author: COOK, J.

text:
    MASTER AND SERVANT — NEGLIGENCE.
    [Belmont (7th) Circuit Court,
    May Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    Carnegie Steel Co. v. Patrick Rowan.
    '.Master's Liability foe Injuries to Servant while Eating his Dinner in a Building Habitually so Used.
    A corporation, permitting its servants for a number of years habitually to use a building on the premises as a place to deposit their dinner pails while at work, and in which to eat their dinner, owes such servants the duty not to injure them by its negligence while they are using said building in the customary manner; and if a servant is injured while eating his dinner there, through the want of ordinary care on the part of the corporation, it is liable, although the building is used for other purposes, and although the servant would not have been injured had he remained at his usual place of work.
    [For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 91-100. — Ed.]
    [Syllabus by the court.]
    Error to Belmont common pleas court.
    J. C. Tallman and Fred Spriggs, for plaintiff in error:
    Cited and commented upon the following authorities: Balt. <& 0. ■8. W. By. v. Cox, 66 Ohio St. 276 [64 N. E. Rep. 119; 90 Am. St. Rep. 583] ; Cooley, Torts (2 ed.) 791; Pitts. Ft. W. & C. By. v. Bingham, 29 Ohio St. 364 [23 Am. Rep. 751]; Wright v. Bawson, 52 Iowa 329 [3 N. W. Rep. 106; 35 Am. Rep. 275]; Clev. A. & C. By. v. Workman, 66 Ohio St. 509 [64 N. E. Rep. 582; 90 Am. St. Rep. 602]; Bennett v. Bailway, 102 U. S. 577 [26 L. Ed. ¿35] ; Pomponio v. Bailway, 66 Conn. 528 [34 Atl. Rep. 491; 32 L. R. A. 530; 50 Am. St. Rep. 124]; Cin. H. ■& D. By. v. Aller, 64 Ohio St. 183 [60 N. E. Rep. 205]; Galveston Oil Co. v. Morton, 70 Tex. 400 [7 S. W. Rep. 756; 8 Am. St. Rep. 611]; Benson v. Traction Co. 77 Md. 535 [26 Atl. Rep. 973; 20 L. R. A. 714; 39 Am. St. Rep. 436]; Columbus, E. V. & T. By. v. Gaffney, 65 Ohio St. 104 [61 N. E. Rep. 152]; Coal Co. v. Estievenard, 53 Ohio St. 43 [40 N. E. Rep. 725] ; Woolwine v. Bailway, 36 W. Va. 329 [15 S. E. Rep. 81; 16 L. R. A. 271; 32 Am. St. Rep. 859]; Earriman v. Bailway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507]; Belief ontaine & Ind. By. v. Snyder, 18 Ohio St. 399 [98 Am. Dec. 175]; Plummer v. Dill, 156 Mass. 426 [31 N. E. Rep. 128; 32 Am. St. Rep. 463]; Cleveland, T. & V. By. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142] ; Kennedy v. Chase, 119 Cal. 637 [52 Pac. Rep. 33; 63 Am. St. Rep. 153] ; Chicago & A. Smelt. & Bef. Co. v. Collins, 43 Ill. App. 478; .Severy v. Nickerson, 120 Mass. 306 [21 Am. Rep. 514]; Byrket v. Bail-

      way, 29 O. C. C. 614, affirmed by the Supreme Court, without report, Byrket v. Railway, 75 Ohio St. 625; Balt. & 0. By. v. Wilson, 31 Ohio St. 555; Knox Co. Bank v. Lloyd, 18 Ohio St. 353; Clev. C. C. & St. L. By. v. Martin, 13 Ind. App. 485 [41 N. E. Eep. 1051] ; Chicago & 0. ■Coal c& Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. Rep. 857]; St. Louis, A. é T. By. v. Welch, 72 Tes. 298 [10 S. W. Rep. 529; 2 L. R. A. 839]; International & G. N. By. v. Byan, 82 Tes. 565 [18 S. W. Rep. 219] ; Broderick v. Railroad Station & Depot Co. 56 Mich. 261 [22 N. W. Rep. 802; 56 Am. Rep. 382] ; Elliott, Evidence Sec. 1080; Greenleaf, Evidence (16 ed.) Sec. 4412.
    C. J. Lynch, J. B. Handlan and Paul Jones, for defendant in error.
   COOK, J.

Plaintiff: in error was engaged in the manufacture of steel and in connection with its works had several blast furnaces. In a blast furnace there are a number of water blocks inserted for the purpose of keeping the avails of the furnace as cool as possible. In this furnace there were at least two hundred of these blocks. The blocks are made of a certain •character of bronze metal adapted to the purpose, and are about twenty-•sis inches long, oblong in shape corresponding with the outside of the wall, extending through the wall twenty-seven inches tapering to what is called the nose and are five or six inches deep. These blocks are at the lower part of the furnace where the heat is most intense and run around the furnace in rows, one above the other. They are connected together so that the water circulates freely through all of them from a tank located ■considerably higher than the blocks and finally emptying into a well in the ground.

Defendant in error, Rowan, was employed by the company to mix ■clay which was used about the different furnaces; and his box at which he worked was from seventy-five to a hundred feet from the furnace when the accident occurred. He had nothing further to do with the working or operation of the furnace.

For two or three days before the accident it had been observed by the superintendent and men connected with the operation of the furnace that one of the blocks had become impaired and was leaking, but not to such extent as to require immediate removal. A block is ordinarily removed during a cast, when the blast is off, and the pressure is reduced to the minimum. The evening before the accident the superintendent gave notice to his men in charge of the furnace to prepare the impaired block for removal, and the men did so during the night by removing the casing all around the block, which is made of cement about one-half inch thick, to a depth of ten inches into the wall. Casts are made at three, six, nine and twelve o’clock in tbe first half of the day and at the same time in the last half. The superintendent came at eight o’clock in the-morning and it was his intention to remove the block at the nine o’clock cast but he changed the time to twelve for the reason, as claimed, that some difficulty had arisen in the water appliance and that the water was. not circulating as freely through the blocks as it should do. After the nine o’clock cast was made the supply of water became more impaired and at twelve o’clock the blocks became considerably overheated. After-the cast was made at twelve o’clock, which lasted some forty-five minutes, the blast was again put on, perhaps inadvertently, as it was evidently the intention of the superintendent to remove the block at the twelve o’clock east. Soon after the blast was put on, a very short time, it was observed that this block had become very much overheated, indeed, red hot, and before the engine could be stopped and the blast taken off, the block was forced from its place and the hot metal was forced through-the aperture striking a small building, which was about twenty feet away, in which Rowan and others were just finishing their dinner, whereby all of them were badly burned, also a man by the name of Lowe, who was not in the building. Rowan’s injuries were very serious. This building in which Rowan had just finished eating his dinner was about sixty feet from the box at which he worked and the box was not at all in line with the escaping metal, and if he had been at his box or close to it he-would not have been injured. The building was a small frame structure twenty-eight by twelve feet and was used for different purposes, primarily, .however, for storing clay, keeping it warm and pliable, so-that it would be ready for use at any time. A stove was in the center-of the building and the clay was in one end. At the other end and around the sides, up to the stove, benches had been placed by the men who used them while eating their dinners; nails had been driven in the walls on which the men hung their clothes while at work and their dinner pails were left there.

The employes had been in the habit of using this building in which-to eat their dinners when the weather was inclement for fifteen or twenty years; and Rowan had been in the habit of eating his dinner there for a long time, as the company’s agents well knew, the superintendent of the-furnaces frequently eating his dinner there. There were other buildings, of a similar character scattered through the premises of the company which were used by other employes in a similar manner. There were, about fifteen hundred employes of the company and nearly two-thirds, or one thousand, ate their dinners on the premises. The, employes were allowed fifty minutes to get their dinners at the noon hour. The day Rowan was injured was in January and the weather very inclement.

The verdict and judgment below was against plaintiff in error ■and it is now sought to reverse the judgment upon two grounds: First, ■the verdict is against the evidence; second, there was error in the charge ■of the court.

It is claimed the verdict is against the evidence for two reasons: First, there was no negligence upon the part of defendant causing the injury; and, second, if there was, the negligence was the act of a fellow servant.

In the case of National Steel Co. v. Lowe, 14 O. F. D. 595 [127 Fed. Rep. 311; 62 C. C. A. 229], arising out of the same accident, the question of the negligence of the company and also -the question whether or not the rule of fellow servant applied were, fully considered, and it was in that case held:

“1. Plaintiff, a stove tender in defendant steel-works, was burned by molten iron from a blast furnace, caused by a water block being forced from the wall of the furnace. The block had become defective on the evening of the previous day, and the superintendent ordered preparations made to remove it. That evening the packing was removed to a •depth of nine or ten inches, and between seven and eight o ’clock the nest morning the superintendent, though it had been his intention to remove' the block when the blast was off the furnace during the nine o ’clock cast, •on his being notified that the water was not running freely through the different blocks, by reason of the strainer being clogged, directed that the block should not be removed until twelve o ’clock, and that the water strainer be repaired at the same time.. Before noon, and while the blast was still on the furnace, and as certain workmen were preparing to pull out the block, the inside of which had-become melted off by reason of the defect in the water apparatus, the block was suddenly forced from the wall by the pressure in the furnace, and plaintiff was burned by the flame and molten material issuing from the aperture: Held, that, whether treated as a place at which to work or an appliance with which to work, it was the positive duty of the company to keep the furnace reasonably safe for its employes at work about it. For any neglect to do this, the company was responsible, as the duty could not be delegated.
“2. Whether the neglect was that of the superintendent or foreman, or a workman, in neither ease was the person guilty of negligence a fellow servant of the plaintiff, so as to relieve the company of responsibility.”

