text:
    THE DOCTRINE OF RES IPSA LOQUITUR NOT APPLICABLE TO ELECTRICITY.
    |.Circuit Court of Huron County.]
    Charles E. Marsh et al v. Lake Shore Electric Railway et al.

    Decided, December, 1905.

      Electricity and Electrical Wires — Fact of Escape of Electricity not Sufficient in the Absence of Negligence to Charge Electric Companies with Liability for Damages — Fire Started by Fugitive Current — Reasonable Safety Devices — Classification of Electricity— Doctrine of Res Ipsa Loquitur not Applicable — Charge of Court.

    1. The mere fact that electricity, generated by an electric railroad company, escaped from its trolley wire to one of its span wires; thence to a telephone cable of a telephone company;, thence to a telephone cable of another telephone company; thence to a gas • pipe in a store building; thence to the lead connection with a gas meter in the basement, which was melted off, igniting the gas, setting fire to the floor above and damaging a stock of goods, does not render all or any of said companies liable in damages- to the owner of the goods, in the absence of proof of negligence on the part of one or more of said companies.
    2. Electricity is of a highly dangerous character, but of such common and recognized use in modern civilization that its use and keeping are sanctioned by law, and if injurious consequences flow from its use and keeping, negligence of the user or keeper must be shown to render him liable to one injured by an electric current.
    3. In the absence of a contractual relation between the parties, or of a statute regulating the matter, the doctrine of res ipsa loquitur applies only to the case of such highly dangerous things or agencies as are kept or used solely because of their highly dangerous character, and not to electricity which is classed with steam rather than dynamite.
    Winch, J. (sitting in place of Wildman, J.); Haynes, J., and Parker, J., concur.
    Error to Huron Common Pleas Court.

      Affirming 3 O. L. R., 635.

   This was an action for damages brought by plaintiffs to recover for loss of a stock of goods in a store building in Norwalk by reason of fire alleged to have been caused by the negligence of the defendants. Some of the defendants were dismissed from the case by the trial judge and as to this we understand there is no complaint.

The case was submitted to the jury as to the negligence of the defendants, Albert E. Lang, receiver, operating the Lake Shore Electric Railway, the Central Union Telephone' Company and the Local Telephone Company. Plaintiffs claim that the fire originated by reason of the following sequence of events:

On August 2, 1902, the Central Union Telephone Company was stringing a messenger wire on the south side of east Main street, east of where the fire occurred, using a tackle and horse to stretch the wire. A rope in the tackle attached to the messenger wire broke and permitted the said wire to sag down onto a span wire of the Lake Shore Electric Company which was heavily charged with electricity from its trolley wire. The electric current passed easterly on this messenger wire until it came to a guy wire crossing the street to the north, which it followed to the north side of the street where it met certain lead hangers supporting the cable covered with a lead sheath belonging to the Local Telephone Company; it traveled on this lead sheath to the west and followed it southerly back across the street and into the exchange of the Local Company on the top floor of the building, the ground floor and basement of which was occupied by the plaintiffs. This cable on the top floor of the building crossed a gas pipe with which it was in contact, or so near that the electric current passed by arcing or otherwise into the gas pipe and down it to the basement where it came to the lead pipe connecting the gas pipe to the gas meter, which lead connection it melted off, allowing the gas to escape and igniting it. The ignited gas set fire to the floor above it and from this fire the damage arose, as it is claimed.

The plaintiffs alleged that the Lake Shore Electric Company, which name may be used as meaning its receiver, was negligent and failed to use ordinary care in not placing and maintaining an insulating device in the span wire between its trolley wire and the pole to which said span wire was attached, and in not placing a guard wire over said span wire.

They alleged that' the Central Union Company was negligent in allowing its messenger wire to come in contact with said span wire and at the same time with the guy wire crossing the street.

They alleged that the Local Company was negligent in placing its lead-sheathed cable so near to the iron gas pipe connected with the meter in plaintiffs’ basement that any heavy current of electricity would arc from said cable to said gas pipe, without providing some adequate insulating device to prevent such arcing.

The answers of the defendants severally deny negligence on the part of the defendants and that the fire occurred in the manner claimed by plaintiffs. One or more of the defendants deny that the fire occurred at all, and allege that if it did, it was by reason of the plaintiffs’ own negligence.

Plaintiffs’ reply denies contributory negligence.

The issues of fact thus raised were submitted to the jury, which found for the defendants, and judgment was entered accordingly.

Plaintiffs have brought the case here and urge that the judgment be reversed and the cause remanded for a new trial for error in rulings on evidence and in the charge of the court. As to the many exceptions to rulings on evidence, which have been called to our attention, all we can say is, that we have examined and considered them, but find no error prejudicial to plaintiffs which would require a reversal of this case. The bill of exceptions is so long, the rulings complained of so numerous and the character of the evidence, much of it expert, testimony as to the nature and characteristics of electricity, so technical and abstruse, that no good purpose would be subserved by reviewing in detail the rulings complained of.

As to the charge, exceptions were taken by the plaintiffs to the charge as given by the court, to the giving of certain requests to charge of defendants and the refusal to give certain requests to charge of plaintiffs.

The sum and substance of the objections to the charge is, that it held the plaintiffs to the burden of proving the negligence of one or more of the defendants as charged in the petition, while plaintiffs now claim that the doctrine of res ipsa loquitur should' have been charged; in other words, that, having proved the fact of the injury and the defendants’ connection with it, as claimed, it was for the defendants to prove, if they could, that they- were without fault. The charge as given, is published in Marsh v. Railway, 3 O. L. R. 635, and for that reason it is not now necessary to restate its propositions. What counsel for plaintiffs in error claim as the correct rule for the 'case is best stated in their own words, as follows:

“When we began this action we believed that the doctrine laid down by Judge Blackburn in the case of Fletcher v. By-lands, 5 H. L. Rep., 330, was the correct rule of damages in this case at bar, but did not feel so sure as we do now, and plead negligence, and upon a hearing upon motions and demurrers, we took leave to amend and again plead negligence. We are now firmly of the opinion that a statement of the facts, showing that an electrical force was created or gathered, and conducted upon our premises, setting fire to them and causing damages by smoke, states a good cause of action without pleading negligence. The language used by Judge Blackburn exactly fits this case, in that we were in and upon our own premises, and the three defendant corporations, in the prosecution of their several businesses for profit, created or gathered together a dangerous and destructive force, from which, if it escaped, injury was liable to follow, and well knowing this, not only permitted it to escape, but constructed a path or channel that was bound, under the laws of nature, to bring it in and upon our premises, by reason of which our goods were smoked and damaged, without any fault of ours.”

There occur to us at least three reasons why the rule contended for should not have been applied in this case: First,

because it is not certain from the evidence that the fire was started in the manner claimed by defendants; second, at least one of the defendants, the local company, was not active in the transaction at all; third, the “celebrated and much criticised case of Fletcher v. Rylands,” has never been adopted in its entirety as the law of this state.

On page 146 of the opinion in the case of Langabaugh v. Anderson, 68 Ohio St., 131; Judge Price says:

“As yet no decision of this court has adopted the' entire scope of Fletcher v. Bylands, and while it holds in general a good and wholesome doctrine, resting on good morals and sound reason, its application should be made with suitable and necessary limitations. ’ ’

But let us take up plaintiffs’ claim with regard to the Lake Shore Company, alone, as that company appears to come more nearly within the scope of plaintiffs’ contention. Here was a company handling and using for its own purposes a subtle and highly dangerous energy, harmless, if properly handled, ■ but of such tension and so dangerous if allowed to escape that injury was sure to happen to persons or property coming in contact with it. The great danger to be apprehended from electricity of high voltage or tension is known to us all, for is it not selected by the state as the instrument for the speedy execution of those condemned to death?

With regards to the rule that the “occurrence speaks for itself, ’ ’ many cases have been cited to us. Most of the cases are gathered together and analyzed by Judge Price in the case of Langabaugh v. Anderson, supra, and from his analysis we gather that there are three classes of cases in which the rule is applied:

First, those cases in which a duty is imposed upon the defendant by reason of a contractual relation between the parties.

To this class belongs the sleeping-car case, where the upper berth fell- upon the passenger in the car (Railway v. Walrath, 38 Ohio St., 461). The railroad company, in effect, was held to be the insurer of the safety of the passenger.

The same rule was applied by the Summit County Circuit Court in the ease of Wheeler v. Traction Co., 6 C. C. — N. S., 406. Wheeler had contracted with the defendant company to supply him with a current of 104 volts of electricity for incandescent lights. Such current is harmless. The company permitted 1040 volts to pass in over its wire. Wheeler was killed. The company was held to an explanation of the injury and liable, unless it showed that some one else sent in the deadly current. The case here does not come in this class, for no contractual relation existed between the parties.

The second class of cases includes those where a statutory-duty has been violated, such as in the case of Gas Fuel Co. v. Andrews, 50 Ohio St., 695, where it was held:

“The provision of Revised Statutes, 3561a, impose on plaintiff in error the duty of keeping under its control natural gas while it is transporting the same, and if damage should result to others, without their fault, by its explosion while being thus transported, the plaintiff in error would be .held liable therefor, although not negligent in regard thereto.”

It is not pleaded in this case that any duty- is imposed upon defendants by statute, which they violated.

