text:
    FRAUD DISTINGUISHED FROM FALSE WARRANTY.
    [Circuit Court of Fairfield County.]
    John Allen v. Charles Hass.
    Decided, September 23, 1904.

      Contract — Of Sale and Purchase — Fraud—False Warranty — Form of Action Covering Each — Charge of Court.

    Where a vendor’s warranty was both false and fraudulent, an action will lie for rescission of the contract of sale and recovery of the purchase price; but if the warranty proves false, but was not fraudulently made, the remedy of the vendee is in a suit for damages on account of the breach.
    Donahue, J.; Yoorhees, J., and McCarty, J., concur.
    • Error to .the Fairfield Common Pleas Court.
   In this case the trial court made a mistake in his charge to the jury, and one which it is very evident that the court did not intend to make at the time of the charge. The court’s opinion of the law was very proper under that issue, and he was endeavoring to give to the jury a clear idea of the two remedies that the plaintiff might have in this case, but in some unfortunate way he omitted to state that the warranty must be fraudulent as well as false before the full purchase price can be recovered in an action to rescind. We think there is no question in Ohio upon this heretofore disputed point that if a contract be procured by fraud, the buyer may rescind the contract and recover the purchase price, but for a mere false warranty, that is, a mere breath of the contract of warranty, he must sue for damages. One is an action to rescind and recover the purchase price. The other is an action for damages for breach of the warranty. It is true that those damages may be equaled by the amount of the purchase price. But the evidence here does not sustain such a verdict. If such a verdict were returned after a proper charge on the subject of fraud, we would feel obliged to reverse it as being against the weight of the evidence.

L. G. Silbaugh, for plaintiff in error.

C. W. McCleery, for defendant in error.

It does clearly appear to us that, because of the unfortunate fact that those two or three words were left out of the charge, the jury did take it as their right to return a verdict for the whole purchase price and rescind the contract. We are compelled to reverse the case for failure of the court to state to the jury that before there could be a rescission of the contract and recovery of the full purchase price, the jury must first find that the warranty is fraudulent as well as false.

If the evidence supported the verdict, we would not disturb it. The verdict is contrary to the law as we view it. When a thing is warranted fit for a special purpose, fraud is not necessary to a rescission of the contract. This action does not belong to that class of cases. This horse was warranted not to go lame. He was fit for the purpose for which he was sold at the time of the purchase and for five or six months afterwards. Therefore. this case is not within the line of cases cited in Cullen v. Bimm, 37 Ohio St., 236. An exception to the charge „of the court would not be necessary as we hold the verdict” is contrary to the law and the evidence.


source: Caselaw Access Project

license: Public Domain

text:
    PAROL EVIDENCE IN EXPLANATION OF INCOMPLETE WRITTEN CONTRACT.
    LCircuit Court of Lorain County.]
    Peter Kneipper v. Anton Richards et al.
    Decided, April 29, 1904.

      Contract — In 'Writing hut Incomplete — Parol Evidence in Explanation of — Measure of Damages — Verdict—Court Should Direct for Failure of Proof, When.

    1. Where a petition in an action for breach of contract does not allego a complete written agreement as the basis of the action, but an ambiguous memorandum agreement is attached to the petition, it is error to excude evidence that the parties did agree upon a contract which was fully understood between them, and that the plaintiff was ready and willing to perform his part, but was not permitted to do so.
    2. A plaintiff does not lose his right to damages by reason of failure to offer evidence as to the loss he has sustained, where by a ruling of the court he has been deprived of the testimony necessary to make out his case; and a court is not authorized under such circumstances to direct a verdict for the defendant.
    Hale (orally); Marvin, J., and Winch, J., concur.
    Error to Lorain Common Pleas Court.
   In the case of Peter Kneipper against Anton Richards and Mary Richards, proceedings in error are prosecuted in this court to reverse the judgment of the court of common pleas. . The plaintiff in error was plaintiff below. The action was commenced before a justice of the peace, and an appeal taken from the judgment of thei justice to the court of common pleas.

The plaintiff in his petition states his cause of action thus :

“For his cause of action against said defendants, plaintiff states that on or about March 21, 1901, the said defendants, who were and still are husband and wife and residing in said Avon township, duly entered into a certain contract with plaintiff, whereby he was hired and employed for the sum of $85 to perform a particular job of work and labor in constructing a certain alteration 'upon the premises of said defendant, Mary Richards, located in said township. Said contract provided that within ninety days from the date thereof, said plaintiff was to raise the house on said premises two feet, and--to construct and build a cellar thereunder twelve feet wide, fourteen feet long and six feet deep; for which work said defendants agreed and promised to pay plaintiff the sum of $85. In consideration whereof said plaintiff promised and agreed to do said work apd to complete the same within said ninety days. A true copy of a memorandum of said contract, signed by said Anton Richards and Peter Kneipper, is attached to this petition, and filed herewith, and marked Exhibit “A.”

The petition then alleges that Mr. Kneipper, the plaintiff, was prevented from performing his contract; that he was notified by the defendants that they had employed another to raise the house, and he would not be permitted to do the work. He alleges that by that breach of the contract on the part of the defendants he was injured in he sum of $85, for which he asks a judgment.

Separate answers were interposed by the defendants. Anton Richards’ answer is: First, a general denial; second, that he was induced by certain fraudulent representations made on the part of Kneipper to enter into this contract. Those relate to the fact that a contract had been made with a man by the name of Reid to do this work, and Kneipper represented to him that Reid was unskilled in that kind of work and could not do it, and certain other falsehoods stated to him by Kneipper, and among other things, as a third defense, he says, that he is in the habit of becoming- intoxicated, which was known by Kneipper, and that Kneipper got him into a saloon; got him drunk and induced him to sign this contract while he was irresponsible.

The answer of Mary Richards is a general denial, with the further statement that she owned the property, as it is conceded she did, and had entered into a contract with a man by the name of Reid to do the work upon the house prior to the time that Anton entered into this contract with Kneipper, and that all that Anton did in the matter, if he did anything, was upon his own responsibility and without any authority from her, she having provided for the work prior to that time.

There is a reply to this new matter in the answer, and the case came on for trial before the court of common pleas. The plaintiff introduced what evidence he was permitted to introduce, and at the close of his testimony, on motion, a verdict was directed for the defendant^ and against the plaintiff. A motion for a new trial was made and overruled. The questions made here grow out of the rulings of the court made upon the introduction of testimony, either in excluding or admitting -testimony, mainly in excluding testimony, and also in granting the motion directing' a verdict for the defendants, and in overruling the motion for a new trial.

It will be noted that the action is against Anton Richards and Mary Richards, who are husband and wife; that Mrs. Richards was the owner of the premises upon which this work was to be done. Anton was called in his own behalf as a witness, and after stating his business and where he resided, etc., he stated that on March 21, 1901, he met Kneipper in a saloon in Avon, and that there they entered into a contract. After giving certain conversation had between them, a memorandum signed at that time by Anton Richards and Peter Kneipper was produced and offered in evidence. It is the memorandum referred to in the petition, and attached to it. That memorandum reads as follows :

“Raise house two feet. Cellar twelve by fourteen underpinning under the rest. Stone, lime and sand furnished by A. Richards. Window and door frames all complete. To be done ninety days after date. $85.
“Anton Richards.
“Peter Kneipper.”