We have examined that case with care and we are content with the judgment and decision of the court, and that case makes it unnecessary to consider those questions further.

There is one question, however, made in this ease that was not made in National Steel Co. v. Lowe, supra, and that is, the degree of care that was required of the steel company toward Rowan at the time of the injury.

On behalf of the steel company it is claimed that Rowan at the-time of his injury was not engaged in the business of the company; that he was a mere licensee and that it owed him no duty save and except it should not wilfully injure him by its gross negligence; while upon the part of Rowan it is claimed that the company owed him the-duty of ordinary care. This question is made in the requests of both, parties and in the charge itself; the court taking the view that the company at the time of the injury owed Rowan the duty of exercising ordinary care, and charged the jury, that although Rowan was in the building at his dinner at the time of the accident, and would not have been injured had he been at his clay box or close to it, yet, the duty of exercising ordinary care devolved upon the steel company.

We think the trial judge was right in his instructions to the jury. As we have seen from the statement of facts this building had been used in the manner Rowan used it for a long number of years. It was. suitable, convenient and reasonably necessary for the purpose of providing a place where the employes could eat their dinners in inclement weather. Rowan had been in the habit of eating his dinner there since he entered the employ of the company. All this was known to the officers and agents of the company. This certainly was an invitation to-the employes to so use the building.

In the case of Cleveland, C. C. & St. L. Ry. v. Martin, 39 N. E. Rep. 759 (Ind.), it was held:

“In an action against a railroad company for the death of an employe, it appeared that deceased was employed to work on the side tracks of defendant, at a point near which defendant had a pump house, and that it was the custom of defendant’s employes at work at that point to eat their dinners in the house, it being the only place in which they could keep warm. The time given deceased for his dinner was so short that he was unable to go home, and defendant never objected to its employes using the pump house during dinner time. Deceased, while eating his dinner in the pump house on a very cold day, was killed by an escape of steam, resulting from defects in a boiler in the house: Held, that defendant was liable.”

In the opinion the question of mere license and invitation is fully discussed, and it is clearly shown that the appellant was not a licensee but was at the pump bouse by invitation.

In the case of Taylor v. Bush, 61 Atl. Rep. 236 (Del.), it was held:-

“1. A day laborer, who by virtue of his employment, is permitted to carry his dinner to his work, and eat it on his employer’s premises during the noon hour, and leave his pail on the premises until the day’s work is done, continues to occupy towards his employer the-relation of a servant on going to get his pail at the close of the day, although his day’s work is then done, and he has received his day’s pay.”'

In the opinion it is said, page 242:

“It appears that the plaintiff, Lewis E. Taylor, on the day of the-accident, was in the employ of the defendant company, and had been in their employ for about three months immediately preceding that, day; that in the course of his employment, from day to day, he was in the habit of taking his dinner pail to the stable in the morning, eating-bis dinner on the premises at noon time, and, after the day’s work was-, over, of taking his dinner pail away from the place where he had kept-it during the day; that this privilege was incident to, and connected with, the employment, extended to him as an employe, and by that right he took his pail there, kept it there, and took it away from thereat the close of each day; that at the time of the accident he had been-actually paid at the office for that day, and had gone, as was his custom, to the stable to take home his dinner pail. He was therefore in the employment of a privilege which was granted to him by his employers only as an employe. It was connected with, and incident to, his employment at the time of the accident, and the enjoyment of it therefore continued unbroken the relation of master and servant, at the time of the accident, between the plaintiff and the defendant company.”

These cases, it seems to us, fully support the charge of the court.

The ease of Pomponio v. Railway, 50 Am. St. Rep. 124 [66 Conn. 528; 34 Atl. Rep. 491; 32 L. R. A. 530], is very much relied upon by counsel for the steel company. In that case it was held that the distinction between a mere licensee and a person updn premises by invitation was whether the privilege of user exists for the common interests or mutual advantage of both parties. If it was, then it was by implied invitation; and it is claimed that the use of this building was of no advantage to the steel company.

Can that be so? Was it not to the advantage of the steel company for its employes to have a comfortable place on an inclement day in which to eat their dinners during the fifty minutes of noon hour?: 'The company so understood it by permitting them to use the building, knowing their comfort would be subserved and their capacity for more .and better work secured, saying nothing for the dictates of humanity.

But, conceding that Rowan was a mere licensee, would not the steel company be held to ordinary care in a case of this character ? This is not a case in which the premises were not kept safe; suffered to go to decay, and injury resulted from such negative act. These men were in this building with the knowledge and consent of the company. There had been no revocation of the license, or notice given to not enter the building upon that day, and while there, by the active negligence of the company, Rowan was injured. The superintendent was there doing ■this work of removing the block and by his negligence, as he then Irnew or should have known, the block was blown out.

An owner of premises may permit a! licensee to come upon his premises and travel over an excavation covered over and, if the plank rot out and the earth give way without his knowledge and the licensee, while using the premises as he was accustomed to do, falls into the pit and is injured, the owner may not be responsible, but can he remove the plank and permit the excavation to remain open without revoking the license or notice to the licensee, permit him to continue to use the premises without being responsible? We think not.

In the case of Pomponio v. Railway, supra, it was held:

“With respect to the safety of the premises of a landowner, he mwes a more limited duty to a mere licensee than he does to a person who is there by invitation, either express or implied; but he owes to both the equal duty of not injuring either by his own active negligence, .and is liable if he does so.
“A railroad company, which has for years maintained a planked crossing upon its tracks for the use of a manufacturing company having shops extending along either side of the railroad, is liable for its negligent act in switching its cars at the crossing, whereby a person, ■going to his work at one of the shops, after the noon intermission, is, without fault upon his part, struck and killed, whether he is upon the ■ crossing as a licensee, or by implied invitation.”

In the opinion it is said, page 129:

“The defendant contends that the decedent was upon the crossing .as a .mere licensee, and, consequently, that its duty toward him was a more limited one than if he had been there upon its implied invitation. As a general statement, it is undoubtedly true that an owner in charge ■of land owes a more limited duty to a mere licensee than he does to a •party invited, in the technical sense of that word. A licensee must take tbe premises as be finds them, and the owner is not, as to him, bound to use care and diligence to keep the premises safe while he does owe such a duty to one using his premises upon invitation. ‘It has often been held that the owner of land or a building who has it in charge, is bound to be careful and diligent in keeping it safe for those who come there by-his invitation, express or implied, but that he owes no such duty to those who come there for their own convenience, or as mere licensees.’ Plummer v. Dill, 156 Mass. 426, 427 [31 N. E. Rep. 128; 32 Am. St. Rep. 463]. This distinction between the case of a licensee and that of a party invited, in respect to the duty of keeping the premises safe for their use, is recognized in the following cases and in many others: Nicholson v. Railway, 41 N. Y. 525, 532; Barry v. Railway, 92 N. Y. 289 [44 Am. Rep. 377] ; Byrne v. Railway, 104 N. Y. 362 [10 N. E. Rep. 539; 58 Am. Rep. 512]; Sweeny v. Railway, [92 Mass.] 10 Allen 368 [87 Am. Dec. 644] ; Gordon v. Cummings, 152 Mass. 513 [25 N. E. Rep. 978; 9 L. R. A. 640; 23 Am. S.t. Rep. 846].
“But while this is so, it is also true that the landowner must not himself, by what has been called ‘his own active negligence,’ injure ■either the licensee or the party invited, while they are upon his land. This is a duty due to both equally. Toward both, in this respect, he is bound to exercise the same amount of care. Both are upon his premises, not as wrongdoers, but by his' permission, and, in respect to the duty in question, we know of no good reason why the nature and extent of it should not be the same in cases of license as in cases of invitation. In a Massachusetts case it appeared that the plaintiff, being sent by his mother upon an errand, passed through a passageway upon the defendants’ premises, over a portion of which a roof had been constructed; and that it was the defendants’ habit to supply ale to their workmen, who were accustomed to throw the empty ale kegs out of a window down upon this roof, from which from time to time the kegs were taken away. Just as the plaintiff, in going through the passageway, emerged from under this roof, one of the workmen threw a keg so carelessly that it fell off the roof and injured the plaintiff. It was held that the defendants were liable, and that it made no difference whether the way was public, and thus the plaintiff was traveling upon it as a matter of right, or whether it was private and he was traveling upon it merely by permission. The court said: ‘Even if he were there under a permission which they might at any time revoke, and under circumstances which did not make them responsible for any defect in the existing condition of the way, they were still liable for any negligent act of themselves or their servants which increased the danger of passing and, in fact, injured him.’ Corrigan v. Sugar Refinery, 98 Mass. 577 [96 Am. Dec. 685],
‘ ‘ In another Massachusetts case the court says: ‘ The licensor has,, however, no right to create a new danger while the license continues. Oliver v. Worcester, 102 Mass. 489, 502 [3 Am. Rep. 485]; Corrigan v. Silgar Refinery, 98 Mass. 577 [96 Am. Dec. 685]; Corby v. Hill, 4 Com. B., N. S., 556. So a railroad company, which allows the public habitually to use a private crossing of its tracks, cannot use active force against a person or vehicle crossing under a license, express or implied.’ Stevens v. Nichols, 155 Mass. 472, 475 [29 N. E. Rep. 1150; 15 L. R. A. 459],
“In a New York case the court said: ‘There can be no doubt that the acquiescence of the defendant, for so long a time, in the crossing of the tracks by pedestrians, amounted to license and permission, by the defendant, to all persons to cross the tracks at this point. These circumstances imposed a duty upon the defendant, in respect of persons using this crossing to exercise reasonable care in the movement of its trains. The company had a lawful right to use the tracks for its business, and could have withdrawn its permission to the public to use its premises as a public way, assuming that no public right therein existed ; but so long as it permitted the public use, it was chargeable with knowledge of the danger to human life from operating its trains at that point, and was bound to use such reasonable precaution in their management as ordinary prudence dictated to protect wayfarers from injury. * * * The ground of liability in this case is negligence, and the duty of the defendant to exercise reasonable care existed irrespective of the fact whether the plaintiff’s intestate had a fixed legal right to cross the track, or was there simply by the defendant’s implied permission.’ Barry v. Railway, 92 N. Y. 289, 293 [44 Am. Rep. 377].”