A third class of cases is that where the defendant is keeping or using a highly dangerous thing or agency, which is liable to do harm to others if it escapes or is negligently used or handled. To this class belongs the case at bar, but we find here a distinction pointed out which requires a further classification or subdivision into those which are at all times, in all places and under all circumstances dangerous: such as are made, bought, sold and used because of their highly dangerous 'character, as to which the owner assumes the liability of their accomplishing natural and probable results; and the other subdivision, those things of a highly dangerous character, but yet of such common and recognized use in modern civilization that their use or keeping is sanctioned by law and necessary in many departments of industry, as to which the courts hold that their use being lawful, if injurious ’ consequences flow therefrom, negligence in their use must be shown, to render the defendant liable.

Now, to which of these classes belongs electricity of tensio]) sufficient to run a trolley car and which will kill a man if not properly handled?

In applying the distinction here drawn to the case at bar, the court confesses its ignorance of natural science. Much help is to be had by reference to the decisions of the Supreme Court of this state, but principally by way of illustration. The law is growing from day to day, as industrial science is growing, so that what may now be considered in the first subdivision of this class, ten years from now, by reason of the advance of the arts, may belong to the second subdivision.

In the first subdivision belong the gunpowder and .nitroglycerine cases, such as the case of Bradford Glycerine Co. v. Manufacturing Co. 60 Ohio St., 560, where it was held that the owner ol the explosive was liable for damages caused by its explosion, without proving that he was negligent.

Of the same character, is the vicious dog case of Hayes v. Smith, 62 Ohio St., 161.

On the other hand, it has been held -that negligence must be proved in the case of sparks from a locomotive (Ruffner v. Railway, 34 Ohio St., 96); explosion of a steam boiler (Huff v. Austin, 46 Ohio St., 386), and storage of crude petroleum in tanks (Langabaugh v. Anderson, 68 Ohio St., 131).

In the steam boiler ease it was said:

“The defendants had a right to place the steam boiler on their premises. Used as it was to run the sawmill, it was in no sense a nuisance. As an agent in the various departments of industry, the steam engine has become a necessity in modern life. But though placed on one’s own premises, the owner of a steam engine and boiler will be held responsible for his negligence, if he so operates the same as to injure one who comes lawfully upon the premises by invitation or permission. Though doing a lawful act upon his own premises, he will be liable for injurious consequences that may result from it to another, if it was so done as to constitute actionable negligence. In such ease there is a proper application of the rule that one should enjoy his own property in such manner as not to injure that of another. ’ ’

We are aware that in some states electricity has apparently been classed with dynamite rather than with steam. The strongest expressions of opinion on the subject are found in the Louisiana case of Potts v. Railway, 110 La., 1 (34 So. Rep., 103), but they were not necessary to a determination of the ease, for the telephone lineman knew that the span wire of the trolley company was charged with electricity, and the only issue involved was as to the lineman’s contributory negligence.

The modern uses of the subtle and highly dangerous energy, called electricity, in the industrial and commercial world are perhaps more numerous, and at least more common or widespread, than the uses of steam. Counsel for plaintiff suggest that electricity operates under known rules. It lights our streets and houses; it warms our cars; it runs our motive power, or is our motive power in the operation of manufacturing establishments; it is used in chemistry and the arts in manifold ways, sometimes to reduce the most infusible substances by its great heat, coupled with its peculiar energy. It propels our cars with the speed of a locomotive and carries a whisper for a thousand miles. Its energy varies 'and is controlled, from that which rings your door bell to that which executes your criminals.

McKnight é Thomas, for plaintiffs.

S. M. Young and A. V. Andrews, for Albion E. Lang, receiver of Lake Shore Electric Railway.

G. P. & L. W. Wickham, for Central Union Telephone Co.

A. M. Beattie and Jesse Vickery, for Local Telephone Company.

It is harmless, indeed healthful, when but slightly present; it is deadly when of high degree or tension. Varying through all these degrees from harmless to deadly, it éncircles the earth upon a mesh of wires and we can not now get along without it. IIow many years backward would civilization step, if we abolished electricity from the daily affairs of life. Its use is recognized and lawful. Its dangerous qualities are fully known by all- — as fully as, if not better than, the expansive power of steam. Shall those who store it, or use it, be held to be insurers of the safety of all persons who may come in contact with it in person or property, or shall they be held to care, commensurate with its deadly qualities, as they are in the ease of steam?

For the reasons stated, we are inclined to think the charge in this case was warranted by the case of Langabaugh v. Anderson, supra.

Again, we are not at all sure that the .jury was not right in bringing in a verdict for the defendants, because the plaintiffs failed to prove, by a preponderance of the evidence, that the fire originated in the manner' claimed by them. On this point, however, we are doubtful whether we would consider the verdict against the weight of the evidence, had the jury found the other way.

On the whole, we find no error in the record, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    PLEADINGS — VARIANCE.
    [ Circuit Court of Franklin County.]
    The P., C., C. & St. L. Railway Company v. George M. Boswell.
    Decided, January 29, 1906.

      Pleadings — Proof must Correspond with Allegations of Petition• — Matter Essentially Descriptive of an Injury must he Strictly Proven— Under a Petition Alleging that the Injury toas Caused hy an Accident — Plaintiff can not Recover hy Showing Aggravation of Injury Existing Before Accident.

    1. Where the petition in an action is framed upon the theory that an alleged accident caused an injury, and the proof offered by the plaintiff' corresponds to the allegations of the petition and is repugnant to the theory of an aggravation of an existing infirmity, the defendant is entitled to have the plaintiff confined in his recovery to the scope of his allegation and proof.
    2. Plaintiff sued in the court helow to recover the sum of $10,000 as damages on account of the defendant company’s refusal to pay him certain relief department benefits, to which he claimed to have become entitled by reason of an alleged accident, as a result of which, it was alleged, he had suffered a hernia or rupture, his testimony in substance being that the alleged accident caused the hernia, and that prior thereto he was physically sound and had no hernia or other disahility. The defendant, however, proved that the plaintiff had had the hernia for more than a year previous to the time of the alleged accident, whereupon plaintiff endeavored to show, by the testimony of other witnesses, that the hernia, before the a-ccident,. had been incomplete, while the accident had aggravated and caused to become complete the hernia which had formerly been incomplete.

      Held: That the issue as raised by the pleadings, was whether or not the accident caused the hernia, and'the defendant having proved that the plaintiff had the hernia previous to the time of the alleged accident, this fact constituted - a complete defense to the action, and the court should have charged the jury accordingly.
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
    Heard on error.
   The plaintiff below, George M. Boswell, sued to recover damages as for the breach of a contract with the Voluntary Relief Department to pay benefits for injury incurred in the service of the defendant company, plaintiff in error here.

He averred “that on the 7th day of May, 1896, he was engaged in raising and jacking up a heavy oak timber in order to fasten it underneath the body of a passenger coach of the defendant, which was placed on trestles, when the jack accidentally gave way and the said timber fell upon plaintiff, knocking him down and spraining his back, and causing hernia or rupture.”

By the answer this averment is specifically denied.

Upon the trial of the case there was evidence introduced by the defendant that the plaintiff had rupture before the accident, and also evidence that the hernia, when examined after the accident was what is known as complete hernia, while when examined before the accident it had been incomplete.

The contention of the plaintiff, however, throughout the case, both in the pleadings and the evidence, was that he did not have hernia before the accident.

There is also a conflict of evidence as to whether the character of the accident was such as would cause or aggravate the hernia.

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

‘1 Plaintiff sues for an alleged injury on account of a sprained back and a left inguinal hernia, which he alleges resulted from an accident occurring to him on May 7, 1896, while in the employ of the defendant company, and for which accident he claims to be entitled to benefits as a member of the relief department of said company.
“If you find therefore that on the 29th day of March, 1895, plaintiff was examined for admission to the relief department of the defendant company, and the examining physician then and there found that plaintiff had a left inguinal hernia, and that the hernia was and is the same as that complained of by plaintiff as a result of the alleged injury on May 7, 1896, and that said hernia was not the result of said alleged injury, then I charge you the plaintiff is not entitled to any damages by reason of the hernia, as aforesaid.”

This charge the court refused to give, charging the jury instead as follows.

“If you fiucl the fact to be that plaintiff had a hernia prior to the time of the accident complained of, and that the hernia which he had prior to the accident was and is the same hernia of which he claims in his petition, and that such hernia was not the result of an injury received by him as alleged, then the plaintiff is not entitled to any damages by reason of the hernia. But if he had an incomplete hernia before the accident which did not disable him, and the accident caused a worse or complete hernia which did disable him, then he is entitle! to recover damages for such disability, unless he is precluded from recovery upon other grounds.”

It is claimed this is error for which the judgment, which was for the plaintiff below, should be reversed.

“There are two sorts of allegations:
“The one, of matter of substance, which must be substantially proved; the other, of description, which must be literally proved.” Purcell v. Macnamara, 9 East., 160.
“The libel in a cause of collusion pleaded that the default took place in a particular manner. Held: That such defaults must be proved in the manner in which it is alleged in the pleading. It is not enough to establish by evidence that the default was committed in another manner, although the result would be the same on the merits, as the court will confine its judgment to the issue raised on the pleadings.” Malcomson v. Clayton, 13 Moore P. C. C., 198.

In the opinion in this case just cited Lord Chelmsford states the reason for the rule in the following language:

“Now it is a rule, and a most important rule to be observed in all courts, that a party complaining of an injury and suing for redress must recover only secundtim allegata et probata. There is no hardship or injustice in adhering strictly to the rule against the complainant, for he knows the nature of the wrong for which he seeks a remedy, and can easily state it with precision and accuracy. But great inconvenience could follow to the opposite party unless the strictness was required, because he might constantly be exposed to the disadvantage of having prepared himself to meet one state of facts, and finding himself suddenly and unexpectedly confronted by a totally different one.”'

