text:
    DEFECTS WAIVED WHERE GOODS ARE RETAINED AFTER INSPECTION.
    Circuit Court of Cuyahoga County.
    The Bigalow Fruit Company v. Frederick B. Huxley.
    Decided, November 11, 1912.

      Trial — 'When Error Rendered Harmless by Verdict — Sales—Retention of Goods Waives Defects.

    1. Where, in an action for the purchase price of fruit sold under a contract providing different prices far first and second grades, it was alleged that all fruit shipped was first grade, the court erroneously excluded evidence of a custom of the trade that where first and second grades of fruit are mixed, all are to be considered second grade, such error is rendered hármless by a verdict of the jury for the full amount claimed by plaintiff, as this amounts to a finding that all fruit supplied was of the first grade.
    2. Where goods delivered under a contract of sale are retained and used after inspection or after a reasonable opportunity for inspection, any defect in them is thereby waived,

      C. C. Wise, for plaintiff in error.

      H. A. Couse, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
    Frederick B. Huxley, the defendant in error, was plaintiff, and the Bigalow Fruit Company, the plaintiff in error, was defendant in the court below. The action was begun to recover the balance claimed to be due the plaintiff on account of a quantity of pears and apples sold the defendant. The plaintiff below recovered the full amount sued for and this proceeding in error is prosecuted to reverse the judgment rendered against the plaintiff in error, as defendant below.
   The controversy relates to the pears sold the plaintiff in error, and not to the apples involved in the sale.

The agreement between the parties provided for a certain price for No. 1 pears and one-half that price for No. 2’s.

The plaintiff claimed that all the pears shipped to the defendant were No. l’s and the recovery sought was based upon this claim, while the defendant contended that the pears shipped to it were partly No. l’s and partly No. 2’s with some culls mixed in, and that according to an established trade custom known to both parties, when pears are so mixed together they are all classed as No. 2’s.

The court instructed the jury to disregard the evidence offered by the defendant to prove the custom referred to because, quoting the language of the charge, "it is in contravention of the contract itself, and no such custom has been shown as would bind the plaintiff to any such appropriation of his goods as that.”

We do not share the view of the trial court on this subject. The contract between the parties contemplated that the plaintiff might deliver either No. 1 or No. 2 pears, or some of each kind, and provided a certain price for No. 1 pears and one-half that price for No. 2 pears. Proof of the custom, therefore, would not contravene the contract but would furnish a means of ascertaining whether the pears were all to be classed as No. 2’s. It would simply, in other words, have a bearing on determining the quantity-of No. 2 pears, if any, in the shipment.

This^portion of the charge being, in our opinion, erroneous, it remains for us to decide in this connection whether in view of other parts of the charge given on the issues involved, and the verdict returned, the defendant below was prejudiced by the mistake.

One of the issues presented to the jury was whether or not the defendant, either by itself or its agent, had accepted the pears after inspection, or opportunity of inspection. There was evidence before the jury which made it proper and necessary to submit this question to the jury. The verdict was for the full amount sued for and indicates that the jury must necessarily have found either that the pears were all No. 1 ’s, or that the defendant had accepted them as such after inspection or opportunity of inspection.

We are impelled to this conclusion because the court charged the jury in substance that if they found that part of the pears delivered were No. 2’s, the plaintiff was entitled to one-half the price of No. l’s for such pears. The amount of the verdict shows that the jury made no allowance for any pears of the quality of No. 2. It is to be presumed that the jury followed the instructions given them. The inference is clear that the result would have been no different even if the court had not mistakenly taken from the jury’s consideration the evidence tending to establish the custom contended for by the defendant. We therefore reach the conclusion that the error committed by the court on this subject was not prejudicial.

. Complaint is made that the court charged the jury in effect that if the defendant accepted the pears and used them after inspection or a reasonable opportunity to inspect, without offering to. return the same, it would be deemed in law to have accepted them and to have waived any defect.

We think this instruction was justified by the evidence and that it is sustained by the authority of The Bowman Lumber Co. v. Anderson et al, 70 O. S., 16, the syllabus of which reads as follows:

“By an executory contract for the sale and delivery of chattels of a described grade or quality, the seller becomes bound to deliver goods of the character described, but in the absence of express terms of warranty, no obligation is imposed upon Mm which survives the acceptance by the purchaser of an article delivered by the seller in good faith as in the performance of the contract, if the acceptance is with full knowledge of all conditions affecting the character and quality of the article.”

Other parts of the charge are complained of, but in our opinion, when the charge is taken as a whole, and the verdict returned is considered, it does not appear that the plaintiff in error was prejudiced by the parts of the charge referred to.

It is contended on behalf of the plaintiff in error that the evidence established an express warranty that the pears shipped were all No. l’s, and that the verdict is against the weight of the evidence. The court charged the jury as to what constitutes ■ a warranty, and submitted the question whether or not a warranty existed. We are unable to say that the verdict, whether it be presumed to have been founded on the determination of this issue or on any or all of the other issues involved is so manifestly against the weight of the evidence as to justify a reversal on this ground.

We find no error in the ruling on evidence complained of, and no error prejudicial to the plaintiff in error in any of the matters covered by the argument and brief of its counsel.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    QUALIFICATION OF JUROR.
    Circuit Court of Cuyahoga County.
    William H. Miller, Trustee, v. Louis Sands et al.
    Decided, October 28, 1912.

      Trial — Juror’s Qualification Determined as at Date of Trial — Evidence —Partnership Boohs Admissible in Suit Against One Partner, When.

    1. A new trial will not be granted because one of the jurors may have been disqualified to act at the time he was summoned, if it does not affirmatively appear that he was disqualified at the date of the trial.
    2. The account boohs of a partnership are admissible in evidence in a suit against one of the individuals constituting the partnership, where it appears that the partnership has been dissolved and that the defendant had taken over all the assets and assumed all the liabilities of. the partnership.

      P. P. & G. A. Groot, for plaintiff.

      W. D. McTighe and B. J. Sawyer, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
    This action was brought by the plaintiff in error, who was plaintiff in the court of common pleas, to recover of the defendants there, compensation and expenses for acting as trustee under a chattel mortgage or deed of trust executed by the -Riggi Candy Co. The mortgage given by the company to the plaintiff in error, as trustee, provided that the trustee should be entitled to reasonable compensation and all necessary and reasonable expense, to be paid by the mortgagor or out of the trust estate.
   The petition does not, by positive averments,.charge any agreement of the part of the defendants to become liable for the fees and expenses sought to be recovered, but the case was tried on the theory that the making of such an agreement was sufficiently averred in the petition.

The action was dismissed as to the defendant, the Union National Bank. All the other defendants, except C. S. Horner, defended on the ground that the services performed by the plaintiff as trustee under the mortgage were rendered as the result of an agreement between him and ITorner alone, and that the latter, who was alleged to have been the attorney for the Riggi Candy Co., had been paid in full for all his services and the services of the plaintiff in connection with said mortgage.

The defendant, C. S. Horner, in his answer alleged in substance that the plaintiff, in acting as trustee, acted at the request of the said defendant and no one else, under an arrangement whereby an equal division of the fees and charges was to be made between plaintiff and the said Horner; that the sum of $900 was paid by the Riggi Candy Co. to the aforesaid defendant as full compensation for all work done by both himself and plaintiff; that the plaintiff, being indebted to said defendant in the sum of $950, said-defendant retained the half of said $900 due the plaintiff as his share of the fee paid by the Riggi Candy Co., and applied it on the account due said defendant from the plaintiff.

The verdict was for the defendants, and the plaintiff in error prosecutes error to reverse the judgment entered thereon.

