author: HENRY, J.

text:
    MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    December 21, 1906.]
    Marvin, Henry and Wildman, JJ.
    (Judge Wildman of Sixth Circuit Sitting in Place of Judge Winch.)
    State ex rel A. S. Chisholm et al, v. R. J. McKenzie et al.
    Priority of inconsistent Petitions, One to Detach Territory and Another to Annex to City.
    A petition to detach territory from a village and erect it into a village was filed with the county commissioners before another petition to annex the greater part of said village, including the territory described in the first petition, to a city, was also filed with the commissioners, the second petition, however, being filed two days before the council of the village gave its assent to the detachment of territory prayed for in the first petition. Held: The two petitions being inconsistent, the second was entitled to be first heard.
    Mandamus*
   HENRY, J.

This mandamus proceeding seeks to compel the county commissioners to take immediate and favorable action upon, a petition filed with them for the detachment of certain territory from the village of Collinwood and the erection thereof into a separate township under the provisions of Sec. 1616 R. S. (See. 3577 G. C.)

The defense of the county commissioners is that another petition pending before them takes precedence over and, if granted, will prevent favorable action upon the petition filed with them by the relators.

The facts are embodied in an agreed statement showing that on May 28, 1906, the relators filed their petition in the office of the county commissioners, and, on the same day, the council of the village of Collinwood passed an ordinance giving consent to the proposed detachment of territory. Said ordinance became effective June 13, 1906. Hearing on the petition had meanwhile been fixed by the county commissioners for June 13, 1906. The territory in. question entirely separates the city of Cleveland from the remainder of the village of Collinwood.

While these events were transpiring another movement was on foot to annex nearly all the village of Collinwood, including all of the territory in dispute, to the city of Cleveland, under the provisions of See. 1615 B. S. (See. 3575, 3576 G-. C.) To this end the council of the city of Cleveland, on request of two-thirds of the legal voters of the territory proposed to be so annexed, passed an ordinance May 28, 1906, authorizing application to the county commissioners to cause such annexation to be made. This ordinance became effective upon legal publication, which we think means after ten days from first publication, so that it was in force at least as early as June 11, 1906. Upon all of that day the commissioners were in recess between adjourned meetings of their regular session; but written application, pursuant to said city ordinance, was filed on said date in the name of the city clerk of the board of county commissioners. We think that this was a sufficient application of the council to the commissioners within the meaning of the last mentioned section of the statutes. The council of course acted on behalf of the city, and it is not a material variance that it also acted upon the city’s name. The clerk of the board is the statutory custodian under Sec. 845 and 1021 R. S. (Secs. 2458, 2566, G. 0.) of all “papers required to be deposited and kept in his office, and as such a paper lodged with him is properly before the board. State v. Mitchell 12 Circ. Dec. 288, (22 R. 208). It follows that the council of the city of Cleveland had done all that was possible or required of it in the premises on June 11, 1906, and the county commissioners were, on and after that date, invested with complete jurisdiction to take the first step by them to be taken in such a proceeding. Section 1536-58 R. S. (Sec. 3575 G. C.) provides indeed “that in all their proceedings in the premises the county commissioners shall be governed by the provisions of law contained in Sec. 1536-44 R. S. (See. 3561 G. C.) or rather, through reference from the latter section, by the provisions contained in Sec. 1536-32 R. S. (See. 3549 G. C.) as far as applicable. There it is provided that a petition for the annexation of adjacent nonnmnicipal territory to a municipality, “shall be presented to the board of county commissioners at some regular meeting therof, and when so presented the same proceeding shall be had, in all respects, as far as applicable, and the same duties in respect thereto shall be performed by the commissioners and other officers, as are required in the ease of an application to be organized into a village,” etc.

The county commissioners, “in all their proceedings,” with respect to an application made under Sec. 1563-58, are to be governed by the provisions of law thus referred to. But conceding that the commissioners can act upon such an application only at “some regular meeting” or adjournment thereof, it does not follow that an application may not be filed with the board of commissioners while it is in recess. The presentation of a petition of the filing of an application is no part of their procedure. It is the act of the petitioner or applicant.

On the side of the relators here, it is to be observed that their petition was filed, as well it might be, before the assenting ordinance of the village of Collinwood became effective. But the county commissioners jurisdiction is to entertain it only “with the assent of the council, given in an ordinance passed for that purpose, and not otherwise.” Such being the language of Sec. 1536-59, we are bound to hold that it was not until June 13, 1906, two days later than in the ease of the city’s petition, that the county commissioners were first invested with jurisdiction to take any action at all on the petition of the relators.

It follows therefore that the right of prior consideration, as between these two conflicting petitions, which were simultaneously urged before the commissioners at their session of June 13, 1906, attaches to that one, jurisdiction to consider which first accrued, to-wit, the city’s application. Failure on the part of the commissioners to observe such priority would result in void action. State v. Mitchell, supra.

And we hold that it is not important that the earlier petition invokes their discretionary action, whereas the later petition invokes the performance of a'duty alleged to be immediate and mandatory. The commissioners do not refuse to consider the relator’s petition. They merely decline to consider it until the earlier and inconsistent petition is disposed of. And we hold that this interpretation of their power and duty in that behalf is correct. The writ prayed for is refused.

Marvin and Wildman, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    ERROR — INTOXICATING LIQUORS.
    [Cuyahoga (8th) Circuit Court,
    November 26, 1906.]
    Marvin, Winch and Henry, JJ.
    In re Jones Law Local Option Petition v. Tom L. Johnson, Mayor, Etc.
    ■ 1. Leave to file a petition in Error in Circuit Court to Review Jones Law Local Option.
    Leave to file a petition in error in the circuit court to the action of a mayor or judge upon a petition in favor of prohibiting the sale of liquor under the Jones law, must be granted by the court and not by a judge thereof.
    2. Transcript Must Accompany Petition in Error to Review Local Option Proceedings.
    With the petition in error in such cases must be filed a transcript of the final record or a transcript of the docket and journal entries, as required by Sec. 6716 R. S. (Sec. 12263 G. C.).
    3. Proceedings on Local Option Hearings Are Judicial, not Ministerial.
    The proceedings before the mayor or judge on such petitions are judicial and not ministerial; otherwise error would not lie to them.

      Geo. H. Shaw, C. W. Collister, Hobday & Quigley, Blandin, Bice & Ginn, and F. D. Morrow.

   WINCH, J.

During the summer vacation six petitions in error were filed in this court, upon leave of one judge thereof, to review a like number of rulings, four by the mayor of the city of Cleveland and two by a judge of the Common Pleas Court of Cuyahoga County, within which said city is situated upon petitions presented to said mayor and judge, respectively, in favor of prohibiting the sale of intoxicating liquors as a beverage in certain residence districts in said city, described in said petitions, as provided under the Jones law, so-called.

The jurisdiction of the court to consider these petitions in error is challenged upon, two grounds:

First. Because leave to file .said petitions in error was granted by a judge of the circuit court, in vacation, instead of by the court itself during term time.

Second. Because neither a transcript of the final record nor a transcript of the docket or journal entries was filed with any of said petitions in. error, as required by See. 6716 R. S. (See. 12263 G. C.)

A determination of these propositions requires an examination of part of Secs. 4 and 12 of said Jones law, reading as follows :

“Section 4. The mayor or judge shall decide whether the petitioners are qualified 'electors in the residence district and equal in number a majority of the votes east in the residence district at the last regular municipal election, and the mayor shall make record of his findings on his docket, and the judge shall cause the same to be recorded in the records of his court.
‘! Section 12. Any person being a qualified elector of a residence district of any municipal corporation wherein a petition shall have been presented and held sufficient by a mayor or judge as provided for in this act may prosecute error from such finding by first filing a motion for leave to file a petition in error with the circuit court of the county in which such residence district is situated.
“The motion shall not be granted unless for good cause shown. If such motion is granted, a petition in error shall be filed within fifteen days after the finding or decision of the mayor or judge setting forth the errors complained of. ’ ’

Conceding, as has been held by other circuit courts of this state, that leave to file such petitions in error must be granted by the court and can not be granted by one or more judges thereof in vacation, perhaps, it does not follow that if petitions in error are filed within the fifteen days limited by the statutes, but during vacation, they must be stricken from the files.

In each of these cases plaintiffs in error did all that this statute requires of them to be done. Each filed with the clerk of this court a motion for leave to file a petition in error. Each filed a petition in error with said clerk within the fifteen days. The court was not in session. Quaere, could the court when thereafter duly convened in session, grant this motion, and the petition in error being on file within the fifteen days, would the limitations of the statute be complied with ?

What answer we should give to this question in a case where we felt the leave should be granted, we do not now indicate, for a consideration of the second objection to the jurisdiction of the court shows that such leave should not be granted in these cases, in any event.

2. The second objection is that no transcript was filed with the petition in error.

We have carefully examined all the papers filed in all these cases and find that in none of them was there filed with the petition such transcript as is required by Sec. 6716, before referred to.

If the proceedings before the mayor or the proceedings before the judge were of a judicial nature, then manifestly the jurisdiction of this court to review said proceedings must be invoked as prescribed by Chap. 1, Tit. 4, Part 3, R. S., and as Sec. 6716 contained in said chapter, was not complied with, the court is without jurisdiction to entertain said petitions in error. Jennings v. Mendenhall, 3 Ohio St. 490; Stewart v. Williams, 15 Ohio St. 484; Barton v. Am. Nat. Bank, 8 Circ. Dec. 27 (14 R. 450).

If the proceeding before the mayor or judge were of a ministerial nature; if they exercised nonjudieial functions under the Jones law, then said Sec. 12 of said law is in contravention of Article 4, See. 6, of the constitution, for it would be the conferring of original jurisdiction upon the circuit court in excess of that limited by the Constitution. Logan Branch Bank, Ex Parte, 1 Ohio St. 432; Musser v. Adair, 55 Ohio St. 466 [45 N. E. 903].