The character of the injury for which benefits are claimed under the contract in this case is matter essentially descriptive, and must be strictly proven. It is alleged to be hernia or rupture. Under such allegations the plaintiff is not entitled to prove and recover as for an aggravation of hernia which theretofore existed. The two injuries may be proved or disproved by a different state of facts and caused by different agencies. The aggravation might result from lapse of time merely; the hernia could not. Williamson v. Steel Spring Works, 73 Mich., 405.

Henderson, Livesay & Burr, for plaintiff in error.

J. V. Lee and Elmer E. Murphy, for defendant in error.

Consequences flowing from the act must be alleged if they do not naturally result therefrom. Stevenson v. Morris, 37 O. S., 18.

The charge was prejudicial.

The plaintiff claiming throughout the proof, that he did not have rupture before the accident, and that there was no variance between the allegations of the petition and the proofs, was not entitled under the charge of the court to avail himself of the curative provisions of Section 5294 of the Revised Statutes. Thatcher v. Heisey, 21 O. S., 668; Hill v. The Supervisor, etc., 10 O. S., 621.

It follows, there is error in the refusal to charge as requested, and error in the charge as given. Also that the verdict and judgment are against the weight of the evidence. It is fairly proven that the hernia existed before the accident.

We find no other error in the record.

The judgment will be reversed and cause remanded for new trial.


text:
    ALLOWANCE TO MOTHER FOR SUPPORT OF CHILD.
    [Circuit Court of Hamilton County.]
    William Wallace Peters v. Catherine Scoble, Guardian.
    Decided, January 6, 1906.

      Guardian and Ward — Allowance to Mother for Support of Step-son— Policy of the Lato — Guardian's Account.

    The rule which permits a widowed mother without means or income, other than that resulting from her own labor, to charge the estate of her child for support and education, is applicable to one who by her own exertions supported a step-son until he was sixteen years of age.
    Jelke, P. J.; Swing, J., and Giefen, J., concur.
   This case comes into this court upon error from the court of common pleas. William Wallace Peters was the son of William Wallace Peters, who was married to Catherine Scobel June 22, 1882, when the boy was four years old. In- December, 1882, the boy’s father died, leaving a policy of insurance for $3,000. Gabriel Dirr was appointed guardian for the boy’s estate, and received the proceeds of this insurance. In Jrine, 1883, Gabriel Dirr resigned, and Catherine Scobel, mother of the step-mother of the boy, was appointed guardian of his person and estate, and there was turned over to her the sum of $2,141.73. From the time of her marriage to the boy’s father, the step-mother took charge of said minor and raised, supported, and educated him until he was sixteen years old, when he ran away. It seems that during this period, Catherine Peters and her mother Catherine Scobel, worked for their own and the boy’s living, by keeping a boarding house. The said sum of $2,141.73, together with other money borrowed / from a building association, was invested in a house, which they used as their home, and for the carrying on of the business of keeping boarders. Hard times coming on, and with the depreciation of real estate, the building association mortgage swept this house away, with the minor’s estate which was invested in it.

Johnson <& Levy, for plaintiff in error.

Dempsey, Mallon (& Vordenberg, contra.

In December, 1904, the guardian, by proceedings in the probate court, was compelled to file an account, which she did by charging the boy’s support, maintenance and education against the sum received by her, thereby more than exhausting the same.

It is contended on behalf of plaintiff in error that inasmuch as the step-mother has always stood in loco parentis, no charge can be made for the boy’s maintenance, support and education. We have had occasion recently in a somewhat similar case, to consider the law applicable to cases of this kind. See the case of Peter Spink v. Alphonsa Spink, 7th C. C. — N. S., page 89.

We are also guided in our conclusion largely by the law laid down in Sections 238 and 239, Schouler’s Domestic Relations, Edition of 188-9.

It is clear that courts of chancery in matters of this kind, always show special favor to the widowed mother, and if the child has property, and the' mother has. no estate or income other than that provided by her own labor end exertions, willingly permit her to charge the maintenance and support of the minor child against its estate. “Each case must depend on its own facts.”

We are of opinion that the facts of this ease justify the charge made by the guardian in her account, and the court of probate did right in allowing the same, and the court of common pleas in re-casting said account and allowing these claims was also right.

The judgment of the court of common pleas will therefore be affirmed.


author: Parker, P. J. Haynes, J.

text:
    THE OBLIGATION TO SUPPORT CHILDREN.
    [Circuit Court of Wood County.]
    Josephine E. Young v. Washington Young.
    Decided, April 29, 1905.

      Husband and Wife — Support of Children — Entire Obligation upon the Husband — Notwithstanding Custody of,' by Divorced Wife — Proper Maintenance — Charge of Court — Yalue of Wife’s Services — Plaintiff an Old Wounded Soldier — Soldiers on the Jury — Bill of Exceptions — Identification of Exhibit.

    1. In an action involving a claim by a divorced wife for support of a child, born after the divorce was granted and for whom no provision was made in the decree for alimony, it is error to so instruct the jury as to create the impression that the care and support of the child was a joint obligation upon both parents. Under the law of Ohio, so far as necessary care and support are concerned, the whole legal obligation as between the father and the mother is upon the father.
    2. In such a case the wife is not entitled to pay for her whole time in caring for the child, but only for such a proportion of her time as was necessarily thus occupied; and for support the allowance should be proportionate to the father’s means, considered in connection with the health and interests of the child.
    3. It is the better practice for the proper identification of an exhibit introduced in evidence with the intention of attaching it to the bill of exceptions, that the stenographer in his reference to it should add the words, “and the same is hereto attached and made part of the bill of exceptions.”
    Haynes, J. (orally); Parker, J., concurs; Hull, J., not sitting.
    A petition in error lias been filed to reverse the judgment of the court of common pleas in an action in that-court in which the defendant in error was plaintiff, and the plaintiff in error was defendant. The action was brought to foreclose a mortgage, and an answer was filed in which it is practically admitted that the mortgage was executed and had not been paid, and that there was due upon it the amount mentioned in the notes. The defendant in that action, plaintiff here, however, set up that she had formerly been the wife of Washington Young and that a divorce had been granted her some years ago, and in that divorce which was granted by reason of the aggressions of the husband that there was a certain amount of alimony allowed her, and that she was at that time pregnant. The' divorce was granted in the spring, and in the autumn following a child was born, which is still living, his son, and that she has had the care and custody of that child from its birth to the present time. It is conceded by all that no provision was made in the allowance of alimony for the support of the child; the alimony being allowed to her, as distinctive alimony to her. She claimed that she had to support this child during all this time; that it was liable to be sick, and had been sick at different times, and that the care of the child had required her constant attention, which she had given him, and that the board, clothing and necessaries, and the care and attention she had furnished the child, were worth in all about $2,000, and she asks that that be allowed as a set-off against the claim of the plaintiff.
    The case proceeded to trial and the finding of the jury was in favor'of the plaintiff for the full amount of the mortgage, and a finding in favor of the defendant below for $500 for the care and custody of the child. Upon that judgment was entered and a motion for a new trial was filed in which one of the points is that the verdict was not supported by sufficient evidence, and various other matters set forth, and a petition in error was filed. It was not alleged distinctly that the overruling of the motion for a new trial was the ground for error, but because of the errors on the face of the record; because testimony was given for the defendant on her set-off and for the plaintiff below in rebuttal. It was claimed by the plaintiff below that he had paid her at different times for the support of the .child in the form of physicians’ bills and clothing, in all as he claims, to about a hundred and seventy-five dollars. This was largely denied by the defendant below, and evidence taken along that line was submitted to the jury, and they gave the plaintiff credit for the amount they found he had paid, I take it; at any rate they returned a verdict for $500 for the defendant.

