author: WINCH, J.

text:
    MORTGAGES,
    [Cuyahoga (8th) Circuit Court,
    January 14, 1907.]
    Marvin, Winch and Henry, JJ.
    Cleveland & Sandusky Brewing Co. v. Joseph Demko et al.
    Restriction in Mortgage Giving Limited Monopoly Valid.
    The condition in a mortgage given to a brewing company for a sum of money advanced by it, to enable the mortgagor to build a saloon upon the mortgaged premises, that the mortgagor shall not; for a period of twelve years, sell upon the mortgaged premises any beer, ale, or porter except that manufactured by the mortgagee, is founded upon a valuable consideration, is not against public policy as in restraint of trade, and may be enforced by injunction to prevent the sale on the premises of other brews than that of the mortgagee.
    [For other eases in point, see 2 Cye. Dig., “Contracts,” §§ 403-412, 651-695. - — Ed.]
    [Proofs of this decision and syllabus were submitted to Judge Winch and corrected. — Ed.]
    Appeal from Cuyahoga common pleas court.
    Higley & Maurer, for plaintiff:
    The contract is valid, considered as one in partial restraint of trade for it complies with all the requirements of an enforcible contract in restraint of trade. Lange v. Werk, 2 Ohio St. 519; Grasselli v. Lowden, 11 Ohio St. 349.
    Contracts to sell exclusively certain products are not against public policy. 24 Am. & Eng. Enc. Law (2 ed.) 855; Anheuser-Busch 'Breiu. Assn. v. Houck, 27 S. W. Rep. 692 (Tex. App.); L. R. 4 Chan. 654.
    The contract does not concern a commodity known as a prime necessity of life, nor a commodity trade in which the public is interested in extending. The reason for the rule that contracts in restraint of trade may not be enforced therefore in the present instance fails. 24 Am. & Eng. Enc. Law (2 ed.) 854; Harrison v. Lockhart, 25 Ind. 112; Watrous v. Allen, 57 Mich. 362 [24 N. W. Rep. 104; 58 Am. Rep. 363]; Anheuser-Busch Breiu. Assn. v. Houck, 27 S. W. Rep. 692 (Tex. App.).
    Agreements not to sell or covenants to sell only a particular product are enforcible. Ferris v. Brewing Go. 155 Ind. 539 [58 N. E. Rep. 701; 52 L. R A. 305] ; L. R. 4 Chan. 654; Grasselli v. Lowden, 11 Ohio St. 349.
    If any question shall arise as to the sufficiency of the consideration for the agreement of ratification made at the time the mortgage was released and evidenced by a conditional release we would suggest: That the contract to sell the product of the plaintiff was broken from and after May 26, 1906, and notwithstanding the payment of the money claim, plaintiff had a legal right to maintain an action of ejectment and recover possession of the property., and to such action neither the payment of the money nor the inability of both parties to procure specific performance of the remaining contract, would have been available as a defense. This substantial right on the part of plaintiff was released and forms a valuable consideration for the stipulation continuing in effect the limitation upon the use of the property. The legal title at the time of the release was in the plaintiff and the situation is in all respects similar to a conveyance by the plaintiff to the defendant of the property in question with a limitation upon its use. Doe v. Roll, 7 Ohio (pt.-2) 70; Hale v. Wetmore, 4 Ohio St. 602; Allen v. Everly, 24 Ohio St. 97; Williams v. Englebrecht, 37 Ohio St. 383; Bradfield v. Hale, 67 Ohio St. 316 [65 N. E. Rép. 1008].
    E. J. Albe and E. K. Wilcox, for defendant.
   WINCH, J.

In this action the plaintiff seeks to enjoin the defendant, Joseph Demko, from selling any beer, ale or porter, except of the manufacture of the plaintiff, upon certain premises in the city of. Cleveland, belonging to said Demko.

From the pleadings and the conceded facts in the case, it appears that on August 3, 1905, the defendant, Joseph Demko, was the owner of said premises, which are described in the petition, and was desirous of building a saloon thereon, and for that purpose applied to the plaintiff for funds with which to pay off a small mortgage then existing upon the said premises, and to erect said improvements. The plaintiff, on said date, loaned the defendant the sum of $3,700 for said purpose, upon certain conditions and covenants which are set forth in the mortgage of said premises of said date executed and delivered by said defendant to the plaintiff. Said mortgage recites that the grantors, for the' consideration of $3,700, and other valuable considerations received to their full satisfaction from the brewing company, had conveyed said premises to the brewing company. Then follows an agreement in the following language:

‘ ‘ And we, the said grantors, for ourselves and our heirs, executors, administrators and assigns, covenant with the said grantee, its successors and assigns, that for a period of twelve years from and after date hereof, the premises above described shall not be used for the sale of any beer, ale or porter whatsoever except of the manufacture of the Cleveland & Sandusky Brewing Company, its successors and assigns; and this covenant and agreement shall run with the land and be a limitation and restriction upon the use thereof for said period of time without reference to the conditions upon which this mortgage deed is made, and shall be held as a grant for the benefit of the said The Cleveland & .Sandusky Brewing Company, its successors and assigns, wholly independent of, and in addition to, the above conveyance of the premises by way of mortgage, and shall not be discharged by performance of any or all of the conditions and agreements, the performance of which are hereinafter stipulated as rendering the mortgage void.”

The defeasance clause of the mortgage is as follows:

“■Whereas said grantors, in consideration of the granting of said loan, especially agree to conduct a saloon on said premises known as No. — corner Woodland avenue and Goukling street, Cleveland, Ohio, for a period of twelve years, and until said obligation and debt is paid and to buy and sell thereon during said period of time, beer, ale and porter of the manufacture of said grantee, its successors and assigns, and more particularly the beer of its Cleveland or Gehring branch, and no other b'eer, ale or porter whatsoever, and to pay for same upon request of said company; and further agree that any sum now or hereafter due to grantee for beer, ale or porter delivered by it, for Dow tax or other money advanced by it, or for rent, or otherwise, shall be a lien upon said property and secured by this mortgage. And the said grantee hereby agrees to supply in its customary manner, good, wholesome and merchantable beer, ale and porter for and during said period of time at a price mutually agreed upon and made a part hereof; provided, however, that in case said grantors should fail to pay for same as aforesaid, or in case said grantors should fail to pay upon demand any installment due to grantee for rent, or for money advanced by it for Dow tax or otherwise, then grantee’s obligation to supply said beer, ale or porter shall be void at its option; in case of breach of this covenant, or any part thereof, the damages accruing to said grantee shall be a lien on said premises, and be secured by this mortgage. Any waiver by grantee of any breach of this covenant, or any part thereof, shall not be deemed a waiver as to any subsequent breach thereof. In ease any additional tax or burden shall be imposed upon the sale or manufacture of beer, ale dr porter the price agreed upon as hereinbefore set forth shall be increased by such added amount.”