Such we also understand to be the holding of our own Supreme Court. Harriman v. Railway, 45 Ohio St. 11 [12 N. E. Rep. 451; 4 Am. St. Rep. 507] ; Cincinnati, H. & D. Ry. v. Aller, 64 Ohio St. 183 [60 N. E. Rep. 205]; Cleveland, T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]; Cleveland, A. & C. Ry. v. Workman, 66 Ohio St. 509, 540 [64 N. E. Rep. 582; 90 Am. St. Rep. 602].

In the case of Cincinnati, H. & D. Ry. v. Aller, supra, Judge Shauck, in'the opinion on pages 193 and 194, says:

“But it is urged that in the circuit court it was thought, and rightly, that the judgment under review was required by the later case of Harriman v. Railway, 45 Ohio St. 11. Attention to the facts presented in the eases will sbow that in the legal view they are materially different. In the present ease there has been a recovery because-the end of the platform as it had been constructed six years before the-accident and maintained without change, was not constructed or guarded so as to make it a safe way for footmen passing from the junction to-the village, although such use was not within any invitation which the company extended to the public. While in Harriman v. Railway, the recovery was by one who was upon the grounds of the company by permission only, the injury was not occasioned by any real or alleged defect in the construction of the road. The injury there resulted from the operation of the road. The doctrine of the case is that when the company became aware that persons were using the road for purposes of their own it became its duty, not to alter the construction of its. road, but to operate it consistently with the facts thus known to it. It was held to be a violation of that duty to add new and further peril to such permitted use without taking precaution against injuries which-would naturally result therefrom. Not only does such added peril from the operation of the road appear as a fact in the case, but in the-syllabus it is stated, as a ground of recovery; and in the opinion the-question for decision is stated as follows: ‘An owner may, without protest or objection, permit his premises to be us^jl by the public so-long, in the same condition, that" his acquiescence in the continuation of such use, until some warning or notice on his part, might reasonably be expected; and if under such circumstances and with knowledge of’ the same, he should place or leave some new, dangerous structure ©r instrument in the way so used, and from which he might reasonably apprehend danger of injury to those accustomed to such use, can he-claim exoneration from liability in case such injury shall occur, on the-ground that the law imposed no duty on him to keep his premises in a safe and suitable condition for trespassers and licensees who enter by-permission only?’ ”

Judgment of court of common pleas will be affirmed

Burrows and Laubie, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    DEEDS — EVIDENCE.
    [Mahoning (7th) Circuit Court,
    October Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    Lucius M. Shehy v. Elizabeth Cunningham et al.
    (PAROL PROOF THAT CONSIDERATION OF DEED EXPRESSING VALUABLE CONSIDERATION 'WAS Love and Affection, Admissible. '
    In an action for the distribution' of a decedent’s estate coming by inheritance, parol evidence is admissible to show that a deed which, upon its face expresses a valuable consideration, was in fact a gift for natural love and affection and as an advancement. The case of Gowden v. Oow-den, 28 O. C. C. 71, overruled.
    [For other cases in point, see 3 Cyc. Dig., “Deeds,” §§ 119-125. — Ed.]
    .[Syllabus by the court.]
    EeboR to Mahoning common pleas court.
    .Arrel, Wilson & Harrington, for plaintiff in error.
    Moore & Craver and S. M. Thompson, for defendants in error.
   COOK, J.

The action in the common pleas court was by Lucius M. Shehy 'to recover from his three sisters the sum of $5,000, it being the one-•fourth part of $20,000 received by them from the sale of real estate inherited by him and his three sisters from their father.

The sisters admitted that Lucius was entitled to the one-fourth part of the real estate but claimed that there should be deducted from the same the value of a certain parcel of real estate given by the father to Lucius as an advancement.

By the evidence it appears that on April 15, 1890, some years before his death, the father conveyed to Lucius ninety-nine acres of land by .deed of general warranty for the consideration expressed in the deed •of $4,700, and the son went into possession of the property. At the time of the execution of the deed the father took •from the son a receipt setting forth that the conveyance was made on account of Lucius’s interest in his father’s estate. The case was tried •to the court, a jury being waived and the court found that the conveyance of the ninety-nine acres of land was an advancement and gave judgment for the plaintiff for the sum of $726.65, the difference, with interest, between the $5,000 and the value of the land so conveyed.

’ While there is some conflict in the evidence yet we are fully satisfied that the court was fully justified in finding that the conveyance from tbe father to the son was an advancement-under the evidence, if the same was admissible.

The principal question, however, made below and also before us, is that the parol evidence admitted for the purpose of showing that, while the deed upon its face stated that the consideration was a valuable one, yet in fact it was a gift as an advancement, was improperly admitted.

Waiving the question as.to whether or not the receipt should be read in connection with the deed and as part of the same, we think the court below was right in admitting the parol evidence.

No question of title was involved as to the ninety-nine acres; it was simply as to whether or not Lucius should account for the $4,700. If the manner of descent of the ninety-nine acres had been at issue, the consideration could not be changed by parol evidence from a valuable one, as shown in the deed, to a good one for natural love and affection. Brown v. Whaley, 58 Ohio St. 654 [49 N. E. Rep. 479; 65 Am. St. Rep. 793]; Groves v. Groves, 65 Ohio St. 442 [62 N. E. Rep. 1044],

• Indeed, in this case the question of consideration is not involved at all, only in so far as it shows the value of the ninety-nine acres in the division and distribution of the estate. Revised Statutes 4172 (Lan. 6870).

But it is said that the case of Cowden v. Cowden, 28 O. C. C. 71, decided by this court at the October term, 1905, is contrary to the holding now made. So it is. That case was properly decided under the evidence, but in so far as the law laid down in that case upon this question the court was wrong. The law, as stated in the syllabus, was correct but was misapplied to the facts of the case. We will not be controlled by that case and the same is overruled.

Judgment affirmed.

Burrows and Laubie, JJ., concur.


author: •COOK, J.

text:
    WILLS.
    [Columbiana (7th) Circuit Court,
    April Term, 1907.]
    Burrows, Laubie and Cook, JJ.
    Edwin Thomas et al., Exrs., v. Sarah Ann Hobson et al.
    'V?ife Having Devised Residuary Estate op Her Husband in Accordance with His Whjg, Dying before Him, Makes no Disposition op the Residue.
    Testator provided by his will, “I will and direct that my wife, Dorothy Hoyle, shall be allowed to dispose of all the rest, residue and remainder •of all my estate and effects (not hereinbefore disposed of) by will or .otherwise as she deems just and prudent, previous to her decease, to •take effect after her death.” Three years afterwards the wife made a will disposing of the residue of her husband’s property not specially disposed of by him; stating in her will that the disposition was made in .accordance with the will of her husband. The wife died twelve years tbefore her husband: Held, the wife had no power to dispose of the residue of the estate of her husband; that he died intestate as to such residue and that his heirs at law took the same by descent.
    ([Syllabus by the court.]
    Appeaded from Columbiana common pleas court.
    . '-C. S. Speaker and G. T. Farrel, for plaintiffs.
    J. C. Boone, J. G. Moore, George Duncan and G. E. Davidson, ;£or defendants:
    Cited and commented upon tbe following authorities: Gillen v. .Kimball, 34 Ohio St. 352; Charch v. Charch, 57 Ohio St. 561 [49 N. E. .Rep. 408]; Collins v. Collins, 40 Ohio St. 353; Cassidy v. Hynton, 44 Ohio St. 530 [9 N. E. Rep. 129] ; Linton v. Laycock, 33 Ohio St. 128; Richey v. Johnson, 30 Ohio St. 288; Baxter v. Bowyer, 19 Ohio St. 490; Shaw v. Hoard, 18 Ohio St. 227; Edwards v. Rainier, 17 Ohio St. 597; Starling v. Price, 16 Ohio St. 29; Brasher v. Marsh, 15 Ohio St. 103; Parker v. Parker, 13 Ohio St. 95; 2 Jarman, Wills 744; Clyde V. Simpson, 4 Ohio St. 445; Thompson v. Thompson, 4 Ohio St. 333; Ward v. Barrows, 2 Ohio St. 241; Ober v. Hickox, 10 Circ. Dec. 128 (19 R. 42) ; Kline v. Marsh, 5 Circ. Dec. 352 (12 R. 645) ; Halley v. Hengstler, 13-23 O. C. C. 504; Townsend v. Townsend, 25 Ohio St. 477; McEelvey v. McKelvey, 43 Ohio St. 213; Carter v. Reddish, 32 Ohio St. 1; Wood-ruff v. Woodruff, 13-23 O. C. C. 408; King v. Beck, 15 Ohio 559; Jeiuett v. Jewett, 12 Circ. Dec. 131 (21 R. 278) ; Thomas v. State University iTr.), 70 Ohio St. 92; Jones v. Shields, 14 Ohio 359; Lake Shore & M. S. Ry. v. Hutchins, 37 Ohio St. 282; 30 Am. & Eng. Enc. Law (2 ed.) 578; Barr v. Hatch, 3 Ohio 527; Murphy v. Benevolent Assn. 13 Dec. 183; Harding v. Glyn, 1 Atk. 469; 22 Am. & Emg. Ene. Law (2 ed.) 1095 to 1125; Blackburn, In re, 43 Cb. D. 75; 2 Lewin, Trusts *836; 1 Lewin, Trusts *600 to *611; Page, • Wills 188, 189, 307, 667; Allen v. Boomer, 82 Wis. 364 [52 N. W. Rep. 426]; 6 Lawson, Rights, Rem. & Prae. 5112, Secs. 3140, 3142, 5114; Gilpin v. Williams, 17 Ohio St. 396; Piffard, In re, 111 N. Y. 410 [18 N. E. Rep. 718; 2 L. R. A. 193]; 2 Underbill, Wills 909, 911, 1160, 1396; Weir v. Smith, 62 Tex. 1; Buggies v. Randall, 70 Conn. 44 [38 Atl. Rep. 885]; Cleghorn v. Scott, 86 Ga. 496 [12 S. E. Rep. 876] ; 1 Underbill, Wills 2; Roy v. Rowe, 90 Ind. 54; Mills v. Franklin, 128 Ind. 444 [28 N. E. Rep. 60]; Burbank v. ■Sweeney, 161 Mass. 490 [37 N. E. Rep. 669]; Wead v. Gray, 78 Mo. 59; Forsythe v. Forsythe, 108 Pa. St. 129; Security Co. v. Pratt, 65 ■Conn. 161 [32 Atl. Rep. 396]; Johnson v. Battelle, 125 Mass. 453; Tower v. Hartford, 115 Ind. 186 [17 N. E. Rep. 281]; Pierce v. Simmons, 16 R. I. 689 [19 Atl. Rep. 242]; Redfield, Wills 491; Elyton Land Co. v. McElrath, 53 Fed. Rep. 763 [3 C. C. A. 649; 2 U. S. App. 584] ; 2 Redfield, Wills (3 ed.) 116; Clermontel’s Estate, 12 Phila. 139.
   •COOK, J.

