text:
    CONTRACT WITH AGENT FOR. PURCHASE OF LAND,
    [Circuit Court of Lucas County.]
    Catherine B. Egle v. R. Morrison.
    Decided, November 7, 1904.

      Vendor and Purchaser — Specific Performance of Contract to Purchase —Principal and Agent — Statute of Frauds — Undisclosed Principal —Agency Proved by Parol — Contract Signed by One Party Only-Marketable Title — Building Restrictions — Objection to, Waived by Purchaser, When — Objections to Deed Waived by Silence of Grantee.

    1. A written contract for the sale of real estate, made and signed by an agent in his own name and without disclosing his agency "or the name of his principal, satisfies the requirements of the statute of frauds, and is binding on and may be enforced by the principal.
    2. Á contract required by the statute of frauds to be in writing is sufficient if signed by one of the parties to be charged and accepted by the other. The bringing of a suit for specific performance by the party whose name has not been appended to the contract establishes its acceptance by him.
    3. An agreement to convey real estate “by a good and sufficient, full and covenant warranty deed,” is satisfied by the tender of a good marketable title with warranty.
    4. Ordinary building restrictions applicable to all the property in the neighborhood, of which a proposed purchaser has knowledge, can not be classed as an incumbrance unless they affect the marketable quality of the title, and the presumption is that they are a benefit rather than a detriment to the property.
    5. Where a contract for-the purchase of real estate gives to the vendor a specified time within which to remove any objections which may be made to the title, the failure of the vendee to make any objection as to a matter of which he had knowledge and which might, have been corrected, constitutes a waiver thereof.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Heard on appeal.
   This action was brought in the common pleas for specific performance, and an appeal was taken from the .judgment of that court to this court. The action was brought by the vendor of a certain lot in this city against the defendant as vendee to require the vendee to pay to the plaintiff a balance of purchase money. It is claimed by the plaintiff that she made a valid and. binding contract with the defendant to sell to him this lot, for an agreed price of $6,900; that $100 was paid down as earnest money and a contract was made it is claimed on February 2, 1904; that the balance of $6,800 was to be paid on March 1, following, and that a deed was to be delivered to the defendant. The plaintiff claims that she was ready with her deed to deliver it on March 1, with an opinion of title, as required by the contract, and that the defendant did not come to the place specified and did not pay the money, or any part of it, and that after-wards on March 7, following, she tendered to him a deed of the property and an opinion of title and demanded the money and he refused to pay it and did not pay any of it, and soon thereafter this suit was commenced for specific performanee.

It is claimed by defendant that no contract was ever made binding him to purchase this property. It is claimed that the title which she offered to the defendant was defective — that the property was encumbered in such a manner that he was not bound to take it and1 that, therefore, he can not be required to specifically perform this contract; and it is further claimed by him, that the contract, if it was binding upon the parties, provided for stipulated damages to the amount of $100, the amount of the earnest money which he had paid, and that therefore, he can not be required to pay the $6,800.

It is conceded by all that, by mistake, the lot was described in the writing in question as “lot 44,” when it should have been' “lot 43” but that error may be considered as corrected. It appears from the testimony that the plaintiff was the owner of said lot 44, Mariette addition to the city of Toledo, in February, 1904, and that the defendant, Morrison, desiring to purchase a residence in the city of Toledo, looked at this property. The plaintiff, prior to that time, had put the property into the hands of her husband as her agent to sell it, and he had given the property for sale to Pepple & Co., real estate agents in this city, and they informed Morrison that they had it for sale, and he came to Toledo from Gibsonburg, Ohio, where he lived, went to the property and examined- it, and Mr. Egle, the husband of the plaintiff, in her presence and hearing and with her approval directed Pepple & Co., to close a contract with him for the property at $6,900, and to- sign his (Egle’s) name to the contract— the -title to the property being in the plaintiff, Mrs. Egle, and on February 2, 1904, Mr. Pepple, of Pepple & Co., closed the sale with Morrison, for $6,900, and then the written contract or paper in question- was drawn -and signed.

This paper provides that, “this memorandum witnesseth, that Thomas J. Egle, through Pepple & Co., his agents, hereby agrees to sell and convey by warranty deed, and R. Morrison agrees to purchase at the price of $6,900, the following described real estate in the city of Toledo,” and then follows the description. The writing then recites that Morrison has paid $100 on the contract 'as earnest money, “.and agrees to pay on March 1, 1904, the further sum of $6,800 at the office of Pepple & Co., provided a good and sufficient, full and covenant warranty deed, conveying to said purchaser a good title to said premises (subject' as aforesaid) shal-l be ready for delivery, a statement and opinion of title to be furnished at the time of the execution of said deed. ’ ’ Then follow provisions as to the shades, screens, chandeliers, etc., and then comes this:

“In ease the title upon examination is found defective, -and the defect is not cured within forty days from the date of this contract, the said earnest money shall be refunded to said purchaser, and this agreement shall then become inoperative. Should said purchaser fail to perform this contract -or his part a-t the time and manner specified, the earnest money paid as above, shall at -the option of the vendor and his agents be forfeited as liquidated damages, -and this contract shall become null ■ and void. In testimony whereof,” etc., and signed, “Thomas J. Egle, per Pepple & Co. ” and ‘ ‘ R. Morrison. ’ ’

On March 1, Morrison did not appear at the office of Pepple & Co. to pay the money or to receive the deed and opinion of title which were ready to be delivered to him. The contract does not provide that they should be on deposit at the office of Pepple & Co., but on the fourth day following defendant wrote to Pepple & Co. that he feared that he would not be able to carry out this agreement, as he was having trouble in disposing of his property at Gibsonburg, and, unless he disposed of his property there, he would not want this property and that he was sorry to make any trouble for Mr. Egle. ITe made no complaint of the title, and on March 7, the plaintiff, or her agent, took to Mr. Morrison the deed and opinion of title, tendered them to him and he refused to accept them or to pay the money. He said he would show the opinion of title to his attorney; and the same day or soon after he returned the opinion of title to Pepple & Co. without any complaint as to the title, appearing to be satisfied with it.

The opinion of title showed that there was a building restriction upon this property, as upon all the property along the street, running with the land, providing that all houses should be built thirty feet from the street; that they should be of the value of $2,500; that no illegal or immoral business should be carried on in the 'buildings, or on the property, and the sale of intoxicating liquor was expressly prohibited. The provisions were what are commonly known as building restrictions, and it is claimed here that on account of those restrictions, which bound Mrs. Egle and the property and which became a part of this deed by virtue of their running with the land, she did not tender and could not tender to Mr. Morrison a good title.

It is claimed, first, that Morrison can not be compelled to carry out this contract because Mrs. Egle was never bound by it. It is said that she gave this property to her husband as her agent, for sale; that he had no title in the property; that he made the contract in his own name for this sale and she did not sign d and that sue was not disclosed as his principal when his name wtas signed by Pepple. This contention, we think, is not tenable. We think that Hie law is, that where an agent has property for sale — as ff Mr. Egle had it for sale and if he made the contract — he may make the contract in his own name without disclosing his principal, and it will bind his principal. This has been decided by the Supreme Court of this state in the case of Thayer v. Luce, 22 Ohio St., 62. This is from the'syllabus:

‘ ‘ On the trial of an issue under the statute of frauds, the assent of the plaintiff to the terms of the contract may be .shown by parol testimony.

“If the contract was made by the agent of the plaintiff in such a case, the agency may be established by parol testimony, notwithstanding the agent may have contracted in his own name, without disclosing his agency or the name of his principal in the transaction. ’ ’

This is on page 78 of the opinion:

‘1 The provisions of the statute are complied with, if the names of competent contracting parties appear in the writing; and if a party be an agent, it is not necessary that the name of his’ principal should be disclosed in the writing. Indeed, if a eontnact, within the purview of the statute, be made by an agent, whether the agency be disclosed or not, the principal may sue or be sued as in other eases.”

And on page 79, this is said:

“The remedial laws of the state are under legislative control, and, as we understand it, the reciprocal right of parties to enforce certain contracts by action is taken away by force of this statute. ,If the written agreement in such case be signed by one of the contracting parties and not by the other, the latter may enforce it by action, although the former may be remediless if the agreement be broken against him. ’ ’

It is claimed in- this case that the contract could not be enforced by the plaintiff because he had never signed the contract; but it seems to be held by the Supreme Court thaf where the transaction is within the statute of frauds, as in this- ease, if one of the parties signed the contract, the other may accept the contract and enforce it by action althoügh he has not signed the contract at all. But, in the case at bar the contract was signed, or directed to be signed, by the plaintiff’s agent. We think the fact that Pepple signed Mr. Egle’s name to it, does not affect the question one way or the other. Egle directed him to sign his name to the contract, and it was as binding upon him as though he had signed it with his own hand and although he did not own property and was acting for an undisclosed principal, when Morrison signed the contract, it was binding upon him, and when it was accepted by Mrs. Egle, as. it was afterwards, it, of course, became binding upon her, whether it was at the time her husband had his name signed to it or not; she did accept it afterwards by signing and executing a deed, which was tendered to Morrison on March 7. In Walsh v. Barton, 24 Ohio St., 28, the court say in the opinion on pages 39, 40:

“The only question, therefore, is whether it be nécessary, in order to satisfy the statute of frauds, that the names of the principals should appear in the memorandum, in a case where the contract was, in fact, made by their agents, and the names of the agents are set out in the writing. We think the statute is satisfied in this respect, when the names of the agents are set out in the writing, though the names of the principals be not disclosed. The case being thus taken^out of the statute, the right or liability of the principals may be enforced, and their identity established, according to the rules of law governing in other cases, where contracts are made by agents without disclosing their principals.”

