text:
    PURCHASES AND DELIVERIES BY INSTALLMENTS.
    [Circuit Court of Logan County.]
    The Contractors and Builders’ Supply Company v. The Alta Portland Cement Company.
    Decided, February Term, 1904.

      Bills of Exceptions — Unattached Box of Exhibits — Review on Weight of the Evidence — Measure of Damages and Misdirection to Jury as to — Groundless Counter-claim, — Purchases and Deliveries by Installments — Effect on Contract of Sale of Failure by Purchaser to Pay at Stipulated Time.

    1. Where a hill of exceptions and a box of exhibits were filed in the common pleas court on the same day, but were not attached at that time, and there is no fact except the simultaneous filing of the box and the bill to identify the box or its contents with the case on review, the box does not become a part of the bill of exceptions.
    2. The subsequent attachment of the box to the bill of exceptions by a string after the case had reached the circuit court, is either an amendment of the bill by an act of the party, or the attachment has no significance whatever; and in either event the tie that binds should be severed, and the disconnected parts given such recognition as each is entitled to on its own showing.
    3. An identification of the box and its contents being impossible, except from sources outside of the record, and it affirmatively appearing from an inspection of the record that there were matters of evidence considered by the jury which are not a part of the bill submitted to the trial judge and signed by him, it follows that the bill of exceptions before the reviewing court can not be considered on the weight of the evidence for the reason that it does not contain all of the evidence, the certificate of the trial judge to the contrary notwithstanding.
    4. A misdirection to the jury as to the measure cf damages applicable to a given case is immaterial, unless the jury was also misdirected as to right to recover, where it appears from the record that the jury assessed no damages.
    5. However the law may stand in the case of a well grounded counterclaim made by a defendant for damages, it can not be seriously contended that the assertion, of a groundless counter-claim, even if asserted in good faith, excuses a defendant from the performance of an obligation either admitted or proved on trial.
    6. Under the contract in suit, the purchaser having failed to make installment payments when due, the seller had the right to refuse to make installment deliveries at the time agreed upon.

      Mooney, J.; Day, J., and Norris, J., concur.
   In the original action defendant in error as plaintiff sued to recover from plaintiff in error as defendant, a balance of $1,-145.60 upon an account for merchandise sold and delivered. In its amended and supplemental answer and cross-petition said defendant admitted the account and set up a credit on the same of $218.90 arising since the commencement of the action, leaving an admitted balance of $926.70 on the account. To cancel this balance and also to secure a recovery in its own favor defendant by way of cross-petition pleads two causes of action:

First. That under a contract entered into 1901 for an agreed price to be paid by defendant, plaintiff agreed to sell and deliver certain cement, which upon test made by the Osborn Engineering Company, of Cleveland, Ohio, would prove to be and, in fact, would be of a certain quality; that in pretended performance of said contract plaintiff did deliver certain cement which in fact was not subjected to the required test and which was worthless in quality; that defendant relying upon plaintiffs performance of its contract accepted more than 285 barrels of this worthless cement and used the same in the construction of a railroad platform; that said construction was defective by reason of the worthless quality of said cement and defendant was compelled to reconstruct the platform, in all to its damage in the sum of $1,200, for which judgment was prayed.

Second. Defendant states that on March 6, 1902, plaintiff and defendant entered into another contract by the terms of which, for an agreed price to be paid by defendant, plaintiff agreed to manufacture and sell to defendant, and deliver on board cars at Rushsylvania, Ohio, during the building season of 1902, 15,000 barrels of the best brand of Alta Portland cement, deliveries to be made in such quantities and at such times during said season as defendant might from time to time require, payment to be made within sixty days from date of each bill of lading; or defendant might pay in ten days and retain a discount of two per cent. Defendant states that during said season plaintiff delivered under said contract 950 barrels of cement and no more, the same being the merchandise an account of which is stated in plaintiff’s petition, and plaintiff has and ■does now, without any fault of defendant, fail, neglect and refuse to furnish and deliver any more cement under said contract and by reason of such failure, neglect and refusal the defendant, without any fault upon its part, has been unable to supply the demand upon it, and has suffered and sustained a loss of the difference between the market value of cement during the season of 1902 and the price at which plaintiff agreed to furnish the said 15,000 barrels of cement, to-wit, the sum of $1.0742 per barrel, making a total of $15,092.51, for which upon this second cause of action judgment is prayed. Plaintiff by way of answer to the cross-petition pleads a waiver by defendant of the required test as alleged in the first cause of action and denies all other statements of the cross-petition.

The action on these issues was tried to a jury, and a verdict returned for plaintiff in an amount exactly equal to the balance due on plaintiff’s account as admitted by defendant, with interest from the date named in the petition to the day of trial. Defendant filed its motion for a new trial, one ground of which is that the verdict is not sustained by sufficient evidence. This motion was overruled and judgment was entered on the verdict. Defendant duly took a bill of exceptions, and now prosecutes error here to reverse the judgment of the common pleas. The errors assigned are, in substance, in the rulings of evidence, in the charge to the jury and in overruling a motion for a new trial.

The bill of exceptions, as it appeared when called to the attention of this court, consisted of a volume of typewritten testimony, statements as to rulings thereon, certain identified letters, documents and depositions, the charge of the court and exceptions thereto. To this volume there was attached a pasteboard box bearing two labels as follows: “Plff’s Exhibits 16 and 17” and “Deft’s Exhibits A1, A2, A3 and A4.” The box itself bears no other marks of identification. Enclosed in the box are six separate specimens of cement composition. These specimens are labeled respectively “Plff.’s Ex. 16,” “Plff.’s Ex. 17,” “Deft.’s Ex. A1,” etc., but none of them bear any other marks of identification. The bill of exceptions proper shows that specimens marked as those were offered in evidenced the trial, but the bill does not refer to the specimens as being attached to it, nor does the box nor the specimens refer in any way by any mark to the bill nor to the action either by number or title. The defendant in error moves to strike the box and its contents from the bill for reasons: 1, said box and contents were not filed in the court of common pleas within time; 2, the same were never submitted to the trial judge as part of the bill; 3, the same were never attached to said bill until after February 15, 1904; 4, the said box and contents were never filed in this court.

The motion was submitted here upon the evidence from which it appears that the second, third and fourth grounds of the motion are well taken. Although there may be some doubt, we find that the bill proper and the box are each filed on the same day in the common pleas, but at the time they were not attached to each other, and there is no fact, except that of simultaneous filing with the bill proper, to identify the box or its contents with the case on review, or in fact, with any case whatever.

It is manifest that the attachment of the box to the bill proper, when the ease had been carried to this court, is either an amendment of the bill itself by an act of the party in this court, or else such attachment has no significance whatever. If it be an amendment it is important in this case. In either event we think “the tie that binds” the box to the bill'proper should be loosed and the disconnected parts receive such recognition here as each upon its own showing is entitled to. Disconnected from the bill proper there is nothing of record or discoverable upon mere inspection to identify the box or its contents with the case on review, and for information on the point we are driven to sources dehors the record as defendant in error was upon his motion. On the authority of The R. R. Co. v. Mackey, 53 O. S., 370, we hold the box and its contents to be no part of the bill of exceptions in this case. It results therefore that there is before this court no bill of exceptions containing all the evidence submitted at the trial. The certificate of the trial judge to the contrary is of no avail since, upon an inspection of the bill, it affirmatively appears that there were matters of evidence considered by the jury which are not a part of the bill which was submitted to the trial judge and which he signed. This proposition was also involved in the Mackey case heretofore cited.