This action is by the executors of the wills of John Hoyle and Dor■othy Hoyle, deceased, and is for the purpose of obtaining the direction and judgment of the court under Rev. Stat. 6202 (Lan. 9743), respecting the distribution of the estates of the decedents.

John Hoyle made his last will and testament on June 3, 1886. The second, ninth and tenth items of the will, which are in controversy, are as follows:

”2. I will and bequeath to my beloved wife, Dorothy Hoyle, during her natural life, all the property that I own or possess at the time of my decease, real, personal or mixed, and at her death to be disposed of as hereinafter named. ’ ’
“9. At the death of my wife, Dorothy, I will and direct that one-half of what remains of all my property or that which has not yet been disposed of, as hereinbefore named, shall be equally and ratably divided amongst all my brothers’ and sisters’ children, share and share alike.”
”10. I will and direct that my wife, Dorothy Hoyle, shall be allowed to dispose of all the rest, residue and remainder of all my estate and effects (not hereinbefore disposed of) by will or otherwise as she deems just and prudent previous to her decease, to take effect after her death.”

On August 15, 1889, more than three years after John Hoyle made his will, his wife Dorothy made her will and in that will she recites, before making disposition, that she executed the will for the purpose of disposing of a certain portion of the estate of her husband, John Hoyle, which by his will he had left for her to dispose of as she thought best and which then remained undisposed of, as a reference to his will would show. She then by this will made a disposition of that portion of the estate of her husband.

Dorothy Hoyle died on February 19, 1892. John Hoyle died on March 22, 1904. Both of the wills were probated after the death of John Hoyle.

The claim of! defendant, Sarah Ann Hobson, and other devisees and legatees of Dorothy Hoyle under her will is that by virtue of the tenth clause of the will of John Hoyle she, Dorothy, had the right to dispose of all the estate of her husband by will, not specifically disposed of by him in his will; while the claim of the heirs of John IToyle is that the wife had no power by will to dispose of any of the estate of her husband; and that John Hoyle died intestate as to the portion not disposed of in his will.

It must be conceded that under Rev. Stat. 5914 (Lan. 9450), that no disposition of property c$n. be made by will except the party has an interest therein; therefore, if John was the absolute owner of the property at the time Dorothy made her will and at her death, then her will was wholly inoperative as to such property. John might possibly dispose of the property by will and give his wife by apt words the power of appointment if she should not survive him, but that is not done in this case. She undertook by her will to dispose of property that belonged to him, was in his possession, and under his control. This could not be done. If John had devised and bequeathed the property by his will to such persons as she should direct by her will, the case might be different, 'but there is no disposition of the property in controversy, except by the will of Dorothy.

In the ease of Condit v. De Hart, 62 N. J. Law 78 [40 Atl. Rep. 776], it is held:

“Supreme Court of New Jersey, July 19, 1898.
“WILLS-POWER OP APPOINTMENT — EXECUTION.
“D., by his will, devised his residuary estate to his son H. By a codicil he afterwards authorized his said son to dispose, by his will, of said residuary estate, and then devised and bequeathed the same to-such person- or persons as his son should designate and appoint by his will as those to whom he desired it to go. H. died before the testator,leaving a will in which, after reciting the power of appointment contained in the codicil to bis father’s will, be designated bis- wife, A., as-, tbe person to whom the estate should go: Held, that while the power of' appointment could not be executed by H. during the donor’s lifetime; and therefore his will was not a good execution of it (because he could-not, by his will, make a valid disposition of property, which was wholly and absolutely in the ownership and control of another), yet the devise contained in the codicil to the testator’s will, to such person or persons, as H. should designate in his will, operated to pass the estate, and the will of the latter could be referred to for the purpose of ascertaining the-personality of the testator’s devisee.”

To the same effect is the case of Piffard, In re, 111 N. Y. 410 [18 N. E. Rep. 718; 2 L. R. A. 193], the syllabus of which case is as follows:

“The will of P. gave to his daughter S. one-fifth of all his- real and personal estate. By a codicil he directed that S. should have power by her will, ‘heretofore or hereafter’ executed, to dispose of the share devised and bequeathed to her, and to that end he directed that such share should be paid over by his executors to the executors or trustees named in her will in case of her death during his lifetime, but in ease she survived, then that such share should be paid over to her. S. died before the testator, leaving a will: Held, that while the testator gave a power of appointment, which as a power the donee could not execute during the donor’s lifetime, yet the further language of the codicil showed the testator’s intent to be, in case of the happening of the contingency specified, to devise and bequeath by force of his own will the' daughter’s one-fifth to such person or persons and in such shares and proportions as she had directed or should direct in the disposition of her own property; that the will of the daughter could be referred to to define and make certain the persons to whom and the proportions in which the one-fifth should pass; and that the executors of the will of P. were properly required to pay over that share to the executors of the will of S. for the purposes of distribution. ’ ’

It is further said that if the power of appointment failed that the-will of the wife became part of the will of the husband by incorporation.

In order to incorporate the will of the wife into that of the husband’s, by reference, three things were necessary:

' “1. The will itself must refer to such paper to he incorporated as being in existence at the time of the execution of the will and in such a way as to reasonably identify such paper in the will and in such way as to show testator’s intention to incorporate such instrument in his. will and to make it a part thereof.
“2. Such document must in fact be in existence at the time of the execution of the will.
“3. Such instrument must correspond to the description thereof in the will and must be shown to be the instrument therein referred to.” Page, Wills Sec. 164.

None of these requisites exist in this case.

The finding and decree of the court is that the heirs of John'Hoyle are entitled to that portion of the property sought to be devised and bequeathed by the will of Dorothy Hoyle; and this being the same holding as made by the court of common pleas, the same entry will be made as in that court.

Burrows and Laubie, JJ., concur.


author: WILDMAN, J.

text:
    CONSTITUTIONAL LAW — CONTRACTS—CORPORATIONS—ME= CHANICS’ LIENS.
    [Lucas (6th) Circuit Court,
    1907.]
    Haynes, Parker and Wildman, JJ.
    James A. Stewart v. J. N. Gardner et al.
    1. Inalienable Right to Contract Applies to Corporations.
    The inalienable right to acquire property involves tbe right to make contracts with reference to property and that right appertains not only to individuals but also to private corporations and to municipalities. And applying the holdings of the Supreme Court in Palmer v. Tingle, 55 Ohio St. 423, and Cleveland v. Construction Co. 67 Ohio St. 197, the legislature has no more right to alienate or qualify the power of a private corporation to contract than it has an individual.
    [For other cases’in point, see 2 Cyc. Dig., “Constitutional Law,” §§ 341-367; “Contracts,” §§ 1232, 3210-3216; '6 Cyc. Dig., “Mechanics’ Liens,” §§ 5-16.— Ed.]
    2. Revised Statutes 3231-1 (Lan. 5135) Unconstitutional.
    Revised Statutes 3231-1 (Lan. 5135) relating to liens for labor and material furnished certain public woi-ks, etc., is applying the principles and on the authority of Palmer v. Tingle, 55 Ohio St. 423 and Cleveland v. Construction Co. 67 Ohio St. 197, unconstitutional.
    [For other cases in point, see 6 Cyc. Dig., “Mechanics’ Liens,” §§ 5-16. — Ed.]
    [Syllabus approved by the court.]
    Error to Lucas common pleas court.
    Malcolm McAvoy and A. S. Brumback, for plaintiff in error.
    L. W. Morgan, for defendant in error.
    L. P. Conway, for cross petitioner, P. F. Sullivan.
   WILDMAN, J.

