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    MECHANICS’ LIENS CAN NOT BE FORECLOSED IN PART.
    Circuit Court of Cuyahoga County.
    I. Koblitz & Son v. Florence Orth Duffie et al; and I. Koblitz & Son v. John C. Hamilton et al.

    Decided, June 8, 1906.

      Mechanic’s Liens — A Hen Upon Several Distinct Douses and Lots Gan Not be Foreclosed Upon One Parcel Only.

    Where liens have been filed upon several distinct lots and the buildings upon them, for labor performed and materials furnished for all of them, but not under one general contract concerning those buildings only, the liens can not under favor of Section 3184, Revised Statutes, be foreclosed as against one lot only.
    Cook, J. (sitting in place of Marvin, J.); Winch, J., and Henry, J., concur.

       Affirmed without opinion, Koblitz & Son v. Duffle, 78 Ohio State, 419.

   The actions are to foreclose two mechanics liens in part, and also to marshall the liens upon the property sought to be charged.

I. Koblitz & Son did a large amount of plumbing work upon a number of buildings situated upon lots fronting on Nantucket street and also upon a number of buildings situated upon Kensington street. These buildings were erected upon contiguous lots. .Two liens were prepared and filed; one for materials and labor furnished and performed in doing the plumbing work upon the buildings on Nantucket street and the other for the material ' and labor furnished and performed in doing the plumbing work on the buildings on Kensington street. Each of these liens covered several buildings and lots on each of the streets; while the action in each case is to foreclose the lien upon one of the buildings and the lot upon which the building stands. The suit must be maintained under favor of either Section 3184 or Section 31846 for the reason that the Legislature having made provision for mechanic’s liens and providing how the same may be obtained and enforced these provisions are exclusive.

It must be conceded that under Section 3184 -the contract under which the material and labor is furnished and performed must refer to the particular lot or land upon which the building stands. The lot or land need not be designated by ány particular number or description but it must be the lot or land with which the building is connected and as part of the same premises. True, there may be one or more buildings but they must be upon the same lot or land and as part of the same premises.

In this case each building was situated upon a distinct lot and the lot and building ivas complete in itself, therefore the lien necessarily should have been taken out on each building and lot. Reliance is placed on Section 3184. It is, however, said that the liens can be supported and are effective under Section 3184d That no doubt would, be true if the contract, under which the materials were furnished and labor performed came under the provisions of Section 3184ci. It will be observed that this section supplements 3184, and it provides:

“When the improvement consists of two or more buildings united together and sitting upon the same lot or contiguous lots or upon separate buildings upon contiguous lots and erected under one general contract, it shall not be necessary to file a separate lien upon each building for the work done or material furnished on the erection of su'ch improvements. ’ ’

In order to make this section apply, the buildings must be erected under one general contract for the same. That is, the buildings must be erected under a contract that they are to be erected upon one lot. The word “general” refers to all the buildings to be erected, that is generally to the buildings, but there must be a contract in reference to the particular buildings and the. particular lots.

The contract shown in these eases does not refer to any particular lot or lots, or whether the lots were contiguous or not. This contract, it is true, was general, entirely too general. The contract was to do all the plumbing work for James F. Stevens at any place in the city and of all character and description, and had no particular reference to these particular lots or buildings upon these two streets, and if the plaintiffs desire to secure themselves by the mechanic’s lien it should have been taken out upon each particular lot and building under Section 3184. We are also of opinion that the liens being taken out upon several lots and buildings contiguous, the action to foreclose the liens should have been upon all the premises included in each lien. We can not See how the rights of parties can be worked out otherwise. Different work was done upon the several buildings; payments -were made; to what did the payments apply? In the liens much work is charged for not included in the buildings and not connected with any of the buildings. To what work shall these payments be made applicable? To work not connected with the buildings or to material and work performed on the building and if to the latter, which building?

The decree will be in favor of the defendants, dismissing the petitions of plaintiffs in each ease. If the interveners desire any finding and decree upon their cross-petitions they can have the entry so provide, as we understand that there is no contention between those parties.


source: Caselaw Access Project

license: Public Domain

text:
    FAILURE TO ESTABLISH A GIFT.
    Circuit Court of Cuyahoga County.
    Katherine Deering v. The Society for Savings.

    Decided, January 21, 1907.

      Gifts — Intention of Donor to Make a Gift a Necessary Element.

    Proving the delivery of a fund which was reduced to possession, without proving an intention to make a gift, does not establish a gift.
    Winch, J.; Marvin, J., and Henry, J., concur.

      Affirmed without opinion, Deering v. Society for Savings, 79 Ohio State, 467.

   Plaintiff in her petition claimed the fund involved in this case as a gift.

Such being the case, it was incumbent upon her to' prove all the essential elements of a gift.

She proved a delivery of the fund, which was reduced to her possession before the donor’s death. She failed to prove an intention to make a gift. The mere possession of the funds by the donee raises no presumption that the possession was acquired as a gift. Thornton on Gifts, paragraph 321.

When no consideration exists for the transfer of- property, in the absence of explanatory circumstances, a resulting trust arises in favor of the grantor or transferor. Roberts v. Remy, 56 O. S., 249.

The judgment is affirmed.


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    ACTION FOR. MONEY LOST IN GAMBLING.
    Circuit Court of Cuyahoga County.
    Harry Bernstein et al v. Annie Groupp.
    Decided, February 11, 1907.

      Gamoling — Parties—Landlord of Premises XJsed for Gambling a Proper Party Defendant in Action for Money Lost — When Landlord Liable for Money Lost at Gambling.

    1. In an action for money lost at gambling the landlord who owned the building is a proper party .defendant with his tenants who operated the place where the gambling was carried on.
    2.. Admissions of landlord that he had seen men playing lor lunches and drinks in the premises, and that he had not thereafter either served notice upon the tenants to vacate or sued them, is sufficient to sustain a judgment against him for money lost at gambling.
    Henry, J.; Winch, J., aud Marvin, J., concur,
   The defendant in error was plaintiff below, where she recovered a verdict and judgment against Harry Bernstein, Louis Bernstein and Maurice Christol in an action under Sections 4271 and 4276, Revised Statutes, for money lost by her husband in gambling on premises occupied by the two defendants last named as lessees of the first named defendant.

The first error assigned is the alleged misjoinder of the lessor v ith the lessee as parties defendant. Section 4371 provides that the plaintiff in actions brought thereunder, “may sue for and recover, from the person receiving such money, thing of value, or obligation, the amount thereof, together with exemplary damages and may join as defendants in such suit all persons having any interest, direct or indirectly contingent, to such lottery, policy or scheme of chance or the possible profits thereof, as hackers, venders, owners or otherwise.”

Section 4276 provides that “if any person leases premises for gambling or lottery purposes or knowingly permits them to be used and occupied for such purposes, and fail immediately Lo prosecute, in good faith, an action or proceeding for the recovery of the premises, such lessor shall be considered in all cases civil and criminal as a principal in carrying on the business of gaming, or a lottery in such building.”

It is urged that the libility as a constructive principle under the latter section is not to be identified with the liability of actual participants, who are suable jointly by virtue of the former section, and that the authorized joinder of defendants is limited to those specified in Section 4271. We hold, however, that the statute making a landlord, with notice, a principal, puts him in the same category with actual participaixts so that •ill may be sued jointly.

The second error assigned is that the weight of the evidence negatives the connection of any of the defendants with the gaming whereby Groupp lost his money, or with any gambling for money on the premises. There is some evidence in this behalf — much more than a scintilla — to sustain the claims of the plaintiff as against Louis Bernstein and Maxxrice Christol, and in view of this evidence, some.what contradictory and doubtful though it be, we are unable to say that the jury’s verdict against these two defendants was unwarranted. As to Harry Bernstein, the lessor, the ease might well be otherwise, were it not for one fatal admission ixx his own testimony, at page 92 of the bill of exceptions, where he says:

“I have seeix them play cards in some of these rooms; they played for drinks, lunches, etc. That’s as far as I know.”

He further says that he never served any xxotice upon his tenants to get out and never sped them.

That playing “for drinks, lunches,” etc., is “gaming,” within the meaning of Section 4278, can not be doubted.

After knowledge of the use or "occupancy of his premises for gaming purposes his failure to avoid the lease and recover the premises rendered him liable as a principal for subsequent gambling losses on said premises.

AVe find no error in the record and the judgment below is affirmed.


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    CLAIM SET UP ON APPEAL FOR. MORE THAN JURISDICTION OF THE MAGISTRATE.
    Circuit Court of Cuyahoga County.
    Levi Wherry v. Edward Frolick.
    Decided, February 11, 1907.

      Pleading and Practice — Jurisdictional Amount in Actions Appealed from Justice Courts — Assignment of Plaintiff During Pendency of Suit Not a Defense.

    '1. In an action appealed from a justice of the peace, a cross-petition which asks for an amount in excess of the amount of which the justice would have had jurisdiction, should be stricken from the files.
    2. An assignment by plaintiff for the benefit of creditors during the pendency of a suit is not a matter of defense and application of defendant for leave to file a supplemental answer setting up that fact is properly refused.
    Winch, J.; Henry, J., and Marvin, J., concur.
   There is no error in the record in this case, prejudicial to plaintiff in error.

The cross-petition of plaintiff in error, defendant below, was properly stricken off, because, the ease coming on appeal from a justice court, the amount set up for the first time in the common pleas court, by cross-petition, was beyond the jurisdiction of a justice of the peace. Bank v. Waldridge, 19 O. S., 427; Bill Publishing Co. v. Curtiss, 7 N. P., 202

There was no error in refusing leave to refile said cross-petition as part of the answer.

This ruling was made at the trial. Some time before that defendant had been granted leave, to answer, and his time therefor expired without his taking advantage of it. Ilis last request came too late, and it was within the discretion of the trial judge to refuse it.