Renwick v. Bancroft, 56 Iowa, 527 (9 N. W. Rep., 367), is to the same effect. The statute óf frauds of course requires that there should be a memorandum id writing) signed by the party to be charged. It only requires the signing of the contract by one party; the other party may accept the contract, and by bringing suit upon it, he does so. That seems to be the holding in this state, although in some states it is held that one can not have specific performance unless both parties are bound originally by the contract. But it is held in Old Colony Ry. v. Evans, 72 Mass., 25, that a contract may be enforced although signed by only one party, and also in Dresel v. Jordan, 104 Mass., 407, 412.

Now as to the building restrictions; it was agreed in this contract that there should be delivered a “good and sufficient, full and covenant warranty deed, conveying to said purchaser a good title to said premises.” In other words, it was agreed that he should have >a warranty deed. It has been held in this state that such an agreement is not an agreement that there will be no encumbrances upon the property, but that there shall be a good title and a warranty for it. Peoples’ Sav. Bank Co. v. Parisette, 68 Ohio St., 450, first paragraph of the syllabus:

“Where a vendor of land has obligated himself by written contract to convey .‘by good warranty deed and abstract of title from organization of county,’ but the contract contains no stipulation for a deed containing a covenant against incumbrances generally, and none against any inchoate dower right, it is not essential to the performance of the contract by the vendor that his wife should join in the deed and release her right of dower.”

In Rife v. Lybarger, 49 Ohio St., 422, it is said in the syllabus :

“Where, in a contract for .the sale of real estate, there is no stipulation * * * the vendor is only bound to tender a marketable title.”

In this case, there was an old mortgage upon the property 'which had become void by the statute of limitations, and it was held by the Supreme Court that that was not material, and it was held in any event, under a contract of 'this kind, the vendor is only required to tender a .marketable title, and some mere speck or trifling cloud upon 'the title is not sufficient to defeat the vendor in his right to have the contract enforced.

But we think the evidence shows that, so far as this building restriction was concerned, Mr. Morrison had knowledge of it. Two witnesses testified that when-he was .ait the house.he asked about a vacant lot next door and he was told of these building restrictions upon the property upon the street and which would protect him in his property. More than that, it does not appear that this building restriction was any damage to the property, but rather a benefit, if it were to be used for residence purposes; and Morrison was intending to use it for residence purposes and there was a valuable residence upon it at the time, and, in the absence of evidence to the contrary, it would be presumed that a restriction of this kind would be a benefit to him. Upon this proposition we cite Riggs v. Pursell, 66 N. Y., 193, 202, 203, where that question is discussed. But, in any event, the fact that he had notice of it deprives him of the right to set it up as a defense. He had notice of it before the contract was signed, and therefore waived any right to complain of this restriction. He took the property and signed the contract with full knowledge that this restriction was upon it.

We cite McWhorter v. McMahan, 10 Paige, 386, where this is said in the syllabus:

“Where a deed is delivered, in performance of a contract for the sale of land, if the purchaser has any objection to the deed itself, or to the description of the premises therein, or if he objects to accepting the deed upon the ground that the premises are incumbered, it is his duty to make the objection known at the time, so as to give the vendor an opportunity to obviate it.”

An English case more in point than this-case, is. found in Oglivie v. Foljambe, 3 Meriv., 53, a chancery case. It is said in the syllabus:

“The fight to a good title does not grow out of the agreement between the parties, but is given by law; but a purchaser may waive his -right by gqing on with the agreement after he has full notice that he is not to expect a good title. This is, in such case, hkitter of notice, and not of contract.”

We think this notice can be established by parol evidence. The property was offered to Morrison for this price. He came lo see it and was given express notice of the building restriction and agreed to purchase it and pay this price for it with full knowledge, and there being no evidence that this was any damage to the property, we think it can not be called an incumbrance.

As to the claim that, the parties agreed upon the sum of $100 as liquidated damages, it appears from the contract that this was at the option of the vendor. The plaintiff might keep the $100 which had been paid to her as liquidated damages, if she chose, or she might exercise her option to bring an action for specific performance, and- she has chosen to do that. It seems to us that this was a fair contract made between these parties in good faith. Mr. Egle was representing his wife and had full authority to make this contract for her and with her knowledge and he had Pepple sign his name to the memorandum or contract. She accepted the contract and tendered to Morrison a deed and, so far as we can see, did all that was required of her to perform. The real trouble, as it seems to us and the failure of Morrison to complete the -purchase grows out of the fact that he could not dispose of his Gibsonburg property and therefore did not desire to have this house.

J. P. Mantón and H. A. Merrill, for plaintiff.

Sheffler é Campbell, for defendant.

Parties can not defeat contracts of this- kind by a mere captious objection. The court can not help out a party who is simply striving by some technical objection to defeat the right of a vendor to require him to carry out his contract; there-must be some substantial objection, and if under a contract of this kind a good title is tendered — a..marketable title — it is sufficient. This property was incumbered only by this building restriction, of which Morrison had full knowledge. It is objected that he did not get nor have tendered to him a warranty deed from Mr. Egle, as he claimed he was entitled to, as he had not understood that Mr. Egle was not acting for himself. But, in any event, this contract contains a provision that, if there is any objection to the title, the vendor shall have forty days wherein to obviate it. No objection was made to the title by Mr. Morrison at any time, neither when the deed was tendered to him and the money demanded, nor after 'he had examined the opinion of title, nor when he wrote his letter of March 4 to Pepple & Co., saying that he feared he would not be able to carry out the contract. Had he said that he desired a warranty deed from Mr. Egle, it undoubtedly would have been executed and tendered to him. He having made no objection of that kind, he must-be held to have waived it. It may be unfortunate for Mr. Morrison to be compelled, under the circumstances in which he now is, to carry out this contract; but it seems to us that it was a binding contract, and that the plaintiff is entitled to the relief which she asks, and the order of the court will be that the prayer of the petition be granted and that Mr. Morrison be required to pay the balance of the purchase money, «$6,800, to the plaintiff and some $44.29 of assessments and taxes which are provided for in the contract, and that he pay the costs of this action.


source: Caselaw Access Project

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text:
    RECOVERY FOR SUBSTANTIAL PERFORMANCE OF CONTRACT.
    [Hamilton County Circuit Court.]
    A. W. Williamson v. America Bennett et al.
    Decided, July 29, 1905.

      Contract — Where Entire and Subsisting — Intention to Perform — Willingness to Waive Strict Performance.

    Recovery may be -had for substantial performance of an entire and subsisting contract, where the plaintiff at all times manifested an intention to fully perform the contract and made every reasonable effort to do so, but the defendant by conduct or otherwise waived a strict performance.
    Gieeen, J.; Jelke, P. J., concurs; Swing, J., dissents.
   It is claimed by the plaintiff in error that the contract set forth in the petition is entire and that the plaintiff could not recover on it unless her assignor had fully performed it in every respect in accordance with its terms. Counsel rely upon the following cases: Withrow v. Withrow, 16 O. S., 238; Larkin v. Buck, 11 O. S., 568; Allen v. Curles, 6 O. S., 505.

In commenting upon these cases, Gilmore, J., in the case of Goldsmith v. Hand, 26 O. S., 101, says, at page 105:

“In each of these cases the court found the contract, to be entire and subsisting. Nothing appeared in either of the cases indicating that there had been an intention .to comply with the contract by the parties seeking to recover upon it; or, on the other hand, an intention to waive a strict performance of it by the party defending against a recovery. If either of these eases, or anything else equivalent, to them, had appeared in the cases, they would not have, fallen .within the rule of law recognized in the cases.”

And at page 106, he says:

‘ ‘ The principle of law recognized by these cases is this: ‘ That the courts will not encourage the violation of agreements by relieving the defaulting party from the intentional and unjustifiable breach of his agreement, and allowing him to recover pro tanto for the part performance of a contract that is entire, where the other contracting party is not in fault, and has not waived a full performance by acceptance or otherwise.’ ”

In the case before us, the plaintiff always manifested an intention to fully perform the contract, and made every reasonable effort to do so. While the defendant not only by the paper writing of January 25th, 1895, but by his subsequent conduct, waived strict performance of the contract, which according to the interpretation of the rule found in Goldsmith v. Hand, would permit a recovery upon the contract where substantial performance had been shown.

We are of the opinion that the contract of January 25th, 1905, was not a substitution for the contract sued on, but modified that contract by extending the time of performance and by fixing the amount of the unpaid purchase price. The issue upon the contract of January 25th was presented by the answer of the defendant, and while plaintiff denies that it was founded upon the prior verbal agreement as-to the value of the undelivered material, yet she did not deny the execution and delivery of the paper writing, and the court in its charge to the jury, told them that the claim of the plaintiff was for the sum of ¿12,400, as stated in the contract of January 25th.

The parties proceeded to trial upon the issues thus presented, and we are unable to see how a different result would follow were the action maintained upon the contract of January 25th, 1905, as a substitute for the original contract. The allegation of the answer that the contract of January 25th, 1895, was made in pursuance of an agreement between Bennett and Williamson that the value of the undelivered property was for the sum of $12,400, is at variance with and a contradiction of the writing itself, and all testimony tending to prove that issue was properly withdrawn from the jury.

The court committed no error in giving the special instructions requested by the plaintiff.

The first and second special instructions requested by the defendant were properly refused for the reason that the so-called note of January 25th, 1895, did not supersede the original contract nor did it fix the value of the undelivered articles mentioned in the original contract.

