament except nuncupative wills hereinafter provided for, shall be in writing or may be handwritten or typewritten, and such will shall be signed at the end thereof by the party making the same, or by some other person in his presence, and by his express direction, and shall be attested and subscribed in the presence of such party, by two or more competent witnesses who saw the testator subscribe or heard him acknowledge the same.
“You will thus observe that the person making a will must be of sound mind and memory.
“And it must be attested and subscribed in the presence of such party by two or more competent witnesses who saw the testator subscribe or heard her acknowledge the same. If either of these requisites be lacking in the execution or attestation of an instrument produced as the last will and testament of a decedent, such instrument would not be either in law or in fact the will of such decedent. The claim of the plaintiffs in regard to the execution of said instrument is that the decedent did not sign the same in the presence of said witnesses, and that she did not acknowledge the same to be her will or acknowledge her signature thereto in the presence of both of said witnesses, or at least not in the presence of either of them.
“It is not necessary, that a testator sign her name to a will in the presence of the witnesses, but where the witnesses do not see the testator subscribe the same, it is necessary to the due execution of the will that she acknowledge such will and her signature thereto to the witnesses; but it is not required that she do this in the presence of both witnesses together or at the same time, nor is it requisite that the witnesses sign their names in the presence of each other.
“It is not necessary that any particular form of words be used by tbe testator in acknowledging either her signature or will. It is sufficient if by words or otherwise she gave the witnesses to understand that the signature and the will were hers, and, if she had already signed her name to the writing, it would be a sufficient acknowledgment both of her signature and of the writing as her will, if she stated to the witnesses, in reference to said writing that the same was her will, or otherwise gave them to understand that the paper was her will. In other words, an acknowledgment by a testator that a paper already signed by her was her will, would include an acknowledgment of her signature to such paper.
“If, from a fair consideration of all the facts and circumstances as shown by the evidence bearing on this question, offered by both parties, including the signature to the intrument and the statement thereon signed by the subscribing witnesses, Mrs. O’Neal’s and Mrs. Weseott’s and Judge Caldwell’s testimony being included, you believe it more probable that Mrs. Prosser neither signed said writing in the presence of the subscribing witnesses nor acknowledged the same with her signature thereto in the presence of said witnesses, then the weight of the evidence would preponderate in favor of the claim that she did not so sign or acknowledge such instrument.
“If you find from the preponderance of the testimony that the two witnesses whose names are attached to the said writing did not see Mrs. Prosser sign the same; and if you further find that she did not in their presence either acknowledge said writing as her writing with her signature thereto, or acknowledge said writing with her signature affixed thereto as being her will, then your verdict should be that the writing in question is not the last will and testament of said decedent.”

The jury returned for further instructions, at which time the court said:

“If Mrs. Prosser, in the presence of the witnesses, acknowledged that the paper already signed by her was her will, this would include an acknowledgment of her signature as well as of the instrument as her will.
“It is not necessary that an acknowledgment be made in the presence of both witnesses at the same time, or by any particular form of words. It would be sufficient, if by words or otherwise, she gave each of the witnesses, either together or separately to understand that the will with her signature thereto was hers.”

The court then again read Sec. 5916.

The leading ease cited by counsel for plaintiffs in error in behalf of this contention that the charge is erroneous, is Chaffee v. Baptist Missionary Convention, 10 Paige’s Chancery (N. Y.), 85, part of the syllabus of which reads as follows:

£ 1 The subscription of the will must be made by the testator in the presence of each of the attesting witnesses, or it must be acknowledged by him to have been so made, to each of the attesting witnesses.
££ Where the testator, at the time of the execution of his will in the presence of the attesting witnesses placed his finger on his name subscribed at the end of the will, and acknowledged that it was his last will and testament, but there was no evidence that he subscribed it in the presence of attesting witnesses, or that he acknowledged in their presence that such subscription was made by him or by his direction or in his presence, held that the will was not duly executed.”

Counsel for defendants in error, citing the eases in Ohio on this subject, Raudebaugh v. Shelley, 6 Ohio St. 307; Haynes v. Haynes, 33 Ohio St. 598, [31 Am. Rep. 579], and Keyl v. Feuchter, 56 Ohio St. 424 [47 N. E. 140], and claiming that no case in Ohio has determined the precise point here made, relies upon the case of Baskin v. Baskin, 36 N. Y., 416, which is later than the Chaffee case in that state, and has been followed subsequently in many cases in New York state. The syllabus of the Baskin ease is as follows:

£ £ The subscription of the testator and the publication of the instrument are independent facts, each of which is essential to the complete execution of a will.
“If the signature is written by another, and concealed from the view of the testator and the witnesses, the mere publication of the instrument as his will can not be deemed an acknowledgment that the unseen subscription was made by his direction.
“When, however, the testator produces a paper bearing his personal signature, requésts the witnesses to attest it, and declares it to his last will and testament, he thereby acknowledged the subscription, within the meaning of the statute. ’ ’

The distinction between these two' New York cases was clearly pointed out by the Supreme Court Commission of this state in the Haynes case, 33 Ohio St. 598, [31 Am. Rep. 579], where Johnson, Chief Judge, on page 611, says:

£ £ Counsel claim that where the witnesses did not see the testator sign, then they must have heard him acknowledge all the facts requisite to such signing, and if the will was signed for him, that the acknowledgment must embrace the fact that he expressly authorized another person to sign for him and that a general acknowledgment that such signature was his, and that he acknowledged the paper so signed as his will, is not,sufficient.
‘! This view was rejected by the court below, and the rule as laid down in Raudebaugh v. Shelley 6 Ohio St., 307, adopted.
“That was a case of a testator signing himself in the absence of a witness, while this is a ease of signing by another. It was there held that the testator need not in words, expressly acknowledge such subscription, if by signs, motions, conduct, or attending .circumstances, he gave the attesting' witnesses to understand that the signature and will were his.
“To the same effect is Baskin v. Baskin, 36 N. Y., 416 (Conn.), 10 Paige, 85, much relied on in this case. That was the ease of a testatrix who could not write-. The will, with her name signed to it, was produced by her to the witnesses, and putting her hand on the signature she said: “I acknowledge this to be my last will and testament;’ but she,,did not admit in the presence of the witnesses that she had subscribed her name to the will, or that it was her signature, or that it had been subscribed thereto by any other person by her direction, and there was no other evidence that she did so subscribe thereto or acknowledge the signature to the will, and it was held insufficient, because merely calling the paper her will was not an acknowlédgment of the signature to the will.
! ‘ The distinction between these cases is, that in Raudebaugh v. Shelley and Baskin v. Baskin, the personal signature had been made in the absence of the witnesses, an acknowledgment of the signature as his, to the witnesses, and of the paper as his will, is sufficient; while in the Chaffee case, if signed by another, in the absence of. the witnesses, the mere publication of the will as his, without any acknowledgment of the signature, can not be deemed an acknowledgment of the unseen subscription made by his direction.”

We conclude that the case before us is within the rule laid down in the Baskin case, and that there was no error in the charge given.

