author: HULL, J.

text:
    STATUTES — STREET RAILWAYS — FRANCHISES — DAMAGES.»
    [Lucas (6th) Circuit Court,
    February 23, 1904.]
    Parker, Hull and Haynes, JJ.
    William E. Hattersly v. Waterville (Vil.) et al.
    1, Municipalities Have General Power to Permit and Regulate Street RailRoads Irrespective of Secs. 2501, 2502, 3437 and 3439 Rev. Stat.
    Municipalities of this state have general power to permit and regulate the construction and operation of street railroads upon' such reasonable terms and conditions as they may determine, irrespective of the provisions of Secs. 2501, 2502, 3437, 3438 and 3439 Rev. Stat., and regardless of their constitutionality, and as an incident to the exercise of such power, municipalities .may regulate the making.of bids by third persons for the privilege of building a street railroad and transporting passengers: through the streets.

      "2. Valid Contract Between Municipality and Street Railway Company, When.
    A valid contract exists between a municipality and an interurban railway company, when the latter, with knowledge of all the terms and conditions, upon which a municipality advertised for bids to construct and operate a street railroad through its streets, whereby it agreed to grant a franchise-to the lowest bidder, filed a bid and agreed to accept the franchise if awarded to it, which bid being the lowest, was duly acceptéd and the-franchise awarded by ordinance and which franchise the company accepted.
    3. Franchise Relates Back to its Acceptance After Publication.
    A street railway company cannot accept a franchise as soon as it is granted by council, and afterward relieve itself of all obligation thereunder,. on the ground that the franchise at the time of such acceptance had not been published and gone into effect. The franchise upon going into effect after its legal publication will relate back to the time it was accepted.
    4. Deposit of Check by Street Railway Company Supported by Consideration, When.
    The deposit of a certified check by a railway company with a municipal corporation as a guaranty of its good faith and as a condition required by the municipality to secure a bid made by it for the construction of a street railway through the streets, is not without consideration, in that the municipality gave nothing to the railway company and the company agreed to carry passengers within the municipality free of charge, when it appears that the company desiring a franchise through the municipality, in order to complete its road from terminus to terminus, applied ■for a franchise and in consequence thereof the municipality advertised for bids to construct a street railroad through it, agreeing to grant a franchise to the lowest bidder, that the company submitted its bid, which being the lowest was accepted and the franchise granted, whereby it was given eleven months within which to build its road, which franchise was-accepted by the company.
    6. Deposited Security When Liquidated Damages or Penalty.
    Under the general rule that forfeitures are not favored, a deposit made or bond given to secure the faithful performance of an obligation will be regarded as a penalty and held to be a security for such performance or to secure damages arising from a breach which the party may suffer and prove, rather than liquidated damages or a forfeit', to be .lost; absolutely in case of a violation of the contract; hut where the circumstances are-such, and the contract secured is of such a character that proof of damages-in case of a breach would be practically impossible, it will be held to bei liquidated damages and the contract strictly enforced.
    6. Check Deposited to Secure Municipal Feanchise Held to be Liquidate»Damages.
    A certified check deposited as required by resolution of the council and the-advertisement for bids, by a street railway company with a municipal corporation as a guaranty of its good faith and as a security for a bid for a franchise in the streets for the purpose of constructing and operating, a railroad, which check was to be kept on deposit as a security that the company will carry out all the conditions of the franchise and complete the road within eleven months, and it is provided by the franchise ordinance which was accepted 'by the company, that the check should become the property of the municipality unless the conditions of the franchise were complied with, will be held to be liquidated damages and not. in the nature of a penalty, and will be forfeited absolutely to the municipality if the company fails to commence the road within eleven months; or carry out any of the terms of the franchise, but entirely abandons the enterprise.
    ERROR to Lucas common pleas court.
    King & Tracy, for plaintiff in error.
    Smith & Beckwith, for defendants in error.
   HULL, J.

This action Was brought in the court below by the village of Water-ville against the Northern National Bank of Toledo, Ohio, and after-wards William R. Hattersly, the plaintiff in error, was also made a party defendant. The action was brought on a certified check for $2,500, drawn by C. E. Sutton in favor of said William R. Hattersly and afterwards endorsed by him to the village of Waterville. The check was deposited by the Toledo, Defiance & Napoleon Railroad Company with the village of Waterville to secure the carrying out of a bid and guarantee of good faith of such company, which proposed to and did bid upon a franchise for the construction of a street railroad through the village of Waterville. The bid of the railroad company was accepted by the village of Waterville, it offering to carry passengers through the said village free, and the franchise awarded to it. By the terms of the franchise many things were required, as is usually the case, and among other things that the construction of the street railroad should be commenced as soon as practicable and completed within eleven months. The franchise further provided that if the conditions of the franchise were not complied with, the railroad not commenced as soon as practicable and finished within eleven months, unless delayed by legal proceedings commenced in good faith, and the other conditions, this check, then on deposit with the village, should become the property absolutely of the village. In short, that unless the conditions of the franchise were carried out, the certified check then on deposit should be forfeited to the village of Waterville. This franchise was accepted by the street railway company by C. E. Sutton, its president, he being the same C. E. Sutton who signed the check in question (Sutton being the president, and Hattersly the treasurer of the company, and they seem to have been acting for the company in all these matters). The check was loaned to the company to be used in furthering this enterprise, or •at least in securing the bid and as a guarantee of good faith; such a check or that amount in money being required by the resolution passed by the council of the village to be deposited with the bid. .

Hattersly and A. K. Detwiler had filed their applications with the village prior to the bid for the franchise and permission to construct a street railroad, and pursuant to that, bids were advertised for, and, as I have said, the Toledo, Defiance & Napoleon Railroad Company filed- a bid, and by it agreed to carry passengers free. The franchise was given to them, as there was no lower bid than this, and could not have been.

Hut after securing the franchise, instead of carrying out the provisions of the ordinance by which it was granted, they violated all of them and did nothing toward the construction of the street railroad, and at the end of the eleven months provided for, the -enterprise was abandoned and the village was left, and apparently is still left, without a street railroad. After the eleven months had gone by, the check was presented to the bank for payment. Meanwhile Sutton had notified the bank not to pay it. He claimed that the money in the bank belonged to him, and the bank refused to pay it. Soon after that, this action was commenced by the village against the bank to collect the certified check; and Hattersly also came in as defendant and claimed to be the real owner <of the money. A jury was waived in the common pleas court, and the ease tried to the court and judgment given the village for the $2,500, with interest, and this judgment is sought to be reversed here.

Various defenses and objections are made by the bank and Hattersly against the payment of this check. I will take up the claims in order and discuss them very briefly. It is claimed first, that the street railroad ■statutes of this state are unconstitutional; that is, the statutes regulating the construction of street railroads in municipalities and permitting municipalities to advertise for bids and controlling the proceedings incident thereto; and that therefore this contract, if it was a contract between the village of Waterville and the railroad company, was void, because based upon unconstitutional statutes. It is claimed that they are unconstitutional for the reason that they are special legislation and in violation of Sec. 26, Art. 2 of the constitution of the states which provides against special legislation, and that all laws of a general nature should have uniform application throughout the state. The sections especially involved here are Secs. 2501, 2502, 3437, 3438, 3439 Rev. Stat. It is said that all of these really constitute one act and should be considered together. That perhaps is true and Secs. 2502 and 3438 Rev. Stat. are in some degree special in this, that certain cities are excepted from their provisions. It is urged that these acts are, therefore, under recent decisions of the Supreme Court, unconstitutional and void; and it is possible that they do form a part of the great number of unconstitutional laws that are in the statute boohs.