There was no error in refusing the request for leave to file a supplemental answer, setting up the fact that the plaintiff, since the commencement of the action, had made a general assignment for the benefit of creditors. Section 5012, Revised Statutes; Lowrey v. Anderson, 57 O. S., 179.

The denial in the answer of the allegation in the petition that on the account sued upon “there is due and payable from the defendant to this plaintiff the sum of $25'7.86 with interest,” is but the denial of legal conclusions.

The words “due and payable,” as used by the pleader means “owing.” See 5 Enc. Digest oi! Ohio Reports, 235, where the authorities on this subject are collected.

Interest arises by operation of statute and to deny that interest is due on an unpaid account, is to deny a matter of law, and not of fact.

Judgment was properly rendered on the pleadings, for the defendant in error, and it is affirmed.


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    LIEN FILED MORE THAN TEN MONTHS AFTER. COMPLETION OF THE BUILDING.
    Circuit Court of Cuyahoga County.
    I. Koblitz & Son v. George Arnold et al.
    Decided, January 11, 1909.

      Mechanic's Liens — Time for Filing Mechanic’s Liens Can Not he Extended by Custom of a Trade as to Making Repairs.

    When the roof on a building has been substantially completed and the property sold, the purchaser making what repairs were necessary at that time, the contractor can not by making repairs to the roof ten months later, during the owner’s absence and without his consent, extend the time for filing his mechanic’s lien; and no custom of the trade by which slate-roofers repair roofs after all other workmen have finished with the building will operate to give validity to a lien filed more than ten months after such substantial completion.
    Henry, J.; AVinou, J., and Marvin, J., concur.
   In this appeal all issues have been eliminated in which the original plaintiff was interested and the sole issue presented here is upon the validity of a mechanic’s lien claimed by Auld & Conger against the property of the defendant. The defendant is the successor in title to one Stevens, who began to erect a house on the property May 15, 1899. Before it was fully finished .he negotiated a sale of the property to the defendant, who, after it was fully completed, as he testifies, moved into it October 31, 1899. Auld & Conger had, and performed a contract with Stevens to roof the house with slate. Their work was substantially done before Arnold occupied the property, but in August, 1900, ten months after Arnold’s occupancy had commenced, they undertook in his absence and without his knowledge, authority, or consent, to perform the final repairs to the roof which they found to be then necessary. Thereafter they filed .their mechanic’s lien October 19, 1900, some fifteen months after the substantial completion of their contract, but with the time allowed by law for such filing, if it is to be reckoned from the date of said final repairs. They invoke a custom of slate roofers which makes it incumbent upon them after once substantially completing a slate roof, to wait until the work of all other trades upon the building is completed and then to repair whatever damage may have been caused by the workmen doing such work in the meantime.

Mr. Arnold, however, testifies that he and his son examined the roof at the time they moved in and caused the only defect in the roof; which they observed, to be repaired at his expense, by the replacing of one slate, during the month of November, 1899.

We do not think that the rule of Bernsdorf and Saylor v. Hardway, 7 C. C., 378, can be applied to the facts in this case. At page 383, this court in its opinion by Baldwin, J., says:

“It is intimated in this case that Anld & Conger saw that it might be necessary to secure their lien at a time when it was more than four months after September, and had, with want of good faith, made some repairs in order to put on their lien. That claim is not borne out by the evidence. There is a class of cases that hold, where a mechanic’s lien holder has made alterations for the purpose of extending the time of getting his lien, that it will not so operate. So far as the evidence shows, what they did was exactly in pursuance of the original contract between the parties.”

It is precisely in the particular thus pointed out that the case at bar differs from the decision cited. A decree will be entered for the defendant.


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    PROXIMATE CAUSE WHERE CHILD WAS STRUCK BY VEHICLE,
    Circuit Court of Cuyahoga County.
    George B. Harris, Administrator of Estate of Andrew Tomasco, v. Robert F. Williams.

    Decided, February 11, 1907.

      Negligence — Violation of Revised Statutes and Traffic Ordinance by Negligent Driving Make a Oase for the Jury.

    Where the defendant was driving upon the wrong side of the street in violation of Section 3490, Revised Statutes, and at a speed of ten or twelve miles an hour in violation of the city ordinances, and plaintiff’s intestate, a child of seven, after dodging from behind other vehicles going in the right direction, was knocked down by the front legs of defendant’s horses and killed by being run over by defendant’s wagon the question of whether or not defendant’s negligence in driving so fast that he could not stop in time to avoid running over the child was the proximate cause of its death is a question for the jury. -
    Henry, J.; Winch, J., and Marvin, J., concur.

      Affirmed without opinion, Williams v. Harris, 77 Ohio State, 633.

   The action below was an action for death by wrongful act. Plaintiff’s intestate was a child seven years old coming home from school. While he was crossing Erie street, from east to west, at a point nearly opposite Webster street, in this city, he was run1 over by a team and heavy Avagon, belonging to the defendant. The trial judge directed a verdict for the defendant, at the close of the plaintiff’s evidence, and this is assigned as error. Erie street runs north and south, and there are double street car tracks thereon. There is a space of about twenty-five feet from the west rail of the west track to the west curb of the street. The team which ran oA'er thé boy Avas being driven north in this space, being, therefore, on the left hand side of the street. At the time of the accident, this team was being driven between other vehicles headed in the opposite direction; one was up close to the west curb; two others Avere in the west car track; and from between these two last the boy darted out, just in time to strike, or be struck by, the fore legs of the horse nearest him. He Avas knocked down by the horse, run over by the wagon and instantly killed. The driver of the wagon could not see him until he emerged from between the two vehicles on west car track. The driver Avas traveling at the rate of ten or tAvelve miles an hour, and going at that rate it is perfectly clear that he could not have stopped in time to prevent the accident after becoming aware of the boy’s peril.

Plaintiff’s ease rests, howev’er, upon the claim that the team was being driven at a negligent rate of speed in violation of Section 915 of the Revised Ordinances of the city of Cleveland, and on the left hand side of the road, in violation of Section 3490, Revised Statutes of Ohio. The ordinance forbids driving at a greater rate of speed than six miles an hour, and even this rate of speed is not sanctioned, unless it be. consistent Avith the care required for the convenience and safety of people using the street.

It is perfectly clear that the boy was not guilty of negligence as a mere matter of law. It is also clear that if the driver of the wagon which caused the accident could not have stopped or swerved his team in time to save the boy, even though he had been driving at a rate of speed within the ordinance, and consistent with ordinary care under the circumstances, the death of the boy can not, under facts as actually presented, be considered as the direct result of fast driving. In other words, the fast driving-must have been the proximate cause of the injury to the boy to make the driver liable.

It was evidently the opinion of the court below that the accident was inevitable and was not the result of the alleged fast driving, and it is undoubtedly true that the accident occurred almost instantaneously after the boy first appeared from behind the wagon.

Upon careful review of the evidence, we find ourselves unable i.o agree with the trial court in this regard. Tt seems to us that it was a question for the jury to determine whether or not, if the driver of the wagon which ran over the boy had been driving at a lawful and careful rate of speed he would not have been able to pull up his horses in lime to have avoided the fatal accident. Whatever injury the boy might, have sustained merely in consequence of running into, or being run over by the horses, might well have been regarded as the result of inevitable accident, but he was killed by the wagon which ran over him after he had been knocked down, and we can not say as a matter of law that he would have been killed had it not been that the driver was going faster that he lawfully might.

We think that the fact that the team was being driven on the left side of the street is one of the circumstances to go to the juiy, although it does not, of: itself, warrant the predicate of liability. Tt is also true that driving faster than the ordinance is not per se negligence, hut it is some evidence of negligence, and taken together with the other circumstances already recited, the jury should have passed upon the question whether or not the driver’s conduct was negligent, and whether or not such negligence was the proximate cause of the boy’s death. Tbe question of the boy’s own negligence would also have to be submitted to the jury in that event.

For error, therefore, in directing a verdict for the defendant, tbe judgment below is reversed and the cause remanded for a new trial.


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    RIGHT OF LATERAL SUPPORT.
    Court of Appeals for Hamilton County.
    Fritz Heimerdinger v. Charles Schneider.
    Decided, July, 1914.

      Excavation — Grantor of a Lot Damages it by Excavating on the Adjoining Lot — Failure to Give Notice of Intention to Excavate.

    1. A deed of general warranty does not carry with it by way of easement a right of lateral support sufficient to maintain the building on the lot so conveyed.
    S. But where the owner of an adjoining lot excavates upon it without giving notice of his intention so to do as required by statute, he becomes liable under the common law for damages resulting to the land itself.

      Frank H. Kunkel and Marston Allen, for plaintiff in error.

      Gordon, Morrill .<& Ginter, contra.
    Jones (Oliver B.), J.; Swing, J., and Jones (E. PI.), J., concur.
   Plaintiff below, in 1905, purchased from defendant below certain lots abutting on Schneider avenue, east of Kirby road, upon which- was situated a frame dwelling house, and also a lot 25 feet wide connecting said property with Glen Parker avenue. Defendant owned the lots between said property and Kirby road. The surface of all of these lots was considerably above the grade of both Kirby road and Schneider avenue, and in 1910 the defendant commenced to grade his lots to bring the surface down nearer to the grades of Schneider avenue and Kirby road, and in so doing caused the lots of plaintiff to slip and slide in such manner as to cause damages both to the lots and to the dwelling-house upon them. Plaintiff thereupon brought the action below to enjoin the continuance of such excavation, and to recover judgment for the damages incurred.

