author: JONES (O. B.), J.

text:
    BUILDINGS — EXCAVATIONS—FLOODS.
    [Hamilton (1st) Court of Appeals,
    July 15, 1916.]
    Jones, Jones and Gorman, JJ.

      Sophia Ulland v. Foss-Schneider Brew. Co.
    1. Nine Foot Excavation Rule Creates Liability Regardless of Skill.
    Where the owner of a lot in a municipality excavates and constructs a cellar to a greater depth than nine feet below the curb grade of the street on which such lot abuts, as proscribed by See. 3782 G. C., and such excavation causes any damage to any wall, house or other building upon the lots adjoining thereto, such owner is liable in a civil action to the property injured to the full amount of such damage without regard to the care or skill with which said cellar may have been constructed or maintained.
    2. One Excavating More than Nine Foot Cellar Bound to Protect Adjacent Buildings.
    The duty of one who digs such cellar beyond the statutory depth is not only to protect the adjoining property while the work is in progress but during the entire time he continues to maintain such excavation.
    3. Owner of Buildings in Flood, District Governed by Nine Foot Excavation Statute.
    This rule applies equally to lands within what is known as a flooded district subject to customary periodical overflow from back water from a river at flooded seasons and such conditions must be- considered and provided for in the construction and maintenance of the walls and concrete floors of such cellar so as to prevent the passage into it of the soil from under the foundation walls of adjoining structures and their consequent undermining.

      4. Proximate Cause of Undermining Building, Whether Flood or Loss of Lateral Support, Question for Jury.
    The question whether the proximate cause of the damages arising from the undermining and collapse of a house was the withdrawal of proper lateral support by reason of the maintenance of an adjoining excavation more than nine feet below curb grade or was the result of an extraordinary and’ unprecedented flood, regardless of such excavation, is a question of fact to be determined upon evidence by the jury and is not a question of law to be decided at first instance by the court.
    [Syllabus by the court.]
    ERROR.

      Powell & Smiley, for plaintiff in error.

      Bettinger, Schmitt & Kreis, for defendant in error.

      Reversing, Ulland v. Foss-Schneider Brew. Co. 28 Dec 327 (20 N. S. 375); reversed, Foss-Schneider Brew. Co. v. Ulland, 97 Ohio St. 000 (63 Bull. Supp. 94).

   JONES (O. B.), J.

Plaintiff and defendant were the owners respectively of adjoining parcels of real estate fronting upon the west side of Freeman avenue south of Gest street in the city of Cincinnati. Plaintiff’s property consisted of a two and a half story brick building upon a lot 20 feet front lying immediately north of the premises of defendant which fronted in all 192 feet upon Freeman avenue and contained buildings and appurtenances thereto used by the defendant as a brewery.

The cellar of plaintiff’s house was a little more than nine feet in depth, and the foundation walls were 11-2 feet thick. The cellars of the brewery, extending from Freeman avenue westwardly 102 feet, were of different depths; the one immediately adjoining plaintiff’s property was more than 16 feet in depth and, being under what was used as a driveway, was called “the driveway cellar.” Immediately adjoining the driveway cellar on the south was a cellar 30 feet in depth, which was divided into a cellar and a sub-cellar, the level of the first cellar being about 14 feet below the sidewalk and about 21-2 feet above the level of the driveway cellar. The walls dividing, and supporting these cellars were of good masonry, that between, the plaintiff’s property and the driveway cellar being a 3 foot wall, and that between the driveway cellar and the adjoining thirty foot cellar a 3 1-2 foot wall.

These brewery cellars were used for the purpose of storing beer in large casks. A small gutter ran in the cement floor' along the south wall of the driveway cellar towards the southwest corner where it connected with an iron pipe six inches in diameter which ran through the dividing wall and into the sub-cellar on the south, emptying into an iron tank which was a large receptacle sunk in the corner of the sub-cellar, being about six feet in depth and twenty feet in circumference, into which all of the brewery cellars above mentioned drained. From this tank, by means of a siphon pump, the water was pumped into the city sewer. Large quantities of water were used in these brewery cellars for cleaning casks and scrubbing floors.

The floors of the brewery cellars were cemented with a layer of cinders and a layer of concrete and then a finished surface^ of cement, the layer of concrete being thin, as no frost reached the cellars.

The soil underlying plaintiff’s property and in the surrounding neighborhood consisted of a sandy loam which extended to a depth of about thirty feet below the surface or curb line of Freeman avenue.

These premises are located in what is known in Cincinnati as part of the “flooded district,” being visited from time to time by the flood water from the Ohio river.

In March, 1913, one of these great floods occurred, and on March 30 the waters of the flood rose almost to the curb line of Freeman avenue. Defendant to save its cellars from inundation1 by water backing up from the sewers closed up the sewer connections in the higher cellar thus keeping the flood waters out of its cellars until the 29th or 30th of March, when it discovered that water and sand was coming through the north wall of the driveway cellar, being the wall adjoining plaintiff’s premises,, and that there were cracks in said wall from one to four feet above the floor of said cellar, permitting the water and sand to wash into said driveway cellar. On Sunday defendant endeavored to plug up these cracks and holes through which the water and sand were flowing with planks and oakum, but its efforts proved unsuccessful, and the flow of water and sand became so great in volume that the one pump which was ordinarily .used for the purpose of pumping water from the tank in said cellar was insufficient, and plaintiff placed other pumps. therein and operated the same, for the purpose of preventing the. water from flooding its cellars and destroying its beer.

The flow of sand into said cellar became so great as to cause the iron pipe leading from the driveway cellar into the lower cellar to become choked up to such an extent that it was broken off: by defendant to permit the water and sand to flow through said drain.

Defendant company continued to operate its pumps on Sunday and Sunday night, and about two o’clock on Monday morning, March 31, 1913, the tenants and occupants of plaintiff’s house were awakened' by the noise caused by the breaking of the wall of plaintiff’s building, and by the suction and falling of bricks and other material into the excavation underneath plaintiff’s premises, and they discovered that the yard or passageway of plaintiff’s premises lying next north of defendant’s property had been undermined and that the cellar walls and the wall of said building had fallen into the excavation. Thereupon defendant was notified through its engineer, who had charge of defendant’s property at that time, that the pumping of the water by defendant was undermining plaintiff’s property. Defendant’s engineer then went to plaintiff’s property and inspected it, but refused to stop pumping, as he had orders to prevent the water coming into defendant’s cellar. And defendant continued to pump the water and sand out of its cellar until about nine o’clock on Monday morning, March 31, 1913, at which time the building inspector of the city of Cincinnati ordered said pumping stopped. Previous to the stopping of the pumping the floor of the driveway cellar bulged upward and cracks four or five inches wide appeared the entire width of said cellar, and large quantities of sand, loam and debris was forced into said cellar. It was shown that the south wall of plaintiff’s house was destroyed and the building damaged and rendered untenantable, requiring time and expense to make necessary repairs.

Immediately after the receding of the water defendant made repairs to its north wall of the driveway cellar,' adjoining plaintiff’s property.

At the close of plaintiff’s evidence defendant filed a motion for an instructed verdict in its favor, which was granted and such verdict returned. A motion for new trial filed, by the plaintiff was overruled, and judgment was entered upon said verdict.

Plaintiff seeks here to secure a reversal of the judgment rendered in the court below, urging that the court erred in overruling the motion for a new trial and in sustaining the motion for an instructed verdict .in favor of the defendant.

The theory of defendant, which was adopted by the trial court and upon which a verdict was directed, was that the damages to the defendant were caused by the flood; that the unusual flood should be deemed “an act of G-od” for which no one would be liable; and that this flood might be regarded as a common enemy of all persons who were or might become subject to the invasion of its waters, and that each owner had the right to make such efforts to prevent damage by the flood as the necessity of the occasion required, subject, however, to the principle that he must regard the rights of his neighbors and not by any negligence of his in protecting himself cause damage to them. The decision is based upon the principle laid down in Rex v. Commissioners, 8 Barn. & Cress. 355. In that ease the commissioners of sewers for the levels of Pagham had taken down and removed certain groynes and other works which had been theretofore erected for protection against the inroads of the sea, and had constructed other works in their place. The effect of such changes caused the sea to flood with increased force against the land of one Cosens, for which he claimed damages. The decision in effect required the complaining land owner to protect himself by such works as he might find necessary.

The same principle is announced in other cases upon which defendant relies, among which are: Lamb v. Reclamation Dist. 73 Cal. 125 [14 Pac. 625; 2 Am. St. 775]; Hoard v. Des Moines, 62 Iowa 326 [17 N. W. 527]; Turnpike Co. v. Green, 99 Ind. 205; Railroad v. Stevens, 73 Ind. 278 [38 Am. Rep. 139]; Bass v. State, 34 La. Ann. 494.

This theory, however, is based upon the conclusion that the proximate cause of plaintiff’s injury was the flood itself. It leaves out of view the making of the excavation by the defendant and the construction and maintenance of the extraordinarily deep cellars, which plaintiff insists are the proximate cause of her damage.