      Some exceptions were taken to the testimony and one point is that there were questions asked in regard to the occupation heretofore of the plaintiff, and that drew forth the fact that he had been in the army and had been severely wounded. Objection was made to that because it is said there were soldiers on the jury. That fact does not appear in the evidence at all. We are clear that this testimony ought not to have gone to the jury, but I don’t know as we should reverse the ease upon that point, because, as I have said, from the record it does not appear that there was anyone on the jury that that would affect, and I pass that as a minor matter.
    The real and great contention in the case is that the court in its charge to the jury committed error; that the case was tried at the instance and suggestion of counsel for plaintiff upon the theory that the wife owed the same duty to this child that the father did, and that practically the only amount that could be recovered by the plaintiff below would be for expenses— necessaries that she had bought and things of that kind. There is one matter in the record touching that point that I will read:
    “Q. Do you recognize that there is any obligation on your part as a mother to look after the child? (This was objected to; objection overruled and defendant excepted). A. Why, yes.
    “Q. You did certain things and performed certain offices for this child that probably nobody else on earth could do so Avell? A. I suppose so.
    “Q. I suppose you nursed that child as a baby? A. I did.
    “Q. And you ask your former husband to pay for that?”
    We doubt whether that is a proper question to be asked. Her obligations are fixed by the law and not by what she supposes. Her obligations are not to be laid down by her — what she considers she should do, and what she should not do. She might of course as a mother recognize her rights, but that would not and ought not to have any effect as to her husband and herself, or affect his liability for the support of the child.
    Testimony was given on behalf of the defendant below as to the amount of care that she had given this child and the value of her services, and evidence was given in opposition, in regard to the value of her services. There was objection to this testimony, and only one witness produced seemed to be very fully qualified on this point, and the court permitted it to stand. I don’t know as there is enough objection to that to make it worth while to call attention to it.
    We come now to the charge of the court. Counsel for the defendant requested the court to charge the jury as follows:
    “The defendant, Josephine Young, is entitled to recover in this action from the plaintiff, the value of clothing, food, doctor bills, and all expenses incurred in the care of said child, John R. Young, and is also entitled to recover the value of her time actually taken in earing for said child.”
    rfhe court refused to so charge the jury and the defendant excepted. We are inclined to think that the court would not be required to give that charge just in that form. It was rather too narrow in its statement, as to its conclusion in regard to the matter of time.
    The court then proceeded to charge the jury, after stating to them the contents of the pleadings. Now we have been referred to the case of Pretzinger v. Pretzinger, 45 O. S., 452, which seems to state the law of the case in Ohio, we think, quite fully. In that case, very much like this, Judge Diekman, after discussing the general principles, on page 461 says this:
    “The statute, 43 Eliz. Ch., 2, directs that ‘the father and mother, grandfather and grandmother, of poor, impotent persons, shall maintain them, if of sufficient ability, as the quarter-sessions shall direct.’ Its provisions have been re-enacted in several of our states; and in view of the special enactment it has been held, where the husband and wife are divorced, and upon her application the custody and control of their minor children are awarded to her, she can not, in an action against the father, recover for the entire support of such children furnished by her after the divorce, but only for contribution. But there is no such statute in this state, and in general, after a divorce as well as during coverture, the primary duty of maintaining any minor child of the marriage still remains with the former husband.”
    Now we think the charge all the way through is objectionable, and open to the objection that the court was proceeding upon the theory that there was a joint obligation and that the wife was bound to contribute to the care of the child. It seems from this report that that is not the law in Ohio. The charge of the court is as follows:
    “The record in the divorce case referred to in the pleadings has been offered in evidence. That record shows that the parties agreed upon a settlement of alimony and their agreement was approved by the court. For the purposes of this case that agreement is final. That is, it amounts to a provision for the wife or mother of this child, and in this case you can not allow anything to the mother for her support, no matter whether you think the amount allowed was sufficient or not, and your allowance, if any, must be limited to the care and support of the child. The order made in the divorce case is not a provision for the child and that question is left open for your consideration in this case. And in determining the amount which the mother should receive from the father in this case for the care and support of the child, you should consider the duties devolving upon the parents to care for and support a minor child under the conditions and circumstances existing in this ease.
    “The record of the divorce case shows that a divorce was granted on account of the wrongs of the husband, and even though he is not permitted to have the custody of this child, he can not, under the circumstances, complain on that account, but his duty to care for and support his child is the same as if the parties were living together, even though on account of his own wrong he is deprived of the pleasure and comfort which would naturally result from the society of the child.
    “The mother also owes to the child certain duties, and in a case like this she is not relieved of any of those duties because she has been divorced from the father.
    “The divorce granted to these parties made them strangers to each other in regard to all duties toward each other growing out of the marriage relation. But their duty to care for and support their child remained.”
    It will be observed that these clauses of the charge really proceed upon the theory that there was still the same obligation upon the mother as there was upon the father to support the child. This, we, think under the above decision, is not true. The obligation to support this child was upon the father. As between the mother and the child, the mother naturally would recognize her motherly feeling toward the child and take care of it, but as between tbe husband and herself there was no such obligation resting upon her; no more than if the child had been placed with a stranger. The court says further in the charge:
    ‘ ‘ The father in this case can, in no event, be held to pay more for the care and support of this child than is reasonably required for his comfort and maintenance; and what is necessary depends upon the condition and circumstances of the parents. What might properly be regarded as necessary for the support of a child of wealthy parents would be greatly in excess of the amount required for the support of the child of parents in moderate or poor circumstances.
    “In this case in determining what should be paid by the father to the mother for the support of this child, you should 'consider the condition of'the child, its health, the amount of care required during health and sickness, the expense of medical attendance, the necessary expense for food and clothing, the manner in which the child was cared for by the mother, and the financial condition of the parents during the time that the mother has taken care of the child.
    “And considering the evidence upon all these matters and all other evidence offered in the case having any bearing upon this subject, and taking into consideration the duty of each of these parents to the child, you will fix the amount which the father should pay to the mother of the child for its care and support from the time of its birth on September 8th, 1889, to June 8th, 1904.”
    Perhaps the words “care” and “support” alone would not be objectionable, but under the statement that has been made it was not sufficiently clear and was very liable to mislead the jury. In the request that was not given, the request was in substance that she should receive pay for all the time actually taken in caring for the child. We think the court has correctly stated the general duty of the parents in regard to their circumstances in this world; as to the amount of their 'means; and we think the charge should run along in that line in regard to that; their means, condition of life, habits, and matters of that kind, and that she should recover for time that was necessarily spent in the care of the child.. That is to say, she claims she was giving her whole attention to the child, but we think it would be a very rare case where it was necessary for a person to devote all their time to the care of a child. She was entitled to her time to earn her living and support and maintain herself, and so far as charging the husband, she should charge him with a reasonable amount of time that she should spend in looking after the child.
    It is very properly said in the charge here, as is said in the Pretzinger case, that these persons stand as strangers; they do not stand as owing the duties of husband and wife to each other. That duty has passed out of existence; the wife has simply received the child that the husband is bound to maintain and support and for her reasonable and necessary expense in that regard, and for her time and labor, she is entitled to compensation from him.
   Parker, P. J.

This is a new and interesting question. I think Judge Haynes has covered our views upon it very fully. Perhaps the same views expressed in different language may help coimsel to understand our position. As pointed out by Judge Haynes this request to charge is faulty in that it asks that the jury shall be instructed to allow the plaintiff to recover the value of her time actually taken in caring for the child, whereas it should set forth that she is to be allowed the value of her time actually taken and that was reasonably necessary; not time that she might have devoted to fondling the child or lavishing her affections upon it; and it is not intended to be intimated in this opinion that for those things she should be entitled to recover. We think in one or two of the paragraphs of the charge and in the general tenor of it, the jury were given to understand that they were to consider and cull out what each parent owed to the child, and the charge contained the intimation, or it might be fairly inferred from it that this matter of caring for 'the child devolved upon them both, and that the wife could only recover from the husband for the share that he owed for the care of the child, and that she could not recover anything for the part of said attention devolving upon her as a legal obligation. They should consider it as a sort of a partnership obligation. It seems to us that under this decision which Judge Haynes has cited, the whole legal obligation, so far as necessary care, support and maintenance of the child was concerned, devolved upon the father alone, as between him and the mother, and that nothing was to be subtracted on account of any supposed legal obligation resting upon the mother as between her and the child, or as between her and the public, to aid in caring for the child. In one paragraph of the charge the trial judge says:

“And in determining the amount which the mother should receive from the father in this case for the care and support of their child, you should consider the duties devolving upon the parents |not upon him, but upon both of them] to care for and support a minor child under the conditions and circumstances existing in this case. * * * The mother owes to her child certain duties, and in a ease like this she is not relieved of any of those duties because she has been divorced from the father.”

While that might be true as between the mother and child, yet, as stated in the charge and applied to this case, it would have a tendency to mislead the jury, and cause them to suppose that to the extent of her obligation to the public or to the child, she would have no recourse on the husband, which we think is not true. Further along is repeated, “But their duty to care for and support their child remained.” And this clause especially, I think, is open to that criticism:

“And considering the evidence upon all these matters and all other evidence offered in the' case-having any bearing upon this subject, and taking into consideration the duty of each of these parents to the child, you will fix the amount which the father should pay the mother for the care and support of the child.”

I think this is a very plain and direct intimation that it was an obligation resting upon both of them, and to be shared by both of them, and that the mother could only recover from the father because and to the extent that he had failed to do his share. It is provided in Section 3110, Revised Statutes, that — -

“The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.”

The obligation rests first upon the husband primarily, secondarily upon the wife. The decision in the Pretzinger case seems to us to involve that he is to recompense the divorced wife for the care of the child, precisely as though she were a person not related to the, child.

Blackford <& Blackford and J. E. Sliatsel, for plaintiff in error.

Baldwin & Harrington, for defendant in error.

There are statutes bearing upon the duties of divorced persons under which the assistance of the court may be invoked and had to fix the status of the parties and fix their obligations in a measure. Counsel will remember that the statute provides for an appeal to the court, and provides that the court should fix their respective obligations with reference to the support of the children, and that the obligation may rest upon one to support a child where the custody has been given to the other, but where that has not been done, we think the Pretzinger ease applies, and that the whole obligation rests upon the husband. The judgment will be reversed, and verdict set aside, and the case remanded for a new trial.

Haynes, J.

There was another exception taken, or rather a suggestion made that a certain paper attached to the bill of exeejitions was not in proper form. It consists of the final record in the divorce case in question. The record was produced in court and read in evidence, but it. was not copied at that point of the evidence into the record, but subsequently a full copy of the final record was made and attached to the bill of exceptions, marked “Exhibit A, final record No. 45, page 481, case No. 12,244.”, It has the same number and the same parties, and the same references that are made at the time of the introduction of the evidence. It would have been better, perhaps, if the stenographer had in his reference to it, added the words “and the same is hereto annexed and made a part of the bill of exceptions,” but the real question is whether there was sufficient to identify it and to make it a part of the bill of exceptions, and we think there was. The identification is sufficient, we think. A copy of the final record was made and attacher to the bill of exceptions, marked “Exhibit A,” and we think on the whole, that is sufficient.