Coniplaint is made, however, because the trial judge refused to give plaintiffs’ fourth request to charge, which reads as follows:

‘ ‘ The law provides that upon the ’trial of an action for contest of a will, the order of the probate court admitting such will to probate shall be prima facie evidence of the due attestation, execution and validity of the will.
‘ ‘ The effect of this provision of the law is to cast upon the parties contesting the will the burden of showing by other evidence that the writing is not the last will of the deceased. This burden is sustained if you find from all the other evidence in the case, aside from the order of probate, that the writing is not the last will of the deceased. It is your duty in determining this question to weigh all the evidence tending to show that it is not the last will of the deceased against the evidence tending to show that it is the last will of the deceased; and if, after so weighing the evidence, you find that the preponderance is against the validity of the will, it is your duty to say so by your verdict, and in so doing, you should not weigh the presumption of the due execution, attestation and validity of the will raised by the order of probate against actual evidence. You should weigh evidence against evidence, and if so weighing it the preponderance is against the validity of the will, this is sufficient to overcome the prima facie case in favor of the will made by the order admitting the same to probate.”

The trial judge properly refused to give this requested charge Mears v. Mears, 15 Ohio St. 90, 101, 102; Hutson v. Hartley, 72 Ohio St. 262, 269 [74 N. E. 197],

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    SALES.
    [Cuyahoga (8th) Circuit Court,
    March 4, 1907.]
    Winch, Marvin and Henry, JJ.
    Louis Rich et al v. Jacob Maskovitz.
    Buyer May not Reject Article Tendered Because of Quality, if Presence of Foreign Matter Trifling in Amount.
    In the sale of articles not intended for a particular designated purpose,' hut only for resale, the presence in or among the articles tendered of a trifling amount of foreign or defective matter will not warrant the buyer in refusing the tender.
    Error.

      E. C. Schawan, for plaintiffs in error.

      Kline é Harris, for defendant in error.
   WINCH, J.

Maskovitz sued Rich and Fertel for damages for breach of contract to receive and pay for two carloads of “scrap,” to consist of wrought steel and about twenty-five per cent, of malleable scrap, same to be free from stove plate, sheet iron and cinders. Rich and Fertel justified on the ground that the scrap tendered contained stove plate, sheet iron and cinders.

The plaintiff’s own evidence tended to show that in the two carloads of scrap there was about one per cent, of stove plate, sheet iron and cinders. The defendants testified to the presence of much more of said objectionable materials.

The court charged the jury as follows:

“If you find that the scrap tendered by the plaintiff under this contract contained such a small quantity of the excluded kinds as to be trifling in amount as compared with the whole, such a quantity as to be fairly immaterial, then the defendants would not be justified in refusing to receive it and your verdict will be for the plaintiff. But if you find the quantity of stove plate and sheet iron contained in the ears tendered was a material part of the whole, stieh a quantity as to be fairly material, then the plaintiff could not recover.
“So you will have to ascertain the quantity of this stove plate, sheet iron and cinders, if any, that was in these cars, whether it was such a small amount as to be immaterial or whether it was of sufficient amount to be material, considering the terms of the contract and the quantity tendered.”

The jury found for the plaintiff, deducting, however, the damages on one per cent, of the two carloads, by their computation showing that they were of the opinion that the scrap tendered was ninety-nine per cent, of it according to the contract.

We think the charge was warranted by the cases of Cullen v. Bimm, 37 Ohio St. 236, and Kane v. Stone Co., 39 Ohio St. 1.

In the former case the second paragraph of the syllabus reads as follows:

“In an action for refusing to accept a lot of ice containing several hundred thousand cubic feet, which by the terms of the contract of sale was to be merchantable, the court charged the jury that the plaintiff could not recover unless it appeared that the ice as a lot was of merchantable quality, ‘fit for the ordinary uses to which ice is put, ’ and such as would ‘ fairly pass the market.’ Held: That in refusing to charge that all, that is, every part of the ice, should be merchantable, the court did not err. ’ ’

On page 240 of. the opinion Judge Okey uses the following homely illustration:

“The rule upon the subject may be illustrated by a familiar example. Thus if A sells to B six sound apples, the tender of six apples, one of which is to any extent unsound, may not be a compliance with the contract; but where the sale is of a barrel of sound apples, the tender of a barrel of apples might be a compliance with the contract, although one apple in the barrel was to some extent unsound. Large lots of ice entirely free from impurities perhaps can not be found. ’ ’

The latter case involved a building contract, but affirmed the rule laid down in the ice case.

We find the following on page 11 of the opinion:

“Moreover, the stipulation that the stone should be ‘free from iron and all spots and discoloration, ’ must be construed in view of the uses to which the material was to appropriated. Perhaps no lot of stone of the kind referred to is so perfect as to be wholly free from iron and spots. The rule in contracts of this sort, is stated in Cullen v. Bimm, 37 Ohio St., 236. Besides, the jury deducted $55 from the sum for which a verdict should have been rendered in case of strict performance, and we may fairly say that this was because of iron or spots in the stone.”

In. this contract we find the words “free from,” the same as in the case before us. We conclude that in the sale of articles not intended for a particular designed purpose, but only for resale, as in this instance, the presence in or among the articles tendered of a trifling amount of foreign or defective matter will not warrant the buyer in refusing the tender. Nor may the buyer reject the tender on the appearance of it to him, as suggested by plaintiff in error; otherwise all the jury would have to find would be the impression the tender made on the buyer, and not the real merits of it. However, there was no request to charge, and so no error can be predicated upon this proposition.

Exception was taken on the hearing to the refusal of the court to permit a witness to testify as to his estimate of the amount of stove plate, sheet iron and cinders in the two cars, based upon what he saw on the top and sides of the cars.

There are three reasons why there was no error in this ruling:

First.- The jury could estimate as well as the witness.

Second. There was no offer to prove, after the objection ivas sustained; and

Third. The witness was subsequently permitted to give his estimate.

"We find no prejudicial error in the record, and as there was an irreconcilable conflict in the • evidence, we must aceept the conclusion of the jury upon the facts of the case.

The charge failed to instruct the jury to deduct the amount of objectionable matter from the total weight of the two carloads, and figure the damages on the balance alone, but as the jury did this without instructions, the judgment upon its verdict is affirmed.

Marvin and Henry, JJ., concur.


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    CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    March 11, 1907.]
    Winch, Marvin and Henry, JJ.

      E. W. Robinson v. H. E. Willard.
    Recovery May be Had Quantum Meruit against Corporation but not Stockholders, under Parol Contract with Both.
    When under a void parol contract for services Avith a corporation and with individual stockholders of the corporation, by which the corporation agreed to pay a certain sum and the stockholders other sums, plaintiff' enters into the employment of the corporation and performs services, he can recover upon a quantum meruit as against the corporation but not as against the stockholders.

       Affirmed, no op., Robinson v. Willard, 78 Ohio St. 441.

   WINCH, J.

Plaintiff was in the employ of the United States Coal Co., as the general superintendent of its mines under a five years parol contract with it and was to receive $8,500 per year for his service, of Avhich said company was to pay $4,000 in cash, and the defendants, vyho were the stockholders and officers of said company, were to pay in stock of said corporation to the extent of three thousand dollars, at par, it being agreed that said stock bad a value of $150 per share, making $4,500. This agreement with said individuals, stockholders and officers, was likewise in parol.

The plaintiff entered upon the discharge of his duties under said arrangement but was discharged at the end of eight months. He received his cash compensation from the company for said eight months at the rate agreed upon, but the individuals mentioned refused to give him a pro rate share of the stock mentioned, and so he brought suit against them.

At the close of his evidence the trial judge dismissed his action, and now he is in this court for a review of that judgment.

The case seems simple. The agreements of the corporation and of the individuals holding stock were void because of the statute of frauds.