The right to recover, which plaintiff seeks, is based upon the doctrine of lateral support as amplified and extended by the enactment of Sec. 3782 G. C. which is in part as follows:

‘ ‘ If the owner or possessor of any lot or land in any municipality, digs or causes to be dug any cellar, pit, vault or excavation, to a greater depth than nine feet below the curb of the street or streets on which such lot or land abuts, or, if there be no curb, below the established grade of the street or streets on which such lot or land abuts, or if there .be no curb or established grade below the surface of the adjoining lots, and by such excavation, causes any damage to any wall, house or other building upon the lots adjoining thereto, such owner or possessor shall be liable in a civil action to the party injured, to the full amount of such damage. ’ ’

At common law the owner of land was entitled to have it supported in its lateral state by the land of the adjoining owner, but that right did not extend to require the support of buildings that had been placed upon the land. Ohio, as well as many other states, however, has provided by statute for excavations in municipalities to a reasonable depth for cellars, and for damages to buildings as well as to the land itself for excavation greater than that reasonable depth. The right of the owner of land to natural support 'is held to be a property right and not a mere easement. Belden v. Franklin, 28 O. C. C. 373 (8 N. S. 159); Burgner v. Humphrey, 41 Ohio St. 340; Joyce v. Barron, 67 Ohio St. 264, 270 [65 N. E. 1001].

Similar statutes have been sustained in: Bloomingdale v. Duffy, 71 (Misc.) N. Y. 136; Dorrity v. Rapp, 72 N. Y. 307; Regan v. Keyes, 204 Mass. 294 [90 N. E. 847].

In Keating v. Cincinnati, 38 Ohio St. 141 [43 Am. Rep. 421], it was held that the right exists as against municipal corporations as well as against individuals, and the city was held liable in the case of an excavation for a street, even though the property injured did not immediately abut upon the street. In the opinion in that case, at page 148, White, J., used the following languagé:

“It can make no difference in principle whether the property is flooded and the soil washed away, or the property is injured and the soil removed from some other cause. It is the injury to the property that gives the right of action; and the author of it is bound to make reparation. ’ ’

Where the right of lateral support has been invaded liability exists, whether the excavation was done carefully or negligently. The doctrine is well stated in Jones on Easements, Sec. 588:

1 ‘ The only neglect necessary to give a cause of action is the neglect to furnish proper supports to the land of the adjoining owner to prevent its caving in. The only proof necessary is of the making of the excavation and of the injury to the adjoining land in consequence. It is not incumbent on the plaintiff to show that the excavation was made by the defendants in a careless, negligent or unskillful manner.
“Though one in excavating and removing the soil on his own land has not conducted the work negligently or in a manner contrary to the custom of the country, he is liable to his neighbor for any injury to his land occasioned by such excavation.
“Where one, by digging on his own land, causes the adjoining land of another to fall, the actionable wrong is not the excavation, but the act of allowing the other’s land to fall. It is the wrong to the right of property that attaches to the right of lateral support. Hence the measure of damages is the diminution of the value of the land by reason of the falling of the soil, and it is immaterial whether this falling be called ‘caving’ or ‘washing,’ provided it is the natural and proximate result of removing the lateral support.”

And Sec. 591:

‘ ‘ * * * The artificial support substituted in place of the natural support of the soil may be of any material, provided it is sufficient for the purpose, and it is continued so as to maintain the land in its proper condition.
‘ ‘ One can not escape liability for an injury caused by insufficient support by showing that the support was a reasonable or customary support, or that the excavations were made with care and skill. It is simply requisite that the support shall prove to be sufficient and effectual. ’ ’

The case of Cahill v. Eastman, 18 Minn. 324 [10 Am. Rep. 184], while not altogether turning upon the question of lateral support is instructive as bearing upon the instant case. It states in the syllabus the general doctrine, as follows:

“The common right of each, is not to be injured in his property by the way in which another uses his.
“Where it is sought to make one accountable for the consequences of acts done by him upon his own land, the question, in general, is not whether he exercised due care, but whether his acts caused the damage. If they necessarily tend to injure his neighbor in his pre-existing rights of property, he is liable in damages for the natural and necessary consequences thereof, irrespective of any considerations as to the care and skill with which such operations may have been conducted. ’ ’

See, also: Ulrick v. Dakota, L. & T. Co. 3 S. Dak. 44 [51 N. W. 1023]; Gildersleeve v. Hammond, 109 Mich. 431 [67 N. W. 519; 33 L. R. A. 46]; Mears v. Dole, 135 Mass. 508.

It is contended by the plaintiff that the cause of the damage was the existence of these deep cellars constructed by the brewery, together with the fact that the walls and bottom of same were not sufficiently tight and strong to prevent the passage of the soil and sand in its semi-fluid condition into these deep cellars from beneath the shallower cellar of the plaintiff.

It would appear that if all the cellars had been of the same depth, say nine feet, there would have been no such injury to plaintiff notwithstanding the flood, even though the defendant had plugged up the openings of the cellar where they connected with the sewer and had kept the water pumped out, because then merely the water in plaintiff’s cellar might have passed into defendant’s cellar but it would not have carried out the sand and soil under the footings of plaintiff’s wall or disturbed her foundations in any way. Nor, in all probability, would any injury have resulted if the defendant had allowed the water to accumulate in its cellars to the same level as that in the plaintiff’s cellar, for the hydrostatic pressure of the water on both sides would have prevented the disturbance of the soil and sand under the foundation of plaintiff’s house.

In ordinary cases the defendant would have an undoubted right to prevent the water coming into its cellar if it were able to do so, and also to pump out any water that did run in. But where, as claimed in this case, defendant has made unusual excavations and constructs cellars to an unusual depth, far below that fixed by statute, and has failed to so construct and maintain them as to preserve the lateral support to the adjoining structure of its neighbor because of such pumping out of the water and the consequent removal and running out of the sand and soil from under the neighbor’s foundations, then the result would be as disastrous and of the same character as though in the original excavation plaintiff’s wall had not been protected but had been suffered to fall into the excavation.

The mere fact that the wall itself stood can not excuse defendant, so long as it allowed soil and sand to pass through its interstices or to pass under its footings by bulging up and breaking the floor of the deep cellar, thus withdrawing the sand and soil from under the foundations and accumulating it in defendant’s cellar.

The duty of one who digs such a cellar beyond th,e statutory, depth is not only to protect the adjoining property while the work is in progress, but during the entire time that he continues to maintain such excavation. The right of a land owner to have his land and buildings sustained while an excavation was being made and a cellar constructed far beyond the statutory depth would be of slight value if only requiring them to be supported during the construction. And the mere fact that the adjoining wall continued to stand up would be of little value if his sub-soil had been allowed to slide or percolate into his neighbor’s'pit, and his building consequently demolished. A case directly in point is Bernheimer v. Kilpatrick, 53 Hun. 316.

Nor is there any difference in the rule of lateral support where, as in this case, the soil which has been withdrawn1 consists of a fluid mixture of sand and loam so blended with the water as to be inseparable from it. Columbus v. Willard, 7 Circ. Dec. 33 (7 R .113); affirmed, 54 Ohio St. 615.

Under the evidence offered by the plaintiff in this case she was entitled to have the case submitted to the jury to determine whether the damages to her property resulted because of the existence to an unusual depth of defendant’s cellars, and its failure to prevent the removal or withdrawal of her sub-soil during its operations in pumping out the water. -

In our opinion the court erred in withdrawing the case from the jury and directing a verdict. The judgment is therefore reversed and the cause remanded for a new trial.

Jones (E. H.) and Gorman, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    CONVERSION — MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    November 6, 1907.]
    Marvin, Winch and Henry, JJ.
    Lakewood (Vil.) v. Clarence L. Newell.
    Liability for Conversion of Water Pipes Laid by Owner of Subdivision and Subsequently Appropriated by Municipality.
    Where the owner of a subdivision lays pipes in the streets under a license from the municipality, and such pipes are afterwards appropriated by the municipality and made a part of its water works system, an action in conversion for their value'will lie.
    [Syllabus by the court.]
    ERROR.

      C. M. White, for plaintiff in error.

      D. C. True, for defendant in error.
   WINCH, J.

We think this case is ruled by the case of City of Cleveland v. Denison, 9 Circ. Dec. 241 (16 R. 541), decided by this court in 1898, the syllabus of which reads as follows:

“Where a contract is entered into between the city and the owner of a subdivision, that the owner should lay water pipes in some streets dedicated and accepted in such subdivision, which the city would adopt as part of its water works system and pay for them, the city having taken possession of the property and using it, and it being impracticable to restore the property to the other party, is liable for the expense of the pipes, although it was not legally authorized to enter into such a contract. ’ ’

The correctness of that decision as to the liability of the city tinder a contract entered into without complying with the Burns law, may well be doubted, but the principle involved, that the city should pay for pipes laid in the streets under license from the city, which it afterwards takes possession of without compensation to the owner, is sound. This case is one for conversion ; no contract rights are involved. The agreed statement of facts shows that Newell put the pipes in the street under license from the village, but they were still his pipes when the village, without his permission, took possession of them, and made them a part of its water works system.-

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    APPEAL — MECHANICS’ LIENS.
    [Cuyahoga (8th) Circuit Court,
    November 18, 1907.]
    Henry, Winch and Marvin, JJ.

      Howe Bldg. & Realty Co. v. Wolf Blasberg et al.
    Action to Foreclose Mechanic’s Lien Appealable.
    An action to foreclose a mechanic’s lien and for a personal Judgment for its amount is appealable.
    [Syllabus by the court.]
    Error.

      Foster, Foster & Howells,-for -plaintiff in error.

      Neff & McTighe, Max F. Goodman and Joseph Moore, for defendant in error.

      Petition in error dismissed, no op., Home Bldg. & R. Co. v. Blasberg, 81 Ohio St. 482.

   WINCH, J.

Motion is made to dismiss the appeal taken in this case on the ground that the action is not an appealable one.