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    DELIVERY OF DEEDS TO THIRD PARTY.
    [Circuit Court of Hamilton County.]
    Lillie Wissel v. Lena Pierson et al.
    Decided, February 7, 1906.

      Deeds- — Executed in Place of Will — And Delivered to Another than the Grantees.

    Where a grantor executes deeds with a testamentary purpose, and delivers them to his wife with the direction to keep them until he is done with them and then “deliver them to the girls,” his action taken in connection with all the circumstances of this case must be held to constitute a good delivery.
    Jelke, P. J.; Swing, J., and G-ieebn, J., concur.

      C. L. Hopping and W. A. Hides, for plaintiff in error.

      F, M. Coppode and 8. B. Hammel, for defendant in error.
   We are of the opinion that when Mr. David L. Cosbey gave the deeds in question to his wife, and said to her ‘ ‘ put them away in my possession until he was done with them and then deliver them to the girls,” it became a good delivery. It is probable that the wife did not remember the exact words spoken by her husband at the time he gave her the deeds. She does not say that these were his exact words. In order, therefore, to arrive at the correct meaning to be given to these words, the court should look at the surrounding circumstances. The deeds were executed to take the place of a will, and were testamentary in their nature. Cosbey ivas undoubtedly informed by the justice of the peace that he could not retain possession of the deeds and have the title pass after his. death and, therefore, when he gave them to his wife, to be by her kept in her possession and after his death delivered to his daughters, the evident purpose was to make a good delivery, and it was his purpose to lose dominion over the deeds, and put them in possession of his wife. And the subsequent conduct of both parties in regard to the deeds bears this out, for the wife always kept them in her own papers. The expression “until he was done with them” is not very definite, and not of controlling importance; standing alone it has no certain meaning, but taken in connection with the whole subject-matter, it probably means after his death.

Judgment affirmed.


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    CANCELLATION OF OIL LEASES.
    [Circuit Court of Wood County.]
    George Zeller v. G. M. Book et al.
    Decided, April 29, 1905.

      Oil and Gas — Lease to Run as Long as Oil or Gas are Found in Paying Quantities — Wells Become of Little Value — Action to Terminate Lease.

    1. Failure to drill additional wells is not ground for terminating a lease for oil and gas lands, where it lias been satisfactorily shown that the territory is light and the production would not warrant thg sinking of more wells.
    2. As to wells already in existence, on land under lease so long as oil or gas shall be found in paying quantities, it is for the lessee to say whether the production will warrant their further operation; and the fact that for reasons which seem to be sufficient, he has failed to pump the wells for some time, is not ground for the cancellation of the lease, if in his judgment he can still make some profit from the operation of the wells.
    Haynes, J. (orally); Parker, J., concurs; Hull, J., not sitting.
   This case comes into this court by appeal and is an action that was brought in the court of common pleas for the purpose of declaring a certain oil lease terminated, and to have the same canceled. I shall state the case very briefly. There was an oil lease made upon this land some time in 1893, and there were three wells drilled on the property, which have been operated most of the time from that date forward.

The léase had passed through several hands, .the land has been sold, and finally on November 22, 1901, the plaintiff bought the property. On January 27, 1902, he commenced this action. The terms of the lease run for five years from the date thereof, or as long as oil or gas shall be found in paying quantities. The plaintiff in his petition claims that the wells have ceased to be paying wells, and claim that they have been left to stand idle and unoperated for some time, and claims for these reasons that the lease should be declared ended and canceled, and that the defendants should be required to remove their material from the premises, and the lease canceled of record. The plaintiff at the time he purchased this land took it subject to this lease, and as will be seen, he was in possession but a few days before he commenced to take steps to lay the foundation for this action, and to bring the action.

It appears from the testimony that the wells were not very productive. In common with a great deal of the territory in this section of the country, they have ceased to be large producing wells, if they were run. The whole territory in this immediate vicinity is rather poor for the production of oil — light territory it is termed. Nevertheless these wells have been drilled and money has been expended, and the defendant, Book, has come into the possession of the lease; he owns the wells and equipment and he has endeavored to make some money out oE them; endeavored to make his living, perhaps, out of them. The improvements in regard to the operation and management of the wells are such that they can be run at very little expense, and we find in regard to them that they will yield some profit — ■ not a large profit, but some.

The plaintiff comes into a court of equity and asks that this lease be terminated; that the property is very poor paying territory and there is no probability of oil being found there. The plaintiff offers no testimony whatever that there is any probability that it is paying territory; that wells ought to be found upon the territory; in other words, the whole drift of the testimony is that the territory is poor and that the wells, if producing, would be very light, and that a prudent man would not be warranted in drilling a well with the expectation of ever getting his money back, so that, so far as the outcome is concerned, the plaintiff is suffering no injury so far as we can see. So far as the defendant is concerned, he seems to be trying to make his living out of the lease, and we think it would be manifestly unjust to deprive him of this property if he is able to produce oil enough to pay him for the expenses and make him some little profit, or at least furnish him with the means oE a livelihood. We are of the opinion that it is unnecessary to show that he can expect to get back the cost of drilling a well. His profit from what little he could get out of the material used in pumping would simply be salvage and would produce very little in the market, and it seems too a necessity that he should go forward and pump his wells so long as he can do so if it pays him anything like a reasonable return.

It seems to us that a court of equity ought not to interfere with it unless it is necessary to do so. He is operating upon his own judgment of what he deeras best and authorities are cited, especially a case in 194 Pa. St., 243, indicating that it is the option of the lessee himself to decide whether he will proceed, or how long he will proceed. It is presumed, of course, that he will operate in his own interest, and so long as he is acting in good faith and making an effort to get some production out of the well, he has a right to go forward and decide for himself. This right of the lessee to exercise his own judgment seems to be authorized in the cases cited to us. We think that view is right and just in the natural outlook of the case, and we hold, therefore, that so far as this man is operating in good faith, it would be unjust to disturb him and compel him to give up what he has in the lease — to take out his casing and material and sell it. It will be time enough to do that after he ceases to operate the lease. We do not think equity would require that this lease should be canceled so long as he is acting in good faith, and we think in this case he is.

It is said that there has been an omission for some time to operate. The testimony of the defendant shows that he has been in a condition physically for some time where he could not carry forward the work. He gives what we deem good and fair reasons for allowing the' wells to remain idle that are now on the lease. There was a storm and the derricks were blown down — a very heavy storm; and while in this situation the derricks were burned, and the man seems to have had one trouble upon another, and yet he has been fighting along against these difficulties and doing the best he can under the circumstances, and we think the court ought to permit him to hold the premises and continue to operate the wells, so long as he in his judgment thinks it profitable, and without further discussion we hold that the petition should be dismissed and judgment awarded the defendant for his costs in the case.

Jesse Stevens, for plaintiff.

James O. Troup, for defendant.


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    USAGE IN THE STEEL STRUCUTRAL BUSINESS.
    [Circuit Court of Hamilton County.]
    The Commercial Tribune Building Company v. The Potthoff & Frey Iron Company.
    Decided, February 17, 1906.

      Building Contracts — Weights of Structural Steel — Custom and Usage as to — No Deduction for Rivet Holes and Guttings in MaJcing Parts Fit.

    An iron company contracted with a building company for the construction of a steel building, the steel to. be paid for by the .ton. At the final settlement the building company claimed a deduction . on account of holes punched for rivets and the cuttings made in shaping the steel to the different parts. It was admitted that by usage and custom the amount of material used in the building was properly ascertained by computations from the “Carnegie tables,” and not by actually weighing it; and the evidence clearly established that it is also the custom in the steel structural business to make these calculations without reference to rivet holes and cuttings in making the parts fit. Held: The Iron company can not be required to make the deductions claimed.
    Swing, J.; Jelke, P. J., and G-iffen, J.,' concur.
   The Potthoff & Frey Iron Company brought an action in the court of common pleas against the Commercial Tribune Building Company for the balance due on a contract for the erection of a certain steel or iron building in the city of Cincinnati. Judgment was rendered in that court for the plaintiff. The Commercial Tribune Building Company brings this action into this court on error to reverse said judgment.

The rights of the parties here depend mainly on what construction the court gives to the contract in controversy. The contract in question had its inception in the following proposal :

“Cincinnati, Ohio, July 2d, 1901.
“The Commercial Tribune Building Company, City.
“Gentlemen — -We propose to furnish and erect the iron work for your proposed new building, to be erected on the north side of Government Place, between Main & Walnut streets, this city, as per specifications and classifications as prepared by Bert. Baldwin & Co., at the price per ton named on the bid form.
“Hoping to be awarded this contract, we are, yours respectfully,
The Potthoee & Frey Iron Co.,
“per W. F. Potthoee, President.”'
The said company replied to this as follows:
“Cincinnati, Ohio, July 3, 1901.
“The Potthoee & Frey Iron Co., City.
“Gentlemen — The undersigned has decided to award to your company the contract for the steel structure for the Commercial Tribune Building, and direct you to prepare the necessary strain diagrams; make modifications in the design and construction that will be acceptable to and approved by your engineer; after which you are to make a carefully itemized estimate as to the weight of different class of materials required in the structure and figure out a “lump bid” based upon the prices per pound according to your proposition of July 2d, 1901, which estimate will be checked over and approved by the company’s engineer before the final contract is prepared and signed.
“The Commercial Tribune Building Co.,
per Jo.seph C. Butler. Mngr.”