So it seems that whether the functions performed by the mayor or judge under the Jones law are ministerial or judicial, the result would be the same in these six cases, and the petitions in error must be dismissed for want of jurisdiction in this court to entertain them.

Marvin and Henry, JJ., concur.


author: MARVIN, J.

text:
    INTOXICATING LIQUORS.
    [Cuyahoga (8th) Circuit Court,
    November 26, 1906.]
    Marvin, Winch and Henry, JJ.
    L. Cohen v. State of Ohio.
    1. Not Duplicity to Charge in One Count Keeping of Place for Sale of Liquors and Also Selling Them.
    In a prosecution for the violation of the liquor laws, an affidavit is not bad for duplicity which charges not only that the accused kept and used a wagon for the . selling, furnishing and giving away of intoxicating liquors as a beverage, but also that from it he sold, furnished and gave away such liquors.
    2. Evidence Unlawfully Obtained Under Search and Seizure Law may be Used in Prosecuting for Keeping Place for Sale of Liquors.
    It is no objection to the introduction of evidence in a prosecution for the violation of the liquor laws, that such evidence was' unlawfully obtained under the search and seizure law.
    Error.

      Klein <& Harris, for plaintiff in error.

      A. V. Taylor, for defendant in error.
   MARVIN, J.

This case is brought to this court on error, seeking to reverse the judgment of the court of common pleas, an affirmance of the judgment of the police judge of the village of Chagrin Falls.

Cohen was convicted before the police judge upon a charge contained in an affidavit, that charge being:

‘ ‘ That on or about the 4th day of May, 1906, in the village of Chagrin Falls, in the county of Cuyahoga, and state of Ohio, one L. Cohen, then and there being, did then and there keep and use a vehicle, to-wit, a wagon, for the selling, furnishing and giving away intoxicating liquors as a beverage, and in which and from which said place and vehicle intoxicating liquors were then and there kept for sale, and sold, furnished and given away as beverages; that the keeping by the said L. Cohen of said vehicle aforesaid was then and there prohibited and unlawful contrary to the form of the statute in such case made and provided.”

That conviction was upon the evidence, a part of which is contained in a bill of exceptions filed with us. It was objected to the affidavit that it was bad for duplicity, because it charges that he kept a place, vehicle, for the sale of intoxicating liquors, and that intoxicating liquors were then and there kept for sale, sold furnished and given away, as a beverage. It is conceded that in the village of Chagrin Falls, the sale of liquor from a vehicle or other place was prohibited. But it is said here that he both kept a place and sold the liquor. We don’t think it makes the complaint bad because the fact is stated that he sold liquor in the place or from the place that he kept for that purpose.

There is a demurrer filed, which was overruled. Perhaps it should be said that the evidence obtained was unlawfully obtained -under the search and seizure law. I suppose that was true. If one does an unlawful thing and thereby evidence is obtained that another has committed a crime, I think it is an unheard of thing that the evidence can not be used. If one breaks into my house and obtains evidence by such breaking in, which is unlawful, that I have committed a crime, that evidence against me can be used. There is nothing in that that should justify a reversal here. We do not consider whether the 'evidence was lawfully or unlawfully obtained.

It is said that the bill of exceptions is incomplete; that certain glass bottles were introduced in evidence which it is said were labeled in a certain way, but evidently the labeling as set out in the bill is not sufficient. There should appear something to show what case they are in and in what court the case is being tried. It is said that it was agreed that the bottles might be treated as evidence, being kept for somebody’s convenience in the village of Chagrin Falls. There was a dispute about how they were attached.

We can now consider the facts of this ease because the bill is not complete, and not having the facts, the judgment is affirmed. There is no error in the case unless it is about the facts. '

Winch and Henry, JJ., concur.


author: WINCH. J.

text:
    ERROR — JUDICIAL SALES.
    [Cuyahoga (8th) Circuit Court,
    December 22, 1905.]
    Marvin, Winch and Henry, JJ.
    Mary Duckwitz v. Nathan Komito et al.
    Confirmation of Sale not Reversed on Weight of Evidence.
    An order confirming a sale of real estate made by the sheriff will not be reversed on the weight of the evidence, when the evidence on the motion for confirmation was conflicting, for the trial judge is better able to consider the credibility of the witnesses than a reviewing court.
    Error.
   WINCH. J.

The unfortunate occurence here involved is one in which we can not grant the relief prayed for in the petition in error. We are asked to reverse an, order of the common pleas court confirming a sale of real estate made by the sheriff. The contention of the court below was that the sale confirmed was reported as made to Mary Duckwitz, plaintiff in this case, on the bid of her attorney, a reputable member of the bar, while in fact the bid was so made by mistake on the part of her attorney and wholly without authority from the plaintiff.

The bill of exceptions contains all the evidence taken, on the hearing of the motion. The attorney and the plaintiff both state that the former had received no instructions from the latter to bid on the property; the attorney explains how he made his mistake and the plaintiff alleges that it would be a hardship for her to be compelled to take the property. Had this been all the evidence offered on the hearing, it would have been clearly an abuse of discretion and error on the part of the court to confirm the sale.

But the defendants in the action produced witnesses whose positive statements as to what transpired at the sale fully warranted the trial judge in confirming the sale, if he believed them. He chose to believe them and confirmed the sale. Under such conflicting evidence, the verdict of a jury would not be set aside, no matter which way it brought in a verdict.

How much more improper would it be for the court to reverse a judgment of a judge when his determination in a matter resting largely within his discretion is based upon his consideration of conflicting evidence. This court, under the circumstances shown by the evidence, might have decided differently, had the original hearing been before it, but that is not sufficient reason for reversing the judgment of the trial court.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    NEGLIGENCE — VEHICLES.
    [Cuyahoga (8th) Circuit Court,
    January 19, 1906.]
    Marvin, Winch and Henry, JJ.
    Cuyahoga Lumber Co. v. Harry H. Brinkman.
    Owner of Wagon Liable for Exercise of Bad Judgment by Driver in Collision between Car and Wagon.
    A judgment against a lumber company and in favor of a motorman on a street car who was injured by collision of his car with the lumber company’s wagon, will not be reversed on the weight of the evidence, when there is evidence tending to show that the driver of the lumber wagon was calculating upon a nicety when he turned in front of the approaching car, and should have used better judgment and waited until the car got by, for it could not turn out of the. track, while the wagon could.
    Error.

      Smith, Taft & Arter, for plaintiff in error.

      II. IS. Parsons, for defendant in error.
   WINCH, J.

Defendant in error was a motorman, operating a street ear on Euclid avenue; he was coming west on that street on a certain day in August, 1901, when a wagon loaded with lumber belonging to plaintiff in error, coming from the west on the south side of the street, turned suddenly across the track at Bussell avenue and in front of the ear which the motorman was operating, that a collision occurred and the motorman was hurt. He sued the lumber company and recovered judgment. The lumber company asks us to set this judgment aside because, as it alleges, it is not sustained by sufficient evidence. This is the only reason urged in this court for a reversal.

"We have carefully read all the evidence given by the eye witnesses to the accident. There was evidnce tending to show that the driver of the lumber wagon was negligent; there was evidence tending to show that the motorman was negligent; there was evidence tending to show that both were negligent.

Evidently the jury believed that the driver of the lumber wagon was calculating upon a nicety when he turned in front of the approaching ear, and should have used better judgment and waited until the car got by, for it could not turn out of the track, while the wagon, could. Upon this theory the judgment is sustainable and we are unable to say that the evidence does not sustain it.

It was a close cáse on the facts, and the opinion of the twelve men who weighed the facts should not be set aside, it being conceded that the defendants below had a fair trial.

Judgment affirmed.

Marvin and Henry, JJ., concur.


text:
    POST OFFICE
    [Cuyahoga (8th) Circuit Court,
    October 26, 1906.]
    Marvin, Winch and Henry, JJ.
    Farmers’ Mill & Grain Co. v. Antonio De Franco.
    Presumption as to Manner of Mailing Letter.
    When a witness says that he mailed a letter, in the absence of any inquiry as to the mode in which he mailed it, it will, be presumed that he mailed it in accordance with the regulations of the post-office department.
    Error.
   MARVIN, J.

Suit was brought by the mill company, that is the Farmers’ Mill & Grain Co., designating herein as the mill company, against Antonio De Franco, upon a petition in the usual short form: that upon two hundred barrels of flour at $3.70, less the freight, which was shipped from North Dakota to this city, the freight amounting to $121.40, $618.60 was payable.

De Franco filed an answer and cross-petition, and before the case went to trial he twice amended it; so that when the case went to trial it was upon the petition, the second amended answer and cross-petition and the reply.

The cross-petition sets out that on October 14, 1903, a contract was entered into between the plaintiff and the defendant, whereby the defendant purchased from the plaintiff 4,000 barrels of macaroni flour, at $3.70 per barrel f.o.b. cars at Cleveland, Ohio, to be shipped in installments of two hundred barrels at a time, every fourteen days; that payment was to be made upon the several shipments not more than ten days after arrival. The contract sets out further that payment was to be made by drafts to be drawn by the plaintiff upon the defendant, and defendant says that no draft for the installment sued for, was ever made; he says that the plaintiff shipped nine installments in all and eight were paid for; the installments of flour were not sent every fourteen days nor were the payments always made within the ten days specified by the contract, but from time to time installments of 200 barrels were forwarded and payments made from time to time, and nobody made serious complaint as to the time of shipping the flour or the time of payment, up to the shipping of the ninth installment.

The defendant says in his cross-petition that the plaintiff notified him on August 1, 1904, that he canceled the contract, and that flour had advanced very considerably in price and that, thereby, he lost a very large amount and that he lost because of the cancellation by the plaintiff of the contract.