The petition sets forth three causes of action, the first two alleging facts upon which it is claimed the defendant is indebted to the plaintiff for materials furnished and work done in the sum of $1,355 and the last says that the defendant 'failed to pay the $1,355-as agreed and that the plaintiff filed an attested account and obtained a lien upon the property on which the work was done.

The prayer of the petition is for judgment in the sum of $1,355 and for sale of the property to satisfy it.

In other words, we have here an action for foreclosure of a mechanic’s lien, with prayer for a personal judgment for the amount secured by the lien.

At the October term, 1906, in the case of Jesiononski v. Wismiewski, 38 O. C. C. 594 (21 N. S. 413), this court held such cases appealable, basing that conclusion upon an amendment of the statute authorizing the rendition of a personal judgment in foreclosure cases.

Section 5021 R. S. (Sec. 11270 G. C.), formerly provided that in an action to foreclose a mortgage given to secure the payment of money, or to enforce a specific lien for money, the plaintiff may also ask in his petition a judgment for the money claimed to be due; and such proceedings shall he had, and judgment rendered thereon, as in a civil action for the recovery of money only.

When this section became the eighth paragraph of Sec. 5058 R. S. (Sec. 11306 G. C.) by the amendment of 1900 (94 O. L. 279) the words italicized “and such proceedings shall be had, and judgment rendered thereon, as in a civil action for the recovery of money only,” were omitted, and we thought this significant.

The argument was as follows:

Actions for the recovery of money only are triable to a jury. Section 5130 R. S. (Sec. 11379 G.'C.).

An action in foreclosure and for personal judgment is not for money only, but is for money and equitable relief; hence, when the Legislature first authorized the joinder of such causes of action, realizing that the action would not then be for money only, it specifically provided that it should, notwithstanding that fact, be triable to a jury and used apt language for that purpose. Color to this yiew is lent by the opinion in the case of Wood v. Stanberry, 21 Ohio St. 142, 149, where it' is said that this provision of the statute was “a limitation upon the authority to render personal judgments in actions for the foreclosure of mortgages which would otherwise be inferred from the general terms of the statute.”

This limitation being removed by the amendment referred to, it would seem that the issues are no longer triable to a jury.

The right to demand a jury being gone, the case is appeal-able. Seetoin 5226 R. S. (Sec. 12225 G. C.).

This construction of the amendment is reasonable. Foreclosure cases are better tried to a court than to a jury and it is rare that one was tried to a jury, even under the old section. Then, too, granting a personal judgment adds little to the value of a decree in foreclosure, for there may be execution, on an unsatisfied balance of a decree in equity. Gliddings v. Barney, 31 Ohio St. 80.

We are aware that our conclusions are in conflict with the ruling of the third circuit, as shown in the case of Rusher Lumber Co. v. Troxel, 29 O. C. C. 574 (10 N. S. 83), affirmed, no op., Rusher Lumber Co. v. Troxel, 76 Ohio St. 626, but as the significant amendment of the statute referred to was not called to the attention of that court, and as we are advised that the common pleas courts of this circuit have been following our recent ruling since it was announced, we have concluded to abide by that ruling. The matter is not without difficulty and further doubt is thrown upon our conclusion by an examination of the case of Ladd v. James, 10 Ohio St. 437, but it is fitting that the question, be submitted to the Supreme Court to the end that the rulings on this matter be uniform throughout the state.

The motion to dismiss the appeal is overruled.

Henry and Marvin, JJ., concur.


text:
    PLEADING — SALES.
    [Cuyahoga (8th) Circuit Court,
    November 18, 1907.]
    Henry, Marvin and Winch, JJ.

      Ben Sands v. Forest City Savings & Trust Co., Recr.
    Sale and Receipt Are Issues Raised by General Denial In Action for Goods Sold and Delivered.
    In an action for goods sold and delivered, to which a general de- ■ nial is pleaded, the only questions for the jury are the sale and receipt of the goods and their value.

      Affirmed, no op., Sands v. Forest City Sav. & Tr. Co. 81 Ohio St. 551.

   WINCH, J.

This was an action on an account, in the short form, for goods sold and delivered. The answer was a general denial and the verdict was for the plaintiff.

The defendant below alleged errors in ruling on evidence and in the charge.

All of these rulings are due to the general nature of the answer. Under a more specific answer, the issues the defendant tried to intermix might have been available to him.

The goods delivered were fixtures for a jeweler’s store. The defendant claimed that there had been a written contract between the parties for other fixtures and that said contract contained a clause that no charge for extras should be made unless an agreement was made for them in writing.

' One of the defendant’s claims was that the goods involved in this case were extras, and that there was no written agreement concerning them.

Another claim he made was that by reason "of defects in the goods furnished under the contract, these were furnished without extra charge, to make good that contract. He also desired to show that he had paid the full price stipulated in the written contract and that such payment paid for these goods. Another claim was that part of the goods in the account sued upon were included in the written contract.

He also made an effort to show the value of the goods by an expert, but as this expert did not see the goods until some six months after they were delivered, we think this testimony properly excluded.

The defendant admitted the receipt of the goods, and under this situation we think the court properly charged the jury that the only thing for them to do was to determine the value of them and bring in a verdict for the plaintiff for the amount so determined.

We have examined a large number of Ohio cases and some from other states as to what is admissible in defense under the general issue in assumpsit. The question has always been difficult and those of us who have been brought up under code pleading may be thankful that many of these difficulties were swept away by the code. That was the purpose of it.

It is said in 2 Enc. of PI. & Pr. 1027:

“According to the strict original principles of the common law, no defenses were admissible under the general issue except such as went in denial of the allegations of the declaration. Gradually, however, not only such defenses as deny the allegations of the declaration, but almost all matter in avoidance, have been held good defenses under the plea of non as-sumpsit until now the general plea may be said to deny not a part of the case only, but the whole case to such extent that under it the-defendant is generally entitled to give evidence of any thing which shows that ex aequo et bono, the plaintiff ought not to recover.”

Section 5066 ft. S. (See. 11314 G. C.) provides what an answer must contain:

“The answer shall contain:
“1. A general or specific denial of each material allegation of the petition controverted by the defendant.
“2. A statement of any new matter constituting a defense, counter-claim or set-off, in ordinary and concise language.
“3. When a defendant seeks affirmative relief therein a. demand for the relief to which he supposes himself entitled.”

The defendant in this case brought himself within the first paragraph of this section and sought only to controvert the allegations that the goods mentioned in the account were sold. and delivered to him and were of the value claimed. After a careful examination of all the rulings of the trial judge, we think he was right in excluding the offers made by the defendant on the ground that he should have followed the second paragraph of the section and pleaded the new matter which he sought to offer in defense and in recoupment.

Finding no error in the record, the judgment is affirmed.

Henry and Marvin, JJ., concur.


author: HOUCK, J.

text:
    APPEARANCE — COURTS—ERROR.
    [Stark (6th) Court of Appeals,
    February Term, 1915.]
    Shields, Powell and Houck, JJ.
    A. E. Clippinger v. George W. Sturgeon and E. G. Saffel.
    1. Filing Answer and Appearing by Counsel at Trial and Failing to Challenge Jurisdiction Amount to Voluntary Appearance.
    A party desiring to insist that he is not in court must keep out of court for all purposes except to make that objection; hence, when he does not do that, but files an answer and when trial is called appears by counsel, but fails to continue to challenge the jurisdiction of the court, he thereby voluntarily enters his appearance and consents to the exercise of jurisdiction over both his person and the subject-matter.
    2. Motion to Dismiss for Failure to Support Petition and Want of Jurisdiction Erroneous, Evidence Tending to Sustain .Allegations Being Offered.
    Some evidence having been offered in such a case, tending to support the allegations of the petition, it is error to grant a motion to dismiss on the ground that the petition is not supported by evidence and the court is without jurisdiction.
    [Syllabus by the court.]
    Error.

      H. E. Emmons, for plaintiff in error.

      Metzger & Smith, for defendant in error.
   HOUCK, J.

This cause comes into this court on error from the common pleas court of this county. The parties here stand in the same relation to each other as in the court below.

Plaintiff brought suit against the defendants for $5,000 ■damages for malicious prosecution. The defendant Sturgeon resides in Stark county, and the defendant Saffel resides in Columbiana county, and both were served with summons. The defendant Sturgeon filed a motion to the petition asking that certain matters therein be stricken out, and the court sustained said motion. An amended petition was filed, and an alias summons issued to the sheriff of Columbiana county, Ohio, for the defendant Saffel, and due return made thereon. A demurrer to the amended petition was filed by the defendant Sturgeon, and the same was heard and overruled. Answer was then filed by •Sturgeon. The defendant Saffel filed the following motion:

“Now comes the defendant, E. G. Saffel, and appearing for no other purpose, and especially disclaiming any intention to enter his appearance in this case, moves to set aside summons herein issued to the sheriff of Columbiana county and served upon him, and the return of said writ, for reason that he is a resident of Columbiana county, while said action was commenced and is pending in Stark county. That said action is not such an action as the statutes of Ohio authorize the service •of summons on defendant in a county other than the county in which said action is pending.”

Said motion was heard and overruled and exceptions taken, and thereupon Saffel requested and was granted leave to plead, and filed his answer to the amended petition, setting up two defenses, the first defense being that before making the affidavit in which he charged the plaintiff with a criminal offense that he took competent legal advice, and acted upon same * * * the second defense being in substance a general denial. In his answer, Saffel neither directly or indirectly made or set up any defense, or in any way challenged the jurisdiction of the court.