C. B. Matthews, for plaintiff in error.

Albert Bettinger, for defendant in error.

From what has already been said, the third special instruction ■requested by the defendant was properly refused.

This is the second trial of the cause, with substantially the same result in each, and there appears no good reason for disturbing the verdict upon the ground that it is against the weight of the evidence.

Judgment affirmed.

Judge Swing is of the opinion that the agreement of January 25th was a valid and subsisting agreement between the parties. That it was intended to be a substitution for the former agreement, and 'when the conditions contained in' the former agree-, ment were fully performed the sum of $12,400 was to be paid by Williamson and Baldwin. Plaintiff should have brought his action 'on this agreement.

Judge Swing is further of the opinion that the evidence shows that the agreement was never fully performed. In fact, matters mentioned in the contract which were to be performed were never attémpted to be performed.


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    FEES AND MILEAGE OF JURORS.
    [Circuit Court of Lucas County.]
    State of Ohio, ex rel, Birchard A. Hayes, v. David T. Davies, Auditor of Lucas County, et al; two cases.
    Decided, July 8, 1905.

      Constitutional Law — Section 5182 — Relating to Fees and Mileage of Jurors — Not a Proper Charge Against the Litigant Exclusively in Private Cases — Nor Against the State in Criminal Cases.

    1. A juror, even though called for a special case, is not paid by the case but by the day; and the only difference between a regular juror and a juror called for a single case is that the former receives mileage and the latter does not.
    2. The service rendered by jurors in civil cases between private litigants is not solely a private service, but is in part for the public benefit, and the provision of Section 5182 for the payment of the per diem and mileage of jurors out of the county treasury is a constitutional provision as applied to civil cases.
    3. And so of the fees of grand jurors and of petit jurors sitting in criminal cases; the service they render is not solely for the state, and following an immemorial rule the cost thereof may properly be made a charge against the county wherein the crime was committed.
    Widdman, J.; Haynes, J., and Parker, J., concur.
   These are both cases in which the constitutionality of Section 5182 of the Revised Statutes of Ohio is involved. For my own • convenience, I will consider first case No. 1924. The petition below, brought by Mr. Hayes, as a tax-payer, was for an injunction to enjoin the county officials named from payment of his fees to one Charles F. Bischoff, a petit juror who had served, as alleged in the petition, as a juror in a civil.case between certain parties named. It was claimed that this was a private service and that the jury fee instead of being paid by the county treasurer should be paid by the litigants, or possibly by the litigant losing the case.

The statute provides:

“Each grand and petit juror drawn from the jury box pursuant to law and each juro;; selected by the court, pursuant to section five thousand one hundred and seventy-three of this chapter, and each talesman shall be allowed two dollars per day, for each day he serves, and if not a talesman, five cents per mile from his place of residence to the county-seat, and such compensation shall be certified by the clerk of the court, and paid by the county treasurer on the warrant of the county auditor. ’ ’

It is not claimed in this petition or in argument that there is any reason for the non-payment by the county treasurer of this fee other than the alleged invalidity of the act, Section 5182 of the Revised Statutes. A demurrer to the petition below was sustained by the court and judgment entered accordingly. The only question, then, before this court is as to the constitutionality of this statute.

It is not apparent from the petition whether this juror was a talesman or a regular juror for the term, and whatever might be the criticism of this act as to a service rendered by a person called for a particular case, it would seem that a like criticism could not be made as to a person called as a juror for all cases during a term, or a part of the term, wherein he might render service in both civil and criminal cases, and as to which service it would hardly be claimed that any particular litigant should be compelled to pay the expenses. The statute makes no distinction between civil and criminal cases. The jurors are paid a per diem; they are not paid by the case. Even a called juror is not paid so much for a case in which he serves, but he is paid for the days which he serves, and the only difference between his compensation and that of a regular juror is, that the regular juror draws mileage and he does not.

But is the service which is rendered even in a civil case and between private litigants, solely a private service? Courts are public and not private tribunals. They are established and administered partly for the protection of private rights, but they are established also for the public benefit, the public welfare. The interests of the whole public demand that disputes between individuals should be settled by a judicial tribunal rather than by force and possibly by bloodshed. It is a public purpose that is subserved, because it tends to public peace and public quiet, and the jurors sitting to try civil eases between private litigants are just as much a part of the public machinery established for the public welfare as are the judges and the officials of the court issuing the processes and enforcing the. orders, judgments and decrees. They are all parts of the same machinery; they all aid to conserve the peace and they are all essential to the government. The courts are a part of the government of the land, an independent branchy just as much as is the executive, or the legislative. It is true that individuals may be benefited, and the Legislature, for that reason, has in some instances required them to pay a part of the costs, as in the Iowa ease cited in the brief of counsel, and as- in -our statute by which railroad and -other corporations may appropriate private property.

The ease cited from 73 Northeastern Reports, 510 (R. R. Co. v. Commissioners, 71 O. S., 454) is a case wherein the Supreme Court of Ohio has decided that jurors’ fees in such cases may be properly taxed to the corporation seeking to appropriate. The claim was made there that the law permitting it was unconstitutional in that the fees were required to be paid by the individual corporation rather than by the county, and the statute was defended upon the ground that the law did subserve partly a private purpose. There are many statutes which have for their object the benefit of the public and also the benefit of individuals. Our tax on dogs, for the benefit of the sheep owners, may be cited as an illlustration. The sheep owner is interested in the protection of his sheep, but the public is also supposed to be interested, in a way, and therefore the statute which provides that a tax shall be levied on dogs and that the fruit of the tax should go to the owner of the sheep, was held constitutional by our Supreme Court in the case of Holst v. Roe, 39 O. S., at page 340.

The attorney — Mr. Hayes, who is also a party litigant — has shown great industry in his search, in his examination of the laws and legislation from the early history of the state and has traced the course of that legislation up to the present time, and if anything is clearly indicated by the result of this search, it is that there has been a long aequiesence in the existing mode of paying grand and petit jurors from the county treasury, whether they serve in civil cases or in criminal. It appears that for twenty years before the present Constitution of 1851 was adopted and for half a century since, the law of 'the state has required the payment of grand and petit jurors, at least in part, from the county treasury, and in the case of State, ex rel, v. Baker, 55 O. S., page 1, it was expressly held by our Supreme Court that a long acquiescence in a statute is to be considered as bearing upon its constitutionality and validity. All doubts should be resolved in favor of the law attacked, but we have no'doubts in this case. The constitutionality of the statute seems to us clear, so far as case No. 1924 is concerned, and the judgment of the court below in sustaining the demurrer and rendering judgment thereon .is affirmed.

In case No. 1923, the parties are the same and the same section is attacked from another standpoint. In this case we have involved the case of two jurors, one a grand juror and one a petit juror, who served in a criminal case. It is claimed that the prosecution of persons for alleged crime is a state purpose, and that the fees of jurors for rendering services in such prosecutions, whether with the grand or the petit jury, should be paid by the state and not by the county. It is suggested that the title of such eases is “State of Ohio v.” this or that defendant. We deem this fact pnimportant. We have many partly private cases where the state is named as a party plaintiff. In this very case the state brings the suit on the relation of Birchard A. ITayes as relator, and the fact that the state is a nominal plaintiff, does not, we think, bear upon the question as to who should pay the costs. The grand juror and the petit juror served, it is said, in criminal cases — cases which were brought for the prosecution of alleged violations of the statute law. Our Legislature has made certain discriminations as to the means of payment of court officers. It becomes, we think, a matter of convenience and right adjustment, and also of propriety of adjustment in view of the kind of service. The judges are paid, some by the state, and some partly by the state and partly by the counties, and certain county officials — who are also a portion of the court machinery, like the sheriff and clerk —are paid by the county, or may be paid by the litigants.

It is true that funds of the county can not be taken for exclusively state purposes, as was held in the cases cited by counsel, in the case of Wasson v. Commissioners, 49 O. S., 622, and in the Armory case, 57 O. S., 436. But, is the case one in which it can be said that the service rendered is confessedly for state, purposes rather than for county purposes? The whole state is affected by the lax administration of the law in one county. Is there hot some reason apparent for making the counties bear at least some portion of the expense of the prosecution of crime committed within the borders of the county? It is true that the Legislature in the effort to effect ia fair distribution of such expenses, requires the costs of some criminal prosecutions to be borne by the state. But, on the other hand, we have had a recognition for very many years of a right to hold particular parts of the state responsible for the lax administration of the law in such parts. If the officers of a county fail to follow up crime and a part of the expense is charged on the people of the county which elected them, a public purpose is thereby subserved. The people of the county will perhaps- be a little more careful in their selection of officers to execute the law and conserve the peace, if they have knowledge that some- of the expense of a lax administration will be a burden to be borne by themselves. We have a law in this state which is an illlustration of an effort on the part of the people to hold a particular part of the state responsible for lax administration of the law within its boundaries, in the case of lynchings, which requires that the county shall bear the burden in the way of damages or injury caused by lynchers. The section of the statute is 4426-4. and our Supreme Court in 62 O. S., 318, in two cases, holds this act to be constitutional.

This principle is no novel one. Under the English system, from time immemorial, a particular subdivision of the country, known as a Hundred, was held responsible, to a certain extent, for crimes committed within its borders. On page 293 of the 4th Book of Blackstone’s Commentaries, I read this:

BirchaA’d A. Hayes, for plaintiff in error.