These are all the matters pertaining to this contract that need be set out here in order -to determine the questions arising on this record.

The principal question in dispute depends on how the weight of the iron shall be computed. It is contended by defendant in error that the gross weight of the iron as determined by the tables used in the iron and steel business shall govern without any deductions for holes punched out for rivets and cuttings made. to adjust the different parts. On the contrary, the plaintiff in error contends that under this contract it is only bound to pay the net weight of the iron after it is placed in the building, and that the terms of the contract are explicit upon this point.

The plaintiff below, over the objection of the defendant, was permitted to introduce evidence tending to prove that ever since steel structural buildings have been erected in this country, the usage among all persons engaged iñ this business is to compute the weight of the steel not by actual weight, but by measurements according to the “.Carnegie Tables” as it comes from the mill, and that no deduction is made for the holes punched out and the cuttings made in shaping the steel to fit the different parts. The plaintiff in error claims that this was partially erroneous. It does not claim that the usage as to computating by measurement by the tables instead of actual weight was not correct, but only that deduction should be allowed for the steel punched out when the holes- are made, and when pieces are cut off in the adjustment of the parts.

The object in the construction of all written instruments is to arrive at the intention of the parties, and when this is ascertained, the court must give it effect, unless restrained by law. The difficulty generally arises in knowing what effect to give to the language used. In arriving at this knowledge, the court may always take into consideration the circumstances su. ■ rounding the parties at the time. This is necessary to undt,. • stand in what sense the parties used the words contained in th > instrument; for this reason usage or custom, where it is showito exist in any particular business or trade, is permitted to be given in evidence.

There is a great mass of law to be found in the text-books and adjudicated cases relating to this question, but I deem it necessary to cite only one authority which it seems to me states the principle very clearly. It is found in the opinion by Lord Campbell in the case of Humfrey v. Dale, 7th Ellis & Blackburn’s Reports, page 274. In speaking of the question then before the court, he says:

“Whether this evidence be treated as explaining the language used, or adding a tacitly implied, incident to the contract beyond those which are expressed, is not material. In either point of view, it will be admissible unless it labors under the objection of introducing something repugnant to or inconsistent with the tenor of the written instrument. And, upon consideration of the sense in which that objection must be understood with reference to this question, we think it does not.
“In a certain sense every material incident which is added to a written contract varies it, makes it different from what it appeared to be, and so far is inconsistent with it. If, by the side of the written contract without, you write the same contract with the added incident, the two would seem to import different obligations. To take a familiar instance by way of illustration: on the face of a bill of exchange at three months after date the acceptor would be taken to bind himself to the payment precisely at the end of the three months; but, by the custom, he is only bound to do so at the end of the days of grace, which vary, according to the country in which the bill is made payable, from three up to fifteen. The truth is that the principle on which the evidence is admissible is that the parties have not set down on paper the whole of their contract in all its terms, but those only which were necessary to be determined in the particular case by specific agreement, and which of course might vary infinitely, leaving to implication and tacit understanding all those general and unvarying incidents which a uniform usage would annex, and according to which they must in reason be understood to contract, unless they expressly exclude them. To fall within the exception therefore, of repugnancy, the incident must be such as if expressed in the written contract, would make it insensible or inconsistent.”

The use of the word “ton” in this contract is certainly indefinite. Its primary meaning is no doubt weight in pounds, but the word “ton” varies according to the business in which it is used — it is not alone fixed and definite. There are three different kinds of tons: long ton, 2240 lbs.; a short ton, 2000 lbs.; and metric ton, 2204.06 lbs. Which of these does the word “ton” mean in this instrument? The instrument should not be held void for uncertainty, for it is easily made certain by ascertaining the meaning of the word according to the usage in the steel structural business. Then again, as said, supra, the primary meaning probably would imply that the steel or iron was to be weighed. How can weight be ascertained except by weighing? And yet both sides agree that in ascertaining whatever is the proper weight to be ascertained in this ease, the iron is not to be actually weighed, but is to be found from measurements and tables, and this, too, is by reference to the usage prevailing in the iron or steel structural busines. If it is permissible in order to show how many pounds compose a “ton,” and to show that the iron is never weighed but estimated by tables and measurements according to the usage in the iron business, we see no objection to showing by usage in the same business whether a deduction is made for the holes punched out and the parts chipped off. The evidence clearly established the existence of the usage, and that it is reasonable there can be no question. Furthermore, if any doubt existed as to the understanding of the parties, great weight is properly attached'to the construction of the contract given to it by both parties during the construction of the ■ building. There were no less than twelve preliminary estimates made by the defendant company by its engineer, upon which large payments were made, and all of them in accord with the contention of the plaintiff, and the thirteenth and final estimate was made by the company’s engineer on the same basis of calculation. The company, however, refused payment on this, and under its direction another estimate was made on the basis of calculation made by it.

Mallon & Vordenberg, for plaintiff in error.

Fred Hertenstein and Roettinger & Gorman, contra.

We see no error in the charge of the court. The question of usage was properly stated by the court in our judgment, and the contention made by the plaintiff in error was not correct as to the character of proof necessary to establish usage.

Judgment affirmed.


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    NEGLIGENCE AT A RAILROAD CROSSING.
    [Circuit Court of Hamilton County.]
    The Baltimore & Ohio Southwestern Railway Company v. Amelia Moloney, Administratrix.
    Decided, February 3, 1906.

      Negligence — Accident at Railroad Grossing — Charge of Court — Special Interrogatories — Proximate Cause — Burden of Proof — Ground for Submitting Case to Jury.

    1. The fact that one about to drive over a railroad track looks each way and then starts his horse on a trot is not conclusive proof that he saw an approaching train. Such action is ordinarily that of a prudent man who desires to avoid any possible risk in a place well-known to be dangerous.
    2. A charge of court is erroneous which makes it incumbent upon a railroad company to regulate the speed of its trains at a given crossing with due regard to “all the circumstances surrounding the place and affecting the traveling public,” where testimony has been introduced tending to show that the view was to some extent obstructed by. trees, weeds, etc., not on the company’s right of way.
    3. Inasmuch as the manner of giving notice of the approach of a train is prescribed by statute, it is erroneous to charge that such notice “must be given so that one approaching [the crossing] could protect himself from injury.”
    4. The refusal to submit special interrogatories to the jury, where the request did not contain the condition that the interrogatories be answered in case of the return of a general verdict, is not error.
    Giefen, J.; Jelke, P. J., and Swing, J., concur.
   The original action was commenced by Amelia Moloney, as administratrix of the estate of Timothy Moloney, deceased, against the defendant railway company, to recover for the death of Timothy-Moloney, occasioned by alleged negligence of the railway company in managing one of its trains at the Forest avenue crossing in the village of Norwood.

The railway at this crossing consists of two main tracks, known as the east and west bound, and a side-track ending about 141 feet east of tbe middle line of Forest avenue, and lying south of the east bound main. At the time of the accident there were two coal cars loaded with coal at or near the end of the side-track. The office of the coal dealer which obstructed the view of the track to some extent was situated 104 feet east of the middle line of Forest avenue, and .thirty-three and five-tenths feet south of the middle line of the east bound main.

The decedent, at the time of the accident, was driving a horse in an ordinary spring wagon for the delivery of meat, in a northerly direction. The evidence tended to prove that the railway company, through its servants, failed to give warning of the approach of the train, either by blowing a whistle or ringing a bell. It also tended to prove that when the fore feet of the horse were between the rails of the east bound, main track, the driver looked toward the east and west, or as one witness said “up and down the track,” and then suddenly whipped his horse into a trot, and that the engine struck the wagon between the fore and hind wheels.

The first alleged error is the overruling of the motion to arrest the evidence from the jury, and render, a judgment for the defendant.

While there is some conflict of testimony as to when the decedent could first see down the track in the direction from which the train was coming, the chief contention of counsel for plaintiff in error is that having looked towards east, the direction from which the train was coming, and then suddenly whipping his horse, he must have seen the train and was, therefore, negligent in trying to cross over the track. It is perhaps a strong circumstance tending to support the theory of counsel, but on the other hand it is by no means uncommon to see a prudent person, when about to cross a railroad track, look up and down the same, and although no train is in sight, sud-. denly urge the horse into a trot manifestly for the purpose of avoiding any possible risk in a place well known to be dangerous. It is not unlike that care which forbids one to point an unloaded gun at another lest it might, without his knowledge, be loaded. Unless, therefore, the court could be certain that the decedent saw the train approaching from such a distance as would prevent an ordinarily prudent man from attempting to cross, it was justified, and we think rightly in this case, in submitting the question to the jury.

Without reviewing all the testimony contained in the voluminous bill of exceptions, it is sufficient to say that there is no error in overruling the motion for a new trial upon the ground that the verdict was not sustained by sufficient evidence.

Numerous objections are made to the general charge; the first one being as follows:

“The burden of proof is upon the defendant to show that, if it was negligent, that Moloney was also negligent, and negligence which contributed directly to the accident.”

This charge, without any qualification as to the burden of proving contributory negligence, would be erroneous, but at the request of the defendant, the court gave the following special charge:

“I charge that the plaintiff, before she can recover in this action, must have proved by a preponderance of the evidence, the material allegations of the petition, showing the following facts:
“First. That there was no want of ordinary care contributing to the accident.
“Second. That the injury to decedent resulted solely from the want of ordinary care on the part of the defendant.”