Plaintiff replied to the answer, and the cause came on for. trial to the court and jury, and the plaintiff offered his testimony and submitted his cause, whereupon the defendant Sturgeon moved the court to dismiss the case as to him because the evidence offered by plaintiff was insufficient in law to establish any liability on the part of Sturgeon, and that the plaintiff had failed in his proof as to him. The court sustained the motion, •and the plaintiff excepted.

The defendant Safi:el then filed a motion asking the court to dismiss the action as to him for the following reasons: that no evidence had been offered that would make him liable in damages; that the court had no jurisdiction of the subject-matter of the action, or of the person of defendant Saffel. The court sustained the motion, and plaintiff excepted.

The plaintiff filed a motion for a new trial, which was overruled, and to which the plaintiff excepted. To the overruling of said motion for a new trial, together with other errors claimed in the record, the plaintiff in error prosecutes error to this court, and seeks a reversal of the judgment of the court below.

We have examined the record, transcript and files here presented and find no error that would warrant a reversal of the court below as to the defendant George W. Sturgeon, and the judgment of the common pleas as to Sturgeon is affirmed.

But how stands the issue as between plaintiff and defendant E. G. Saffel? Summons was issued and served on him in Colum-biana county, where he resides. He filed a motion attacking the jurisdiction of the court, and it was heard and- overruled. He then requested and was granted leave to file an'answer, and did so. He plead two defenses in his answer, but in no way challenged .the jurisdiction of the court, and thereby voluntarily entered his appearance and consented to the jurisdiction of the court over the subject-matter of the action, also jurisdiction over his person.

The cause came on for trial, and he appeared and participated in the proceedings, or at least was there by counsel. The defendant embraced his first opportunity to challenged the jurisdiction of the court when he filed the motion to quash the service and return of summons, but there he stopped, and did not continue to avail himself of this defense when the motion to quash was overruled by the court. He asked for and was given leave to plead, and then filed his answer to the amended petition, and again failed to take advantage of the opportunity presented of attacking the jurisdiction of the court, and then appeared in the trial of the case.

If a party wishes to insist upon the objection that he is not in court he must keep out for all purposes except to make that objection. But defendant Saffel did not do this, and by his own acts placed himself within the jurisdiction of the court, and he is now in no position to complain.

We further find from the record that in the trial of the ease the plaintiff offered some evidence that would tend to support the allegations of his petition as against the defendant Saffel, and the court should have submitted it to the jury.

We have examined the following authorities, and believe they are decisive of the case at bar: Allen v. Miller, 11 Ohio St. 374; Mason v. Alexander, 44 Ohio St. 330 [7 N. E. 435]; Long v Newhouse, 57 Ohio St. 348, 370 [49 N. E. 79].

The court below erred in rendering judgment in favor of the defendant E. G. Saffel, and said judgment is hereby reversed, and the cause is remanded to the court of common pleas for a new trial as between A. E. Clippinger and E. G. Saffel.

Shields and Powell, JJ., concur.


author: WALTERS, J.

text:
    WILL—CONTEST.
    [Hamilton (1st) Court of Appeals,
    March 23, 1917.]
    Middleton, Walters and Sayre, JJ., of the Fourth District, sitting by designation.
    Ida W. Gomien, Extrx., et al. v. Stanley E. Weidemer et al.
    1. Not Scintilla Rule but Evidence to Countervail Prima Facie Case of Probate Necessary on Motion for Verdict by Will Contésteos.
    Where, at the close of the evidence for the contestants in a will case, a motion is interposed to direct a verdict for the contestees, the trial judge is not bound by the scintilla rule, but will determine whether the evidence which has been offered is sufficient to countervail the prima facie case made by the order of probate.
    2. Opinions of Witnesses without Supporting Facts not Sufficient to Overcome Prima Facie Case of Probate of Will of Feeble and Aged Woman Suffering Many Physical Ailments.
    The opinion of witnesses that the testatrix, a feeble old lady afflicted by a number of physical ailments, was of unsound mind at the time her will was executed is not sufficient to overcome the prima facie case arising from probate, where no facts were given by the witnesses which would support their opinion and it is in evidence that she always inquired about her children and grandchildren and exhibited affection for them and recognized her own afflictions and conversed in an intelligent manner.
    [Syllabus by the court.]

      Error.

      Dolle, Taylor, O’Donnell & Qeisler, for plaintiffs in error.

      Charles W. Baker and Stephen W. Jones, for defendants in error.
   WALTERS, J.

The court in considering the evidence contained in the record, as to whether the verdict is against the manifest weight of the evidence, is met with a different rule as to its guidance than that which is applied in the ordinary civil action of the code.

The procedure in relation to the contest of wills is regulated entirely by statute, and we may truly say is a special one, being contained in a separate chapter in the code. When the legislature enacts special provisions in regard to procedure they alone govern and exclude from consideration all other general provisions on a related subject.

Section 12083 O. C. provides that:

“On the trial of such issue, the order of probate shall be prima facie evidence of the attestation, execution and validity of the will or codicil.”

Prima facie evidence of a fact, says Mr. Justice Story, is such evidence as in the judgment of the law is sufficient to establish the fact, and if not rebutted remains sufficient for that purpose. Crane v. Morris, 31 U. S. 598 [8 L. Ed. 274].

Prima facie evidence of a fact is such as establishes the fact, and unless rebutted or explained by the evidence becomes conclusive and is to be considered as if fully proved. State v. Burlingame, 146 (Mo.) 207 [48 S. W. 72].

The order of the probate court is in the nature of a judgment, and when that is produced the contestant must then introduce his evidence, and enough of it to countervail the prima facie ease; and when a motion is made by the defendant, at the close of the evidence offered by the contestant, that the court direct the jury to find for the defendant because the contestant has not produced enough evidence to overcome the prima facie case made by the introduction of the order of probate, then the trial judge is at liberty, and it becomes his duty, to weigh the evidence, and in so doing he is not bound by the scintilla rule. The scintilla rule applies only to the civil actions of the code, and not to the special proceedings provided for in statute for the contest of wills. Schneider v. Retelbach, 25 Dec. 107 (17 N. S. 124); Kammann v. Kammann, 39 O. C. C. 349 (26 N. S. 60); Hall v. Hall, 78 Ohio St. 415; Strick v. Kiss, 37 O. C. C. 554 (26 N. S. 456).

Should the court have sustained this motion ? Lottie Weide.mer and Mrs. McDonough testified that Mrs. Weidemer, the testatrix, was of unsound mind; Morris Weidemer says she was very feeble-minded. Mr. McQuillan says, “Well, I wouldn’t say that her mind was either or there was something lacking. Yes, there was something lacking.” Stanley Weidemer was not asked his opinion. Roy Weidemer, Celia Weidemer, Mrs. Rampse, Mrs. Worthington and Mrs. Taylor were not asked for their opinion. There is no witness for the contestants who observed her just before or after the execution of the will or at the time of its execution.

The testatrix may have been of unsound mind and yet perfectly capable of appreciating her surroundings, her relations and their deserts, and of her property.

We quote here a synopsis containing all the material points m the testimony of Lottie Weidemer, for she appears to be thu strongest witness for the contestants and the other witness chiefly follows in her foot-steps, and if the contestants make out a case to go to the jury it must be. made out by this witness.

She states that:

‘ ‘ Grandma seemed to think a whole lot of us and was very affectionate, brought us presents, would kiss, eta. When grandma moved to Aunt Ida’s (spring 1906) grandma said: ‘Now 1 live near you and it is easy for you to come. You just take the Swing line. You children must come out to see me. ’ Grandma was glad to see us and wanted us to come back again. Before the sickness in 1909 grandma had rheumatism, but was able to walk around, used cane and held on to things, peeled vegetables, wiped dishes. As long as I can remember her hands were awfully wrinkled, veins prominent.”

Grandma always told us she had heart trouble and it was hard for her to breathe, especially after she had eaten. Sometimes grandma would say she had taken medicine or would asb Aunt Ida if it was time to take it; also she would say, “The doctor said he is going to give me this or that medicine. ’ ’ She frequently put her hand to her heart and complained of a pain there. Her hearing was always poor. She wore glasses. After sickness grandma said it was hard for her to read and she could not darn any more. Witness said her grandma had dropsy in her feet and limbs; would be bad for a day, and swelling go down and maybe it would occur in a few months again.

On the first visit during Mrs. Weidemer’s sickness in 1909 Lottie noticed grandma was propped up in a big easy-chair and had gotten thinner. She had not slept for five or six days; did not talk mueh. She did not lie down in bed for five or six weeks. Doctors gave grandma sleeping powders and she became very drowsy and slept most of the time. After the six weeks she went to her bedroom, and with assistance walked to the kitchen or out on the porch. Asked as to her memory she said :

“Grandma could not remember things very well because when we went out there she would always ask us what we were doing, and if one of the boys were not there and she would asb about him, and she would ask about mother. And maybe we would go out there the very next week and she would ask the same questions over again.
“Then she would be telling us something and she would say, ‘I can’t get it there’ and then she would call Aunt Ida in for her to tell it to me. And then she would start to tell something and stop and say ‘I don’t even remember what I was saying.’ We would sit at her side (one and one-half years after the sickness) and talk to her and she would try to talk to us some, and then maybe we would be saying something to her and she would close her eyes and nod her head and go off to sleep sometimes. She would come back in a few seconds and look a+ us and ask us what she had said. Sometimes she would sleep over fifteen minutes. We would leave the room and grandma would drowse and wake up again. Grandma ate with the rest of the family in the dining-room, fed herself, and walked (some one taking her arm) from, dining-room to kitchen. Grandma complained of being cold, and although there was a stove in the room where she sat she said, ‘The halls and bedroom were so cold. ’ She wanted a furnace put in so the whole house would be comfortable. Furnace was put in in 1910 or 1911, and grandma told Lottie she would help pay for the furnace because it was put in a good deal for her benefit.”