Then follows a series of questions to which objections were made, and answers excluded and exceptions taken. It will be noted from this memorandum that it does not purport to be a contract in any form binding Mrs. Richards. It is only signed by Anton Richards and Peter Kneipper. It will be further noted that this memorandum if it is to be treated as a contract, fails to state an entire contract between, anybody, it clearly is ambiguous and incomplete. By the petition a complete contract is alleged between the parties, but it is not alleged that that complete contract was in writing.

‘ ‘ Q. Now Mr. Kneipper, I see that does not state what house is to be raised, etc., what is to be done with that, what it refers to; won’t yon tell what was said between you and Richards in that conversation?” (Objected to by»counsel for defendants.)

Counsel for defendants say: “I object to any evidence that would in any way change that contract. ’ ’

“By the Court. Does this express the true contract between the parties?
“By Mr. Leonard. It expresses so far as it goes the true contract between the parties, but it has left out a good deal. It is just a skeleton of the contract, and the trouble is, it does not go on and show definitely. I want to show this, that the plaint-. iff agreed to raise that house two feet, and excavate and do the stone work for a cellar twelve by fourteen, and to do it inside of ninety days; Richards to furnish the stone, lime and sand and the window frames, and that Richards agreed to pay him $85 therefor. That is what I desire to show, and if that contract shows that, it is all we need. ’ ’ -

Manifestly the contract did not show it. Objection sustained by the court; counsel for plaintiff then and there excepted. The court did not permit the plaintiff to show that the contract referred to a certain house located in Avon, occupied by these defendants.

“Q. Was there anything said between you and Richards at that time about what house should be raised?” (Objected to by counsel for defendants.)
“Q. Yes or no? A. Yes, sir.
“Q. What was said by Richards on the subject of what house should be raised? A. What he was living in.” (Counsel for defendants objected to the answer, and asked to have the answer excluded.)

The court then following his former holding said: “Answer excluded by the court. ’ ’

Upon what ground he did so it is impossible for us to teil. We think it was most clearly competent.

.“Q. Was there anything said on the subject of who would raise the house?” (Objected to by counsel for defendants.)
“Q. Yes or no.” (Objection sustained.)
“Q. Was there anything said on the subject of who would raise the house, yes or no?” (That is repeated and objection again sustained, and Exception by plaintiff.)
“Q. Was there anything said on the subject of how deep the cellar should be, yes orno?” (Objected to by counsel for defendants; objection sustained.)
“A. Yes.” (Excepted by plaintiff; answer excluded by the court.)

It will be noticed that this memorandum says a cellar twelve by fourteen, but gives nothing as to the depth of the cellar, entirely silent, and yet the court excluded that evidence.

“Q. Was there anything said on the subject of who should pay the $85, yes or no ? ”

(Objected to by counsel for defendants; objection sustained, exception by plaintiff.)

At the bottom of this contract were the figures “85” with a dollar sign; that is all the reference there is to the $85 in the memorandum. Yet the court says, if that means anything, you are entitled to it, and if it don’t you can not fix it.

“Q. Was anything said on the subject of who the $85 should be paid to?” (Objected to by counsel for defendants; objection sustained; exception by plaintiff.)
“Q. Was there anything said on the subject of who should put in the underpinning and build the cellar wall, yes or no? Was anything said on the subject?” (Objected to by counsel for defendants; objection sustained; exception by plaintiff.)
‘ ‘ Q. Now, I will ask you, Mr. Kneipper, whether the defendants, Mary Richards and Anton Richards, lived together in a house down there in Avon? A. Yes, sir.
‘£ Q. And I will ask you whether they did put a cellar under that house in the spring of 1901, or any part of it? A. Yes, sir.’’

Then evidence was offered tending to show the agency o£ Anton Richards for Mary Richards in making the contract. That counsel may not be misled, we do not hold the evidence offered was the best evidence that could have been offered upon that subject or that it was in all respects competent.

Again, counsel sought to show conversations after the making of this contract between Kneipper and Anton, and also between Kneipper and Mrs. Richards, whereby they repudiated the contract and notified .him distinctly that he would not be permitted to perform the contract. He was asked, if after the contract was made he ’ had a conversation with Richards, and he said he did, and was then asked what that conversation was, an objection was interposed, and the objection sustained and exception by the plaintiff. Counsel for plaintiff said:

“I will offer to prove by the witness, that at the time of the conversation referred to, the defendant, Anton Richards, met the plaintiff and told him that one Blazer Reid wanted to build the cellar, and that Blazer Reid was claiming he had a contract to build it, and he asked the plaintiff to let him off upon the contract. The plaintiff told him that he could not afford to do so; that he, the plaintiff, had thrown up several jobs which had been offered him in the meantime, and was calculating upon building the cellar, and that the defendant, Anton Richards, thereupon told him that he would have to buy off and arrange with either him or Reid.”

Then he was asked further as to what was said in the conversation about being permitted to complete his contract, to which an objection was interposed and sustained; and the offer to prove was:

“We offer to prove by the witness, that in the conversation referred to, the defendant, Anton Richards, told the plaintiff that he could not go on and perform the contract and build the cellar and put in the underpinning; that they had hired Blazer Reid to do it for $20 less, and that they should give him the job.”

We do not understand upon what ground that evidence was excluded. If Kneipper had a contract to do this work, was ready and willing to do it, and did not do it because he was notified he would not be permitted to do so, that testimony Was competent. *

Again, he met Mrs. Richards, and he was asked as to $ie conversation he had with her upon the subject of being allowed to complete that contract, to which an objection was made and - an exception taken. This was the offer:

“We offer to prove by the witness that at the time referred to Mrs. Richards, the defendant, said to the plaintiff, you can not go on and complete the contract for building the cellar that my husband made with you, as we have concluded not to put in a cellar under our house. Mr. Richards does not like to live in French Creek, and we expect to go away and not live there, and so we will not have the cellar dug.”

Then there was a repetition of questions put to the witness as to what was said and done at French Creek at the time the contract was made, 'and a more complete statement made of the proof that was expected to be made and elicited by such questions.

As near as we can gather from the remarks and the objections made, all this testimony was excluded upon the theory that the evidence tended to vary the written contract, a memorandum of which was attached to the petition and offered in evidence. That position was not well taken. The memorandum offered in evidence did not purport to be a complete contract; it made no reference to the $85, when it was to be paid, or how it was to be paid; nothing said about the depth of the cellar. It is entirely incomplete. It does not purport to be a contract binding Mrs. Richards; and if it be true, that before that memorandum was made these parties did enter into a contract or come to an agreement as specified in the petition, agreeing fully upon the terms of the contract, the size of the cellar, and depth, amount to be paid and when to be paid and all of the terms of the contract, and then made this memorandum that was signed only by Kneipper and Anton, then we think the contract was so incomplete and so ambiguous that the plaintiff should have been permitted to show that the real contract was as he had alleged it to be, if he could. It was clearly error in excluding that evidence.