To that answer and cross-petition the plaintiff replied. It admits that on June 16, 1904, the ninth installment was shipped from North Dakota; that is the installment sued for in the action; it admits, then, that this suit is brought for the price of the flour thus shipped, and that said shipment was to the defendant. It admits that said flour was received, but says that not being informed of its shipment, that the same was not received until July 15, 1904.

Proceeding to answer the cross-petition, the plaintiff says that on June 16, 1904, the shipment was made; it admits that said defendant received the same but denies that the date the defendants received the same is correctly set forth; it further admits that no further shipment would be made by it to the defendant, since the shipment of June 16, and denies each and every other allegation contained in the eross-petition.

The first negotiation in reference to a contract for this flour was on June 14, 1903, and was between the Wright Brothers, a brokerage firm in this city, and the defendant. The Wright Brothers took an order from De Franco for 4,000 barrels of macaroni flour to be shipped by the plaintiff to De Franco, and forwarded that order to the plaintiff in North Dakota. Thereupon the secretary of tlie company at North Dakota wrote the following letter to De Franco:

"Milnor, North Dakota, Oct. 19, ’03.
"A. De Franco,
‘ ‘ Cleveland, Ohio.
“Dear Sir: You have placed an order with us, through the Wright Brothers, No. 20 Cheshire St. of your city, under the following conditions as we understand it. We are to book your order for four thousand barrels of macaroni straight flour, at $3.70 per barrel, f.o.b. ears Cleveland, all rail, shipment, in 98 pounds, jute or cotton, the order is conditioned upon the first car of two hundred barrels which is to be shipped on or about the 24, inst., proving satisfactory. If these goods are such as you desire, the balance of the order you are to receive in shipments of car load lots of two hundred barrels each every fourteen days. It is understood, of course, that the standard quality of the first car is to be maintained in subsequent shipments. You are to pay for these goods within ten days from the arrival of the car at Cleveland. In case the first ear does not prove satisfactory you are privileged to cancel the entire remaining thirty-eight hundred barrels of the order.
“Please advise so that we may know that yonr understanding and ours of the contract are the same.
“Yours truly,
“F. W. Vail,
“Sec. & Treas.”

To that letter De Franco answered on October 31, in the following words:

“Cleveland, Ohio, Oct. 31, 1903.
“The Farmers’ Mill & Grain Co.,
“Milnor, North Dakota.
“Dear Sirs: I understand that you ship the car of flour the 24th inst., of October, and I am out of flour; so send it as soon as you can. The contract is alright.
“Yours truly,
“A. De Franco.”

When that answer ivas made the contract was completed between these parties. It will be seen that by that contract, the flour was to be shipped every fourteen days, in installments of two hundred barrels, and the payments were to be made not later than ten days after the arrival of the flour.

The result of the trial in the court below was, that the evidence having all been submitted, the court, on motion of plaintiff, instructed the jury that the defendant was not entitled to recover on his cross-petition and that the company was entitled to recover the amount sued for in its petition, and directed a verdict accordingly, and that verdict was rendered, and by proper proceeding the case is here for review.

The evidence shows that on November 9, the first installment was shipped. De Franco received that flour, and a letter was written on the same day of the shipment by the mill company to De Franco, which letter reads:

“Milnor, North Dakota, Nov. 9, ’03.
“A. De Franco,
“Cleveland, Ohio.
“Dear Sir: Please find here B. L. of C. G. W. Car No. 16,-852, in which we have shipped you two hundred barrels of macaroni straight flour. We enclose invoice herein. You are to take credit for the freight charge, and remit us the balance. We trust that the goods will arrive promptly and prove all that you expect.
“Yours truly,
“F. W. Vail,
“Sec. <& T.reas.”

Thereafter shipments were made as has already been said from time to time, and payments made by draft after deducting the freight, not made upon draft drawn on De Franco as he has set up in his cross-petition, for, in no instance so far as appears, did they draw on him, but he sent a draft for ivhatever the bill was, deducting the freight and remitting the balance, and nothing further need be said on his defense as fax as that feature is concerned.

On June 16, as has already been said, the last shipment was made. Up to that time there had been no suggestion on the part of either plaintiff or defendant, that the contract was rescinded because of the failure of either party to perform it in its -exact force; neither that the payments must be made within the ten days after the receipt of the flour, but they had continued to ship it right along.

On June 16, when the last shipment was made, a letter which I will now read, was written:

“Milnor, North Dakota, June 16, ’04.
“A. De Franco,
“Cleveland, Ohio.
“Dear Sir: Please find herein invoice of load of Sunrise shipped you this day, loaded out in N. P. car No. 18145, B. L. of shipment is also enclosed. Please send us check for goods on arrival. Let us know about when you will want the next carload shipped out. We were a little slow in this shipment as the roads were impassible and the farmers could not bring the grain in, owing to a very rainy Spring.
“Yours truly,
“F. W. Vail,
“Sec. & Treas.”

Up to this time the mill company had no thought of cancel-ling this contract because the payments had not been made, because in this letter they asked when De Franco will want another shipment. De Franco says he answered that letter on June 20, and that his answer was in these words (he testifies it was sent then) :

“Cleveland, Ohio, June 20, 1904.
“The Farmers’ Mill & Grain Co.,
“Milnor, North Dakota.
“Dear Sirs: We received your letter of the 16th and you say when we want next car of flour; send the next car the way the 'contract reads.
“Yours truly,
“A. De Franco.”

Now he testifies that that letter was mailed to the mill company by him. It should be said that on August 1, the mill company wrote a letter to De Franco which reads:

“Milnor, North Dakota, Aug. 1, 1904.
“A. De Franco,
“Cleveland, Ohio.
“Dear Sir: Owing to the fact that you have not filled your contract with us in the matter of making remittance for goods which were shipped you from time to time properly, ten days after arrival of the goods, the last shipment having been made you on the 15th day of June and no remittance having been made by you, you are hereby notified that our contract with you is canceled and no further shipments will be made. We regret that such action on our part becomes necessary. We have called your attention to this matter a number of times before. You can not but realize that we can not do business indefinitely in this way, and our only course is to make no further shipments.
“Yours truly,
“F. W. Vail,
“Sec. & Treas.”

Various letters passed between the parties before and after, but it is not deemed necessary to call attention to them here. The notice that the contract was canceled by the mill company was written on August 1. By the terms of the contract, shipments were to be made every fourteen days; they were not to be paid for until ten days after the goods were received. The last shipment was made on June 16; it could not have arrived in Cleveland in time to give De Franco ten days in which to remit before June 30, which would be fourteen days thereafter. If De Franco sent his letter on Juné 20th, and it was received by the mill company, the mill company should have sent on June 30th another installment of flour because he asks for it, and, if they received from him the letter which he says he sent to them, then they were in default before he was in default. But it is said that the testimony in regard to this letter furnishes no evidence that the letter was ever received by the mill company; the secretary and treasurer of the mill company says it never was received. De Franco’s testimony in regard to the matter is that he mailed the letter to the mill company. He does not say that he put a postage stamp upon it; he does not say what words it had upon it; his testimony, found on page 53 of the bill of exceptions, is this:

“You say you answered the letter of June 16th? A. Yes sir.
‘ ‘ Q. Now, in what way did you prepare the letter, in typewriting or writing ? A. Typewriting.
“Q. How soon after, to the best of your recollection, did you get this letter from them (indicating) ? A. Well, a few days after.
“Q. Did you write the letter yourself? Or some person else ? A. My son wrote it for me.
“Q. Did you see him write it ? A. Yes sir.
‘ ‘ Q. What did you do with the letter after it was written ? A. Why, I mailed it.
“Q. Have you a copy of that letter? A. Yes sir.”

Now this is the testimony as to the mailing of the letter. And it is said that this is not such testimony as raises a presumption that the letter was ever received, because it does not appear that a postage stamp was ever put on the letter. We think there was evidence sufficient as to the mailing of this letter, and we call attention to the case of Brooks, Borden & Ford v. Day, in 11 Ia. 46, the opinion in which is very short and reads as follows:

“'The defendant brings this cause upon a single question. His bill of exceptions shows that he objected to the introduction in evidence of the notary’s protest which accompanied the note, upon the ground that the notary’s certificate did not affirmatively show, that when he addressed through the post office a notice to the defendant of the presentation and nonpayment of the note, that he paid the postage on the same. The objection was overruled and exceptions taken at the time, and now is renewed in this court. We concur in the opinion of the court below, and will presume that the notary public sending such a ■notice by mail, conformed to the established regulations of the post office department.”

We call attention also to the case of Oregon Steamship Co. v. Otis, 100 N. Y. 446 [3 N. E. 485; 53 Am. Rep. 221], the syllabus of which I will read:

“In the absence of any proof to the contrary, or any inquiry as to the mode, we must understand this to mean that they were mailed in the usual manner. ’ ’

Now, in this case, there is a denial by the secretary and treasurer of the mill company, that the letter was received, but the question should have been left to the jury as to whether the letter was i*eceived. The court below should not have taken the defendant’s ease from the jury on his cross-petition. The language used'by the witness was that he mailed the letter. If there be given to these words their ordinary significance, it means that he put the letter in the post office and that it was addressed in the usual way; and as already said, if the jury came to the conclusion upon all the evidence that the letter was received, then before the remittance for the last installment could have reached them, they should have forwarded another installment. And for this error in directing the jury to return a verdict against the defendant on his cross-petition the judgment of the court below is reversed and the case remanded for new trial.