The first ground on which, the plaintiff in error bases his claim for a reversal is that the court erred in overruling his motion for a new trial on the ground that one of the jurors was disqualified because of insanity.

The views of the court on this subject were expressed on the hearing, and no reason has been found for adopting any different views than were then indicated. There can be no dispute with the proposition of law laid down in Watts v. Ruth, 20 O. S., 31, and found also in other decisions, that jurors must have the qualifications of electors. But in this case there was no satisfactory proof offered in support of the motion for a new trial that the juror complained of did not at the time of the trial possess the necessary qualifications to act as a juror. Even though he might have been disqualified when his name was originally selected-, yet if he possesses the necessary qualifications, at the time he served as a juror, the verdict would not be invalidated.

A similar question was presented in Toledo Consolidated Street Railroad Co. v. Toledo Electric Street Railroad Co., 12 O. C., 367. The syllabus of that case reads as follows:

“Where a juror is summoned and another party appears and answers to his name under a misapprehension, and is sworn and serves as a juror, it will not invalidate the verdict, if the party serving would be a legal juror when properly summoned and none of the parties to the case knew of the substitution until after the verdict.”

The second ground of error is based upon the admission of testimony given by the defendant, C. S. Horner, as to the indebtedness of the plaintiff to said defendant.

A book constituting the record of the law firm of Hile & Horner, of which the defendant Horner had been a member, was produced and by reference to this book said defendant testified to various items of charges against the plaintiff, and to a credit of $450 thereon. This evidence was offered in support of the averment in the defendant Horner’s answer, that $450 due the plaintiff on account of the fee received from the Riggi Candy Company had been retained by said defendant and credited on an indebtedness from the plaintiff to him, greater in amount than this sum.

The objection urged against this testimony is that it permitted an indebtedness due from the plaintiff to the firm of Hile & Horner to be utilized as a set-off by Horner alone to defeat a claim asserted against him individually.

We think the answer to this objection is found in that portion of the testimony of Mr. Horner in which he states that at the time of the dissolution of the firm of Hile & Horner, he' assumed the liabilities and took over the assets of the firm. There was evidence, therefore, before the jury that the defendant Horner was the sole owner of the indebtedness shown by the books of Hile & Horner to be due from the plaintiff. In this view of the case, the testimony to which objection was made was competent for the purpose of showing that the claim asserted by the plaintiff against the defendant had in fact been paid by the giving of credit therefor on an account against the plaintiff owned by said defendant.

The language of the petition in error indicates that a claim of error is made because of the fact that the defendant Horner was permitted to refer to and read from the account book of Hile & Horner referred to, although, it was not offered in evidence. The witness, however, testified that he, himself, made the entry in the book. This being so, it was proper for him to refer to the entries for the purpose of refreshing his recollection as to the transactions there indicated.

No error prejudicial to the plaintiff was committed by the trial court, and the judgment is affirmed.


text:
    UNFAIR. USE OF TRADE NAMES.
    Circuit Court of Cuyahoga County.
    The Cleveland Transfer & Carriage Company v. M. R. Brailey et al.
    Decided, October 28, 1912.

      Unfair Trade — Use of Words Which Oonld Not he Trade-Names May he Enjoined.

    There may be an unfair use for trade purposes of words which are not capable of being an arbitrary trade-mark or trade-name, because ' they are geographical or purely descriptive, but when used unfairly tend to create confusion on the part of the public as to goods or firms, and when so used and such confusion results, their use will be enjoined.
    W. II. Boyd and M. W. Sanders, for plaintiff.

      Matthews <& Or gill, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
    This action is here on appeal. The plaintiff is a corporation engaged in the business of handling, transferring and transporting baggage to and from railroad depots, hotels, private residences and places of business in the city of Cleveland, and the hiring of conveyances and the doing of general livery and transfer business. The business conducted by it was founded by its predecessors in interest about fifty years ago. The business so founded was conducted until about the year 1886 under the name of “Cleveland Transfer” or “Cleveland Transfer Company,” and was generally known as “the Cleveland Transfer” or ' ‘ Clevel and Transfer.''
   In 1886 the owners of the business incorporated it under the name of “the Cleveland Transfer Company,” and continued to operate in the city of Cleveland, using the names and designations of “the Cleveland Transfer,” “Cleveland Transfer” and “Cleveland Transfer Company” until ;1890, when the plaintiff company was incorporated under the laws of Ohio as “the Cleveland Transfer & Carriage Company.” Upon its incorporation the plaintiff-acquired all of the assets, property, interests, rights and trade names of the Cleveland Transfer Company, and continued the business as before, making general use of the name “Cleveland Transfer Company” on its baggage checks, buildings, wagons and other vehicles.

The plaintiff claims that the names indicated have become familiar to the public of Cleveland, and have been exclusively associated for many years in the public mind with the business conducted by the plaintiff and its predecessors in interest, so that such association has become a property right of great value to it.

Complaint is made by the plaintiff against the defendant, M. R. Brailey, who is engaged in the auto livery and transfer busily ess in the city of Cleveland, that he has caused the defendants, the Cleveland Transfer Auto Livery & Baggage Company, the Auto Livery Company and the Taxicab Company to be incorporated, and has adopted various names, fictitious in character, under which to conduct his business; that in the conduct of his business under the names of the corporate defendants and under the fictitious names referred to, said defendant, M. R. Brailey, has assumed and appropriated the names “Cleveland Transfer Company,” “the Cleveland Transfer Company” and “Cleveland Transfer,” and used the same in telephone directories and otherwise in such a manner as to induce the belief in the minds of the public that said business is the same as that conducted by the plaintiff; that the object of said defendant in so making use of said names is to obtain the customers of the plaintiff on the representation made by the use of said names that they are dealing with the plaintiff, and that he has in fact unfairly obtained some of such customers who have been deceived into the belief that they were patronizing the plaintiff. The equitable interference of this court is sought by the plaintiff to enjoin the defendants and each of them from using the name “Cleveland Transfer” and “the Cleveland Transfer” and “the Cleveland Transfer Company,” or any one of said names in the manner complained of, in the conduct of the business of the defendants.

The authorities sustain the contention of the defendants, that neither the word “Cleveland” nor the word “Transfer” nor the two words in combination, can be protected as a trade-mark or trade name. The first is geographical and the second merely descriptive of the business. If the plaintiff is entitled to the relief sought, it must be because of unfair competition on the part of the defendants.

The doctrine of unfair competition is discussed in G. W. Cole Co. v. American Cement & Oil Co., 130 Fed. Rep., 703. In the opinion on page 705 it is said:

“Unfair competition is distinguishable from the infringement of a trade-mark in this: that it does not involve necessarily the question of the exclusive right of another to the use of the name, symbol, or device. A word may be purely general or descriptive, and so not capable of becoming an arbitrary trade-mark, and yet there may be an unfair use of such word or symbol which will constitute unfair competition. Thus a proper or geographical name is not the subject of a trade-mark, but may be so used by another unfairly, producing confusion of goods, and so come under the condemnation of unfair trade, and its use will be enjoined. The right to the use of an arbitrary name or device as indicia of origin is protected upon the grounds of a legal right to its use by the person appropriating it. The doctrine of unfair competition is possibly lodged upon the theory of the protection of the public, whose rights are infringed or jeopardized by the confusion of goods produced by unfair methods. Whether such confusion has been or is likely to be produced by the acts charged, is a question of fact to be resolved either by evidence of actual sales of the one product for the other, of actual mistake of one for the other, of fraudulent palming off of the one for the other, or, on the other hand, failing such evidence, by comparison of the two brands to determine whether the one can. be readily mistaken for the other, even by .the inattentive and unobserving retail purchaser.”