Again, it is said the court erred in excluding evidence offered as to the damages sustained, and the particular question upon that subject is this:

”Q. If you had been allowed to go on and perform this contract, how much would you have made that you otherwise were not able to make?”

That question is clearly incompetent; the court ruled rightly in excluding it. The measure of damages there suggested is not the true measure of damages. But as this case has not reached that point it seems any discussion of what the true measure of damages would be, would be outside of the case that is made.

I should say the contract price would fix the benefits the plaintiff was to get out of it, from which should be deducted the cost of completing the work he agreed to do — the reasonable cost. But nothing is said here that shall bind the trial court on another trial of the case as to the measure of damages.

Other evidence was introduced on the part of the plaintiff, and at the close of plaintiff’s case there is this entry:

“Whereupon the defendant moved the court to direct a verdict in favor of the defendants, on the ground that there was no evidence tending to sustain the claim of the plaintiff. Which motion the court sustained, and directed the jury to return a verdict in favor of the defendants, to which the plaintiff then and there excepted. Whereupon the jury retired, etc., and returned a verdict.”

The decision of the court of common pleas is with the files, which we have examined. It seems to have been based upon the theory that the action was upon the written contract only, and, therefore, the evidence that was excluded was in competent, because it tended to vary that written contract. But the coui't finally held that the written memorandum constituted no contract, and therefore the plaintiff had made no ease.

The trial of this case resulted in exactly this situation— excluding the evidence offered because it tended to vary the written memorandum, and then holding that the plaintiff had no case because there was no evidence tending to establish his claim. Clearly this is illogical and not right.

The action by the petition is not based upon a written contract; it does not so specify; it does not allege a contract complete in its form. There was a memorandum incomplete, made and signed by the party upon one side and one of the parties upon the other, and we think it was left open to establish fully what that contract was, and that the evidence offered should not have been excluded upon the ground it tended to vary a written memorandum, which was finally held not to be a contract.

The judgment of the court of common pleas must be reversed and the cause remanded for a new trial. The grounds of reversal may be the exclusion of- the testimony offered to which I have referred.

Fritz Rudin and Johnson & Leonard, for plaintiff in error.

Thompson & Gliisch, for defendants in error.

Now again, it is stated that there was no legitimate evidence of any damages sustained by the plaintiff, and, therefore, the court was right in directing a verdict.

Under the situation of this, trial we do not think that should prevail. The plaintiff had been deprived of testimony to which he was entitled, and without which he could not make a case, and hence he should not be held to have lost all his rights by not offering evidence in support of damages upon the case he had been deprived of making. So that we do not think the court would be justified.in directing a verdict solely upon the ground that no legitimate evidence had been offered of the damages sustained by the plaintiff.


text:
    TESTIMONY UNDER THE VALENTINE ANTI-TRUST LAW.
    [Circuit Court of Hamilton County.]
    Salmon P. Jones, Sheriff of Hamilton County, Ohio, and Emil Zorn v. Cora Dow Goode.

    Decided, March. 17, 1906.

      Valentine Anti-trust haw — Action to Enjoin Combination — Plaintiff Summoned for Examination under Section 5243 — Spirit of the Valentine Act — Disclosure of Business — Trade Secrets — Relevancy of Questions■ — Discovery of Evidence in Possession of Adversary— Damages — Babeas Corpus — Privileged Matter.

    1. In an action to enjoin an illegal combination under the" Valentine Anti-trust Law and for damages resulting from such combination, the plaintiff when called under Section 5243 for examination before a notary is not at liberty, on the ground that it 'is a trade secret and therefore privileged, to refuse to disclose the names of dealers from whom he has succeeded in obtaining a partial supply of the goods the combination had refused to furnish him.
    2. But such questions being irrelevant in an examination under Section 5243, the refusal of the witness to answer them must be sustained, and application for release from custody on habeas corpus -was properly granted.

      Jelke, P. J.; Swing, J., and Gieeen, J., concur.'

       Affirming, In re Cora Dow Goode, 3 O. L. R., 401.

   This cause comes into this court from the judgment of the court of common pleas directing Salmon P. Jones, Sheriff of Plamilton County, Ohio, to release and discharge from, custody the defendant in error, Cora Dow Goode. The defendant in error being the owner of several drug stores in the city of Cincinnati, brought suit in the court of common pleas under the Valentine Anti-Trust Law (93 O. L., 143), charging that Emil Zorn and the Peruna Drug Manufacturing Company et al had combined to prevent her from securing certain patent proprietary medicines, particularly one known as Peruna. She alleged that she was injured by these acts in the sum of fifty thousand dollars, for which she prays judgment, and that the defendants be enjoined from further maintaining such alleged illegal combination.

Counsel for defendants in said action had the said Cora Dow Goode summoned before a notary for examination and cross-examination. At such examination the said Cora Dow Goode testified that she had been prevented from buying Peruna, because of the contract plan used in selling its goods by the Peruna Drug Manufacturing Company.

■ “ On further examination it was admitted by the witness that she had Peruna and that she had been buying it, and she also stated where she had bought a part of it. Thereupon .counsel for Emil Zorn asked the following questions:
“Question. Is that all you have bought between the first day of January and the time of bringing this suit?
“Answer. No. ■
“Question. Will you state where else you have bought it?
“Answer. I don’t care to.
“The question was objected to by counsel for Cora Dow Goode on the ground that it was irrelevant and an unwarranted inquiry into plaintiff’s private business.
. “Counsel for Emil Zorn then asked the witness other questions and finally repeated the foregoing question in the following manner:
‘ ‘ Question. Will you state where else you have bought Peruna, besides from John D. Park Sons Co., since the first day of January.
“Question was objected to as irrelevant and witness said, ‘I decline to answer as to giving the names of persons — a trade secret.’ Whereupon, counsel for Emil Zorn made the following statement.
“I shall now ask the notary to,, order the witness to answer. The witness, who is plaintiff in this suit, alleges in her petition to have been damaged to the amount of $50,000 by this defendant in combination with others, by reason, among other causes, of being prevented from buying or obtaining goods. The witness in her examination says that this has been partly due to certain contracts which the Peruna Company as a party to the alleged combination requires wholesale and retail dealers to enter into, on account of which she has been unable to obtain Peruna. We expect to prove that she did buy Peruna from dealers who entered into this contract, after it'went into effect, at current jobbers’ prices, and that she was not damaged by reason of said contract.”

Upon the witness’ refusal to answer such questions, the notary ordered that she be committed to jail, and in this proceeding below and application for writ of habeas corpus, the common pleas court found that the said Cora Dow Goode had a right to refuse to answer such questions and directed the sheriff to discharge her from custody.

There are two objections urged to this testimony. First, that to disclose the names of the persons from whom Cora Dow Goode obtained Peruna would be a disclosure of business or trade secrets, and would injure her in her business and drag the parties so named into difficulty and litigation possibly with the Peruna Drug Manufacturing Company, and would furnish such company opportunity of placing said persons on a so-called black list, thereby making it thereafter impossible for them to buy any more Peruna, or any of the proprietary articles in the interest of which said alleged illegal combination was formed. Second. That the questions asked were irrelevant in an examination provided for by Section 5243, Revised Statutes.