The defendant used the money in the improvement of his property, as agreed, and opened and conducted a saloon thereon, buying his beer of the plaintiff company until about May 26, 1906, about which time the Aiken law (98 O. L. 99; Rev. Stat. 4364-9 et seq.; Lan. 7248 et seq.), increasing the tax on saloons from $350 to $1,000, went into effect, and Demko then stated to the plaintiff that he could not run his business profitably any longer and pay the plaintiff the agreed price for its beer. The brewing company, however, refused to reduce the price of its beer, and Demko quit the saloon business temporarily and repaid to the plaintiff said sum of $3,700, with interest accrued; whereupon the plaintiff indorsed upon said mortgage the following:

“The conditions of this mortgage have been complied with and the same is hereby satisfied and discharged; the independent contract herein contained, limiting the use of the premises, remains in full force and effect.”

The brewing company also canceled the note secured by the said mortgage, and delivered said canceled note and the mortgage, with said indorsement, to the defendant, Demko.

On June 23, 1906, about a month after this transaction, Demko opened up his saloon again, vending therein the beer of another brewing company, whereupon the plaintiff brought its action, as above stated.

It is claimed by the defendant that plaintiff is not entitled to the equitable relief it seeks, for three reasons:

First, because the contract sued upon is without consideration.

Second, because it is against public policy, being in restraint of trade.

Third, because there is an adequate remedy at law.

We have no difficulty in finding that this agreement was upon a valuable consideration. The original advance of $3,700 by plaintiff to the defendant was sufficient consideration for his agreement to pay interest, ¡Buy beer of the plaintiff for twelve years, and not sell beer of any other brew for twelve years. Repayment of the money advanced would end the agreement to pay interest, but not the other two agreements, to buy plaintiff’s beer and sell no other beer for the period limited, and so the matter stood between the parties, when defendant asked to have his mortgage canceled. He was not entitled to a release of the mortgage, though he had repaid the loan. It still stood as security for these two additional promises. Whether these promises were then enforcible in equity, because of their executory character on both sides, is immaterial. The plaintiff released defendant from his obligation to buy its beer and the surrender of this valuable agreement was sufficient consideration for the continuance of his further agreement not to sell any other brew of beer during the time limited in the agreement.

We have no difficulty in finding- that the agreement relied upon is not in restraint of trade. Tbis question would not be raised if the plaintiff was not in the brewing business. Restraints upon the liquor trade are favored in this state. Indeed, the constitution of the state (Sec. 18 of the schedule) authorizes the legislature to pass laws to provide against the evils resulting from the traffic in intoxicating liquors, and many laws have been passed absolutely forbidding the sale of such liquors in certain districts of the state, and have been held constitutional.

So much for the public policy of the state, regarding the liquor business. It seems clear that the contract under examination does not concern a prime necessity of life, and that the people are usually benefited by having such contracts enforced.

But it is said that the contract in question tends to assure the plaintiff in a monopoly of its beer business. Does it violate any of the rules laid down by Judge Ranney in the case of Lange v. Werk, 2 Ohio St. 520, by which contracts in restraint of trade are to be tested?

1. The restraint must be partial only.

Here the restraint is partial both as to time and place. ■ It is limited to twelve years, and one lot in the city of Cleveland.

2. It must be founded upon a valuable consideration.

We have already discovered not only a valuable but an adequate consideration.

3. It must be reasonable and not oppressive.

This rule is explained in the case of Grasselli v. Lowden, 11 Ohio St. 349, 357, where it is said:

‘ ‘ The reasonableness of the restraint here .spoken of has no reference to its effect upon the rights and interest of the covenantor as such, but solely to its effect upon the rights of the covenantee and the rights and interests of the public as distinguished from those of the covenantor. ”

It must be “such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public.”

It does not seem that this restriction was greater than the interests of the plaintiff required. It enabled the defendant to build up a business on the plaintiff’s capital, with the understanding that the business so built up should be mutually beneficial.

It appears that this good will is now participated in by another brewing company, to the exclusion of the plaintiff. The defendant is not restricted by his agreement from carrying on any business he sees fit on his premises, or selling thereon any kind of liquor he chooses, except, if he sells beer, ale or poi’ter, he must vend that brewed by plaim tiff, during the time limited, and any place else, except on this particular lot, he can sell any brew of ale, porter or beer that he chooses.

So we conclude that this agreement is reasonable and not oppressive. It is within rule 560 of Greenhood, Public Policy page 677, where- cases on this subject are collected. See also Ferris v. Brewing Co. 155 Ind. 539 [58 N. E. Rep. 701; 52 L. R. A. 305].

But it is said that plaintiff is not entitled to equitable relief, — that he has an adequate remedy at law in an action for damages for breach of the covenant.

The case of Steinau v. Gas Co. 48 Ohio St. 324 [27 N. E. Rep. 545], is relied upon in this behalf.

In that ease the gas company had agreed to furnish illuminating gas to Steinau for ten years, sufficient to illuminate his place of business, and Steinau had agreed to buy its gas and none other. Upon breach of the agreement by Steinau, the gas company sought to enforce this executory agreement by injunction and failed, the- court pointing out that it would not be fair to hold Steinau to his agreement while the gas company could not be compelled to perform its agreement to furnish gas for the unexpired portion of the ten years.

But in this case, nothing remains for the brewing company to do; its agreement to sell beer has been canceled by mutual consent. Its executory contract has been terminated and we see no reason why an injunction should not be allowed in this case, so that a multiplicity of suits for damages may be avoided.

Injunction allowed as prayed for.

Marvin and Henry, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    BANKS AND BANKING — FORGERY.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin and Winch, JJ.
    Hough Ave. Savings & Banking Co. v. Jakob Anderson.
    Savings Bank Negligent not to have Detected the Dipeeeence between Forged Signature oe Depositor and the Real One in Their Possession— Depositor mat Recover though Bank not Notified of Loss of Pass Book.
    A savings hank which has paid out all of a deposit on a forged order purporting to have been written by the depositor, accompanied by the pass book which had been lost by or stolen from the depositor, is liable to the depositor for the amount thus paid out if the forged signature was written “Anderson,” and the depositor’s signature, written on a card at the time of opening his account, was “Anderssor..” It is negligence in the.bank not to have detected and been warned by the discrepancy and the rule to which the depositor has subscribed, that he must notify the bank if his pass book be lost or stolen, will not defeat his recovery though he has failed to observe it.
    ERROR to Cuyahoga common pleas court.
    White, Johnson, McCaslin & Cannon, for plaintiff in error.
    H. J. Nord, for defendant in error.
   WINCH, J.

In this ease plaintiff below, who is the defendant in error in this court, brought suit to recover of the bank the amount of his savings deposited therein which had been paid by the bank to a person who had stolen the defendant’s pass book and presented it to the bank with a forged order for the payment of the entire deposit to him.

One of the rules of the bank regarding savings deposits is as follows: '

“Deposits may be withdrawn by the depositor in person, or by written order; but in either case the pass book must be presented, that such payments may be duly entered therein. As the officers of the company may be unable to identify every depositor, the company will not be responsible for loss sustained where a depositor has not given notice of his or her book being stolen or lost, if such book be paid, in whole or in part, on presentation. In all eases, a payment upon presentation of a deposit book shall be a discharge to the company for the amount so paid.”

To this rule the depositor had assented by signing a signature card on which appeared above his signature the following words:

“In signing this card I hereby agree to conform to and abide by the by-laws, rules and regulations of the Hough Avenue Savings and Banking Company, Cleveland, governing savings depositors:”

The depositor signed his name “Jacob Andersson,” with two s’s in his last name. The forged order bore the name “Jacob Anderson” with only one s in the last name.