This is a proceeding in error to reverse the judgment of the court of common pleas. The issues arise upon the claims of James A. Stewart and P. F. Sullivan, a cross petitioner, of alleged liens against the property of the Cincinnati, Toledo & Detroit Short Line Ry. Co., for services rendered to principal contractors. Certain work was to be done for the company, and J. N. Gardner, at first, and subsequently the Gardner company, were the principal contractors. The services of Stewart were rendered to the one and those of Sullivan to the other contractor. The claims of the plaintiff and the cross petitioner, P. F. Sullivan, are based upon Rev. Stat. 3231-1 (Lan. 5135). It provides, in substance, and so far as it is necessary to recite any of its provisions, that:

“Any person who shall have performed common or mechanical labor upon, or furnished supplies to, any railroad, * * * turnpike, plank road, canal or on any public structure being erected, or on any abutment, pier, culvert, or foundation for same, or for any side track, embankment, excavation or any public work, protection, ballasting, delivering or placing ties, or track-laying, * * * shall have a # * # lien on the whole of the property on which said work is done,” etc., whether the labor is performed for, or the supplies and material furnished to, the company itself or to any contractor or subcontractor. The court below held this section to be unconstitutional, and, in so holding, disposed of the claims of the plaintiff and the cross petitioner named. It is hardly worth while to enter upon what might be a very interesting discussion of the various provisions embodied in this section, in view of the adjudications already had in our court of last resort as to statutes so analogous as to be, in our judgment, determinative of the question involved here. The sole issue presented for our determination involves directly the constitutionality of this section. There is a decided conflict in the authorities as to the legislative power to qualify the right of individuals or corporations to enter into contracts. The case relied upon by counsel for the defendant in error and followed by the court below, is Palmer v. Tingle, 55 Ohio St. 423 [45 N. E. Rep. 313]. The court in that case held:
“1. The inalienable right of enjoying liberty and acquiring property, guaranteed by the first section of the bill of rights of the constitution, embraces the right to be free in the enjoyment of our faculties, subject only to such restraints, as are necessary for the common welfare.
“2. Liberty to acquire property by contract, can be restrained by the general assembly only so far as such restraint is for the common welfare and equal protection and benefit of the people, and such restraining statute must be of such a character that a court may see that, it is for such general welfare, protection and benefit. The judgment of the general assembly in such cases is not conclusive.
‘£ 3. While a valid statute regulating contracts is, by its own force, read into, and made a part of, such contracts, it is otherwise as to invalid statutes.
“4. The act of April 13, 1894, 91 O. L. 135 [Rev. Stat. 3184; Lan. 5100], in so far as it gives a lien on the property of the owner to subcontractors, laborers and those who furnish machinery, material or tile to the contractor, is unconstitutional and void. All to whom the-contractor becomes indebted in the performance of his contract, are bound by the terms of the cqntract between him and the owner. ’ ’

This would seem to dispose of the question of the validity of the section under consideration so far as the view entertained by our Supreme Court is concerned, except fpr the contention of plaintiff in error —that the decision of the Supreme Court in the case just cited does not reach so far as to apply the rule enunciated to corporations. It is earnestly, and with much force, urged that that legislative power which gives life to the corporation and has power to take it away, may at any time by legislative enactment restrict the powers of the corporation so by the legislative act created. Indeed, it is asserted in general terms that k corporation has no inalienable right to contract; and it might by force of the same reasoning, be insisted that a corporation has no inalienable right at all; that all its rights are subject to be divested by acts of the legislature; that it cannot claim even the right to exist; and that it must, at any time, at the legislative behest, surrender its life. The act which the Supreme Court held to be invalid was, it is true, an act which did not, in terms, especially relate to corporations, and one of the cases under consideration by the Supreme Court affects only the rights of individuals. The other case had for one of its parties a corporation, but it was not the power of that corporation to contract that was being considered.

In the act now under consideration we have a provision which relates especially to corporations, although not necessarily entirely so. It evidently refers mainly to structures and improvements made by railway companies, but it also relates to public structures of all kinds. Incidentally, some consideration has been given, in argument, to the provision in this section for its enforcement — for the foreclosure of the lien or' for the collection of the debt sought to be secured by the lien, and no attorney in the case contends for any validity to the section so far as its remedial part is concerned, or, rather, as to the enforcement of its remedy. It is provided, in substance, that the entire operation of the railway — if it be a railway — no matter what its length, no matter what the extent of its business, may be tied up by injunction until the ■claim of the lien holder, no matter how small or insignificant, shall have been adjusted and paid.' This is “government by injunction” with a vengeance, and, as I say, no attorney in the case contends that a provision such as that will stand under the law. But, it is urged that this part of the statute may be eliminated from it without emasculating the statute — that the statute so far as concerns the establishing of a lien may still exist and the lien holder may have recourse to a court of ■equity in proper proceedings for its enforcement.

The decision of our Supreme Court, supra, has been subjected to sharp criticism, and the reasoning, so far as we are apprised, does not appear to have been followed, to any extent, outside of Ohio. It is urged upon us that we should not enlarge this decision — go any farther along the line which has been followed by our Supreme Court. The reasoning of the judge who announced the opinion upon which the decision is based may not bear critical investigation. If the decision ■stood alone, in view of our notions of this class of legislation, it is altogether likely that we might adopt the suggestion of counsel, and, following the Supreme Court no farther than was necessary, hold that, while under our bill of rights men have an inalienable right to contract, artificial persons have not. But this case does not stand alone as an expression of the views of our court of last resort, and notwithstanding the high authority of the Supreme Court of the United States, ■and the circuit court of appeals, whose decisions have been cited to us ■as in conflict to some extent, with the case of Palmer v. Tingle, supra, we feel bound to follow the authority of the Supreme Court of Ohio as to ■ Ohio statutes, and the application of the bill of rights embodied in our Ohio constitution. It is not a question affecting the validity of an act of congress, nor is it one in which a question has been presented of claimed violation of the federal constitution, but the case relates solely to the Ohio jurisdiction; and in such cases, we have uniformly held the decisions of our own Supreme Court to be binding upon us, leaving that court to revise and reverse its own conclusions at any time when it may deem that it has gone wrong.

In the case of Cleveland v. Construction Co. 67 Ohio St. 197 [65 N. E. Rep. 885; 59 L. R. A. 775; 93 Am. St. Rep. 670], the Supreme Court has, in effect, refused to adopt the contention of counsel for plaintiff in error here — that the principle of an inalienable right to contract, even if applied to individuals, will not apply to corporations. I read a part of the syllabus: -

“1. The act of April 16, 1900, 94 O. L. 357 [Lan. Rev. Stat. 7300 et seq.; B. 4364-62a et seq., entitled: An act to provide for limiting the hours of daily service of laborers, workmen and mechanics employed upon public work, or of work done for the state of Ohio, or any political subdivision thereof, providing for the insertion of certain stipulations in contracts of public works; imposing penalties for violations of the provisions of this act, and providing for the enforcement thereof, is. in conflict with-Secs. 1 and 19 of Art. 1 of the constitution of Ohio; because it violates and abridges the right of parties to contract as to the number of hours of labor that shall constitute a day’s work, and invades- and violates the right, both of liberty and property, in that it denies to municipalities and to contractors and subcontractors the -right to-agree with their employes upon the terms and conditions of their contracts. Said act is therefore unconstitutional and void.”

It is held, also, that the act is not a valid exercise of the police power, thereby disposing of one of the questions urged upon us and based largely upon the case of Branin v. Railway, 31 Vt. 214. It will be noted that here we have a municipality which is not only a political subdivision of the state, but is also a corporation having certain property and business rights, a corporation representing a large number of individuals, just as a private corporation does, and, when we leave out of consideration its governmental powers, standing towards its citizens very much as a private corporation stands towards its shareholders.

In the entire argument of the questions in Cleveland v. Construction Co. supra, it seems to have been assumed that the legislature had no power to restrict the right of private corporations as to contracts or as to fixing the hours of labor of their employes; but the question under consideration was mainly whether the legislature could enact legislation restricting the right of municipalities so to contract or fix the hours of labor. The legislature had attempted to fix a limit to the hours of labor, just as in previous enactments it had fixed the rate of interest beyond which contracting parties were not permitted to go. It has seemed to the members of the present court who have com sidered this question, a matter of some difficulty to distinguish between that spirit of paternalism by which the legislative body of a state attempts to protect the ignorant or improvident against the adroitness and skill of the educated or experienced in the matter of usury laws, and the kind of legislation which we are here considering in which the legislature bas sought to protect workmen who may be ignorant of the-laws of business and not accustomed to making contracts, as against the-shrewdness and the skill of employers. But the Supreme Court has attempted to draw such a distinction and has held that even in the case-of municipal bodies a legislative provision that they shall not make' contracts with employes for work days of more than eight hours, is invalid because of its attempted restriction of the power of the contracting parties, including the municipalities themselves, to enter into" such contracts.

On page 213, Judge Crew, who announces the opinion of the court, quotes approvingly this language from the case of People v. Coler, 166 N. Y. 1 [59 N. E. Rep. 716; 52 L. R. A. 814; 82 Am. St. Rep. 605]:

£ ‘ The city is a corporation possessing all the powers of corporations-generally and cannot be deprived of its property without its consent or due process of law any more than a private corporation can.”

And on page 215 he quotes from the case of Atkins v. Randolph (Town), 31 Vt. 226, 237, this language:

“It is true, as was urged in argument by the learned counsel for plaintiffs, that in some respects, the legislature have a power in respect •to municipal corporations, that they have not in respect to private corporations or individuals. They may alter or abolish municipal corporations at pleasure, but, yet, not so as to defeat the pecuniary rights of individuals, as against such corporations, or as depending upon their existence. The legislature have the same power in respect to private corporations, when that power is reserved in the law creating them. So far as a municipal corporation is endowed by law with the power of contracting, and as such, is made capable of acquiring, holding and disposing of property, and subject to the liabilities incident to the exercise of such power and capacity, thus being invested with legal rights as to' property and contracts, and made subject to legal liabilities in respect thereto, to be ascertained and enforced by suit in the ordinary judicial forums, upon the same principles, and by the same means as in case of a private corporation, such municipal corporation must stand on the same ground of exemptions from legislative control and interference as; a private corporation. As to third persons who seek to enforce pecuniary liabilities against towns, arising upon contract, such towns are-merely private corporations or individuals, and in this respect, they are not affected by the purely municipal public and political features-that appertain to their corporate existence in virtue of, and in reference to which alone, they are subject to the absolute control of legislation.”’