Marvin and Henry, JJ., concur.


text:
    BILLS AND NOTES.
    (Judge Wildman of Sixth Circuit Sitting in Place of Judge Winch.)
    [Cuyahoga (8th) Circuit Court,
    December 21, 1906.]
    Marvin, Henry and Wildman, JJ.
    Alma S. Sherman v. Eldoras S. Tucker.
    1. Amendment of Petition on Promissory Notes so as to Sue as Executor Instead of Individually.
    Petition to recover on promissory notes having been filed by one claiming to own the notes in her individual capacity, it is not error to permit her afterwards to amend her petition and sue as executrix of a deceased person and claim to own the notes as such executrix.
    2. Mere Denial that Plaintiff Was Owner of Notes not Denied of Right to Recover as Executrix.
    Plaintiff alleged that she was the owner of certain notes as executrix of a deceased person, setting up that the notes were endorsed to her decedent in his lifetime by the payee of the notes, before they were due, and that he was the owner and holder of them at his death. Defendant did not deny that plaintiff was such executrix or that the notes were so endorsed to her decedent or that he owned them at his death, but denied only that plaintiff was the owner of the notes. Held: No sufficient denial of the right of plaintiff to recover on the notes.
    3. Sending Written Requests to Charge to Jury in Their Retirement not Necessary.
    It is not necessary to send written requests to charge to the jury in their retirement unless they were presented before the argument.
    Error.
   MARVIN, J.

Tbe defendant in error brought suit against the plaintiff in error upon two promissory notes, setting out each one as a cause of action against the defendant. This suit was brought by her in her individual personal capacity. One of the notes sued upon is payable two years after its date and the other three years after its date. The first note reads:

“Painesvillb, Ohio, Meh. 18, 1896.
“$1500.00 Two years after date I promise to pay to the order of U. C. Walton fifteen hundred dollars, at Boughton, Ford & Co., Burton, Ohio, with interest at 6 per cent, annually. Value received.
“E. S. Tucker.”

The following is written on the back of said notes:

“Pay to Alma S. Sherman or order. U. C. Walton.”

There are no credits endorsed on said note.

The other note, as has already been said, is the same except that the time of payment is three years from date instead of two years from date.

This suit was begun on June 10, 1902. On December 31, 1904, on motion of the plaintiff, plaintiff was permitted by the court to amend her petition, substituting herself as executor of the will of Roger Sherman, deceased, for herself in her personal capacity, and alleging that by reason of the facts set out in said amended petition she was the owner of said notes as such executor. This amendment was made over the objection of the defendant, and an exception was taken to the order allowing the amendment. The plaintiff was also allowed to amend by making a new party defendant in the case, but nothing was done by the court in reference to such new party in any wise affecting any of the parties now before this court, and nothing need be said as to that amendment. As to the amendment substituting herself as executor an exception was taken. We think that the action of the court in that regard is fully justified by the case of Becker v. Walworth, 45 Ohio St. 169 [12 N. E. 1]. On pages 174 and 175, this language is used (it should be said, however, before reading this, that a suit was brought against a person as in his personal capacity and that hereafter application was made for leave to amend, letting the suit stand as against the defendant as executor) :

‘ ‘ The filing of the first petition in the case is claimed to contain an election. In the caption to that pleading the defendant was described as ‘Michael Becker, executor of the 'estate of Abram Rafenstein, deceased,’ and in the body the allegations purported to charge him as executor. Before answer, on leave, the petition was amended so as to charge him personally. This leave was granted without prejudice to defendant’s right to insist that plaintiff had elected to make her claim against him as executor, and not personally.
“Our practice encourages great liberality in pleading, and the code enjoins the duty of allowing amendments at all stages of a case in furtherance of justice. The commencement of the action by the filing of an original petition against the defendant as executor worked no prejudice to him, and it is not easy to see why such commencement of the action should preclude amendment on the part of the plaintiff in order to charge him personally. It was no more than the discontinuing of one action and the commencement of another, and this may have been induced by the discovery that the one would prove wholly fruitless. ’ ’

That reasoning applied to this case would justify the court in permitting the amendment to be made, and there was no error in that regard.

It is further claimed that the court erred in admitting the notes in evidence. I shall read certain allegations in the amended petition and certain parts of the answer. The first cause of action is upon the note due in two years, and the second upon the note due in three years. In each case this language is used:

“There are no credits endorsed on said note; said note was duly endorsed in blank by said U. C. "Walton and sold and delivered to said Roger Sherman by him long before its maturity, and said Roger Sherman was the owner and holder of said note at the time of his death.”

In answer to this the defendant sets out that there was a fraud perpetrated upon him in the procuring of these notes; that he was induced by certain fraudulent representations and conduct on the part of the payee of the notes to give the notes in part payment of the purchase price of certain lots near the city of Chicago; that the lots were not the ones shown to the defendant at the time he made the purchase; that they were not such lots at all as they were represented to be, and that Sherman (the deceased) was a party to that fraud, but the only denial contained in this answer is in these words:

“This defendant denies that said notes are owned by the plaintiff and he says that if and so far as said plaintiff may on the trial hereof produce evidence of her ownership, she took whatever title she has or shall show with notice of this defendant’s said claim and defenses to said notes, and after the same each became due by the terms thereof and her said testator at the time he received said notes and at the time of the giving of the same was interested with said "Walton in said transaction in said lots and in said transaction the said Walton acted in whole or in part as agent for said Sherman, deceased, who was then in full life.”

The plaintiff said she owned the notes as executor. The defendant denied it. Plaintiff said she owned the notes because they were duly endorsed in blank by U. C. Walton and delivered to said Roger Sherman long before maturity, and said Roger Sherman was the owner and holder of said notes at the time of his death. That is not denied. ' It is urged, however, that it is a sufficient denial to deny the ownership in that way, and in a brief submitted attention is called to Booco v. Mansfield, 66 Ohio St. 121, 135 [64 N. E. 115]; Chamberlin v. Painesville & Hudson Ry., 15 Ohio St. 225, 250; Stoutenburg v. Lybrand, 13 Ohio St. 228. In each case it is held that it is a denial of the right of the plaintiff to recover when one denies the ownership of a note sued upon. He need not set up the facts upon which he relies as showing that the plaintiff has set out the facts upon which she relies to show that she is the owner, to-wit, that the notes were notes of her testator long before they were due and that they were endorsed in blank and delivered, to him and that they were his property at the time of his death. So that under the pleadings it was not necessary for the plaintiff to show that the notes were sold to the testator and delivered to him in his lifetime and that they belonged to him at the time of his death. But she offered the notes in evidence, and it is said that there was error in admitting them in evidence. She had testified that the notes were in her possession. She testified where she found them, one in the safe with her husband’s papers, and the other in a bank at Titusville, Pa. Now, when she produced the notes in evidence it is a sufficient showing, at least it tended to show that she as executor was the owner of the notes. Indeed, I think it was enough that they were the property of the testator when he died and that she had them as the executor of his will, and there need be no other showing about it. It certainly could not prejudice the defendant below that she produced the notes as tending to show her ownership of them as executor.

In the brief of counsel for plaintiff in- error it is urged that there was no evidence that the name of the payee on the back of the note was his genuine signature. It was not necessary to show that that was a genuine endorsement, because it was not denied. The plaintiff testified to the fact that the endorsement as it now appears upon the notes was not upon the note at the time of the death of her husband but that the only endorsement upon the note at that time was simply the name of the payee and that the words appearing above that name now on the notes, “Pay to Alma S. Sherman, or order,” were written after the death of Roger Sherman. “I hereby waive demand of notice and protest, U. C. Walton.” It appears that these endorsements were made after the death of Roger Sherman. Remembering that the notes belonged to Roger Sherman when he died, no action of the payee could take away the ownership of these notes in the representative of Roger Sherman. Since they did not belong to Walton, he could not make any endorsement after the death of Sherman which could change the ownership.

It is said, however, that there was error in the charge of the court in these words :

‘ ‘ It is the claim of the plaintiff that after the death of Roger Sherman these notes were found among his papers, or were found under such circumstances or in such place as indicated that they were under his control at the time of his death, and in his possession, actual or constructive, and it is also claimed by plaintiff that at that time the only endorsement on the back of the note was the name U. C. Walton. Now, if that be true, if these notes were found in his possession, actual or constructive, and by constructive I mean that they were found where he had placed them for some purpose without intending to part with the ownership of them, the presumption, I say, would be that they belonged to him at the time of his death. ’ ’

There was nothing in the evidence that could justify this language, there being no denial of his ownership at the time of his death. There was no prejudice in it, however. The same may be said as to other language of the court in regard to establishing the ownership of the notes. It was admitted that they belonged to Sherman when he died.

Again complaint is made of the action of the court, in refusing to send certain written instructions to the jury. The facts as shown by the bill are that after argument the court said that plaintiff had submitted twenty-one requests; that the court declined to give these requests except as given in the general charge, and then the court said, as appears on page 27 of the bill:

“The requests of the defendant to charge the court I will give, all except the eighth, but I have great doubt, Judge Bentley, whether I ought to give the eighth one, the last one; I don’t know whether it would be fair to the other party to give that request in this case.
“Mr. Bentley: I think fairness to the defendant, Tucker, requires something in the nature of that request, or something of an equivalent nature should be given.
‘ ‘ The Court : I will give it. ’ ’

Then follow two requests. The language is:

“1. The defendant, Tucker, moves the court to dismiss this action upon the pleadings herein.”

This request is refused.

“2. In ease said first request is refused, said defendant, Tucker, requests the court to direct the jury to return a verdict for the defendant, Tucker.”

This request is also refused.

Then comes the charge proper to the jury.

This is followed by numbered paragraphs beginning with No. 3, and ending with No. 8, and then follows what is further said to the jury.

It is nowhere said that the numbered paragraphs were in writing, and only by. implication is it said that they were the instructions. We think it fair to treat them as being in writing and as requested by the defendant. At the close of the charge the bill shows the following:

“Counsel for defendant, Tucker, asks that the requests to charge that were given, go to the jury on their retirement. _ And said request was refused.”

As already said, the implication is that these were in writing and we treat them as though they were. It can not be assumed that these requests were made before the argument. We must treat them as being made at the conclusion of the argument.