On the first ground, we are of opinion that the names of these parties from whom the said Cora Dow Goode secured Peruna are not privileged matter in the nature of trade or business secrets. Indeed, it may be a matter to which at the trial she may be compelled to respond. It is not like an inquiry into the constituents or ingredients of manufactured articles nor is it entirely like an impertinent inquiry by a competitor as to the names of persons to whom one is selling goods or with whom one is doing business.

It is true that a disclosure of these names would lend to the defendants in the original action the information and opporAct is intended to counteract and prevent, and it may be that to carry out the spirit and intent of this legislative enactment, the said Cora Dow Goode would be justified in refusing to .divulge this information, but this can only be by the policy of the law adopted and declared by the Supreme Court in furtherance of the spirit and intention of this anti-trust act. This the Supreme Court has not yet done; as it is not necessary to. a decision of this case, we do not feel impelled to express an opinion on this point.

When it comes to the question of relevancy, the matter of general relevancy is not here under consideration, but it is a matter of relevancy in the examination conducted by way of deposition in advance of trial under the provision of Section 5243, Revised Statutes. Such provision of the statute is enacted as declaratory of the old principles of discovery in chancery, making the same applicable to all suits.

The Supreme Court in Ex Parte Schoepf recently said:

“2. The rule in chancery as to compelling the production of documents for the purpose of evidence and inspection was and is that a party is entitled to a discovery of such facts or documents in his adversary’s possession or under his control, as are material and necessary to make out his own case; but that this right does not extend to a discovery of the manner in which the adverse party’s case is to be established, nor to evidence which relates exclusively to the adverse party’s case.”

It is contended that inasmuch as the said Cora Dow Goode has charged that by reason of the conduct of the defendants in said action, she is injured in the sum of fifty thousand dollars, that it becomes pertinent and relevant on the measure of her damage to show from whom she procured Peruna; the quantity she either actually secured or failed to get, and the price that she paid for the same. It is said that it would work a great hardship to the defendants if they are deprived of this information at this time, and would expose and put them entirely in the hands of Cora Dow Goode in the matter of proving her damage. It is said in “Wigmore on Evidence, Vol. 3, paragraph 1856:

“In chancery practice, a party to a suit at law has always been entitled, by a bill of discovery, to ascertain before trial the tenor of his opponent’s knowledge and belief upon all the facts in issue; in other words, to obtain disclosure of his testimony before trial. The soundness of this policy rests upon reasons already examined (ante, Section 1847, par. 2). But the tenor of this discovery was strictly limited to the opponent’s own testimony, that is, his own admissions resting on his knowledge and belief. It is true that the bill required from the opponent an answer under oath stating all that he claimed in opposition; but to this extent what was obtained was no more than a sworn pleading, stating such material facts as would be alleged in any pleading. But of the evidence which he was to bring forth in support of those facts — the names of his witnesses and the circumstances to which they would testify — he was required to betray nothing in advance, except so far as he himself could bear testimony. In answering as a witness to facts, it was no excuse for him that his testimony, would incidentally reveal his witnesses’ names; but this did not impugn the general principle that he was entitled to keep to himself all evidential data except his own testimony. * * *
“In the interpretation of these statutes, it seems to be generally held that their purpose was merely to extend to all courts the expedient that formerly existed in chancery alone (ante, Section 1846), that, therefore, the principle is not changed, and that the discovery is limited to the extraction of the party’s own testimony and can not be asked merely to ascertain his other evidence to support his own case or the names of his witnesses; so that the common law in this respect (supra, par. 1) remains unchanged for civil cases.
“1895, Lindley, L. J., In Re Strachan, 1 Ch., 439, 445: (The applicant) wants to see how her opponent hopes to prove his case, and what she wants to see is the evidence he has procured to prove the insanity which he alleges and she disputes. In England it is considered contrary to the interests of justice to compel a litigant to disclose to his opponent before the trial the evidence to be adduced against him. It is considered that so to do would give undue advantages for cross-examination and lead to endless side-issues, and would enable witnesses to be tampered with and give unfair advantage to the unscrupulous. It is very true that an honest and fair-dealing litigant, on seeing how strong a case his opponent had, might at once withdraw from further litigation. But our rules of evidence and of discovery are not based upon the theory that it is advantageous to let each side know what the other can prove, but rather the reverse.”

Frank H. Freericks and Iiufus B. Smith, for plaintiff in error.

Joseph S. Gray don and Smith Hickenlooper, for defendant in error.

It makes no difference, neither does it affect the amount of said Cora Dow Goode’s damage, whether she procured Peruna from A, B or C, or from Smith, Brown or Jones. Under the law as above set out, the defendants are entitled to know from her all material facts upon which she relies to establish her damage, but these facts do not include the identity of the persons from whom she bought. It may be true that the defendants should have an opportunity to verify or impeach the accuracy of her statements by an examination of these undisclosed persons, and it may put them at very great inconvenience to go to trial without a knowledge of their identity; but the identity of these persons. is not part of the said Cora Dow Goode’s essential claim against those defendants. We are, therefore, of opinion that at this time, in this kind of an examination, under Section 5243, Revised -Statutes, said questions are irrelevant and the said Cora Dow Goode had the right to refuse to answer the same, and the court below did right in discharging her from custody.

Inasmuch as we come to this conclusion upon the question of relevancy, which is' sufficiently presented by the record made before the magistrate, it is not necessary and we do not pass upon the question of the propriety of the common pleas court hearing further evidence after the commitment.

The judgment will be affirmed.

J oseph 8. Gray don and Smith Ilickenlooper, for the petitioner.

Bufus B. Smith and Frank II. Freericks, contra.

Opinion on Rehearing.

After our former decision in this case counsel asked the privilege of presenting to us another reason why the evidence held by us to be irrelevant, was relevant on the examination before the notary.

It is contended that had Cora Dow Goode been compelled to answer the question propounded her answer might have disclosed that she was procuring Peruna from the very parties who she charges were in conspiracy to prevent her from buying Peruna.

We adhere to our former opinion for the following reasons:

The way has not been paved for this question. The said Cora Dow Goode had not been interrogated as to whether she had obtained all the Peruna she needed in her business and whether or not she had applied to any of the persons named in her petition and been denied; the fact that persons had bought Peruna under the prohibitive contract, and in violation thereof had sold to Cora Dow Goode would have been matter of defense and tended to weaken her case but not conclusively.

We think the scope of the inqury is too broad and subject .to the objection first found by us, and if it was anticipated that she had bought Peruna from persons charged in the petition, the inquiry should have been limited and made more specific.

We think the inquiry as to the identity of persons on this point seeks a disclosure of her witnesses.


text:
    LIABILITY OF PROMOTER. FOR. WORTHLESS STOCK SOLD.
    [Circuit Court of Summit County.]
    Anson H. Russell v. John A. Weiler.
    Decided, September 30, 1905.

      Promoters — Representations by — And by Agents of — Evidence as to— Admissibility of — Charge of Court — Failure to Refine the Issues— Fraudulent Representations.