The doctrine under consideration is discussed in Nims on Unfair Business Competition, in Section 1, in this language:

" Unfair competition is not. confined to acts directed against the owners of trade-marks or trade names, but exists wherever unfair means are used'in trade rivalry. Equity looks not at what business the parties before the court are engaged in, but at the honesty of or dishonesty of their acts. It is unfair to pass off one’s goods as those of another person; it is unfair to imitate r- rival’s trade name or label; but he who seeks to win trade by fair means or foul is not limited to these methods. He may copy and imitate the actual goods made or sold by a competitor, he may libel or slander, these goods, make fraudulent use of a family name, or trade secrets, of corporate names, of signs, of threats, of action; he may construct buildings which are reproductions of peculiar buildings of a rival, thus producing confusion in the minds of purchasers, which enables him to purloin his rival’s trade, and in a hundred other unfair ways secure another’s trade. All acts done in business competition are either fair or fraudulent, equitable or inequitable, whether they relate to marks or not; and it is believed that the question of trade-marks will soon be lost sight of in discussing unfair competition, in the problem of securing, through the principles of equity, full protection to every merchant against unfair business methods. ’ ’

The law on the subject of unfair competition being as stated in the authorities cited, if the defendants have so appropriated and used the words “Cleveland Transfer” as to deceive the public and obtain the plaintiff’s customers by inducing them to believe that they were patronizing the plaintiff, when in fact they were patronizing the defendants, or some of them, the plaintiff should receive protection against the acts complained of.

We think the proof, is such that the plaintiff is entitled to the relief asked.

This conclusion is in accord with the holding of this court in The Enterprise Manufacturing Co. v. The E. A. Pflueger Company and E. A. Pflueger, decided May 21, 1909, the principle of which was sustained by the Supreme Court.

A decree will, therefore, be granted the plaintiff.


author: Jones (Oliver B.), J.

text:
    DISTRIBUTION OF INCOME AFTER. TERMINATION OF TRUST ESTATE.
    Court of Appeals for Hamilton County.
    Barbour et al, Trustees, v. Gallagher et al.
    Decided, December 2, 1913.

      Estates — Trusts—Distribution of Income — Arising After Termination of Trust.

    Income arising after the termination of the trust under which this estate has been held follows the property and should be distributed in accordance with the provisions of the will.

      J. B. Foraker, for Mary Swigert.

      John J. Acomb, for estate of Laura B. Capron.

      Mallon & Vordenberg, for Harriette C. Goodloe.

      Harmon, Colston, Goldsmith & Hoadly, for the trustees.
   Jones (Oliver B.), J.

The question here presented is on motions filed by several beneficiaries for distribution of the income from certain property held by trustees under the will of James Smith Armstrong. The will provided:

“Seventh. All the rest, residue and remainder of my estate real, personal and mixed, whatsoever and wheresoever, I devise, give and bequeath to my executors and trustees hereinafter named, and the survivors and successors of them, in trust, nevertheless : * * *
“4th. Now as to the manner in which the income arising from my said property both real and personal shall be divided, I hereby order and direct my hereinafter named executors and trustees, and as one of the conditions of their trust to divide the net revenue and income of my property, real, personal and mixed to them hereinbefore devised and bequeathed, in the following manner, to-wit:
“They shall divide said net income, and revenue into equal parts, and pay the same semi-annually as follows: * * *
“One part to my niece Laura Capron during her natural life and after her death to any child or children of her body surviving her or to the issue of such child or children. * * *
“One part to my brother Frank W. Armstrong during his natural life and after his death to any lawful child or children of his surviving him, or to the issue of such child or children; * * #
"One part to my sister Amelia A. Mannen during her natural life and after her death to any child or children of her body surviving, or to the issue of such child or children;
“Eighth. When all m'y sisters, nieces, peptiews and my brother Frank W. Armstrong who are hereinbefore made beneficiaries of the income and revenue arising from the real and personal property hereinbefore devised in trust shall have deceased, it is then my will that the successors of my hereinafter named executors and trustees, or said executors and, trustees themselves if then living, shall proceed without delay to divide such real and personal property, or the proceeds thereof should it be found necessary to sell for cash a part or the whole of such •property to carry out equitably the objects and purposes of this my last will and testament, and to divide such property or the proceeds thereof into as many equal parts as there -will be then surviving children of my aforesaid nephews, nieces and of my brother Frank W. Armstrong, and to make over, transfer and give to each one of said surviving children one of said equal parts, to have and to hold the same absolutely forever.”

The Supreme Court of Ohio has decided that the trust created by this will was terminated on July 17, 1911, by the death of Mrs. Capron, who was the last of the named beneficiaries. The testator having died on March 10, 1883, the executors made the first distribution of income September 10, 1883, and since that time distributions have been made regularly on the 10th of each September and March. — the last of such distributions being March 10, 1911.

The question now presented to the court is whether the income accumulated between March 10, 1911, and the date of the death of Mrs. Capron, July 17, 1911, should be distributed among the beneficiaries of the income, or whether because ordinarily it would not have been payable until September 10, 1911, this income should be added to the corpus of the estate and distributed among the persons entitled thereto as provided by item eighth.

From a careful reading of the parts of the will quoted above it will be seen that the testator distinguishes clearly between the “beneficiaries of the income and revenue arising from the real and personal property hereinbefore described devised in trust,” and those to whom the principal was to be distributed at the termination of the trust. Laura Capron, the last surviving named beneficiary of the income, whose death terminated the trust, was to receive one part of this income during her natural life. The provision as to the payment of that income semi-annually was evidently made for the convenience of the trustees, and could not, under the language used in the will, be construed to prevent the estate of Mrs. Capron from receiving her proportionate share of such income for the full term of her life.

Mrs. Swigert, as the daughter of Frank W. Armstrong, and ll'arriette A. Goodloe, as the daughter of Amelia A. Mannen, and the other beneficiaries of the income, were also entitled to leceive their proportionate shares of the income during the life of the trust.

In other words, it. became the duty of the trustees to collect revenue and income from the property held by them, and after deducting expenses to divide same into as many equal shares as there were then surviving beneficiaries, and instead of making division of each sum of money as it came in, the will provider that this income should be paid semi-annually.

The trust not having been terminated upon one of these semiannual dates, it becomes necessary to make a final division of this income on the date of the termination of the trust. Had it been practically possible to make immediate division of the corpus of the property on the day of the termination of the trust, that would have been the duty of the trustees; but as that was impossible, any income arising after the termination of the trust would follow the property and become part of the fund to be distributed under item eighth.

■The miles of apportionment between life tenants and remaindermen have been ably presented by counsel and many eases cited, but in the opinion of the court it is not necessary to discuss or consider them.

The property in the hands of the trustees consisted of real estate, railway, street railway, gas and water company stocks, and municipal and railroad bonds. Dividends on these stocks not yet declared would of course not be apportionable, but those declared and collected would be already income in the hands of the trustees and would be apportionable as such. The interest on the bonds and the rentals of the real estate would become due day by day, and would be apportionable. It has been argued, however, that as the title to the property itself was in the trustees the distribution of income to the beneficiaries was in the nature of an annuity and therefore rules of the common law forbidding the apportionment of annuities apply, and that no part of the income accumulating after the last semi-annual distribution could be distributed to the beneficiaries of the income. We can not agree that a proportionate share of this income constitutes an annuity.

Taking, however, the rules of apportionment as they existed under the common law and as modified later by the statutes and decisions, if they were applied to the determination of the question of division of the property in the hands of the trustees, wo are of the opinion that it would result in the same' division that we have found necessary to carry out the intention of the testator as expressed in the will.