Upon the trial plaintiff introduced evidence tending to show that the house upon his property was permanently damaged so that it could not be repaired, and also evidence as to the value of the house before and after such excavation. And thereupon the defendant moved to strike out from the record all evidence as to damage to the improvements upon the property of plaintiff, and to withdraw from the jury all matters relating to the damage to improvements, which motion was granted by the court and said evidence ordered stricken from the record and the jury instructed to leave all damage as to improvements out of their consideration. This ruling was excepted to, and the cause proceeded with reference to damages to the land aside from the improvements thereon, and resulted in a verdict and judgment for the plaintiff for said damages.

The proceedings in error here are for the purpose of determining whether it was error in the court below to withdraw the question of damages to the improvements from the consideration of the jury.

There is no question as to the right of the owner of land to lateral support, as a property right (Belden v. Franklin, 8 C.C. [N.S.], 259); but such property right in Ohio is subject to the terms of Sections 3782 and 3783 of the General Code, and within the terms of those statutes an owner of property has the right to make excavations on his own property after notice, in a proper and reasonable way, without liability because of the removal of the lateral support of the adjoining one.

The excavation made in the case below did not grade the lot down to the established grade of the abutting street, but the defendant below failed to show that he had given the notice required by the statute before the commencement of the excavation, and he was therefore properly held liable for the damage resulting to the land itself under the common law.

It is contended, however, by plaintiff that because the defendant had sold and conveyed to plaintiff the land, on which the house was situated, that the deed, which was an ordinary deed of general warranty, carried by way of easement a right to sufficient lateral support for the maintenance of the house in the same manner it existed at the time of such sale. We are unable to find any authority in this state to support this proposition. Had the parties contemplated such a right with its corresponding duty it would have been a simple matter to embody it in the deed of conveyance. Not having done so, it must be presumed that the conveyance was made with full knowledge of the obligations and rights fixed by the statute upon the owners of adjoining property.

We are therefore of the opinion that there is no error in the record of the case, and the judgment is therefore, affirmed.


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    PENALTY FOR. DENIAL OF CIVIL RIGHTS.
    Court of Appeals for Mahoning County.
    Youngstown Park & Falls Street Railway Company v. Eliza A. Tokus, as Next Friend to Clarence S. Tokus.
    Decided, March 23, 1915.

      Civil Rights — Privilege of Dancing Pavilion Denied to a Young Colored Couple — Meaning of a Statute to he Gathered from the Ordinary Meaning of the Words Used Therein — Sections 12940 and 12941.
    1. A public dancing pavilion is a place of public amusement within the meaning of Section 12920, General Code.
    2. A proprietor of a public dancing pavilion, who ejects another therefrom, after he had been admitted thereon, on account of his color or race and for no other reason, is liable to pay a penalty under Section 12941, General Code.
    3. The posting of notices in the park, wherein a dancing pavilion is situate, that the park and pavilion are private grounds and that the proprietor reserves the right to exclude any person whom he, for any reason, deems objectionable, will not relieve the proprietor from Jiability under Section 12941, General Code, to one ejected on account of color or race, if every person, desiring to do so, is admitted except on account of color or race.

      Arrel, Wilson, Harrington & DeFord, for plaintiff in error.

      S. L. Clark, contra.
    Pollock, J.; Metcalfe, J., ,and Spence,.J., concur.
   The defendant, Clarence S. Tokus, by his next friend, brought an action against the plaintiff company in the court of common pleas of this county to recover a penalty, under Section 12941 of the General Code, for being wrongfully ejected from a public dancing pavilion owned by the plaintiff company The case was tried, resulting in a judgment in favor of Tokus, and this action is prosecuted to reverse that judgment.

It appears that the .Youngstown Park & Falls Street Railway Company, on June 25, 1914, was operating a street railway from this city to a park known-as Tdora Park; that this company was the owner of the park and certain of the amusements in the park, including a dancing pavilion; that on this date Clarence S. Tokus, who is .a young colored man, and his sister attended the park in connection with a Sunday school picnic of white people; that he and his sister were members of this Sunday school; that they were admitted with the rest of the Sunday school people into the park, and continued there until some 'time in the afternoon, when Tokus purchased a ticket for the dancing pavilion, and he and his sister were admitted through the gate onto the floor of the pávilion, and proceeded to participate in the dance then going on; that during the time of the dance one of the officers in charge of the park and pavilion went onto the floor of the pavilion and removed, them, or required them to leave the pavilion.

There was no complaint made of the conduct of either this young man or his sister, but they were removed because of their color and race and for no other reason.

The Park & Falls Company had posted notices at the gate of the park and at. other places on the park, giving notice that the park grounds and the amusements thereon were private property, and that it reserved the' right to eject any person -or persons whom it deemed objectionable. The plaintiff company had provided, under its rules, certain times when white people could occupy the pavilion alone, and other times when colored-people could occupy it exclusively, each one occupying it at these times to the exclusion of the others.

The action below was* maintained under Sections 12940 and 12941 of the General Code. The former section reads as follows:

“Whoever, being the proprietor or his employee, keeper or manager of'an inn, restaurant, eating house, barber shop, public conveyance by land or water, theater or other place of public accommodation, and amusement, denies to a citizen, except for reasons applicable alike to all "citizens and regardless of the accommodations, advantages, facilities, or privileges thereof, or, being a person who aids or incites the denial thereof, shall be fined not less that fifty dollars,” etc.

And the latter section provides that:

“Whoever violates the next preceding section shall also pay not less than fifty dollars nor more than five hundred dollars to the person aggrieved thereby, to be recovered in .any court of competent jurisdiction in the county where such offense was committed. ’1

It is claimed on the part of the plaintiff company that a public dancing pavilion is not included within the terms of the statute, It will be noticed that after naming inns, restaurants, eating houses, barber shops, conveyances by land or water, theater’s, that it then reads “or other-place of public accommodation and amusement,” and it is claimed that-dancing pavilions are not included within the term, ‘ ‘ other places of public accommodation and .amusement.”

It is urged that this is a penal statute and should be strictly construed; that the maxim ejusdem generis should be applied in the construction of this statute; that where certain persons, objects or things are named, and followed by general terms, that the general terms should be construed to apply to objects, persons or things of similar or like kind.

This is a well recognized rule of statutory construction Avhich is intended to aid the court in determining the true meaning of a statute, but it should not be used to limit or abridge the well defined meaning of the Legislature gathered from the ordinary meaning of the words used in the statute, keeping in mind the object that the Legislature had in its enactment.

In the case of Woodworth, v. State, 26 Ohio St., 196, the Supreme Court of this state construed a similar expression in a statute reading as follows:

‘ ‘ That if any person shall abuse any judge, or justice of the peace, resist or abuse any sheriff, constable or other officer, in the execution.of his office, the person so offending,” etc.

In the opinion on the following page Mcllvaine, Justice, uses the following language in reference to this rule of construction:

“Now, it. must be remarked that the rule of construction referred to above, can be used only as an aid in ascertaining the legislative intent and' not for the purpose of confining the operation of a .statute within limits narrower than those intended by the lawmaker. It affords a mere suggestion to the judicial mind that, -where it clearly appears that the lawmaker was thinking of a particular class or persons or objects, his words of more general description may not have intended to embrace those not within the class. The suggestion is one of common sense. Other rules of construction are, however, equally potent, especially the primary rule, which suggests that the intent of the Legislature is to be found in the ordinary meaning of-the words of the statute. Another well established principle is, that even the rule requiring the strict construction of a penal statute, as against the prisoner, is not violated by giving every word of the statute its full meaning, unless restrained by the context. ’ ’

We find that this case has- been cited by the courts of many other states and the principle there laid down followed.

The Supreme Court of the state of Missouri, in the case of State v. Williams, 35 Mo. Appeal Rep., 541, refer to this rule as follows:

“The rule -for the construction of statutes that where the particular words of a statute are followed' by general, as if, after the enumeration of classes of persons or things, it is added, 'and all others,’ the general words will be restricted in meaning to objects of the like kind with those specified, will not'be applied where the application of the rule would be in the-face of the evident meaning of the Legislature, the object of the rule being not to defeat but to carry out the legislative intent; and so, where the expression in a statute is special or particular, but the reason is general, the expression should be deemed general; and an interpretation must never be accepted that will defeat its own purpose, if it will admit of any other reasonable construction/’

We especially’ call attention to this ease on. account of the many citations contained in the opinion construing the ruling.

We. also cite on this subject Sutherland. on Statutory Construction, Section 279; Gillock v. The People, 49 N. E. 712; McReynold v. The People, 82 N. E., 945; United States Cement Co. v. Cooper, 88 N. E., 69.

Turning' now 'to the' statute' under which this action'" was 'brought, and looking--at the- evident intent- of -the Legislature, from the language of the statute itself, we find that they .were evidently intending to give every citizen equal rights in public places to which they were accustomed to go, either for accommodation or amusement. The Legislature did not have in mind specially certain places which they name and others of a similar or like kind but the object they had in view was the citizen. They intended that there should be no discrimination on account of color or race to citizens who might apply at public places for either accommodation or amusement.

While the maxim insisted upon is a rule of statutory construction which a court in construing this statute should consider, yet we think that it should not be permitted to override the clear intention of the lawmakers as evidenced from the. plain reading of the statute itself, and we think that a public dancing pavilion comes under the provisions of this statute, including other places of accommodation and amusement.

There is another question urged, and that is that the park and dancing pavilion were private property, and that the plaintiff company reserved the right to admit whom they pleased and eject whom they pleased. Notices were posted at the gate and other places in the park giving notice of this claim.

So far as the evidence in this ease goes, every one was admitted into the park and permitted to enjoy the accommodation and amusements of the park, and no questions were asked and no one was refused the privileges- of 'the park and amusements who paid the required charges and conducted themselves properly, except on account of color or race. We do not think that the provisions of the statute can be avoided or evaded by notices of this bind, when the public generally are admitted and no limitations are placed thereon except that of color and race, and that the eviction of any one from the park or the amusements on that ground would be a violation of the statute.