      1. Circulars and letters sent out by a promoter are admissible in evidence in an action to recover for worthless stock sold, in so far as knowledge is thereby disclosed on the part of the promoter that the representations made by himself and his agents were false, but such letters and representations, however fraudulent, are not admissible where they relate solely to some other enterprise than the one in which the plaintiff purchased an interest.
    2. Failure by the court in its charge to the jury to concretely define the issues left in the case for their consideration, particularly in a case having a foundation so elusive in its nature as fraud, constitutes reversible error.
    I-IenrY, J.; Marvin, J., and Winch, J., concur.
    Error to tbe court of common pleas.
   The defendant in error brought action and recovered judgment against the plaintiff in error for $120 paid for worthless stock in an oil company promoted by the latter, alleging that said stock had been bought on the faith of the promoter’s fraudulent representations. The representation specially relied on was that said company had 2,000 acres in the Lima district under lease whereon there were five producing oil wells, whereas the contrary was the fact. Russell contends that he personally made no such representation of fact, and it is perhaps true that he did not. The facts appear to have been that the leases referred to were owned by other parties, and Russell held options for the purchase thereof from the lessees, which he afterwards allowed to lapse because surrounding developments proved discouraging. That is his .evidence. But he spoke loosely of these leases in such a manner that his agent, Hess, in Cincinnati, understood and represented to his customers, including Weiler, that his company owned the leases and wells in question. Russell, being bound by his agent’s representations, must, therefore, be held to have actually so represented. The circular which he issued, of itself, hardly goes to that length; but that, together with other writings of like import, addressed by Russell to Weiler’s wife and to other persons, about the time that Weiler purchased stock, were properly admitted in evidence, solely as bearing upon the question whether Russell knew that the representations made were false (U. S. Life Ins. Co. v. Wright, 33 O. S. 533). Other letters afterwards written by Russell to third parties were admissible to the extent that, being admissions or declarations, they tended to show the falsity of the representations previously made to Weiler.

The conclusion of witness Buckner concerning the results of his investigation of the company’s ownership of oil leases in West Virginia (bill of exceptions, p. 25) was, we think, erroneously admitted, as also was the plaintiff in error’s newspaper advertisement of stock for sale in another company which he promoted (bill of exceptions, 185).

The charge of the court is complained of, among other reasons, because it failed correctly to define the issues left in the case for the jury’s consideration. The charges of fraud contained in the petition were numerous and diffuse; the evidence was, much of it, only broadly applicable to the issues; and the right of action, being founded on fraud, which is itself elusive in its nature, made it peculiarly necessary for the court to define the issues precisely and concretely. What he did was merely to read the pleadings to the jury and leave them not only to define the issues, but also to apply thereto the rules of law laid down as best they might. What he should have done was to limit the issue to be determined by the jury to the Lima leases and wells, and charge the law of fraudulent representation as applied to that precise point. In the case of Baltimore & Ohio Railroad v. Lockwood, 3 O. L. R., 118; 72 O. S., —), the first paragraph of the syllabus is as follows:

‘ ‘ In submitting a case to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require; and it is also the duty of the court to distinguish between, and call the attention of the jury to, the material allegations of fact which are admitted and those which are denied. It is error to read the pleadings to the jury and then say to the jury that these constitute the pleadings in the case, which make up the issue and from which they will try and determine the controversy between the parties, and not otherwise to define the specific issues. ’ ’

Rogers, Rowley & Rockwell, for plaintiff in error.

Musser, Koliler & Mottinger, for defendant in error.

There is complaint of the conduct of counsel for the prevailing party in this case, and in a number of places in the long record there are instances of conduct that, perhaps, technically is not above criticism, but we reverse the judgment below only for error in the admission of evidence and error in the charge of the court, as above pointed out.


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    INJURIES RESULTING FROM A DEFECTIVE SIDEWALK.
    [Circuit Court of Lucas County.]
    City of Toledo v. Lena Fuller.
    Decided, March 4, 1905.

      Street — Existence of, Sufficiently Proved, When — Negligence—Questions as to, in Going upon a Defective Sidewalk — Degree of Gare Required — Contributory) Negligence as Suggested by Plaintiff’s Own Testimony — Verdict for $1,000 for Personal Injury not Excessive, When.

    1. In a suit for personal injuries resulting from a fall on a defective board-walk located- on wbat is designated in the petition as . Sycamore street, to which only a general denial was interposed, the existence of such a street is sufficiently established, where it appears from the evidence that the way had long been used as a street, and that it was known as Sycamore street, and houses were built upon it, and no evidence was offered and no suggestion made that it had not been accepted, notwithstanding as a matter of fact it was not an accepted and dedicated street.
    2. One is not bound to leave a sidewalk and go into the roadway simply because of his knowledge that the walk is out of repair, and he is not chargeable with contributory negligence where the evidence shows that while on the walk he conducted himself as an ordinarily prudent person would do under the same or similar circumstances.
    3. "When an uneducated woman in ordinary life, when asked on cross-examination whether she exercised the same care in walking upon the walk where she was injured that she would have done had she been upon a walk known to be in good repair, replied in the affirmative, her response will not be regarded as sufficient to show she was1 guilty of negligence in walking upon the defective walk.
    4. A verdict of $1,000 in favor of a woman thus injured is not excessive, where the injury consisted of a broken elbow, which has caused her great pain and will prevent her ever straightening her J arm or opening or closing her hand, and as a consequence she has become dependent upon charity; and the fact that she is being supported in an infirmary at public expense does not deprive her of her right to recover.
    Hull, J.; Haynes, J., and Parker, J., concur.
    Error to Lucas Common Pleas Court.
   This action was brought in the court below by Lena Fuller to recover damages for a personal injury which she claims to have sustained on account of the negligence of the city in regard to a certain sidewalk, which she says was on “Syeomore street.” Her claim is, that the boards of the sidewalk were loose; that while walking over it, towards evening, but while it was still daylight, with another who stepped upon and tipped up a loose board, she was tripped and fell, injuring her arm and other parts of her body. On the trial below she was awarded a verdict of $1,000. Judgment was entered upon this verdict, and it is to in this court.

It is claimed by the city, first, that there Ayas no such street at the place where she alleges she was injured; and the evidence does not show that there is any such street as “Sycamore street,” as it was called by the plaintiff, and that question may be considered first; for, if there is no such street and no liability on the part of the city to keep it in repair, that, of course, is the end of the case. There were no witnesses called on the part of the plaintiff to testify that the place where she fell was a part of the street or that it ever had been dedicated as a street or established as such by the city. It was alleged in her petition that she fell on “Sycamore street.” That Ávas denied, along with the other allegations of the petition, by a general denial— there is no specific denial in the answer of the allegation in r.egard to the street. The case was tried as though there was no question about this being a street and so tried by both plaintiff’s and defendant’s counsel. '

Witnesses were asked about the street — witnesses for the plaintiff — and were cross-examined by counsel for the city as though it was an admitted fact. Almost the first question asked of Mrs. Puller, the first witness, when she went upon the witness'stand, was: “Where do you live?” And her answer was: ‘ ‘ On Sycamore street. ’ ’ And when it came to the cross-examination she was asked by counsel for the city: “Now, Mrs. Puller, you were living down on Sycamore street, weren’t you?” And her answer was, “Yes, sir.” And many questions of the same character were asked by witnesses, by both sides, .assuming that the place where she fell was in a street and that street was Sycamore street. Witnesses for the plaintiff were asked these questions, and when cross-examined by counsel for the city the same assumption is made in regard to this street.