This brings us to the construction of Sec. 5190 R. S. (Sec. 11447 G. C.), the fifth and seventh subdivisions of which read:

“When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.
“7. The court, after the argument is concluded, shall, be-for proceeding with other business, charge the jury; any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; a charge or instructions, when so written or given, shall not be orally qualified or modified in any manner to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.1 ’

These subdivisions read subsequently as the 5th and 7th subdivisions of old Sec. 33 of the criminal code, found in 74 O. L. 349. There is no difference in the reading in so far as the written instructions to the jury are concerned.

In the case of Griwn v. State, 34 Ohio St. 299, the second clause of the syllabus reads:

“Under Section 33, title 2, chapter 6 of the penal code (74 0. L. 349), special instructions given to the jury in writing after argument, are not required to be taken by the jury, in their retirement, where the principal charge is not required to be in writing.”

The opinion of the court bears that out. On page 303 the court say:

“The only charges that the court is required to reduce to writing, under either clause of the section, are such charges or instructions as it is requested to reduce to writing before the argument is commenced, and it is too late to make the request after the argument is comeneed. ’ ’

To the same effect are the eases in Foy v. Toledo Cons. St. Ry., 6 Circ. Dec. 396 ( 10 R. 151, 153); Caldwell v. Brown, 6 Circ. Dec. 694 (9 R. 691). In each case the opinion was delivered by Judge King, and it is said that the requests must go to the jury are those mentioned in subdivision 5, to-wit, requests to charge before argument. Entirely consistent with these authorities is the case, Householder v. Granby, 40 Ohio St. 430.

Following the construction given to these several statutes we find no error in the action of the court in this regard, and no error in the record of the case.

Judgment affirmed.

Henry and WilcLman, JJ., concur.


text:
    PAYMENT — PLEADINGS.
    [Cuyahoga (8th) Circuit Court,
    November 12, 1906.]
    Marvin, Winch and Henry, JJ.
    Thomas C. Willard v. Wm. C. Wood.
    Instruction on Issue of Payment to Partner Proper though not Raised in Pleadings.
    In a suit to recover commissions for sale of real estate the answer denied that plaintiff made the sale, and alleged that a third person made the sale and was paid therefor. The reply alleged that whatever the third person had to do with the sale was as the agent of plaintiff. The court charged, among other things, that if the jury found that the third person was a partner of plaintiff, payment to him would be payment to plaintiff. The bill of exceptions not giving the evidence received in the case, Held: Competent evidence might have been received, without objection, that the third person was a partner of plaintiff, and so it was not error to charge upon that subject.
    Error.

      E. J. Pmney, for plaintiff in error.

      White, Johnson, McCaslin <& Cannon, for defendant in error.
   MARVIN, J.

Willard brought a suit against Wood, and the petition which he filed upon instituting the suit reads:

‘ ‘ Plaintiff says that the defendant is a resident of the city of Cleveland and state of Ohio; that on or about the 6th day of May, 1901, the said defendant was the owner of a certain apartment house on Clinton street in the city of Cleveland, and that he then and there employed the plaintiff to sell the same or find a purchaser therefor; and the said defendant then and there agreed to pay plaintiff in case he should sell or find a purchaser for said property a 2 per cent, commission on the price for which said property should be sold.
“Plaintiff says that he did find a purchaser in one John A. Zangerle and that the property was sold to the said Zang'erle on or about the 23d day of December, 1901, for the sum of $34,000.
“Wherefore there is due the plaintiff from defendant for services so rendered as above set forth the sum of $680, which the defendant refuses to pay and for which plaintiff asks judgment with interest thereon from the 23d day of December, 1901, and the costs of this action.”

To that the defendant answers:

“And now comes said defendant, by White, Johnson, McCaslin & Cannon, his attorneys, and for answer to the petition filed herein by said plaintiff says:
“He denies each and every averment in said petition contained except that the defendant owned a certain apartment house on Clinton street in the city of Cleveland, and that plaintiff did, at one time, attempt to sell the same. ’ ’

Years ago, when most of you men were not practicing attorneys, it was a question whether or not there was a general denial in the language used here. That it is a denial has been settled by the court. Then follows:

1 ‘ The facts in relation to the matters referred to in said petition are these: Plaintiff at one time attempted to sell the apartment house referred to, for defendant, but without success. Having failed so to do, and a long time having elapsed, one George Downing, a real estate man, found a purchaser in one John A. Zangerle, and defendant paid to him a commission for procuring such sale, without any claim being made by said Willard that he was entitled to any portion of the compensation therefor, and without said Willard having, in fact, anything to do with procuring said purchaser.”

To that answer a reply was filed, as follows:

“Now comes the plaintiff and for reply to the answer of defendant herein, says plaintiff admits he did attempt to' sell the apartment house referred to for defendant, and for his reply plaintiff says that he denies that George Downing, ■ real estate agent, found the purchaser for the property, viz., John A. Zangerle, but plaintiff avers he found the said Zangerle himself and that during the months of August and September, 1901, plaintiff submitted to the said defendant two offers from the said Zangerle.
“Plaintiff further for reply says that he did make a claim for commissions on the property before the said transfer and sale were completed, and further says that he did notify the said defendant of his claim for commissions and also notified defendant not to pay the said Downing any compensation whatever.
“Plaintiff for further reply said that he did so procure the said purchaser for said property. Plaintiff further denies each and every averment in said answer contained, not specifically admitted by said defendant. ’ ’

Upon this state of the pleadings the case went to trial to a jury and resulted in a verdict for defendant.

A bill of exceptions is filed here, which contains none of the evidence. The language of the bill is:

“The plaintiff introduced evidence to maintain the issues on his part, and thereupon the defendant rested.
‘1 And thereupon the defendant introduced evidence to maintain the issues on his part, and the defendant rested.
“And thereupon, the plaintiff requested the court to charge each of the following written requests separately. ”

Then follows a series of requests not made under the statute requiring the charge to be made before argument, but simply the general request that the court charge these propositions. We will not take time to read the several propositions. We have given them careful consideration, as well as the charge. To the extent that they embody the law, we think they were contained in the general charge. If it had been requested that they be given before argument, it would not be sufficient that they were given in the general charge. There was no error in refusing to charge as requested.

But it is said, and the only matter to which we give attention is a complaint made as to what the court did say in its charge. The thing to which we call attention is this part of the charge:

“That brings us to the issues between the parties. There being no question but that the property was sold, was transferred from Wood to Zangerle, the real contest between the parties is as to what was the agency that brought about that transfer. The plaintiff says that he brought it about and the defendant says that he did not. Now the plaintiff says that he was the agency, the instrumentality, as you have heard his counsel use the term and perhaps counsel on the other side also, that he was the procuring or efficient cause that brought these two minds together, that is, Wood’s mind and Zangerle’s, and made this a completed transaction. Willard says that while Downing had something to do with this matter, that Downing was only an instrumentality used by him, just as an office boy might be, or the telephone might be, or the United States mail might be; that Downing was a mere agent of his, Downing was not working for himself at all but was working for Willard, just, as I say, as an office boy might.”

Further the court said:

“The defendant sets forth another claim, and that is this: The defendant says that Downing was not, as the plaintiff called him, a mere runner for the plaintiff Willard, as he was not the mere agency and instrumentality to carry out Willard’s independent work, but the defendant says that Willard and Downing together or Willard, Downing and Ringle together, acting jointly, the one not independent of the other, but acting as partners is the term that has been used in argument, and I think you understand just what it means that these three people of these two people were acting together to bring about this common end, and that being partners, that being their joint relation, that they had a right to pay Downing and the payment either to Willard of to Downing or to Ringle, that is, the payment to one partner woud pay the payment to all. And 1 say to you, gentlemen, that that is the law, if you find that these people were jointly interested, that is, if Downing was not the subordinate of Willard but was his partner, as it were, then payment to Downing would be payment to all; payment to one partner would be payment to all.”

It is insisted that under the pleadings in this case there could have been no such issue between the parties on the trial, because the defendant in his answer is not content to deny the allegations of the petition, but has set forth what he says the real transaction was, and says that Downing was the agent who brought about the sale from Wood to Zangerle, hence it is said that without having the evidence before this court the court is bound to say that there was error in admitting any evidence showing that an issue such as is spoken of in this charge could have been made. Perhaps it is not denied that if the defendant had contented himself with' his general denial he might have shown that the sale was not made by the plaintiff in his sole capacity but made by a co-partnership, but they say that having gone on to set out the transaction and that Downing was not the agent, there could have been nowhere in the evidence anything to show that there was a co-partnership between Downing and the plaintiff. Without saying, because it is not necessary to say, whether the defendant might have introduced evidence on his part to show that there was a partnership, that he was acting as the agent and that therefore the plaintiff could not maintain the action by himself individually, it is sufficient to say that it is clear that in a cross-examinaton of the plantiff’s witnesses, if the plaintiff’s witnesses had testified that the plaintiff did this work, that a cross-examination of such witnesses might very well have been made and as a result the fact of this co-partnership might have' developed, or evidence tending to show such co-partnership. For myself I have no doubt that the defendant himself might have introduced evidence tending to show that there was this co-partnership, because I don’t understand that he would be deprived of introducing this evidence if he had simply contended himself with a general denial, if he had added nothing to that. Again, speaking for myself, I think he could have shown that this was a co-partnership of which Willard was a member. We therefore think there was no error in the language of the court in the record we have before us, and the judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    COMPENSATION AND SALARIES — OFFICE AND OFFICERS.
    [Cuyahoga (8th) Circuit Court,
    March 28, 1905.]
    Marvin, Winch and Henry, JJ.
    State ex rel Paul Schreiner v. James P. Madigan.
    Power of Council to Change Salary of Police Clerk after Enactment of Municipal Code.
    The salary of the clerk of the police court of the city of Cleveland elected at the first election after the municipal code went into effect, may be increased by the city council then in office.
    Mandamus.