The other question urged that they had provided for separate times for white and colored people to occupy the dancing pavilion, which it is claimed were reasonable, we think is not before the court at this time, for the reason that this young man was permitted to purchase a ticket and enter on the floor of the pavilion without any reference to his violation of that rule, and that his ejectment therefrom under those circumstances would be a violation of the statute, whether such arrangements can be made or not, as claimed by the company.

The judgment in this ease is affirmed.


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    PROOF REQUIRED TO SET ASIDE A RELEASE.
    Court of Appeals for Hamilton County.
    The Edwards Manufacturing Company v. Henry Perry.
    Decided, May 28, 1915.

      Written Release to Employer on Account of Injuries Received — Fraud Charged in Obtaining it — Charge of Court as to Evidence Required to Overcome Release.

    The presumption of truth that follows a written release with a covenant indemnifying and saving harmless the covenantee from other or further claim for damages of any kind and injury resulting from the accident which caused the injury, can be' overcome only hy clear and convincing evidence, and an instruction to the jury that such presumption can be overcome by a preponderance of the evidence is prejudicial error.

      Aaron A. Ferris and Thos. H. Morrow, for plaintiff in error.

      Thos. L. Michie, contra.
    Carpenter, J.; Meads, J., and Grant, J., concur (sitting in place of Judges Jones, Jones and Gorman).
   This cause comes into this court on error to the Superior Court of Cincinnati.

The action was brought to recover damages incurred by defendant in error through the alleged negligence of plaintiff in error. In its answer plaintiff in error set up a release executed by the defendant in error, in the presence of two witnesses, releasing and discharging said company from all liability, and also indemnifying and saving harmless said company from any other or further claim for damages of any kind and injury resulting from said accident.

In his reply the defendant in error admitted the execution of said instrument, but alleged that by reason of the fraudulent acts of the plaintiff in error, it was void.

The only ground of error which we consider necessary to be reviewed in this case arises out of the following portion of the court’s charge:

‘ ‘ The burden of proof is upon plaintiff to show by a preponderance of evidence, that the minds of himself and the defendant, or the defendant’s agent acting in its behalf, did not at the time meet upon the subject, so that they were not to the knowledge of the defendant, considering the same sort of an instrument. In this connection, it is proper to bear in mind that fraud is not presumed in a written instrument such as the one under consideration, as prima facie evidence of the truth of the contents of such instrument, that is, it affords a presumption that the recitals contained therein are true. The burden of proving want of knowledge of its contents and fraud is as indicated, upon the party who alleges the fraud, and he must prove it by such testimony as will suffice to overcome this presumption and establish his contention by a preponderance of the evidence. ’ ’

It is claimed by the plaintiff in error that the court erred in charging that a preponderance of the evidence is sufficient to overcome the presumption that the recitals contained in said written release are true, and that the court should have charged lhat such presumption should have been overcome by clear and convincing evidence.

From the record of the case we are informed that the court, in so charging, relied mainly upon the following cases: Jones v. Greaves, 26 O. S., 2; Landis v. Kelley, 27 O. S., 567; Lyon v. Fleahmann, 34 O. S., 151, and Strader v. Mullane & Johnson, 17 O. S., 625.

The fraud practiced in the ease of Jones v. Greaves, supra, was that after the making of the original contract, the defendants fraudulently altered the written proposals for bids by inserting therein “in charcoal tin.” The court refused to charge in that case that the jury must be satisfied beyond a reasonable doubt, but did charge that a preponderance of the evidence would lie sufficient to prove the same. The eminent judge who wrote the opinion in this case relied upon the authority of Strader v. Mullane & Johnson, 17 O. S.. 625.

Tn the Strader case the same issue arose from the allegation that the plaintiff had fraudulenty given short weight. It was held that the court in that case erred in charging the jury that the fraud charged must be proven beyond a reasonable doubt.

In the opinion of Judge McIlvaine in Jones v. Greaves, supra, he takes occasion to remark:

“Of course, we are not now speaking of those enormous crimes, where all personal injury is merged in the public wrong; nor do ive intímale that in all civil actions the issues should he determined hy a mere preponderance of the testimony offered on the, trial, however slight.”

The case of Landis v. Kelley arose out of a proceeding to obtain relief against a contract by which plaintiff in error in that case had been fraudulently induced to part with certain parcels of land. The court in that, case held that a preponderance of evidence was sufficient.

'It will be observed that the class of facts in all the cases upon which the trial court in the, case at bar relied, is not, to say the least, similar to that in the case at bar. Here we have a written instrument agreeing to release plaintiff in error from any and all liability, and further covenanting and agreeing that he — the plaintiff below — will indemnify and save harmless the plaintiff in error from any other or further claim or claims, etc., resulting from said accident, which instrument is signed and sealed by said Henry Perry, the plantiff below, and attested by two witnesses.

The question arises whether or not the ease at bar so differentiates itself substantially from all the cases upon which the court evidently based its charge, as to warrant; the trial judge in charging the jury that a preponderance of the evidence was sufficient.

"We are not unmindful of the serious duty cast upon this court in attempting to declare the law on this subject. It is incumbent upon us to follow the rule as marked out by the Supreme Court of this state.

Tt must be evident to any lawyer or jurist that the degrees of evidence, required to establish facts graduate from the ordinary civil eases, where there is no legal presumption either way, to those where a ■presumption of ordinary significance begins, and continues along the line of eases of more serious import, until we reach the highest presumption of innocence in the law, namely, that of the crminal ease, where the evidence must not only be clear and convincing, hut also beyond a reasonable doubt.

Is it net time that a written instrument which imports of itself a deliberation before its execution, would require a more convincing quality of evidence to overcome the presumption, than such class of eases as those arising out of the cases to which reference has been made? The next higher grade of evidence of which the books speak is that of clear and convincing testimony, and inasmuch as a written instrument which appears to be solemnly executed, such as the one in the case before us, carries with it a stronger presumption, is it not reasonable that testimony of a more convincing character should be required to overcome that presumption than iri the class of cases heretofore ref eral to ?

In the case of Potter v. Potter, Exec., 27 O. S., 83, the court say:

“When the reformation of a written instrument is sought on the ground of mistake, the presumpton is so strongly in favor of the instrument that the alleged mistake must be eleai’ly made out by proofs entirely satisfactory, and nothing short of a clear and convincing state of fact, showing the mistake, will warrant the court to interfere with and reform the instrumnet. This principle rests upon the soundest reason and upon undisputed authority, and if not adhered to by the courts, or, when plainly disregarded, is not enforced by reviewing courts, the security and safety reposed in deliberately written instruments will be frittered away, and they will be left to all the uncertainty incident to the imperfect and 'slippery’ memory of witnesses.”

Tn the ease of Ford v. Osborne, 45 O. S., 1, the first clause of the syllabus is as follows:

“1. Where it is claimed by the wife that a deed, signed by her husband and herself as a conveyance of her lands, had not been acknowledged by her as it purports to have been, the burden is upon her to show the fact by clear and convincing proof; a mere preponderance of the evidence is not sufficient to support a finding contrary to the certificate of acknowledgment. ’ ’

The court in its opinion say:

‘ ‘ The burthern on the plaintiff required her to meet and overcome the evidence afforded by the certificate of the notary, supported by the attestation of the witnesses, that she appeared before him as an officer and acknowledged the deed. It stands to reason that, in the absence of any thing to impeach the integrity of the officer and the witnesses, no slight importance should be attached to such evidence; because it is the evidence of an act done in pursuance of law, and which can be attested and proved in no other way. In other words, it is the evidence required by law of the execution and acknowledgment of a deed.”

This ease is referred to in numerous decisions subsequent; and in the case of Olinger v. McGuffey, 55 O. S., 661, the court refers to the case of Ford v. Osborn as its doctrine for the authority of its opinion, for the court say:

“The court is of the opinion that there is error shown by the record for which the judgment should be reversed, in this, to-wit: That the said James W. Meek in his answer and cross-petition avers that the note on which the suit is brought had been paid off and extinguished, and that the indorsement on the note was placed thereon merely as a memorandum at the request of John G. McGuffey, and not to pass the title to the note, which was denied in the reply of the plaintiff. The burthern of this issue was on the said James M. Meek to establish the same, not by a mere preponderance of the evidence, but by clear and convincing proof. From an examination of the evidence there does not appear to be such proof, and the court must have been of the opinion that such proof is not necessary and that a mere preponderance is all that is required.”

In the case of Perry v. O’Neil Co., 78 O. S., 200, while the court does not distinctly decide the question, yet the leading authorities referred to in the opinion, such as the 71st Wis., 391; 139 Mo., 440, and 190 Pa. St., 430, are pronounced in their view as requiring the presumption io lie, overcome by clear and convincing' proof.

It must be admitted that in the cases relied upon by the court below in overruling the motion for a new trial, not one of them had in consideration a written release of the character of that in the case at bar,'whereas in those decisions in which releases of this nature have been considered by the courts, they have quite generally held the doctrine of clear and convincing testimony to be necessary in order to set them aside.

Therefore, from the reason that the presumption is so strong in favor of the truth in written instruments, and that the weight of authority is that the presumption in written instruments of this class must be overcome by clear and convincing testimony, we are of the opinion that the court erred in charging that such presumption may be overcome by a preponderance of the evidence.

The case is therefore reversed and remanded to the superior court for further consideration.


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    PROOF OF CONSIDERATION FOR. A PROMISSORY NOTE.
    Court of Appeals for Columbiana County.
    Isabella H. Sharp, as Executrix of Robert B. Sharp, v. George H. Sharp.
    Decided, April 8, 1915.

      Want of Consideration — May he Interposed as a Defense in Part to an Action on a Promissory Note — Where the Sim Stated in the Note Was in Part a Gift — Construction of Section 8188.