But we shall not now determine whether these street railroad statutes are unconstitutional or not. In our judgment it is one of the powers of a municipal corporation, regardless of these statutes, to permit and regulate the construction and operation of street railroads through its streets. A street railway, as has been said many times, is only another mode of conveyance; it is a convenience for the public like an omnibus line oi* hack line or automobile line or many other means of conveyance that are used. One of the powers of a municipal corporation and the power conferred upon it by the general laws, is, we think, to regulate matters of that kind in its streets. It is one of the general powers of a municipal corporation, and without these statutes, municipalities would have the power to permit a company to construct, maintain and operate a street railroad upon such reasonable conditions and terms as the municipality might fix; and that they might, by virtue of such power, regulate the making of bids by a company or person for the privilege of transporting passengers through its streets. These statutes restrict in some measure and regulate this power of the municipal corporation.

But here was a contract made fairly between these parties, after’ bids were advertised for upon certain conditions to build a street railroad in a street of the village which offered to grant a franchise to the lowest bidder. This company bid upon these conditions, and, knowing what the conditions were, it agreed to accept the franchise if it was awarded to it; and the city having examined the bids, awarded the franchise to this company by passing an ordinance, and the company accepted it and this makes a contract between the two parties. There is nothing in it against public policy, no reason, so far as we can see why such a contract should be declared void, or why it should need legislation to permit a municipal corporation to make such an arrangement or contract with a company or with an individual; and without discussing the constitutional question, we hold that this objection to this contract cannot be sustained. We do not mean to hold or intimate that these statutes are unconstitutional, for we have not determined that question, nor considered it.

It is said that there was no consideration for the deposit of this check; that the village gave nothing to the railroad company and the railroad company agreed to carry passengers for nothing, that therefore this arrangement was void, for want of consideration. We think this is untenable. It was said in argument (it does not appear in the record-), that this strip of road through the village was only a link or section in a street railroad proposed to be built from Toledo to Napoleon and Defiance. That may be true. But the company was interested in getting a franchise through the village that it might construct its road from terminus to terminus; it applied to the village, or Mr. Hattersly did, for the privilege of constructing the road; the villáge advertised for bids and pursuant to that, this bid was made, and the franchise ordinance was passed; and it might be a very valuable thing for the street railroad company to have permission to build a road through this street and it may be very prejudicial to the village that it was not built. Wherefore, we are of the opinion that the claim that the contract was void, because without consideration, cannot be sustained.

It is said that the village has lost nothing; that it might have permitted another corporation to build and operate a railroad through its streets. But it had granted the franchise to this company, had given it eleven months within, which to build its road, and meanwhile, in the exercise of good business judgment, the council would hardly grant a franchise to another street railroad company to lay its tracks over the streets and encumber this village street with two street railroad tracks running parallel with each other. The village has lost something by reason of the conduct of the railroad company in this breach of contract. It has lost the street railroad which the company agreed to give it; it has lost the privilege and convenience of transportation, which the company had agreed to give it free. It may be true the village has no property in the streets, as is argued, but it has the right under these statutes, or without them, in our judgment, to contract for means of transportation through its streets. The streets of the village are under the general con■trol of the council; certain duties are imposed upon them in regard to their care. While they have no property interest in them, they have the right to use them, to grant permission to use them in the interests of the people and for their convenience. That is what the streets are for.

It is urged further, that this contract is void for the reason that .at the time this ordinance was accepted, it had not gone into effect, because it had not at that time been published. "We think this objection ■cannot be sustained. It was afterwards published as required by law; •and when it went into full effect by reason of publication, that would relate back to the time that the ordinance was accepted. The street railroad company could not accept a franchise as soon as it was passed by the council and then relieve itself of all obligation under it on the .ground that at the time it was accepted, the franchise ordinance had not .yet been published and gone into effect. After the ordinance went into effect by publication, the acceptance still remained on file; no effort was made by the company to withdraw it, and no claim of that kind was made; and it remained on file for the full period of eleven months provided for by the resolution and by the ordinance afterwards passed .granting the franchise.

But it is urged further, and this claim is pressed with more force .perhaps, and more zealously than any of the others, that the $2,500 check required to be deposited by the resolution of the council as a .guarantee of good faith and to secure this bid and afterwards required to be kept on deposit to secure the carrying out of the franchise and ordinance, should not be considered and held to be stipulated or liquidated damages, but in the nature of a penalty; and that the village should not be permitted in any event to receive more than the damages actually suffered, by reason of the breach of the contract on the part of the railroad company. No evidence was offered on the trial of the case, of any damage to the village, or to any of its citizens, the court below sustaining the contention of plaintiff that the check for $2,500 was stipulated damages.

It is urged by plaintiff in error that the general doctrines of the courts is, that a deposit of that kind, or a contract of that kind, or a bond of that character will be held to be a penalty, rather than stipulated damages; will be held to be given as security for the carrying out of the contract, or secured for the payment of damages which a party may suffer and which are to be proved, and not as a forfeit to' be lost absolutely in case of a violation of the contract. A number of cases have been cited by counsel on both sides; each ease depends largely upon the facts in that particular ease. The general rule is that courts do not favor forfeitures, and that unless it clearly appears that it was the intention of the parties that the sum mentioned should be regarded as liquidated or stipulated damages, courts are inclined to hold the amount of the deposits, or tbe amount of the bond to be a penalty to secure the amount of the actual damages, rather than as stipulated damages. But where the circumstances are such, where the contract to be secured is of such a character that it would be practically impossible to prove the amount of damages, to prove what damages, if any have been sustained, the courts hold that where parties agree that a certain amount shall be held as a forfeit or stipulated or liquidated damages, that such a contract will be enforced to its letter. There are many kinds of contracts, where the amount of damage suffered by a breach thereof, will be almost impossible to prove; such contracts as where parties agree not to engage in a business or profession for a certain period of time may be given as examples. It is urged by counsel for defendant in error that this contract here provides for stipulated damages and thus it should be so held.

In order that we may see just what the contract was, I will read a few lines from the resolution of the village, calling for bids:

“That for the purpose of securing good faith on the part of those filing bids for the said franchise, each and every bid shall be accompanied with a deposit of $2,500 in cash or a certified check on some national bank in Lucas county, Ohio, that if the franchise is awarded to, and accepted by said bidder, that said bidder will parry out the terms and conditions of said grant, and will commence the construction of said road without unnecessary delay and complete the same within eleven months from the date of the passage of the ordinance granting said franchise not counting the time delayed by compulsory legal proceedings instituted in good faith.”