      J. M. Williams, for plaintiff.

      N. D. Baker, for defendant.
   HENRY, J.

This is a proceeding in mandamus commenced in this court on the relation of the clerk of the police court of the city of Cleveland to compel the auditor of said city to autorize the payment of the increase of salary to which said clerk claims to be entitled under a recent ordinance of said city raising his compensation from $1,500 to $2,000 per year. The ease is submitted on demurrer to the defendant’s answer.

The office of police clerk existed before and is continued by the municipal code. The present incumbent of the office in said city was chosen thereto at the first election held after the code went into effect. No action affecting the salary of the police clerk in said city has ever been taken since a time long before the code went into effect, except the ordinance before referred to, which was passed February 13, and became effective February 28, 1905. The act of April 19, 1904 (97 O. L., 101), afforded the requisite authority for the passage of such ordinance, and the ordinance effects an increase of relator’s salary, except as it may be limited by other provisions of law prohibiting the increase or diminution of an officer’s compensation during his term of office. There are three such provisions in the statutes, which, it is claimed, may apply to the present case. Former Sec. 1717 R: S. (See See. 4213 G. C.) repeated by the municipal code, contained such a provision, which, it is conceded, limited the power of a municipal council, in this behalf, from the time of the passage of the old ordinance fixing the salary of the police clerk in Cleveland at $1,500 down to the time of fhe adoption of the code. But Section 1717, having been repealed by the code, is, in our opinion, no longer, applicable, and it does not affect the present case.

The code, notwithstanding that it established a new form of government for all cities in this state, did not interrupt the corporate existence of such cities State v. Perrysburg, 14 Ohio St. 472; Electric Street Ry. v. Hamlet of North Bend, 70 Ohio St. 46, 55 [70 N. E. 949]. On the contrary, Sec. 214 of the code expressly provides that “all by-laws, ordinances and resolutions heretofore lawfully passed or adopted by the council, board of legislation or other legislative body in any municipal corporation, and not inconsistent with this act, shall remain in force until duly altered or repealed.” Hence we think the old ordinance fixing the salary of the clerk of the police court in Cleveland remained in force unless and until it is properly superseded.

Section 117 (See Sec. 4214 G. C.) of the code provides, however, that “the present council, board of legislation or other legislative body shall fix the salaries and bonds of all officers to be elected at the first election held under the authority of this act; provided that the salaries so fixed shall not be increased or diminished during the term for which any officer may be elected or appointed.”

It is conceded that the council in existence at the time of the adoption of the code took no express action fixing the salary of the clerk of the police court. But it is argued by defendant that inasmuch as the duty was mandatory upon council to take action in this behalf, its conduct in the premises is equivalent to a confirmation of the salary already fixed. We are unable to subscribe to this view. We think that under Sec. 214 of the code, council’s failure to act did indeed leave the old ordinance in force, but we do not think that such failure to act can be construed to an express or affirmative action by council'. No salary for the clerk of the police court having been “so fixed” by the council then in existence, it follows that a limitation applicable only to salaries “so fixed” is inapplicable to his salary which had been fixed before.

Section 126 of the code (See Sec. 4214 G. C.) contains, however, a further provision of the same sort, namely, council shall fix the salaries of all officers, clerks and employes in the city government, except as otherwise provided in this act. The salary of any officer, clerk or employe so fixed, shall not be increased or diminished during the term for which he may have been elected or appointed.” This section, it will be observed, provides for the fixing of salaries, “except as otherwise provided in this act.” But Section 117 provides for the fixing of the salaries of “all officers to be elected at the first election held under the authority of this act.” The salary hitherto enjoyed by the relator was not fixed under the authority conferred by Section 126, and inasmuch as the limitation which is contained in this section in terms applies only to salaries ‘ ‘ so fixed, ” it is not applicable to the present ease'.

We hold, therefore, that council had, in February, 1905, fuli power to change the salary of the present clerk of the police court of the city of Cleveland within the limits as to amount prescribed by law. The demurrer to defendant’s answer is overruled and a peremptory writ will issue.

Marvin and Winch, JJ., concur.


text:
    HOMICIDE — JURY.
    [Jefferson (7th) Circuit Court,
    December, 1908.]
    Burrows, Laubie and Winch, JJ.
    (Judge Winch of Eighth Circuit Sitting in Place of Judge Cook.)

      Milovan Dodig v. State of Ohio.
    1. Inference of Premeditation and Deliberation Must Be More Reasonable than any Other.
    While in a first degree murder ease deliberation and premeditation may be shown by circumstantial evidence, still the inference of deliberation and premeditation from the circumstances ' shown in evidence must be more reasonable than any other inference.
    2. Juror Regarding Killing of Police Officer Greater Crime Disqualified.
    In a trial for first degree murder, a proposed juror who states that he would look upon the crime as greater because it was a police officer who was killed, is properly challenged for cause.
    Error.

      Erskine and Smith, for plaintiff in error.
    J. 8. Painsley, for- defendant in error.

       Case retried, and common pleas again reversed by circuit court, which was in turn reversed by the Supreme Court and the judgment of the common pleas affirmed, no op., State v. Dodig, 83 Ohio. St. 455.

   WINCH, J.

This judgment must be reversed because there is no evidence in the record showing that Milovan Dodig, at or prior to the time the fatal shot was fired which caused the death of John McDonald, had deliberated and premeditated upon his act. This is a serious statement to make, but the record has been considered by every member of the court with equal thought for the vindication of the law and the solemnity of the condition of one who is condemned to die. It is' put to our consciences to weigh the evidence, with duty equal to that of the jury, and we find but two explanations for this verdict of murder in the first degree, to-wit: the'skill of the prosecuting attorney and passion and prejudice aroused in the minds of the jury by deliberation over the wrongful death of an officer of the law, a courageous and much respected man, at the hands of an ignorant foreigner, in a lawless part of the city.

But the majesty of the law is not thus established. Upon justice alone are raised its foundations.

The trial was had promptly after the crime was committed. The record shows public feeling was running high. Time has since elapsed. The testimony of the witnesses has been reduced to writing and is susceptible of careful examination and comparison.

That Dodig killed the officer is established by circumstantial evidence; that kind of evidence is satisfactory. So deliberation and premeditation may be, and usually must be proved by circumstantial evidence.

To deliberate and premeditate is to w^eigh and consider before hand — mental acts — always to be inferred from other facts unless the -accused has told the. state of his mind, which is rare.

But there must be facts shown from which deliberation and premeditation may be inferred, and, in a criminal case, adopting the language of a negligence ease, the inference of deliberation and premeditation must be more reasonable than any other inference; the jury can not be allowed to guess.

From what fact is it claimed that the jury must necessarily infer that Dodig of deliberate and premeditated malice killed McDonald? Not because he used a deadly weapon, for the malice alone may be inferred from that. But from this one fact, that Dodig after his arrest, during a scene to which attention will be called later, said: “Man shot George (or judge, meaning McDonald) shot me,” or words to that effect, as one witness testified. "What of it? It is said from this statement it .is evident that Dodig knew McDonald by his familiar name. What of that? Can another inference be deduced, that he lay in wait to bill the officer from the mere fact that he knew him? We think not. Men are not condemned to death upon such evidence.

Again, is that what Dodig said? Another witness says he said: “Gun shoot George, shoot me.” May he not have said, “Ihn man shot George, and he shot me,” which was the fact, for Dodig was scratched by a bullet on his hand. The officer was shot in the adbomen and over the left eye; both wounds were fatal. There is absolutely nothing in the evidence from which it may be determined who fired the first shot, or which shot first took effect upon the officer. Counsel of the state, upon argument, each had a different theory of the matter.. Personally, I have a theory which my associates seem to think is as reasonable as any other. It is certain that both shots that hit the officer were fired at close range, the one over the eye, because there were powder marks there, and the one in the abdomen, for it first went through the left sleeve of the officer’s coat and set it afire. Dodig’s clothes were also afire. The probabilities seem to me to be that the officer being sent into this district to quiet the holiday disturbances there, may have seen Dodig on the street near his boarding house and ordered him to move on; not being obeyed promptly he (the officer) closed in on him, a scuffle ensued and both shot. That there was a tussle is shown by an abrasion on the second finger of McDonald’s left hand and a bruise on his forearm. If the shooting occurred in this manner, of course there was no premeditation or deliberation.

But why multiply guesses ? The fact that at the best it is all a guess, while the law requires that these things must be proved beyond a reasonable doubt, requires that this judgment be reversed.

Having come to this conclusion it is unnecessary to mention at length the other errors alleged to have occurred at the trial.

That an impartial jury was not impaneled appears from the record. At least three jurors stated in effect, that they would look upon the crime as greater because it was an officer who was killed. These three jurors were challenged for cause, the challenges were overruled and thereafter they were peremptorily challenged and excused, but counsel for the accused saved his rights by making a seventeenth peremptory challenge. After this the jury was sworn. This was error. Hooker v. State, 4 Ohio, 348; Schufflin v. State, 20 Ohio St. 233.

It is doubtful if the so-called confessions or admissions at the mayor’s office should have been admitted in evidence. Consider the scene. This ignorant foreigner having been beaten over the head with a revolver by one officer, struck with the fist by another, knocked to the ground and in such fear that he befouled himself and cried out "Kill me, me no care,” was dragged to the city hall; a great crowd collected; he was led into the mayor’s office and thence into the office of the chief of police. He saw officers of the law in uniform about him and the chief citizens of the town there. It was a place where trials are held and had the appearance of such a place. He was questioned and gave inei’iminating answers.

While the officers of the law must be diligent in detecting crime and in bringing the guilty to justice and for this purpose the "third degree” may sometimes be administered in the sweat box, so that clews may be obtained from which conviction may follow, should confessions or admissions obtained under such circumstances be considered voluntary and be used against the accused at his subsequent trial?