W. G. Tilery, for defendant in error.

* # * “and that hue and cry shall be raised upon the felons, and they that keep the town shall follow with hue and cry with all the town and the towns near; and so hue and cry shall be made, the Hundred is bound by the same statute, chapter to the sheriff. And that such hue and cry may more effectually be made from town to town, until they be taken and delivered to the sheriff, and that such hue and cry may more effectually to the sheriff. And that such hue and cry may more effectually be made, the Hundred is bound by the same statute, chapter 3, to answer for all robberies therein committed, unless they take the felon; which is the foundation of an action against the Hundred, in case of any loss by robbery.”

And looking back to other pages, I find a recognition of the principle of holding the Hundred liable for a loss where a robbery -is committed within its borders, to be an adoption of a rule which had obtained in some oriental countries whereby large parts of a country were practically preserved from crime by holding those parts responsible for losses sustained thereby. So, as I have said, there is no novelty in this imposition upon the county treasury of some part of the burden of the expense of prosecuting crime, although that prosecution may be carried on in the name of the state, and although for_the protection of the general public the prosecutor may bring to his aid all the instrumentalities of the state, all the power and majesty of the law of the state, for the punishment of crime.

In the judgment of the court, the decision below sustaining the demurrers to these two petitions and rendering judgment accordingly, should be sustained and the judgments should be affirmed.


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    TRADE-MARK COVERING A VARIETY OF TREE.
    [Circuit Court of Miami County.]
    Charles F. Rannells v. Noah H. Albaugh et al.
    Decided, April 10, 1905.

      Trade-Mark — Product of Things Reproductive — Not Covered by — Peach Trees — And the Label Known as the “Diamond Cling:’

    The protection of a trade-mark does not, in the absence of a restrictive contract, extend to the product of a tree, or of anything else which by the law of its nature is reproductive and derives its chief value from its innate vital powers, independent of the care and ingenuity of man.
   Sometime in 1889, Mr. N. H. Albaugh, of Tadmor, Ohio, President of the Albaugh Nursery Company, found a peach tree of an unknown variety, purchased it, named it the “Diamond Cling,” and had. the name and an appropriate label recorded by the U. S. Government as a trade-mark of said Nursery Company. Trees that were grown from the buds of the “Diamond Cling” were put upon the market in 1890, and large numbers of them sold to private customers and other nurserymen. The latter put them on the market. The plaintiff, being a dealer in trees, sold a large number of this variety to customers in other states. It is claimed by plaintiff that the defendant and the Albaugh Nursery Company, through their agents, informed the customers of plaintiff that the defendants, by virtue of the trade-mark aforesaid, had the exclusive right to sell the trees, and that if the said customers took the trees from plaintiff they would be sued by the defendants, and were purchasing a lawsuit. The customers declined to take the trees, and Rannells thereby lost the result of his sales. ITe brought suit against N. H. Albaugh and the Albaugh Nursery Company, and claimed that the product of a tree or anything else that reproduces itself is not protected by a trade-mark. The common pleas court held otherwise, and a verdict was returned for the defendants. Error was thereupon prosecuted to the circuit court, where the following opinion was rendered:

J. A. Kerr and G. T. Thomas, for plaintiff in error.

Long & Kyle and W. S. Kessler, for defendants in error.,

Dustin, J.; Wilson, J., and Sullivan, J., concur.

This cause was submitted by counsel upon the sole question as to whether defendant’s trade-mark, “The Diamond,” as described in Exhibit “B,” and meant to cover a certain kind of nursery-grown peach tree, would, in the absence of a restrictive contract, extend to the reproductions thereof, after sale, and render the general dealing therein by said vendees unlawful.

We are of the opinion that the principle announced in Hoyt et al v. J. T. Lovett & Co., 71 Fed. Rep., 173, is sound, and that- ‘ ‘ The protection of a trade-mark can not be obtained for an organic article which, by the law of its nature, is reproductive and derives its chief value from its innate vital powers independent of the care or ingenuity of man.”

We think that the court erred in directing the jury to return a verdict for defendant, and in not sustaining the motion for a new trial. The judgment, therefore, of the common pleas court will be reversed, and the cause remanded for a new trial.


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    QUESTIONS ARISING UNDER. A SUIT FOR. BREACH OF CONTRACT.
    [Circuit Court of Hamilton County.]
    The Caldwell Furnace Foundry Company, and The Bankers Surety Company v. The Peck-Williamson Heating and Ventilating Company.
    Decided, July 22, 1905.

      Breach of Contract — Damages Claimed on Account of — Amendment to Petition — Permissible under Section 5114, When — Service of Summons — Will be Presumed to be Regular, When — Contract Interfered with by Strike — Assignment of Contract — “Simultaneous” Agreement to- — Charge of Court.

    1. An amendment to a petition, filed for the purpose of correcting the description of the defendant, does not state any new and distinct cause of action, and is permissible under Section 5114, Revised Statutes.
    2. In the absence of a bill of exceptions containing the evidence offered upon a motion to quash the service of summons, a reviewing court will presume that the court below found from the evidence every fact in issue necessary to sustain its action in overruling the motion.
    3. A special charge to the jury to the effect, that in order to render an assignment of the contract valid there would have to be a new agreement between the parties “simultaneously,” will be interpreted to mean that the new agreement be or exist between the parties simultaneously, and not that it must be made between them simultaneously.
    4. The measure of damages for breach of a contract for future deliveries of manufactured articles, where the performance of the contract has expired, is the difference between the contract price and the market price, or if there be no market price, the difference between the contract price and that for which the plaintiff by the exercise of diligence and judgment could obtain them at the times and in the quantities needed within the limits of the contract.
    Gifeen, J.; Jelke, P. J.; and Swing, J. concur.
   On February 19, 1902, the Caldwell Furnace Foundry Company, a corporation organized under the laws of West Virginia, and having its principal office in Toledo, Ohio, entered into a contract with the Peck-Williamson Heating and Ventilating Company, for the making- of certain gray iron eastings at Ft. Payne, Alabama. The contract covered a period of four and one-quarter years, beginning April 1, 1902, and called for not exceeding 2,500 tons a year. It required the defendant in error to order not less than 100 nor more than 250 tons each month, buit must order 1600 tons each year. The defendant in error was to furnish all patterns, and the foundry company the flasks and follow-boards. It provided that the defendant in error should pay $3 a ton as liquidated damages for every ton that it refused to take on the contract. That if the foundry company refused to carry out the terms or conditions of the contract, or if it failed or refused to make and ship castings in accordance with the orders of defendant in error, it should pay all losses and damages which defendant in error sustained by reason of such failure. It was required on the 10th day of each month that accounts for all transactions under the contract for the next preceding calendar month must be settled between the parties. The castings were to be delivered f. o. b. Cincinnati' and the price, which started at two cents a pound, was to be readjusted at the end of every six months according to the then price of pig iron in the Cincinnati market as shown by the Iron Age.

About the 5th of March, 1902, said West Virginia corporation executed a bond, with the Bankers Surety Company as surety, in the sum of $25,000, conditioned for the faithful performance of the West Virginia corporation’s obligations under said contract for the period of two years, to-wit, from the first day of April, 1902, to the first day of April, 1901. This bond contained the following provisions:

“That the surety company shall be notified in writing by registered letter mailed to said surety company at its principal office in Cleveland, of any act on the part of said principal which shall involve a loss .for which the surety is responsible, and immedately after the occurrence of such act shall have come to the knowledge of the obligee or its duly authorized representative or representatives who shall have supervision of said contract.

“That the surety shall not be liable for any loss growing out of or caused by or resulting from acts of God, storms, lightning, fire, riots, or strikes.

“That any suits at law or proceedings in equity brought against this bond to recover any claim hereunder against the surety must be instituted within six months after the first breach of said contract and within six months from the date responsibility of the surety for the further acts of the principal shall have ceased.”

In July, 1902, an action was brought by the Peck-Williamson Heating and Ventilating Company against the Caldwell Furnace Foundry Company, a New Jersey corporation, and the Bankers Surety Cmpany, upon a bond alleged to have been made by said Caldwell Furnace Foundry Company, a New Jersey corporation, as principal, and the Bankers Surety Company as surety.

On the 23d day of February, 1903, the Peck-Williamson Company filed an amended petition in which it stated that its cause of action was founded npon a bond made by the Caldwell Furnace Foundry Company, a West Virginia corporation, as principal, and the Bankers Surety Company, as surety. A general demurrer to the amended' petition by the foundry company, and a motion to strike from the files by the surety company, were each sustained, and thereupon the plaintiff below filed a second 'amended petition, with the following additional averment:

“Plaintiff further says that the defendant named in the caption of the original petition herein 'as the Caldwell Furnace Foundry Company and the corporation of that name that entered into the contract and bond set out in said petition, was and is a corporation of the state of West Virginia, and was so' described in the bond sued on, and that plaintiff had no contract 'and bond with any other corporation of that name, and only the one sued on with the West Virginia corporation, and the summons herein was served npon the managing .agent of the West Virginia corporation ¡and! the intent 'and purpose of filing said petition was to sue that corporation of that name of West Virginia, and it has no cause of action -whatever against any New Jersey corporation, and the allegation in said original petition -that the said Caldwell Furnace Foundry Company was a corporation of the state of New Jersey, was a clerical error, an inadvertence and a slip of the pen, and the contract sued on in this amended petition is the samie one as set up in the original pietition. ’ ’

The surety company duly excepted to the order of the court allowing the second amended petition to be filed and thereafter the West Virginia corporation, appearing for the purpose of motion only, made a motion to quash the alleged service of summons upon it, which was overruled. Thereupon the defendants each filed an answer and cross-petition, and set up a modification of the contract whereby the foundry company was released from filling orders for April and May, 1902, and alleged that the foundry company had performed all of its- obligations of the contract as modified, and pleaded the strike of the molders as a defense, and the six months limitation as a bar, and that without the knowledge and consent of the surety company, but with the knowledge and consent of the plaintiff, a West Virginia corporation, assigned ithé contract of the New Jersey corporation, whereby it was released from all liability. That the plaintiff had' broken said contract by replevying its patterns and refusing to permit any more castings to be made, and pray judgment for liquidation damages at $3 a ton for 6,500 tons not ordered by plaintiff under said contract, and set up various other claims by way of crossi-peitition.