An examination of the bill of exceptions does not disclose any error in the admission or rejection of evidence, and no special complaint or objection in this respect is pointed out to us in argument, in the briefs or by notation on the bill itself.

We think it is evident upon a reading of the bill itself, that if it be held that the evidence in the bill is all the evidence in the case, there is such a material conflict in the evidence relating to both causes of action stated in the cross-petition that no-reviewing court could hold that a finding against the cross-petition is against the manifest weight of the evidence upon either issue. Under these circumstances it is fortunate that the real matters in dispute between the parties are fairly and fully presented by at least one of the exceptions to the charge. We are pleased to be able to conclude that the failure of the bill to present all the evidence does not result in any different ruling here than would be required if we were to hold that the evidence is all in the bill.

Plaintiff in error specially excepted to the instructions given in the charge as to the measure of damages applicable to the second cause of action of the cross-petition. Without quoting the charge, it is sufficient to say that the jury was instructed that if plaintiff in error sustained the claim made in the second cause of action, it would be entitled to a substantial amount in damages, and rules to determine the amount were stated. The jury returned its verdict for defendant in error for the precise amount defendant in error was entitled to recover in the event that plaintiff in error failed to sustain either of its causes of action. It is thus manifest from an examination of the record that the jury found against the plaintiff in error upon both of its causes of action. A misdirection as to the measure of damages on the second cause of action is immaterial unless, as the record stands, the jury was misdirected as to the right to recover on that cause of action. Whether there is such misdirection, is the question raised by another exception to the charge.

Plaintiff in error also excepted to the instruction that the dispute between plaintiff and defendant on the question of damages for defective cement for railroad platform under the former contract would be no excuse to plaintiff in error for refusal to pay for deliveries of cement under the contract in suit according to the terms of the latter contract. The correctness of this charge is held, in effect, in Bradley v. King, 44 Ill., 339, but we do not think it is now important in the case whether this instruction be correct or not. The jury found that plaintiff in error had no valid claim for damages on account of the platform transaction and that, in consequence, the assertion of such claim by defendants was groundless. However, the law may be in the ease of a well-grounded counter-claim made by defendant for damages, it is believed that no one will seriously contend that the assertion of a groundless counter-claim will excuse a defendant from the performance of his obligation arising from a contract either admitted or proved upon trial.

“An ill-founded claim for damages in such case does not excuse a defendant from performance, when performance of his admitted obligation becomes due, and if the claim for damages is, in fact, ill-founded, the good faith of the defendant in asserting such claim is, in an action at law, immaterial.” Cresswell Ranch Co. v. Martindale, 11 C. C., 33.

Hence, if this instruction be erroneous, it is not prejudicial to plaintiff in error.

Plaintiff in error also excepted to the instruction, in substance, that if the jury find the contract to be as claimed by defendant in error, and that plaintiff in error did not pay for each shipment of cement at the expiration of the ten days’ credit provided by the contract, as defendant in error claims, then on account of such failure by plaintiff in error to pay, defendant in error was released from the obligation to make further shipments of cement under the contract. The jury did find the contract to be as claimed by defendant in error, and so by the correctness of this instruction, the validity of the judgment of the common pleas is to be determined in this proceeding.

The evidence in the record, together with the finding of the jury, makes it clear that defendant in error agreed to manufacture and deliver in installments to plaintiff in error from time to time in 1902 as ordered 15,000 barrels of cement; that plaintiff in error agreed to pay for each shipment within ten days from the date of bill of lading; that under said contract, pursuant to plaintiff in error’s order, defendant in error shipped on April 29th, 130 barrels; May 5th, 100 barrels; May 14th, 130 barrels; May 16th, 195 barrels; May 16th, 100 barrels; May 28th, 195 barrels; and May 31st, 250 barrels; that on June 3, 1902, defendant in error complained of non-payment for goods theretofore shipped and, in effect, declined to make further shipments; in reply, plaintiff in error asserted that the credit was sixty days on each shipment, and that by contract it was the sole agent for Hamilton county, for defendant in error’s product, and that another Cincinnati firm was being supplied by defendant in error with “Alta” cement, and that defendant in error had, in consequence, broken the contract. No part of the price for the cement shipped as heretofore stated having been paid, the original action was commenced in the common pleas June 19, 1902, to recover the same. No payment for the cement shipped has ever been made. Plaintiff in error offered about June 25, 1902, to pay for future shipments in cash, or in any way that defendant in error might desire, but defendant in error declined to make further shipments and based its refusal upon the failure to pay for the installments then delivered according to contract. The question of law is whether, under these circumstances and for the reason relied upon, defendant in error had the right to refuse further performance. The trial court instructed the jury that defendant in error had such right by reason of the non-payment.

While the contract to purchase is divisible or “distributive” as to performance, it was, nevertheless, a single entire contract in its formation and obligation (Pope v. Porter, 102 N. Y., 366; Denny v. Williams, 5 Allen, 1-4), and the promise and performance on one side was the sole consideration for the promise and performance on the other. In the nature of the contract, at least partial performance on the part of the defendant in error was a condition precedent to a corresponding partial performance on the part of the plaintiff in error. An installment delivery was to precede by ten days a corresponding payment. The initial installment was shipped by defendant in error on April 29, 1902. By the finding of the jury, payment of this fell due on May 9, 1902. Subsequent payments fell due before June 3, 1902, on May 15, 24 and 26. Plaintiff in error made default in each case and no payment whatever was made before June 3, 1902, when defendant in error declined to make further shipments on the contract, nor before June 19, 1902, when the original action was commenced, nor before October 28, 1902, when plaintiff in error asserted its second cause of action by way of counter-claim in the original action.

The question arising upon the exception to the charge in the respect under consideration has not been determined by the Supreme Court of our state. In other jurisdictions the cases are in conflict. Courts of the very -highest authority have held that the failure of the purchaser to make installment payments, or the seller to make installment deliveries at the very time agreed upon, does not of itself authorize the other party, after performance has commenced, to refuse further performance. After some hesitation and with the decisions of the inferior courts in conflict, the House of Lords has declared this to be the law of England (Mersey Steel Co. v. Naylor, 1884, 9 App. Cas., 434-439); the same rule is recognized and enforced in New Jersey (Blackburn v. Reilly, 54 Am. Rep., 159; Gerli v. Poidebard Silk Mfg. Co., 51 Am. St., 611); in Iowa (Myer v. Wheeler, 65 Iowa, 390; Osgood v. Bauder, 75 Iowa, 550), and in Michigan (West v. Bechtel, 84 N. W., 69, reviewing many cases).