The signature card of the depositor was on file at the bank when the order was presented, but the teller of the bank did not compare the signature on the order with that on the card.

The bank contended on the trial that it was relieved of liability to the depositor by reason of said rule or by law and that in any event, it had been guilty of no negligence in the payment of said order, the pass book being presented with it, by a person known to it by reason of his previously having had two or three good checks cashed at the bank.

The rules applicable to the case here presented are well stated in 2 Morse, Banking See. ’620, and are abundantly supported by the adjudicated cases. Says Morse:

“The regulations of a savings bank for withdrawing deposits, if properly made known to the depositor, are part of the contract between him and the bank. They are intended for the protection of bank and depositor against fraud and forgery. * * *
“One of the commonest rules is, that the bank book must be produced in order to draw the deposit, and that production of the book shall be authority to the bank to pay the person producing it. This is regarded as a reasonable and binding regulation, and if the bank pay to one having the book, there being no circumstances to excite, suspicion and base an imputation of negligence on the part of the bank, the payment is good. * * * . . > mi
“But the bank.must exercise reasonable care. A stipulation between a savings bank and a depositor, that his deposit may be paid to anyone presenting his book, does not relieve the bank from the duty of exercising good faith and reasonable care.”

The trial judge applied the law thus stated and in his charge told the jury that there was but one issue for it to determine; if they found that the signature to the order was forged then they must decide:

“Was the defendant company negligent and careless, and did it fail to exercise due care and caution when it paid out the money?”

The jury determined this question in the affirmative and brought in a verdict for the plaintiff. In this we think the jury was right. It appears to us that it was negligence on the part of the bank teller to pay the order without comparing the signature thereon with the depositor’s genuine signature on the card. Had he done so he would have noticed the difference in the spelling of the last name. This should have aroused his suspicions and doubtless the mistake would have been avoided.

The loss in this case properly falls upon the bank by reason of its negligence, notwithstanding its rule, which we hold to be a reasonable one. We have examined all errors complained of, but find none to the prejudice of the plaintiff in error.

Judgment affirmed.

Marvin, J„ concurs.


text:
    EMINENT DOMAIN — CHARGE TO JURY — EVIDENCE—NEW TRIAL.
    [Medina (8th) Circuit Court,
    1906.]
    Marvin, Winch and Henry, J.T.
    Nypano Ry. v. Wadsworth Salt Co.
    1. AEPBOPBIATION PROCEEDINGS — Award TO SALT COMPANY MAY BE BASED LARGELY ow Injury from Smoke and Dirt.
    In an appropriation proceeding brought by a railroad company against a salt company for land for switch purposes, adjacent to defendant’s plant, an award by the jury will not be disturbed as having been based largely on the injury to defendant from the smolte and dirt from plaintiff’s locomotives. Railway v. Gardner, 45 Ohio St. 309, followed.
    [For other cases in point, see 3 Cyc. Dig., “Damages,” §§ 176-196, 749-767; 4 Cyc. Dig., “Eminent Domain,” §§ 226-228, 395, 397, 688. — Ed.)
    2. Improper Conduct of Parties on View of Premises Vitiates Verdict.
    Where a jury in an appropriation case views the premises in question and attorneys and representatives of both parties call to their attention on such view certain facts pertinent to the case, a verdict based upon such facts will not he allowed to stand. The misconduct of the parties vitiates such verdict, and notwithstanding both are guilty, the one ought not to he allowed to profit thereby as a penalty to the other.
    [For other cases in point, see 6 Cyc. Dig., “New Trial,” §§ 92-105; 4 Cyc. Dig., “Evidence,” §§ 1991-2004. — Ed.]
    [Syllabus by the court.]
    ERROR to Medina common pleas court.
    Tibbals & Frank, for plaintiff in error.
    Grant & Sieber, for defendant in error.
   WINCH, J.

This is a proceeding in error brought to reverse a judgment of the common pleas of Medina county, which affirms a judgment of the probate court of said county in an appropriation case wherein the railroad company sought to appropriate a strip of land off of one side of the salt company’s land for switch purposes. The salt company, claimed damages not only for the land' taken, but also growing out of obstruction to the access to its premises and damages to its business of salt making by smoke and cinders from the railroad. The jury in the probate court awarded $250 for the land taken and $6,750 as damages to the residue of the tract.

It is claimed that said judgment should be reversed for three reasons:

First. Because the verdict is excessive and not sustained by sufficient evidence. On this point it is urged that the obstruction to access was slight and could be overcome at small expense, and that the jury must have given too much consideration to the claim of the salt company that its salt was soiled and rendered unsaleable by smoke from locomotives upon said switch.

It is established by the case of Railway v. Gardner, 45 Ohio St. 309 [13 N. E. Rep. 69], that in an appropriation case like this, it is competent to take into consideration evidence of substantial injury and loss to the property (not common to the community at large) caused by smoke, noises and sparks of fire, occasioned by running locomotives and cars along the track' in front of the property. Bearing this in mind, we find that the record exhibits evidence tending to sus7 tain the verdict, and we are not disposed to reverse the judgment because the verdict is excessive.

Second. It is said that plaintiff’s sixth request .to charge, should have been given. It reads as follows:

“In this case you were sent to view the premises in controversy herein. In making up your verdict you should not consider as evidence any statements made to you during such view by any of the parties or witnesses herein or any statements of anyone else. Nor should you consider as evidence anything you may have seen on such view of the premises where evidence of such fact or facts has been expressly excluded from evidence.”

The first sentence in this request is not only the law,, but should have been given, if it stood alone, notwithstanding the record fails to show that the court’s attention had been called to the fact that statements had been made to the jury during its view of the premises.

The last sentence of Rev. Stat. 6429 (Lan. 10006), reads:

“The expenses of taking the view shall be taxed in the bill of costs, and no evidence shall be given on either side at the taking thereof.” ■

Had the trial judge questioned counsel proposing this charge as to whether any statements had in fact been made to the jury during the view, and counsel had replied: “I don’t know, but there may have been, and as the statute is specific on the subject, I ask the court to charge according to it,” we are of the opinion that the trial judge would have recognized his duty and plaintiff’s right, and charged as requested.

But the second sentence in this request has given us more trouble.

The evidence of facts expressly excluded from evidence, mentioned therein, has reference to testimony offered with regard to damages to the business of plaintiff from the blackening of salt by smoke and cinders.

Such evidence, offered by the salt company, was improperly excluded, as we think, in view of the decision of the Supreme Court in the case of Railway v. Gardner, supra. To be consistent, the trial judge should have - charged as requested, but as we hold that it was error to exclude such evidence, it follows that the last sentence of the sixth request of plaintiff does not correctly state the law, and part of the sixth request being bad, it was not error for the court to refuse to give it.

This conclusion is reached by a majority of the court only, by construing the word “evidence,” as used in Rev. Stat. 6429 (Lan. 10006), to mean “testimony.”