In this instruction, the burden is placed upon the plaintiff of not only removing any presumption of negligence that might arise from her own testimony, but of proving in the first instance no want of ordinary care on the part of the decedent contributing to the accident, and having done this as the instruction required — if the jury so found — the burden of proving contributory negligence would rest upon the defendant.

The next paragraph objected to. is as follows:

“‘You will find that we use ‘proximate cause’ in our charge. Proximate cause means that' cause without the existence of which the injury would pot have been sustained,”

Proximate cause has been variously defined. In 21 Eng. Eneyc. of Law, 485, it is given as follows:

“The proximate cause, in the law of negligence, is such a cause as operates to produce particular consequences, without the intervention of any independent, unforseen cause without which the injuries would not have occurred.” •

Also note on the same page the following:

“Proximate cause of an injury has been said to be the last negligent act contributing thereto, and without which such injury would not have resulted.” Schwartz v. Shull, 45 W, Va., 405.

The definition complained of is, therefore, not accurate, but taken in connection with other parts of the charge, we think the jury were not mislead by it.

The following is also objected to:

“The right of the railroad company to enjoy the use of its railroad at this crossing of Forest avenue, and the right of Moloney to use Forest avenue were co-ordinate and equal.”

This is almost the identical language of the third proposition of the syllabus in the case of The Pittsburg, Ft. Wayne & Chicago Railway Company v. Maurer, 21 O. S., 421, and is not overruled, either expressly or by implication, in the case of Railroad Company v. Kistler, 66th O. S., 326.

The next paragraph of the charge objected to is as follows:

“The railroad company had the right to run the train at the time and place of this collision at any speed consistent with the safety which 'was necessary in the condiiet of its business in the usual and ordinary manner; taking into consideration, however, all the circumstances surrounding that crossing affecting the traveling public, and having due regard for the safety of 'the public using the crossing.”

The charge is identical — except as to the parties — with the charge considered in the Kistler. case, at page 341, where it is said:

“From what has already been said as to the speed of trains, it will readily be seen that the latter part of this charge, all after the word ‘manner,’ is erroneous.”

The charge in that case related to a crossing in the country, whereas in this case the crossing is in a village and was frequently used by the public. The rule regulating the speed of railroad trains in open country would be neither proper nor safe when applied to trains .running through a éity or town.

The phase of that paragraph “all the circumstances surrounding that crossing, ’ ’ would include the trees, which. according to the testimony to some extent obstructed the view, and, therefore, brought it within the rule stated in the seventh paragraph of the syllabus in the Kistler case, which is as follows :

“As a railroad company has no control over the trees, weeds, brush, shrubbery and the like, not on its right of way, it is not required to take such things into consideration when approaching a crossing.”

The following paragraphs in the general charge are also objected to:

“The law puts upon the Railroad Commissioner of Ohio the duty of determining the necessity of establishing a flagman or safety gates and automatic bells upon any particular street crossing of a railroad, but the absence of safety, gates or flagmen or automatic bells at this crossing when the accident occurred, is of itself no evidence of negligence upon the part of the railroad company.
“Unless you find, gentlemen of the jury, from the evidence that at the time of the accident, because of the special circumstances existing in this crossing, or that the railroad company, by reason of a number of trains or speed it ran the trains across Forest avenue, its number of tracks, or having cars standing on the side-track near such crossing, that this was a crossing much used at this time and necessarily frequently presenting a point of danger, that owing to the near situation of buildings, fences, trees, or other obstructions which afforded less than ordinary opportunity for the seeing of an approaching train, and other like circumstances of a special nature, that acting with reasonable care and prudence it was reasonable that the railroad company should provide special safeguards to persons using the crossing in a prudent and cautious manner commensurate with the danger of the locality. The law authorizes you to infer negligence on the part of the railroad company for any failure to adopt such safeguards as would have given warning, if you find that the situation of the crossing at the time of the accident required them, and of this you are the judge.”

Without considering the several reasons assigned by counsel why this charge is erroneous, it is sufficient to say that there is no allegation in the petition of negligence by reason of the failure to maintain safety gates or a watchman at the crossing. It is true that the plaintiff avers in her petition that the defendant did not maintain or operate any safety gates, nor did they have stationed at said point a watchman, but she nowhere alleges that such safeguards were negligently omitted. The only negligence charged in the petition is the careless and unskillful acts of defendant and its servants and employes in managing and moving the engine and cars.

The failure to provide gates or a watchman was a fact competent only for the purpose of showing negligence in the operation and management of the train. The Balt. & Ohio Southwestern Ry. Co. v. Lockwood, 72 O. S., 586; 2d paragraph of the syllabus in the Kistler case, 66 O. S., 326.

The next paragraph complained of is as follows:

“So if you find that the train hands got no proper look-out and managed the train without due caution and reasonable care, you will be authorized to infer negligence on the part of the company as one of the facts established in the ease.”

This charge was approved in the case of Grand Trunk Railway Company v. Ives, 144 U. S., 492. It is claimed, however, that it is in conflict with the language used in the Kistler ease, at page 336, but the charge itself is not given in that case, but was evidently confined to the duty of the train hands in keeping a proper look-out, whereas in this ease, it is coupled with the additional duty as to managing the train with due care. It is unreasonable to suppose that this charge misled the jury to believe that each and every train hand, whether in the engine or baggage-car, was chargeable with the same duty.

The next charge complained of is as follows:

“It is the duty of the defendant company, as I have heretofore told you, by proper signals such as blowing a whistle and ringing a bell in such manner as I have described, as would ordinarily notify a person approaching the crossing that the train was approaching the crossing; but this notice must be given so that the person approaching could protect himself from injury.”

The latter clause,- in this charge is objectionable for it is equivalent to saying that the notice must be given in such manner that the person approaching could protect himself from injury. The manner - of giving notice is prescribed by statute, and when given in accordance therewith, has usually been found sufficient to protect those using a railroad crossing, with ordinary care.

The court further charged the jury as follows:

“Although the defendant’s negligence may have been the primary cause of the injury complained of, yet the administratrix can not recover in this case if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution on the part of the deceased, Moloney, unless it be shown that the defendant railroad company might by the exercise of reasonable care and prudence have avoided the consequence of the injured party’s negligence.”

It is manifest from the testimony that if the engineer and fireman were keeping a look-out that one or both of them must have seen the decedent some time before reaching the crossing, and that a very slight reduction in the speed of the train would have saved him. The proviso in this charge does not embrace actual knowledge on the part of the defendant of the peril of the decedent and is therefore erroneous.- The Erie Railroad Company v. McCormick, 69 O. S., 45.

The last paragraph complained of is:

“Examine his acts and doings along the line of the then situation, the nature and character of the crossing, the nature and difficulty of seeing the train approaching, the time of day, and the probability of danger of passing trains, whether there was noise or confusion, and every fact and circumstance bearing on the ease to influence his conduct then and there under these circumstances. ’ ’

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

Benner & Benner, contra.

The specific objection to this charge by counsel for plaintiff in error is that there was no evidence of noise or confusion, and that there was no other train due, in sight, or about due. The bill of exceptions does not bear out counsel’s statement as to noise or train about due.

Finally, it is urged that the court erred in refusing to-submit two special interrogatories to the jury. The request contained no condition that the questions be answered in case a general verdict shall be rendered. It was not error, therefore, to refuse to submit them to the jury. Gale v. Priddy, 66th O. S., 400.

Judgment reversed for error in the charge of the court, and cause remanded for a new trial.


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    RESPONSIBILITY FOR. CONDITION OF PERISHABLE GOODS DELIVERED IN CAR. LOAD LOTS.
    [Circuit Court of Richland. County.]
    Fruit Dispatch Co. v. Henry H. Sturges.

    Decided, January, 1905.

      Contracts — For Purchase and Sale of Goods — Perishable in Character and in Car Load Lots — Question of Proper Performance by Seller for Jury — Entries Made in Usual Course of Business — Made by One not a Party to the Suit Admissible, When.

    1. A contract of sale for the delivery of perishable goods in car loads f. o. b. shipping point, where the car is loaded by the seller and not by the common carrier, requires that the seller shall properly load and deliver the car in good condition to the railroad company. There the responsibility of the seller ends; but if he should fail in any particular in properly loading the car and delivering it to the railroad company in proper condition, and by reason of such failure the goods were injured or destroyed in transit, the buyer is not bound to receive the same, nor does the property in the goods pass to him until the obligation of the shipper is discharged with reasonable care and diligence.
    2. The law of such contracts requires that the seller shall' do the thing which is right and reasonable for the protection of perishable property to be delivered f. o. b. at shipping point, and the question as to what is right and reasonable is a question for the jury, and evidence of the general custom of the trade in handling such perishable property is competent for the purpose of showing what is reasonably necessary under such circumstances.
    3. An entry or memorandum in a book, or in any other form, made in the usual course of business at the time of the transaction, by a person legitimately connected with such transaction, not a party to the suit, but who is shown to have had means of knowledge of the fact recorded and no interest in misrepresenting or misstating the facts, is admissible in evidence.
    Donaiiue, J.; Voori-iees, J., and McCarty, J., concur.
    Error to Richmond Common Pleas Court.

      Affirmed without report, Fruit Dispatch Co. v. Sturges, 73 Ohio State, 351.

   The action out of which this proceeding in error arises was brought in the common pleas court of this county by the Fruit Dispatch Company against Henry H. Sturges, .to recover the contract price of a car load of bananas, shipped from Baltimore, Maryland, to the defendant at Mansfield, Ohio, and the claim of the plaintiff is that the fruit was to be delivered f.- o. b., Baltimore, Maryland, and that the same was so delivered.