It will be noticed that it is to bé a deposit to secure good faith that if the franchise is awarded to and accepted by the bidder, that the bidder will carry out the terms and conditions of the grant and ordinance and complete the road within eleven months, etc. Pursuant to that resolution, an advertisement for bids was published, and, as I have said, this bid was made (the bid by this railroad company), upon and under the conditions stated in this resolution, and the check in question was deposited, being drawn by the president of the railroad company in favor of the treasurer of the company and endorsed by him to the village by this endorsement:

“Pay to the order of the village of Waterville, eleven months after the awarding to and the acceptance by the Toledo, Napoleon & Defiance-Eailroad Company, of a franchise given by the council of Waterville, Ohio, and granting to said company the right to construct, operate and maintain an electric street railroad, under a bid dated and filed January-28, 1901, witb tbe council of Waterville, and tbe written acceptance of said franchise by said company, and subject to tbe terms of a resolution passed and published, notice thereof authorized by said council, on January 3, 1901, relating to said bid and the terms thereof.
(Signed) “William E. Hattersly.”

The resolution referred to being the one from which I have read, and with this endorsement upon it, this check having been certified by the bank, was deposited with the village to secure this bid, and an ordinance granting the franchise wás afterwards passed and was accepted by the company. The ordinance was passed February 5, 1901, and was immediately accepted. It contains this language •

“Provided further, if said, The Toledo, Napoleon & Defiance Eail-road Company, its successors or assigns shall accept the terms and conditions of this ordinance as herein provided, then the certified check for twenty-five hundred dollars ($2,500) now in the hands of the village clerk as a guaranty of good faith shall remain with him or his successors in office until eleven months from the date of the passage of this ordinance, and if said The Toledo, Napoleon & Defiance Eailroad Company, its successors and assigns, at said time shall have completed said railroad and shall have carried out upon its part the terms and conditions of this ordinance, then said check shall be returned to the Toledo, Napoleon & Defiance Eailroad Company; otherwise the same shall become and be the property of the village of Waterville, Ohio.”

This ordinance was accepted, as I have said, by the railroad company, through said C. E. Sutton, its president. There are many other requirements and conditions in the ordinance in regard to building and operating of the street railroad that it is said this check also secured the carrying out of, and, according to the strict terms of the ordinance, that is true.

The question is whether this check shall be held to be liquidated or stipulated damages, or whether the village shall be required to bring an action for actual damages, if it can maintain such an action, and the check only held to secure the amount of damages which the village can prove it has actually suffered.

In our judgment this check'should be held to be stipulated damages and not as a penalty or as a security for damages proven. We think it was the intention of the parties, at least, that it was clearly the understanding of the village and it was known by the other parties that the village so understood it. It is a ease peculiarly for the rule of stipulated damages; there are authorities that hold that a municipal corporation cannot maintain an action for damages upon such a contract as this, unless they are stipulated. The damages in this case are remote and in a measure speculative and it would be difficult, if not impossible, to prove what the damage was to the village or its inhabitants for the failure of the railroad company to build the road through its streets; nor could any citizen be able to show what the damage had been to him or his property; and this being true, it is a case where the parties should be permitted to agree upon a stipulated amount in advance as the damages in case the contract is not carried out.

I shall not undertake to cite very many authorities upon this question. A large number were cited by counsel upon both sides. It does not seem to us that it is a harsh rule to require the railroad company to ■comply with this contract. Application was made to the village to construct this street railroad. A proper resolution was passed by the village council and an advertisement published asking ’for bids upon certain conditions, and one of the conditions was a deposit of cash or certified cheek in this amount to secure the bid and the carrying out of a franchise ordinance, and any person or corporation who bid knew exactly what the conditions were. No one was required to bid or compelled to build a street railroad through this village. If anyone desired to avail himself of the opportunity to construct a railroad there, the way was ■open for him to bid upon the conditions named in this resolution, and availing himself of that opportunity, this bid was made and the deposit •of this check was made by the company according to this resolution, as a guarantee of good faith and to secure the carrying out of the bid and the' •conditions and requirements of the franchise ordinance thereafter to be passed.

It is said there are many other conditions in this ordinance, some of them trivial in character, which, upon the face of the ordinance are also secured by the deposit of this check, such as the method of laying the track, filling in between the rails, building cross walks, painting poles, putting up wires and many other requirements, and that it would be unconscionable and inequitable to require a forfeiture of this amount for a breach of any one of them. And it is not likely that a court of equity would declare a forfeiture of $2,500 for a breach of one of these minor requirements of this ordinance, but equity would relieve against it. It would be inequitable and unconscionable to require a forfeiture of such an amount of money in all these instances; and if in each case the amount of damage could be readily ascertained it might be a serious objection to holding this to be liquidated or stipulated damages. The Supreme Court said in the ease of Berry v. Wisdom, 3 Ohio St. 241, 244:

“When the agreement is for the performance of several things, and a gross sum is made payable upon a breach of the contract, and some of the things to be performed are of less importance than others, and the damages sustained could be easily ascertained, the'presumption would be that the gross sum was not intended to be liquidated damages.”

But we think this is not that kind of a case; the breach of this contract is not a case where the damages could be easily ascertained; but is a case where it would be practically impossible to ascertain the damages, and perhaps a ease where no damages at all could be recovered, and yet, where we can ^ee that the village, as such, has suffered substantial damages by reason of the railroad company failing to build this railroad as it agreed to do, and to carry passengers as it agreed to through its streets free of charge. This bid being on file and the period of eleven months being given, all other persons or corporations were blocked, practically so at least, from building or offering to build a street railroad through this village. It does not seem to us that it would be a salutary rule of law, a healthy doctrine to hold that a company can bid to construct a street railroad thrbugh a municipality as was done here, and offer to carry passengers free and then disregard and violate its contract, do nothing for a period of nearly a year, thus keeping out other companies or individuals absolutely, and then wholly abandon the enterprise and be practically immune from all damages. We can readily see how there might be a purpose with companies or persons to put in sham bids, to keep others from constructing' street railroads, and we do not think the law ought to be such as to sustain conduct of that kind. This is not saying that that is true in this case, but that it might be done. In many cases of this character the courts have construed contracts similar to this to be for stipulated damages.

In the case of Brooks v. Wichita, 114 Fed. Rep. 297, the court say on page 299:

“For this reason it is common for municipal corporations, in making contracts of this character, to stipulate for the payment of a fixed sum as liquidated damages in ease the public utility is not constructed and put in operation within the time limited by the contract (citing cases). This is the only method by which the city can obtain .anything like an adequate compensation for the loss and damage sustained by the public by the breach of such a contract. The sum forfeited as liquidated damages goes into the treasury, and inures to the benefit of the public.”

In the case of Peekskill, S. C. & M. Ry. Co. v. Peekskill (Vil.), 47 N. Y. Supp. 305, affirmed without report in Peekskill, S. C. & M. Ry. Co. v. Peekskill (Vil.), 165 N. Y. 628 [59 N. E. Rep. 1128], the Tillage granted a franchise to the railroad company to construct a street railroad through its streets. Among other conditions, it was pro-Tided that in the event of failure of the company to construct and operate its road within one year, the sum of $10,000, which it was required tO' deposit with the treasurer of the village as a guaranty of good faith, should immediately “be and become absolutely the property of the village-of Peekskill, for its uses and purposes as liquidated damages for said failure and not by way of penalty. The company never built its road and thereafter sought to recover its said deposit from the village. The-court said, page 306:

“It may be that, at the time when this corporation asked for and obtained the grant, others stood ready to furnish what the village was desirous of obtaining. The village has no railroad and is therefore damaged. How much it is damaged may not be, and probably is not, susceptible of proof. It may be damaged in a very large sum, and yet under any legal rule it would be quite difficult, if not impossible to prove its damage. By the terms of the contract the village evidently had in mind three things which it wished certainly to provide for: First, to> compel a deposit by the plaintiff as a guaranty of good faith; second, to-provide a fund to protect itself from any damage it might sustain by the construction of the road, in the interference with and tearing up of its streets; third, for such damages as it might sustain by a failure to construct the road. As the difficulty of legally establishing its damages under the last two heads would be attended with great embarrassment, and under the last nearly impossible, we think it was the intent of the defendant, fairly to be gathered from the contract and the surrounding circumstances, to contra,ct for this sum as liquidated damages, and not as a penalty.”