It is therefore ordered that the trustees make the apportionment of the income to the beneficiaries entitled thereto as stated above.

Judgment accordingly.

Swing, J., and Jones (E. H.), J., concur.


text:
    JURISDICTION OF THE MUNICIPAL COURT OF CLEVELAND.
    Circuit Court of Cuyahoga County.
    S. F. Slansky v. P. W. Gaughan.
    Decided, November 18, 1912.

      Municipal Court of Cleveland, Jurisdiction of.

    When personal service has been secured in the city, the municipal court in the city of Cleveland has jurisdiction in an action on contract against a householder and resident of another township or municipality within the county, where the amount claimed is less than $2,500.

      Fred Desherg and A. W. Lamson, for plaintiff.

      Gaughan & Collins, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
    This proceeding in error had its inception in an action brought in the municipal court of the city of Cleveland, in which the plaintiff in error was plaintiff and the defendant in error was defendant.
   The statement of claim filed in the municipal court shows that the action was for the recovery of $20.50 for work and labor performed and material furnished. Personal service was obtained on the defendant within the city of Cleveland.

A motion to quash service of summons was made by the defendant on the ground that the defendant was a resident and householder of the village of Cleveland Heights, Cuyahoga county, Ohio, and not a resident of the city of Cleveland.

This motion was overruled and the defendant then filed a statement of defense, in which the same facts relied on to support the motion were set forth in the first defense. The case proceeded to trial and resulted in a judgment against the defendant for the amount sued for.

The defendant prosecuted error in the court of common pleas, and there secured a reversal of the judgment of the municipal court.

By this proceeding in error a reversal of the judgment of the court of common pleas is sought.

The question presented for our determination is whether the defendant in the original action who, it was admitted, was a resident of Cleveland Heights village, Cuyahoga county,. Ohio-, and a householder therein, and not a resident of the city of Cleveland, could be held to answer the summons in the action from the municipal court, personally served on him within the city of Cleveland.

Section 6 of the act amending and supplementing an act providing for the establishment of a municipal court in the city of Cleveland, found in 102 O. L., 156 (P. & A. Ann. O. General Code, Section 1579-6), contains the following provision:

“The municipal court shall have original civil jurisdiction within the limits of the city of Cleveland in the following cases: 1. In all actions and proceedings of which justices of the peace have or may be given jurisdiction.”

Section 10225, General Code, provides that except as provided in the next preceding section, no householder or freeholder resident of the county shall be held to answer a summons issued against-him by a justice in a civil matter in any township of such county other than the one where he resides, except in certain cases which are enumerated in the statute.

The cause of action sued on in the municipal court was one over which a justice of the peace would have jurisdiction and it did not fall within any of the exceptions enumerated in said Section 10225.

It is argued in support of the judgment of the court of common pleas that since the municipal court is given jurisdiction in all actions and proceedings of which justices of the peace have jurisdiction, it must, by implication, assume that jurisdiction, subject to all the restrictions and limitations attaching to the exercise thereof by justices of the peace, and that since the defendant in the original action could not have been held to answer the summons of a justice of the peace issued against him in any township of Cuyahoga county, other than the one in which he resides, on the claim involved in this action, he likewise could not be held to answer the summons of the municipal court of the city of Cleveland.

This contention would be sound unless the Legislature has by appropriate language expressly conferred jurisdiction on the municipal court in eases of the kind under consideration in such a way as to indicate an intention to remove the implication suggested.

Proceeding to an examination of other provisions of said Section 6 we find that subdivision 3 thereof gives to the municipal court original jurisdiction within the limits of the city of Cleveland of "all actions on contracts, expressed or implied, when the amount claimed by the plaintiff, exclusive of all costs, does not exceed twenty-five hundred dollars.”

Here is an express and unqualified conferring of jurisdiction on the municipal court of all actions on contract, expressed or implied, when the amount claimed, exclusive of costs, does not exceed twenty-five hundred dollars. This express provision must control any limitation or qualification on the exercise of jurisdiction over the class of cases mentioned therein that might accompany the assumption of jurisdiction solely under authority of subdivision 1 of said Section 6.

The action of the municipal court was on contract; the amount was within the jurisdiction of the court, and by virtue of said subdivision 3 of said Section 6, the court had jurisdiction thereof within the limits of the city of Cleveland, and service on the defendant within said city was properly añade.

The court of coaaamoaa pleas erred in reversing the judganeait of the municipal court.

The judgment of the court of coaaimoaa pleas is, therefore, reversed and that of the municipal court affirmed.


text:
    CONSTITUTIONALITY OF THE ELIMINATION OF GRADE CROSSINGS ACT.
    Circuit Court of Summit County.
    The Northern Ohio Traction & Light Company v. City of Akron.
    Decided, October 12, 1912.

      Constitutional Law — Oracle Crossings — Laws Compelling Street Railways to Bear Portion of Cost of Elimination of Grade Crossings Constitutional — Nature of Liability of Company.

    1. Sections 8892, 8893 and 8894 Generai Code, giving to municipalities the right to compel a street railway company to bear a reasonable portion of the cost to the municipality incurred in the abolition of railroad grade crossings, is constitutional,- does not vest judicial power in a legislative body, does not deny due process of law, nor sanction the taking of private property for public uses without providing compensation.
    2. When, upon the abolition of grade crossings in a street in which there is a street railroad, the municipality and the street railway company can not agree upon the portion of the cost to be borne by the street railway company, the municipality may, by ordinance, fix the amount to be paid by the company and institute an action in court for its recovery, but the recovery in such case will not be as upon a judgment, but for such amount as the jury shall determine to be a reasonable portion of the cost of the improvement.

      Rogers, Roiuley <c& Mather, for plaintiff in error.

      Jonathan Taylor, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
    Tbe sole question attempted to be reserved upon tbe record of this case is tbe validity of Section 8 of tbe act of May 2, 1902 (95 O. L., 356), and the amendment thereto adopted April 2, 1906 (98 O. L., 192).
   Tbe act of 1902 was an amendment of tbe original grade-crossing act of 1893 (90 O. L., 359). The first seven sections of the act of 1902 provide for the separation of grades where steam railroads cross municipal streets at grade. The constitutionality of these sections is conceded in this action.

The eighth section of the act of 1902 reads as follows:

“In case the track or tracks of any street railway company or companies within the limits of any municipality where the improvements authorized by this act are made shall cross at grade or otherwise a public street or the right-of-way of any railroad company or companies at a point where, under the plans and specifications provided for in this act, it has been determined to construct the said improvements, the municipality shall have power by ordinance to require such a street railway company or companies to bear a fair and reasonable proportion of the costs assumed by said municipality in the making of said improvement, not exceeding one-half the portion payable by said municipality; provided, however, that said street railway company or companies shall keep in repair at its or their own expense all tracks affected by such improvement and all construction work of whatever character which may be necessary to support such tracks.”

On the 4th of August, 1902, the council of the city of Akron took action toward the abolishment of the Mill street grade-crossing in said city, by the erection of a viaduct over the tracks of three steam railroads where they crossed said street.

On the 4th of April, 1904, the council passed an ordinance requiring the traction company, whose tracks were located upon Mill street, to bear one-half of the city’s portion of the cost of the Mill street viaduct, reciting that one-half of the city’s estimated cost of the viaduct was $36,000.

Later in the same year an ordinance was passed approving plans for the viaduct and determining the proportion of the estimated cost of the improvement to be borne by the three railroads and the city.