Witness present when grandma gave Maurice his father’s watch (after July, 1909). Then this occurs:

“Did your grandmother ever talk to you about any business matters of any kind?” Answer. “Yes.” “What did she say?” Answer. “She would tell me that she had gotten her dividend cheek and that she had given them to Uncle Lou to take down, that he was coming out perhaps that day and bring the money, or she would say she had just gotten them, he had brought them out the previous Sunday, something of that sort.”

She also remembers graduating from high school in June, 1909; that grandma then gave her a gold cross and Lottie presented grandma with her picture and a bouquet of flowers, and that grandma said, “She was glad I had gotten through so well and she appreciated the flowers very much and liked the picture.” Grandma also gave her ten dollars in gold for her eighteenth birthday, September, 1909, and congratulated ner. She also remembers talking to grandma about her school work at Delaware (1910). Also remembers grandma gave her an opal ring for Christmas, 1910; that grandma told her she wanted her to have a ring and that she (grandma) “had told Aunt Ida to buy it for me.” Lottie had not expressed a desire for an opal ring, but wanted grandma’s engagement ring, which grandma had given to her daughter Ida. Grandma also had this opal ring fixed for Christmas, 1911, as Lottie had lost the setting. About this time, Christmas, 1911, Grandma received h “postal card shower,” and all relatives and friends sending her birthday cards. Lottie sent her one. Grandma was pleased with all the cards and showed them to Lottie. Lottie stayed two days at Gomien’s in the summer of 1910 and states grandma may have peeled some vegetables for the meal then, but does not remember grandma putting on all the things to cook. They liked to go to Gomien’s because they were made at home. Grandma was pleased to see them and complained that they did not come oftener. She. received letters from grandma usually at Christmas time and Lottie wrote grandma letters. Lottie also knows that grandma “took some papers.” Grandma did not read a good deal although she would have liked to. Lottie also stated that she saw her grandma peel vegetables, wash dishes and do light work about the house. Also remembers grandma telling about falling in the kitchen. Also remembers being there when Dr. Iiier was there once, but Lottie did not stay to hear the conversation between grandma and the doctor. Grandma always inquired as to brothers or mother when they did not come out. When they visited grandma they usually sat next to her and talked to her.

On cross-examination Lottie was shown one of her grandma’s letters to George (Lottie’s father). Lottie .admitted it was her grandmother’s letter. This letter was written January 11, 1909.

The letter refreshes Lottie’s recollection. She remembers about her aunt, Mrs. Winterhalter, dying and leaving a will. Part of the letter is read to Lottie about the division of the estate, as follows: “Lottie and the boys were here the day after Christmas and Lottie told us that they thought each one would get about $1,300.” Thereupon Lottie said “I don’t remember definitely about telling her that, but if she said so it was true.” Then question (reading from letter) “Celia comes in for that also, then she can pay for her house.” Do you remember talking to your grandmother about that? Answer: “I don’t remember but I evidently did.” Lottie was again cross-examined and shown another letter of her grandmother’s (Exhibits 23 and 24) page 896 (envelope postmarked Nov. 8, 1910). Lottie reads from this letter: “Lottie is going to the university here in the city. ’ ’ Lottie then states that she started there in the fall of 1910. “Q. (Reading from letter.) It was pretty hard for Ida (picking tomatoes) going out every day and besides doing her housework, but she stood it fine. She said she could not have done the same work last summer and she got fleshy eating tomatoes. Do you know anything about that?” Answer: “I don’t. Q. (Reading letter) ‘She says sbe never ate so many in ber life.’ ” (Counsel for plaintiffs objected.) “Q. She says Lottie Weidemer helped her to pick two days”; is that a fact? Answer: “It is.” And then reading from letter “Q. ‘I can tell you she (Lottie) is a worker and had grit enough to pull her through anything, she undertakes.’ Was your grandmother of unsound mind or not at the time she thought that about you?” (Counsel for plaintiffs objected.) Answer: “I said she was of unsound mind three or four years before her death.” “Q. That is not answering my question. Was she of unsound mind at the time she wrote that about you?” (Objection overruled.) Answer: “I think she was.”

From this evidence and that of other witnesses for the contestants it appears that the testatrix was variously afflicted. She had varicose veins, blue or white. She had rheumatism and indigestion. Her eyesight was bad and she wore glasses. She had an incipient cataract. She had heart trouble and would occasionally gasp for breath. She was forgetful. She would droop her head and when she would waken would have forgot what the conversation had been. Her hearing was bad and she was very feeble, physically and mentally. She had dropsy; her limbs and veins would often swell. She would feed herself at the table but the victuals would fall off the fork or knife— and that would embarrass her. She sometimes would get out of a chair but oftener she would be assisted. She was on good terms with all her children and grandchildren, and would always inquire about them. For five or six days she could not sleep; the doctor gave her a sleeping potion and then she slept practically all the time for five or six days and nights. She was always taking medicine.

When the last will was made Ida Gomien went out in the yard. Testatrix helped her son George with considerable sums of money. In 1909 she got hurt. The will was made April 30, 1911. She died on the- day of-, 1912. She always met her grandchildren with a kiss, and was kind and considerate. On birthdays and at other times she made presents to her children and grandchildren.

There were three wills made, one August 3, 1909, one April 16, 1911, and the one now under consideration April 30, 1911. These wills were offered in evidence and are all substantially alike.

At the time these chief witnesses give evidence concerning their grandmother they were all minors and children, and their testimony in and of itself shows'that the testatrix at all times knew her condition and would speak about it to. these same witnesses. She knew she would drop off into a sleep or become drowsy, and spoke to them about it. She would inquire about her relatives, asking how they were getting along. She said she did not sleep well at night and that is the reason “I am sometimes sleeping in my chair.” She wrote intelligent letters during the time covered by these witnesses.

In all the evidence adduced by the contestants there is no fact or facts testified to by those who gave their opinion that her mind was unsound which would support their opinion.

All these acts were the acts of an old lady enfeebled by disease, but they all show that she recognized her afflictions and her conversation was always of an intelligent character, showing that she knew what she was talking about.

We are unanimous in the opinion that there was not evidence enough introduced by the contestants to overcome or coutervail the prima fade or presumptive ease made by the introduction of the will itself; and we are of the opinion, that the trial judge should have sustained the motion that was made by the defendants at the close of the evidence, and for this error the judgment is reversed.

We might say that there is no evidence in the record of undue influence, and all charges in that respect should have been excluded. Outside of that the charge seems to contain the law.

Proceeding now to render the judgment that the court below should have rendered, judgment will be entered for the contestees.

Middleton and Sayre, JJ., concur.


text:
    WILLS.
    Morrow (5th) Court of Appeals,
    December 27, 1915.]
    Shields, Houck and Ferneding, JJ.
    Judge Ferneding of the Second District sitting in Place of Judge Powell.
    T. B. Mateer, Exr., et al. v. Daisy D. Croft et al.
    Devise not Rendered Ineffective by Imperfect Deeds Covering Same Property.
    A specific devise of lands to the widow of the testator for life, with the remainder over to designated beneficiary, is not defeated on the ground of ambiguity by reason of the execution by the testator of deeds covering the same lands, where the said deeds were not executed in accordance with law and were not delivered to the grantees and there is no proof showing or tending to show that they were placed in- escrow.
    [Syllabus by the court.]
    Error.

      T. B. Mateer and J. W. Barry, for plaintiffs in error.

      J. C. Williamson and Benjamin Olds, for defendants in error.
   HOUCK, J.

The plaintiffs below, the defendants in error, in a second amended .petition, brought suit against the plaintiffs in error, the defendants below, alleging that certain language used in the last will and testament of Jacob L. Klinefelter, deceased, v/ith reference to the disposal of the real estate of which he died seized, and a part of which is now claimed by Lillie E. Price as the surviving widow of Elmer E. Price, deceased, is ambiguous, and prays for a construction of same; also for an' order and 'decree in partition for the real estate described in the petition.

The defendants below filed an answer, being in substance a general denial.

Two grounds of error are relied upon by plaintiffs in error:

1. That the court below erred in holding that the language of the will in question is ambiguous.

2. That the court erred in the admission of certain testimony.

Let us first determine whether or not the language in the will is or is not ambiguous. The provision of the will under consideration is as follows:

“I give and devise to my beloved wife in lieu of her dower the farm on which we now reside, and other lands in North Bloomfield township, containing in all about two hundred and fifteen acres, during her natural life, and all the stock, household goods, furniture; provisions and all other goods and chattels which may be thereon at my decease, during her natural life as aforesaid.
“ I do hereby after the decease of myself and wife and my debts are paid, I desire the balance to be given to my grandson, Elmer E. Price.”

By ambiguity we mean that the words are capable of more senses than one; that there is an indistinctness or uncertainty of meaning in the language used.

Ambiguities are of two kinds, patent and latent.

A patent ambiguity is one which appears on the face of the language or the instrument; that which occurs when the expressions of the language or instrument are so defective that a court which is obliged to place a construction upon it can not, placing itself in the situation of the one making it, ascertain therefrom his intention.

A latent ambiguity is one which does not appear on the face of the language used or the instrument being considered, or when the words apply equally to two or more different subjects or things.

We think that extrinsic evidence can not be used, and is not proper where the instrument or language upon its face shows no uncertainty of intention; but where it is insensible, unless this borrowed light is thrown upon it, the same may be resorted to in order to ascertain the intention of the one making the instrument.