Judge Crew cites to the same effect the case of People v. Detroit (Com. Counc.) 28 Mich. 228, and adds:

“This distinction as to the'powers delegated to municipal corporations was clearly recognized and commented upon by this court in the case of Western College v. Cleveland, 12 Ohio St. 375.”

I need not follow his elaboration of this distinction, which has become quite familiar to the bench and bar of this state, the distinction between governmental powers and the proprietary and business powers of a municipality. The language which I have read I have selected because of its manifest treatment of municipal corporations as upon the same plane as private corporations and its treatment of private corporations in the same paragraph as upon the same plane as individuals, so far as regards the legislative lack of right to alienate or ■ qualify the power of such individuals or private corporations or municipalities to contract. In the case of Cleveland (City) v. Construction Co., supra, Judge Crew cites, as bearing more or less directly upon the ■ questions in it considered, numerous cases, and among them — State v. Iron Co. 51 Ohio St. 632; see, also, memorandum note reported in 33 Bull. 6 (1 O. S. C. D. 254), which shows it to be a case involving the right of a private corporation to enter into contracts and the lack of power, in the legislature to interfere with the exercise of that power.

In the case of Palmer v. Tingle, supra, Judge Burket, in his opinion, on pages 441-442, refers to this same unreported case of State v. Iron Co. supra, as follows:

“Many other like cases of restraint as to contracts are to be found in our statutes, but all of them, in so far as they are valid, depend for their validity upon the same principle. It was the infringement of the liberty of contract that induced this court in State v. Lake Erie Iron Co., unreported, to hold the statute unconstitutional which required corporations to pay their employes at least twice in each month.”

We have, then, the very definite expression by our Supreme Court that the inalienable right to acquire property involves the right to make contracts with reference to property and that that right pertains not only to individuals but also to private corporations and to municipalities. The federal courts and the courts of many of the states, with very forcible reasoning, have adopted the contrary view. We feel bound, however, to follow the decisions of our own Supreme Court.

I wish to add, before dismissing the case entirely from our thought, that the statute which is involved in the present inquiry is no more a .statute affecting corporations exclusively, or their right to contract, than was the statute considered by the court in Palmer v. Tingle, supra. That was an act as to liens generally, acquired by persons contracting with subcontractors, and so is this, although it may pertain to certain /kinds of structures and improvements not contemplated by the act with regard to which the Supreme Court has adjudicated this question. So far as their affecting corporations and individuals alike is concerned, the two statutes are practically upon the same footing.

The judgment of the court below is affirmed.

Haynes and Parker, JJ., concur.


author: WINCH, J.

text:
    WILLS.
    [Cuyahoga (8th) Circuit Court,
    November 6, 1907.]
    Winch, Henry and Marvin, JJ.
    Florence M. Hobson v. S. Louise Lower et al.
    ''Widow a Trustee Under a Will for the Remainder-men, When.
    Where testator gave all of his property to his widow in the following language: “For the term of her natural life, and with full power to hold and dispose of part or all of the same for her use and benefit as she may see fit. Upon the death of my said wife, if there should be any residue of said estate, it is my will that such residue shall be divided equally among my four children,” the widow is a quasi trustee for the remainder-men, the testator’s children, and a petition alleging that she is wastefully using funds of the estate, has removed from the state and that the remainder-men fear that the estate will be dissipated, calls for an answer from her and that such relief may be granted as the circumstances require.
    [For other cases in point, see 7 Cyc. Dig., “Wills,” §§ 829-834. — Eld.]
    [Proof of this decision and syllabus has been submitted to Judge Winch ¡and corrected.] '
    Error to Cuyaboga common pleas court.
    Horr & Lewenthal, for plaintiff in error.
    A. B. Thompson, for defendants in error.
   WINCH, J.

The will under consideration in this ease gives all of the testator’s property to his widow in the following language: “for the term of her natural life, and with full power to hold and dispose of part or all ■of the same for her use and benefit as she may see fit. Upon the death' -of my said wife, if there should be any residue of said estate, it is my will that such residue shall be divided equally among my four chil■dren. ”

Following the decision in the case of Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61], we hold that the widow is a quasi trustee for ithe remainder-men, to wit, the testator’s children.

The petition alleging that the trustee has improvidently and wastefully used considerable sums in excess of the fair and reasonable expense of supporting and maintaining herself, has moved out of the state, and that the plaintiff, one of the remainder-men, fears that the estate will all be dissipated by the widow during her lifetime, we think she is called upon to answer the petition and therefore overrule her demurrer to it.

Henry and Marvin, JJ., concur.


author: HURIN, J.

text:
    INTOXICATING LIQUORS.
    [Henry (3d) Circuit Court,
    October Term, 1907.]
    Hurin, Haynes and Wildman, JJ.
    (Judges Haynes and Wildman of the sixth circuit, sitting in place of Judges Norris and Donnelly.)
    Christ Diehl Brewing Co. v. Fernando J. Beck (Aud.) et al.
    BREWING Company Cold Storage House Liable por Dow Tax.
    A brewing company, manufacturing and selling beer at wholesale, which maintains a cold storage house in a location separate from its manu-factory, and from which cold storage house daily deliveries of beer are made to customers on orders previously taken by a soliciting agent, thereby becomes a trafficker in intoxicating liquors within the meaning of Rev. Stat. 4364-9 (Lan. 7248) and is subject to the Dow tax provided for by that act.
    [For other cases in point, see 5 Cyc. Dig., “Intoxicating Liquors,” §§ 86>, 87. — Ed.]
    [Syllabus by the court.]
    B. F. Enos and Donovan & Warden, for plaintiff.
    T. A. Conway, for defendants:
    Cited and commented upon the following authorities: Benjamin,, Sales 1, 2, 313, 330, 360, 399; 1 Mechera, Sales 3, 4, 6, 7, 572, 714, 721, 723, 726, 727, 728, 729, 733; 2 Mechem, Sales 957, 958; 2 Bouvier’s' Law Diet. 492;'17 Am. & Eng. Enc. Law (2 ed.) 297, 300; Seudder v. Worsier, 65 Mass. (11 Cush.) 573; Belief ontaine v. Vassaux, 55 Ohio St. 323 [45 N. E. Rep. 321]; Stephens v. State, 10 O. F. D. 81 [93' Fed. Rep. 793]; Jung Brew. Go. v. Talbot, 59 Ohio St. 511 [53 N. E. Rep. 51]; DeMonte v. Pabst, 14 Dee. 97; State v. Low, 12 Dec. 201;, Ormsbee v. Machir, 20 Ohio St. 295; Garbracht v. Commonwealth, 95 Pa. St. 449 [42 Am. Rep. 550]; Ramsey & Gore Mfg. Co. v. Kelsea,,
      55 N. J. Law 320 [26 Atl. Rep. 907; 22 L. R. A. 420]; Erulder v. Ellison, 47 N. Y. 36 [7 Am. Rep. 402] ; Terry v. Wheeler, 25 N. Y. 520;. Lingham v. Eggleston, 27 Mieb. 324; 23 Cye. of Law & Proc. 135; State v. Wingfield, 115 Mo. 428 [22 S. W. Rep. 363; 37 Am. St. Rep. 406]; Sneathen v. Grubbs, 88 Pa. St. 147; Braddock Glass Co. v: Irwin, 15& Pa. St. 440 [25 Atl. Rep. 490]; Commonwealth v. Burgett, 136 Mass. 450; Suit v. Woodhall, 113 Mass. 391; Herron v. State, 51 Ark. 133 [10 S. W. Rep. 25]; Abberger v. Marrin, 102 Mass. 70; Dolan v. GreenT 110 Mass. 322; Pearson v. State, 66 Miss. 510 [6 So. Rep. 243; 4 L. R. A. 834] ; 22 Am. & Eng. Enc. Law (2 ed.) 1339, 1340; Gipps Brew_ Co. v. DeFrance, 91 Iowa 108 [58 N. W. Rep. 1087; 28 L. R. A. 386;. 51 Am. St. Rep. 329]; Wasserboehr v. Boulier, 84 Me. 165 [24 AtL Rep. 808; 30 L. R. A. 344]; 24 Am. & Eng. Ene. Law (2 ed.) 1050r 1055; Stein Brew. Co. v. Eberhard, 23 Ky. Law 325 [62 S. W. Rep. 881]; New England Dress. Meat & Wool Co. v. Worsted Co. 165 Mass. 328 [43 N. E. Rep. 112; 52 Am. St. Rep. 516] ; Joseph v. Brandy, 112 Mich. 579 [70 N. W. Rep. 1101].; Hahn v. Fredericks, 30 Mich. 223 [18 Am. Rep. 119]; Williams v. Sayers, 79 Miss. 50 [29 So. Rep. 995] Foot v. Marsh, 51 N. Y. 288; Haldeman v. Duncan, 51 Pa. St. 66;, Hutchinson v. Hunter, 7 Pa. St. 140; Scotten v. Sutter, 37 Mieh. 526;. Diehl Brew. Co. v. Spencer, 29 O. C. C. 512; Starr Brew. Co. v. Horsfy 120 Fed. Rep. 246 [58 C. C. A. 362] ; Augustine v. McDowell, 120 Iowa-. 401 [94 N. W. Rep. 918] ; Kellogg v. Frohlich, 139 Mich. 612 [102 NW. Rep. 1057]; State v. Intoxicating Liq. 98 Me. 464 [57 Atl. Rep. 798] ; Farmers Phosphate Co. v. Gill, 69 Md. 537 [16 Atl. Rep. 214;-' 1L. R. A. 767; 9 Am. St. Rep. 443]; Brown v. Wieland, 116 Iowa 711 [89’ N. W. Rep. 17; 61 L. R. A. 417]; Dunn v. State, 82 Ga. 27 [8 S. E. Rep.-806; 3 L. R. A. 199]; Commonwealth v. Hess, 148 Pa. St. 98 [23 Atl. Rep-977 ; 17 L. R. A. 176; 33 Am. St. Rep. 810]; State v. Basserman, 54 Conn.-88 [6 Atl. Rep. 185]; Bagley v. State, 82 Ga. 786 [9 S. E. Rep. 721] Berger v. State, 50 Ark. 20 [6 S. W. Rep. 15]; Dosier v. State, 93 Ga-43 [18 S. E. Rep. 997].
   HURIN, J.