Although the express contract between the parties was void, the plaintiff having given his time and services to the corporation, the law implies a contract between him and it that he should be paid therefor upon a quantum meruit. No such implied contract arises between the plaintiff and the defendant stockholders.

To hold that the corporation as a separate entity is a mere fiction which can not be used to shield stockholders because they are all stockholders, and as such entitled to all the benefits flowing from the plaintiff’s services, would be to nullify the corporation statutes of the state and to remove all inducement to the organization of corporations. This does not mean that the plaintiff has no remedy against the corporation, but it does mean that plaintiff has no right of action against the stockholders. This would be conceded, if the defendants were not such stockholders. The law, and not a fiction, is the shield of the defendants.

Judgment affirmed.

Marvin and Henry, JJ,, concur.


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    PLEADING — TKIAL.
    [Cuyahoga (8th) Circuit Court,
    March 18, 1907.]
    Winch, Marvin and Henry, JJ.
    Noah Ellen v. S. F. Thrasher.
    Answer Denying any Consideration for Note upon which Action is Brought in Short Form Requires Reply.
    When a petition filed by the payee declares upon a promissory note in the short form and the answer avers that the note was obtained without any consideration whatsoever, in the absence of any reply by plaintiff the defendant is entitled to a judgment on the pleadings.
    Error.
   WINCH, J.

This was a suit upon a promissory note brought by Thrasher, the payee, against Ellen, the maker. The petition declared upon the note in the short form, showed that partial payment had been made upon the note, and prayed judgment for the balance and interest. The answer admitted the making and delivering of the note and payment of part of it, but alleged that “said note was given to and obtained by the plaintiff without any consideration whatsoever.” There was no reply to this answer. Upon the trial, before the introduction of any evidence, the defendant moved for judgment on the pleadings. This motion was overruled, the defendant excepted and the case proceeded over his objection, ending in verdict for the plaintiff. The case is here on error, and while many reasons are assigned why the judgment should be reversed, we find it unnecessary to consider any of them except the overruling of the defendant’s motion for judgment on the pleadings.

While it has been said that a petition declaring upon a promissory note in the short form authorized by the statute by implication. alleges that the instrument is upon consideration, it may, perhaps, be more accurate to say that the statute authorizes the payee of a promissory note to sue upon it in that form without alleging consideration; in other words, that the statute dispenses with an allegation as to consideration.

On the other hand, it has been repeatedly held that want of consideration can. not be shown under a general denial, but must be specially pleaded in the answer. Such being the case, we conclude that it is “new matter” within the purview of See. 5078 R. S. (Sec. 11326 G-. C.), requiring a reply, and a material allegation, as defined in Sec. 5082 R. S. (See. 11330 G. C.)

Section 5081 R. S. (Sec. 11329 G. C.) says:

“Every material allegation of new matter in the answer not controverted by the reply, shall for the purpose of the action, be taken as true.”

It follows that the defendant below was entitled to judgment on the pleadings, because there was no reply to his answer. See Dalrymple v. Wyker, 60 Ohio St. 108 [53 N. E. 713].

In this view of the case, what occurred after the overruling of the defendant’s motion for judgment on the pleadings is immaterial, and for that reason we pay no attention to the other errors alleged to have occurred at the trial.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    MUNICIPAL CORPORATIONS — BONDS.
    [Cuyahoga (8th) Circuit Court,
    March 18, 1907.]
    Winch, Marvin and Henry, JJ.

      Cleveland (City) v. Cleveland (City).
    Municipal Bonds Subject to the Longworth Act.
    Bonds of municipal corporations issued to abolish grade crossings under authority of act 95 O. L., 356, and bonds to pay the municipality’s portion of street and sewer improvements, are both subject to the provisions of the Longworth act. Section 2835, Revised Statutes.

       Affirmed, no op., Cleveland v. Cleveland, 76 Ohio St. 594.

   WINCH, J.

We have given this case such attention as its importance demands, but our impressions at the hearing have been confirmed by an examination of the statutes we are asked to construe, and we hold that bonds issued by a municipality pursuant to the act to abolish grade crossings passed May 2, 1902 (95 O. L., 356), and bonds issued for the municipality’s portion of street and sewer improvements, where the residue of the cost thereof is assessed upon abutting or benefitted property (Section 1536-213 R. S. (Sec. 3918 G. C.), are both subject to the requirements of the Longworth act, so-called, Section 2835, R. S. (See Sec. 3940 G. 0.)

These statutes have been so critically and exhaustively examined in the opinions cited to us, that there is no need of further opinion by this court.

The demurrer to the petition is overruled, and if defendants do not desire to plead further judgment will be entered as prayed for in the petition.

Marvin and Henry, JJ., concur.


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    MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    March 25, 1907].
    Winch, Marvin and Henry, JJ.

      Cleveland Steel Castings Co. v. Antoni Lewandowski.
    Necessity of Proving Master’s Knowledge of Dangerous Condition of Work and Servant’s Absence of Such Knowledge.
    When a servant’s action for damages for injuries is predicated upon the dangerous condition of the place where he was working, he can not maintain his action without introducing some evidence tending to prove that the master had knowledge of the condition and that he did not.
    Error.

       Affirmed, no op., Lewandowski v. Cleveland Steel Castings Co., 80 Ohio St. 704.

   WINCH, J.

Lewandowski was employed by the eastings company as a molder and was at work in its foundry on the night of January 24, 1905, when a large pile of flasks or forms, weighing about two hundred pounds each, near which he was working toppled over and one of the flasks fell upon his leg and broke it. He brought his action against the company claiming that his injury was due to its negligence, and alleging that the foreman of the company had directed the flasks to be placed in his vicinity and had carelessly and negligently ordered them to be placed on a thick layer of sand, several feet in depth, which was wholly insecure and unsafe, in such manner as to render them liable to topple over and injure him; that by reason of the weight of said forms the sand was caused to give away beneath them; that he had no knowledge or notice of the insecure and unsafe condition of the layer of sand upon which the forms rested, or that they were liable to topple over upon him. The petition also shows that Lewandowski had been in the employ of the company, as a molder, for several months prior to the accident.

At the trial, upon the close of plaintiff’s evidence, the defendant moved that a verdict be directed in its favor.

This motion being overruled, the defendant introduced no further evidence and the case went to the jury, which brought in a verdict for the plaintiff in the sum of $1,500. Motion for a new trial being overruled, the ease is here on error, with bill of exceptions showing all the evidence, the sole allegation of error relied upon being that the verdict was not warranted by the evidence.

We find this claim well made.

While the plaintiff below, by his petition, brought himself within the rule laid down in Chicago & O. Coal & Car Co. v. Norman, 49 Ohio St. 598, he failed to prove that he had no knowledge of the insecure manner in which the flasks wefe piled, and he failed to show that having such knowledge, he informed his master, and continued in its employment upon a promise, express or implied, to remedy the manner in which the flasks were piled.

This is not the full extent of what Lewandowski failed to show. There is no evidence in the bill of exceptions that the flasks were piled this night under any orders of the foreman, that they were piled insecurely; that the company knew that they were piled insecurely; or that Lewandowski did not know they were so piled.

On the other hand, the evidence shows that the flasks were piled this night by his fellow employes, without any special orders from the foreman, in the manner they had always been piled; the plaintiff was working so near to them, that, skilled workman as he was, he must have known just how they were piled; the objects were large and the pile open, to his observation. The nature of the sand foundation was as well known to the plaintiff as to anybody, and further, he failed to show that this sand foundation was insecure.