Prom an examination of the words and language used by said testator can his intention be determined? We think so. Jf we give the words and language used therein the plain and common meaning applicable to same we think the claim that upon their face they are ambiguous and not of plain meaning is not well founded.

What meaning does the language convey? To us it seems dear, plain and explicit that the testator intended to and thereby did convey the’ real estate in question and all his property described in said provision of the will to his wife, during her natural life, and after his decease, and the payment of his debts, and the death of his wife, all that remained of all the property described in said provision of his will was to go to and be the property of Elmer E. Price. We are of the opinion that it was prejudicial error for the court below to hold otherwise. We think that the claim of defendants in error that the paper writing reputed to be a deed, and covering the real estate in this action, is not supported either in fact or law, because it does not conform to the requirements of Sec. 8510 G. C., which provides:

“A deed, mortgage, or lease of any estate or. interest in real property, must be signed by the grantor, mortgagor, or lessor, and such signing be acknowledged by the grantor, mortgagor, or lessor, in the presence of two witnesses, who shall attest the signing and subscribe their names to the attestation. ’ ’

It is admitted by the parties to this suit that there was but one subscribing witness to said paper writing, and, therefore, it not being executed in compliance with law, it does not have the effect and force of a deed, and is not a deed.

We think it was prejudicial error in the court below in permitting this paper writing †.0 be admitted in evidence, and in holding that it was a deed.

The second amended petition alleges “that said deeds (one being the deed in question) were delivered to one George B. Hosier, to be delivered by him to the grantees therein at the death of said Jacob L. Klinefelter and Catharine Klinefelter, his wife, or the survivor of them. ’ ’

We have carefully read the testimony of every witness, as appears in the record in this case, and we fail to find any proof whatever in support of said allegation. In the first place, the paper writing in question was not executed as required by law, and therefore is not a deed. In the second place, if it had been so executed and was in fact a deed, there is an absence of proof showing or even tending to show that it was delivered in escrow.

From what has already been said it of necessity follows that we find prejudicial error in the record, and that the judgment of the common pleas court should be reversed. It also follows that the cross petition in error of the defendants in error should be dismissed, and the same is hereby done.

Judgment of the common pleas court reversed and cause remanded.

Shields and Ferneding, JJ., concur.


author: RICHARDS, J.

text:
    CARRIERS.
    [Lucas (6th) Court of Appeals,
    June 25, 1917.]
    Chittenden, Richards & Kinkade, JJ.
    New York Central Ry. v. Frederick O. Peak.
    1. Interstate Commerce Freight Rates Binding on Shipper and Car rier.
    The interstate commerce act having been adopted to prevent unjust discrimination in freight rates the rate of the carrier duly filed pursuant to that act is the only lawful charge and is binding alike on the shipper and carrier.
    2. Misquotation of Rate by Carrier's Agent and Payment by Shipper will not relieve from Paying Legal Rate.
    The shipper is charged with notice of the regular fixed tariff freight rate duly filed and a misquotation of the rate by the carrier’s agent will not relieve the shipper from paying the tariff rate although he has made the shipment and paid the quoted rate therefor.
    3 Final Judgments in J. P. Courts, Reviewable on Error on Weight of Evidence.
    By virtue of the provisions of Sec. 10361 G. C., final judgments rendered before a justice of the peace whether tried with or without a jury may be reviewed on the weight of the evidence by proceedings in error.
    [Syllabus by the court.]

      Error.

      Doyle, Lewis, Lewis & Emery and Paul W. Alexander, for plaintiff in error.

      E. H. Ray, for defendant in error.
   RICHARDS, J.

This action was commenced by the New York Central By.as successor of the Lake Shore & M. S. By. before a justice of ■the peace, to recover an amount claimed to be due it from the defendant by reason of an undercharge of freight made by it in a shipment of fifteen horses from Boswell, Indiana, to Sylvania, Ohio. At the conclusion of the trial before the justice of the peace a motion was made by the plaintiff for a directed verdict in its favor, which was overruled and an exception taken. The jury returned a verdict for the defendant and judgment was rendered thereon. A bill of exceptions was taken setting forth all of the evidence, and error was prosecuted to the court of common pleas which court affirmed the judgment rendered in favor of the defendant.

On the trial of the case the plaintiff introduced in evidence. the printed tariff of freight charges from Boswell, Indiana, to Sylvania, Ohio, showing the rate to be thirty-two cents per hundred-weight when the shipment was made via San-dusky over the Lake Erie & W. By., and thence to Sylvania over the Lake Shore & M. S. By. It also appears that shipment could be made, and in this case in fact was made, via Fostoria over the Lake Erie & W. By., and thence to Toledo over the Toledo & O. C. By., and to Sylvania over the Lake Shore & M. S. By. On this latter route the joint rate was thirty-two cents per hundred-weight to Toledo and then there was an additional rate from Toledo to Sylvania of seven and one-half cents per hundred-weight. The defendant desired to ship via Fostoria and Toledo and was informed by the companies’ agent that the rate was thirty-two cents the same as if the shipment had been made via Sandusky. But the agent was plainly in error in giving this rate as it omitted the regular tariff rate, as shown by the schedule on file with the interstate commerce commission, of seven and one-half cents per hundredweight from Toledo to Sylvania. This action is to recover this latter charge of seven and one-half cents per hundred-weight.

Some contention was made that the railroad official identifying the schedule on file with the interstate commerce commission was not able to say that the rate sheets introduced in evidence embraced all of the rates in force at that time for shipments over the lines of railroad mentioned, but it is entirely clear that they did embrace all the tariff rates on those roads between Boswell, Indiana, and Sylvania, Ohio.

There can be no doubt tk-t the official rate duly fixed and filed with the interstate commerce commission is binding alike on carrier and shipper. The direct question was decided by the Supreme Court of the United States in Louisville & N. Ry. v. Maxwell, 237 U. S. 94. In that case Mr. Maxwell desired two railroad tickets by certain routes which he named, and by oversight the railroad agent quoted him a lower rate than that -fixed in the published rates on file with the interstate commerce commission. Mr. Maxwell, as was said in the opinion, was in no way at fault in the matter. He did no more than tell the agent the points to which he wished to go and the agent fixed the routing in the tickets and named the fare which Maxwell paid without question. In the case at bar Mr. Peak was without fault in the matter. The error was solely that of tb.e agent. But, under the decision in the case just cited, this error does not relieve the defendant from the duty to pay the regular fixed tariff. I quote from the opinion of Mr. Justice Hughes on page 97 the following:

“Under the interstate commerce act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged -with notice of it, and they as well as the carrier must abide by it, unless it is found by the commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than- the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by congress in the regulation of interstate commerce in order to prevent unjust discrimination.”

It is perfectly manifest that the object of the interstate commerce act was to have bnt one rate and from which there could be no departure.

This court had a similar question in a case arising in Erie county based on an intrastate shipment, under the Ohio statute, ■Sec. 510 G-. C., and reached a like conclusion. I refer to the unreported case of the Lake Erie & W. Ry. v. Kelley Island Iame & Transport Co. decided June 12, 1914.

It is contended, however, that there was no authority for the common pleas court or this court to review the judgment of the justice of the peace on the weight of the evidence and that the motion for a new trial filed before the justice of the peace was not in accordance with the statute. That motion had as one ground that the judgment was against the weight of the evidence. The statutes of Ohio at one time did not authorize a review of a judgment of a justice of the peace on the weight of the evidence, but such is not the law at the present time. The language of General Code, Section 10361, authorizes such review, and the authority there given is not restricted by the language of Sec. 10352 G. C. See Koch v. State, 73 Ohio St. 131, 138 [76 N. E. 868]. It is true that the case just cited was a criminal action, but the Supreme Court there hold that the rule contained in See. 10361 is applicable alike to criminal and civil actions.

This court carefully reviewed the sections authorizing the review on error of judgments entered before justices of the peace and reached a similar conclusion in the unreported case of Brand v. Murray, a Lucas county case, decided on June 7, 1916.

Counsel are not in accord as to whether the request that the justice of the peace should direct the jury to return a verdict in favor of the plaintiff was made before or after the argument. We do not regard the time of the making of that application or request to direct a verdict as important. It was clearly made before the jury had retired and should have been granted.

For the error in refusing to direct a verdict for the plaintiff the judgments rendered will be reversed and final judgment entered here fon the plaintiff in error.

Chittenden and Kinkade, JJ., concur.


text:
    RES ADJUDICATA.
    [Wayne (5th) Court of Appeals,
    September Term, 1916.]
    Klein & Heffelman Co. v. Martha Peterman and T. J. Peterman.
    1. Failure In Instructing Jury as to Separate Defenses of Want of Consideration and Failure of Consideration.
    Where the defenses of want of consideration and failure of consideration and fraud are interposed, failure to instruct the jury fully as to each of these defenses and the burden of proof with reference to each constitutes prejudicial error.
    2, Res Adjudicata.
    The judgment in an equity case, in which the issues joined were tried on their merits and the court found on said issues for the defendant and dismissed the petition, is a complete bar and proper defense to a second action Involving the same issues.
    [Syllabus by the court.]
    Error.

      Bice & Souers and Weygcmdt & Boss, for plaintiff in error.

      Critchfield & Hay, for defendants in error.
   HOUCK, J.

This is a proceeding in error in which it is sought to reverse the judgment of the common pleas court of Wayne county, Ohio.

The plaintiff in error was the plaintiff below and the defendants in error were the defendants below.