Speaking of a similar scene enacted in the office of the chief of police of Cincinnati, Judge Price remarks, in the case of Geiger v. State, 70 Ohio St. 400, 416 [71 N. E. 721], "No one who reads this record can conclude it with entire complacency and approval of all that led up to the scene of that morning. ’ ’

As stated, we are in doubt upon this matter and a majority of the court is unable to say that reversible error was committed by admitting this evidence.

There are several minor errors alleged to have occurred in rulings upon the admissions of evidence, but it is not necessary to mention them, for we find no prejudicial and reversible error in them.

Because the judgment is not supported by sufficient evidence, it is reversed and the cause is remanded for a new trial.

Burrows and Laubie, JJ., concur.


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    DEEDS.
    [Jefferson (7th) Circuit Court,
    December, 1908.]
    Burrows, Laubie and Winch, JJ.
    (Judge Winch of Eighth Circuit Sitting in Place of Judge Cook.)
    Charles B. Gilmore v. George W. Cochran, Executor, et al.
    Witness Contradicting Recital of Payment of Consideration Insufficient to Set Aside Deed.
    The testimony of a witness to a deed that he saw no money pass between the parties to it has no great weight in contradicting the recital in the deed acknowledging receipt of the consideration money.
   WINCH, J.

This is a suit to enforce a vendor’s lien, and was heard upon the evidence. The recital in the deed between the parties to the receipt of the consideration money is sought to be rebutted by the testimony of only one witness who was a witness to the deed. His testimony has no positive force. He simply states that he did not see any money pass between the parties. Every person in the court room at the trial could have truthfully testified to the same effect.

This witness’s opportunity for knowing whether the grantee paid the consideration money was not very great, if limited to the one time when the deed was executed before him. It is a matter of common knowledge that the money does not often pass at the time when the notary takes the acknowledgment and the witnesses witness the signature. They are called in for that purpose and not to witness the payment of the consideration.

Such solemn admissions in written instruments are not lightly to be put aside. There was no suggesting circumstances shown.

The plaintiff has failed to produce .that preponderating evidence which the burden upon him requires.

The petition is dismissed.

Burrows and Laubie, JJ., concur.


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    CRIMINAL LAW — HOMICIDE.
    [Jefferson (7th) Circuit Court,
    December, 1908.]
    Burrows, Laubie and Winch, JJ.
    (Judge Winch of Eighth Circuit Sitting in Place of Judge Cook.)
    David T. John v. State of Ohio.
    1. Impeachment of Witness by Testimony Given Before Grand Jury.
    When the ground has been properly laid for impeaching a witness, it is not error to permit a stenographer who took his testimony before the grand jury to state that certain questions were there asked the witness and answers given by him and the stenographer may refresh his memory from his written notes of such testimony.
    2. Mere Lapse of Time before Killing Does not Destroy Importance of Previous Quarrel.
    A charge to the effect, “If you believe beyond a reasonable doubt that time elapsed between the light on the hill and the killing, what was done in the previous quarrel will have little weight in this case. When a quarrel is over and the parties have separated, no one has a right to attack another to avenge himself or for any reason arising out of a quarrel that has passed and gone. In so far as the law is concerned, it is entirely a separate occurrence, separate and apart, if time has elapsed,” is erroneous because it cuts off all weight to be given to the previous quarrel, upon the mere lapse of time.
    Error.
   WINCH, J.

Plaintiff in error was tried in the common pleas court on a charge of murder in the second degree, convicted and sentenced to the Ohio State Penitentiary for life. He asks that the judgment of the common pleas court be reversed for certain errors alleged to have occurred on the trial and because he thinks the evidence adduced at the trial did not warrant a conviction on the charge stated.

Considering first the errors said to have intervened at the trial: "We find no error in the rulings on the admissibility of the testimony of' E. Stanton Pearce, official stenographer, who was introduced for the purpose of impeaching the testimony of one of the defendant’s witnesses by showing that said witness had formerly made different statements before the grand jury.

The ground was properly laid for this examination and, while the stenographer had a transcript of the evidence taken by him before the grand jury in his hands and the prosecuting attorney used it in asking him questions, the record shows that the witness testified from independent memory, refreshed it is true by said transcript, that certain questions had been asked and were answered in a certain manner before the grand jury.

Any other witness could have testified to the same facts, had he knowledge of them and memory sufficient to give substantially what the witness had said.

The state did not offer the transcript of all the witness’s testimony before the grand jury; the accused did not insist that it all go in, and there was no error in permitting the stenographer to testify regarding the particular questions and answers, as to which the witness had been interrogated by the state when laying the ground to contradict him.

Attention is called to the following part of the charge:

“But the intentional killing, to be manslaughter, must be actually caused by passion arising out of provocation given at the time of the commission of the offense or so short a time before that there was not time for the blood to cool and reason to resume its sway over the mind; and the provocation may be whatever will commonly produce the degree of anger, rage or resentment in a person of ordinary temper, sufficient to render the mind incapable of reflecting. And, as I have already stated, if a person is engaged in the commission of something in violation of law — doing that which he had no right to do — and while in the commission of such an act, although not intentionally, he takes the life of another, he is guilty of manslaughter.
“Now, you will look to the evidence in this case, and, if you find from the evidence that the defendant killed William Webster and that he killed him purposely and unlawfully, but not maliciously, if it was done under such circumstances as would bring the offense within the crime of manslaughter, as I have defined it to you, then such should be your verdict.
“Now, in this regard there is some evidence in this ease tending to show that at some time before William Webster was killed, the defendant here in this ease and others including the deceased, William Webster, had some difficulty — had a quarrel. A great deal of evidence has been adduced in the course of this trial with reference to what took place at that time and there has been some contradiction in the evidence as to where the fault lay and as to what was done, at that time, but you are instructed, gentlemen of the jury, that whatever may have been done at that time, if you believe beyond a reasonable doubt from the evidence that time elapsed between that occurrence and the killing of William Webster, that will have but little weight in this case, as to what was done in the previous quarrel, for the reason, and you are so instructed as a matter of law, that when a quarrel is over and the parties have separated, that no one has a right to attack another, assail another, to avenge himself, or for any reason arising out of a quarrel that has passed and gone. In so far as the law is concerned, it is entirely a separate occurrence, separate and apart, if time has elapsed. It is only admitted in evidence to show the condition of the mind of the parties, as bearing upon the condition of their minds at the time of the occurrence when the crime charged is committed, if you find it was committed.”

With this proper definition of manslaughter as a killing through passion arising out of provocation given at the time of the commission of the offense or so short a time before that there was not time for the blood to cool, was the last part quoted correct, which, for better understanding, may be paraphrased as follows:

“If you believe beyond a reasonable doubt that time elapsed between the occurrence on the hill and the killing, what was done in the previous quarrel will have little weight in this ease. When a quarrel is over and the parties have separated, no one has a right to attack another to avenge himself or for any reason arising out of a quarrel that has passed and gone. In so far as the law is concerned it is entirely a separate occurrence, separate and apart, if time has elapsed.”

The mere lapse of time, without qualification, here cuts off weight to be given to the previous altercation. How much time, three seconds or thirty minutes or longer?

The evidence in this ease shows a fight on the hill a mile and a half from the village; there was a general battle between the accused’s party and the party of the deceased; it was no mere skirmish; all had been drinking. There is evidence tending to show that the deceased told one of his party to go ahead and get his revolver, that he would kill the accused; this man did start ahead of the crowd; the accused made similar threats and started ahead to get his gun; he passed the first man, got a gun and came back to meet the deceased and the main party. There is evidence tending to show that deceased then made further threats, said he would kill the little Welsh bastard (meaning the accused), and advanced upon him.

Then the accused’s gun was discharged, whether before the deceased grappled with him or not need not be determined.

That some time elapsed after the party separated on the hill before the shooting occurred, is certain; how long is really immaterial, for the general effect of the evidence is to leave the impression that the fight on the hill had not been abandoned, but was continued by mutual consent, being only postponed until the parties could get weapons to fight with. If such is the ease, it was all one transaction, but the jury must necessarily have been prevented from adopting this theory by that part of the charge which has been quoted. Hence it appeal’s that the jury was prevented from giving the proper consideration to that view of the evidence which would warrant a verdict for manslaughter instead of murder in the second degree.

We find no other error in the charge. It is otherwise clear and complete and the accused’s rights were further completely protected by the requests of his counsel to charge before argument, which were given.

As to the weight of the evidence: While a defense of accidental shooting was attempted and also self-defense was suggested, we can not say that the jury was clearly wrong in discarding these views, but we do think that it is doubtful whether more than killing during a mutual affray is shown by the evidence. We do not reverse the judgment on this ground, however, but solely for error in the charge, and the case is remanded for a new trial.

Burrows and La.ubie, JJ., concur.


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    BANKS AND BANKING — RECEIVER.
    [Summit (8th) Circuit Court,
    December 30, 1905.]
    Marvin, Wincb and Henry, JJ.
    Minor H. Howe v. Akron Savings Bank Co.
    1. Actual Knowledge of Insolvency by Officers Necessary to Recovery Back of Deposit in Insolvent Bank.
    A deposit made in an insolvent bank may be recovered back in an action against a receiver of tbe bank only when it is shown that at the time the deposit was received the officials of the bank knew or believed that it was insolvent.
    2. Checks and Drafts Deposited to Be Treated as Money.
    .Checks and drafts upon banks deposited with money and passed to the depositor’s credit are to be treated as becoming the property of the bank, raising the relation of debtor and creditor, unless there is an express agreement that they are deposited for collection only.
   WINCH, J.

This matter was heard on appeal, the direction of the court being requested by the receivers of the bank on a claim for preference made by D. W. Bowman, one of the creditors of. the bank, who, on April 4, 1904, at about noon, deposited with it certain money, a New York Bank draft and certain checks on other banks, the total amount of which was credited to him on his pass-book and on the books of the bank. At nine o’clock the next day, April 5, 1904, the doors of the bank were closed and the receivers took possession of all the assets and property of the bank. The draft and cheeks had been forwarded to the bank’s correspondents and charged on their respective accounts before the receivers took charge, but they subsequently collected from the bank’s correspondents the amounts due from them as shown by said accounts, including the amount of said draft and checks.