Judge Henry is of the opinion that the view cannot be used by the jury as evidence, while the majority is of the opinion that the proceedings for appropriation of land are special proceedings and not a civil action, and that the jury, as assessors, are entitled to take into consideration what they may have learned on view, in arriving at the damages they may assess-.

Third. The motion for a new trial was based partly upon misconduct of the parties and the jury, occurring at the view, and supported by affidavits showing that plaintiff’s counsel first spoke to the jury, or some of them, calling their attention to the fact that from the construction of the salt company’s buildings, smoke from locomotives could not enter to spoil the salt. The representative of the salt company thereupon directed the attention of members of the jury to salt which was dirty, intimating that the dirt came through windows- higher up, but near the switch.

Thus both parties violated the positive injunction of the law. In such cases it will not do to say that the losing party was equally guilty.

It is better that the administration of the law be kept free from the least taint of improper practice, than that a verdict rendered under such circumstances be allowed to stand as a penalty upon one party, leaving the other party to hold .what he may have unduly obtained thereby.

There are other methods of punishing the guilty, which should be resorted to -by the trial court.

There was no error in excluding the contract offered in evidence by plaintiff.

For misconduct of parties and the jury on the view of the premises, the judgments of the common pleas and probate courts are reversed and ’the cause remanded to the common pleas court for further proceedings.

Marvin and Henry, JJ., concur.


author: QIFFEN, J.

text:
    EMINENT DOMAIN — PARTIES.
    [Hamilton (1st) Circuit Court,
    July 28, 1906.]
    Jelke, Swing and Giffen, JJ.
    William P. Devou v. Cincinnati Interterminal Ry.
    1. Employes of Freight Despatch Company may be Directors of Railroad.
    Employes of a freight despatch company are not, simply for that reason, ineligible to act as directors of a railroad company.
    [For other cases in point, see 7 Cyc. Dig., “Railroads,” § 51. — Ed.]
    2. Company Owning Majority of Stock of Railroad Company not Real Party in Interest in Appropriation Proceedings.
    A railway company seeking to appropriate property is the real party in interest, notwithstanding its officers are also officers of another railway company and its stock is largely owned by another company.
    [For other cases in point, see 4 Cyc." Dig., “Eminent Domain,” §§ 586-587. —Ed.]
    3. Necessary Deviation of Railway Line to Adjacent Property not Such Change as Contemplated in Rev. Stat. 3272 (Lan. 5228).
    A change of the line of a railway to adjacent property for a short distance is not such a change as is contemplated in Rev. Stat. 3272 (Lan. 5228).
    [For other cases in point, see 7 Cyc. Dig., “Railroads,” §§ 205-212. — Ed.]-
    4. Appropriation Proceedings — Statement by Counsel as to Price Paid for Property not Prejudicial, if Jury Instructed to Disregard It.
    A statement by counsel for the railway company, to the jury, in condemnation proceedings, as to the price which the owner of the property paid for it, is not prejudicial error, the court having instructed the jury to disregard such statement.
    [For other cases in point, see 7 Cyc. Dig., “Error,” § 1550 et seq. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Hamilton common pleas court.
    Keam & Keam, for plaintiff in error.
    Kinkead, Rogers & Ellis, for defendant in error.
   QIFFEN, J.

This proceeding was commenced in the court of insolvency to appropriate certain real estate of the plaintiff in error for railroad purposes. Our conclusions, drawn from the record, are as follows:

1. The existence of the corporation and its due organization, including the payment of 10 per cent of each share of stock subscribed, are fully shown by the record, and it was therefore vested with the power of eminent domain.

2. The resolution of the board of directors of the railroad company declaring it necessary to ■ appropriate the property of the plaintiff' in error was duly passed by five out of seven directors, although two of them were employes of the Kanawha Despatch. They were neither stockholders, owners, nor interested in such company within the meaning of Rev. Stat. 3315 (Lan. 5273). ' <

3. The defendant in error was the real party in interest, although the .same man who. was1 president of the Chesapeake & Ohio Railway Company was also president of this company, and although the Coving-ton & Cincinnati Elevated Railway and Transfer and Bridge Company was the owner of 93 per cent of the stock of this company.

4. There was no change of the line within the meaning of Rev. Stat. 3272 (Lan. 5228) by running the road over the property of the plaintiff in error instead of the adjacent property, as the same resulted from the necessity of the case.

5. The exception to the ruling of the court, in sustaining an objection to the question at the bottom of page 135 of the bill of exceptions is not well taken, as it would open a large field of inquiry which would only confuse the jury in estimating the value of the property. A like question would have been proper upon cross-examination of the defendant’s witnesses in order to judge whether or not the opinion of the witnesses was well founded.

6. The compensation awarded by the jury was full and adequate and not against the weight of the evidence.

7. The alleged misconduct of counsel in stating to the jury that the property was bought by plaintiff in error for $1,100 was not prejudicial, as the court instructed the jury not to consider any such statement, and that the amount paid for the property by plaintiff in error had nothing to do with the ease.

We find no prejudicial error, and the judgment will be affirmed.

Jelke and Swing, JJ., concur.


author: HENRY, J.

text:
    CONTRACTS.
    [Cuyahoga (8th) Circuit Court,
    January 14, 1906.]
    Marvin, Henry and Burrows, JJ.
    (Judge Burrows of the seventh circuit, sitting in place of Judge Winch.)
    State ex rel. Sylvester V. McMahon, etc. v. Richard J. McKenzie. et al., etc.
    1. Specifications fob Bids must not Leave a Discbetion in Accepting.
    Before hids are invited for a public building,' the commission having the matter in charge must make the specifications sufficiently definite and certain as to material that there will be no discretion left with the commission in the acceptance • of the “lowest bid,” and if the choice amount to a monopoly alternative varieties' should be specified so that there may be actual competition.
    [For other cases in point, see 2 Cyc. Dig. “Contracts,” §§ 2924-2952. — Ed.]
    2. Poweb of Judge to Appoint Building Commissionebs not Legislative ob Executive.
    Acts 97 O. L. Ill and 98 O. L. 53 giving judge of court of common pleas authority to appoint members of a courthouse commission and to fix their pay, are not unconstitutional because they confer legislative or executive powers upon judicial officers.
    3. Legality of Bid Resebving Money to be Expended by Building Commis-sionebs.
    In inviting bids for a public building, it is unlawful for the building commission to require all bidders to include in their total bids an arbitrary sum which the commission reserves the right to expend, at its discretion, for particular items that are not of such nature as to preclude competition.
    [Proofs of this decision and syllabus were submitted to Judge Henry and corrected. — Ed.]
    Appeal from Cuyahoga common pleas court.
    B. C. Starr, for plaintiff:.
    C. W. Stage,-for defendants.
   HENRY, J.

In this appeal it is sought to enjoin the Cuyahoga courthouse commission from entering into contract with Andrew Dali & Son, for the construction of a courthouse in said county.

The first ground alleged is, that the acts under which this commission is organized (97 O. L. 111; 98 O. L. 53; Rev. Stat. 794-1; Lan. 1754) are unconstitutional, because they attempt to confer legislative and executive powers upon judicial officers, in requiring a judge or judges of the common pleas court to appoint and fix the salaries of tha four members of the commission other than the county commissioners. This contention was not strenuously urged in argument before us, and if it were, we should be content with the views expressed by the learned judge in the opinion below, vindicating the constitutionality of these laws.