A reply to the answers and cross-petitions is substantially a general denial of all new matters' set up. Upon trial, the verdict was returned for the plaintiff, and judgment entered thereon.

The first question presented is, that the. court erred in allowing the second amended petition tO' he filed. It is claimed by counsel for plaintiff in error that the plaintiff, having alleged in his original petition that the defendant foundry company was a corporation organized under the laws of New Jersey, could not by amended petition aver that such defendant was a corporation organized under thie laws of West Virginia, and that thereby a new and distinct cause of ¡action was stated, and that under Section 5114, Revised Statutes, no such amendment is permitted. It is conceded that if the second amended petition states any new ¡and distinct cause of action from that stated in the original petition, it can1 not be filed under this section, but the cause of action is the same, being based upon the identical bond relied upon in the original petition, which was executed by the foundry company, a corporation organized under the laws of West Virginia. The change made was not of the essence of the cause of action, but was descriptive of the defendant, and could not in any wise injuriously prejudice the defendants.

The precise question here involved has been decided by the. Supreme Court of the United States in ¡a case coming under a similar statute of the state of California, in which the second-proposition of the syllabus is ¡as follows:

‘ ‘ The amendment stating that the plaintiff was traveling upon a second class ticket instead ¡of a first class ticket, and that the plaintiff in error was chartered by an act of Congress instead of by a statute of Massachusetts as originally averred, did not state a new cause of action.” Atlantic & Pacific Railroad Co. v. Laird, 164 U. S., 393.

The court did not therefore err in permitting the second amended petition to be filed.

The next question presented is whether the Caldwell Furnacé Foundry Company, the West Virginia corporation, was legally served with summons. The summons commanded the sheriff of Lucas county, Ohio, ¡to notify the Caldwell Furnace Foundry Company, a corporation, and the return shows service “by. delivering to James W. Caldwell, president of said company, a true and certified copy of this writ with endorsements thereon. ’ ’

The West Virginia corporation made .a motion to .quash the summons, and 'to dismiss the ¡action ¡against it for want of jurisdiction; which motion contained the following 'allegations:

“That at the timfe said summons was served, the corporation making this motion had obtained no certificate from the secre•tary of state of Ohio, authorizing iit to do business in the state of Ohio, nor had .it appointed any person in 'this state upon whom service of process might be served within this state; nor was it doing or attempting to do any business in the state of Ohio, nor had it any place of business in the state of Ohio, nor had it any managing or other 'agent in the state of Ohio. ’ ’

The entry overruling this motion is as follows:

“This cause came on to be heard on the motion of the Caldwell Furnace Foundry Company, a corporation under the laws of West Virginia, to quash the service of process on it, and upon the affidavits and proofs and the process and the return, and the court finds that said process was properly served on the defendant mating this motion, that the allegation of the original petition 'alleging that defendant was a New Jersey corporation was not binding on plaintiff, and was amendable and was amended and cured by the second amended petition, and said motion is overruled; to all of which the Caldwell Furnace Foundry Company, a corporation under the laws of the state of West Virginia, excepts.”

In the absence of a bill of exceptions containing the evidence offered upon the motion, it must be presumed that the court found from the evidence every fact in- issue necessary to sustain the judgment of the court in overruling the motion, and that it found that the president upon whom the summons was served, was the managing agent of the company in the state of Ohio. The ruling of the court was therefore final and binding upon the foundry company in all the subsequent proceedings of the case.

The motion of the surety company to strike the second amended petition from the files upon the ground that it set up a new cause of action from that set up in the original petition, was properly overruled, for the reason above shown that it was not a new and 'different' cause of 'action.

The allegation that the defendant foundry company was prevented from carrying out its contract by reason of the strike of the molders is not supported by very weighty evidence, and the jury having found- agiainst the defendant -on that issue, the court will not now disturb it.

The second special instruction given by the court to the jury >at the request of the plaintiff, and -objected to by the de^ fendant, is ais follows:

“I charge you that the obligations of the Caldwell Furnace Foundry Company under the -contract -of February 19th, could not be assigned to the third party without the concurrence -of the plaintiff, and in order to effectuate a substitution in that contract of the New J-ersey corporation for the original Caldwell-Furnace Foundry Company, there would -have -to be a new -agreement between- the three -parties simultaneously, whereby not only the New. Jersey corporation assumed .the -contract, but the plaintiff must have accepted it in the place of and discharged the West Virginia corporation.”

The -objection refers to the use of -the word “simultaneously,” counsel claiming that the new agreement need not be made between . the parties simultaneously. The error in the construction given to the special charge by counsel for plaintiff in error; who assumes that it requires that the- agreement shall be entered into by the three parties at the sam-e time, whereas its only requirement is that it he or exist between th-e three parties simultaneously. It follows therefore -that 'although the West Virginia corporation at -one time assigned its contract to the New Jers-ey corporation, -and at a subsequent -date the Peck-Williamson Company -either expressly or impliedly assented to such assignment, yet thereafter there would be or exist at th-e s-ame time a new agreement between three parties. It is clear therefore that the -exception to the charge is not well taken.

Special instruction No. 5 given at th-e request of plaintiff is not inconsistent with the general charge-, which s-tates that—

“A valuable consideration consists either in some right, interest, profit, or benefit accruing to the party making th-e promise, or some f-orebearance, detriment, loss, responsibility, act, labor, or service given, suffered or undertaken by the party to whonj made. ’

It certainly is not good law as. stated in counsel’s brief that “the loss, benefit or damage” to the promissor is a valuable consideration.

We have examined the special instructions requested to be given to the jury by the plaintiff in error, but refused by the court, and conclude that no error was committed by such refusal, although we deem it unnecessary to discuss any of the charges except the one pertaining to- the measure- of damages, which is as follows:

“The measure -of plaintiff’s damage, if ,amy, because of its necessity to secure its castings elsewhere, if s-uch necessity existed, would be.the difference between the contract price and the lowest price -at which plain-tiff could have re-let the contract or made -a new similar contract a,t the date of the breach, at thp same or -a similar m'arket. ”

This rule -was applied and sanctioned in the case of Roehm v. Horst, 178 U. S., p. 1, and would be a proper charge in this case, it ¡at the time of ¡the trial the period of two years covered by., the bond had not expired. But inasmuch as the time for performance of that part of the contract had expired, it was competent to ascertain the exact cost of labor and material necessary to manufacture -the castings and the amount needed by the plaintiff in error at the several times of delivery, or ascertain the market value of the castings if they bad any. The object in all cases is to 'ascertain as nearly as possible what loss plaintiff -has suffered by reason of the breach, of the contract.

We are -o-f the -opinion that the measure of damages stated by the court in its general charge was more appropriate to the. facts in this case, and w-as -as follows:

“The difference is between the contract price and the market price 'of 'eastings of a like character and quality as those contracted for. If they bad no -market price, -then the difference between the contract price and that which the plaintiff by the exercise of diligence -and judgment was able -to fairly obtain them for from other foundries.”

Seney & Johnson, for plaintiff in error.

Matthews & Merrell, for defendant in error.

The objection to this charge is that it fails to state the time at which the market price, or if there be none, the price at which the plaintiff, by the exercise of diligence and judgment was able to obtain, should be ascertained. While, no' doubt, it would make the charge more definite and certain to state the time at which the price should be fixed, yet we think, in the absence of such statement, it would he fairly inferred .that, such price was to he ascertained at the several times for delivery, and in such quantities as the plaintiff in error needed, within the limits specified in the contract.

The first paragraph quoted from the general charge standing alone and unexplained would be erroneous, but the succeeding paragraph indicates the purpose for which the jury may not consider conversations and negotiations prior to the signing of the contract, td-wit, “not for the purpose of .varying or contradicting the contract itself.”

The third paragraph quoted from the general charge is- not even misleading, ’as the jury could hardly infer that the plaintiff, having waived the deliveries for the months of April and May, and the defendant, Bankers Surety Company, having consented thereto, that the plaintiff would he entitled to recover against the surety company for a failure to make such deliveries.

We find no prejudicial errer, and the judgment' will he affirmed. ,,ti .


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    RAILROAD COMPANY’S LIEN FOR. DEMURRAGE CHARGES.
    [Circuit Court of Franklin County.]
    The Pittsburgh, Cincinnati, Chicago & St. Louis Railway v. The H. L. Mooar Lumber Company et al.
    Decided, May 4, 1905.

      Demurrage — Lien for, Exists Independently of Stipulation in Contract of Shipment — Pleading—Proof.