The defendant admits that the car load of bananas was shipped to him by the plaintiff at the time alleged in the petition, and that the contract price therefor was $560, as stated in the petition, but defendant avers that’ the plaintiff wholly failed and grossly neglected to adjust the ventilators of the car in which the bananas were shipped; failed and neglected to set the air traps of said ear in such a way as to admit a proper ventilation; failed to direct the railroad company over whose line the car was shipped with reference to the care of such fruit in the transportation, and failed to notify defendant of the time and place of shipment and of the carrier by whom the shipment was made, in time to permit the defendant to take proper precaution to protect the goods upon arrival; that the weather was unusually warm for that season of the year and by reason of the neglect of ■ plaintiff the entire car of fruit was ruined and worthless when it reached Mansfield, Ohio, and that the defendant therefore refused to receive the same.

There are but two questions of importance in this case: The first is as to the duty of the seller under the circumstances above detailed; second, as to the admission in evidence of a memorandum in writing made at the time of the transaction by a person not a party to the suit, but who had personal knowledge of the facts recorded.

As to the first question, this court holds that delivering perishable goods in car load lots f. o. b. shipping point, means that the seller is charged with the responsibility of properly loading the car and delivering it to the railroad company in proper condition. There the responsibility of the shipper ends, but if the shipper should fail in any particular in properly loading said ear and delivering it to the railroad company in right condition, and by reason of which failure the goods are injured and destroyed in transit, the buyer is not bound to receive the same, nor does the property in the goods pass to him until the obligation of the shipper is discharged with reasonable care and diligence.

In this particular case the shipper took charge of the ear and loaded it, and it was incumbent upon him to load the bananas properly and to see to it that the car was properly ventilated for the safety and preservation of the fruit, with regard to the distance it had to travel to reach its destination.

And that question of fact as to whether the shipper had ■properly done and performed all and singular the duties required of him with reference to the shipping of this perishable fruit, and whether or not he had notified the defendant of the shipment, so that he in turn might give it prompt attention upon its arrival at its destination, were submitted to the jury, under proper, full and fair instruction, and the jury found in favor of the defendant, and, in our opinion, the evidence sustains that finding.

The law of contracts of sale of ordinary goods not perishable, the delivery to be made at place of purchase, does not and can not apply to such a case as this, for with goods of that character the seller’s duty would be fully discharged by delivering the goods sold to the common carrier in good condition, and no further duty or care would be required of him. But, with reference to perishable goods, the rule, of necessity, must be different, and it is sometimes entirely controlled by the custom, if there is an established custom, in reference to the care and handling of such goods. For instance, this record discloses that it is sometimes necessary to send a man in charge of fruit of this kind, and especially is this true when there is a large consignment of several car loads, so that the amount to be protected will justify the expense.

In this case, the plaintiff’s witnesses say that the consignment was not large enough to justify such expense, and, therefore, knowing that no man would be in charge of the car and no person would have authority or right to molest it or change its condition from the time it left Baltimore until it reached Mansfield, it was doubly important for the shipper to see to it that the eai’S should be in proper condition and properly ventilated for the preservation of this fruit when it was' delivered to the railroad company for transportation.

Cummings, McBride & Wolfe, for plaintiff in error.

C. E. Workman, for defendant in error.

It was also a question for the jury to determine whether reasonable care in that behalf would require that the shipper notify the consignee, by wire, immediately upon making such shipment, so that he might be prepared to take due precaution to protect the fruit upon its arrival. In truth, the whole controversy on this point is more a question of fact than one of law. A simple statement of the law is, that the seller shall do that thing which is right and reasonable for the protection of perishable property to be delivered f. o. b. at shipping point. What these duties are must be determined from the nature of the goods and the usual, ordinary and customary manner of providing for their safety, and it is for the jury to say upon the whole evidence what these things are that will comply with the requirements of the law, and whether or not the shipper has performed them.

Second, it is claimed that the introduction of the book, kept by a witness named Foster, was prejudicial error.

It appears from the evidence that this was a memorandum in writing made at the time of the transaction by a person legitimately connected with such transaction, who had personal knowledge of what was therein written, although he is not a party to the suit. And it further ’ clearly appearing. that he could have had no interest in misrepresenting or misstating the facts, the admission of this evidence was not prejudicial error. Livingston v. Arnoux, 56 N. Y., 507, 518; Abbott, Trial Ev., 398.

We find no error in this record to the prejudice of plaintiff in error, and the judgment of the common pleas court is affirmed with costs, and the cause remanded for .execution.


text:
    APPLICATION OF MONEY PAID BY A DEBTOR. WITHOUT DESIGNATION.
    [Circuit Court of Hamilton County.]
    Alice V. P. Epply v. George B. Von Phul et al.
    Decided, March 3, 1906.

      Lien Reserved in Deed — Presumption as to Payments Made Without Designation — Application of Money Otherwise than Debtor Intended — Receipts—Equitable Considerations.

    1. In the absence of equitable considerations, payments made by a debtor to a creditor without designating their application should be applied to the only debt shown to exist.
    2. Where the debt is in the form of a lien reserved in a deed, and specific application was made by the parties of the early payments to the extinguishment of the lien, subsequent payments in the absence of circumstances indicating the contrary will be presumed to have been made for the same purpose.
    Gieeen, J.; Jelke, P. J., and Swing, J., concur.
   The plaintiff: in this case claims that a lien for $2,000, reserved in a deed for real estate executed and delivered in the year 1876, has beén paid in full. In support of this claim she offers in evidence certain receipts given by her son, Thomas H. Wood, the owner of the lien, in which it is specified that the payments were made upon the lien in question. Other receipts are offered in evidence in which no application is made of the payments thereby evidenced. These latter payments, if applied to the lien, would be sufficient to satisfy it in full. The sole question, therefore, is whether payments made by a creditor to a debtor, without designating their application, shall be applied to the payment of the only debt shown to exist.

In the case of Sanson v. Gurtly, 11 Iowa, 565, the last proposition of the syllabus is as follows:

“If A owes B a debt and pays him money, the law presumes in the absence of any agreement to the contrary that it was . the intention to apply it to the payment of the debt.”

In Masser v. Bowen, 29th Penn. State, 128, the syllabus is as follows:

“A check drawn on one person in favor of another and paid to the latter is presumed to have been received on account of a debt shown to have existed at the time. The party alleging that it was not so received must produce such proof of the account upon which it was made as will change the presumption.”

If we follow these decisions, it is clear that plaintiff, having shown payments of money sufficient to extinguish the debt, is entitled, in the absence of anything shown to the contrary, to have them so applied. But counsel for the administrator of the estate of Thomas IT. Wood claims that the case pf Somervail v. Gillies, 31 Wis., 152, is supported by the better reason and should govern in this case. The first two propositions of the syllabus are as follows:

‘11. The presumption that a note - is unpaid, arising from the payee’s possession thereof, uncanceled, and unextinguished by endorsed payments, is not sufficiently met by showing payments of money by the maker to the payee, without further showing that there was no other dealings between the parties upon which such payments might have been made.
“2. Where such absence of other dealings is shown, proof of moneys paid by the maker to the payee would create a strong and almost conclusive presumption that they were paid upon the note.”

In that case the presumption that an outstanding note is still unpaid was founded upon well known usages applied to such paper as shown by the reasoning of the judge at page 156; but no such custom exists or could apply to a lien reserved in a deed conveying real estate. It is -claimed, however, that the lien should have been canceled of record, but it is not customary to reserve such lien, the ordinary practice being to take a mortgage back for the unpaid purchase money, the cancellation of which is provided for by statute. And although it may be proper to make a cancellation of a lien reserved in a deed upon the record thereof, the ordinary person would not know that such cancellation could be made. The failure, therefore, to make the cancellation upon the record could hardly amount to a presumption that the lien was still unpaid. The payments we numerous, some being in small amounts, and some large, most of them being made for the support and maintenance of Thomas II. Wood and his family, and the total amount being in excess of the lien, together with interest.

L. W. Goss, for plaintiff.

Wm. M. Fridman, confra.

It would seem from this state o'f facts that the parties themselves probably did not know that the entire debt was paid, and, therefore, made no effort to have the lien canceled of record.

It is further claimed by counsel for the administrator, that inasmuch as some of the receipts specified that the payments be applied on the lien, the parties would have made the other receipts as specific if the payments were so intended to be applied. We do not accede to this proposition but on the other hand think that only one debt having been shown and the parties having made specific application of certain payments to its extinguishment, subsequent payments, in the absence of any circumstance to the contrary, would be presumed to be made for the same purpose. The precise question here involved has not been passed upon by our Supreme Court, but in the case of Stewart v. Hopkins, 30 O. S., 502, the 14th proposition of the syllabus is as follows:

‘ ‘ The creditor can not divert a payment so made by his debtor, from the appropriation made by him, upon mere equitable considerations that do not amount to an agreement between the parties, giving the creditor a right to appropriate the payment otherwise than directed by the debtor, though mere equitable considerations may control, where the payment is made without designating its application.”

In this case it is-equitable that the debt be paid, and inequitable that a son and his family should be supported by his mother, and still claim that the money thus received by him should not be applied to the payment of a debt owing by the mother to him.

We are of opinion, therefore, that the receipts offered were evidence of the payment of the lien, and that the administrator of the estate of Thomas II. Wood, deceased, is not entitled to the relief prayed for.