The plaintiff’s own witnesses suggest another more probable cause for the accident and one which would not render the company liable. It appears that this molder’s own helper dug down in the sand close to the pile, probably for the very purpose of causing the flash to slide down so that he would not have to lift them or carry them so far, and that this act of his helper undermined the pile and caused it to fall. Such being the conflicting nature of the evidence, under the rule laid down in Railroad Co. v. Andrews, 58 Ohio St. 426 [51 N. E. 26], the matter should not have been submitted to the jury for it to guess upon. Because the verdict is not sustained by the evidence and for error in overruling the defendant’s motion to direct a verdict in its favor, the judgment is reversed.


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    STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    April 15, 1907.]
    Winch, Marvin and Henry, JJ.
    Thomas G. Green v. Northern Ohio Trac. & L. Co.
    Driving from Back of Car on One Track and in Front of Car Approaching, Contributory Negligence.
    One who drives behind a car upon one track of a street railway and in front of an approaching car upon the other track, is guilty of contributory negligence.
    Error.
   WINCH, J.

Following our ruling in the ease of Cleveland Elec. Ry. v. Wadsworth, 25 O. C. C. 376 (1 N. S. 483), this judgment must be affirmed.

We are unable to distinguish the case of one driving behind a passing car onto the next track on which a car is coming from the opposite direction, without taking any precaution, for his own safety, from that of a pedestrian who does the same thing. The statement of the plaintiff that he looked to see if a ear was coming, avails him nothing. He could not see through the pass ing car, and he knew it. The time to look is after the temporary obstruction has passed sufficiently so that there may be a view of the next track.

Nor does the case involve the relative rights of street cars and pedestrians in the public streets. It may be conceded that the defendant was negligent in operating its car at too high a rate of speed,and in sounding no warning of its approach. But the trial judge directed a verdict in its favor because the plaintiff showed himself guilty of contributory negligence. There was no error in this, and the judgment is affirmed.

Marvin and Henry, JJ., concur.


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    HUSBAND AND WIFE.
    [Lorain (8th) Circuit Court,
    May 1, 1907.]
    Wincii, Marvin and Henry, JJ.

      Helena Klamut v. Cleveland Provision Co.
    Wife’s Acceptance of Contract by Acquiescence.
    When a party who had been extending credit to a dealer tells him and his wife in the presence of each other that in the future no goods will be supplied them except for cash or upon their joint account, and the wife remains silent, both then and later when goods were delivered and bills sent to her and her husband charging them jointly: Held, that under the circumstances her silence amounted to an acceptance of the oiler to sell upon the joint account of herself and husband.
    Error.

      Ingersoll, Stetson & Wilcox, for plaintiff in error.

      Thompson, Glitch & Cinniger, for defendant in error.

       Affirmed, no op., Rice v. Klamut, 81 Ohio St. 566.

   WINCH, J.

The. Cleveland Provision Co. brought its action for the balance due on a joint account for meat sold and delivered to Peter Klamut and Helena Klamut, husband and wife, between July 15 and July 29, 1904.

The husband pleaded his discharge in bankruptcy, and a verdict in his favor was directed. The wife claimed that the husband was solely liable on the account, but the jury found against her.

The question of importance before us is, whether silence amounts to assent, i. e., whether a contract is proved by showing a proposition made by the plaintiff to furnish goods upon certain terms of credit, silence on the part of the defendant, and the subsequent furnishing of goods by the plaintiff. The answer to this question depends upon the facts of the particular case.

It appears that Peter Klamut was running a meat market and pool room and saloon in connecting, storerooms, and also that he and his wife lived in the same premises, the wife helping in the saloon, at times, but never in the meat market.

The provision company had been furnishing meat to Peter for which he paid cash, until February, 1904, after which date he had credit, until July 15, after which date .meat was furnished as before, but charged to the joint account of Peter and his wife.

On the latter date, the agent of the provision company went to Peter and told him he wanted to see his wife. He found both behind the bar in the saloon. Peter said: “What do you want, to see the Mrs. for ? ’ ’ Thereupon the agent made the following statement:

“I said we had heretofore extended a line of credit to Peter Klamut, and that I had received a letter that morning from our headquarters, stating that he had misrepresented to me the ownership of the property; that the commercial report showed the property belonged to his wife, and it was on his statement that he owned the property that I had opened an account with him in February, and I told him and Mrs. Klamut very distinctly that under the situation his account would have to be closed after the next day, which was Saturday, and that if any further goods was purchased from the Cleveland Provision Co. that they would either have to pay cash as they had done previous to February second, 1904, or they would have to be charged jointly to Helena and Peter Klamut.
“Q. And where was Mrs. Klamut at that time? A. She was standing right along side of her husband.
“Q. And you say this took place-when? A. Friday afternoon, July 15. I received the letter in the morning and I went to them right after dinner.”

We think the jury was warranted in, finding that the wife heard and understood all that the agent said. It was also shown that some time previous, the husband had transferred all his real property to his wife.

For the ensuing two weeks meat was sent the butcher’s shop as before, a bill or statement accompanying each delivery.

Five of these bills were made out against Peter Klamut, two against Mrs. Peter Klamut and -eight against Helena and Peter Klamut. The defendant produced these bills at the trial and we think the jury was warranted in finding the the wife kenw about them at the time.

Two weekly statements were also mailed in envelopes addressed to the husband, one dated July 19, and the other July 23, both made out against Helena and Peter Klamut.

We think the jury was warranted in finding that the wife knew all about these bills at the time they were received by her husband. Indeed, she had the bill of July 23 in her hands when the agent called' on her, August first, for payment, and on that day she paid the agent $300, which he credited on said bill and handed it back to her. The next day her husband filed his petition in bankruptcy. Some ' ten days later when the agent called upon her for payment of the balance of the bill, the wife said, “she wouldn’t pay any more money into the meat business, and Peter could do as he was a mind to. ’ ’

We are not unmindful that the wife denied what we have said the jury was warranted in finding, but they had a right to disbelieve her.

The case was put to the jury in two aspects: first, was the meat furnished the husband upon the wife’s antecedent and original promise to pay if the husband did not, and second, was the meat furnished both, upon the joint undertaking of both to pay therefor. Special findings were requested by. the defendant involving both theories, and all the questions were answered by the jury, but we find no such inconsistencies in these answers as to invalidate the general verdict, nor do we find any error in the charge.

The sole question remaining is whether the silence of the wife when the agent made his proposition on July 15, and her conduct after that date, made her liable on this account?

We have examined the authorities upon this question and believe the best exposition of the law is to be found in a case cited by plaintiff in error, Royal Ins. Co. v. Beatty, 119 Pa. 6 [12 Atl. 607; 4 Am. St. 622], the syllabus of wdiieh is as follows:

“Where in an action upon a contract the plaintiff’s case consists of the proof of a proposal, with the presumption of assent thereto, arising from the silence of the defendant, no legal inference of a contract can arise out of such silence, without evidence of a duty to speak on the part of the defendant, which was neglected, to the plaintiff’s harm.”

Mr. Justice Green, delivering the opinion of the court, calls attention to the difference between asking a question and receiving no answer, and making a statement or assertion to which there is no reply.

Of the former class was the case cited. To the latter class we thing this ease belongs.