In the case of Salem (City) v. Anson, 40 Ore. 339 [67 Pac. Rep. 190; 56 L. R. A. 169; 91 Am. St. Rep. 485], the court said:

“2. Where in granting an electric light franchise, a city requires the grantee to furnish bond in a specified sum that the plant shall be completed and in operation by a specified date, and the grantee accepts the terms and furnishes the bond, such sum should be construed as liquidated damages, and may be recovered without alleging or showing any actual damage.”

The case of Nilson v. Jonesboro, 57 Ark. 168 [20 S. W. Rep. 1093], is also in point. The syllabus is as follows:

‘ ‘ 1. By a clause in a contract for the building of a street railway in plaintiff town, defendants, in default of its construction within a certain time, agreed ‘to forfeit and pay’ the sum of $500 to plaintiff: Held, an agreement to pay liquidated damages.
" 2. By a clause in a contract for the building of a street railway in plaintiff town, defendants, in default of the construction of the railway within a certain time, agreed to ‘forfeit and pay’ the sum of $500 to plaintiff. By another clause defendants, as an earnest of good faith on their part to build the railway, agreed to deposit a bond for $500 with plaintiff: Held, that the giving of the bond, though penal in its nature, would not affect a construction of the former clause as an agreement to pay liquidated damages. ’ ’

We think these cases state the law correctly and lay down the general law of the land upon this question, and the rule laid down is a salutary one. It is plain, simple and easily understood by all men, and such a rule, if in force, affords a municipality some protection against sham bids and enables it to recover substantial damages for the violation and breach of such a contract as this. . To send the village of .Waterville to an action for actual damages to be proven upon a trial would be to practically deny all relief in this case. We do not think any rule, either of law, or equity requires this.

We are of the opinion that the judgment of the court of common pleas was correct and therefore it will be affirmed.

Haynes, J., concurs; Parker, J., dissents.


source: Caselaw Access Project

author: JELKE, J.

license: Public Domain

text:
    PRINCIPAL AND SURETY — OFFICE AND OFFICERS.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen, Jelke and Swing, JJ.
    State of Ohio, for use of, etc. v. Frank Cottle, Admr., et al.
    Sureties on Official Bond not Liable for Money Received by Principal not T® Colore Officii. . '*
    The sureties on the bond of a school official are not liable for money received by their principal not colore officii, but by virtue of a rule adopted by the board of education without authority and contrary to law; nor does the failure of such official to order the person who paid him the money to pay if to the officer entitled to receive it, constitute a breach of his official bond such as will render his sureties thereon liable, when the loss was caused not by such failure, but by reason of their principal unlawfully appropriating the-money to his own use after it had improperly come into his hands, together with the confusion created by the unlawful rule referred to.
    Error to Hamilton common pleas court.
    Chas. J. Hunt and M. R. Waite, for plaintiff in error.
    Frank F. Dinsmore and Harrison & Aston, for defendant in error.
   JELKE, J.

The rule adopted by the board of education on May 31, 1887, was without authority and contrary to law. Hence it was beyond the pale of George R. Griffiths’ bffieial duties to receive the money as alleged in the petition. We do not think this is a case of acts done colore officii because there were no other similar acts pertaining to his-office prescribed by law.

It is different in this respect from levies made by constables and sheriffs on strangers’ goods.

The contention made by Mr. Waite that there was a breach of duty in failing to order the person paying the money to pay the same to the treasurer, is entitled to some weight. There are two objections to this: First, there was confusion created by the unlawful rule of May 31, 1887, made by the board, the relator herein; and, second, this did not cause the loss; the loss was made by Griffiths unlawfully appropriating the money to his own use after it'had improperly come into his hands.

Applying the principles strictissimi juris shielding sureties we think the court below did right in sustaining the demurrer to the third amended petition against said sureties.

Judgment affirmed.

Swing and Giffen, JJ., concur.


author: HALE, J.

text:
    HOMESTEADS — EXEMPTIONS.
    [Lorain (8th) Circuit Court,
    April 29, 1904.]
    Hale, Marvin and Winch, JJ.
    C. E. Campbell v. Thomas Benningon.
    1. Section 5438 Rev. Stat. Applies Only to Homesteads in Ohio Occupied by Persons Living Here.
    Section 5438 Rev. Stat., providing for the exemption of a homestead not exceeding $1,000 in value to the execution debtor, applies only to a homestead situated within Ohio, and which is occupied by persons living in the state.
    2. Section 5441 Rev. Stat. not Applicable to Nonresidents.
    A nonresident of Ohio is not entitled to select and have set off to him $500 in lieu of a homestead under Sec. 5441 Rev. Stat. The exemption is created only in favor of residents of the state.
    ERROR to Lorain common pleas court.
    Fritz Rudin, for plaintiff in error:
    Tbe right to claim the benefit of the exemption laws should be considered a “privilege or immunity,” within the meaning of Sec. 2, Art. 4, and the fourteenth amendment to the federal constitution. See Jacoby v. Dotson, 7 Dee. 412 (5 N. P. 282) ; Sproul v. McCoy, 26 Ohio St. 577; Mack v. Degraff & R. Quarries, 57 Ohio St. 463, 482 [49 N. E. Rep. 697; 63 Am. St. Rep. 729].
    The phrase, “resident of Ohio,” as used in Sec. 5441 Rev. Stat., should be construed as qualifying the clause, “any minor child or children of a deceased relative” immediately preceding.
    Metcalf & Cinniger, for defendant in error.
   HALE, J.

(Orally.)

The action was commenced before a justice of the peace and appealed to the court of common pleas, and the only question made in the case is, whether a motion to discharge and dissolve an attachment which had been issued in the case, was wrongfully overruled by the trial court, for-the reason that the property attached was exempt from execution.

The facts upon which the motion was submitted were agreed to,, from which it appears that the defendant was a nonresident of the state. The question made is, whether there was exempt to him in lieu of a homestead $500.

Section 5438 Rev. Stat. provides for the exemption of a homestead to-the execution debtor in the sum of $1,000. That can only mean a homestead situated within the state, to be occupied by the person living in the state.

Section 5441 Rev. Stat. exempts from execution, property of the value of $500 in lieu of a homestead. The judgment debtor having no homestead, there is exempt to him in lieu of such homestead property of the value of $500, and under that clause this nonresident claims this exemption. The court below ruled that he was not entitled to it. It ruled correctly. The exemption provided for by Sec. 5441 Rev. Stat., in lieu of a homestead has no application to controversies with nonresidents. Its benefits are limited to residents of this state, and the judgment of the court of common pleas is affirmed.