It is complained secondly, .that the commission’s invitation for bids is fatally defective, in that it undertook to suppress competition as to the items of statuary, hardware, etc., by requiring all bidders to include in their total bids, arbitrary sums aggregating some $98,000 to cover these items, which amount, more or less, the commission reserves the right to expend at discretion therefor.

If this is a means of getting $98,000 out of the county treasury and into the commission’s hands for future discretionary expenditure, it clearly has no warrant in law. If such is not its object, we see no reason for requiring this, or any other amount of money for these items tó be included in the bids. The duties sought to be imposed upon the successful bidder, with respect to the items in question, ought not to require the cost thereof to be included in the bids of persons who in no event are to provide them. Such a procedure is both awkward and ambiguous.

There is nothing in Rev. Stat. 794 (Lan. 1753), when properly interpreted, to prevent reserving these items for further lawful action by the commission in procuring them, in so far as their artistic character is such as to preclude their purchase by competitive bidding; for work of a necessarily noncompetitive nature may, no doubt, be contracted for without that procedure. When, however, this characteristic inheres merely in the design, as distinguished from the final workmanship, the competitive principle applies to the latter, and must be followed. And this, we think, is peculiarly true of hardware to be specially designed for this structure, and perhaps also of certain other excepted items. In short, we hold, as hereinafter pointed out, that there must be competitive bidding in all cases when competition is at all admissible. And competition, where it is admissible, cannot, without plain necessity for postponement, be deferred to a date later than that upon the main contract, in view of the provisions of Rev. Stat. 794 (Lan. 1753). In construing, however, the specifications on which the proposed contract in this case must be founded, we are of the opinion that the sum of $98,000 to be included in the bids for these items cannot of itself operate as an appropriation of that amount, though in extending a new invitation for bids, the means employed for accomplishing the end in view, so far as that end is admissible, ought to be rid of any room for doubt or argument in this behalf.

It is further urged that the competition in this case was illusory and unlawful, because it reserved to the commission a discretion, after opening the bids, to determine which of the several kinds of material named in the specifications, to wit, limestone, sandstone and granite, should, in fact, be used, and also because it impliedly reserved to the commission a further discretion after opening the bids and fixing upon one of these kinds of material, to select which of the several varieties of that material as specified by bidders, pursuant to requirmént of the specifications, should likewise be used.

The commission, in the exercise of the discretion so reserved, has, in fact, since the bids were opened, selected granite as the main material to be used, and, in undertaking to accept Andrew Dali & Sons’ bid, has likewise selected that variety of granite known as Pink Milford, as the particular sort of granite to be used. There were bids filed and opened for each of the three kinds of material, limestone, sandstone and granite, respectively, but the lowest bid was not for granite. There were several bids for granite; but Andrew Dali & Sons’ bid was not the lowest for that kind of material. There were several bids for Pink Milford granite, and Andrew Dali & Sons ’ bid was the lowest for that variety of granite. But the selection of granite as the kind of material and the selection of Pink Milford granite as the particular variety thereof, were not made until after the bids were opened. Is this procedure warranted by law?

Revised Statute 799 (Lan. 1763), provides that contracts relating to public buildings “shall be awarded to, and made with, the person or persons who offer to perform the labor and furnish the material at the lowest price.” This section applies to aggregate bids of the sort here under consideration. Combinations of partial bids fall under the somewhat different provisions of Rev. Stat. 794 (Lan. 1753).

It is objected, however, on behalf of the defendant, that Rev. Stat. 799 (Lan. 1763) applies only to boards of county commissioners, and not to this building commission, composed, though it is, of four other members, in addition to the county commissioners.

Three cases are cited in support of this view, namely: Wood Co. (Comrs.) v. Pargillis, 6 Circ. Dec. 717 (10 R. 376), affirmed without report, in Wood Co. (Comrs.) v. Pargellis, 53 Ohio St. 680; State v. Marion Co. (Comrs.) 39 Ohio St. 188, and Boren v. Darke Co. (Comrs.) 21 Ohio St. 311.

With regard to Wood Co. (Comrs.) v. Pargillis, supra, it is enough to say that the dictum therein, to the effect that certain of the sections of the Revised Statutes embraced in Chap. 1, title 6, entitled “public buildings,” being Rev. Stat. 782 to 803 (Lan. 1741 to 1769) inclusive, are inapplicable to the proceedings of a special courthouse commission, was wholly unnecessary to the decision of that case, and no reason whatever is set forth in the opinion to justify the dictum in question.

With regard to State v. Marion Co. (Comrs.) and Boren v. Darke Co. (Comrs.), supra, it is true that they identify Rev. Stat. 795 to 799 (Lan. 1759 to 1763), with corresponding sections of the act of April 27, 1869 (66 O. L. 53), which was plainly restricted in application to boards of county commissioners.

Revised Statute 794 (Lan. 1753) of the same chapter is now, however, significant, as bearing upon the present scope and application of the subsequent sections. The last-named section opens with the words:

“When any board of commissioners, board of trustees, officers, or board of directors of the state, or of any county, township, city, town, village, school or road district of the state, or of any public institution belonging to- the same, or any common council or other municipal authority, who are now or at any time shall be authorized to contract or engage for the erection, repair, alteration, or rebuilding of any statehouse, -courthouse,” etc.

These words seem broad enough to comprehend all public authorities, including this commission, unless otherwise expressly provided by law. The entire section is to be construed in connection with the following sections, and they with it. This seems to be the effect of the decision in State v. Marion Co. (Comrs.), supra, which holds that:

“Section 794 [Lan. 1753] provides for letting contracts, in certain cases and under certain conditions, to separate bidders representing different trades, .in respect to which the provisions of that section, and not Sec. 799 [Lan. 1763] apply. In all other eases the provisions of the latter section govern.”

The chapter of the Revised Statutes, entitled “Public Buildings,” is thus designed manifestly to cover the entire subject, except where it is inconsistent with other express provisions of statute. The provisions regarding county buildings to be erected by the county commissioners are equally applicable to this commission, whose other members are acting with the county commissioners and performing the duties that were formerly imposed upon them alone. It is true that this commission may act affirmatively with the concurrence of but a minority of the county commissioners; but its votes and proceedings are by law .required to be recorded upon the journal of the county commissioners, and, it is acting for the county in a. distinct but entirely similar organic capacity to that of the county commissioners themselves. It is not to be presumed that tbe larger and more responsible duties which called the commission into ' existence should be attended with an abolition of the safeguards provided by law for the conduct of smaller enterprises of precisely the same kind. Such is by no means the apparent intention of the legislature, and the opposite construction, being at least permissible, with r'espect to this section, as now found in the codified laws, it must prevail.

It is objected further by the defendants that even if Rev. Stat. 799 (Lan. 1763) applies, as'we hold it does, still the decided cases warrant the conclusion that there may be a reservation of the choice of materials until after the bids are opened, whereupon quality, as well as price, may be looked to in determining who is the lowest bidder. Particular reliance is placed on the decisions of the circuit, or Supreme Court, or both, in Ampt v. Cincinnati, 9 Circ. Dec. 690 (17 R. 516), affirmed, without report, in Ampt v. Cincinnati, 60 Ohio St. 621; State v. Toledo (Bd. of Ed.), 7 Circ. Dec. 338 (14 R. 15), and Polhamus v. Board of Ed. 11 Circ. Dec. 366 (21 R. 257, 259).