When the agent of 'the provision company told Mrs. Klamut that he would deliver no more meat unless she and her husband paid cash or she and her husband became jointly liable for it, under the circumstances of this ease it was her duty to speak, and tell him not to send any more meat, if she did not desire to be charged for it. When the meat came, with the invoice, she knew the provision company was looking for its payment from her. She then had the election to pay cash or have the goods charged to her and her husband jointly. She said nothing, but suffered other deliveries under the same circumstances. She knew the provision company was charging the meat to her and that deliveries would cease if she denied her liability. Every moral and legal obligation was upon her to speak and save the provision company from loss. The relation of husband and wife is .so intimate in business mattters as well as in other matters, and particularly so in this case, where the wife kept the meat bills behind the bar where she admits that she helped her husband, that we think her silence when the statement of their financial affairs as understood by the provision company, was made to her, coupled with a statement of what the company would do, should not absolve her from liability.

Her silence conceded the truth of said statements and also, in connection with her knowledge of the statements and invoices sent with the deliveries, amounted to assent to the proposition that they should be charged to her account, jointly with her husband, as they were.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    BUILDINGS — COVENANTS—INJUNCTIONS.
    [Cuyahoga (8th) Circuit Court,
    June 3, 1907.]
    Winch, Marvin and Henry, JJ.
    Fred and Louise Seyfried v. George Switzer.
    Building Restrictions not Enforceable when without Equity.
    When plaintiff’s lot was sold to him without restrictive covenants, and defendant owns the next two lots, the deed for one of which contains restrictive covenants, which are not in the deed for the other, plaintiff can not enjoin defendant from building upon both lots though as to one lot the building will be a violation of the covenant in the deed.

      Ford, Snyder & Tilden, for plaintiffs.

      W. II. Boyd, for defendants.
   WINCH, J.

This is an action in which the plaintiffs pray that the defendant be enjoined from building the southerly half of his apartment house within fifteen feet of the sidewalk line.

Plaintiffs own lot 33 on the westerly side of Eaton street, and defendants own lots 2i and 25, which are immediately south of plaintiff’s lot. C. C. Baldwin opened up and dedicated the subdivision of which these lots are part. He adopted no general scheme as to the property, but sold some lots with building restrictions and many more without. As to the three lots in question he first sold the middle lot, number 24, without any restrictions. He next sold lot 25 south of lot 24 inserting in the deed the building restriction mentioned. These two lots now belong to defendant. Thereafter he sold lot 23, north of lot 24, without restrictions in the deed, and this is plaintiff’s lot.

Plaintiffs claim that the restriction as to lot No. 25 was inserted by Baldwin for the benefit of his remaining land and that, being the subsequent grantees from Baldwin, it inures to their benefit.

We think plaintiffs have failed to prove their claim by any satisfactory evidence. It is not all clear that the restriction as to lot 25 was inserted for the benefit of lot 23, for Baldwin had previously parted with the title to lot 24 without restrictions.

Nor can we see that any benefit would follow to plaintiffs or any lot owner north of them, by enforcing the restriction as to lot 25, while none can be enforced as to lot 24, or, indeed, as to plaintiffs’ own lot. On the other hand, serious loss would result to defendant by granting the relief prayed for.

Being without equity, the petition is dismissed.

Marvin and Henry, JJ., concur.


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    CONTRACTS — TIME.
    [Cuyahoga (8th) Circuit Court,
    June 15, 1906.]
    Winch, Marvin and Henry, JJ.

      Herman B. Van Cleve v. Western Glass & Paint Co.
    1. Contract for Gross Quantity of Goods Delivered within Certain Time Held Entire though Shipped in Installments.
    A contract for a gross amount of goods to he delivered within a certain time after specifications are received is an entire contract although the parties may contemplate shipping in installments.
    2. Failure to Perform by One Party Demanding Strict Performance Waives Time Provision.
    When one party to a contract demands strict performance as to time, he must perform on his part, and a failure to do so operates as a waiver of the time provision.

       Affirmed, no op., Western Glass & Paint Co. v. Van Cleve, 78 Ohio St. 427.

   WINCH, J.

The plaintiff brought this action to recover damages for breach of contract between the parties for the sale and delivery of glass, and the plaintiff alleges that he sold the glass to the defendant, but that the latter refused to accept and pay for it. Certain letters are attached to the petition as exhibits and are said to contain the contract between the parties.

The defendant answered, admitting the offer of defendant to sell, and that the letters attached to the petition were written and received by the parties, but claiming a conditional acceptance, as exhibited by a telegram and letter of another date from defendant to plaintiff. This letter is attached to the answer as an exhibit. The condition claimed was that the glass was to be delivered during the month of December, or within ninety days thereafter, and the defense is, that this condition was not complied with. A stipulation signed by the plaintiff and filed in the case, admitted the receipt by plaintiff of said telegram and letter of the defendant.

The cause coming on to be heard before the trial court, a jury was waived and thereupon the defendant objected to the introduction of any evidence under the petition.

The bill of exceptions shows that thereupon the court considered the pleadings and the several letters and telegram referred to and the stipulation as exhibiting the conceded facts in the case and construing the contract thereby shown, ruled with the defendant and dismissed the petition.

We think the trial judge was warranted in disposing of the case summarily, as he did, but that he came to a wrong conclusion as to the terms of the contract as shown by the conceded facts.

A short synopsis of facts is necessary, that the reasons for the conclusion we have arrived at may be made plain.

November 20, 1903, plaintiff wrote defendant, “would quote you 500 or 1000 boxes of window glass and not to exceed 1500 boxes, * * * you to name the definite quantity, specifications to be in at your convenience up to December 31st, and shipment to be made within sixty to ninety days thereafter at the factory convenience. By the end of December you should know just how complete or incomplete your stock is, and as we are taking advantage of the present conditions to book considerable business ahead, it will be no hardship to us if we know just what we are to ship, and have the specifications to work to.”

Telegram from defendant to plaintiff November 25, 1908:

‘‘Will take 1000 boxes offer 20th. Want one car December shipment, sizes immediately,” followed by letter of the same date, confirming telegram and adding: ‘‘We have sizes in the mail' on the way now from one of our customers for a ear which, if satisfaetoiy when received, we will forward to you. This car we would like to have shipped during December and the rest of it can forward at your leisure. We trust this arrangement will be satisfactory.”

Thus a contract was entered into between the parties, whereby plaintiff agreed to sell and defendant agreed to buy 1,000 boxes, about two carloads, of window glass. It will be noticed that defendant was to furnish specifications as to sizes ,and upon receipt of same, plaintiff was to fill the order and could not do so until said specifications were received.

But this contract, we hold, urns rescinded and a new contract entered into, by letter from defendant to plaintiff dated December 8, 1903, as follows:

‘‘When we telegraphed you, we had an order for a car of glass to go west, and we were advised by wire that the sizes were in the mail. It seems they did not mail them until some time after, and they have not yet reached us. However, we will take one thousand boxes as per your offer, and presume that it makes no difference to you whether the sizes are furnished immediately or not.”

The construction to be put upon this contract is that plaintiff agreed to sell one thousand boxes of window glass to be shipped within ninety days after receipt of specifications from the defendant, and defendant areed to receive and pay for one thousand boxes, if shipped within niney days after it had furnished specifications therefor. It was an entire contract for one thousand boxes.

It is conceded that the defendant furnished specifications as follows: December 22, 1903, for 500 boxes, or one carload; January 1, 1904, for five boxes; January 5, 1904, for thirty-three boxes; January 17, 1904, for five boxes, being 543 boxes in all, which plaintiff did not undertake to ship until April 6, 1904, more than ninety days after December 31, 1903, and for that reason defendant refused to accept. Defendant has never furnished specifications for the remaining 457 boxes which it agreed to take.