This last ease, page 76, states the rule and its consequences as follows:

“The rule is that defaults by one party in making particular payments or deliveries will not release the other party from his duty to make the other deliveries or payments stipulated the contract, unless the conduct of the party in default be such as to evince an intention to abandon the contract, or a design no longer to be bound by its terms. This rule leaves the party complaining of a breach to recover damages for his injury of the normal principle of compensation, without allowing him the abnormal advantage that might inure to him from an option to rescind the bargain.”

On the other hand, many courts of equal authority with those heretofore referred to have announced and enforced the rule “that the failure of either party to perform an essential term of the contract gives to the other the right to rescind, ’ ’ or refuse thereafter further to perform the contract. Such is the holding of the Supreme Court of the United States, Norrington v. Wright, 115 U. S., 188; Cleveland Rolling Mills v. Rhodes, 121 U. S., 205; New York, Pope v. Porter, 102 N. Y., 366; Winchester v. Scott, 114 N. Y., 640; Kokomo Strawboard Co. v. Inman, 134 N. Y., 92; Illinois, Bradley v. King, 44 Ill., 339; George H. Hess Co. v. Dawson, 149 Ill., 139; Rhode Island, King Phillips Mills v. Slater, 34 Am. Rep., 603; Providence Coal Co. v. Coxe, 35 Atl. R., 210; Pennsylvania, Rug v. Moore, 110 Pa. St., 236, citing and distinguishing Scott v. Kittanning Coal Co., 33 Am. Rep., 753, which is often cited as opposed; Maryland, McGrath v. Gegner, 39 Am. St., 415; Curtis v. Gibney, 59 Md. 131; Massachusetts, Stephenson v. Cady, 117 Mass., 6, in which ease it was held that when executory contracts are made on different days for the sale of goods, the price- of which is to be payable on delivery, and the deliveries under the second contract are by its terms to commence when the full quantity required by the first has been shipped, the purchaser can not, after refusing to pay for goods delivered under the first, unless the seller will give security for the entire fulfillment of the contracts, maintain an action for non-delivery under the second contract. See also, Stokes v. Barrs, 18 Fla., 656; Robson v. Bohn, 27 Minn., 333; Branch v. Palmer, 65 Ga., 210; Fletcher v. Cole, 23 Vt., 114-119; Haines v. Tucker, 50 N. H., 307; Durnel v. Howard, 30 Me., 258, These last cases are cited and relied upon as sustaining the rule last above stated, but the writer has had no opportunity to examine the cases themselves in any official report. Coffinberry v. The Sun Oil Company, 68 O. S., 488, distinetly recognizes the principles upon which these cases are decided.

It is suggested in the case of Norrington v. Wright, 115 U. S., 188, that the rule announced in Mersey Steel Co. v. Naylor “is applicable only to the ease of the buyer to pay for and not that of a seller to deliver” installments and the inference to be drawn from the suggestion is that a different rule applies to a buyer in default than to a seller in the same situation. The suggestion referred to was obiter the case of Norrington v. Wright, and the cases do not lend support to the inference; see Benjamin on Sales, Section 593a; Kokomo Strawboard Co. v. Inman, 134 N. Y., 92; George H. Hess v. Dawson, 149 Ill., 138; Rugg v. Moore, 113 Pa. St., 236; Stephenson v. Cady, 117 Mass., 6, and McGrath v. Gegner, 39 Am. St., 415, are all cases in which the buyer made default and it was held that the seller was thereby released from the duty to make further performance, and in none of these cases is it held or suggested that the result of a default of the buyer is other or different from that of a default of a seller.

In view of all the cases, and after a careful and critical review of them, Mecham in his recent and valuable work on Sales, at Section 1148, says:

“Though the cases are not in harmony, this view that the failure of either party to perform an essential term of the contract gives to the other the right to rescind that contract is sustained by the clear weight of American authority. ’ ’

In the New Jersey case heretofore cited, 51 Am. St., 611, Van Syckle, J., dissented and wrote a dissenting opinion, maintaining that for the seller’s default in delivering one installment the buyer could refuse further performance. The learned editor of the American State Reports, at page 615, says:

“We entertain no doubt that the dissenting opinion is well supported by authorities, and sustained by reason.”

The consequences of the prevailing opinion were thus described by the dissenting, judge:

“Under the rule of which the judgment below is based, if there is a contract for twelve successive monthly deliveries, the vendor may refuse to make eleven of the deliveries as the due days arrive, and still hold the vendee to the acceptance of the twelfth delivery. Such a doctrine will be startling to the business community. It needs no discussion to show, that in those pursuits where supplies are essential to the employment of labor, no business enterprise can be conducted with safety or success under such a rule. A contract for goods in installments is hereby perverted into an agreement to engage in a series of law suits, if the vendor so elects, for such damages as the purchaser may be able to recover, as a substitute for what he expressively bargains for, and during all this period the purchaser can not safely secure his needed supplies elsewhere, because he can not know until the due days arrive whether the vendor will make further default. The injustice of such an exposition of the law is even more conspicuous when we consider that in many cases the purchaser will be compelled to seek redress in the courts of another state or in those of a foreign country. ’ ’

If the seller ready to perform is not released at his option from further performance upon failure of the buyer to make his payments as agreed, an equal injustice will be done the former and an unexpected hardship visited upon him without any fault whatever upon his part. This seller was a manufacturer of cement. The seller had stipulated for payments within ten days of each delivery. It was not bound by any contract duty to extend a further time of credit nor assume the risks incident thereto. It had the right to rely upon the prompt payment of the installments to supply the necessary funds to continue its manufacture. Having thus arranged for funds, it was not bound to look elsewhere for its supply. It was not bound to enlarge investment by using its own funds or borrowing funds in order that the buyer might continue to make default or to remain in default. It was not bound to accept a chose in action when cash was promised.

“In mercantile contracts time is generally of essence,” and this is particularly true in contracts for the manufacture and sale of goods (Howes v. Shand, 2 App. Cas., 455; Jones v. U. S., 96 U. S., 24; Norrington v. Wright and Cleveland Rolling Mills Co. v. Rhodes, ubi supra; Camden Iron Works v. Fox, 34 Fed. Rep., 200; Scarlett v. Stein, 40 Md., 512; Cromwell v. Wilkinson, 18 Ind., 365.

"While time of payment is not generally of essence, we have seen that in contracts such as the one under consideration here it is held that time is of essence as to payment as well as to delivery. We conclude in accordance with what we believe to be the clear right, both of American authority and cosmopolitain reason, that in the case on review the seller had the clear right to refuse further performance under the circumstances stated in the instruction to the jury.

How does plaintiff in error stand as to the very authorities relied upon by it? Defendant in error maintained below, and the jury found, that each installment delivered should be paid for in ten days. The admitted fact is that plaintiff in error denied that this was the contract — it was entitled to a sixty-day credit, and this not only upon deliveries already made but upon those to be made in the future. This contention of plaintiff in error involved by necessary implication the declaration of plaintiff in error’s intention “to abandon the contract, or a design no longer to be bound by its terms” as the jury upon sufficient evidence found the contract and its terms to be. The offer of plaintiff in error through its attorney to make any terms as to payment for further deliveries is not material in the case because the offer was made after the defendant in error had exercised its option “to rescind.” So even upon the ease of Mersey Steel Co. v. Naylor, and similar eases, the plaintiff in error must fail.