.Marvin and Winch, JJ„ concur.


author: WINCH, J.

text:
    OFFICE AND OFFICERS — SCHOOLS.
    [Cuyahoga (8th) Circuit Court,
    May 16, 1904.]
    Hale, Marvin and Winch, JJ.
    State ex rel. Meyers v. John Coon, Jr.
    1. “Public Officer” Defined.
    An individual upon whom is devolved the performance of independent statutory duties which, to a certain extent, involve the exercise of part of i the sovereignty of the state, although subject to the direction and control of a statutory board, is a “public officer.”
    2. Clerk of Board of Education Officer Within Meaning of New School Code and Sec. 8 Rev. Stat.
    A clerk of the board of education, duly elected and qualified under Sec. 3899-3 Rev. Stat. (92 O. L. 490), is an officer within the meaning of 97 O. L. 379, Sec. 3 (new school code) .which provides that “all existing officers of boards of education and school councils shall hold their respective offices until boards of education are elected and organized under the provisions of said act,” and of Sec. 8 Rev. Stat., which provides that “any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified” * * * ; and where the new school code became a law while such clerk was holding over his term by reason of the neglect of the school council to elect his successor, there was no vacancy in the office which the old board had authority to fill; and, in such event, the ©Id clerk is entitled, as against a new clerk whom the school council attempted to elect after the new school code became law, to continue in office until a new board of education is elected and organized under the new school code.
    Quo Warranto.
    M. B. & H. H. Johnson, for plaintiff:
    ' The clerk of tbe board of education is a public officer elected for the term of two years, and is “a person holding an office or public trust,” and under the provisions of Sec. 8 Rev. Stat., continues in office until his successor is elected and qualified; he is one of the officers in such -office under the provisions of said See. 3 of the new school code. By his election under Sec. 3899-3 Rev. Stat., he is clerk of the board of education, and not a mere employe or agent of the board holding the position, at the will of board. The statute fixes his term and specifies his duties. State v. Meyers, 56 Ohio St. 340 [47 N. E. Rep. 138]; State v. Brennan, 49 Ohio St. 33 [29 N. E. Rep. 593]; State v. Anderson, 45 Ohio St. 196 [12 N. E. Rep. 656]; State v. Wilson, 29 Ohio St. 347; State v. Jennings, 57 Ohio St. 415 [49 N. J3. Rep. 404; 63 Am. St. Rep. 723]; State v. Kennon, 7 Ohio St. 546; Mechem, Pub. Off. Sec. 1.
    N. D. Baker, for defendant.
   WINCH, J.

This in an action in quo warranto brought to determine whether relator or defendant is entitled to act as clerk of the board of education in the city of Cleveland.

It appears that on the third Monday of April, 1902, the relator was duly elected and qualified and entered upon his duties as such clerk, under See. 3899-3 Rev. Stat., which provides among other things, that:-

“On the third Monday in April, 1896, and biennially thereafter, the school council shall elect a clerk who shall not be a member of said! council, and who shall be clerk of the board of education. He shall receive a salary to be fixed by the council, which shall not exceed $2,000’ per year.”

On the third Monday in April, 1904, the council neglected to elect a clerk; but on the following Monday night, April 25, 1904, at 7:30 p. M., the council undertook to elect the defendant clerk of the board 'of education.

Meanwhile the new school code was passed by the legislature and was signed by the governor, April 25, 1904, at 4:30 p. m., some three hours before the election of the defendant as clerk. This new school code repeals said section under which said relator had been elected but provides that:

“All existing officers of boards of education and school councils shall hold their respective offices until boards of education are elected and organized under the provisions of this act, but no officer elected or appointed to fill a vacancy occurring in any such office, shall be appointed to serve a longer term than that ending on the thirty-first day of August 1905.”

As the new school code, under the recent amendment of Sec. 16, Art. 11 of the constitution, 95 O. L. 962, became a law upon the governor’s signing it, it is apparent that the school council had no authority to elect the defendant clerk of the board of education, unless said clerk is not an officer within the purview of the provisions of the school code last quoted, and of Sec. 8 Rev. Stat., which reads as follows:

“Any person holding an office or public trust shall continue therein until his successor is elected or appointed and qualified, unless it is otherwise provided in the constitution or laws.”

In other words, relator claims that on therthird Monday of April, 1902, he was elected to the office of clerk of the board of education for two years, at the expiration of which time, no successor having been elected, he continued in office until the new school code took effect and that by its provisions he is continued in office until a new board of education is elected and organized under it.

The sole question for determination in this case is, therefore, . whether the relator is a public officer or occupies a mere clerical position subject to removal at any time by the school council.

Mechem, Pub. Off. See. 1, gives the following definition:

“A public office is the right, authority and duty created and conferred by law, by which for a given period, either fixed by law, or ending at the pleasure of the creating power, an individual is invested with some part of the sovereign functions of the government to be exercised by him for the benefit of the public. The individual so invested is a public officer.”

In 23 Am. & Eng. Law (2 ed.) 322, under title “Public Officers, ” it is said:

“A public officer is an individual who has been appointed or elected in the manner prescribed by law, * * * and who exercises the function concerning the public assigned to him by law.
‘ ‘ There are numerous criteria which are not in themselves conclusive, yet which aid in determining whether a person is an officer and whether his employment is an office. Thus, a public officer is usually required to take an oath, and frequently has to give bond. Usually an officer is entitled to a salary or fees, but this is not necessary. The term ‘office’ also embraces the ideas of tenure and duration or continuance. Generally speaking, one of the requisites of an office is that it must be created by a constitutional provision, or it must be authorized by some statute. Official or unofficial character is to be determined not by the presence or absence of an official designation, but by the nature of the functions to be performed. Designation by the law as an officer is, however, of some significance. ’ ’

Consonant with these definitions are the following Ohio cases: State v. Kennon, 7 Ohio St. 546; State v. Wilson, 29 Ohio St. 347; State v. Anderson, 45 Ohio St. 196 [12 N. E. Rep. 656]; State v. Brennan, 49 Ohio St. 33 [29 N. E. Rep. 593]; State v. Meyers, 56 Ohio St. 34C [47 N. E. Rep. 138]; State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am. St. Rep. 723].

Let us examine the sections of the statutes which provide for the election of a clerk and his duties, in order that we may determine whether he is an officer, as above defined.

We have already seen that the clerk is to be elected biennially and to receive compensation “per year.” Section 3899-3 Rev. Stat. This indicates that the clerk’s term of office is fixed at two years.

He has certain duties prescribed by statute. He is tbe custodian of tbe school director’s bond. Section 3899-8 Rev. Stat. Certain claims must be approved by him. Section 3899-12 Rev. Sfat. He must give notice of appropriations to tbe auditor and treasurer. Section 3899-14 Rev. Stat. He is the custodian of tbe auditor’s bond. Section 3899-16 Rev. Stat. Bids. for contracts must be filed with him, publicly read and entered in full upon tbe records of tbe council. Section 3899-21 Rev. Stat.