Considering this contract an entire one, for one thousand boxes, plaintiff was under no obligation to ship any part thereof, until he received specifications for the entire lot. The fact that he did send forward about half of the order was gratuitous on his part, and does hot affect the construction to be put upon the contract.

The defendant, by its letter of December 8,1903, ordered one thousand boxes, as per ,your offer. That offer was to ship in ninety days after receipt of specifications. The condition in the defendant’s letter of November 25, 1903, that one carload should be shipped during December, was abandoned.

If we are right in our conclusion that this was an entire contract for one thousand boxes, it seems that it was the defendant’s delay in furnishing specifications which caused plaintiff’s delay in shipping, and that the defendant therefore may not allege delay in shipping as a defense for his refusal to accept and breach of contract.

The case of Dannat v. Fuller, 120 N. Y. 554 [24 N. E. 815], involved a building contract, the owner suing the contractor for delay and the contractor claiming that his delay was due to the owner’s fault, and the court said:

“Where one party to a contract demands a strict performance as to time, he must perform on his part the conditions requisite to enable the other party to perform his part and a failure to do so operates as a waiver of the time provision.”

This is á wholesome doctrine and was applied in the case of Contractors & Builders’ Supply Co. v. Alta Portland Cement Co., 26 O. C. C. 49 (4 N. S. 225), where the cement company agreed to sell 15,000 barrels of cement and to deliver the same from time to time during the season, as the supply company might require, payments to be made for each delivery within sixty days from date of each bill of lading. Some deliveries were made, but tbe supply company not paying therefor as agreed, the cement company refused to make further deliveries until such payments were made. The court, Judge Mooney, now deceased, delivering the opinion held that the contract was an entire one, though of an installment nature, and cited the authorities on the proposition we turn this case upon.

We think the court below erred in dismissing the petition, and for that reason the judgment is reversed and the cause remanded for a new trial.

Marvin and Henry, JJ., concur.


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    DITCHES.
    [Cuyahoga (8th) Circuit Court,
    January 14, 1907.)
    Winch, Marvin and Henry, JJ.
    Gerard J. Malle v. Smith and Babcock.
    Property Owner Failing to Make Claim for Damages Can Not Enjoin Construction of County Ditch Improvement.
    When county commissioners have followed the course prescribed by statutes in fixing a day for hearing applications for damages for land appropriated for or affected by a ditch improvement, a property owner who has failed to make claim for damages, is deemed to have waived them and can not enjoin the depositing of soil taken from the ditch upon his land when the work is being done in the usual manner.
    Error.
   WINCH, J.

This was an action to enjoin the defendants from trespassing upon plaintiff’s farm, destroying his crops and depositing shale upon the soil of his farm, in the defendant’s operations in widening and deepening a county ditch running through the plaintiff’s land.

A temporary restraining order having been allowed upon the filing of the petition in the common pleas court, the defendants moved a dissolution of said order, and the same being granted upon affidavits showing that they were doing the work in the manner usual and customary in such operations, the case was brought here on error, for' a review of said order.

The petition alleges that the defendants were doing the work complained of under a contract with the county commissioners, and as no attack is made upon the regularity of the proceedings of the commissioners, we must assume that they complied with the statutes in such case made and provided, and look to said, statutes for a determination of the plaintiff’s rights in the premsies.

Section 4447 R. S. (Sec. 6443 G-. C.) authorizes the county commissioners to locate and construct, straighten, widen, alter, deepen, box or tile any ditch, drain or water-course within the county, when the same is necessary to drain lands or conducive to the public health, convenience or welfare.

By Sec. 4452 R. S. (See. 6451 G-. C.), if the commissioners decide upon a ditch improvement, they are required to "fix a day for the hearing of applications for any appropriation of land taken for said improvement, and- damages the parties affected by said improvement, or any of them, may sustain thereby.”

Section 4460 R. S. (See. 6460 G. C.) provides that any time on or before the day set for hearing, as provided in Sec. 4452 R. S. (See. 6451 G. C.), any person or corporation whose lands are taken, or affected in any way by such improvement, may make application to said commissioners, in writing, for compensation or damages, and a failure to make such application shall be deemed and held to be a waiver of all rights thereto.

The first paragraph of Sec. 4461 R. S. (Sec. 6461 G. C.), provides that, "the commissioners shall, upon actual view of the premises, fix and allow such compensation for lands appropriated as they may deem just and equitable, and assess such damages as will in their judgment accrue from the construction of the improvement, to each person or corporation making the application therefor, as provided in See. 4460 (6460),” and the last'paragraph of said section provides, "that if any person or corporation aggrieved by any final order or judgment of the commissioners shall at the hearing before them, or within such time as may be provided by law, file a written notice of an intention to appeal therefrom no further proceedings shall be had, and no payments shall be made until said proceedings on appeal shall be finally disposed of and determined.”

Subsequent sections of the statutes regulate the appeal to the courts, which is thus provided.

From the petition and the affidavits filed, it appears that the threatened injury to his land which plaintiffs sought to enjoin, was that contemplated by these statutes, as accruing from the construction of the improvement, and we must assume that plaintiff' was either compensated therefor, or waived all claim therefor, as provided in said statutes.

The claim made by counsel for plaintiff, that to so hold would be to permit a taking of his property for public purposes, without first compensating him in money, contrary to the Constitution, is not maintainable.

The provision for appeal to the courts above mentioned which includes trial by jury on his claim for damages,, brings the statutory proceedings within the Constitution, as was held in the case of Zimmerman v. Canfield, 42 Ohio St. 463.

If the plaintiff neglected to avail himself of his statutory remedy, his counsel can not now seek relief for him in equity.

The restraining order was properly dissolved, and the judgment is affirmed.

Marvin and Henry, JJ., concur.


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    APPEALS.
    [Cuyahoga (8th) Circuit Court,
    June 28, 1907.]
    Winch, Marvin and Henry, Jj.
    Strass et al v. Lambs Inn Co. et al.
    Action for Possession of Property in Hands of Receiver is Appealable.
    A claim to recover property in the hands of a receiver, made and determined in an equitable action in which the receiver was appointed, is appealable.
   WINCH, J.

Plaintiff being a creditor of the defendant, the Lambs Inn Co., brought his action in the common pleas against said company, setting up his claim, alleging the insolvency of the corporation, and praying for judgment on his claim, and the appointment of a receiver for the corporation.

Said court appointed a receiver, as prayed for, who took possession of all the property of the corporation, including certain ranges and other cooking apparatus, which, including the things mentioned, had been sold to it by the Born Steel Range Co.

Thereupon the range company came into the case as a defendant and claimed title to the ranges and other personal property it had sold to the inn company. The receiver contested this claim, and the matter was heard by the court without a jury, and adjudicated in favor of the receiver.

Thereupon the range company appealed the matter to this court, and the receiver has filed a motion to dismiss the appeal on the ground that the case made by the range company is not an appealable one.

We overrule this motion. As stated by Judge Boynton in the cáse of Olds v. Tucker, 35 Ohio St. 581, 584:

“No principle is better settled than that a right asserted against a receiver to property rightfully in his hands, where the right to sue in an independent action is not given by statute, must be worked out, either in the action in which the receiver was appointed, or in an independent action brought only upon leave of the court by which the appointment was made. ’ ’

Here the range company chose to work out its right in the action in which the receiver was appointed. That action was in equity, and is appealable.