But an examination of these cases shows that there was something essentially noncompetitive, or but imperfectly competitive, in the subject-matter under consideration, in every instance, to wit: a heating system, a fireproofing system, or a waterworks pumping system. In the case affirmed by the Supreme Court, without report, the statute under consideration required the letting of the contract to the “lowest and best .bidder,” and the procedure adopted, which reserved some discretion to the authorities inviting bids, was approved.

In the cases, State v. Toledo (Bd. of Ed.) and Polhamus v. Board of Ed., supra, the statute under consideration forbade acceptance of any collusive bid, and any but the “lowest responsible bid,” and it was held — the nature of the subject-matters being at least partially noncompetitive — that a discretion might properly be reserved and exercised.

Shall we allow these precedents to emasculate the statute? Shall we swing wide the door of official discretion which experience teaches is too often but another name for graft and corruption ? No corruption is charged or indicated in this case. But we are asked so to construe this section as to make it easy for dishonest officials to defraud the taxpayer. Probably no statute, however skilfully framed or wisely construed, can wholly prevent dishonest officials from following their bent. But graft can be made by law more difficult and dangerous, and the courts must be alert so to construe such laws as to give them the effect intended.

Even if the proposed construction of this law preserves the letter, it strangles the spirit and intent of it. Undoubtedly when the subject-matter is practically noncompetitive under the ordinary procedure, it is useless to pursue the letter of that procedure, and if no really competitive procedure under the law can be devised, then there is nothing left but to abandon the principle in such cases, and procure the thing desired by direct negotiation, instead of competition. To the few instances where this is absolutely the case, Rev. Stat. 799 (Lan. 1763), and similar sections cannot apply. But the number of such instances must not be needlessly enlarged. And when materials of common use in ordinary construction are needed, it is idle to say that they are noncompetitive simply because it is possible to fix upon a variety of granite, or marble, that is produced in but one quarry, or a variety of wood or iron that is monopolized by a single dealer. If such a monopoly is to be utilized at all, its attendant evils can be avoided or minimized only by specifying alternatives of the same quality, or of equal excellence, and by then awarding the contract to the lowest bidder.

Summarized, our understanding of the law is, that wherever public authorities are by law required in letting contracts for construction, to invite sealed bids and to let the contract to the “lowest bidder,” it follows:

First. That there must be opportunity afforded for bona fide competition wherever the nature of the construction makes it possible; and a specification of noncompetitive workmanship or material is unlawful in every case where such specification can reasonably be avoided.

Second. Upon the opening of the bids, the contract must be awarded to that bidder whose bid, without subsequent alteration or explanation, is, on its face, the lowest one that fulfills the terms of the invitation, unless all bids are rejected, or the nature of the subject-matter compels the exercise of discretion.

Third. When the contemplated construction is essentially and absolutely noncompetitive, because of its artistic nature, or is strictly monopolistic, because the function to be performed thereby is necessarily dependent upon a single means which is the subject of an exclusive patent, or franchise, or sole source of supply, then the principle of competition is, so far forth, inapplicable.

Fourth. When the contemplated construction is but imperfectly competitive, though not absolutely noncompetitive, as where the function to be performed is dependent upon some one of various monopolistic means, the principle of competition, so far as it can reasonably be made applicable, must be strictly pursued; but, in cases of that kind, after the application of the competitive principle has been exhausted, a sound discretion may then be exercised in choosing the most economical means, all things considered, among those that are offered.

Applying these principles to the concrete case before ns, it comes to this:

If this commission determines to build of granite without more particular specifications of variety or quality, it must so determine before asking for bids, and then let the contract, if at all, to the lowest bidder who comes within the specifications. If it determines to build of Pink Milford granite, it must likewise so determine beforehand. But if Pink Milford granite is a monopoly, so that specifying that material-alone precludes competition, then it should specify a sufficient number of alternative varieties, by name or fixed standard of quality, so that there may be actual competition, and then it should award the contract to the lowest bidder who comes within such specifications.

In the matter of general materials for a public building, no discretion as to the choice can lawfully be reserved until after the bids are opened, when the statute expressly requires, as it does here, that specifications shall be made in advance, and that the contract shall be let to. the lowest bidder. To hold otherwise would be to strike at the very root and foundation of these requirements of the statute. For if the law does not apply in letter and spirit to gross raw materials like these, what is left? The law forthwith becomes a dead letter. But it is said that we held otherwise in Emmert v. Elyria, 27 O. C. C. 353, and that the Supreme Court affirmed that decision in Emmert v. Elyria, 74 Ohio St. 185. But an examination of that case will show that the point specially urged there was not suppression of competition, but the delegation by the council of its legislative power to an executive board. And though the opinions in both courts do incidentally refer to the merits of a procedure like that here adopted in stimulating competition when honestly pursued, yet the indorsement thereof by this court really turned on a curative a,ct whereby the legislature had set the seal of its approval on this practice, as applied to street improvements. And the exact point here in question was not before the Supreme Court at all, in view of the finding of facts there considered. For aught'there appearing the choice of materials may in fact have been determined before bids were invited.

This ease, and those before cited, have, indeed, given us pause. But we hold that the reservation, by the commission, of the right to determine, after opening the bids, the materials to be used in constructing the Cuyahoga county courthouse is unwarranted and illegal. On the remaining point we entertain if possible, even less doubt. For though the same difficulty arises with respect to the discretion reserved in the choice of the varieties of marble to be used for floors and other interior work, there is, in addition thereto, another irregularity. The successful bidder filed with his bid certain specimens of marble, as he was required to do. After the bids were opened, he and the other bidders were permitted to designate further specimens of marble as those which they were willing to use. Under circumstances which must have led Andrew Dali & Sons’ representative to believe that he was thus designating the specimen chosen by the commission, although no such choice had then been formally made, he picked out a specimen of marble differing from any that his firm had filed, and upon the specimen thus designated, it is proposed now to enter into the contract here sought to be enjoined.

In Herrmann v. State, 5 Circ. Dec. 266 (11 R. 503), this exact procedure is condemned, and it is held in Beaver v. Institution for Blind (Tr.), 19 Ohio St. 97, that amendments and alterations of bids after the same are opened cannot be permitted. And because it was permitted in this ease — for we cannot come to any other conclusion from the evidence — as well as because the commission reserved the choice of materials until after the bids were opened, the proposed contract must be permanently enjoined.

Our brother Burrows who sat in place of our brother Winch, is of opinion that the requirement of a corporate surety on the successful bidder’s bond was unauthorized and oppressive; that the size and duration of the bond after completion of the contract are likewise unreasonable, and that the provision in regard to* the monumental character of the building is indefinite and hence a deterrent to fair competition. But we do not found our judgment on these grounds.