Tbe above provisions of the statutes are taken from tbe old Cleveland code which has been repealed. Tbe following duties of tbe clerk are provided for in sections of tbe statutes not repealed by tbe new code: '

“All conveyances made by a board of education shall be executed by the president and clerk.” Section 3974 Rev. Stat. Process in suit against a board of education must be served iipon tbe clerk or president. Sections 3976, 4019 Rev. Stat. Tbe clerk is required to take an oath that be will faithfully discharge tbe duties of his office, for Secs. 3979 and 3980 Rev. Stat. must be construed as including tbe clerk. In the enumeration of school children, the clerk is spoken of as an.officer liable to a penalty for falsifying an enumeration. Section 4041 Rev. Stat.

The clerk of the board of education is required to give bond payable to the state of Ohio, conditioned that he will faithfully perform the .duties of his office required of him. Section 4050 Rev. Stat. At the expiration of his term of office, he is required to deliver to his successor all books and papers in his hands relating to the affairs of his district. Section 4054 Rev. Stat. The clerk is held liable on his bond for failure to make return of certain statistics to the county auditor. Section 4061 Rev. Stat.

The new school code re-enacts many provisions as to the duties of the clerk, and adds some new duties; notably, he is now authorized to call special meetings of the board (Sec. 3978 Rev. Stat.), and give notice of all school elections. Sections 3970-11 and 3991 Rev. Stat.

It thus appears that, outside of the mere clerical duties the clerk of the board of education has to perform for it and as directed by it, he has many statutory duties to perform, for the faithful performance of which he must answer to the people. These independent duties involve to a certain extent the exercise of part of the sovereignty of the state, subject to the direction and control of the school council. State v. Jennings, 57 Ohio St. 415 [49 N. E. Rep. 404; 63 Am. St. Rep. 723].

Upon tbe whole we therefore conclude that the relator is a public officer and was occupying the office of clerk of the board of education at the time the new school code took effect; that there was no vacancy in said office at the time the school council undertook to elect the defendant clerk, and that his pretended election is therefore void.

The relief prayed for by the relator is granted.

Hale and Marvin, JJ., concur.


text:
    CONTRACTS — EVIDENCE.
    [Lorain (8th) Circuit Court,
    April 29, 1904.]
    Hale, Marvin and Winch, JJ.
    Peter Kneipper v. Anton Richards et al.
    1. Error to Exclude Evidence Tending to Establish Terms of Incomplete Memorandum: Agreement. )

    In an action for breach of contract, where the petition does not allege a written agreement complete in itself, but a memorandum agreement, incomplete and ambiguous when unexplained and standing alone, made and signed by the plaintiff and one of the defendants, is attached to the petition and offered in evidence, it is error for the court to exclude evidence tending to prove that the parties did enter into a contract and fully . agreed upon its terms as specified in the petition, and what those terms were. Likewise, evidence offered by plaintiff to prove that he was ready and willing to perform his part of the contract and did not do so beause he was notified by defendant that he would not be permitted to do so, should not be excluded.
    2. Measure of Damages.
    The measure of damages for breach of contract fór work and labor is not how much plaintiff would have made if he had been allowed to perform his part of the contract which otherwise he was not able to make.
    3. Court Should not Dibect Verdict Because of Failure of Evidence, When.
    Where plaintiff has been deprived of testimony to which he was entitled and without which he could not make his case, the court is not authorized to direct a verdict for defendant solely upon the ground that no legitimate evidence of the damages alleged to have been sustained by the plaintiff had been offered.
    Error to Lorain common pleas court.
    Fritz Rudin and Johnston & Leonard, for plaintiff in error:
    Evidence explaining, but not contradicting or varying ambiguous writings, is not within the rule which excludes parol evidencé to contradict or vary a written contract. Goldshede v. Swan, 1 Exeh. 158; McDonald v. Longbottom, 1 Ell. & Ell. 987; Woods, Prac. Ev. 87, 44; Stephens, Evidence 114; 2 Wharton, Civil Ev. Secs. 937, 939, 940, 944; Masters v. Freeman, 17 Ohio St. 323, 329; Boggs v. Taylor, 26 Ohio St. 604.
    Informal memoranda are not within the rule. Wharton, Evidence Sec. 920; Underhill, Evidence Sec. 209.
    Incomplete contracts are not within the rule. Woods, Prac. Ev. 37, 56, 58, 63; Wharton, Evidence Sec. 920; 2 Parsons, Contracts (9 ed.) 66, 67, 553; 1 Greenleaf, Evidence (15 ed.) Secs. 275, 282; Taylor v. Galland, 3 Greene (la.) 17; Platt v. Scribner, 9 Oirc. Dec. 771, 775, 776 (18 R. 452); Hadley v. Importing Co. 13 Ohio St. 502, 503 [82 Am. Dec. 454],
    Thompson & Glitsch, for defendants in error:
    Parol evidence to affect that which is written. Nye v. Denny, 18 Ohio St. 246, 247 [98 Am. Dee. 118] ; Johnson v. Pierce, 16 Ohio St, 472; Ormsbee v. Machir, 20 Ohio St. 295; Holzworth v. Koch, 26 Ohio St. 33; Cummings v. Kent, 44 Ohio St. 92 [4 N. E. Rep. 710; 58 Am. Rep. 796]; Robinson v. Bank, 44 Ohio St. 441 [8 N. E. Rep. 583; 58 Am. Rep. 829]; Farr v. Ricker, 46 Ohio St. 265 [21 N. E. Rep. 354] ; Beecher v. Dunlap, ■52 Ohio St. 64 [38 N. E. Rep. 795]; Strong v. Schmidt, 7 Circ. Dee. 233 '(13 R. 302) ; Maud v. Maud, 33 Ohio St. 147; Pappenheimer Hardware •Co. v. Wire Co. 8 Re. 657 (9 Bull. 131) ; Elsas v. Meyer, 10 Re. 518 (21 Hull. 346).
    Measure of damages. Doolittle v. McCullough, 12 Ohio St. 360, 365, 368; Pappenheimer Hardware-Co. v. Wire Co. 8 Re. 657 (9 Bull. 131); Beach, Modern Law Contracts Secs. 1720, 1625n; James v. Allen Co. 44 Ohio St. 226 [6 N. E. Rep. 246; 58 Am. Rep. 821] ; Wellston Coal Co. v. Paper Co. 57 Ohio St. 182, 188 [48 N. E. Rep. 888].
   HALE, J.

(Orally.)

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 the 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 eon-structing a certain alteration upon the premises of said defendant, Mary Bichards, 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 and to complete the same within said ninety days. A true copy of a memorandum of said contract, signed by said Anton Bichards 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 presented 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 the sum of $85, for which he asks a judgment.

Separate answers were interposed by the defendants.

Anton Bichard’s 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 Beid to do this work, and Kneipper represented to him that Beid was unskilled in that kind of work and cóuld 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 Kneip-per, 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 Bichards 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 Beid 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 defendants 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 Anton Richards 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 exception 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 you tell what was said between you and Richards in that conversation?” (Objected to by counsel for defendants.)

Counsel for defendants says: “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 tbe contract,' and tbe trouble is, it does not go on and show definitely. I want to show this, that tbe plaintiff agreed to raise that bouse two feet, and excavate and do tbe stone work for a cellar twelve by fourteen, and to do it inside of ninety days; Richards to furnish tbe stone, lime and sand and tbe 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 tbe contract did not show it. Objection sustained by tbe court; counsel for plaintiff then and there excepted.