Coming to the merits of the case, it appears from the pleadings and the evidence, which we have no time to comment upon, that the range company claims the right to the possession of said chattels on three grounds:

First. That title to said chattels never passed to the inn company, because the delivery of the possession thereof was induced by the false representations of the latter.

On this point we find that if any false representations were made by the inn company as to any material matter, such representations were not relied upon by the range company, and it was not induced to deliver said chattels by reason of any false representations.

Second. That the sale was for cash and the inn company not complying wit hthe condition of the sale, title never passed.

' On this point we find that if the sale was originally for cash, as claimed, that condition was thereafter waived by the company, and it is now estopped from making such claim.

Third. That the range company is entitled to possession of the chattels under a chattel mortgage executed by the inn company to it.

As we find that the officer of the inn company who signed this chattel mortgage had no authority, express or implied, from the directors of said company, to execute and deliver said mortgage to the range company, it is of no validity, as against the receiver.

Thus it seems that the range company has failed to maintain the issue tendered by it in the cross-petition and the same is therefore dismissed.

Marvin and Henry, JJ., concur.


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    BANKRUPTCY.
    [Cuyahoga (8th) Circuit Court,
    March, 1907.]
    Winch, Marvin and Henry, JJ.
    C. A. Chapman, Tr. v. Forest City Savings Bank Co.
    Payments Made within Four Months of Bankruptcy not Amounting to Preference.
    When a creditor advances money to a bankrupt to enable him to carry out a contract with a third- party and receives notes therefor more than four months before the act of bankruptcy, upon a verbal agreement that the third party shall pay the creditor such sums as may become due by reason of the performance of his contract by the bankrupt, which payments shall be applied upon the notes, payments made in pursuance thereof less than four months before the act of bankruptcy do not amount to a preference.

      Error.
   WINCH, J.

This was an action brought by the plaintiff, as trustee in bankruptcy of Campbell Brothers, against the bank to recover preferential payments, aggregating $16,940.37, claimed to have been made by the bankrupts to the bank within four months of the filing of the petition in bankrupcy.

At the trial the defendant, admitting that said aggregate sum had been paid within four months upon indebtedness to the bank existing prior thereto, made these claims:

First. That the bank, by new loans made by it to the bankrupts during said period, increased the bankrupts’ estate by as much as, or more than the sum paid to it within said time.

Second. That said payments were received by it- from the city of Cleveland upon claims of the bankrupts against said city, assigned to the bank prior to said time.

Third. That the conduct of the parties was not such as to make said payments a preference under the bankruptcy act.

The jury found for the defendants and the matter is here upon petition in error, with complaint that the verdict is not sustained by the evidence, and that the court erred in its charges and its refusal to charge as requested by the plaintiff.

If the jury was warranted in finding on any one of these issues in favor of the defendant, the judgment must be affirmed unless the charge was erroneous as to all of the issues.

As to the first proposition, that the bank made now loans to the bankrupts after August 19, 1901, being the beginning of the four months in question, which equalled or exceeded the payments on pre-existing indebtedness received by it during said period an examination of the statement of the account between the parties attached to the bill of exceptions as defendant’s Exhibit L shows that this claim is not fully borne out. We find that after said date the bank made new loans aggregating $17,050 and received as payments on pre-existing indebtedness the sum of $18,842.81, being an excess of about $1,800.

The jury’s verdict, therefore, if based upon this claim, would not be sustained by the evidence.

The second proposition involves the validity of the assignment by the bankrupts to the bank of money coming to the former from the city of Cleveland on contracts for street improvements.

The evidence on this point fairly shows that some years before their failure the firm of Campbell Brothers, being engaged in the contracting business and expecting to bid on street improvement work for the city, made an arrangement with the bank, whereby it was to advance the funds necessary to carry on such work under any contracts the firm might enter into, until repaid out of estimates, as the same should become due and payable by the city. The city was advised of this arrangement, and instructed to make all its checks payable to the contractors and the bank, whenever anything should become due on any contracts that might be entered into between the parties; to this arrangement the city assented, and for years invariably made its checks so payable that the bank always drew the funds due from the city to Campbell Brothers on all contracts said firm had with the city.

Each time Campbell Brothers received any money from the bank, pursuant to this arrangement, there was at the time a contract in existence duly entered into by the firm with the city, upon which payments would become due as the work under said contract progressed, and each 'time the firm received any money from the bank, it was for the purpose of carrying on contracts at the. time existing, and notes for such advances were given by Campbell Brothers to the bank on which -were notated a memorandum of the particular contract with the city out of estimates on which said notes w-ere to be paid.

The contention in this ease is solely with regard to payments by the city to the bank which were received by it after August 16, 1901, and applied on such notes, which had been delivered to it previous to said date and bore said notations.

We think the jury might well have found from the evidence that each time one of the notes in question was given, as collateral security thereto a verbal assignment, with the consent of the city, was then made by the bankrupts of the amount thereafter to become due to 'them from the city on contracts at the time existing with it.

Such assignments would be valid. Brooks Co. v. Tolman, 27 O. C. C. 321 (6 N. S. 137); Rodijkeit v. Andrews, 74 Ohio St., 104 [77 N. E. 747; 5 L. R. A. (N. S.) 564; 6 Ann. Cas. 761] ; Field v. Mayer, etc., 6 N. Y. 179 [57 Am. Dec. 435].

In the light of these authorities there was no prejudicial error in refusing to charge as requested by the plaintiff on this subject.

These assignments having been made before August 16,1901, payments received from the city under them, after August 16, 1901, would not be preferential under the bankruptcy law.

Third. Was the conduct of 'the parties such as to render the payments received by it, within the four months, preferential?

While our conclusions on the second proposition make an examination of this question unnecessary still it is due to counsel, who have carefully presented the point, that we intimate our views thereon.

By reason of provisions of the bankruptcy law, it was incumbent upon the plaintiff to show:

(a). That the debtors were insolvent on and after August 16, 1901. The trustee in bankruptcy seems to have sustained this burden.

(&). That the payments in controversy were made within four months of the filing of the petition in bankruptcy. This is conceded.

(c). That the bank had reasonable cause to believe that the payments received by it were intended to give a preference.

There are two branches to this inquiry:

Did the bank have reasonable cause to believe that Campbell Brothers were insolvent, or that it was getting more than it should, as a preference?

On these matters the testimony is conflicting, and we would not disturb a verdict either way.

The criticisms on the charge as given, refer to this issue.

While we do no't commend the charge as given — it is not always clear as to the law and contains some erroneous statements, which, however, were favorable to the plaintiff — still we do not find it prejudicial to the plaintiff in the respect claimed.

(d). Did the bank receive more than it otherwise would, if it presented its claims to the trustee, surrendered the payment received by it by way of preference, and then received its dividend from the trustee?

Considering as we do, that the bank under such circumstances would have to surrender only $1,800, because i't had increased the bankrupts’ estate by $17,050 after August 16, 1901, we are unable to say from the evidence, that the jury would not be warranted in finding that its dividends would ¿till be $1,800.

The plaintiff did not sustain his burden in this respect, and there was no error in the charge on this point.

It remains to consider a general criticism of the charge as given, to the effect that it conveyed a notion to the jury that plaintiff had to prove that the entire sum recover any pari thereof.