Section 8 of the act of 1906 reads as follows:

“In case the track or tracks of any street railway company or companies within the limits of any municipality where the improvements authorized by this act are made shall cross at grade or otherwise a public street or the right-of-way of any railroad company or companies at a point where, under the plans and specifications provided for in this act, it has been determined to construct the said improvements, the municipality shall have power by ordinance to require such street railway company or companies to bear a fair and reasonable proportion of the cost assumed by said municipality in the making of said improvement, not exceeding one-half the portion payable by said municipality; and the municipality shall have the right of action against any such street railway company or companies for such proportion of the said cost as said ordinance shall require said company or companies to bear, amd such proportion of said cost shall be a lien upon all the property; booth real and personal, of the said company or companies situated in the county in tvhich the municipality is situated from and after the date of the passage of said ordinance; provided, however, that said street railway company or companies shall keep in repair at its or their own expense all tracks affected by such improvement and all construction work of whatever character which may be necessary to support such tracks. And the council, board of legislation or other legislative body of said municipality may by ordinance provide the mode and time or times of payment for the proportion of the cost of said improvement to be borne by said street raihvay company or companies.”

The only change made by this amendment was the addition of the words in italics.

On August 3, 1908, the city passed the following ordinance:

“Section 1. That the said the Northern Ohio Traction & Light Company be and it is hereby required to bear the following amount of the said cost of said improvement, to-wit: twenty-seven thousand nine hundred and ninety-one dollars and seventy-nine cents ($27,991.79), which said amount is hereby determined to be a fair and reasonable proportion of the cost assumed and paid by said city in the making of said improvement, and which said amount is not in excess of one-half of the part of the cost of said improvement assumed and paid by said city.
“Section 2. That, unless the said the Northern Ohio Traction & Light Company shall pay the costs to be paid to said city of Akron, the said sum of twenty-seven thousand nine hundred ninety-one dollars and aeventy-nine cents ($27,991.79) on or before eleven (11) days after the passage of this ordinance, the solicitor of said city is hereby authorized and directed to commence an action in a court of competent jurisdiction to enforce payment by said company to the said city of said sum, or to file a cross-petition for said purpose in a certain case pending in the Court of Common Pleas of Summit County, Ohio, entitled the Northern Ohio Traction & Light Company against the city of Akron, and being case No. 12552.
“Section 3. The clerk of council is hereby directed to give notice of the passage of this ordinance to said the Northern Ohio Traction & Light Company by leaving a copy thereof at the office of said company forthwith upon the approval by the mayor.
“Section 4. This ordinance shall take effect at the earliest period allowed by law. ’

Meanwhile, on December 14, 1904, the Northern Ohio Traction & Light Company had filed its petition in the cause now under review, asking that the city be restrained from assessing any part of the cost of said improvement against it.

After the passage of the amendatory act of 1906, the city filed its answer and cross-petition praying for judgment against the traction company in the sum of $27,732.92, which it alleged to be one-half of that part of the cost of the viaduct assumed by the city in its agreement with the railroad companies.

A demurrer to this cross-petition being sustained, the ordinance of 1908 was adopted and a new cross-petition filed upon which the parties'went to trial, other pleadings being filed by the parties in the meantime.

This cross-petition contained an allegation that $27,991.79 was the fair and reasonable proportion of the cost assumed by the city in the making of said improvement which the traction company ought to pay.

The jury brought in a verdict in favor of the city in the sum of $18,916.66, about $10,000 less than the amount claimed by the city..

There is no bill of exceptions filed in this case showing the nature of the evidence introduced on the trial and the charge of the court, but attention being called to the fact that the verdict was less than the amount fixed in its ordinance by the city and claimed by it in its cross-petition, it was conceded bj'- counsel on both sides that the court received evidence on the question of the fair and reasonable proportion for the traction company to pay, if anything, and charged the jury that the ordinance of the city was not conclusive upon that subject.

The small size of the verdict compels the conclusion that such must have been the ease.

This fact is important, for the whole contention of counsel for .the traction company proceeds upon the theory that Section 8 of the grade-crossing act, now found as Sections 8892 to 8894 inclusive, General Code, is unconstitutional, because it vests judicial power in a legislative body, denies due process of law and the equal protection of the law, and sanctions a taking of private property for public use without first providing compensation therefor.

If Section 8 must be construed as vesting in the city council the power to fix and determine the exact amount that a traction company must pay it when a separation of grades is determined upon at a crossing where street railroad tracks are upon the street, the contention of plaintiff’s counsel would require more critical examination and review than seems necessary to a decision of this case, from another view of the grade-crossing act which seems tenable.

The city and the steam railroad companies are the only necessary parties to the abolishment of a grade-crossing. The street railroad company has nothing to say about the propriety of separating the grades; if the city decides that the railroad tracks must pass over or under the street and an agreement is made with the railroad company, or the mode and manner of crossing is determined according to law, the street railroad company must adapt itself to the change and go with the street, over or under the railroad tracks.

The separation of grades, however, is manifestly beneficial to the street railroad company; it renders the movement of its cars safer and quicker.

The burden of the street railroad- upon the street increases the cost of the change, particularly in the ease of a viaduct, for it must be built of a width to accommodate the tracks and the general public, and of a strength to sustain the heavy traction cars, which weigh many tons more than other vehicles.

It would seem that for the benefits thus received the traction company should pay, even in the absence of a statute on the subject, and the statutes under consideration are only a declaration of what natural justice should require, even though no decisions on the subject have crystallized the law of the land with respect to such conditions. This statement, of course, applies only to the. declaration of the rights of the parties under the relations created by the necessity for a separation of grades; it is not meant as authorizing one of the parties to determine the liability of the other, finally and without other formality.

Now, with this view of the law, what did Section 8 of the act of 1902 provide? That “the municipality shall have power by ordinance to require such street railroad company or companies to bear a fair and reasonable proportion of the cost assumed by said municipality in the making of said improvement, not exceeding one-half the portion payable by said municipality.”

This authorizes the city to come to an agreement with the street railroad company as to what is fair and reasonable for it to pay and to settle with it for that amount, the action of the city being confirmed by ordinance, a proper and formal way of recording its action. The limitation “not exceeding one-half the portion payable by said municipality,” is for the benefit of the street railroad company.

This section does not specify how the city shall require the street railroad company to pay; it does not authorize the city by ordinance to determine what amount is fair and reasonable.

It seems that this section would authorize the city, if it could not come to an agreement with the street railroad company as to how much it should pay towards the improvement to “require” it to pay a fair and reasonable proportion thereof by proceeding against it according to law.

Suit brought, as in this ease, by the filing of á cross-petition setting up all the facts with regard to the improvement, its cost and the benefits supposed to flow to all the parties therefrom, leaving to a jury under the direction of a court to determine from all the facts presented in evidence what was fair and reasonable for the street railroad company to pay, if anything; under all the circumstances, would be according to law and violate none of plaintiff’s constitutional rights.

The presumption is in favor of the judgment in this case and such a trial must have been had.

This view of the statute makes it constitutional. It is a universal rule in the construction of statutes that they shall be held by the courts to have a constitutional operation if it is possible to give them such operation.

The amendment of Section 8 in 1906, was an effort to make this effect of the act of 1902 clearer, but it is doubtful if it has served such purpose. The words then inserted were: "and the municipality shall have the right of action against any such railway company or companies for such proportion of the said cost as said ordinance shall require said company or companies to bear.”