Marvin and Burrows, JJ., concur.


author: PARKER, J.

text:
    MUNICIPAL CORPORATIONS — NEGLIGENCE—NUISANCE.
    [Huron (6th) Circuit Court,
    November 17, 1906.]
    Haynes, Parker and Wildman, JJ.
    Norwalk (City) v. Jessie Jacobs.
    1. Liability of City foe Condition of Its Steeets.
    A city is bound to keep its streets in repair and free from nuisance both as to the width of the street and freedom from obstructions in the line to travel, but it is only bound to keep them in such condition as to make them safe for ordinary travel, not safe for extraordinary emergencies, such as riding behind a runaway horse or a horse beyond the control of its driver.
    [For other eases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 2737-2748. — Ed.]
    2. Lisht Poles Placed in Gutters at Side of Street as Nuisance.
    A city has the right to determine the width of its streets which shall be devoted to lawful public uses, part may be devoted to sidewalk, part to ■ lawn and shade trees, part to necessary poles, part to drainage, gutters, etc., and part to vehicles and street cars; and it is not an unlawful use in itself to devote a part designed for drainage to poles supporting electric street lights.
    [For. other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 2018-2032. — Ed.]
    [Syllabus approved by the court.]
    EbROE to Huron common pleas court.
    W. R. Primer, A. V. Andrews and J. R. McKnight, for plaintiff in error:
    A village is not liable for an injury to the driver of a team resulting from an obstruction in the margin of a street in the outskirts of the village, the street being unobstructed for such a width as public necessity or convenience reasonably required. Rankin (Vil.) v-. Smith, 63 Ill. App. 522; Jones, Negligence of Mun. Corp. 146; Williams, Mun. Torts 134, 142; 2 Dillon, Mun. Corp. Sec. 1008, p. 1024.
    In determining what part of a street will be improved, a city acts in its delegated governmental capacity and is not answerable for a neglect of duty, unless the plans be palpably dangerous to travelers. Ely v. St. Louis, 181 Mo. 723 [81 S. W. Rep. 168]; House v. Covington, 26 ICy. Law 660 [82 S. W. Rep. 374],
    Towns are bound to provide wrought ways of reasonable width and smoothness and one who drives outside of such a way without reasonable cause does so at his own risk.. Orr v. Oldtoivn, 99 Me. 190 [58 Atl. Rep. 914]; Hutchinson v. Clarke, 26 R. I. 307 [58 Atl. Rep. 948]; Lynch v. Boston, 186 Mass. 148 [71 N. E. Rep. 301],

      See also Roberts v. Telephone Go. 77 Wis. 589 [46 N. W. Rep. 800; 20 Am. St. Rep. 143] ; Allen v. Telegraph Go. 21 Hun 22; Sheffield v. Telephone Co. 6 O. F. D. 190 [36 Fed. Rep. 164]-.
    Reasonable requirements. Cincinnati v. Fleischer, 63 Ohio St. 229 [58 N. B. Rep. 568]; Elster v. Springfield, 49 Ohio St. 82 [30 N. B. Rep. 274],
    Runaway and frightened horses proximate cause of accident. Monahan v. Telephone Co. 9 Dee. 532 (7 N. P. 95); Hungerman v. Wheeling (City), 46 W. .Va. 761 [34 S. B. Rep. 778] ; Tiedeman, Mun. Corp. Sec. 342; 3 Abbott, Mun. Corp. 2280; Cole v. Newburyport, 129 Mass. 594 [37 Am. Rep. 394]; Smith, Mun. Corp. 817, Sec. 810; Titus v. Northbridge (Inhabitants), 97 Mass. 258 [93 Am. Dee. 91]; 2 Dillon, Mun. Corp. 1035; Schillinger v. Verona, 96 Wis. 456 [71 N: W. Rep.. 888]; Higgins v. Boston, 148 Mass. 484 [20 N. E. Rep. 105]; Ehleiter v. Milwaukee, 121 Mich. 85 [98 N. W. Rep. 934]; Jackson v. Bellevieu, 30 Wis. 250; Moss v. Burlington, 60 Iowa 438 [15 N. W. Rep. 267]; Bell v. Wayne (Vil.), 123 Mich. 386 [82 N. W. Rep. 215; 48 L. R. A. 644; 81 Am. St. Rep. 204]; Pittsburg S. Ry. v. Taylor, 104 Pa. St. 306 [49 Am. Rep. 580] ; Cushing v. Bedford, 125 Mass. 526; Perkins v. Fayette, 68 Me. 152 [28 Am. Rep. 84] ; Davis v. Dudley, -86 Mass. (4 Allen) 557; Palmer v. Andover, 56 Mass. (2 Cush.) 600; Fogg v. Nahant, 98 Mass. 578; Wmship v. Enfield, 42 N. H. 107; Dubois v. Kingston, 102 N. V. 219 [6 N. E. Rep. 273; 55 Am. Rep. 804] ; Ring v. Cohoes, 77 N. Y. 83 [33 Am. Rep. 574] ; Macamber v. Taunton, 100 Mass. 255; Cushing v. Boston, 128 Mass. 330.
    A municipal corporation is not bound to keep the street entirely free from lamp posts, telephone posts, water hydrants, hitching posts, and like obstructions, so that runaway teams can have a clear way from sidewalk to sidewalk. Cushing v. Boston, 128 Mass. 330; Smith, Mun. Corp. Secs. 1, 310, p. 1364; Dubois v. Kingston, 102 N. Y. 219 [6 N. E. Rep. 273; 55 Am. Rep. 804] ; Ring v. Cohoes, 73 N. Y. 83 [33 Am. Rep. 574]; Macomber v. Taunton, 100 Mass. 255; Dougherty v. Horseheads Vil. (Tr.) 159 N. Y. 154 [53 N. B. Rep. 799]; 3 Abbott, Mun. Corp. 2293; Frostburg V. Wineland, 98 Md. 239 [56 Atl. Rep. 811; 64 L. R. A. 627; 103 Am. St. Rep. 399].
    Necessary objects and articles in streets. Williams, Municipal Liability for Tort 149; 2 Dillon, Mun. Corp. 694; 3 Abbott, Mun. Corp. Sec. 1004.
    Electric light poles are proper in street: Roberts v. Telephone Co. 77 Wis. 589 [46 N. W. Rep. 800; 20 Am. St. Rep. 143]; Palmer v. Electric Co. 158 N, Y. 231 [52 N. B. Rep. 1092; 43 L. R. A. 672]; Joyce, Electric Law 328, 329 and notes.

      Notice. Denver v. Sherret, 88 Fed. Rep. 226 [31 C. C. A. 499; 60 U. S. App. 104]; Fehrman v. Pine River, 118 Wis. 150 [95 N. W. Rep. 105.]; Downs v. Smyrna Town (Gomrs.), 2 Penn. (Del.) 132 [45 Atl. Rep. 717]; Buckley v. Kansas City, 156 Mo. 16 [56 S. W. Rep. 319]; Smith, Mun. Corp. Sees. 1210, 1310.
    A city is required to exercise ordinary' care and diligence to keep its streets in a reasonably- safe condition for the ordinary travel of those who have occasion to use them by day or night. Beattie v. Detroit, 137 Mich. 319 [100 N. W. Rep. 574] ; Moretón v. St. Anthony, 9 Idaho 532 [75 Pac. Rep. 262] ; Elliot, Streets Sees. 615, 621; Moriarty v. Lewiston, 98 Me. 482 [57 Atl. Rep. 790] ; Williams, Municipal Tortss171, 173, 183.
    S. M. Young, for defendant in error.
   PARKER, J.