It may be added that at the very time when plaintiff in error filed its cross-petition in the original action, that party was in default for performance of its contract pot in some mere matter of detail, nor as to some ‘ ‘ subsidiary provision, ’ ’ but as to every single duty which was enjoined upon it under the contract and the performance of which constituted the consideration — the entire consideration for defendant in error was therefore to enforce a contract which, before action brought, it had broken, and the entire consideration of which it had been, caused to fail.

If, as Judge Day finds from the record, the transaction between the parties hereto amounts merely to the creation of a selling agency, it is very clear that upon failure of the agent or factor to transmit the proceeds of sales to the principal at the times when under the contract of agency the payments became due, the principal was at liberty to terminate the agency forthwith and bring suit for the balance then due. The writer is not of opinion that the transaction resulted in the creation of a selling agency but that it was and is a contract to sell.

In any view we find no error in the record to. the substantial prejudice of plaintiff in error, and for that reason the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    FEES TO TRUST COMPANIES FOR ACTING AS ADMINISTRATORS.
    [Hamilton County Circuit Court.]
    The Union Savings Bank & Trust Company et al v. Elizabeth S. Smith et al.
    Decided, May 12, 1904.

      Wills — Review of Controversy as to Construction of — Does not Involve Weight of Evidence• — Necessary Parties Thereto — Statutory Fees May he Paid to Trust Company Acting as Administrator — Notwithstanding Invalidity of Act Authorising Appointment — Defense of Will by Administrator — Expenses Involved Thereby.

    1. In a controversy which concerns the residue of an estate, legatees who have been paid are not necessary parties.
    2. A motion to strike a bill of exceptions from the files upon the ground that it does not contain all the evidence, should be overruled when the errors complained of do not involve the weight of the evidence.
    3. A trust company which was appointed without objection as administrator of an estate, and has performed services in that capacity is entitled to compensation therefor, notwithstanding the invalidity of the act under which the appointment was made, and the measure of such compensation is the amount allowed by statute to legally appointed executors and administrators.
    4. Where an executor defends a will, and the suit results in a verdict upholding the will, he should be allowed counsel fees, without regard to the fact that the verdict was the result of a compromise between the parties in interest.
    5. An executor is not entitled to commissions on real estate which formed part of the residuary estate, and was conveyed in accordance with an agreement between the parties.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   This action arose in the probate court upon exceptions to the account of The Union Savings Bank & Trust Company as administrator de bonis non with the will annexed of Nicholas Patterson, deceased, and as executor of the last will and testament of Elizabeth P. Patterson, deceased. All the exceptions were overruled by the probate court, and upon appeal to the common pleas •court, the exceptions to the allowance of attorney fees to Maekoy & Lownnan in a contest of the wills of Nicholas Patterson and Elizabeth P. Patterson, and the exception to the statutory commissions credited in the account- of the administrator and executor, respectively, were allowed by the common pleas court and all other exceptions were overruled. To this judgment the trust company prosecutes error and the defendants in error, not having filed any cross-petition in error, the only question for consideration in this court is the judgment of the common pleas court in sustaining such exceptions.

A motion is filed in this court to strike the petition in error from the files for want of necessary parties. The question in controversy concerns the residue of the estate of Elizabeth P. Patterson, deceased, after the payment of certain special legacies. These having been paid, and concerning which there is no dispute, the legatees are not necessary parties and the motion to

A motion is also filed to strike the bill of exceptions from the strike the petition in error from the files will be overruled, files, for the reason that certain exhibits offered in evidence are not attached to the bill, and that it recites that it contains all the testimony offered in the case and not all the evidence in the case. The motion will be overruled for the reason that the weight of the evidence is not involved in the determination of the case which depends entirely upon the construction of the will of Elizabeth P. Patterson, deceased, and a written agreement dated April 19, 1901, between The Union Savings Bank & Trust Company, executor and trustee under the will of Elizabeth P. Patterson, deceased, The Old Men’s Home, The Widow’s Home, The Home for Incurables, and The Children’s Home, devisees under the will of Elizabeth P. Patterson, of the one part, and Elizabeth S. Smith and Mary E. Bishop, heirs at law of Elizabeth P. Patterson, of the other part, each of which writings are attached to the bill of exceptions.

• It is further claimed that the trust company is not entitled to the statutory commissions allowed executors and administrators, because under the recent decision of the Supreme Court in the case of Schumacher v. McCallip, reported in The Ohio Law Reporter of March 14, 1904, it is held that—

“Trust companies are without capacity to receive and exercise appointments as administrators of the estates of deceased persons, because legislation evincing an intention to clothe them with such capacity is void, being of a general nature and not of uniform operation throughout the state. ’ ’

But in that case the objection was made at the time of the appointment, while in this case no objection was then made. The services by the executor have since been fully performed and the estate received the benefit of such services. The defendants in error ought not now be heard in complaint of a reasonable compensation, the measure of which is that allowed by statute to legally appointed executors and administrators.

The residue of the estate of Nicholas Patterson, deceased, was devised and bequeathed to his wife, .Elizabeth P. Patterson, and under the tenth item of the will of Elizabeth P. Patterson, it is provided that—

“Subject in all respects to the foregoing provisions of this my will * * # I give, devise and bequeath all the rest and residue of my property real and personal, wherever the same may be, to The Union Savings Bank & Trust Company of Cincinnati, Ohio, to have, hold, manage and control, sell, invest and reinvest, in trust nevertheless, for the uses and purposes and subject to the limitations hereinafter mentioned.”

The defendants in error, Elizabeth S. Smith and Mary E. Bishop, having commenced an action to contest the will of Nicholas Patterson, and also that of Elizabeth P. Patterson, the agreement of April 19, 1901, was made providing that said parties of the second part will forbear all further contest of said wills, and providing that—

“The said devisees and each of them, in consideration thereof, agree and consent that the said executor and trustee of Elizabeth P. Patterson shall pay over and convey to said Elizabeth S. Smith and Mary E. Bishop, the one-half of all property and sums which are devised to said executor and trustee for the use and benefit of each of said devisees, in'pursuance of the order of the probate court, in re the estate of said testatrix, this day made.
“And it is further understood that in making the said division the real estate, or any part thereof, may be taken at an agreed, value by either of said parties, or if otherwise, shall be sold at public auction, and the said devisees “will unite with said executor and trustee in the conveyance thereof, the proceeds thereof to be divided as above provided.”

It is claimed by Mrs. Smith and Mrs. Bishop that under this agreement the executor'is not entitled to an allowance for counsel fees in the contest of the will, nor of its statutory commissions upon the personal estate accounted for. It is contended that they are entitled to one-half of the property devised to the executor for the use and benefit of each of said devisees. Nothing, howver, is devised to the executor, but under the tenth item of the will, the rest and residue is devised to The Union Savings Bank & Trust Company as trustee for the four charities. The residue could not be ascertained until the debts and special legacies were paid and the estate fully administered, when the balance, less expenses of administration, would be paid by the executor to the trustee.