      1. A railroad company has a common law lien upon the property in a ear, for its proper demurrage charges against such car, and may enforce the same by refusing to deliver such property until payment of the demurrage charges has been made.
    2. Such lien exists independently of any stipulation therefor in the contract of shipment, and, in an action to enforce the same, it is not necessary to aver or prove a special contract with reference thereto.
    On the 23d day of June, 1902, Southern Railway ear No. 8022, loaded with lumber consigned to the defendant in error, the H. L. Mooar Lumber Company, arrived in the yards of the plaintiff in error, the Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company at Columbus, notice of the arrival of the car being sent to the defendant in error by the plaintiff in error on the same day.
    On the following day the defendant in error sent its men to. the railroad yards to inspect the lumber, and the. drivers, after looking about the yards and being unable to find the car, returned to the lumber company’s office and reported the car not there. The drivers made other trips to the yards from time to time in search of the car, consuming from twelve to fourteen days in this way, but they failed to go to the railroad offices, and ask whether the car had arrived or to make inquiry for the car of the railroad yardmen, who knew and could hiave told them its location.
    July 5th the drivers went to the railroad offices and there paid the freight on the ear, but during the interim between June 23d and July 5th, demurrage charges to the amount of eight dollars had accrued and the railroad company refused to place the car where it could be unloaded until these charges had been paid.
    The lumber company refused to pay the demurrage, and the railroad company, declining to allow the car to be unloaded, continued to hold it until the 23d day of December, at which time the demurrage amounted to $138, and the lading of the car was turned over to the defendant in error, Archibald H. Huston, for storage, Mr. Huston advancing the company’s charges in accordance with the usual custom existing between himself and the railroad company.
    Deemeber 24th, while the lumber was being unloaded and hauled from the ear to the storage warehouse, the lumber company seized the lumber under a writ of replevin, and in February, 1904, the case was tried to a juay; the jury, under instructions from the court, rendering a verdict .against the railroad company f-or its demurrage, the court’s charge being, in substance that, in the absence of 'a contract, no lien in favor of a railroad company for its demurrage charges exists.
    The following was the trial judge’s charge upon this- point:
    “* * # Upon receipt of the notice (of the arrival of the ear) it was the duty of the plaintiff to go to the office of the railway company and pay the freight or tender the same.. It was not sufficient for him to send his men to the railway yards to hunt for the ear of lumber * * * The plaintiff, therefore, could not object to a charge for demurrage on this car 8022 after the two days, as he did not pay the .freight and demand that the car be turned over to him to be unloaded.
    “But the company could not demand, on its part, that this demurrage should be paid as a condition of turning over the ear, unless it had a lien for the demurrage. Now in the absence of any contract for such a lien, it does not exist in law and the company must collect its claim for demurrage as ordinary debts are collected and can not hold the property for the demurrage. I find there is no evidence in the ease of such a contract as to this ear, and the defendant, the railway company, does not state in its answer that there was a stipulation in the bill of lading that such charges should be a lien. It follows, therefore, that as to this ear 8022, the plaintiff having paid the freight, was entitled to the possession of the lumber and your verdict should be in his favor.”

      Karl E. Burr, for plaintiff in error, the P., C., C. & St. L. Ry. ,Co.

      Arthur E. Addison, for defendant in error, Archibald H. Huston.

      M. E. ThraMcill, for defendant in error, the H. L. Mooar Lumber Company.
    A motion for new trial having been overruled and judgment rendered against the railroad company, a reversal of the judgment is here sought on the sole ground of error in the court’s charge to the jury.
    Dustin, J.; Sullivan, J., and Wilson, J., concur.
   We think under the authorities cited in the brief of plaintiff in error that the railway company had a common law lien on the lumber for ‘ ‘ demurrage, ’ ’ and that it was not necessary to aver or prove a special contract with reference thereto. It was therefore error for the court to charge that in absence of averment and proof as to the lien it did not attach, and that the verdict as to car 8022 should be for the lumber company.

The special findings of fact were not inconsistent with the general verdict.

The judgment of the common pleas court on the first cause of action will therefore be reversed and remanded for new trial.

As to the second and third causes of action the case is not before us, a new trial having been granted below, and no final order or judgment rendered.


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    VARIANCE IN THE LOCATION OF THE SCENE OF AN ACCIDENT.
    [Circuit Court of Lucas County.]
    City of Toledo v. Minnie Willinger.
    Decided, October 17, 1904.

      Pleading — Variance not Material, When — Description in Petition of Place Where Accident Occurred — Not Construed as Strictly as Description in an Indictment — Different Portions of Same Street Known hy Different Names.

    1. A variance between the petition and proof is not material unless the defendant had been misled to his prejudice in making his defense upon the merits.'
    2. In an action for the recovery of money for injuries from falling on a defective sidewalk, the description in the petition of the place where the accident occurred will not be construed as strictly as a description in an indictment.
    3. Where different portions of the same street are known by different names, and the petition of one seeking damages on account of a fall on a defective sidewalk alleges that the accident occurred on this street, giving the name of one section thereof, whereas the accident is shown by the testimony to have occurred a few feet beyond the dividing line between the portion of the street named and that hearing another name, the variance is not such as will defeat recovery, where there is no claim that the municipality was misled thereby to its prejudice.
    Hull, J.; Parker, J., and Haynes, J., concur.
   This'action was brought by the defendant in error, who was the plaintiff below, against the city to recover for personal injuries, which she claims she sustained by falling on a defective sidewalk in the city. She alleges in her petition that the defective sidewalk was in Griffin street, that part of Griffin street extending from Western avenue, to Gordon street, and on the westerly side of the street; and she alleges that between said Western avenue and Gordon street on said Griffin street the plank sidewalk was old, damaged, worn, defective, etc.

The ease was tried before the court and jury, and there was evidence tending quite strongly to show that the defective walk, if there was one, was on a street now called Mozart street and not on Griffin street. And, on the other hand, there was evidence tending to show that the defective sidewalk at the place where the woman fell was in fact on Griffin street. At the close of the testimony and before the argument the city, through its solicitor, asked the court to charge the jury as follows:

“1. Before the plaintiff can recover, she must prove by a preponderance of the evidence that she fell on a defective Avalk on Griffin street, in the city of Toledo.

“2. If you find from the evidence that the plaintiff fell on a walk on Mozart street in the city of Toledo, then your verdict must be for the defendant.”

These requests were both refused. And the court charged the jury in his general charge that it was not necessary to prove that the defective sidewalk was at the exact or precise spot laid in the petition “to an inch,” the court saying: “It is essential and required that she allege where .she was hurt in order that the city may be advised and know what the proof will probably be, when it comes in, and be able to prepare its case, and if one portion of a street be named by one name and another portion of the same street by another name, the fact that an accident occurred across the street or line called by one name upon a portion of the street called by another name, would not defeat the recovery — would not be such a variance as would defeat the recovery.” And the court charged the jury that they must be satisfied that the defect in regard to which evidence had been offered, was the one that was counted upon by the plaintiff in her petition.

Counsel for the city urge that the action of ‘the court in refusing to give the above requests was erroneous, for the reason that the plaintiff was not entitled to recover, unless the evidence showed that she fell upon the street named in her petition, to-wit, Griffin street, and claiming that the evidence showed that she did not fall upon Griffin street, but upon Mozart street, and that therefore she was not entitled to recover.

The trial resulted in a verdict for the plaintiff in the sum of $500, upon which judgment was entered,

The refusal of the court to charge the jury as. requested raises the sole question in the ease. The plaintiff alleged in the petition that the accident occurred on Griffin street, between Gordon street and Western avenue. There was a distance of about two squares between these two streets. It appears from a plat introduced in the case that Griffin street run in a northwesterly direction toward Western avenue, until it was within about 113 feet of Western avenue, then the street turned due north and from that point on to Western avenue it is now, and has been since 1898 called Mozart street, and was formerly known as Ann street. The accident occurred near a lot owned by a Mr. Sapp, fronting on Western avenue and running back to Griffin street; the rear end of the lot fronts on Griffin street, the west side of the lot is on Mozart street. At the rear of the lot was a barn which fronted or abutted on Griffin street. Griffin street came up diagonally toward Western avenue, as I have said, until it reached a point at the distance named, about 113 feet from Western avenue, then the street turned north, and there the name changed to Mozart street. Some of the witnesses testified that the defective sidewalk was at the rear of Sapp’s lot on Griffin street. Others testified that the defective sidewalk was at the east side of Sapp’s lot, which would be around the corner on Mozart street. They all agreed that the defective walk was near Sapp’s barn, which was at the rear end of his lot. And from the testimony of the plaintiff we think it quite probable that she fell just around the corner of Griffin and Mozart streets. She says, “It was just >at the curve, near the barn.” She is not very definite or very clear as to whether it was on Griffin or Mozart street; she thinks it was Griffin street. And it is apparent from her petition that she and her counsel were of the impression when the petition was prepared that Griffin street extended around the corner on through to Western avenue. Evidently neither the plaintiff nor her counsel had any knowledge of any change in the name from the corner on north. She fell, either on Griffin street, or a few feet from Griffin street on Mozart street near where the turn was made, and the street under the naane of Mozart street then runs due north to Western avenue. The accident occurred, either at the rear of Sapp’s lot, or just around this corner upon the east side of his lot. There was evidence tending -to show that i>t occurred, in fact, upon Griffin street, or that the defective sidewalk was on Griffin street; and, on the other hand, evidence tending to show it was on Mozart street; we think it probably was just over the line on Mozart street, and the question is, whether, if that be true, it constituted such a variance as was fatal to the-plaintiff’s case. Revised Statutes, 5294, provides that:

“No variance between the allegation in a pleading, and the proof, shall be deemed material, unless it has actually misled the adverse party to his prejudice, in maintaining his action -or defense upon the merits, and when it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended, upon such terms as are just.”