General language used in the charge is in some places open to this objection, but in stating the issues between the parties the court said:

"Each separate item of the five amounts claimed by the plaintiff is a separate cause of action and the plaintiff may recover on one or more or all or none, as the evidence may warrant. ”

If the plaintiff desired more specific direction on this proposition, he should have requested it. Indeed, it seems that it is in this court that he first contends that though he may have failed as to the whole, he is still entitled to some part of what he claimed as preferential payments.

We find no error in the record prejudicial to the plaintiff in error, and believing that the verdict is not against the weight of the evidence, the judgment is affirmed.

Marvin and Henry, JJ., concur.


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    ACTION — PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    1907.]
    Winch, Marvin and Henry, JJ.

      Rebecca Harrison v. Herman Spitz.
    Action Ex Delicto as for Waste not Maintainable where Petition is Ex Contractu.

    When by her petition the plaintiff seeks to charge defendant for waste under the covenants of a lease, and her evidence fails to prove any contract of lease binding upon the defendant, evidence tending to show the defendant liable ex delicto as for waste committed is not admissible.
    Error.

      Kerruish & Kerruish, for plaintiff in error.

      Carpenter, Young '<& Stocker, for defendant in error.

       Affirmed, no op., Harrison v. Spitz, 80 Ohio St. 747.

   WINCH, J.

Plaintiff in error brought her action against defendant in error, seeking to charge him for waste under the covenants of a lease set forth in her petition. At the trial she failed to prove that the lease contract was binding upon the defendant, and thereupon offered evidence tending to show that the defendant was liable in tort for the waste committed. This the trial judge refused to permit her to do under her petition, holding that it stated an action ex contractu while the evidence offered was in support of a claim arising ex delicto.

In this we think there was no error, though it is urged here, as it was in the court below, that certain equivocal and ambiguous sentences and phrases, taken by themselves and disregarding all other allegations of the petition would support the theory that defendant had been guilty of a tort.

The character of a pleading is to be determined by the intention of the pleader as gathered from the whole pleading, and there is no question that the plaintiff, by her petition, intended to summon the defendant to court to answer for the breach of certain covenants of a lease. He came into court to answer that complaint and should not be held to answer another.

We affirm this judgment the more readily because plaintiff has lost nothing by it. If she wishes to bring another action to recover for the alleged tort, she can do so, for this judgment as to the contract will be no bar to it.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    APPEAL.
    [Cuyahoga (8th) Circuit Court,
    June 11, 1907.]
    Winch, Marvin and Henry, JJ.

      Charles Brenner v. State ex rel Alice Spisak.
    Proceedings in Aid of Execution before J. P., Appealable.
    Proceedings in aid of execution, brought before a justice of the peace against a judgment debtor, may be appealed by him to the common pleas court.
    Error.

       Affirmed, no op., Brenner v. State, 82 Ohio St., 424.

   WINCH, J.

The sole question in this case is whether a judgment debtor, against whom proceedings in aid of execution have been brought before a justice of the peace, as provided in Sec. 6080-1 R. S. et seq. (Sec. 10463 G. C. et seq.) is entitled to appeal said proceedings to the common pleas court.

This question was raised in.the case of Deveaux v. Leslie, 9 Circ. Dec. 480 (18 R., 482), and the Lucas county circuit court, Judge Haynes delivering the opinion, held that an appeal would lie in such cases. .

This court, in the ease of Carlin v. Hower, 24 O. C. C., 153 (5 N. S. 70), concurred in said opinion, and we now see no reason for changing our views on the subject.

The case of Wilson Co. v. Cleveland Electric Ry. 28 O. C. C. 159 (7 N. S. 258), does not overrule the ease of Carlin v. Hower, supra on this proposition.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    ACCOUNTS — LIMITATIONS.
    [Cuyahoga (8th) Circuit Court,
    September 28, 1907.]
    Winch, Marvin and Henry, JJ.
    Jesse B. Marshall, Adm. v. Jacob H. Firestone.
    1. Part Payment of Greater Debt Essential to Defeat Limitations.
    It must affirmatively appear that the payment relied upon as defeating the statute of limitations was a part payment of a greater debt and not a somplete satisfaction of the debt.
    2. Action Begun on Sixth Anniversary of Date of Obligation Sufficient.
    Actions on a book account may be begun on the sixth anniversary of the date when the obligation was incurred.
    Error.
   WINCH, J.

The original action was brought in a justice’s court, for the balance of an account, the items of which, according to the books of the plaintiff’s decedent, are as follows:

February 10, 1900. Wrapping pipes. $ 15.00

December 20, 1898. Contract for heating plant. 365.00

February 13, 1900. Grate var. 2.00

Total. 382.00

May 26, 1900. Credit by check. 350.00

Balance $ 32.00

The check thus credited, was dated May 24, 1900, and came through the clearing house to the bank on which it was drawn on May 28, 1900.

A witness testifies that some, time in 1900, when the decedent demanded payment of Firestone, the latter offered to pay $350 in full of what he owed, if the former would wrap the pipes; that the decedent agreed to do this for $15, to which Firestone assented.

The justice rendered judgment against the plaintiff, upon the ground that the action was barred by the six years statute of limitations, and this judgment having been affirmed by the court of common pleas, is here sought to be reversed.

If the date of the credit on decedent’s books is deemed correct, the action having been brought on the sixth anniversary of that date is “within the six years,” as required by Sec. 4991 R. S. (Sec. 11233 G. C.), computing “the time within which” such action must be brought in the manner prescribed by See. 4951 R. S. (See. 10216 G. C.), by excluding the first day, i. e., the one on which the cause of action accrued, and including the last day, i. e., the one on which suit is brought. Harris & Harris v. Harris, 7 Circ. Dec. 189 (13 R. 170).

True, this manner of computation results in the anomoly of giving six years and one day in which to sue; for of course suit may be brought on the very day a cause of action accrues. But the matter of computation being prescribed by statute, we have no other course than to follow it.

The date of the cheek, though doubtless evidence of the time when it was executed, is not evidence of the time of its delivery. The only evidence fixing the latter time is the date May 26, 1900, of the credit in decedent’s book. It was on that date, as shown by said book, that decedent received payment, the check not having been thereafter dishonored.

The date when the pipes were wrapped is involved in hopeless confusion and affords no aid in determining the date of delivery of the check. But the evidence that the cheek was given in full payment of all claims (except $15 for wrapping the pipes, which was not owing, because the work was yet to be done), renders applicable the principles laid down in Wood, Limitations, See. 98:

“If the payment is accompanied by declarations and statements from some of which it is to be inferred that a further debt remained due, and from others that all further liability was repudiated, it is for a jury to draw their own conclusions from the statements made, and adopt or reject what portions of them they think fit. * * * The burden of establishing a part payment sufficient as to time and other circumstances to remove the statute bar is upon the plaintiff.”

To the same effeet are the following authorities: Kaufman v. Broughton, 31 Ohio St. 424; Bogart v. Cox, 2 Circ. Dec. 551 (4 R. 289); 25 Cyc. 1373, 1374; 19 Am. & Eng. Enc. of Law, 325; 33 Cent. Dig., 1180, 1202.

“It must affirmatively appear that the payment relied on as defeating the statute of limitations was a part payment of a greater debt and not a complete satisfaction for the debt. ’ ’

The justice in weighing the evidence, found that plaintiff had not sustained the burden the law imposed upon him. As every item of the account proved is on its face barred, unless acknowledged by the part payment, we can not hold that the justice erred in refusing so to interpret the credit relied on.

Judgments below are affirmed.

Marvin and Henry, JJ., concur.