Again, on cross-examination of Mrs. Puller, she was asked: ‘ ‘ In going back to your house it was necessary for you to go up to Sycamore street from Summit?” and she answered that it was. And on page seven of the bill of exceptions: “And before you lived there, you used to be on Sycamore street, quite a bit, didn’t you?” To which she answers: “Not very much.” And the same method is followed in the examination of defendant’s witnesses when they were called. A witness named Daniel Roams was called by the city, and the first question put to him is: “You livepn Sycamore street?” And he answers that he does. He is asked if he has lived there some years, and he answers that he has. The witness, George Bolán, called by the city, was asked: “Mr. Bolán, where do you live?” and his answer was: “222 Sycamore street.” “Are you on Sycamore between Summit and Water streets?” “Yes, sir.” And so it reads through the record.

No question was made at any time during the trial as to this being one of the streets of the city. The court charged the jury as though there was no question about it and no special exception'was taken to it; we think a prima facie case-was made here, beyond question, that this was a street known as “Sycamore street.” The witnesses testify, among other things, as to where it went — that it ran down to the Toledo furnaces and in the direction of the Yulcan Iron Works, and as to the number of people who travel on it down to the street below.

There was no denial of this, no effort on the part of the city to show that this was not a street, and, in the absence of any such evidence, it is clear to us that this does tend to establish the claim that this was a public street. It is not necessary to show that it had ever been dedicated or located as such by the city, but if used as a street for a long period of time, as this had been, apparently, and houses were built upon it, with numbers upon them, and having sidewalks upon it and people had been calling it a street, it is sufficient to establish the claim of the plaintiff that it was a public street, in the absence of evidence to the contrary; so that question may be- passed without further discussion:

It is claimed and insisted upon by the city that the plaintiff was guilty of contributory negligence which, caused or contributed directly to her injury, and that, therefore, she can not recover — her negligence consisting in her walking upon’this walk without proper.care. This walk had been laid along Sycamore street, apparently, a good many years ago, was a little out of repair, and- for a portion of the way along thé side of the street there was nothing but a cinder path. She came down from Summit street at the time in question and when she reached this strip of sidewalk, a man named Garrigan came up and offered to carry her basket of provisions, and she permitted him to do so; and they walked along the street together until he stepped upon a loose board, which flew up and tripped her dowu. This walk was in bad repair. The stringers were rotten; the nails were loose; the boards perhaps loose. As they lay upon the stringers, it would be impossible to tell from their appearance whether they were loose or not. Some few of them were out, but not very many. The evidence does not disclose what the condition of the street was along there — the roadway at the side of the walk — whether it was passable for walking upon, but we understand the law to that, that one is not required to leave the sidewalk and walk in the road because the sidewalk is out of repair.

It is the duty of the city to keep the sidewalks in reasonable repair and citizens traveling upon the streets have a right to walk upon them and that is not contributory negligence; it does not constitute contributory negligence; alone, for one to walk upon a sidewalk that is out of repair; for, if that was the íaw — if all the sidewalks in the city were in such bad condition as to make them dangerous — it would afford practically complete protection to the city, if it were true that one who walked on such a sidewalk could be found guilty of contributory.negligence.

But we think the court charged the jury correctly upon that proposition: that one knowing the sidewalk to be somewhat out of repair, may walk upon it, but he must use care commensurate with the danger of walking upon the walk; he must, under the circumstances use what would be ordinary care. If some of the boards are out, and he knows it, he must look out for them, or if some of the boards are loose, and he knows it, he must use care according to his situation. The evidence does not show that Mrs. Fuller was walking in a careless manner upon this walk. She testifies that she was walking along and looking out; that she did not know that these boards were loose-at this particular point. Apparently, she was walking along as well as she could, upon this day. She was asked, upon cross-examination, if she was exercising the same care that she had exercised when she was walking upon Summit street, and she says she did, and it is urged that this shows that she was guilty of negligence, as it is said she ought to have exercised greater care in walking upon this sidewalk which was so much out of repair.

That, however, was simply a remark of hers in answer to a question put by counsel. She was an uneducated woman, in the ordinary walk of life, making her living as a cook and living down on this street with this dilapidated walk, and probably did not comprehend the full import of the question, put as it was, and answered it as she did without consideration, and we do not think that should be taken as proving absolutely that she was guilty of contributory negligence — -that fact is to be determined by the evidence and by the manner in which she was in fact walking upon this sidewalk according to the testimony.

She was not required to walk in the road, where the Supreme Court has held that pedestrians ought not to walk; she was not required, as a matter of law, to get off the sidewalk. She was apparently doing the best she could. She says she did not know .that these boards were loose, and she probably would not have been thrown down if it had not been for the man walking with her stepping upon the board and tipping it up, which is quite a common way of being tripped up and thrown down. We are unable to find, upon reviewing the case, that she should be -held to have been guilty of such negligence as would preclude a recovery for her injuries. We do not cite any authorities upon this question. The law of contributory negligence is well established in these eases and they are governed by well-known principles of law. If she was conducting herself as an ordinarily prudent person would under the same or similar circumstances, that was sufficient, and we can not say that she was not.

It is said that the damages awarded by the jury are excessive, and evidently appear to have been given under, the influence of prejudice or passion. Quite a large number of physicians were called to testify in the trial. Soon after she was hurt she was taken to the hospital, and she claims that her shoulder was injured and also the bone at her elbow. The evidence shows that she fell very violently and that the bone in her elbow, known as the olecranon process, as one doctor says, at the angle of the elbow, was fractured. She also claims that her hand was injured. Since her injury and at the trial, she was unable to open and close her hand- — -the fingers were stiffened. Her arm is injured, the elbow being stiffened so that she is unable to straighten the arm, which has to be kept at an angle. It was urged by the city that the evidence shows that she had injured her wrist when she- was a child. She denied that she had done so or that her arm had ever been injured before; and it is urged that the stiffening of the fingers and of the hand could not have been produced by the injury at her elbow.

The evidence showed that she had sustained a very severe injury. This bone at the elbow was fractured; all, practically, agree upon that. Her arm had to be put in a plaster east and kept there for several weeks. Since that time she has practically lost the use of her arm and hand, for the reasons that I have given. It is said that if she had moved her fingers and hand while the arm was in the cast, that they would not have become stiffened by anchylosis, as it is called, which, the doctors say, comes largely from non-use of the hands in case of a fracture or injury. The doctor who treated her testifies that he instructed her to move her fingers and hand. She differs with him somewhat. But we think she may not have done all that she might have done to move her hand, and the doctor at the hospital may not have instructed her as fully as he should.