At the time of receiving said deposit the bank was insolvent. The receivers allege that this fact was unknown to the bank at the time it received Bowman’s deposit. Bowman alleges that the fact of said insolvency was then known, or, by the exercise of ordinary care and diligence, ought to have been known to the bank’s officers and directors. Upon this issue affidavits have been filed, which fail to establish the fact that the officers of the bank, or its directors, know of that insolvency at the time they received Bowman’s deposit, but tend to establish the fact that might have known had they used such care and diligence. Upon these facts Bowman claims he is entitled to preference for two reasons, first, the act of the bank in receiving the deposit when it was insolvent was such a fraud upon the depositor as to authorize him to rescind the transaction and recover from the receiver the amount of said deposit, or at least the draftsl and checks, provided the bank at the time knew, or by the exercise of ordinary care and diligence might have known, that it was insolvent.

The trouble with this proposition is that it goes one step further than the adjudicated eases on the subject by introducing the suggestion that fraud exists if the bank officials might have known of the insolvency. The true rule is stated by Judge Cook in the recent case of Baker v. Orme, 27 O. C. C. 465 (6 N. S. 289), and the reason for the rule given in the case of Quin v. Earl, 95 Fed. 728, where it is said “ * * * the officers of the bank must have known or believed that it was insolvent at the time the deposit was received; and such knowledge can not be presumed, must be proved.” See also Woodworth v. Paige, 5 Ohio St. 71: “Having failed to prove that the bank officials had such knowledge, claimant is not entitled to rescind the transaction for fraud.”

Second. It is claimed that title to the draft and checks deposited by Bowman, as distinguished from the money deposited by him, did not pass to the bank.

In this connection another allegation should be read from the motion:

“These receivers further say that it was the custom of said bank to credit to the accounts of its respective depositors checks and drafts deposited by them at the time of making such deposits, and if payment of any such checks or drafts was thereafter refused by the drawers or makers thereof, or if any such cheeks or drafts were dishonored and not collected by said savings bank company, the amount of such cheeks or drafts thus unpaid or remaining uncollected was required to be made good by the depositor or depositors thereof.”

The proposition of law thus raised is stated as follows, in Zane, Banks and Banking, Sec. 133:

‘£ Ordinarily a man who has checks or drafts takes them to a bank and deposits them for credit to himself. If nothing is said or written to indicate the intention, the deposit is for the depositor’s credit. But where such a deposit is made, the question as to where the title remains is a much debated contention. If the checks or drafts are on the particular bank in which they are deposited, a credit of them as cash to the depositor is pay-, ment, and by the great weight of authority that payment is final and irrevocable. The checks, thereupon, have passed from the ownership of the depositor. Where the checks and drafts deposited for credit are on another bank than the one receiving them it is usual for them to be credited as such. The point is, however, whether they pass to the bank as owner, or as a mere bailee, where they are credited as cash. Some courts erroneously say that, if the depositor is allowed to check against the deposit, the title is in the bank. Other courts deny this, and say the right to check against the deposit is a mere privilege.
£ £ This latter idea is the true one, because there is no question on the authorities but that the bank, having received checks or drafts on other banks as cash credited, has the right to revoke the credit if the collection is not made; but this would not be possible if the title had passed.”

The leading authority sustained the contention of claimant is Sommerville v. Beale, 50 Fed. 647 [17 L. R. A. 291].

The contrary doctrine is expressed in Metropolitan National Bank v. Lloyd, 90 N. Y., 530:

“M, who kept an account with the M. & M. Bank of Troy, deposited with that bank a check given for value, drawn by defendant payable to the order of M and indorsed by him in blank. Said bank credited the amount of the check in M’s bank passbook, which was returned to him, and on the same day it mailed the check to plaintiff, its correspondent in New York, and its creditor, to be, credited on account, and it was so credited. M. stopped payment of the check and when plaintiff caused palment to be demanded from the drawee it was refused. Notice of presentation and protest was given to defendant who subsequently paid the amount to M. In an action upon the check', Held: That upon the deposit the M & M bank became the owner of the cheek, and as such conld and did give a perfect title to its transferee ; and that plaintiff was entitled to recover. ’ ’

It is true that any any early date a deposit of money with a bank was considered as a bailment. The very word “deposit” is the technical designation of one kind of bailment, but from the fact that all depositors in banks were soon presumed to know that banks treated moneys deposited with them as their own and used them as such, in fact, could not do business at a profit unless they did, the courts long since decided that a general deposit of money with a bank created the relation of debtor and creditor, and that the relation of bailee and bailor no longer existed. Why the old theory of bailment should be maintained in Ohio at this day with regard to cheeks and drafts does not clearly appear. It can not be because of any custom of the bank to charge back against the depositor’s account the amount of any worthless cheeks; for that right exists in Ohio under the name of set-off. Marysville Bank v. Windisch M. Brew. Co., 50 Ohio St. 151 [33 N. E. 1054; 40 Am. St. 660]. It is true that in the case cited that bank applied the deposit on the note of its depositor to it, but in the case of a deposit of cheeks and drafts, the depositor indorses them and thus becomes himself liable to the bank on them. In this view of the ease the evidence as to the custom of banks is immaterial and irrelevant. The reason for preserving the distinction between moneys deposited in banks and checks or drafts so deposited having failed in Ohio, we see no reason for applying the rules of the law of bailment to the deposit of cheeks and drafts as claimed by Bowman, and, therefore, denying the preference he claims.

The conclusion here reached seems to have been assumed to be the law of Ohio by Judge Cook in Baker v. Orme, supra, for on page 468 (293), in stating the facts of that ease, he says:

“The money and checks were credited as one item in the pass book of plaintiff and passer to his credit in the bank, he at that time having a credit in the bank of $100 which made a balance in his account of $383. This deposit was made in the usual course of business of depositors, nothing being said about collecting the cheeks for plaintiff and no doubt is was a general deposit and th erelation of debtor and creditor immediately took place. ’ ’

We are not inclined to think that the line of federal authorities cited by counsel for claimant are sustainable upon the doctrine of fraud and rescission, and not under the law of bailment, and this view is sustained in Quin v. Earl, supra, where most of said eases are reviewed.

Decree may be drawn as here indicated.

Henry, J., concurs.

Marvin, J., not sitting.


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    SALES — WORDS AND PHRASES.
    [Summit (8th) Circuit Court,
    April Term, 1909.]
    Winch, Henry and Marvin, JJ.
    Wiener Brothers Co. v. H. E. Crouse.
    “Shortage” Refers to Quantity and not Quality of Apples Shipped.
    Upon receipt of a shipment of apples consignee wired: “Apples all varieties mixed. Too many bruised and spotted. Release car and if not too much shortage will send check in full. • Treat you right.” Consignor released the car, consignee sold the apples and remitted for the full quantity of apples shipped, but at a reduced price. In an action for the balance of the agreed price, Held: That the word “shortage” referred to the quantity and not the quality of the apples, and consignee having accepted and sold all the apples, must pay the agreed price for them.
   WINCH, J.

The bill of exceptions in this case discloses a contract entered into by Crouse whereby he sold to plaintiff in error and it agreed to buy a carload of apples at $1.65 per hundred pounds delivered on the track at Akron, freight paid. Two-thirds of the apples were to be red in color, mostly Baldwins, and all were to be handpicked and the colors separated in the car. A carload of apples was shipped to Akron consigned to the seller, with orders to deliver to plaintiff in error; upon arrival of the ear plaintiff in error inspected the apples and wired Crouse as follows: “Apples all varieties mixed. Too many bruised and spotted. Release ear and if not too much shortage will send cheek in full. Treat you right. ’ ’

Crouse agreed to this proposition, released the ear, and the Wiener Brothers Co. took the apples and sold them, but remitted to Crouse for the full quantity of apples at the rate of $1.50 per hundred weight only, less freight and a commission on sales, claiming that the apples were not up to representations and that they had sold them for the best price obtainable for Crouse’s account to save him loss, the apples being perishable. Crouse sued for balance of the agreed price for the apples and recovered. The only complaint of plaintiff in error is with regard to the charge in that the trial judge charged among other things as follows:

“As the court has indicated, the quality is a part of the description of the apples agreed to be sold and the plaintiff was bound to furnish apples cori’esponding with the description. If he tendered apples of an inferior quality the defendant was not bound to accept them. But if he did accept them, it is, in the absence of fraud, deemed to have assented that they corresponded with the description, and it is concluded from subsequently questioning it.
“This imposed upon the defendant the duty of inspection before acceptance, if it desired to save its rights in case the apples were of inferior quality. It could do nothing which was inconsistent with the right of rejection, or do only what was consistent with acceptance and ownership, without precluding itself.
“When the purchaser has a full opportunity to inspect the property but fails to do so, and the representations were not such as should have misled him, he has no right to complain if the property sold does not measure up to the representations of the seller.”

It is said that this charge was misleading because after inspection of the apples the defendant below sent the telegram already mentioned whereby the contract was modified to the extent that it was not to pay in full, if there was too much shortage, and that the evidence clearly disclosed a large shortage. In argument it was claimed that the word “shortage” referred to quality as well as quantity, but with this interpretation of the woi'd we can not agree.

The defendant paid for the full quantity of apples shipped, but at a lower price than agreed. He thus conceded that there was no shortage of quantity.

Had he rejected the bruised and spotted apples and paid for the balance at the agreed price, his claims might have been more tenable, for thus would have arisen a shortage perhaps covered by the wording of the telegram.

"We find no error in the charge and the jury appears to have reached a proper conclusion.

Judgment affirmed.

Henry and Marvin, JJ., concur.