The basis of the suit below was to recover the sum of $200 as evidenced by three promissory notes, which were executed by* the defendants and delivered by them to plaintiff in part payment of the purchase price of a piano, the sum of $25 being paid in cash.

The notes were secured by chattel mortgage on the piano purchased of plaintiff by the defendants.

The petition contained a second cause of action asking for a foreclosure of said chattel mortgage.

The defendants in their answer admitted the execution and delivery of the notes and chattel mortgage, the cash payment, and by way of defense they alleged fraud in the transaction on the part of plaintiff, consisting of false and fraudulent misrepresentations concerning the quality of the piano; and for further defenses alleged want of and a failure of consideration for said promissory notes. They also prayed for a judgment for the $25 cash paid.

The reply filed by the plaintiff was in the nature of a general denial; and it further set forth that in a certain suit in equity heretofore filed in the common pleas court of this county by the defendants herein against the plaintiff, that upon issues joined a final hearing was had, on the merits, and all of the matters and things set up in the alleged defenses of the defendants in the ease at bar were fully heard and determined by the trial court in favor of the said defendant in that case, being the plaintiff herein, and the plaintiff herein pleads same as a complete bar to the alleged defenses in the present ease.

Upon these pleadings and the evidence the case was submitted to a jury in the court below, and a verdict returned in favor of the defendants in the sum of $25, and the court entered a judgment on said verdict.

Plaintiff in error seeks a reversal of this judgment, and in oral argument relies upon two grounds of alleged error, to-wit:

First. That the court erred in its general charge to the jury.
Second. That the court erred in excluding the evidence offered by plaintiff in support of its plea of res ad judicata.

Counsel for plaintiff in error, in support of their first ground of alleged error, insist that the trial judge misdirected the jury as to the burden of proof concerning the defenses of want of consideration and failure of consideration, and, further, that the trial court did not separate from the other defenses the alleged defense of fraud, etc.

In examining the charge of the court we find that tne ciaim of plaintiff in error, in this particular, is well founded.

Want of consideration, in law, means arn'd is a total lack of any valid consideration for the contract, and therefore the alleged contract must fall.

Failure of consideration, in law, is just what the plain meaning of the words convey, that is to say, failure of consideration is the neglect, refusal and failure of one of the contracting parties to do, perform or furnish, after making and entering into the contract, the consideration in substance and in fact agreed upon.

This being an affirmative defense, the burden of establishing it is always upon the one who asserts it.

But it is otherwise where the defense is want of consideration. When want of consideration is set up as a defense, in the answer, an issue of fact is raised upon that point, on which the plaintiff has the affirmative, and, the presumption being prima facie only, and not conclusive, the burden of proof rests upon the plaintiff to establish this fact by the preponderance of all the evidence offered ’on the question.

From our examination of the charge we think the trial judge did not properly charge the jury upon these questions; that he wholly failed to explain to the jury the law upon whom the burden of proof rested as to the alleged defenses of want of consideration and failure of consideration; and we further find that the trial judge neglected and failed, in his instructions to the jury, to distinguish as to the difference between the defenses of want of consideration and failure of consideration, and that he wholly and entirely neglected and failed to properly charge the jury as to the separate defenses of want of consideration, failure of consideration, and fraud. These being separate and distinct defenses -the jury should have been fully instructed concerning the law as to each and all of them, the proof required to establish each, and all of them, and upon whom the burden of proof rested to establish each of those defenses.

Coming now to the second ground of alleged error, did the court err in excluding, the evidence offered by the plaintiff in support of its plea of res adjuddcata? We must answer this question in the affirmative.

From an examination of the record of the equity case, which was offered in evidence by the plaintiff in the instant case and excluded by the court, we find that the suit was brought by the present defendants, prior to the commencement of the ease at bar, seeking the cancellation of the same notes and chattel mortgage involved in this case, upon the alleged ground of fraud, etc., being the same as in this ease; also it was sought to recover the $25 cash paid, being the same cash payment for which judgment was entered in the present case. The equity case being tried on its merits upon the issues joined, the final entry in the case discloses that the court “found the issues joined in favor of the defendant [the plaintiff in error], and dismissed the petition with costs.”

The issues in the equity case were the same as in the present case; and the relief sought was the same, which included the judgment for -the $25 cash paid; and the judgment in the equity case was certainly a complete bar and proper defense to the allegations in the answer of defendants in the case under review.

This being so, the court below committed prejudicial error in excluding the record and final judgment, in the equity case, from being submitted as evidence in the trial in the common pleas court in the case at bar.

This court has heretofore passed upon this question, and its views may be found in the reported ease of Feazel v. Feazel, 36 O. C. C. 328 (24 N. S. 357).

We also feel that our Supreme Court has finally settled this question, which is decided in the case of Doyle v. West, 60 Ohio St. 438, 443 [54 N. E. 469], in which Judge Minshall, speaking for the court, says:

“The policy of the law is against the relitigation of questions of law or fact once heard and determined between the same parties. A question of fact once so determined is binding on the same parties in all subsequent litigation. ’ ’

We, therefore, hold there is prejudicial error in the record, as against the rights of the plaintiff in error, as hereinbefore set forth, and, therefore, the judgment of the common pleas court must be reversed, and the cause remanded to the court from whence it came for a new trial or such other proceedings as the law requires. Judgment reversed.

Shields and Powell, JJ., concur.


author: CHITTENDEN, J.

text:
    COURTS — CRIMINAL LAW.
    [Lucas (6th) Court of Appeals,
    December 11, 1916.]
    Kinkade, Chittenden and Richards, JJ.
    George Demuth v. State of Ohio.
    1. Courts Take Judioiai Knowledge that Smaíler City Has no Police Court.
    The courts take judicial notice of the statutory law of the state and of the population of its cities, and it is therefore within the knowledge of the court that the city of Norwalk has no police court.

      2. Jurisdiction of Mayor in Misdemeanors when Acouse'd Waives Jury Triai.
    The mayor of a municipality has final jurisdiction to hear and determine prosecutions for misdemeanors, notwithstanding the right to a trial by jury, if, before the commencement of the trial, the accused waives a jury trial.
    3. Plea of Guilty in Prosecution for Misdemeanor before Mayor Equivalent to Waiver of Jury.
    A waiver of a jury trial in the prosecution of a misdemeanor before a mayor need not be in writing and a plea of guilty entered by the defendant in such prosecution amounts to such waiver.
    [Syllabus by the court.]
    Error.

      Irving Carpenter and R. D. Wickham, for plaintiff in error.

      Jesse Vickery and Rupert Holland, for defendant in error.
   CHITTENDEN, J.

In June, 1916, the relator, Thomas J. Conners, was arrested on a charge of operating a motor vehicle upon the streets of the city of Norwalk, Huron county, Ohio, in a state of intoxication,' upon an affidavit filed by the chief of police of the city of Norwalk. The defendant therein appeared before the mayor of the city and pleaded guilty to the charge, whereupon the mayor sentenced the defendant to imprisonment in the Toledo workhouse for six months and to pay a fine of one hundred dollars and costs. The defendant was transported to the Toledo workhouse and thereupon brought an action in habeas corpus in the probate court of Lucas county, Ohio, for the purpose of obtaining his release. Upon a hearing in that court it was found that Thomas J. Conners was unlawfully restrained of his liberty and he- was discharged. Error proceedings were prosecuted to the common pleas court in which court the judgment of the probate court was affirmed. This proceeding is to secure a reversal of that judgment.

The first contention made by the defendant in error is that the record does not show that the city of Norwalk is a city not having a police court, and that, therefore, the jurisdiction' of the mayor is not shown. The courts of this state will take judicial knowledge of the statutory law of the state and of the population of its cities. It is consequently within the knowledge of the court that the city of Norwalk does not have a police court. Therefore, the claim of the defendant in error in this respect is not well founded.

The principal contention is that the record shows that the affidavit upon which the warrant for the arrest of Connors issued, was not made by the person injured and that, therefore, the mayor had no power to impose the penalty of the statute, upon a plea of guilty, but that he was only empowered to bind him over to a proper court. This contention is based upon the provisions of Sec. 13510 G. C. The plaintiff in error contends that the action is not governed by that section of the General Code but by Secs. 4528 and 4530 G. C. These sections read as follows:

Sec. 4528. He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the constitution, entitled to a trial by jury, and his jurisdiction in such cases shall be co-extensive with the county.

Sec. 4530. He shall have such jurisdiction in the cases mentioned in the last two sections, notwithstanding the right to a jury, if before the commencement of the trial, the accused waives a jury trial.”

The relation of Sec. 4528 G. C. to See. 13510 G. C. was discussed and determined by the Supreme Court of this state in State v. Borham, 72 Ohio St. 358 [74 N. E. 220]. The court did not undertake to reconcile these sections but found them to be in conflict. An examination of the history of the statutes showed that Sec. 13510 was enacted long before Sec. 4528, and the court held that the latter section should be given full effect in determining the final jurisdiction of the mayor in the prosecution of misdemeanors when the accused was not entitled to the constitutional right of trial by jury. The Supreme Court did not discuss Sec. 4530 G. C. as it was in no way involved in the case then under consideration. Sec. 4528 and Sec. 4530 were, however, enacted'at the same time and first appear in the revision of 1880 as Secs. 1817 and 1818, R. S. All the reasoning of the Supreme Court in State v. Borham, supra, applies with equal force to the discussion of See. 4530 as it may be affected by See. 13510, and we hold that the mayor has final jurisdiction to hear and determine prosecutions for misdemeanors notwithstanding the right to a trial by jury, if before the commencement of the trial, the accused waives a jury trial.