U. G. Denman, City Solicitor, and G. K. Friedman, Assistant City Solicitor, for plaintiff in error.

L. E. Wilkinson and G. Wf Kinney, for defendant in error.

However, she is now in this condition as the result of this injury. The use of her arm is practically lost. She is now at the poor house; was at the time the case was being tried and has been there for some time. She had been earning small wages, $2 to $2.50 per week, at cooking. She earned enough to support herself and enable her to rent her humble rooms on this street and to get her food. It looks as though she would never again be able to provide for herself in this way — as though she is practically deprived of ability to perform manual labor in the manner in which she had been accustomed to. She has suffered a great deal of pain on account of this injury. The question of damages has been argued very fully by counsel for the city, and, therefore, I have discussed it somewhat; but, after looking through the testimony, we are unable to say that the jury were influenced by prejudice or passion or that this verdict for $1,000 is excessive. It does not seem to us that it is more than she is entitled to for the injury which she has sustained. She has lost her independence which she had before in life; she has become a dependent. To be sure she is in the poor house at the expense of the public, but that does not deprive her of her right to recover for damages which she has sustained. We can not find, therefore, that the amount allowed by the jury and the amount of the judgment is excessive, under the testimony.

No objection is made to the charge and no other objections are made than those I have mentioned. We find no error in the record of the case; the judgment, therefore, will be affirmed.


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    LACK OF MUTUALITY IN CONTRACT OF SALE.
    [Circuit Court of Hamilton County.]
    The Artemus-Jellico Coal Company et al v. David E. Ulland et al.
    Decided, March 31, 1906.

      Mines and Mining — Contract for Saletof Ninety Per Cent, of Nut and Slade Produced — Not Enforceable, When — Pleading.
    A contract for the sale oí a certain proportion of the nut and slack produced from the operation of a coal mine is not mutually binding upon the parties and can not be enforced, when by its terms it is left entirely optional with the sellers whether or not they will separate any or all of the nut and slack from the run of the mine.
    Gieeen, J.; Jelke, P. J., and Swing, J., concur.
   The only error alleged in this case consists in sustaining the general demurrer to the amended petition and rendering judgment against the plaintiffs. The action was founded upon the breach by the defendants of the following contract, which is set out in the amended petition:

“Cincinnati, Ohio, May 12th, 1903.
“This agreement entered into this day by and between the Artemus-Jellico Coal Co. and the Ross-Jellico Coal Co. of Kentucky, incorporations of the first part, and Laurel-Jellieo Coal Co., composed of David E. Ulland and ¥m. T. Ulland, of Cincinnati, 0., of second part, witnesseth:'
“Parties of first part have sold to parties of second part ninety (90) per cent, of all the'nut and slack made through 1%. screen at their mines at Rossland and Artemus, Ky., for a term of ten (10) months commencing June 1st, 1903, and continuing until April 1st, 1904; at one ($1.00) dollar per ton f. o. b. ears at mines.
“Parties of the second part agree to take the amount of nut and slack as stated above, and agree to pay parties of first part one ($1.00) dollar per ton of 2,000 pounds f. o. b. cars at mines for same, paying on the tenth of each month for all coal shipped the previous month, and at any time said payments are not made promptly as agreed without consent to extend by first parties, this contract at the option of first parties shall terminate - and be null and void.
“Second parties agree at all times to keep first parties supplied with shipping orders for said coal, so as not to delay the mining and loading of other coals, it being understood that the nut and slack must be moved in order to mine and load other grades of coal. It is understood that this contract does not bind first parties to mine any certain amount of nut and slack but includes ninety per cent, of all nut and slack they do mine.
“Artemus-Jellico Coal Co¡
“Ross-Jellico Coal Co.
• “Laurel-Jellico Coal Co.,
“By David E. Ulland.”

The averments contained ’in the amended petition are no broader than the language employed in the.contract itself, and hence, the only question for consideration is whether the contract is mutually binding upon the parties.

The offer made by the plaintiffs in the second paragraph of the contract and accepted by the defendants was to sell and deliver ninety (90) per cent, of all the nut and slack made through a one and a quarter inch screen at their mines for a term of ten (10) months thereafter at one dollar per ton f. o. b. cars at mines. This relates to nut and slack coal not then in existence, but which may be made in the future during the months named by running the coal from the mines over a one and a quarter inch screen, thereby producing the nut and slack which is to be delivered on the cars at mines at one dollar ($1) per ton, but it does not embrace a promise either express or implied, to make any nut and slack'through a one and a quarter inch screen. It leaves it entirely optional with the plaintiffs to separate the • nut and slack from the run of the mine and hence not enforceable against them. But counsel for plaintiffs in error say in their brief:

“It is a fact that the parties to this contract had had previous dealings, when the defendant in error knew the quality of the coal and the relative capacity of the mine, or rather the output of the mine, and the relative amount of nut and slack produced per month.”
And rely upon • the general doctrine that contracts should be construed in the light of circumstances surrounding the parties and the object which they evidently had in view. They cite the case of Minn. Lumber Co. v. While Breast Coal Co., 160 Ill., p. 85. Bnt in that case it is expressly stated at page 93:

Edward Jl Dempsey and W. M. Fridman, for plaintiff in error.

Drausin Wulsin and Bowed c& Smiley, for defendant in error.

“The plea avers that defendant was engaged in the purchase, use and sale of coal in its business, and that its requirements therein for that season were very large, and that such fact was well known to the plaintiff.”

In the case before us, the amended petition contains no averment concerning the knowledge of defendant in error -relative to the out-put of the mine, and the amount of nut and slack produced per month, and it is elementary that the demurrer admits facts only which are well pleaded.

The last sentence in the contract, to-wit: “It is understood that this contract does not bind first parties to mine any’ certain amount of nut or slack but includes ninety per cent, of all nut and slack they do mine, ’ ’ only confirms the view that there was no obligation resting on the plaintiffs in error .to make or to mine any nut and slack coal. If by the other terms of the contract a promise to deliver ninety per cent, of all the nut and slack made through a one and one-quarter inch screen in the usual and ordinary operation of the mines were once established, then there would be no difficulty in construing this sentence to mean simply that the parties did not guarantee any certain amount of nut and slack, but only ninety p'er cent, of all that may be produced in the usual and ordinary operation of the mines.

There was no error in sustaining the demurrer and the judgment will be affirmed.


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    REQUIREMENT OF VACCINATION BY SCHOOL AUTHORITIES.
    [Circuit Court of Summit County.]
    The State of Ohio, ex rel William A. Milhoof, v. The Board of Education of the Village of Barberton.
    Decided, September 30, 1905.

      Schools — Policy of State with Reference to — Compulsory Vaccination of Pupils — Section 39SG — Mandamus.
    The policy of the state of Ohio as to encouraging education and enforcing attendance at school of children of school age, does not render invalid a rule requiring vaccination for small-pox as a condition of admission to the public schools.
    Marvin, J.; Winci-i, J., and Henry, J., concur.
   The petition sets out that the relator resides in Barberton, and has two children of school age who are entitled to be admitted as pupils in the schools, and that they are excluded for the reason, and only for the reason, that they have not been vaccinated for small-pox, and he seeks a mandamus compelling the board of education to admit these children into the schools. "

The case was heard and some evidence introduced, and it appears that the facts are as stated in the petition. The board has a rule which it adopted at a time when sm^ll-pox was prevalent in the village of Barberton; that prevalence does not now exist, nor is there any small-pox in the vicinity of Barber-ton — in Akron, or any other place connected with Barberton, but the rule is still there and still in force. Section 3986, Revised Statutes, provides that—

‘ ‘ The board of each district may make and enforce such rules and regulations to secure the vaccination of, and to prevent the spread of small-pox among the pupils attending or eligible to attend the schools of the district, as in its opinion the safety and interest of the public require; and the boards of health and councils of municipal corporations, and the trustees of townships, shall, on application of the board of education of the district, provide at the public expense," without delay, the means of vaccination to such pupils as are not provided therewith, by their parents or guardians.”