As a part of such expense, the executor has credited this account with the payment of two thousand dollars to Mackoy & Lowman, in the contest of the two wills.. In the case of Andrews’ Executors v. His Administrators, 7 O. S., page 143, the syllabus is as follows:

“An executor is not bound to assume the burden of the defense of .a contest of the will by the heirs at law, but may properly throw the same upon the legatees or devisees. The executor is not entitled, when the will is adjudged invalid, to charge the estate, in his settlement account, with the expense of maintaining such defense.”

And on page 151, the court say:

“We find no authority to sustain the position that a party acting as trustee is bound to defend the relation of trustee whenever the rightful existence of that relation is assailed or called in question; although, should he do so, and do it successfully, it seems he would, in that case, be entitled to charge his proper expenses against the trust estate; and this for the reason that his expenditure inures to the benefit of the cestui que trust.”

In this case, both of the wills were sustained and while it is true there was an agreement of compromise, yet they were sustained by a jury and the judgment of the court, and now stand as valid wills. We think, therefore, the counsel fees should be allowed, and the court of common pleas erred in sustaining the exceptions thereto.

Section 6188 of the Revised Statutes, provides—

“Executors and administrators may be allowed the full commissions upon the amount of the personal estate collected and accounted for by them and all the proceeds of the real estate sold on an order of court for the payment of debts, or under directions of the wills, which shall be received in full compensation for all their ordinary services.”

The words “personal estate” is broad enough to include the stocks, bonds, and other securities, and when collected together and accounted for by the executor, he is entitled to the statutory commission thereon. The real estate, however, was not sold or conveyed under directions of the will, but in accordance with the agreement of April 19, 1901. It was a part of the residuary estate to be turned over to the trustee and upon which the executor was not entitled to any commission, and in disallowing the same the common pleas court did not err.

The judgment of the court of common pleas will therefore be reversed, in so far as it sustains the exceptions to the allowance of attorney fees, and the exception to the statutory commissions other than that upon the real estate, and affirmed in sustaining the exception to the allowance of the latter commissions.


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    DEPOSIT AS A CONDITION OF BIDDING FOR. A FRANCHISE.
    [Circuit Court of Lucas County.]
    William R. Hattersly v. The Village of Waterville and The Northern National Bank of Toledo, O.
    Decided, February 23, 1904.

      Municipal Corporations — Control of, over the Construction and Operation of Street Railways — Consideration for a Deposit Made as a Condition for Bidding for Franchise — Breach of Contract to Build the Road — Chech Deposited Held to be Collectable.

    1. Municipalities of this state have general powers to permit and regulate tbe construction and operation of street railroads upon such reasonable terms and conditions as they may determine, irrespective of the provisions of Sections 2501, 2502, 3437, 3438 and 3439, Revised Statutes; and regardless of their constitutionality, and as an incident to the exercise of such power, municipalities may regulate the making of bids by third persons for the privilege of building a street railroad and transporting passengers through the streets.
    2. A valid contract exists between a municipality and an interurban railway company, when the latter, with knowledge of all the terms and conditions upon which a municipality advertised for bids to construct and operate a street railroad through its streets, whereby it agreed to grant a franchise to the lowest bidder, filed a bid and agreed to accept the franchise if awarded to it, which bid being the lowest, was duly accepted and the franchise awarded by ordinance and which franchise the company accepted.
    3. A street railway company can not accept a franchise as soon as it is granted by council and afterwards relieve itself from all obligation thereunder, on the ground that the franchise at the time of such acceptance had not been published and gone into effect. The franchise upon going into effect after its legal publication will relate back to the time it was accepted.
    4. The deposit of a certified cheek by a railway company with a municipal corporation as a guaranty of its good faith and as a • condition required by the municipality to secure a bid made by it for the construction of a street railway through the streets, is not without consideration, in that the municipality gave nothing to the railway company and the company agreed to carry passengers within the municipality free of charge, when it appears that the company desiring a franchise through the municipality, in order to complete its road from terminus to terminus, applied for a franchise and in consequence thereof the municipality advertised for bids to construct a street railroad through it, agreeing to grant a franchise to the lowest bidder, that the company submitted its bid, which being the lowest was accepted and the franchise granted, whereby it was given eleven months within which to build its road, which franchise was accepted by the company.
    5. Under the general rule that forfeitures are not favored, a deposit made or bond given to secure the faithful performance of an obligation will be regarded as a penalty, and held to be a security for such performance or to secure damages arising from a breach which the party may suffer and prove, rather than liquidated damages or a forfeit to be lost absolutely in case of a violation of the contract; but where the circumstances are such and the contract secured is of such a character that proof of damages in case of a breach would be practically impossible, it will be held to be liquidated damages and the contract strictly enforced.
    6. A certified check deposited as required by resolution of the council and the advertisement for bids, by a street railway company with a municipal corporation as a guaranty of its good faith and as security for a bid for a franchise in the streets for the purpose of constructing and operating a railroad, which check was to be kept on deposit as a security that the company will carry out all the conditions of the franchise and complete the road within eleven months, and it is provided by the franchise ordinance which was accepted by the company, that the check should become the property of the municipality unless the conditions of the franchise were complied with, will be held to be liquidated damages and not in the nature of a penalty, and will be forfeited absolutely to the municipality if the company fails to commence the road within eleven months or carry out any of the terms of the franchise, but entirely abandons the enterprise.
    Hull, J.; Haynes, J., concurs; Parker, J., dissents.
   This action was brought in the court below by the Village of Waterville against The Northern National Bank of Toledo, Ohio, and afterwards William R. Hattersly,' the plaintiff in error, was also made a party defendant. The action was brought on a certified cheek for $2,500, drawn by O. E. Sutton in favor of said William R. Hattersly and afterwards endorsed by him to the Village of Waterville. The cheek was deposited by The Toledo, Defiance & Napoleon Railroad Company with the Village of Waterville to secure the carrying out of a bid and guarantee of good faith of such company, which proposed to and did bid upon a franchise for the construction of a street railroad through the village of Waterville. The bid of the railroad company was accepted by the Village of Water-ville, it offering to carry passengers through the said village free and the franchise awarded to it. By the terms of the franchise many things were required, as is usually the ease, and among other things that the construction of the street railroad should be commenced as soon as practicable and completed within eleven months. The franchise further provided that if the conditions of the franchise were not complied with — the railroad not commenced as soon as practicable and finished within eleven months, unless delayed by legal proceedings commenced in good faith, and the other conditions — that this cheek then on deposit with the village should, become the property absolutely of the village. In short, that unless the conditions of the franchise were carried out, the certified check then on deposit should be forfeited to the Village of Waterville. This franchise was .accepted by the street railway company by C. E. Sutton, its president, he being the same C. E. Sutton who signed the check in question, Sutton being the president of the company and Hattersly the treasurer of the company, and they seem to have been acting for the company in all these matters. The check was loaned to the company to be used in furthering this enterprise, or at least in securing the bid and as a guarantee of good faith, such a check or that amount in money being required by the resolution passed by the council of the village to be deposited with the bid.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But we think this is not that kind of a case; the breach of this contract is not a case where the damages could be easily ascertained; but is a case where it would be practically impossible to ascertain the damages, and perhaps a ease where no damages at all could be recovered, and yet, where we can see that the village, as such, has suffered substantial damages by reason of the railroad company failing to build this railroad as it agreed to do, and to carry passengers as it agreed to through its streets free of charge. This bid being on file and the period of eleven months being given, all other persons or corporations were blocked, practically so at least, from building or offering to build a street railroad through this village. It does not seem to us that it would be a salutary rule of law, a healthy doctrine to 9).oW, that a company can bid to construct a street railroad through a municipality as was done here, and offer to carry passengers free and then disregard and violate its contract, do nothing for a period of nearly a year, thus keeping out other companies or individuals absolutely and then wholly abandon the enterprise and be practically immune from all damages. We can readily see how there might be a purpose with companies or persons to put in sham bids to keep others from constructing street railroads and we do not think the law ought to be such as to sustain conduct of that kind — not saying that that is true in this case — but that it might be done. In many eases of this character the courts have construed contracts similar to this to be for stipulated damages.