Tbe court did not permit the plaintiff to show that tbe contract referred to a certain bouse 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. “Tes 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 tell. 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 or no?” (Objected to by counsel for defendants; objection sustained.)

A. “Yes.” (Exception by plaintiff; answer excluded by the court.)

It will be riotieed 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 cannot fix it.

Q. “Was anything said on the subject of who tbe $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 of 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 budding 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 bis contract, to wbicb an objection was interposed and sustained; and tbe 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 the 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 cannot 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. Tim 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 incompetent, because it tended to vary that written contract.. But the court finally held that the written memorandum constituted no contract, and therefore the plaintiff had made no case.

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 ease 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 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.

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 henc« 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.

Marvin and Winch, JJ., concur.


author: McCARTY, J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Summit (8th) Circuit Court,
    April Term, 1904.]
    Hale, Marvin and McCarty, JJ.
    (Judge McCarty, of the Fifth Circuit, sitting in place of Judge Winch, of the Eighth Circuit.)
    David P. Harpham v. Northern Ohio Trac. Co.
    1. PEDESTRIAN BOUND TO LOOK BEFORE CROSSING STREET CAR TRACK.
    A pedestrian, in crossing a street car track, is hound to look for approaching cars, and if, with nothing to obstruct his vision for several hundred feet in the direction of an approaching car, he fails to look when he should have looked and is injured, he is guilty of such contributory negligence as will defeat recovery, even though the defendant street railway company also, through its servants, was guilty of negligence, if the negligence of the latter was not wilful and wanton.

      % Not Error to Instruct for Defendant When Contrirutorv Negligence is Apparent from Plaintiff’s Testimony.
    In an action for injuries occasioned by the alleged negligence of a street railway Company, where it appears that plaintiff was familiar with the situation where the injuries complained of were received; that he knew defendant’s cars ran at that time of day every four or five minutes; that h,e knew one was liable to come along at any time; that bad be looked he could have avoided the danger, and from his own testimony it is shown that he did not so look, it was not error for the court to direct the jury to-bring in a verdict for the defendant.
    EeroR to Summit common pleas court.
    Grant & Sieber, for plaintiff in error.
    Rogers, Rowley, Bradley & Rockwell, for defendant in error.
   McCARTY, J.

This cause comes into this court on a petition in error to reverse the judgment of the court of common pleas for alleged error occurring in the trial of this case in that court. The action was to recover damages for the alleged negligence of the defendant below, and defendant in error here. It was tried at the April term of the court in 1903, to a jury. On motion of the defendant^ at the conclusion of the testimony, the jury was instructed to return a verdict for defendant, which it did, to which exceptions were taken. The cause of action stated in the petition below was as follows so far as I need read it herein:

“At the date next hereinafter named the defendant owned and operated a line of street railway in the city of Akron in said county and in and over the various streets and public ways thereof, and which said railway was then and there equipped with tracks, single as to some streets and double as to others, upon and over which tracks the defendant used cars for the carriage of its passengers, propelled by electricity as the motive power thereof. One of the streets so occupied and used by the defendant with its said tracks and ears moving on and over the same, at said date, was East Market street, so-called, upon which at the point next hereinafter named the said defendant used and operated a double tracked railroad for its said purpose.
“At a point on said East Market street two other public streets of said city, to wit, Arlington street and Kent street, come into the same from the north and intersect it at a common center, and at which point there is a sharp descent on said East Market street from west to east.
“Among the cars so owned and operated by the defendant, and propelled as aforesaid, at the date hereinafter named, was car No. 79, which car was at the time provided and equipped with a gong or alarm, by the seasonable and proper use of which the motorman in charge of the running of said ear could warn travelers upon the highways and streets over which the same was run, against danger to be apprehended from coming in contact with said car, and which gong or alarm on said last-named ear, was at the date next hereinafter named under the sole control of the said motorman engaged in running said car.
"Said last-named ear was, at tbe date next herein named, also equipped and provided with an appliance called a fender, which was at the time in like manner under the exclusive control of the motorman then engaged in running said car. Said fender was attached to the forward end of said car, extending across its entire front, and when not needed for the protection of travelers in dangerous proximity to said car, the same was raised and suspended at some distance above the level of the said street car tracks. But the said motorman could at will, and immediately in case of necessity, lower the same to or near the level of said tracks, and thus and thereby could catch or pick up any person who might be on said tracks in front of said car while in motion and hence in danger of being run over by the same, and carry such person safely and keep him from being run over by the wheels of said car, until the same could be stopped and such person rescued from peril.
"It was the duty of said motorman in charge of said car to sound said alarm or gong at all times when travelers upon the streets of said city traversed by said car were, or were likely to be, upon or so near said tracks as to be in danger of coming in contact with said car while in motion, and to be vigilant and watchful to discover and warn such travelers in time to avoid such danger of collision with said car, and to lower the said fender in all cases when the said car was in dangerous proximity to travelers upon said streets so traversed by said tracks, the use of electricity as a motive power in propelling such cars being the use of a highly dangerous agency upon streets and public thoroughfares traveled also by pedestrians, animals and vehicles.
“ On September 25, A. D., 1901, the plaintiff was lawfully upon said Bast Market street, and was then crossing the same from the southerly to the northerly side thereof, at or about the said point of intersection of Arlington and Kent streets with the same. At the same time said car No. 79, propelled as aforesaid, was coming down said hill on Bast Market street from west to east, in charge of the motorman and other agents and servants of said defendant, and equipped with the gong and fender aforesaid.
"At the time the plaintiff was crossing said street, as aforesaid, there were, congregated and moving around a watering trough located on the northerly side of said East Market street, at or near said point of intersection, and in and upon said Bast Market street, immediately in front of and near to the plaintiff at the time, a number of teams, wagons and carts, whereby he was obstructed from hearing the approach of said car No. 79, as it came down said hill, until too late to prevent or avoid its striking bim, as hereinafter set fo'rth, although he was not careless or heedless in that respect, and his not hearing the approach of said car was not owing to any negligence of his.
“The said motorman in charge of the running of said car as aforesaid, had a clear and unobstructed view of the track in front of him at the time, down said hill, for a long way before reaching the point where said car struck this plaintiff, as hereinafter alleged, and to and beyond such point. The plaintiff, without negligence on his part, and in the exercise of due and reasonable care for his own safety in crossing said East Market street, as aforesaid, came upon said track of said defendant in front of said care at the time approaching him, but which he did not see or hear, for the reasons above set forth, in time to prevent his being struck by the same; and said ear in coming down said hill then and thereupon struck this plaintiff and knocked him down upon said tracks, and ran over him with its wheels, whereby his right leg was bruised, crushed, mangled and cut off below the knee, and by reason thereof he was thereafter compelled to have the same amputated above the knee.
' ‘ The said motorman in charge of the running of said car as aforesaid, in the exercise of ordinary care, could have seen, and, the plaintiff says, did see, him (that is to say, this plaintiff, upon the said tracks) in time to warn him by sounding said gong, so that he could have got off from said track, and so have avoided said collision. But wholly neglecting his duty in that respect, the said motorman did not, nor did any other officer or servant of the defendant, sound said gong, or by outcry or otherwise warn or apprise the plaintiff of his dangerous position and proximity to said car at any time, nor did said motorman or any one check the'speed of said car prior to its striking this plaintiff, but unlawfully and negligently ran into and injured him, as above set forth.
“While said car was approaching the plaintiff as' aforesaid, and ever after its collision with him had become inevitable, the said motorman, seeing the plaintiff was upon said track in front of him, had time to lower said fender, and could have lowered it, and thereby could have caught the plaintiff and prevented him from going under the wheels of' said car, whereby the latter could have saved his leg and escaped bodily injury. But the said motorman, knowing the premises, did not then lower said fender, or make any effort to do so, nor did any servant of the defendant, but he and they unlawfully and negligently omitted to lower the same.”