Rogers, Rowley & Rockwell, for plaintiff.

E. W. Stuart and II. M. Hagelbargcr, for defendant.

In accordance with that statute the board adopted this rule; it is still in force. In numerous cases which were cited on the hearing in other states such - rules have been upheld. It is urged that in -view of the fact that there is compulsory education in this state, the policy of the state is to encourage, indeed to enforce education upon the children, that there ought not to be a rule which will exclude children from the schools because they have not been vaccinated, but the statute says they may, or, rather, that they may enforce the vaccination and make such rules as in the judgment of the board are necessary. They have adopted this rule. There is nothing in the decisions to which our attention has been called, or of which we have any knowledge, nor is there anything in the facts which would justify us in holding that the rule of the school board is unreasonable, and the petition is therefore dismissed at the costs of the plaintiff.


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    DIVESTING OF TITLE THE ISSUE OF A DECEASED CHILD.
    [Circuit Court of Hamilton County.]
    Charles W. Huber v. Joseph T. Carew et al.

    Decided, July 20, 1904.

      Wills — Testamentary Disposition is Effected, When — Descents—Modifications of the Laio as -to — Divesting Grandchildren of Title.

    1. Where a testatrix adopts the course of descent provided by the statute in so far as it coincides with her wishes, and then adds certain modifications for the purpose of carrying out her wishes, a testamentary disposition is made of her property, and her heirs take nothing by descent.
    2. A child of a testatrix so devising her property takes an estate in fee, determinable upon the contingency provided in the will; and where the provision is that a child shall be divested of the fee, in favor of testatrix’s husband, in the event of the death of such child before the death of the husband, the provision will be carried out-, notwithstanding no good reason appears for thus divesting of title the children of the deceased child.
    Giefen, J.; Jelke, P. J., concurs.

      Affirming Huber v. Carew et al, 2 N. P. — N. S., 81; affirmed by the Supreme Court without report, 74 Ohio State, p. -.

   The only question to he determined in this case arises upon the pleading and involves a construction of the last will and testament of Maria L. Cary, which is as follows:

“In view of the uncertainty of life, I, Maria L. Cary, do hereby make and publish this my last will and testament, written with my own hand, this twenty-ninth day of April, 1847, revoking all former wills by me made.
“First. It is my will that all my property and estate, real and personal, however owned, and wherever situated, shall go as the law directs, with the following modifications or changes, viz.:
“First. It is my will, in case either of my children, Martha Louisa or Ella Woodnut, or the one of which I am now enciente (if it shall survive me) shall die before my husband, Samuel F. Cary, then it is my will that the portion of my estate belonging to my child shall pass in'fee to my husband. In case my husband shall survive all my children then it is my will that he shall possess in fee my whole estate.
“Second. If my children, or either of them, shall survive my husband, and yet shall all die without issue, before arriving at majority, then it is my will that the proceeds of my estate shall be forever applied to the establishment and support of a female college, to be located at Pleasant Hill, Hamilton county, Ohio, the estate to vest in such trustees as the Cincinnati Presbytery (new school) may designate, the whole management and control of such institute to be under the direction of said presbytery.
“In testimony whereof, I have hereunto set my hand, this the twenty-ninth day of April, one thousand eight hundred and forty-seven.
“(Signed) Maria L. Cary.”

It is claimed by the plaintiff, by the terms of this will, no disposition was made of the estate and that he acquired title by descent. Counsel in their brief state the proposition as follows:

“The testratrix has declined to avail herself of the privilege of devising her real estate which the law gives to every owner, but has elected to let it pass by descent to her heirs, and having permitted it to pass by descent, she then sought to modify or change the course marked out by the statute. ’ ’

While it is true that the first clause of the will provides that the estate shall go as the law directs, yet it is qualified by the words “with the following modifications or changes,” which appear in the succeeding clauses of the will. The testator evidently used the words “shall go as the law directs” as a form of designating the persons to whom she wished her estate to go, and the quantity that each in the first instance should take, and as a basis for the modifications or changes set forth in the second and third items of the will. She adopted the course of descent provided by statute in so far as it coincided with her wishes and then added such modifications as would fully carry them out.

Tier expressed will that all her property should go as the law directs, with cértain modifications, was a testamentary disposition of the same, and the heirs took nothing by descent. The words, “shall go as the law directs, with,” etc., are but an abbreviated form made use of by testratrix to express her testamentary intent — a borrowing of the provisions of the statute of descent so far as they suited her purpose and beyond that rejecting them. In the case of Crane v. Doty, 1 Ohio St., 279, cited by counsel for plaintiff, there was an attempt made by the testator to disinherit one of his lawful heirs in respect to property not disposed of by his will. In that case, no attempt was made to create any interest or estate in the property involved and hence, not being disposed of by will, it necessarily went according to the statute of descent and contribution.

Counsel in their reference to this case of Crane v. Doty, supra, beg the whole question when they say: “We have already seen that testratrix has made no express devise of her real estate. If a devise can not be implied it follows that her real estate was not disposed of by her will.”

The words “shall go” and “shall pass” are expressly dispositive and the quantum of the estate so given is clearly defined by the reference to the law and the limitations in the succeeding sentence and words, “shall die,” etc., and in fit.

John W. Wolfe and Oulcall & Foraker, for plaintiffs.

Cohen <& Mack, for defendants.

There is nothing here left to implicate, all being express.

The case of Gaskin v. Gaskin, 2 Cowp., 657, is not applicable here because the whole estate is here given by the terms of the will to persons other and in proportions different than provided by law. And the same is to be said of Boisseau v. Aldridge, 32 Va. (5 Leigh), 222.

In this case, the testator, with the statute before her, proceeds to modify its provisions to meet her desire in the premises, and then adopts the whole as her will.

It is further contended that if the children took any estate under the will, it was in fee simple. But the only purpose of testator under the second clause of the will was to divest the child or children of the title in fee in event that they or either of them died before her husband. .No good reason appears why a child leaving issue should thus be divested of title, but the language of the will is plain and unambiguous and must, therefore, be given effect. “TJni in verbis nulla ambiguilas, ibi nulla occurrit voluntatis quaestio.”

We attach no special significance to the word ‘‘belonging” in the second paragraph of the will because whether the child took by descent or by will, the estate belonged to her subject to the contingency therein provided.

We are .of opinion, therefore, that Martha Louisa Iiuber, the mother of the plaintiff, took by devise an estate in fee, determinable upon the contingency of her death before that of her father, Samuel F. Cary.