This action was brought to-enjoin the collection of certain taxes and assessments levied for the years, 1902, 1903 and 1904 under and by virtue of Rev. Stat. 4364-9 (Lan. 7248) et seq., and commonly know® as the Dow tax.

These taxes were placed upon the tax duplicate by the auditor of Henry county, Ohio, upon receiving satisfactory information that the plaintiff was engaged in the business of trafficking in intoxicating liq-r uors in the villages of Holgate and Deshler in said county..

The ease is before us on appeal and was heard upon an agreed state.ment of facts.

The facts essential to an understanding of the case are as follows:

The plaintiff is a brewing company engaged in manufacturing and •seEing beer at wholesale in Defiance, Defiance county, Ohio. It had .during the years, 1902, 1903 and 1904, a <?old storage house at Holgate ;smd one at Deshler, both in Henry county.

Its method of doing business in Holgate and Deshler was to send lifts soliciting agent to those places periodically — perhaps once a month .or of tener. This agent took orders from saloonkeepers for the amount •of beer which they would need during the next period of thirty days or until he would next make his round. These orders were sent to the .main office of the brewing company at Defiance for approval.

From its brewery in Defiance, the brewing company would then ¡•ship in cartload lots to Holgate and Deshler an amount of beer sufficient for the demand in those places. The beer so shipped was consigned to itself, the Christ Diehl Brewing Company, and was received by its agents in Holgate and Deshler and stored in its cold storage houses in those towns and none of it was in any way designated or set apart for .any particular customer.

Each morning and evening, the agent of the brewing company at Holgate and at Deshler would make the round of the saloons in his •town; inquire of each saloonkeeper how much beer he would need for the day or part of a day; enter that amount with the price thereof on a book which he carried with him; make a duplicate entry on the boob ikept by the saloonkeeper; and afterwards would deliver by wagon to the saloonkeeper the amount and kind of beer so ascertained to be needed, taking such amount of beer from the general stock on hand in the cold storage house and continue to so do until the amount previously ordered^by any customer had been delivered to him.

The price of the beer was at all times fixed by the brewing company at Defiance or by the soliciting agent. As a rule the agents at Holgate and Deshler collected no money, though they occasionally did so and «specially from customers who were considered financially unsound. The collections of money for the beer so delivered were usually made by •the .soliciting agent at his next call.

It is also agreed that all of the beer so delivered from said cold ■storage houses was intoxicating liquor and was not sold upon prescription issued in good faith by reputable physicians in active practice or .for exclusively known mechanical, pharmaceutical or sacramental purposes, but was sold by plaintiff to its said customers to be retailed by them as an intoxicating liquor in tbe usual retail trade.

Tbe question before us is, was tbe business thus engaged i« by plaintiff in Iiolgate and Desbler a trafficicing in intoxicating liquor within tbe meaning of Rev. Stat. 4364-9 (Lan. 7248) and tbe following sections of the statute. If it was not, plaintiff is entitled to the-injunction prayed for. If it was such a business, tbe injunction was-wrongfully granted and must be dissolved.

Laning Rev. Stat. 7256 (B. 4364-16) defines tbe term “trafficking in intoxicating liquors ’ ’ as follows :

“The phrase, ‘trafficking in intoxicating liquors,’ as used in fids-act, means tbe buying or procuring and selling of intoxicating liquors-otherwise than upon prescription issued in good faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical or sacramental purposes, but such phrase does not include the-manufacture of intoxicating liquors from the raw material, and the-sale thereof at the manufactory, by the manufacturer of the same m quantities of. one gallon or more at any one time. ’ ’

It is evident that the whole question involved in this case depends-on the one word “sale” and its definition.

When and where under the facts agreed upon in this case, did. the “sale” take place? ,

Was the sale completed by the soliciting agent when he took the order for the supply of beer to each saloon for the coming month Í oar

Was it completed when the order for beer was accepted and confirmed by the home offices in Defiance ? or

Was it completed when the beer for all the Holgate and Deshlei-customers was shipped in bulk to the cold storage houses in those-towns ? or

Was it completed when the beer was delivered by the agent of the brewing company from the cold storage houses to the saloons ? or

Was it only completed when, after delivery, the soliciting agent again called, collected the money for the beer previously delivered, anil solicited a new order?

We have been cited to many authorities, decisions of courts In this state and in others, construing the statutes involved in this ease- and similar statutes in other states.

Some of these it will be profitable for us to comment on and consider in their hearing on this case, always remembering, however, that there is no peculiar law applicable to eases of this bind except the constitutional and statutory law and that the ease must ultimately be de-.-eided upon the broad principles applicable to all contracts of bargain and sale.

In tbe ease of Senior v. Ratterman, 44 Ohio St. 661 [11 N. E. Rep. 381], it was held that,

“Section 18 of the schedule to the constitution, which provides that ‘no license to traffic in intoxicating liquors shall hereafter be •granted in this state; but the general assembly may, by law, provide against evils resulting therefrom,’ applies, as well to the wholesale as to the retail traffic in intoxicating liquors. ’ ’

The statute then under consideration is the same one involved in the case at bar. It distinguishes between the obligations of a manufacturer of such liquors and all other dealers, but the court held that this distinction did not, by force of the constitution, extend to other ■wholesalers as distinguished from retailers.

Just why the legislature should have seen fit in its wisdom to impose a tax upon the small retailer of an article while it permits the man■ufacturer of that same article to mate and sell it in car-load lots without any tax whatever is not apparent to the judicial mind; but such is •the statute and the Supreme Court having upheld the constitutionality •of the statute, we are not at liberty to discuss that feature of it, and it is not material to this case.

The question before us is not whether a brewery may or may not ■sell beer, from its brewery, without taxation,- — that right is granted by the statute — but whether it may sell elsewhere than at its brewery, and whether a sale made as in the ease at bar is a sale elsewhere than at the brewery.

The cases of Hanson v. Luce, and Monaghan v. Luce, 50 Ohio St. 440 [34 N. E. Rep. 435], are strongly relied on by the plaintiff'to sustain its claim of exemption from taxation and those cases are very closely similar to the case at bar.

In both of those cases, saloonkeepers, having paid the Dow tax on their saloons, built cold storage houses for the storage of beer and then proceeded to engage in the wholesale sale of beer as well as the retail. Both employed agents who, as in the case at bar, took orders for beer, and these orders were supplied from the respective cold storage houses of plaintiff, but only in wholesale lots. The sales were made to all who wished to buy but no beer was sold at the cold storage house.

The Supreme Court held in those cases that such sales were permissible without incurring liability for additional taxes.

In both of those cases the cold storage houses were closely connected with the saloon on which the Dow tax had been paid. In one case, tbe cold storage house was in the rear of the saloon, only four and a half feet distant from it and connected with the saloon by a covered way — practically the same building. In the other ease, the cold storage house was on the opposite side of the street from the saloon but only 155 feet distant from it.

This fact may have had something to do with the decision of the cases; but it appears from the opinion that it was decided altogether on the conceded fact that “no beer was sold at said cooler.”

From the opinion by the court, we quote as follows:

“It thus appears, that beer was neither bought nor sold at the cooler, but that all the business of .buying and selling was done at the saloon, and that the cooler was a mere place of storage, and not a place of business, and that no traffic whatever was carried on at the cooler. No buying; no selling.
“It is difficult of comprehension how the business of trafficking in an article can be said to be carried on at a place where such article is neither bought, sold nor bartered.
“The traffic contemplated by the statute consists in the purchase and sale or barter of the liquors named therein, and the place of the traffic is the place where such purchase, sale or barter is had, and not the place where the liquors are stored for cooling or safe-keeping.
“The sales of beer made by the driver of the beer wagon, must be referred to the place where his employer carried on the traffic, and not to the place of storage. ’ ’

I have quoted thus extensively from the opinion in those cases because it seems to disclose the theory on which the decision was rendered and to emphasize both the similarity and the dissimilarity of those cases with the case at bar.

If it is true in the case at bar, as was conceded in those cases, that there was no traffic or sale at the cold storage houses, then those cases ■are conclusive in the present instance. But that is the very point that is to be determined in this case. There it was conceded that no beer was sold at the cooler. Here it is contended that beer was sold from the cooler, or cold storage house. This is the vital point in this ease.

The case of Jung Brewing Co. v. Talbot, 59 Ohio St. 511 [53 N. E. Rep. 51], is also an interesting case.

In that ease it appeared that the brewing company located in Cincinnati, maintained a cold storage house in Urbana, Champagne county, “where beer, shipped from the brewery, was received and kept on hand ready for sale and delivery to customers in the latter city, from time •to time as they might order. The sales were not made directly at the storage room, but were made by agents and employes of the plaintiff' who drove wagons for that purpose which were supplied with beer in the keg from the storage room.”