In the case of Brooks v. Wichita, 114 Fed. Rep., p. 297, the court say on page 298:

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

In the case of Peekskill, C., C. & M. R. R. Co. v. Village of Peekskill, 47 N. Y. Sup., p. 305 (affirmed without report in 165 N. Y., 628), the village granted a franchise to the railroad company to construct a street railroad through its streets. Among other conditions, it was provided that in the event of failure of the company to construct and operate its road within one year, the sum of ten thousand dollars, which it was required to deposit with the treasurer of the village as a guaranty of good faith, should immediately “be and become absolutely the property of the village of Peekskill, for its uses and purposes as liquidated damages for said failure and not by way of penalty. The company never built its road and thereafter sought to recover its said deposit from the village. The court said:

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

In the case of the City of Salem v. Anson et al (Supreme Court of Oregon), 67 Pac., p. 190, the court said:

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

The case of Nilson v. Jonesboro, 57 Ark., p. 163, is also in point. The syllabus is as follows:

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

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

King & Tracy, for plaintiff in error.

Smith & Beckwith, for defendant in error.

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


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    MANDAMUS TO COMPEL SIGNING OF BILL OF EXCEPTIONS.
    [Circuit Court of Hamilton County.]
    State, ex rel Wolf, v. Frederick S. Spiegel, Judge.
    Decided, December 16, 1903.

      Bill of Exceptions — Mandamus to Compel Signing of — Affidavits in Support of Motion for a new Trial Not Part of, When; Judicial Discretion — Amendment to Bill.

    1. Where the relator prays that the respondent be compelled by mandamus to sign a certain bill of exceptions, and the respondent answers that the said bill is not a true bill and that a certain amended bill was filed which he has determined to be the true bill and has signed and allowed, and this answer is not denied by any reply, the respondent is entitled upon the pleadings to have the bill dismissed.

      2. Affidavits filed with the clerk upon motion for a new trial and not presented to the court upon hearing should not be embodied in the bill of exceptions.
    Giffen, J.; Swing, J., and Jelke, J., concur.
   The relator in her petition avers that she filed a true bill of exceptions with the clerk of the court in the case of Carrie Wolf against Sarah Marmet and others, and that the clerk transmitted the bill to the respondent, the trial judge in the case, who reurned the same to the clerk unsigned, unindorsed and unallowed, and the relator prays that the respondent be compelled by mandamus to allow and sign the relator’s said full, complete and true bill of exceptions in said case against Sarali Marmet and others.

Galvin & Bauer and Dempsey & Fridman, for relator.

Charles W. Baker, contra.

The respondent, by answer, says that the bill of .exceptions so filed with the clerk was not a true bill, and that an amended bill of exceptions was filed with the clerk by the defendants in the cause, and the respondent judicially determining that the latter was a true bill, signed and allowed the same. This is not denied by any reply, and upon the pleadings therefor the respondent would be entitled to have the petition of the relator dismissed. But assuming that the allegation in the answer was denied, the question arises whether affidavits filed with the clerk of the court upon a motion for a new trial and not presented to the court upon the hearing should be embodied in the bill of exceptions. The object of filing the affidavits with the clerk before the hearing is to give the adverse party an opportunity to prepare and file before the hearing counter-affidavits, neither of which are a part of the record of the cause. The party so filing the affidavits may elect before the hearing not to present the affidavits to the court, and if offered as evidence the adverse party may object on the ground that they are not properly executed, or that the statements therein are mere conclusions of law, or that the facts stated are irrelevant to the issue. If the objection is sustained by the court and the affidavits ruled out, the party is not entitled to have them attached even then, to a bill of exceptions, unless he excepts to the ruling of the court in excluding them. The affidavits not being presented to the court, the court having no knowledge that the same were filed with the clerk, and rightly declaring the bill of exceptions containing such affidavits not to be a true bill and the respondent having answered that he signed a true bill of exceptions in the cause, this court can not interfere with his discretion in the premises. State v. Hawes, 43 Ohio St., 16.

The petition of the relator will be dismissed.


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    NEGLIGENCE IN CROSSING STREET RAILWAY TRACKS.
    [Circuit Court of Summit County.]
    David P. Harpham v. The Northern Traction Company.
    Decided, April Term, 1904.

      Negligence — Street Railways — Pedestrian Attempts to Gross Track without Looking for Gar — Unobstructed View of Track for Several Hundred Feet — Gong not Sounded nor Fender Dropped — But Pedestrian Guilty of Contributory Negligence.

    Where a pedestrian attempts to cross a street ear track without looking to see whether there is a car approaching, and is struck by a ear and injured, and there is nothing to show that the company was guilty of willful or culpable disregard of duty after having observed his perilous situation, he is guilty of contributory negligence, and no liability attaches to the company, notwithstanding the gong was not sounded or the fender dropped.
    McCarty, J. (sitting in place of Winch, J.); Hale, J., and Marvin, J., concur.
    Error to the Court of Common Pleas of Summit County.
   This cause comes into this court on a petition in error to reverse the judgment of the court of common pleas for alleged errors occurring in the trial of this case in that court. The action was brought to recover damages for the alleged negligence of the defendant below, and defendant in error here. It was tried at the April Term of the court in 1903, to a jury. On motion of the defendant at the conclusion of the testimony the jury were instructed to return a verdict for defendant, which it did, to which exceptions were taken. The cause of action stated in the petition below was as follows so far as I need read it herein:

At the date next hereinafter named the defendant owned and operated a line of street railway in the city of Akron in said county, and in and over the various streets and public ways thereof, and which said railway was then and there equipped with tracks, single as to some streets and double as to others, upon and over which tracks the defendant used cars for the carriage of its passengers, propelled by electricity as the motive power thereof. One of the streets so occupied and used by the defendant with its said tracks and ears moving on and over the same, at said date, was East Market street, so-called, -upon which at the point next hereinafter named the said defendant used and operated a double tracked railroad for its said purpose. At a point on said East Market street two other public streets of said city, to-wit, Arlington street and Kent street, come into the same from the north and intersect it at a common center, and at which point there is a sharp descent on said East Market street from west to east.