To that petition the defendant filed an answer in which it says it admits it is a corporation organized and doing business as in the petition set out; admits that at or about tbe time and place named in tbe petition plaintiff met with some injury, but as to tbe exact particulars as to the -cause, manner and extent of tbe injury this defendant is not fully advised and therefore cannot admit, but denies each and every allegation in that behalf in tbe petition contained. And further answering defendant denies each and every allegation in the petition contained not here-inbefore expressly admitted, and says that the plaintiff by his own negligence and want of care directly caused or directly contributed to such injuries as he sustained.

The ease was tried upon the issues made in these pleadings on the evidence. The question whether the court was right in instructing the jury to return a verdict for the defendant involves an examination of the facts as disclosed by the record, so that the question is (1), has the plaintiff shown that the defendant was guilty of the negligence charged in the petition, or some part of it; and, (2), was the plaintiff himself free from negligence contributing to the injury?

The situation was this: The defendant company was operating its street car No. 79 on its line in said city of Akron on one of the streets called East Market street, and on said street said defendant used and operated a double tracked railroad for its said purpose; and it.is averred in the petition that said car which the defendant was operating on said street was equipped with a gong and also with an appliance called •a fender, which said gong and fender were under the control of the motorman then engaged in running said car; that on September 25, 1901, the defendant was lawfully upon said Market street, and was then crossing the same from a southerly to the northerly side thereof at or about the point of intersection of Arlington and Kent streets with the same; at the same time said car No. 79 propelled as aforesaid was coming down said hill on said East Market street from west to east and was in charge of the motorman and other agents and servants of the said defendant, and equipped with a gong and fender as aforesaid; at the time plaintiff was crossing said street as aforesaid there were congregated and moving around a watering trough located on the northerly side of East Market street at or near said point of intersection, and in and upon said East Market street immediately in front of and near to the plaintiff at the time, teams and wagons and carts, whereby he was obstructed from hearing the approach of said car as it came down said hill until too late to prevent or avoid its striking him, although he was not careless or heedless in that respect, and his not hearing the approach of said car was not owing to any negligence of his; that he was run down by said car and suffered the injuries of which, he complains, .namely, the loss of a leg and other painful injuries to his person.

So that the question involves (1), the alleged negligence of the company in the operation of said car, and it also- involves the contributory negligence of the plaintiff in and about the happening of that accident,, for it is fundamental and needs no citation of authorities to establish, it, that the plaintiff was bound to use ordinary care for his own protection, and that ordinary care must be commensurate with and be the kind of care that persons situated as he was situated on that occasion, are bound to exercise to protect themselves. While the company owed a duty to the public generally to run its cars carefully and so far as possible to avoid injury to others,, it does not and did not absolve the plaintiff from the exercise of that degree .of care that would protect him from danger. It is fundamental also that street railroads; as well as all other sorts of railroads, are entitled to the use of the streets and that pedestrians and others going upon the streets, using them, crossing them, and going along them, are bound to look so as to avoid possible injury. The facts in this case show that the plaintiff could have seen the approaching car several hundred feet from where he was attempting to cross the track. He was crossing it diagonally, nothing to obstruct his vision for the distance named, and nothing intervened except a bicycle passed him, which he did not see until immediately after it had passed him, and no-other thing or obstruction was in his way, so that his attention must have- been directed to some object or objects in some other direction! than the course the car was coming. It is perfectly clear from the testimony that had he looked he could have avoided the danger. It was but a step or two to get out of reach of the approaching car, and his failing to look when .he should have looked was such contributory negligence on his part as would defeat a recovery even though the company had been, through its agents and employes, guilty of negligence on its part, except' in one.particular instance; that is where the defendant, seeing the danger and knowing that it was about to do the injury, could have avoided it' by the • exercise of proper care. In such case as that the failure and refusal of the company would have been willful and wanton, and in such case as that, even though the plaintiff was guilty of contributory negligence, the want of proper care on the part of the company would make, it still- liable even though the plaintiff was guilty of contributory-negligence, and the action for damages would be for-the injury sus-' ■tained. But there is nothing-in this record that shows that the defend-’ ant was guilty of willful;.:or culpable disregard of duty after having' observed the perilous situation of the plaintiff, and there is nothing in this record that shows that it would have been possible for the motorman to have so controlled his car as to have avoided the injury after he became aware that it was about to occur. So that we are clearly of opinion, that, the defendant was not guilty of such negligence as would make it liable in any regard, so that the plaintiff could not recover were he himself guilty of negligence contributing directly in any degree to the injury. But we are clearly of the opinion that had the defendant been guilty of the want of ordinary care in the management of its car, the plaintiff so contributed to the injury that he could not recover.

The law seems to be well settled that a pedestrian in crossing a street car track is obliged to look before crossing the same, and that if he fails to do so and by reason of such failure is injured, he cannot recover. This identical question was passed upon by a majority of the circuit court within the past year in the case of Cleveland Elec. Ry. v. Wadworth, 25 O. C. C. 376, in which case the court held:

“It is contributory negligence, precluding a recovery, for a passenger, upon alighting at night from a street car, to pass around the rear end of the car and attempt to cross a parallel track upon which cars are running in an opposite direction every three minutes, without looking in that direction, or checking his pace, or taking any precautions for his safety, he having knowledge of the surroundings and situation of the tracks and of the operation of the ears thereon. ’ ’

It cannot be said that the plaintiff was ignorant of the situation there. He had crossed that track many times a day for a number of years at least. He knew it was a double track; he knew that the cars ran at that time of day eyery four or five minutes; he knew that one was liable to come along at any time; so that he was called on to at least look and use the ordinary precautions of getting out of the way, and that he did not do. He says himself, in answer to the questions:

Q. “You turned and walked down the street and then you turned and walked across the track?” A. “No,, sir; I did not say I walked across the street.”
Q. “Turned and walked across the track, and from the time you left that comer and walked down the street to where you turned into the street, and from the time you turned into the street until this car struck you, you never turned your eyes to the west in the direction of the coming car?” A. “I did not.”
Q. “You never looked for the ear?” A. “I did not after that.”
Q. “You never'looked for the car, I say?” A. “I did not.” .

Upon bis own testimony be is not entitled to recover in tbis lawsuit. We are of opinion that tbe court below was right in directing tbe jury to bring in a verdict for tbe defendant. Tbe judgment of tbe court below will be affirmed witb costs. Exceptions noted.

Hale and Marvin, JJ., concur.