If this amendment means that the city can sue for the amount determined by its ordinance as upon a judgment and recover that amount or more, then the amendment might be invalid. If it means that the city might by ordinance determine what was fair and reasonable in its judgment for the street railroad company to pay, being unable to agree with the company on the amount, if any, which it in justice should pay, present a bill therefor and, if not paid, sue on such bill, then it would be constitutional. It would be according to the practice of all creditors, who make out their own bills and, if not paid, sue on them, claiming the full amount that they themselves think ought to be paid. At the trial the proper amount due the plaintiff is determined, without regard to what he thinks he should receive.

That course, we understand, was followed in the trial here under review.

An examination of the ordinance of August 3, 1908, shows that it was a mere statement of what the council thought the traction company should be required to pay as its fair and reasonable proportion of the cost of the improvement, and that said amount was not more than one-half of the cost assumed and paid by the city with directions to its attorney, the city solicitor, to bring suit for that- amount if it was not paid in eleven days after the claim was presented to the company.

We are not required to give this ordinance or the law under which it was passed .an unconstitutional effect, and the trial court gave it no such effect, though the plaintiff in error seeks a strict construction of the law and its application in an unconstitutional maimer so that it may escape the payment of an obligation for which a fair interpretation of the law makes it liable.

Judgment affirmed.


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    SALE OF LAND UNDER A MISTAKEN IMPRESSION AS TO THE BOUNDARIES.
    Circuit Court of Summit County.
    Charles Mallison v. Daniel Duerr and Elizabeth Mahoney.
    Decided, October 12, 1912.

      Contracts — Rescission Granted ichen there Was no Meeting of Minds as to Land Conveyed.

    Where it appears that there was no meeting of the minds of the parties to a contract for the purchase of land, due to the fact that the purchaser thought the boundaries included certain land not in fact included but which the purchaser desired for a particular purpose, an abatement of the purchase price not furnishing adequate relief, a rescission of the contract will be granted.

      J. A. H. Myers and C. L. Dinsmore, for plaintiff.

      Wilcox, Burch & Adams, contra.
    Marvin, J.; Winci-i, J., and Niman, J., concur.
    This ease comes to us on appeal from a judgment of the court of common pleas.
   Mallison purchased a tract of land from Duerr, directing that it should be deeded to a relative, Elizabeth Mahoney. At the time this agreement to purchase ivas made, Mallison and Duerr went upon the land. Duerr owned land in the township and village of Cuyahoga Falls, bounded on the north side by Front street, on the south side by the Cuyahoga river, and on the east side by the boundary line between Cuyahoga Falls and Stow townships.

This land was all originally in Stow township, but something like sixty years ago the township of Cuyahoga Falls was established, being made up from Stow and other townships. There was no visible mark to fix just where this boundary line was. Duerr and Mallison both understood that Duerr’s land was all in Cuyahoga Falls, but we think it plain, from the evidence, that both supposed the line to be considerably east of where if really was.

Duerr says he told Mallison he didn’t know which of two stones which he pointed out was on the line. As a matter of fact neither of these stones was on the line; both were too far east.

Duerr shows by his testimony that he understood that Mallison was buying expressly that he might have a boat landing on the river front. He says 26 feet would be enough for a boat landing, and that he, Duerr, spoke of 26 feet as a sufficient boat landing.

A deed was made out by Duerr and delivered to Mrs. Mahoney, making the east boundary the township line. As already said, this was considerably east of both the stones pointed out by Duerr, and reduces the river front to much less than 26 feet; in fact, it practically leaves no room for a boat landing.

There is a mistake, too, in the west line as it appears in the deed. This is agreed to by all parties, and if this were the only difficulty it would be easily corrected as a mutual mistake; but Duerr did not own the land which Mallison says he supposed he was getting. He did not own as far east as either of the stones, pointed out, so that if Mallison is entitled to any relief here it can not be given him by a decree of specific performance.

We think it clear that he is entitled to relief; there would remain but two means of giving the plaintiff proper relief, to-wit, a rescission of the contract or an abatement from the consideration. The latter would not be adequate and proper relief when we take into account the fact that the inducing cause operating upon the plaintiff to make the purchase was that he might have a suitable river front for a boat landing. Giving him the land only which the defendant could have given him, he fails to get this river front. The purpose for which he purchased the property failed, and he would not be made good by a recovery back of a proportionate share of the purchase money. In such case we understand the plaintiff to be entitled to a rescission of the contract.

In the case of Stewart v. Gordon, 60 O. S., at page 170, it is said in the second paragraph of- the syllabus:

“Where a grantor is mistaken as to the size of a particular tract of land from which a given number of acres in rectangular form are to be taken, but the grantee is not, the fact that the grant so made includes a house both understood was not to be included, is ground for a rescission of the grant, but not for reformation of the deed. ’ ’

On pages 174 and 175 in the opinion in this case, prepared by Judge Minshall, this language is used:

‘ ‘ The evidence in this case fails to disclose that it ivas a mutual mistake. There was a mistake in this, that the plaintiff and her husband both testified that the eleven acres -were to be taken off of the east side of the southwest quarter of the southeast quarter of the section named, but so as not to include the house. The defendant, on the other hand, testifies that it was to be taken off of the north side, whether it included the house or not. He was not certain at the time whether it included the house. Both parties agree that whether taken from the east or north side, it was to be in the form of a rectangle; there was no treaty for anything else. The court, however, found with the defendant, that it was to be from the north side and that both parties mutually under.stood that it was not to include the house, and permitted the petition to be amended so as to support a finding that the eleven acres were to be taken from the north side so as not to include the house.
“The plaintiff thought it was to be taken from the east side so as not to include the house and lot. The defendant understood that it was to be taken from the north side. As to this the court found with him, but found that he understood that it was not to include the house. And then finding that this could not be done so as to convey the requisite number of acres in the shape understood by both parties, decreed it to be taken from a side conforming to the understanding of one of the parties, and in a form different from the understanding of both. It is not competent for a court to determine the contract that should have been made and decree its performance. Parties must be left to make their own contracts. The most the court can do, in exercising the power of reformation, is to clearly ascertain what the contract was and to correct such mutual errors as have intervened in carrying it into execution. The evidence in the case would doubtless have warranted a rescission had suit been brought for that purpose. ’ ’

In the present case suit is brought for the rescission of this contract. It is a ease where the minds of the parties did not meet; it is a case which, as already pointed out, can not be corrected by decreeing a specific performance, even if the minds of the parties had met, because Duerr did not own the land which Mallison supposed he was getting, and, as has also been pointed out, an abatement from -the purchase price would not do justice to the plaintiff.

We reach the conclusion, therefore, that the plaintiff is entitled to have the contract rescinded.

The defendant Duerr having died during the progress of this action and his successors in title having been made parties, including also the executor and his widow, the decree must be against them. We have examined the decree entered in the court of common pleas, and the same decree may be taken here.


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    AS TO PROCEDURES a;FIRST DEGREE MURDER TRIAL.
    Circuit Court of Cuyahoga County.
    William Murray v. State of Ohio.
    Decided, October 12, 1912.

      Trials — Criminal Law — Indictment Heed Hot Follow Words of Statute —Illustrations May be Used in Charge to Jury — Proof Beyond Reasonable Doubt Hot Required as to all Circumstances — Failure to Define '‘Attempt to Rob” Hot Error in Trial for Murder While Attempting to Rob — Hot Error to Fail to Instruct as to Lesser Crime, When — ■Misconduct of Jury, How Proven.