    1. The gift of the sum payable in a promissory note will not support an action on the note between the payee and payor, but the payor or can avail himself of the defense of want of consideration.
    2. That Section 8133 of the General Code does not exclude the defense of a partial want of consideration in an action on a promissory note between the original parties thereto.
    3. That in such an action the payor can plead and prove that the sum mentioned as payable in a promissory note consisted in part of a valuable consideration and in part of a gift.

      4. That the payee can only recover the amount of the valuable con- • sideration.

      Merle E. Rudy and Musser, Kirnber (& Huffman, for plaintiff in error.

      Geo. T. Parrel and C. S. Speaker, contra.
    Pollock, J.; Metcalfe, J., and Houck, J. (sitting in place of Spence, J.),-concur.
   George H. Sharp, the defendant in error, brought an action in the court of common pleas of this county against Isabella Sharp, as executrix of Eobert B. Sharp, plaintiff in error, to recover a judgment on a promissory note dated May 8, 1909, due in two years thereafter, payable to the plaintiff below, for $2,000, and signed by'Eobert Sharp.

To. this petition the defendant below filed an answer denying the execution and delivery of this note by Eobert B. Sharp, and for a further defense she denied that there was any consideration for so much of the amount of said note as exceeds the sum of $250.

The trial resulted in a judgment in favor of the plaintiff below for the full amount of the note, with interest. This action is prosecuted to reverse that judgment for errors that it is claimed occurred upon the trial.

At the trial of the case the objection to George H. Sharp testifying on the statutory ground of the death of Eobert B. Sharp was waived by the defendant below, and he was permitted to testify. All the evidence in regard to the consideration of the note is .contained in the testimony of George H. Sharp and in statements which other witnesses testify that he made regarding the consideration for the note.

George H. Sharp testified that the consideration for this note was the sum of $250 which he had, prior to the making of the note, given to Eobert B. Sharp for safekeeping, and that the remaining $1,750 of the sum mentioned in said note was for work and labor which he had performed for the testator.

The defendant below produced a number of witnesses who testified that George H. Sharp, the plaintiff, had, after the death of Eobert B. Sharp and prior to the bringing of this action, stated to them that the $2,000 mentioned in this note was made up of two considerations — one of $250 for money which he had, prior to the making of the note, given to Robert B. Sharp, and that $1,750 was a gift to him by Robert Sharp.

At the close of the testimony and before arguments, the defendant below, by request in writing to charge before argument, asked the court, in substance, to charge the jury that if they found that the sum payable in said promissory note arose upon two distinct considerations, one of $250 which was money received by the testate from George H. Sharp prior to the making of this note,'and the remaining $1,750 was intended as a gift, that, the plaintiff can not recover for the latter sum, but can only recover the sum of $250 with interest thereon.

The court refused to charge as requested, and in his general charge said to the jury that in the event the jury found that some good and valuable consideration was given for the promissory note, then the plaintiff could recover the full amount mentioned in this note with its interest.

The refusal to charge as requested, and the charge as given, are urged as errors in this court for which the judgment of the court below should be reversed.

It is well settled that an intended gift of the amount mentioned in a promissory note wall not support an action between the original parties to the note, but that the defendant can avail himself of the defense of a "want of consideration. It is equally well settled that at common law, where the sum mentioned as payable in a promissory note is composed in part of a valuable consideration and the balance is without consideration, as where it is intended as a gratuity or gift, that no recovery can be had on the note-in excess of the valuable consideration; that a partial want of consideration’will avoid a note pro tanto. Parish v. Stone, 14 Pickering, 198 (25 Am. Dec., 378); Littlefield v. Perkins, 100 Me., 96 (60 Atl., 707); Daniels on Negotiable Instruments, Section 201.

The Supreme Court of this state has recognized the principle that a partial want or failure of consideration avoids a note pro tanto. Widoe v. Webb, 20 Ohio St., 431-435.

But it is claimed'that the common law rule as to partial want of consideration has been changed by the Negotiable Instru-ments Act, Section 8133, General Code:

“Absence or failure of consideration is matter of defense as against any person not a holder in due course and partial failure of consideration is a defense pro ianto, whether the failure is an ascertained and liquidated amount or otherwise.”

This requires a construction of this section, and in doing so it may be well to look to some of the rules governing statutory construction.

It is a well known rule that remedial statutes should be liberally construed. Sutherland on Statutory Construction, Section 409, says:

“ * * * There are also the three points mentioned by this author to be considered in the construction of all remedial statutes — the old law, the mischief and the remedy ; that is, how the law stood at the making of the act; the mischief for which that law did not adequately provide, and what remedy the Legislature has supplied to cure this mischief. And it is the duty of judges so to construe the act as to suppress the mischief and advance the remedy.”

Again the same author says:

“Section 291. In all doubtful matters, and when the statute is in general terms, it is subject to the principles of the common law; it is to receive such a construction as is agreeable to that law in cases of the same nature. A statute in affirmance of a rule of the common law will be construed, as to its consequences, in accordance with such law. So provisions which are intended to remedy defects in the common law must be read and construed in the light of that law.”

It is well known that negotiable instruments acts, in substantially the same form, were passed by the law-making power of a number of the stales for the purpose of making uniform the rules of law governing the rights of the parties making and holding negotiable instruments.

The right under the common law to defend on the ground of a want or partial want of consideration, or a total failure of consideration, was well established in all jurisdictions. But there was a difference in the holdings in regard to a partial failure of the consideration of a promissory, note. In some jurisdictions it was held that where the partial failure was a liquidated amount it might be set up as a defense. In other jurisdictions it must be by way of recoupment or separate action. But where the amount of the partial failure was unliquidated, the rule ivas that it coidd not be set up as a defense, but must be litigated in a separate action, or at least in a cross-action. Defense of Commercial Paper (Joyce), Sections 198, 201, 202 and 207; Eaton & Gilbert on Commercial Paper, pages 271 to 275, inclusive; Ruling Cases, Vol. III, page 945; Holzworth et al v. Koch, Mayer & Goldsmith, 26 O. S., 33.

Applying these rules of construction to the well known intention of the law-making power in enacting the Negotiable Instrument Act, the only provision of the section of the statute referred to in which the decisions were not uniform, was the partial failure of consideration.

The right to set up a partial failure as a defense was not uniform, even where the amount of the failure was liquidated, and but few authorities hold that it could be set up as a defense where it was unliquidated. Evidently the intention of this section was to make uniform the right to interpose a partial failure as a defense, whether the amount was liquidated or unliquidated.

We do not think that the courts would be authorized m saying that the intention of the law-making power was to change the rule of law as to want of consideration so as to deprive the maker of a note, where the action was between the original parties to the note, from interposing the defense of a partial failure of consideration where the sum named as payable in the note was composed partly of a valuable consideration and the remainder was a gratuity or gift. To do this would be placing a construction on the general words "absence of consideration” contrary to the general rule of the common law, and not in accordance with it.

The statute, so far as it refers to the defense of want of consideration, is in general terms, and should be construed according to the principles of the common law, but it is specific in regard to the defense of partial failure of consideration.

For these reasons we think the court erred in not submitting to the jury the question of whether $1,750, the amount named as payable in this note, was or was not a gift.

But it is further urged by the defendant below that even if the court did err in refusing to permit the question of the partial want of consideration of this note to go to the jury, yet the ease should not be reversed because of the answers returned by the jury to the interrogatories submitted to them by the court, in which they said that $1,750 was for services, and that the amount of these services ivas $1,750.

An examination of this testimony shows that the consideration of this note on the part of plaintiff below depends wholly upon the testimony of the plaintiff below; his recollection of what occurred at the time of the giving of this note is somewhat indistinct, and the services which he claims to have rendered, and which had not. been paid for prior to that time by the testate, were reasonably worth far less than the amount payable in this note which he claims was given for that service.

If the deceased intended to recognize the value of these services as being worth $1,750, and that amount of the sum payable of this note was intended to be given by him in payment of these services, the value of them can not now be questioned. We refer to the value of the services only for the purpose of showing the doubtful character of the testimony of the plaintiff below in regard to the $1,750 of the amount named in this note.

The defendant below called a number of witnesses who testified to statements made by the plaintiff, in which he said that $1,750 of the sum payable in the note was a gift of the testate to him. We think that from the doubtful character of the testimony that is was an error affecting the substantial rights of the defendant for the court to refuse to submit the question of a partial want of consideration to the jury, and that substantial justice has not been done.

The judgment of the court below is reversed. Exceptions noted.


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    AS TO THE VESTING OF AN ESTATE IN REMAINDER,.
    Court of Appeals for Champaign County.
    Hester A. McCrea v. John W. McCrea.
    Decided, June 8, 1915.

      Wills — Devise to the “Heirs of His Body” — Enlarged, by Addition of the Words “in Eee Simple” — Me.aning of the Words “Children" and • “Heirs of the Body” as Used by a Testator.

    A devise to my son George “during his natural lifetime only, and at his death to the heirs of his body in fee simple,” the words “in fee simple” are inconsistent with the preceding limitation “to the heirs of his body” and have the effect of enlarging the grant to one of fee simple in the heirs of the body of George, who therefore taire by purchase, the estate in remainder becoming operative after the death of George and when his heirs are ascertainable.

      J. E. Bowman, for plaintiff in error.

      L. D. Johnson and Deaton & Bodey, contra.
    Allread, J.; Ferneding, J., and Runkle, J., concur.
   This action involves a construction of the following clause of the will of Wallace McCrea:

“All the rest and residue of said real estate now owned by me, the same being about 148 acres, I bequeath to my son, George McCrea, during his natural lifetime only, and at his death to the heirs of his body in fee simple. The above bequest of a life estate to my son, George McCrea, in the 148 acres of land is subject to the further provision that he is to pay to my granddaughter, Bell Pratt, the sum of $650.00 in one and two years after my death. ’ ’

George McCrea, to whom the life estate was devised, survived the testator. George had two children, John and Mary, both of whom were living when the will was executed and both of whom survived the testator.