The court held that the business conducted in that manner was-taxable, and on page 516 of the opinion the court say:

"If customers had made their purchases or received the property at the building (meaning the cold storage building) it would undoubtedly have been a place of traffic. Instead of conducting the business, in that way the agents who had charge of the building and contents obtained orders from the customers which they filled by hauling the beer' from the building to the customers. ■ That was merely a matter of convenience to the purchaser or inducement to buy. The building where' the property sold was situated, and from which it was delivered, was, for every practical purpose, the place where the business was carried on. The substantial distinction between this case and the cases of' Hanson v. Luce and Monaghan v. Luce, 50 Ohio St. 440 [34 N. E. Rep. 435] is, that in the latter eases the storage -room was used in connection with, and as part of, the wholesale and retail traffic carried on by the proprietor at his saloon where all the business was done, and for which he had paid the tax. In such a case, it was held he was not subject to a separate tax on account of the use made of the storage room. ’ ’

Here we find a close similarity to the case at bar and the court, holds that, though "the agents who had charge of the building and contents obtained orders from the customers which they filled by hauling the beer from the building to the customers, that was merely a matter of convenience to the purchaser, or inducement to buy. The building where the property sold was situated, and from which it was delivered, was, for every practical purpose, the place where the business was carried on.”

But plaintiff in'the case at bar insists that the manner of sale in this ease, the fact that a blanket order had previously been taken and that the daily orders delivered from the cold storage houses were merely designations of what was immediately needed, takes it out of the rule thus laid down.

A case perhaps still more nearly identical with this case is that of Bellefontaine (Vil.) v. Vassaux, 55 Ohio St. 323 [45 N. E. Rep. 321].

There a brewery company at Sidney owned a cold storage house at. Bellefontaine. There was evidence tending to show that customers in Bellefontaine ordered beer of the brewing company at Sidney, which, thereupon, shipped it to the purchaser at Bellefontaine, but in care of its own agent who stored the beer in the cold storage house and delivered it to the purchaser only when paid for. In that case there was an attempt to show that the beer for each purchaser was set apart by itself in the storage house in a rack labeled with the initial of the purchaser’s name but there was no attempt to show a separation between the beer ordered by two men with names of the same initial letter.

The court held that such evidence justified a conviction on the charge of selling intoxicating liquor in violation of law.

The ease is especially important because of the discussion in the opinion of the question as to what constitutes a sale and to that question it is necessary continually to return; for on it this case must depend.

What, then, is a sale and when is it complete ?

2 Blackstone’s Commentaries 446, says it is “a transmutation of property from one man to another in consideration of some price. ’ ’

Kent calls it “ a contract for the transfer of property from one person to another for a valuable consideration.” 2 Kent’s Commentaries 468.

Benjamin on Sales Sec. 1, declares that “It may be defined to be a transfer of the absolute or general property in a thing for a price in money. ’ ’

Mechem on Sales defines it as “The transfer, in pursuance of a valid agreement, from one party, called the seller, to another called the buyer, of the general or absolute title to a specific chattel, for a price, or a consideration estimated in money” and says further that “the sale tabes place only when the title passes. ’ ’

In all of these definitions, except that of Kent, a transfer of title or property is held to be a necessary element of a sale; and in Kent’s, definition it is the contract for the transfer which constitutes a sale.

But in all of these authorities it is. held that it is not the mere contract to sell that makes a valid sale. There must be something more —an actual setting apart,- — not necessarily a delivery, though usually a delivery of the thing bargained for. Until such setting apart or delivery takes place the thing contracted for remains the property of the seller, although the buyer may recover damages for the failure to-perform the contract by a delivery. This delivery may be constructive,, as when it is made to a common carrier for transfer to the purchaser, but, even there, there must be some setting apart of the thing to be-delivered.

This conclusion was followed by the Supreme Court in Bellefontaine (Vil.) v. Vassaux, supra, the court holding that,

“As- a generar rule, a sale of personal property is not completed when anything remains to be done to identify the thing sold, or discriminate it frcm other like things.”

This rule has been held to be varied by particular customs under •certain conditions, but is the general rule applicable in all cases, where no special custom is found to the contrary.

Applying these principles to the ease at bar, when could the buyer first point to any particular keg of beer and say “that is mine.” Not when he gave the order to the traveling salesman; not when that order was approved at the home office of the brewing company; not when the beer for all the customers in Holgate or Deshler had been shipped .and stored together in the cold storage houses in those towns. Up to this point no title had passed. Any. creditor of the brewing company could have seized the beer and held it by attachment as the property of the brewing company.

But when the agent of the brewing company took that beer from this cold storage house, setting apart some of it for one customer and •some for another and, from the cold storage house, began the delivery of their portions to the respective purchasers, then the brewing company lost its title and the purchaser gained it whether payment had been made ■or not. Then the sale was complete.

Does it follow, as claimed by the plaintiff, that in such event the final delivery being at the purchaser’s saloon was not at the cold storage house and therefore the business cannot be taxed? We think not. As in the case of Jung Brewing Co. v. Talbot, supra, the court held that the business to be taxed was not done on the wagon but at the place from which the wagon was loaded and the beer delivered; so here, the beer was delivered from the cold storage house and as was said in that case:

“The building where the property sold was situated, and from which it was delivered, was, for every practical purpose, the place where the business was carried on.”

But the plaintiff distinguishes that ease from this, because there the agent who managed the cold storage house also solicited orders and ■sold the beer, while here the orders were all previously taken by another agent and only beer already ordered was delivered. It would be •difficult to distinguish these two cases and the Bellefontaine case upon .any principle known to us.

The distinction is, we think, without force. True, the .order had previously been given, but the execution of it, the completion of the actual sale was carried out only from the cold storage house and by the agent in charge thereof. Until such delivery, there was no completed sale — no setting apart of any particular beer — no transfer of any title to any particular kegs or barrels of beer. The business was conducted from the cold storage house and only completed by the agent in charge of that house. We cannot believe'that there is any substantial distinction which would take this ease out of the rule laid down in Jung Brewing Co. v. Talbot, supra, and in Bellefontame (Vil.) v. Vassaux, supra. If there was no completed sale by the soliciting agent, and none at the home office, then the only other places where a sale could have been completed was either at the cold storage house or from the delivery wagon at the door of the saloon. The Jung Brewing ease negatives the latter construction and this is in accord with the universal commercial law. There remains only the one possible place of sale and that is at the cold storage house.

We have reached this conclusion after a most careful consideration •of the authorities. In doing so we have been somewhat embarrassed by an able opinion, recently published, rendered by a former judge of this ■same circuit, an opinion concurred in by all the judges then members of this court, for all of whom we have the highest personal and professional regard and whose opinions are always worthy of the highest consideration. The plaintiff in that case is the plaintiff in this case. The facts in the two eases are substantially identical. But the conclusion reached by the court as then constituted was directly opposite to that at which we have arrived.

We have read the opinion in that case with great care but have been unable to agree with the conclusions there reached.

It may not be amiss to consider in conclusion the effect of a contrary view. Under that holding the brewing company — merely*, because it is a manufacturer — might establish in each county in the state and in each town in each county, a depot of supplies. Its agents might there conduct what is in all essential respects a wholesale business and without taxation — a privilege denied to all other wholesalers of beer.

From these depots, beer might be delivered continuously to all • retail customers and new orders continuously taken, provided only that formal blanket orders have previously been taken and approved by the home office and the price subsequently collected by some one other than the manager of the depot of supplies — the cold storage house.

The brewing company might thus by a simple subterfuge get around the law and conduct a limitless number of subsidiary wholesale houses without taxation — just what the law prohibits in all others.

We do not think that such an interpretation of the law is consistent either with the decisions of our Supreme Court or with the spirit, of the law or even with its letter.

The finding of the court will therefore be in favor of the defendant; the injunction dissolved. Judgment against plaintiff for costs;, execution awarded and the cause remanded for execution.

Haynes and Wildntan, JJ., concur.

        Contra. Christ Diehl Brew. Co. v. Spencer, 29 O. C. C. 512. — Ed.


author: SMITH, J.

text:
    MUNICIPAL CORPORATIONS — TRIAL.
    [Hamilton (1st) Circuit Court,
    June 22, 1907.]
    Swing, Giffen and Smith, JJ.
    Cincinnati (City) v. Adolph Klein.
    CONSTRUCTION NOTICE OF DEFECT IN STREET CANNOT BE ESTABLISHED BY SPECULATION.
    In an action for injury resulting from an alleged defect in a street, it is error to overrule a motion by the city for an instructed verdict in its behalf, where actual notice of the condition of the street is not claimed, and there is no evidence of constructive notice except as based on speculation.
    [Syllabus by the court.]
    ERROR to Hamilton common pleas.
    W. A. Geoghegan, for plaintiff.
    Moses Ruskin, for defendant
   SMITH, J.

We think there was error at the trial of the above case in that, the court overruled the motion of plaintiff in error to arrest the case from the jury, and to instruct a verdict in its behalf.

There was no evidence of constructive notice to the city of the existence of the defect in the street, actual notice not being claimed. The rule is, “that if the defect is shown to have existed such a length of time that the city authorities, by the exercise of ordinary care, would have known of its existence and could have repaired it, then the city is charged with constructive notice of such defect.” Cincinnati v. Frazer, 9 Circ. Dec. 487 (18 R. 50); Leipsic (Vil.) v. Gerdeman. 68 Ohio St. 1 [67 N. E. Rep. 87]. No such evidence was offered. The' jury could not speculate as to the length of time the defect in question existed from statements of witnesses as to the appearance of the defective place after the accident, and thus establish constructive notice to the city.

Judgment reversed.

Swing and Giffen, JJ., concur.