Among the cars so owned and operated by the defendant, and propelled as aforesaid, at the date hereinafter named, was ear No. 79, and which car was at the time provided and equipped with a gong or alarm, by the proper use of which the motorman in charge of the running of said car could warn travelers upon the highways and streets over which the same was run, against danger to be apprehended from coming in contact with said car, and which gong or alarm on said last named car was at the date next hereinafter named under the sole control of the said motorman engaged in running said ear. Said last named car was, at the date next herein named, also equipped and provided with an appliance called a fender, which was at the time in like manner under the exclusive control of the motorman then engaged in running said car. Said fender was attached to the forward end of said car, extending across its entire front, and when not needed for the protection of travelers in dangerous proximity to said ear the same was raised and suspended at some distance above the level of the said street car tracks. But the said motorman could at will, and immediately in case of necessity, lower the same to or near the level of said tracks, and thus and thereby could catch or pick up any person who might be on said tracks in front of said car while in motion and hence in danger of being run over by the same, and carry such person safely and keep him from being run over by the wheels of said ear, until the same could be stopped and such person rescued from peril.

It was the duty of said motorman in charge of said car to sound said alarm or gong at all times when travelers upon the streets of said city traversed by said car were, or were likely to be, upon or so near said tracks as to be in danger of coming in contact with said car while in motion, and to be vigilant and watchful to discover and warn sucb travelers in time to avoid such danger of collision with said ear, and to lower tbe said fender in all eases when the said car was in dangerous proximity to travelers upon said streets so traversed by said tracks, the use of electricity as a motive power in propelling such cars being the use of a highly dangerous agency upon streets and public thoroughfares traveled also by pedestrians, animals and vehicles.

On the 25th day of September, A. D. 1901, the plaintiff was lawfully upon said East Market street, and was then crossing the same from the southerly to the northerly side thereof, at or about the said point of intersection of Arlington and Kent streets with the same. At the same time said car No. 79, propelled as aforesaid, was coming down said hill on East Market street from west to east, in charge of the motorman and other agents and servants of said defendant, and equipped with the gong and fender aforesaid.

At the time the plaintiff was crossing said street, as aforesaid, there were congregated and moving around a watering trough located on the northerly side of said East Market street, at or near said point of intersection, and in and upon said East Market street, immediately in front of and near to the.plaintiff at the time, a number of teams, wagons and carts, whereby he was obstructed from hearing the approach of said car No. 79, as it came down said hill, until too late to prevent or avoid its striking him, although he was not careless or heedless in that respect, and his not hearing the approach of said car was not owing to any negligence of his.

The said motorman in charge of the running of said ear had .a clear and unobstructed view of the track in front of him at the time, down said hill, for a long way before reaching the point where said ear struck this plaintiff, and to and beyond such point. The plaintiff, without negligence on his part, and in the exercise of due and reasonable care for his own safety in crossing said East Market street, came upon said track of said defendant in front of said car at the time approaching him, but which he did not see or hear, for the reasons above set forth, in time to prevent his being struck by the same, and said car in coming down said hill then and thereupon struck this plaintiff and knocked him down upon said tracks, and ran over him with its wheels, whereby his right leg was bruised, crushed, mangled and cut off below the knee, and by reason thereof he was thereafter compelled to have the same amputated above the knee.

The said motorman in charge of the running of said car as aforesaid, in the exercise of ordinary care, could have seen, and, the plaintiff says, did see him — that is to say, this plaintiff, upon the said tracks, in time to warn him by sounding said gong, so that he could have gotten off from said track, and so have avoided said collision. But wholly neglecting his duty in that respect the said motorman did not, nor did any other officer or servant of the defendant, sound said gong, or by outcry or otherwise warn or apprise the plaintiff of his dangerous position and proximity to said car at any time, nor did said motorman or any one check the speed of said car prior to its striking the plaintiff, but unlawfully and negligently ran into and injured him, as above set forth.

While said car was approaching the plaintiff as aforesaid, and even after its collision with him had become inevitable, the said motorman, seeing the plaintiff was upon said track in front of him, had time to lower said fender, and could have lowered it, and thereby could have caught the plaintiff and prevented him from going under the wheels of said car, whereby the latter could have saved his leg and escaped bodily injury. But the, said motorman, knowing the premises, did not then lower said fender, or make any effort to do so, nor did any servant of the defendant, but he and they unlawfully and negligently omitted to lower the same.

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

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

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

So that the question involves the alleged negligence of the company in the operation of said car, and it also involves the contributory negligence of tbe plaintiff in and about the happening of that accident, for it is fundamental and needs m> citation of authorities to establish that the plaintiff was bound to use ordinary care for his own protection, and that ordinary care must be commensurate with and be the kind of care that persons situated as he was situated on that occasion are bound to exercise to protect themselves. While the company owed a duty to the public generally to run its cars carefully, so far as possible to avoid injury to others, it does not and did not absolve the plaintiff from the exercise of that degree of care that would protect him from danger. It is fundamental also that street railroads, as well as all other sorts of railroads, are entitled to the use of the streets and that pedestrians and others going upon the streets, using them, crossing them, and going along them, are bound to look so as to avoid possible injury.

The facts in this case show that the plaintiff could have seen the approaching ear several hundred feet from where he was attempting to cross the track. He was crossing it diagonally, nothing' to obstruct his vision for the distance named, and nothing intervened except a bicycle passed him, which he did not see until immediately after it had passed him, and no other thing or obstruction was in his way, so that his attention must have been directed to some object or objects in some other direction than the course the car was coming. It is perfectly clear from the testimony that had he looked he could have avoided the danger; it was but a step or two to get out of reach of the approaching car, and his failing to look when he should have looked was such contributory negligence on his part as would defeat a recovery even though the company had been, through its agents and employes, guilty of negligence on its part, except in one particular instance; that is, where the defendant seeing the danger and knowing that it was about to do the injury, could have avoided it by the exercise of proper care. In such case as that the failure and refusal of the company would have been willful and wanton, and in such case as that even though the plaintiff was guilty of contributory negligence the want of proper care on the part of the company would make it still liable even though the plaintiff was guilty of contributory negligence, and the action for damages would be for the injury sustained.

But there is nothing in this record that shows that the defendant was guilty of willful or culpable disregard of duty after having observed the perilous situation of the plaintiff, and there is nothing in this record that shows that it would have been possible for the motorman to have so controlled his ear as to have avoided the injury after he became aware that it was about to occur. So that we are clearly of opinion’that the defendant was not guilty of.such negligence as would make it liable in any regard so that the plaintiff could not recover were he himself not guilty of negligence contributing directly in any degree to the injury. But we are clearly of the opinion that had the defendant been guilty of the want of ordinary care in the management of its ear that the plaintiff so contributed to the injury that he could not recover.