Mary died in the lifetime of her father, unmarried and without issue, but leaving a will devising her estate to her mother, Hester A. McCrea.

John survived the father and claims the whole estate as “heir.”

Hester claims one-half of the estate under the devise from Mary upon the theory that Mary had a vested interest.

The case presents a very interesting question and has been fully and ably presented by counsel both orally and in written briefs.

We have quoted the devise at large because of the provision charging George with a certain payment to Belle Pratt, the representative of a deceased daughter of the -testator. This charge was, however, only against George and while it might tend to enlarge his estate in ease the provisions were doubtful, we do not see how it could enlarge the remainder.

We think, therefore, the final construction of the will rests upon the following words:

‘ ‘ I bequeath to my son George McCrea during his natural lifetime only, and at his death to the heirs of his body in fee simple.”

Counsel for plaintiff in error contend that the words “heirs of his body in fee simple,” creates a vested remainder in fee in the children of George.

The effect to be given the words “in fee simple” is the turning point. For without such added words, the term “heirs of his body” would be easy of definition. Upon examination of authorities, we find that the proposition is generally accepted that in a devise to “heirs” or “heirs of the body” where there are superadded words creating- a fresh limitation, .the “heirs” take not by way of limitation, but by way of purchase. The superadded words in such case indicate an intention - not to use “heirs of the body” as words of limitation, but, in the language of Mr. Justice Swayne in Daniel v. Whartonby, 17 Wallace, 639, to make the issue, “the springhead of a new and independent stream of descent.

In our own state the superadded words to have such effect must be wholly inconsistent with the preceding limitation “heirs of the body.” The use of the words “heirs and assigns” is not sufficient. See Harkness v. Corning, 24 O. S.. 425, and.authorities cited.

Still we believe that the words “in fee simple” are broader than the general words “heirs and assigns” and are inconsistent with the preceding limitation “to the heirs of his body,” arid have the effect of enlarging the grant to one of fee simple in the “heirs of the body” of George McCrea who, therefore, take by purchase. Timanus v. Drugan, 43 Md., 402; Boykin v. Ancrem, 28 S. C., 486; Stephenson v. Hagan, 15 B. Monroe (Ky.), 282; Read v. Fogg, 60 Me., 479; 4 Kent Com., 221; DeVaughn v. Hutchinson, 165 U. S., 566; Tanner v. Livingston, 12 Wendell (N. Y.), 83; Heard v. Horton, 1 Den. (N. Y.) 365.

We conclude, therefore, that the words “heirs of his body” as- employed in the creation of the remainder are used as words of purchase and are mere designatio personarum.

It does not, however, follow as a necessary result that “heirs of the body” means the children living at the testator’s death. This becomes a cpiestion of construction. We must, therefore, look to the provisions of the will to determine whether the testator meant “children” in its broad sense or whether he meant “heirs” in a legal sense.

Counsel for plaintiff in error rely upon the ease of Linton v. Laycock), 33 O. S., 128, but it will be observed that in that ease the court had before it a devise to “children” and not a devise to “heirs of the body.” There is a vital difference between the word “children” and the words “heirs of the body.” AVhen a testator refers to ‘ children, ’ ’ he is presumed to contemplate those who stand jn that relation at the time when the will takes effect. The term children includes the offsprings of living as well as deceased parents. The words “heirs” in a legal sense and prima facie in popular acceptation means the legal representatives of a deceased ancestor. The term “heirs” is a technical word and carries its legal acceptation unless a ■different intention appears from other parts of the will.

AVhen, therefore, the testator in the ease at bar used' the, words “heirs of his body” he is presumed to have'intended those who would stand in that relationship at the. death of his son, George McCrea, for the maxim “nemo est haeres viveniis’’ would control.

In the ease of Bunnell v. Evans, 26 O. S., 409; King v. Beck, 14 Ohio, 559, and Poor v. Hart, 11 N.P. (N.S.), 49 (aff. 84 O. S., 489), the word “heirs” was held to mean “children” because of other reference in the wills indicating such intention. It was, however, remarked by Read, J., in the case of King v. Peck in respect to the meaning of the word “heir” that: “A mere presumed intention will not control its legal signification and operation. ’ ’ ■

Reference is also made by counsel for plaintiff in error to the ease of Custer v. Yeoman, 32 C. C., 476, in which the remainder was devised to the lawful heirs of a person living and. in which the word “heirs” was held synonymous with children. In that ease, however, it was apparent from the will that the estate might have vested in these so-called heirs prior to the death of their father so that the testator must evidently have intended to use the word “heirs” in the place of “children.” Here the estate in remainder was intended to become operative after the death of George and when his heirs were ascertainable. The language employed is entirely reconcilable with the view that the testator meant to use the word “heirs” as applying to those who would stand in that relation at the death of George.

While it may be that the word “heirs” is sometimes used by laymen as synonymous with the children, yet such use of the word is not so general as to affect its prima facie meaning. Besides, it appéars that this will was drawn by a lawyer or at least by some one familiar with legal phrases and this adds to the force of the presumed intention of the testator that the word “heirs” was used in a technical or legal sense.

In the case of Read v. Fogg, supra, Appleton, C. J., makes the following observation which is quite pertinent here:

“By the terms of the deed, a life estate is given to Margarite Read. ‘After her decease’ the remainder ‘go°es to her legal heirs.’ No one is the heir of the living. The heirs are those who shall be such at the decease of the person holding the life estate. They may be different individuals at different periods of time during the continuance of the intermediate estate, as they were in the ease under consideration. The remainder, therefore, is contingent. The fee vests when the contingency ceases. ’ ’

Chancellor Kent in his commentaries (Vol. 4, page 208), classifies remainders, contingent or dubious as to the persons who are to take, as follows:

“The fourth class of contingent remainders is where the person to whom the remainder is limited is not ascertained, or not in being. As in the case of the limitation to two persons for life, remainder to the survivor of them; or in the ease of a lease to A for life, remainder to the right heirs of B then living. B can not have heirs while living and if he should not die until after A the remainder ■ is gone, because the particular estate failed before the remainder could pass.”

We think, however, that the principle underlying the recent case of Barr v. Denny, 79 O. S., 359, as announced in the opinion is conclusive of the case at bar.

It is true that the case of Barr v. Denny, like the cases of Sinton v. Boyd, 19 O. S., 30, and Ritchie v. Johnson, 30 O. S., 208, was one where there was no grant except as implied in a direction to distribute, yet the implied devise was merely an indication of testamentary intention. The intention to defer the vesting of the estate because of uncertainty as to the devisees may appear as clearly where the testator grants the remainder to persons whose indentity is uncertain or dubious and capable of ascertainment only at a future time and upon the happening of a future event. Davis, J., in Barr v. Denny, says:

“But if there is a gift over in future after the expiration of an indeterminate estate, not to specified individuals or to a definite class, but to persons not ascertained or not in being at the time of the bequest, the legacy is contingent and does not vest until the time of distribution.”

Additional importance may be drawn from the reference of Davis, J., in the same opinion to the ease of Bigley v. Watson, 98 Tenn., 358, where a devise of realty to a widow for life and at her death to the testator’s heirs, was held to create a contingent remainder, the fee going to such persons only as answered to the description of heirs at law of the testator at the widow’s death.

Judge Davis quotes the following from the Tennessee case:

“The remainder was contingent, because the testator obviously intended the land to be divided at the death of his widow among such persons as should then sustain to him the relation of heirs at law. The remaindermen are to be ascertained not at his death, but at the death of his widow, or life tenant; and they are to be such persons as would at that time be his ‘heirs at law.’ At his death, when the will took effect, those persons were ‘dubious and uncertain’ and, therefore, the remainder must be contingent.”

See also Weston v. Weston, 38 O. S., 473, and Lisle v. Miller, 21 C.C.(N.S.), 317; 35 C. D., 127.

The case of Heard v. Horton, supra, may be classed with Custer v. Yeoman, supra, but at any rate the opinion in Barr v. Denny should prevail.

"We, therefore, reach the conclusion that although the words “heirs of his body in fee simple” as appearing in the will under consideration are held to be words of purchase, yet they were intended to apply to those who answered that description at the death of George and that the remainder was contingent and did not vest until the death of George. John, therefore, being the "only person who answered the description of “heirs” at the time the estate vested, takes the entire estate.

It therefore follows that the judgment of the court of common pleas should be affirmed.


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    LIABILITY FOR THE EXPENSE OF TESTING A LAW AFFECTING A PUBLIC BOARD.
    Court of Appeals for Hamilton County.
    The Board of Education of the School District of the City of Cincinnati v. The Board of Education of the School District of the City of Cincinnati, Simeon Johnson, William Thorndyke et al.

    Decided, January 30, 1915.

      Office and Officer — Test of the Constitutionality of an Act — Reducing Membership of the School Board — Counsel Fees and Expenses Properly Paid Out of the Public Funds.

    The enactment of a small school board for Cincinnati, which displaced the large board in control of the public schools for a long period, rendered the question of the constitutionality of the new law one of public interest, and the city solicitor having properly elected to uphold the new law, it became competent for the old board to employ counsel to test the question of their continued legal existence; and the expenses incurred in good faith in the litigation which followed were a proper charge against the public funds, notwithstanding the issue was finally determined in a quo warranto proceeding involving the members of the old board individually.

      Walter M. Schoenle, City Solicitor, for plaintiff.

      Simeon Mf Johnson and William Thorndyke, contra.
    Jones (Oliver B.), J.; Saving, P. J., and Jones (Edward H.), J., concur.

      Affirming Board of Education v. Board of Education, 17 N.P.(N.S.), 439.