    1. The identical words of a statute need not be used in an indictment charging ah .offense in violation of it, but it is sufficient if the offense charged is brought substantially within the provisions of the statute defining it.
    2. In defining circumstantial evidence, it is not error for the court in its charge to the jury to use illustrations drawn from common experience or based upon familiar events in everyday life.
    3. In a criminal prosecution, it is not essential that every fact and circumstance be proven beyond a reasonable doubt, if every essential link in the chain of circumstances necessary to prove each or any of the charges, is so proven.
    4. In the trial of one accused of having committed murder while attempting to perpetrate a robbery, the failure of the court to define an attempt to perpetrate a robbery is not error where no such definition is requested.
    5. In the trial of one indicted for first degree murder it is not prejudicial error on the part of the court to fail to charge the jury that they might find defendant guilty of assault and battery, where under the charge as given the jury might have found the defendant guilty of a crime of lesser degree than that of which they did in fact find him guilty.
    6. Misconduct on the part of the jury can not be proven by the affidavit of one of the jurors.

      H. M. Eagelbarger, for plaintiff.

      F. J. Rockwell, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.

      William Murray, the plaintiff in error, was indicted’ by the grand jury of Summit county for murder in the first degree on account of the alleged murder of one Prank Price. lie was tried and convicted of murder in the second degree. A motion for a new trial was overruled and he was sentenced to life imprisonment in the penitentiary.
   By this proceeding in error a reversal of the judgment of the court of common pleas is asked.

The indictment contains eight counts. The first count charges the crime to have been committed with -a club; the second count, with the fists; the third count, with the hands and feet; the fourth count, with a razor, and the last four counts respectively charge the crime to have been committed by means of the several instrumentalities enumerated in the first four counts, while the accused was engaged in an attempt to perpetrate a robbery upon the said Prank Price.

A motion to quash the indictment was filed and overruled. A demurrer to the indictment was then filed which was also overruled.

Among the errors claimed to have been committed by the court below is the overruling of the motion to quash and the overruling of the demurrer.

The motion to quash was based upon two grounds: First, that in the last four counts of the indictment it is charged that the defendant assaulted the said Frank Price with intent to rob him, and also that the assault upon the said Frank Price was made by the defendant with the intent unlawfully and purposely to kill and murder. Second, that in each of said counts, it is alleged that the assault was committed “whilst engaged in the attempt to perpetrate a robbery,” while the exact words of the statute are “in attempting to perpetrate a robbery.”

As to the first of those grounds it is sufficient to say, that in order to charge murder in the first degree while the accused is attempting to perpetrate a robbery, the indictment must allege facts sufficient to show an attempt to commit robbery as defined by Section 12432, General Code, since the attempt to perpetrate robbery takes the place of deliberate and premeditated malice. The counts objected to do nothing more than comply with this requirement and are not open to the objection urged.

In Blair v. State, 5 C. C., 496, this question was raised, and it was there held:

“An indictment charging the crime of murder in the first degree, wherein the killing was done at the time the accused was attempting to perpetrate a robbery, is not bad for duplicity on the ground that in the same count it charges an assault with intent to rob.' Such averments are essential in charging the crime of murder.” See also, Jackson v. State, 39 O. S., 37.

The second ground of objection to the last four counts of the indictment stated in the motion to quash, is also without foundation. The words ‘ ‘ whilst engaged in the attempt to perpetrate robbery, ’ ’ used in the indictment, are the equivalent of the words of the statute, ‘ ‘ attempting to perpetrate robbery. ’ ’ The identical words of the statute need not be used. It is sufficient if the offense charged is brought substantially within the provisions of the statute defining it. Loeffner v. State, 30 O. S., 598.

The grounds urged in support of the demurrer which was filed to the indictment are, that: first, in none of the counts is the location of the mortal wound stated; second, that in the third and seventh counts there is an allegation that the injuries were inflicted in several different ways, and the counts are objectionable because of duplicity; third, in the fifth, sixth, seventh and eighth counts, two intents are alleged and the words of the statute are not followed.

. The last of these grounds has already been considered in connection with the motion to quash. An examination of the indictment discloses no basis for the other two contentions urged in support of the demurrer.

It is claimed on behalf of the plaintiff in error that the trial court committed error in embodying in the charge an illustration on the subject of circumstantial evidence. The court used this language:

“Circumstantial evidence is as competent as. direct evidence. The weight of it, the credibility of it, is solely a question for the jury, guided by the rules of reason in common, ordinary, everyday human experience. Let me illustrate briefly the difference in a homely way. .You retire at night after a day dusty, dry and hot. You sleep soundly all night, wake up in the morning, find the sky clear with a burning sun, but the streets are generally muddy, the gutters are filled with water, the grass is generally more green and very wet; you did not see it or hear it rain; yet you can say with reasonable certainty it rained last night. Your neighbor came home at midnight. ITe saw, heard and felt the pelting rain. He knows with equal certainty that it rained last night. This'is direct evidence. You get the distinction.”

It is claimed that this was a far-fetched and fateful illustration and well calculated to mislead and prejudice the jury.

The use by the court of illustrations drawn from common experience or based upon familiar events in everyday life has been repeatedly upheld. Illustrations which are apt and clearly made and not of such a character as to cause the jury to lose sight of the issue to be determined, are often helpful in making clear a legal proposition which would otherwise be difficult of comprehension. It is not error to employ such illustrations. Neal v. Powell, 130 Ga., 756; 61 S. E., 729; Whitney v. Wellesley, etc., R. Co., 197 Mass., 493; 84 N. E., 95; 38 Cyc., 1071.

We do not see how any juror could have been deceived by the illustration complained of, especially in view of the fact that it ■was immediately preceded by the positive instruction that the weight and credibility of circumstantial evidence was solely a question for the jury, guided by the rules of reason in common, ordinary, everyday human experience.

It is also contended that the court erred in using the following language in the charge:

“Not every fact and circumstance in this case needs to be proven beyond a reasonable doubt, but every, essential link in the chain of circumstances necessary to prove each or any of the charges, as claimed by the state, must be proven beyond a reasonable doubt.” '

The language used in Brick et al v. State, 4 C. C., 160, is an answer to the objections urged against that portion of the charge just quoted. On page 176, Baldwin, J., said:

“It is not true that, in order to convict a person of a crime, all those circumstances that may be material in the case must be established beyond a reasonable doubt. It is quite possible and probable that there may be a large number of circumstances, no one of which will be established beyond a reasonable doubt, but yet the aggregate of those various circumstances, the number all pointing one way to the guilt of the accused, may be such that there can be no reasonable doubt that the accused is guilty of the crime that is charged. It is true, that when Avhat is to be proved is supported by a chain of circumstances that are dependent one upon the other, that in order to cohvict of the crime on that proof each of these must be established; that is, that it is an essential fact that must be proven beyond a reasonable doubt. ’ ’

The charge in that case Avas substantially like the one here in the respect complained of. It AA'as approved by this court and the decision was affirmed by the Supreme Court without report, 21 W. L. B., 204.

It is urged that the court erred in not defining an attempt to perpetrate a robbery. After giving to the jury a definition of the crime of robbery the court said:

“Having the definition of robbery, you will know what it would mean to speak of an attempt to perpetrate a robbery.”

There is in Ohio no crime specifically known as an attempt to commit robbery. Having defined robbery, it is doubtful if any further explanation would have added to the understanding of the jury as to what Avas meant by an attempt to perpetrate a robbery, even if an additional explanation had been requested. No further explanation or request, however, was asked for and the failure of the court to give a more detailed and comprehensive instruction on this subject was not reversible error. State v. Schilly, 70 O. S., 1.

It is urged also that the jury should have been instructed that if they found that the defendant actually perpetrated the robbery, then they could not convict him under any of the counts charging him with having committed the crime Avhile engaged in the attempt to commit a robbery. In the perpetration of a robbery, however, is involved the attempt. Even if it had been requested it Avould not have been proper to charge the jury on this subject in the manner indicated.