There is no claim in this ease that the city was misled by this allegation in the petition and the proof that was offered upon the trial, -and no attempt was made on the trial to prove or show to the court that the city had been misled or prejudiced by reason of that. The statute provides that in order to make a variance material, it must appear that the adverse party has been misled to his prejudice in his -action or defense upon the merits. The question in this case, the real issues were, whether the plaintiff had been injured on account of a defective sidewalk within the city of Toledo; whether the city had been negligent in that regard and whether the plaintiff had been guilty of contributory negligence. It was not very material where the sidewalk was, so that it was within the limits of the city of Toledo. But to enable the city to defend the case properly, and procure its evidence, it was necessary that the plaintiff allege in her petition where the defect was. And if the claims of the city are true, her counsel made a mistake of a few feet in stating in the petition that it was on Griffin, street instead of on Mozart street. But after an examination of the record, we are clear that the city was not misled by this allegation in the petition; that it was not prejudiced in any way in making its'defense.

There does not seem to 'have been ’any other defect in that neighborhood that would mislead the city in .preparing its defense. Counsel and everyone connected with the case seemed to know where this alleged defect was in the sidewalk. The purpose of the allegation in the petition was to advise the city where it was. It either was on Griffin street, as I have said; or just beyond the turn on that part of the street called Mozart. It was really all one street, and one not acquainted with the city, if there were no street signs up, walking along there would have no reason to suppose that the name of the street changed at this curve, where Griffin street ran into Mozart, or Mozart street run into Griffin, as you may call it — about as Adams street in Toledo runs into Ashland avenue. The plaintiff describes this defective sidewalk 'as being in Griffin street instead of Mozart street. There was, as stated, some conflict in the evidence as to which .street it was upon; buJt if it were ’conceded that it was in that part, of the street called Mozart, we can not find from the record that the city would be prejudiced in any respect by such a mistake in the petition. It was not very material whether these defective boards were on one side or the other of that comer.

There are decisions of the Supreme Court under R. S. 5294 on the question of variance, which indicate the view of the court upon this subject: Piatt v. Longworth, 27 Ohio St., 159, 160; Ralston v. Kohl, 30 Ohio St. 92; Lake Co. v. Ashtabula Co., 24 Ohio St., 393, 399. The fourth paragraph from the syllabus in the case of Piatt v. Longworth, supra, page 160 is as follows:

“To constitute a variance between the allegations and the proofs, the difference must be as to the substantial elements of the ease, and not as to legal conclusions from the facts drawn by the pleader. ’ ’

A petition in a case of this character should not be construed as strictly as an indictment. A description of the place where the plaintiff fell will not be construed as strictly as the description or allegation of ownership in an indictment. The allegation is made for the purpose of advising the city where the accident occurred and for no other purpose; and we are unable to see that the city was misled by this mistake, if-there was one in the petition,-or suffered, -any damage or prejudice from it, nor was that claimed upon the trial. It is not claimed that the evidence is not sufficient to warrant a verdict and judgment in favor of the plaintiff upon the facts shown in regard to the sidewalk and injury. The judgment of the court of common pleas will therefore be affirmed.

G. If. Friedman, for plaintiff in error.

E. L. Twing, for defendant in error.


text:
    DEFECTS IN STREETS AND NOTICE THEREOF.
    [Circuit Court of Hamilton County.]
    William G. Kittredge v. The City of Cincinnati.
    Decided, May 27, 1905.

      Negligence — Notice to City — Of Defect in Street — City Charged with Notice, When — Presumption from Lapse of Time — Character of Fence Required Around a Pasture — Evidence—Charge of Court.

    1. The period of time required to charge a municipality with notice of the existence of a defect in the street depends upon the location of the defect — whether in'a densely populated part of the city, or upon a street infrequently used — and must, therefore, be determined from the circumstances of each particular case.
    2. The measure of care required in maintaining a fence around a pasture to restrain stock is that which an ordinarily prudent man would exercise under like circumstances.
    3. It is competent to prove by one acquainted with the habits and disposition of horses that a stallion is liable to jump over fences or break out of pasture.
    Gieeen, J.; Swing, J., -and Jelke, J., concur.
   The plaintiff in error in his original petition alleged that his horse, without the knowledge of plaintiff and without any negligence on his part, escaped- from pasture, .and while on a public street fell into a large hole in the street whereby he was killed. That the defect in the street existed for more than three weeks prior to the happening of the injury; that the city had notice of the same for more than two- weeks'but failed to repair the same or place any protection .around it.

The defendant, by answer, denied all negligence on its part and charged contributory negligence upon the plaintiff. The jury returned -a verdict in favor of the defendant upon which judgment was entered.

It is competent to prove by one acquainted with the habits anl dispositions of horses that the class to .which the plaintiff’s belonged was accustomed) to jump1 over fences or break out of pasture. The court therefore did not err in receiving the testimony of the witness Morris.

The three special charges given by the court at the request of the defendant state the law correctly and were properly given.

The first special charge requested by the plaintiff makes the question of notice of the defect to the city depend entirely upon the existence of the same for a period of three weeks. In certain parts of the city densely populated and where streets are frequently used, the existence of a defect for a period of three days might be sufficient to charge the city with notice of a defect, while on the other hand, in another part of the city where the streets are seldom used, the existence- of the defect for a period of thirty days might not be sufficient to charge the city with notice of the same. The question necessarily -depends upon the circumstances of each particular case. I-n this case the defect existed in that part -of the street which was seldom used, and at -a point near the edge -of the traveled way which, together with other facts, tended to rebut any presumption -arising from lapse of time, and the question of notice was properly left to the jury.

The second1 special -charge leaves out -of consideration entirely the question of notice, and w-as properly refused.

The third special instruction-, although providing for notice either actual or constructive, fails to require that the notice be received in time to make the necessary repair -or otherwise provide against accident.

D. V. Sutphin, for plaintiff in error.

'Albert H. Morrill, Assistant City Solicitor, for defendant in error.

The fourth, special charge is defective in limiting' the kind of fence the plaintiff was required to maintain around his pasture to one reasonably sufficient to restrain stock, such as that of the plaintiff. Reasonably or tolerably sufficient is not the nature of care required but it is such as would be exercised by an ordinarily prudent person under like circumstances.

The general charge of the court on the question of notice through a police officer is more favorable to the plaintiff than would now be sanctioned under the ease of The City of Cleveland v. Payne decided by the Supremo Court (72 Ohio State) since the trial of this case and reported on May 22d, 1905.

The verdict was not against the weight of the evidence, and the judgment will be affirmed.

       Affirming Kittredge v. Cincinnati, 2 N. P.—N. S., 6.


text:
    FRAUD IN PROCURING LIFE INSURANCE.
    [Circuit Court of Hamilton County.]
    Michigan Mutual Life Insurance Company v. Abner L. Whittaker, Administrator.
    Decided, July 15, 1905.

      Life Insurance — Applicant's Failure to Disclose Condition of Health — • Or \to Pass Previous Examination — Weight of Testimonyi — Of Physicians Who Discovered His Condition — As Compared With That of the Examining Physician Who Did Not Discover It — And of Acquaintances Who Thought Him in Fair Health.

    In a suit upon a policy of life insurance, the defense of fraud in the procuring of the insurance must he regarded as sustained, where the insured' who died within a few months after the policy was issued from the effects of enlargement of his spleen to twenty-six times its normal size, failed to disclose his condition to the examining physician, although three physicians had told him of the had condition of his health, one of whom had1 refused to pass him for 'life insurance, and one had told him he had heart disease, and one had discovered the enlargement; and this is true notwithstanding the examining physician failed to discover his condition and numerous acquaintances testified to his apparent good health.
    Swing, J.; Jelke, J., and GtIeeen, J., concur.
   This was 'an .action on two policies of insurance issued by the defendant on the life of John O. Dexter. One policy was for the sum of five thousand dollars issued July 1, 1901, on an application signed June 20th, 1901, and was for a five year term with privilege of renewal Without medical examination for another five year term.

The other policy was a ten year “policy, with certain optional benefits as to change of time, and was for two thousand dollars, issued 'September 10, 1901, on an application signed the same day.

The answer of the defendant admitting the issuing of the policies, ‘and for a defense alleged that the policies were procured by the fraud of Dexter in misrepresenting tO' the defendant the state of his health' and that lie had given untrue answers as to his having maide 'application for insurance and been refused.

The ease was tried before a jury and a verdict rendered for the full amount claimed in both policies. Error is prosecuted to this court and the main ground urged is that the verdict and judgment is not sustained by sufficient evidence.

At the time .the policies were issued, Dexter was living in Columbia, Tennessee. He was a lawyer by profession; nnmiarried, and living with his mother. He left Columbia the latter part óf October, 1901, and came to Cincinnati, and got employment with the .Cincinnati Cordage & Paper Company. He died at Cincinnati, April 10, 1902. Dexter died very suddenly, and a post-mortem examination by Dr. Haerr disclosed that Dexter’s spleen was of abnormal size. It was about thirteen (13) inches long, and weighed about thirteen (13) pounds; normally, it should weigh about seven (7) ounces, and be from six to six and one-half inches long. It was therefore about twenty-six times as large as it should have been. Upon observing the spleen, no further examination of the body was made and death was ascribed to- this cause.