   Under the terms of Section 4761 of the General Code the city solicitor in the city school districts is made the legal advisor and attorney for the board of education, and as such it is his duty to prosecute actions against members or officers of such board for malfeasance or misfeasance in office and to be the legal counsel for such board in all civil actions brought by or against them, and to conduct such actions in his official capacity. And by Section 4762, General Code, no compensation in addition to his regular salary shall be allowed him for such services. And by the same sections in school districts other than the city school districts the prosecuting attorney of the county is made the legal advisor of the board of education of the county in which he is serving.

A serious question was raised as to the constitutionality of the act of the Legislature (103 O. L., 275), known as the Jung small school board law, which made provision for a board of education to be composed of either five or seven members for the Cincinnati school district.

The local school board at the time said law was enacted was composed of a member from each ward, and was known as the large school board. If the new law were to be held to be constitutional it became the duty of the large school board to fix the number of members of which it should be composed, and those not holding over were to be elected at the November election. If the law were constitutional the large board would continue in existence, the terms of some of the members expiring their successors would be elected.

Several suits were instituted in the court of appeals and the Supreme-Court, having for their object the determination of the constitutionality of the Jung law. The city solicitor had been instrumental in drafting this law, and so committed to its constitutionality undertook to sustain it in the courts. The large school board, at a time when its existence and qualification was unquestioned, by resolution duly passed retained Johnson and Thorndyke as attorneys to act and represent it in maintaining before the courts the unconstitutionality of the Jung law. The resolution retained them particularly to represent the board as special counsel in the mandamus proceeding pending in the court of appeals wherein James G. Fisk was relator and the Board of Education of the School District of Cincinnati was defendant, and directed and authorized them to enter the appearance of the board in said proceedings, to waive the issuance of the alternative writ or any other process in said proceedings to take such steps as they might deem advisable in order to obtain without delay the decision of the proper court upon the constitutionality of the Jung small school board bill; and also to assist any other legal counsel of that board in any suit or proceeding which was then or might thereafter be instituted wherein said board was a party plaintiff or defendant involving the constitutionality or validity of the above law or any question thereunder. It fixed the amount of $1,500 to be paid each of said two attorneys, said sum to be in full for all of said services; and fixed an additional sum of $300 to cover expenses; and that amount, $3,300, was set aside from the contingent fund in the treasury for the purpose of meeting such obligation.

In the proceedings instituted by Fisk, as above referred to, the city solicitor declined to resist the application for a writ of mandamus on the ground that the law in question was unconstitutional, but expressed the willingness to resist that suit on the ground that the relator had a certificate of. election from the board of elections which was the proper tribunal to canvass the vote. Messrs. Johnson and Thorndyke appeared in said Fisk case, and also in a proceeding in quo warranto brought on the relation of certain members of the small school board against certain members of the large school board, and in other cases which involved the question of the constitutionality of said law; and the question was finally decided in a quo warranto case sustaining the constitutionality of the law.

The question here is whether these attorneys employed by the large school board should be paid from the school fund. No question is raised as to the amount of compensation or the fact, that the service was rendered, the only question being as to the power of the board to incur such expense in proceedings brought or resisted contrary to the official opinion of the city solicitor, their legal advisor. The further point is made that the quo warranto case in which the real service was rendered was an action against members of the large board of education as individuals and should have been resisted by them as individuals, and that any expense incurred shoidd not be paid for out of public funds.

It is true that the quo warranto proceeding was against these members as individuals, but the real question to be determined was of public interest and was a matter with which the public was deeply concerned, as to the care, management and control of its public schools. The action was brought in this form as the readiest and most effective method of securing a decision from the Supreme Court upon the validity of the law. It was brought by the city solicitor on the relation of members of the small board as individuals and it was proper that it should be defended by competent counsel representing the large board.

* There is no question but that the action of the large board in employing counsel was taken in good faith for the purpose of procuring the judgment of the proper court as to their official duties, and that the attorneys so employed by the large hoard acted in good faith in all of the litigation in which they were concerned in securing a decision on the question of the validity of this law, and that they rendered a public service. Nor is there any question but that such action was necessary, as the city solicitor had properly taken the other side and the court, finally sustained his official opinion.

Such unusual employment of counsel has been sustained in Kloeb, Auditor, v. Commissioners, 4 C.C. (N.S.), 565, and in State, ex rel Matthews, v. Boyden, 18 C. C., 282.

•The final decision of the Supreme Court shows that the suit instituted on the relation of Fisk could have been successfully resisted by the city solicitor as he advised, without necessarily disposing of the constitutional question, and the' suit instituted on the relation of Evans in the court of appeals proved to be unnecessary; but the employment was general in its terms, and fixed an entire fee for all services and as above stated, and no question is made but that the amount is proper and not excessive.

Judgment below will therefore be affirmed.


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    LIABILITY OF PROPRIETOR OF HOTEL FOR INJURY OF A GUEST.
    Court of Appeals for Mahoning County.
    Fred J. Halterman v. Cynthia Hansard.
    Decided, March 23, 1915.

      Innkeepers — Quest Injured Toy Fall of Ceiling — Recital of the Facts Sufficient — Application of the Doctrine of Res Ipsa Loquitiir.

    1. Proof of an injury to a guest at a hotel caused by the falling of the ceiling of the room to which he had been assigned raises a presumption of negligence which, in the absense of explanatory circumstances, will entitle a recovery in favor of the party injured.
    2. In an action to recover damages for personal injury, if the proof of the cause of the injury raises a presumption of negligence, and there is not a scintilla of evidence to overcome that presumption, it is the duty of the court to direct a verdict for the plaintiff.
    3. In such an action, it is sufficient for the plaintiff to plead facts causing the injury, and the damages, without alleging that the injury was caused by the negligence of the defendant.

      David G. Jenkins and L. O. Casey, for plaintiff in error.

      Anderson Lamb, contra.
    Pollock, J.; Spence, J., and Metcalfe, J., concur.
   Cynthia Hansard brought an action in the court of common pleas of this county against Fred J. Halterman, the Smith Brewing Company and another, to recover damages for injuries which she claims were received by reason of the negligence of the defendants below. The action was dismissed by the court belpw against all the defendants except Fred J. Halterman, and judgment was recovered against him.

The plaintiff below in her petition alleged that Fred J. Halterman was, on the 26th day of November, 1910, the proprietor of a hotel in the city of Youngstown; that on that day she became a guest in his hotel and was assigned to a room, and while she was in the room assigned her as a guest of the hotel the plastering from the ceiling of the room fell and injured her. After describing the injuries which she claimed to have received, she asked judgment for the injuries thus caused her.

Halterman by answer denied all the allegations of the petition except that he was proprietor of the hotel.

After the impanneling of the jury Halterman objected to the introduction of any testimony, for the reason that the petition did not state a cause of action against him. This was overruled and exceptions noted. The case then proceeded to the hearing of the evidence.

The evidence upon the part of. the plaintiff below showed that Halterman was at the time alleged in the petition the proprietor of the hotel, and on that date the plaintiff was a guest in the hotel and assigned to a room; that while in the room and after she had retired for the night the plastering from the ceiling of the room fell and she was injured. She then introduced testimony tending to show the extent of her injuries, and rested.

At the close of plaintiff's evidence defendant made a motion asking the court to direct a verdict for the defendant. This mo-lion was overruled and exceptions noted by the defendant.

The defendant then declined to introduce any evidence. The court charged the jury that, as defendant below was the proprietor of the hotel, and while plaintiff was a guest in the hotel she was injured by the ceiling of the room to which she was assigned falling on' her, she was entitled to recover reasonable damages for such injury, and that the only question for the jury to determine was the amount of the damages to which she was entitled.

There was an exception by Halterman to the charge of the court. The jury returned a verdict in favor of the plaintiff below. This action is prosecuted to reverse the judgment of the court below for the errors referred to above.

The plaintiff in error claims that the only duty he, as proprietor of the hotel, owed to the defendant in error as a guest was ordinary care, and that, as there was no negligence alleged in the petition or negligence proved, and only a recital of .the facts which caused the injury, that the court should have sustained Lis objection to the introduction of any evidence, or, after the evidence of plaintiff below had been received, should have directed a verdict for defendant; while the defendant in error claims that this is one of the actions in which the recital of the facts which caused the injury is sufficient to make a prima facie case of negligence against the defendant, by reason of the doctrine of res ipsa loquitur.

We are so accustomed to applying this doctrine to injuries 1o passengers on common carriers that we have become accustomed to associate the doctrine with the relative degree of care that exists between the party injured and thé one causing the injury. But upon an examination of the authorities we find that the maxim does not depend upon the degree of care existing between the parties, but whether or not the accident which caused the injury would have occurred under ordinary circumstances if there had not been negligence, and that the thing which caused the injury was wholly under the control and care of the party causing it.

This principle was recognized by the Supreme Court of this state in the case of Traction Company v. Holzenkamp, 74 Ohio St., 379. On page 385, in the opinion, they quote from the case of Rose v. Stephens, etc., Co., 11 Fed. Rep., 438, as follows:

‘ ‘ Undoubtedly the presumption has been more frequently applied in cases of carriers of passengers than in any other class, but there is no foundation of authority or reason for any such limitation of the rule of evidence. The presumption originates from the nature of the act, not from the nature of the relation between the parties. ’ ’

And again, on the following page, they quote the rule stated by Shearman & Redfield on Negligence, as follows:

“Proof of an injury, occurring as the proximate result of an act of the defendant, which would not usually, if done with due care, have injured anyone, is enough to make out a presumption of negligence. When a thing which causes the injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen, if those who have the management use proper care, ¿t affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.”