The law seems to be well settled that a pedestrian in crossing a street car track is obliged to look before crossing the same, and that if he fails to do so and by reason of such failure is injured, he can not recover. This identical question was passed upon by a majority of this circuit court within the past year in the case of The Cleveland Electric Railway Company v. Wadsworth, in which case the court said:

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

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

Grant & Sieber, for plaintiff in error.

Rogers, Rowley, Bradley & Rockwell, for defendant in error.

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

Upon his own testimony he is not entitled to recover in this lawsuit. We are of opinion that the court below was right in directing the jury to bring in a verdict for the defendant. The judgment of the court below will be affirmed with costs. Exceptions noted.


text:
    CUSTOM AS TO COMMISSION MERCHANTS’ AGENTS GUARANTEEING PRICE.
    [Circuit Court of Cuyahoga County.]
    The Mahler-Wolf Produce Company v. Ferd. Meyers.
    Decided, February 29, 1904.

      Agency — Scope of Authority of Traveling Solicitor for Commission Firm — Guarantee by Agent of Net Price for Fruit Shipped — Not Binding on His Principals — In the Absence of a Showing of Custom.

    A produce commission firm sent out a traveling agent to solicit a consignment of peaches on a strictly commission basis; being unable to obtain fruit at a certain town without guaranteeing it should net the shipper a certain price, he gave such guarantee and fruit was shipped thereunder, but without notice thereof to the consignee and without inquiry on the part of the shipper as to the agent’s authority to make the guarantee; in the absence of any evidence showing a usage or custom of the produce commission business to make such guarantees — Held; That the guarantee was not within the scope of the agent’s authority, and his principal was not hound by it.

      Winch, J.; Hale, J., and Marvin, J., eonenr.
    Error to the court of common pleas.
   This case involves the application of the law of agency.

It appears that in 1897 plaintiff in error was engaged in the produce commission business in the city of Cleveland, and sent one Sidney Kirton to Mifflin, Pa., to solicit shipment of peaches to be sold by plaintiff in error on commission in Cleveland. Kirton found he could get no peaches shipped from Mifflin without a guarantee that they would bring a certain price; he thereupon procured Perd. Meyers, defendant in error, to ship two car loads of peaches to the firm in Cleveland, guaranteeing that Meyers should net at least eighty cents a crate for the first ear load and sixty cents a crate for the second car load.

The peaches were sold in Cleveland, and, after deducting freight and commissions, the balance was paid Meyers, but this balance was some $400 less than the amount guaranteed by Kirton, and in 1900 Meyers brought suit in the Common Pleas Court of Cuyahoga County, Ohio, against The Mahler-Wolf Produce Company, and recovered a verdict for the amount he claimed, and judgment was rendered on the verdict. On the trial it was shown that the produce company had never authorized Kirton to make the guarantee claimed, and had no knowledge that he had made such guarantee until the suit was brought.

It was further shown that Kirton was employed as a traveling agent, his express authority being to solicit consignments of fruit on a 'commission basis only; that his firm had never purchased fruit or given any guarantee and no evidence was introduced as to the custom or usage of the business.

Plaintiff in error claims the judgment should be reversed because the verdict is not sustained by sufficient evidence; that is, the agent was without express authority to guarantee what the peaches would bring; he had no authority to so guarantee, implied from the nature of the business, and therefore Kirton exceeded his authority and the produce company is not bound by his guarantee.

Defendant in error says that Kirton could not have bought peaches at Mifflin without the guarantee and therefore the power to guarantee must be considered incident to and implied from his employment.

Both parties quote the law of agency as applicable to this case, from 1 Am. & Eng. Enc. of Law, 985 to 997.

“A principal is bound by the acts of the agent, whether general or special, within the authority he has actually given him, which includes not only the precise act which he expressly authorizes him to do, but also whatever usually belongs to the doing of it, or is necessary to its performance. Beyond that he is bound by the acts of the agent within the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing.
‘ ‘ The principle is elementary and uniform that a power given an agent in a transaction carries with it the authority to do whatever is usual and necessary to carry into effect' the principle power.
“Parties in entering into contracts are presumed to have in view the established usages and customs of the particular trade or business with reference to which they are contracting. Third parties in dealing with an agent have a right, therefore, to presume that he has been clothed with all the powers with which, according to the custom of that particular business, similar-agents are clothed.
“The authority of a general agent is not unlimited, but must necessarily be restricted to the transactions and concerns within the scope of the business of the principal, and if he exceeds the authority, the principal is not bound.
“It is the duty of all parties dealing with an agent to inquire into the nature and extent of his authority, and deal with him accordingly.”

Let us apply the above principles of law to the facts of this, case:

The agent had no express authority to make the guarantee; it can not be said to be within his apparent authority, for such guarantees are not usual or necessary in the carrying on of a commission business. Had the proof shown that plaintiffs in error, in addition to their business as factors, sometimes made purchases on their own account, by themselves or through agents, or even that such purchases were made or guarantees given by men in the commission business, there would, perhaps, be some ground upon which to hold the plaintiff in error for the unauthorized guarantee of its agent.

But counsel for defendant in error calls attention to the fact that the agent could procure no peaches in Mifflin without the guarantee. From this it is argued that the guarantee was necessary to doing any business in that town, and that the agent’s mission there would have been fruitless and his employer’s time and money wasted, if the. guarantee had not been made — hence the authority to guarantee became necessary to the accomplishment of the duties of the agent.

The proposition is not sound. The agent was hired to procure goods to be sold upon commission; the sole business of plaintiff in error was to sell goods on commission. Adopting the contention of counsel for defendant in error, makes the transaction practically one of sale and purchase; indeed the petition is framed on that theory, suit being for balance due on an account for peaches at eighty cents and sixty cents a crate. In no sense can the guarantee be held necessary to the carrying on of a commission business, however necessary it might be in the sale and purchase of goods.

Further, it was not shown that the produce company knew of the conditions on which alone peaches would be shipped from Mifflin. It was shown that defendant in error made no inquiries into the nature and extent of the agent’s, authority, although he knew the business his principal was engaged in. “Third parties dealing with an agent are put upon their guard by the very fact, and do so at their own risk” (1 Am. & Eng. Enc. of Law, 987). If Ferd. Meyers before shipping the peaches had telegraphed his consignee he would not have been deceived by the guarantee which he claims the agent made him. The plaintiff in error should not be prejudiced by this neglect of Ferd. Meyers.

We hold that the agent had no authority, express or implied, to make the guarantee relied upon by defendant in error, and that it was not binding upon the plaintiff in error, it never having ratified the same.

The conclusion here reached is the same as was reached in the case of Quinn v. Carr, 4 Hun., 259, where it appears that a commission house sent its agents into the country to solicit consignments of produce on commission, and the agent guaranteed a shipper that his butter would bring a certain price. The court held that such guarantee was not within the scope of his authority.

Hord & Lowenthal, for plaintiff in error.

Johnson & Dunlap, for defendant in error.

Defendant in error having failed to prove the agent’s authority, the verdict should have been for the defendant below, and for error in overruling the motion to direct a verdict for defendant and in overruling the motion for a new trial, on the ground that the verdict was against the weight of the evidence, the judgment is reversed.