Soma time prior to December 27th, 1901, Dexter, who was a member of the fraternal order -of B. P. O. E., made application to be admitted to the chapter at Cincinnati. Before admission, he w-as compelled to submit to an examination by the physician of the- order. This physician 'happened to be the same Dr. ITaerr who made the post-mortem examination. Dr. ITaerr testified that he found ini this examination a dullness on one side of his chest; he thought first it was his lung. It seemed to be solid, and was somewhat distended, but which he attributed to an enlargement of the spleen. Dr. Haem- then said to Dexter that be could not pass him ás a well man. Dexter said he would not become a charge upon the lodge. The doctor reported to the lodge the result of his examination and statement of Dexter as to not becoming a charge upon the lodge, and under these- circumstances he was admitted to the Cincinnati chapter or lodge on December 27th, 1901, which he regularly visited up to the time of his death.

Some seven members of -this lodge wh-o became acquainted with Dexter after he came to Cincinnati, and who met him mostly at the meetings of the lodge, gave evidence as to (his appeáranee. Michael Meehan, tyler of this Elks lodge, said he saw him at lodge meetings; was a small man in stature; seemed to be -a delicate looking man; never noticed anything wrong with 'him, never heard him cough or spit.

William, B-odemer testified; was presiding officer -of Elks; did not notice anything out of the way with him; never heard him -cough.

Burton H. Foster testified that he worked in the cordage company with Dexter, and knew him-; said he heard -of no illness of Dexter, and ne-ver heard him eongh.

Several other persons who met him for the first time after he oaimie to Cincinnati, testified in a similar manner. All -of this evidence was clearly of no value-; if it proved anything it was that there was nothing -the matter with Dexter during the time that they knew him, whereas the truth of the matter is, without the slightest question, that Dexter died from the effects of diseased condition nf his spleen and that his spleen was badly diseased at the time that Dr. TIaierr examined him in December, 1901, and evidently had been for a long time prior to that date, as Dr. Haerr found it pressing hard against his lungs, and yet during this ticmie these witnesses testified that they did not see anything out of the way with him. That there was something the matter with him, .and of such' a serious nature as to cause his death in a short time, is shown. The only effect of this evidence is to show .at the most, 'that while Dexter was hastening to his death with this deadly disease, his condition was not suggested to his friends in his personal appearance. This evidence could have no value to the plaintiff, but might be against her in this, that it showed that only those who mlade careful examination of Dexter were able to discover that he was suffering with a deadly disease.

There was a large amount of evidence introduced on the trial of the ease in the form of depositions taken in Tennessee, where Dexter had resided for a number of years previous to his coming to Cincinnati, and which included some four physicians, besides quite a number of persons who h'ad known Dexter intimately while he lived in Columbia, Tennessee. The testimony of three physicians, Doctors Briggs, Porter and Pillow, was taken by the defense, and. the testimony of Dr. Williamson, the examining physician who mlade the examination upon which the policies of insurance were issued, was taken by the plaintiff.

The testimony of Dr. Briggs, of Nashville, Tennessee, was to the effect that he made :a physical examination of Dexter in the spring or early summer of 1901, land found organic disease of the heart; thought him in a very bad condition, and liable to die in a short time. Did not tell Dexter .the result of his examination, but he did tell his mother. “I told him he had heart disease, and he seemed to be pretty well aware of it. Said he was going to Cincinnati; said be had been examined by Dr. Pillow, and came to me for confirmation. He said that Pillow had told him the same thing. ’ ’

. Dr. Porter, age 35, lived at Columbia, Tennessee; bad known Dexter for fifteen year-s; belonged to the same lodge of Knights of Pythias; was examining physician for that order in 1901 and up to the present time; testified that Dexter made application to 'him as examining physician of that order. Examined him, in a measure; saw <him three times; the first time found his pulse over 90; his heart with what is called a “stormy” 'heart, beating unduly, laboring under difficulties; heart beats rapid between 90 and 100; temperature 100%, the first time, about the first of May. Told him to come hack again. He came back in three or four days. Had the same examination, found an unduly enlarged abdomen. Did not investigate it further, but that was sufficient 'to stop the investigation.

He had fever on both occasions. About a week afterward, made another examination, but only to take his pulse and temperature. Pound two and a half degrees of fever; and pulse accelerated and irritable. I made no further examination, as I knew he would not be accepted. I told him his temperature was elevated, 'and his heart unduly rapid. I told him it was not worth while for him ti» come back again. His shoulders were somewhat bent forward; flat chest; and general appearance was that of 'a man failing in health. A part of the examination was reduced to writing, and I told him it was hardly worth- While to return, that I could not pass him. I never sent his application in.

There -is -absolutely no evidence in this case that tends to throw ;any discredit upon the truthfulness -of these witnesses’ testimony, unless it be found in the evidence of the plaintiff, or in the fact that Dr. Williamson, who made an examination some months .afterwards, found none of these conditions to exist, ■hut when taken ini connection with the subsequent death of Diexfer in less than ia year .from the time that Dr. Porter made the 'examination, and the further fact that within less than six months after that tirnle Dr. Haerr, of Cincinnati, found the enlarged abdomen, -which was caused1 by the enlarged spleen from which cause Dexter -died, w.e are- forced to the conclusion thlat this evidence -of Dr. Porter wias true, and that there is no evidence to he found in the record that has -any weight which tends to disprove that the result of that examination was that Dexter was not in good health; on the contrary was suffering from an incurable disease, and that Dexter was so informed by Dr. Porter. Therefore, Dexter knew, or at least had evidence that would lead him to believe that be was not in good health. The fact is clearly shown that the result of this examination by Dr. Porter, and the faicts communicated to him by Dr. Porter and Dr. Briggs, and the 'examination of Dr. Pillow, were not communicated to the insurance company at the time he was called upon to make disclosures to it.

Dr. Pillow, age 49, practicing physician twenty-seven years, lived at Columbia all his life; graduated from the University of Pennsylvania; examining physician for the New York Life; Mutual Life; Mutual Benefit of New Jersey; Northwestern Equitable, and others, was the family physician of Dexter''and his mother; testified that he knew Dexter for many years; saw him frequently in 1901, during which time he made an examination of John before he went to the springs. ITe testified that Dexter had a harrassing cough; that he made a thorough examination •of him, and' detected an organic lesion of ‘the heart. Dexter told mie he wanted my honest opinion. I told him beyond question he had organic heart lesion, and said -it was sometimes caused by a crowded stomach. That he had been looking bad, and that there was anxiety about his health for some time before I examined him-. His another requested me to examine him. His general appearance was of one in had health; not 'as vigorous as he usually had been.

We see nothing in this -evidence to indicate -that what Dr. Pillow testified to was not the truth.

There is a great mlass of evidence in this case, by friends and associates of Dexter who lived in Columbia, among them being Mr. Hatcher,-a lawyer, in whlose office Dexter worked for several years. It is not necessary to go over in detail and point out the exact testimony of Dr. Hatcher. Everything indicated that it bears upon its face the marks of hlo-nesty and, truthfulness, and we fail to discern from the record any reason why Mr. Hatcher should have testified to anything other than the truth. He had been a friend of Dexter, and evidently Dexter had been a friend of his. He regarded him very highly; aided him in his life; gave him employment (and had advanced his interest, and we see no reason why he should give -evidence in this case for any purpose other than to tell the (truth.

The sum and substance of the faict of the evidence is that Dexter, in the spring of 1901, was failing; that he looked bad and had all the -appearaniee -of one in bad health; that his appearance, to Mr. Hatcher, was just what one wou-ld expect it to be from the examination made by Drs. Briggs, Porter and Pillow.

It probably is unnecessary to take up the evidence of other residents and friends of Dexter who lived in Columbia, Tennessee, and review them carefully. It is -sufficient to- say that they all correspond, and1 all were of the sarnie effect as that of Mr. Hatcher. From this evidence we take it that these witnesses are among the leading citizens -of" Columbia, Tennessee, -and there is nothing in the record to show that they were not of men of the highest standing and integrity and truthfulness. Furthermore,’ there is nothing in the evidence to show that they had any interest in 'the litigation or that there was any reason why they should not tell the truth-. It is true that these witnesses were not before this court, and we had no opportunity of forming iany judgment of them from personal observation. Bub neither were 'they -before the jury, and we have the same right to draw the conclusion from their evidence that the jury had-. From a careful reading of the -evidence, we come unhesitatingly to the conclusion that at the time these policies were written, and before, John Dexter was not in good health -and that he was well -aware of it. As against this evidence, we have the testimony of his mother, who was the real party in interest in this case. "We do- not desire to oast (any reflections upon her evidence other than say that we think from her own evidence it is shown that at this period she was very much concerned about John’s health. As against this evidence there stands out prominently the testimony of Dr.- Williamson, the examining physh cían who made the examination upon which the policies were issued. His testimony is to- the effect that he found nothing wrong with Dexter; that he found his pulse, temperature, heart, •and stomach in a normal condition, or nearly so, at least his condition was such that he passed him as a fit subject for insurance.

Robert Ramsey, for plaintiff in error.

C. W. Baker, contra.

In considering Dr. Williamson’s testimony, it is proper to consider that he hardly stands in the light of a disinterested witness, as the correctness of his examination is certainly brought in question by the undisputed fact that Dr. Haerr, within less than three months after that examination, discovered enlarged abdomen and a pressure against the -lungs which was caused by the disease that Dexter, within a week, died of.

Dr. Porter testified that ihe had found that condition to exist before Dr. Williamson made his examination. We are therefore compelled, from the evidence, to find that Dexter was not a sound man .at -the time these policies were written, that he had every reason to know it, and that he did know it, and that the jury when they found differently rendered .a verdict which is not sustained by the evidence. The judgment therefore must be reversed, and remanded for further proceedings.