The Court of Appeals of New Jersey recognize the principle in Mumma v. Easton & A. R. Co., 65 Atlantic. 208. In the opinion on page 210 they say:

“lies ipsa,' loquitur is literally translated, ‘The thing itself speaks. ’ This principle is that when, through any instrumentality or agency under the management or control of a defendant or his servants, there is an occurrence, injurious to the plaintiff, which in the ordinary course of things would not take place if the person in control were exercising due care, the occurrence itself, in the absence of explanation by the defendant, affords prima facie evidence that there was want of due care.”

Thompson, in his work on Negligence, recognizes this principle in Sections 15 and 7635. From an examination of the authorities we find that the doctrine has been applied in a great variety of cases where the thing that caused the accident was under the control of the party causing the injury, and it was such as would not under ordinary circumstances' occur if negligence did not exist.'

The Supreme Court of California, in the case of Harlow v. The Standard Implement Company, 78 Pac., 1045, applied the doctrine in an action where the defendant’s steam roller used on' the streets in front of plaintiff’s residence, ran across her. lawn and against her house, causing plaintiff damage to her property.

The Supreme Court of Tennessee applied the principle in the case of McHarge v. Newcomer & Co., 100 S. W., 700, where an awning erected by the defendant fell upon a person walking on the street and injured Mm.

‘‘It is applicable ‘where,'under the circumstances shown, the accident presumably would not have happened if due care had been exercised.’ Its essential import is that, on the facts proved, the plaintiff has made out- a prima facie case, without direct proof'of negligence-. * * * The'doctrine does not dispense 'with the rule- that the party who alleged negligence must -prove it. It merely determined, the mode of proving it, or what shall be prima facie evidence of negligence.” Ldbatt on Master & Servant, Section 1603.

From these authorities we see that the principle does not depend in any way upon the relative degree of care existing between the parties, but from the nature of the thing causing the accident and its being under the control of the defendant.

The plaintiff below was assigned to a room, and while in the room plastering fell from the ceiling and she ivas injured. The room was under the control of the defendant below' and such an accident does not ordinarily occur if proper care is used on the part of the proprietor of a hotel. The mere proof of the facts that the ceiling of the room assigned to plaintiff below while she v/as a guest of the hotel of the defendant below' fell and she was injured, thereby constituted a ptima facie case of negligence, and in the absence of any evidence to overcome this presumption the plaintiff below' was entitled to a verdict.

The question now arises whether the petition, without alléging that the accident occurred by reason of the negligence of the defendant below, was sufficient. It is ordinarily sufficient to allege in the petition facts which, if proven, will constitute a cause of action, and an action for negligence is no exception to the general rule. The Supreme Court of Indiana, in the case cf Weiss v. The City of Madison, 75 Ind. Reports, in the opinion on page 246, say:

‘•‘The question of negligence or no negligence is t.o be determined from the facts pleaded, and the presence .or absence of general epithets adds no real force to the facts stated. ' If the facts stated are sufficient to show negligence, the absence of epithets does not impair their force; if they are not sufficient',' no mere epithets can supply the want.”

The Court of Appeals of Indiana, in the case of Railway Co. v. Worthington, 66 N. E., 478, affirm this doctrine, citing a number of cases of that state wdiich apply the same. rule.

Where negligence is implied, as under the doctrine of res ipsa loquitur, it need not be averred. II Bates’ Pleading and Practice, page 1182.

The Supreme Court of Nebraska, in the ease of Railroad Company v. Young, 58 Neb., 678, announce the same principle.

The petition in this case was sufficient and the court did not err in overruling the objection to the introduction of any testimony.

It is further urged that the court erred in charging the jury, that the plaintiff below was entitled to a recovery, and in not submitting the' question of whether the defendant below was negligent to the jury.

The maxim under which plaintiff claims the right to recover by the mere proof of the happening of the accident is merely a rule of evidence and does not dispense with the establishment of negligence, but under this doctrine the mere proof of the facts attending the accident raises a presumption of negligence which is sufficient to authorize a recovery, unless some testimony is introduced tending to overcome the presumption made by the plaintiff. The court has no right to take to the jury the determi nation of whether the prima facie case is overcome or not, unless there is no evidence tending to overcome the prima facie case made by the plaintiff. But if there is not a scintilla of evidence tending to overcome the prima facie case made by the plaintiff, if is the duty of the court to so direct the jury.

An examination of the record in this case establishes the occurrence of the accident., and there is no testimony tending to explain in any way the cause of the ceiling’s falling. We find no testimony tending to overcome the prima, facie case made by the plaintiff, and for that reason it was not error for the court to direct the jury that the plaintiff had a right to recover the reasonable compensation for the injuries which she received.

The judgment is affirmed.


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    ENFORCEMENT OF ANTE-NUPTIAL CONTRACT AFTER DEATH OF HUSBAND.
    Circuit Court of Cuyahoga County.
    Benjamin A. Gage, as Administrator of the Estate of Frederick T. Beck, Deceased, v. Sarah A. C. Beck.

    Decided, January 19, 1905.

      Ante-Nuptial Contracts — A Wife After Death of Her Husband May Maintain an Action for Breach of 'an Ante-Nuptial Contract.

    Where a husband had by an ante-nuptial contract, agreed to set aside a certain sum to be paid to his wife, or in the event he should not have the money then, to set aside lands of equal value, and died intestate without having set aside either money or lands and with insufficient personal property to pay the amount, the wife, having fully performed, may maintain an action- against the administrator of her husband’s estate for breach of contract.

      Guerin & Gage, for plaintiff in error.

      Arnold Green, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.

       Affirmed without opinion, Gage v. Bech, 75 Ohio State, 575.

   The parties here are the reverse of their relation to the suit in the original ease. They will be spoken of in the opinion as they were in the case below.

The plaintiff and Frederick T. Beck, now deceased, were husband and wife, having been married to each other on the. 5th day of August, 1895, and thereafter lived together as husband and wife until the 26th day of January, 1904, when said husband died intestate. The defendant is the administrator of the estate of the deceased husband.

The plaintiff presented to such administrator the claim upon which this suit was brought and demanded its allowance by him as.- a valid claim to be paid out of the estate of the deceased, and such claim was rejected.

On the 3d day of July, 1895, the decedent executed and delivered to the plaintiff a writing which reads as follows:

‘ ‘ Contrack.
“July 3d, 3895, Fort Wayne, Ind.
“I hereby sign a contrack to have set aside $2,000.00 two thousand dollars to pay Sarah E. C. Bolton if she marries me and stops with me until death separates us for my care and trouble in sickness and death besides holding her third interest in all my personal and real estate her lawful right held by me the signee. If there should not be any money left then, then shall be set aside land and deeded to her two thousand dollars worth of land now owned by me via Cleveland, Ohio, to satisfy her claim and leave her as long as she lives the use of one-third the balance of the farm; this shall give her that amount of all I do possess after the two thousand dollars is given her I set my hand and sign.
“Fredk Thos. Beck.”

At the time of the execution of said writing said Frederick owned no land in the city of Cleveland, but did own a farm in Euclid township, Cuyahoga county, Ohio, . of which county Cleveland is the county seat, and said Frederick still owned the same land when he died.

The claim of the plaintiff is that she married Frederick and fully performed on her part all the conditions required of her in the writing and that she has received no payment in money nor any conveyance of land in fulfillment of the promise made to her in said writing. The prayer of the petition is that said administrator be required to allow her claim for $2,000, and interest thereon from the time of Frederick’s death, and that she have judgment against him for that amount. The case was tided in the common pleas court to a jury, resulting in a ver: diet for the plaintiff for the amount claimed. Motion for a new trial was made and overruled and judgment was entered on the verdict. The case is here by proper proceedings for review. A bill of exceptions containing all the proceedings on the trial is filed.

At the trial it was shown clearly, as we think, at any rate with sufficient clearness to justify the jury in finding:

First, that Frederick executed the writing.

Second,'that plaintiff performed her full duty as required by condition in the writing.

Third, that the sum of $2,000 was never set aside, for or paid to her,

Fourth, that she had received no land from her husband, and that no land was set aside for her by him or by any one else on his account.

Fifth, that said decedent did not leave money or other personal estate sufficient to pay her $2,000 or any considerable part of it.

No land having been set aside by Frederick in his lifetime for the satisfaction of the promise made by him to the plaintiff, it follows that the lands which he owned at the time of his death descended to his heirs. As none of this land is described so in the contract as that any particular part can be said to have been contracted to her, it further follows that she has no cause of action against the heirs for any land, and so it follows that she is without remedy against any person whatever, if she is not entitled to recover against the administrator, and as she is by law a. stranger to the real estate left by the decedent, except he be ordered by court to sell some of it to pay debts, her only recovery against him, if slie can have any, is such recovery as she; got in the court of common pleas.

It is said by the plaintiff in error that the suit is for breach of contract. In a sense this is true of all suits the foundation of which are. contracts. In some cases the suit is for a wrong suffered by the plaintiff in not being permitted to perform the contract upon his part, and in some it is because the defendant failed to keep his promises after plaintiff had fully performed on his part. The present action is of the latter class as we view it, as much as a suit upon a promissory note would be.

Whatever may be said as to whether, however, the action is a direct suit upon the contract, or a. suit for its breach in the sense in which plaintiff in error claims, the damages are absolutely liquidated. The amount lost by the plaintiff by the failure of her husband to set aside for her to be paid her at his death $2,000 in money, or to set aside and deed or cause to be deeded to her land of the value of $2,000 was the.same in either case.

M/uch space is given in the brief of plaintiff in error to establish the proposition that the writing was not such a contract for the conveyance of land as could be specifically enforced. With this proposition we are in full accord.

We are also in full accord with his claim that the writing can not be enforced as a will, but it does not follow from this that it has no binding force.

It is unskillfully drawn and ungrammatically expressed but we think its meaning is clear, that the plaintiff was to have $2,000 in money or land. She got neither. The only manner of giving her the benefit of the promises made to her is by judgment such as she'obtained in the court of common pleas, and the same is affirmed.