It therefore remains to determine whether a plea of guilty amounts to a waiver of trial by jury. It will be observed that See. 4530 does not require such waiver to be in writing as does Sec. 13511 G. C. which provides for proceedings before a magistrate. "While it is true, as said in State v. Borham, supra, that the mayor is, technically, a magistrate and, therefore, the two sections last cited are not in harmony, we hold that the later Sec. 4530, should have effect given to its plain terms and that there is no justification for reading into that statute a provision that such waiver must be in writing.

The circuit court in Wood county in Hillier v. State, 26 O. C. C. 777 (5 N. S. 245) held that:

‘ ‘ The right of trial by jury is waived by entering a plea of guilty in a criminal prosecution before a mayor having complete jurisdiction. ’ ’

Counsel for defendant in error contend that this latter decision is in conflict with the decision of the Supreme Court announced in the case of Hanaghan v. State, 51 Ohio St. 24 [36 N. E. 1072]. The circuit court, however, had that case before it when considering the ease of Hillier v. State, supra, and in the opinion discuss the case and distinguish it from the case then under consideration. Clearly the decision of the circuit court is decisive of the question now under consideration and, if properly decided, should be followed in the decision of this case. ¥e think that the decision of the circuit court is right.

The Supreme Court, in State v. Borham, supra, also had before them the case of Hanaghan v. State, supra, and declined to consider it as an authority in that case. The Supreme Court in speaking of Hanaghan v. State, said:

“The court in that case was dealing with a trial before a justice of the peace where the accusation was such as gave the accused a right to a jury trial and involved a construction of Sec. 7146 and 7147 R. S. (now Secs. 13510 and 13511 G. C.). No reference whatever was made, and none was needed, to Sec. 1817. We have no such case.”

We think that the language of the Supreme Court just quoted applies with equal force to the case now under consideration. Having definitely held that the jurisdiction of a mayor and the jurisdiction of a justice of the peace , are controlled by different sections of the statutes, a decision based upon the statutes governing procedure before a justice of the peace is of but little, if any,, value in determining a case based upon the statutory jurisdiction and powers of a mayor.

In Carper v. State, 27 Ohio St. 572, the court say, on page 577:

“A defendant after a trial and verdict of guilty may move the court for a new trial, for any of the causes specified in the code. One who has plead guilty has waived a trial and can not make such a motion. It would be idle, therefore, to ask the question to one who by his plea has waived the right to avail himself of all matters that might arise on a motion for new trial. ’ ’

That is to say, the Supreme Court holds that a plea of guilty amounts to a waiver of any trial, either by the court or by a jury.

The effect of a plea of guilty is well stated in 12 Cyc. 353.

We find that the mayor of the city of Norwalk had final jurisdiction to dispose of the case and, upon a plea of guilty in that court, he was empowered to impose sentence, and it follows that the relator was legally imprisoned under the sentence and judgment of such mayor.

The judgments of the common pleas and probate courts will be reversed and final judgment will be entered herein in favor of the plaintiff in error, remanding the defendant to the custody of the superintendent of the Toledo Workhouse; and this ease is remanded to the court of common pleas for execution, for -costs and to carry out the judgment.

Richards and Kinkade, JJ., concur.


text:
    CARRIERS — SALES.
    [Erie (6th) Court of Appeals,
    April 7, 1917.]
    Chittenden, Richards and Kinkade, JJ.
    Independent Silo Co. v. Milton A. Hess et al.
    Delivery to Common Carrier Consigned to Purchaser Pursuant to Written Contract Passes Title to Purchaser.
    A written order given by a purchaser on a printed blank, for a certain described silo at a fixed price with three per cent discount for cash within fifteen days after arrival of silo, or settlement to be made by a bankable note, and directing that the goods be delivered by the seller to a common carrier, constitutes, on the acceptance of the order, a completed contract of sale; and, on delivery of the goods by the seder, to the common carrier, consigned to the purchaser at his address, the title passes to the purchaser.
    [Syllabus by the court.]
    Error.

      E. L. Peeke, for plaintiff in error.

      Malcolm Kelly, for defendants in error.
   RICHARDS, J.

The controversy in this case arises over the claims of the respective parties to the proceeds of a certain silo, and is to be resolved by a determination as to whether the title to the same had passed from the plaintiff to one Frank Lowry. The defendants, Milton A. Hess and Mary A. King, are attaching creditors of said Lowry, and the defendant, George Hasenpflug, is the receiver of said Lowry.

On May 12, 1916, Frank Lowry gave an order on a printed blank of the plaintiff company, which directed said company to ship to him as purchaser a certain described Independent silo complete with anchors and roof frame, for which he agreed to pay $201.00, less agent’s commission of ten per cent, and on the following terms: Three per cent discount allowed for cash within fifteen days after arrival of silo, or settlement to be made by bankable note due September 1, 1917, bearing interest at six per cent from September 1, 1916. The contract of purchase also provided that certain provisions on the back thereof were made part of the contract, and among the provisions on the back is the folio-wing: “The Independent Silo Company agrees to deliver the goods to a common carrier, with reasonable promptness after receipt of this order in the regular course of business, but will not be responsible for loss or delay occasioned by strikes, fires, accidents or causes of any character beyond its control. ’ ’

Pursuant to this order the plaintiff shipped the several parts constituting the silo as described in the contract, from its factory in Minnesota, consigned to Frank Lowry at Berlin Heights, Ohio, delivering the same to a common earner by Avhieh they were transported to Berlin Heights, and the goods were received by Lowry and remained in his possession until seized in attachment by the attaching creditors already named. The claims of the attaching creditors exceed very largely the value of the attached property, the judgment in favor of Mary A. King being in excess of $2300.00, and the judgment in favor of Milton A. Hess being in excess of $1000.00.

The transaction betAveen Loavtv and the plaintiff constitutes an ordinary bargain and sale and comes Avithin the plain language oi Section 8399 Q-. C., which prescribes the rules for ascertaining the intention of parties, as to the time at which the property in goods shall pass to the buyer when a different intention does not appear in the contract of the parties. Rule 4, sub-divisions 1 and 2, of that section read as follows:

“Rule 4. (1) When there is a contract to sell unascertained or future goods by description, and goods of that description and in a deliverable state are unconditionally appropriated to the contract, either by the seller with the assent of the buyer or by the buyer with the assent of the seller, the property in goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given either before or after the appropriation is made.
(2) When in pursuance of a contract to sell, the seller delivers the goods to the buyer, or to a carrier or other bailee, whether named by the buyer or not, for the purpose of transmission to or holding for the buyer, he is presumed to have unconditionally appropriated the goods to the contract, except in the cases provided for in the next rule and in the next following section. This presumption is applicable, although by the terms of the contract, the buyer is to pay the price before receiving delivery of the goods, and the goods are marked with the words collect on delivery or their equivalents.”

It will be noticed that the last subdivision provides certain exceptions which are stated in the next rule and in the section of the General Code next following, but those exceptions are not applicable to the case at bar for the reason that subdivision 1 of Sec. 8400 G. C., only provides for eases where the seller expressly reserves the right of possession of property sold until the conditions have been fulfilled, and no'such reservation existed in the case at bar. Sub-division 2 of the section last cited is applicable only to cases where the bill of lading is made to the order of the seller or his agent, which is not this case. And Sub-division 3 is applicable to cases where the seller retains possession of the bill of lading, which is not this case. Neither are the provisions of Sub-division 4 of the General Code just cited, applicable to the case under consideration.

It is insisted, however, by counsel for The Independent Silo Co. that the provisions of See. 8422 G. C., are controlling in this case. That section provides substantially that unless otherwise agreed, delivery of the goods and payment of the price are concurrent conditions. The difficulty with applying that statute to the case under consideration is that the parties did otherwise agree as evidenced by the written order. Under the terms of that order a delivery of the various parts constituting the silo, to the common carrier in Minnesota, the goods being consigned to the purchaser, constituted a delivery to him, and the title thereupon passed to the purchaser. It was in effect a sale on credit and the purchaser had from the time the goods were delivered to the common carrier until they actually arrived in Berlin Heights and had been inspected by him and found to be in accordance with the order, in which to execute and deliver to the plaintiff a bankable note, or if the purchaser chose to pay cash, he was entitled to a discount of three per cent and fifteen days in which to make that payment. We must, therefore, hold the sale to be in effect a sale on credit. The Silo Company trusted the purchaser to furnish either a bankable note or to make payment within fifteen days, and made an unconditional and absolute delivery of the goods when, the same were delivered to the common carrier in Mii...:sota. There was then neither a condition precedent nor a concurrent condition which would prevent the immediate passing of the title to the purchaser on delivery of the goods to the common carrier.

Our attention is called to the ease of Bonham v. Hamilton, 66 Ohio St. 82 [63 N. E. 597], and an argument is made, based on the authority of that case, that the title had not passed from the silo company. That case was decided before the adoption of the uniform sales law; but we find nothing in the conclusion which we have reached that is inconsistent with the law as announced in the case just cited. That case was a sale by an administrator and there had been no delivery of the goods sold, and there was an express stipulation that the transaction was not to be a sale until the sureties had been approved by the administrator. This, of course, was, under the law, no sale until tbe conditions expressly stipulated for had been complied with, and, the administrator declining to approve the sureties, the title remained in the administrator.

On the trial of the case in the court of common pleas a jury was waived and the judge, after due consideration, rendered judgment for the defendants. For the reasons given, the judgment so rendered will be affirmed.

Chittenden and Kinkade, JJ., concur.