It is claimed that- the court erred in omitting to instruct the jury that they might return a verdict of assault and battery if they saw fit.

If it should be admitted that such an instruction would have been proper, it does not appear that the accused was prejudiced by the omission. Under the instructions given, a verdict of manslaughter might have been returned, but a verdict of guilty of murder in the second degree was in fact returned. It is clear that the jury would not have found the defendant guilty of assault and battery when they did not exercise the right given them to find him guilty of as low a degree of crime as they might have done under the charge.

Moreover, the death of Frank Price was so clearly established and the other evidence in the ease was such, that a verdict of assault and battery would not have been justified, and it was therefore not error for the court to omit any instruction that would have authorized such a verdict.

The contention is made also that the defendant could not lawfully be convicted of murder in the second degree under the seventh count of the indictment, but only of murder in the first, degree.

In Lindsay v. State, 69 O. S., 215, a conviction of murder in the second degree under an indictment similar to the charge contained in the seventh count was sustained. In the opinion, page 235, it is said:

“The current of decisions in this state justifies the conclusion that an indictment, good as to murder in the first degree, embraces necessarily the lower grades of homicide, and that when this is the case presented, the jury may, if the facts proven warrant it, acquit of the graver offense and convict of the lower. ’ ’

Another claim of error is based on the refusal of the trial court to grant a new trial on the ground of misconduct of the jury.

In support of the charge of misconduct, an affidavit of one of the jurors was presented setting forth, in substance, that after the jury had retired to their deliberations, and before a verdict had been reached, the foreman of the jury, who was the affiant, had held some communication with the bailiff in charge of the jury on the subject of whether or not the court would instruct the jury only on a point of law and not as to the penalty on the different degrees of murder. Such a communication was highly improper if made as detailed in the affidavit, but the court could not consider the charge of misconduct supported by this affidavit alone, because of the well established rule, applicable to civil and criminal cases alike, that the depositions or testimony of a juror will not be received, on a motion for a new trial, to impeach the verdict by showing misconduct or misbehavior on the part of the jury.

This rule is said to be framed “for the purpose of setting bounds to the discretion of the court in granting new trials ’ ’ and to be “founded on reasons of public policy.” Hulett v. Barnett, 10 O. S., 459; Farrer v. State, 2 O. S., 54.

In Kent v. State, 42 O. S., 426, the rule is stated in paragraph 4 of the sjdlabus in the following language:

“Where a juror in a criminal ease makes no statement with respect to the matter on trial until the jury retires to deliberate on their verdict, and then makes to his fellow-jurors a statement of matters alleged to be within his own knowledge, contradicting in an important particular the testimony of one of the defendant’s witnesses, and the defendant is convicted, ground is afforded by such misconduct for a new trial, where the fact is properly made to appear, but the affidavits of jurors will not be regarded for the purpose of setting aside the verdict, until misconduct of the jury is shown alinunde.”

We find no error, prejudicial to the plaintiff in error in any of the matters complained of, and the judgment is affirmed.


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    MEASURE OF DAMAGES UNDER A BREACH OF CONTRACT.
    Circuit Court of Summit County.
    The National Milling Company v. Charles G. Craft.
    Decided, October 12, 1912.

      Contracts — Damages—Construction of Provision for Resale of Goods.

    Where a contract for the sale of goods contains a provision that should the goods be resold the seller agrees to use care and diligence in selling in those markets that will, in his judgment, net the best figures, charging therefor a certain commission, such provision contemplates an act of reselling under a subsisting contract and does not apply so as to affect the measure of damages where the purchaser has repudiated the entire contract.

      J as. A. Ford and H. L. Snyder, for plaintiff in error.

      Auten cfi Ormsby and Chas. H. Stahl, contra.
    Niman, J.; Winci-i, J., and Marvin, J., concur.
    The action out of which this proceeding in error arises was begun by the plaintiff, the National Milling Company, in the court of common pleas, to recover damages of the defendant, Charles G. Craft, for breach of contract to purchase 750 barrels of flour.
   The evidence before us in the bill of exceptions shows that on May 22, 1910, the defendant gave to the plaintiff an optional order for 750 barrels of Osota flour at $5.25 per barrel. The order was accepted by the plaintiff on October 31, 1910. By the terms of the order shipment of the flour was to be made between December, 1910, and May 1, 1911. After acceptance of the order by the plaintiff and before the expiration of the time' fixed in the order for shipment of the flour, the defendant repudiated the contract and refused to receive the flour or to give directions for its shipment. The plaintiff in its original action sought to recover $637.50 damages for breach of contract.

On the trial of the action the court instructed the jury to return a verdict for the plaintiff, and laid down a rule of damages, which will be considered hereafter. The jury returned a verdict of $75 on which judgment has been duly entered.

The plaintiff in error seeks a reversal of this judgment in its favor on two grounds. First, that the court erred in charging on the measure of damages; second, that the court erred in not granting the motion of the plaintiff below for a new trial on the ground that there was error in the amount of the recovery, the claim being that the verdict is too small.

Considering these grounds of error in their order, our attention is challenged to the rule of damages, laid down by thé court in the following language:

“In assessing the damages due the plaintiff, you will follow this rule, if there was an available market for the goods in question the measure of damages is the difference between the contract price and the market or current price on May 1, 1911. If you find that there was no available market price, or if you find that there were special circumstances showing proximate damages of a greater amount, then the measure of damages is the estimated loss directly and naturally resulting in the ordinary course of events from the defendant’s failure to take the goods as agreed. ’ ’

This portion of the charge is based upon the provisions of Section 8444, General Code, which prescribes the measure of damages in case the buyer wrongfully neglects or refuses to accept and pay for the goods contracted for. It correctly states the law of this state and is applicable to the facts in evidence unless, as is claimed by the plaintiff in error, another element of damages should have been included by reason of that provision of the contract between the parties which reads as follows:

“Should this flour or feed be resold, the seller agrees to use care and diligence in selling iu those markets that will, in his judgment, net the best figures, charging 10 cents for one barrel commission besides other expenses actually incurred.”

The trial court took the position that this provision of the contract did not bind the defendant to any different rule of damages than that provided in the statute and we concur in this view.. The provision in question contemplates an act of reselling under a subsisting contract and does not apply where the buyer has absolutely repudiated the contract and put an end to all its provisions.

We are of the opinion that the trial court committed no error in the charge complained of.

A consideration of the second ground of error cpmplained of leads us to the conclusion that the jury could not have applied the measure of damages given them, to the evidence in the ease. The verdict for $75 is irreconcilable with ail the evidence given on the subject of the market value of Osota flour on May 1, 1911. The amount of the verdict indicates that the jury must have found, if the instructions were followed, that the difference between the contract price and the market value per barrel of flour' of the kind named in the contract-, on May 1,1911, was only 10 cents. The undisputed evidence shows the difference to have been considerably .greater.

We think the verdict on the undisputed facts and under the. law was insufficient in amount, being too small, and therefore, the trial court erred in not granting the plaintiff’s motion for a new trial on the ground indicated.

In Toledo Railway & Light Co. v. Mason, 81 O. S., 463, it was held:

“In an action to recover damages for personal injuries, a new trial may be granted on the ground of the inadequacy of the damages found by the jury, when it appears upon the facts proved that the jury must have omitted to take into consideration some of the elements of damage properly involved in the plaintiff’s claim.”

By the fifth subdivision of Section 11576, General Code, when the action is upon a contract, error in the amount of recovery, whether too large or too small, is made a ground for the granting of a new trial.

It follows that the judgment of the court of common pleas must be reversed and the cause remanded for further proceedings according to law.