The case below was an action by Jessie Jacobs against the city of Norwalk to recover damages for injuries she alleges she sustained by reason of the negligence of the city in allowing a certain electric light pole to be erected and maintained upon one of the streets of the city. She recovered a judgment for $2,000. This was the second trial of the case in the court of common pleas. Upon the first trial the judge charged the jury in effect that, if the pole was set beyond the curb line into the street that would amount to negligence, per se, upon the part of the city.

Judgment was obtained by Mrs. Jacobs; error was prosecuted to this court and we reversed that judgment, holding that the court erred in that charge. The opinion by Judge Haynes will be found in Norwalk v. Jacobs, 27 O. C. C. 691. The last clause of the syllabus states that point:

“Whether or not a telephone pole placed in a public street by a telephone company is dangerous or a public nuisance, is a question to be submitted to the jury under proper instructions by the court; and, in deciding the question, they should consider the situation of the pole and how it was placed, and whether it was in fact situated in a position that was really dangerous or not.”

I notice that throughout the case as here reported, the pole is described as a telephone pole; but it turns out, whatever the record may have shown before, that it was in fact a pole erected to support an electric light used in lighting the street; but that perhaps would not alter the legal principles involved.

In the course of th.e opinion, Judge Haynes says at the bottom of page 693:

“I have very serious doubts myself whether that pole was in a position where it could be said to be in a dangerous condition, or to be said to be a nuisance. ’ ’

It is contended here on behalf of the city that the power and’ discretion of fixing the width of streets and of permitting the erection of poles along in the streets, etc., is vested in the city council, and that whether the city has been negligent in this respect in any instance, is not a question to be submitted to the jury; that their action is not to be revised by a jury. We think that is stating the rights and authority of the city too broadly; that it was fairly stated in the syllabus that I have read. In the first instance, the power and authority is vested in the city; but since the statute has not fixed definitely the width which shall be maintained for public travel in the streets, and has not fixed definitely locations at .which electric light poles, or telephone or telegraph poles, shade trees or other structures along streets, shall be placed, manifestly, in any given instance where it is claimed they have not been properly placed, the question must be submitted in the first instance to the jury, and if the finding of the jury is not satisfactory to the party (as in this case it is not to the municipality) then the matter may be reviewed by the courts placed above the trial court for that purpose. Here it is urged that even if the jury may pass upon, a question of this kind, the verdict is manifestly against the weig'ht of the evidence; and it is also claimed that errors occurred upon the trial which require a' reversal of the judgment.

The case appears to have been very carefully tried, and all the witnesses who eould throw any light upon the question, appear to have been called and examined very fully, and all the information that could be laid before the jury, was produced and brought to their attention; and the court appears to have exercised great care in charging the jury and in defining the rights of the parties; but it is urged, as I have said, that the judgment is fundamentally wrong because against the weight of the evidence; that the evidence does not disclose, when fairly weighed and considered, that, the city was guilty of negligence.

The facts are recited in the opinion to which I have referred, but I will in a general way repeat, and perhaps add somewhat to the statement. The plaintiff, while riding in a buggy toward the eastward on the Main street of the city, was thrown from the buggy and suffered a broken limb and other injuries, and it is conceded that if there is liability upon the part of the city, the verdict for $2,000 on account of those injuries is not excessive. She claims that she was not thrown from the buggy and injured through any fault of her own, but solely through the fault of the city in allowing this electric light pole to be placed so far within the road way as that it was' dangerous and a nuisance to those using the street for public travel; and that it was not only placed so far witbin the street as to make it dangerous, but that it leaned toward the center of the street in such a way as to make it even more dangerous.

The accident happened about midday. In the buggy with the plaintiff was her niece, a young lady, her brother, a young man, or boy, about fifteen years old at the time, a child of plaintiff, about eight years old, and a babe of the plaintiff. It was a covered buggy with a single seat and drawn by one horse. The plaintiff sat upon the left side holding the eight year old child in' her lap; her- niece sat upon the right side holding the babe in her lap, and the boy, her brother, who was driving, sat between them. The buggy was not a new buggy, nor does it appear to have been an old and dilapidated buggy, but it was apparently in fairly good condition.

The part of the street where it is said the accident occurred, is about a mile and a half east from the center of the city and near the eastern city line — near a point called Ailing’s corners. The street has great width and was well paved about half the distance from the center of the city to the point where the accident occurred, %. e., to a point, where there is an overhead bridge over the railroad. Beyond this point, it was not paved. The accident happened in 1898, in May. Beyond and to the east of this overhead bridge, the roadway is considerably narrower than it is west of that point. There were shade trees on either side of the road, between the place where the sidewalk would ordinarily be located, and the-roadway — a great many shade trees, a continuing row of shade trees upon ■either side, some of them quite large — and near to the line of the shade treesi were numerous poles erected for electric lights and for telephone wires and some electric railroad poles.

There was a railroad track for an electric railroad-running through ’ the street and located near its center; it was used for city cars and also for interurban ears. The street had been. graded at this point, and some time before the laying of the electric railroad, it had been macadamized at the center of the driveway; at this point and for some distance to the east and west of it, the roadway was graded and improved for travel, to a width varying from thirty to thirty-four feet. Along about where this accident occurred, the railroad was laid a little to the northward of the center of the street, so that the width for vehicles was slightly less upon the north side of the railroad track than it was upon the south side. For some distance east and also west of this point, the width appears to have been from eleven feet six inches to fifteen feet between the north rail of the track and the portion that was sodded at the side of the road beyond where it was worked. There was no curb set except in front of a few premises, where the proprietors appear to have set curbs on their own account; so that the roadway, designed for vehicles varied between eleven feet six inehs and perhaps fifteen feet.

This particular pole was set either twelve feet'four inches or twelve feet nine inches (witnesses differing about this), from the north line of the railroad; in other words, there was that distance between the north edge of the north rail and the south side of the pole; and the pole had some'inclination toward the south — just how much, we are unable to'determine from the evidence.

The roadway was in good condition and practically level, though it was somewhat crowning, having an elevation of six inches more at the center than at the north edge of the worked part of the road.

The evidence shows that while the plaintiff was traveling eastward on this occasion, her brother driving, they met a city car perhaps sixty or seventy feet west of this pole, and the plaintiff and those with her being upon the north side of the track, as the car was passing toward the west, the horse shied away from the car.toward the left and some part of the buggy came in contact with this pole, so that the top and seat of the buggy were detached from the box and fell over upon the ground, and all the occupants of the buggy were thrown out, some of them appearing to go against the pole, some falling to the south and east of the pole, and the plaintiff and her oldest child falling to the west and north of the pole.

They had passed the ears on other occasions on this same trip and the horse had shown no fright or disposition to shy away from the car; but on this occasion, as the plaintiff testifies, the horse shied to such an extent' that when they were a short distance from that pole — perhaps within ten or twelve feet of it — the horse appeared to be going direedy toward the pole, so that the plaintiff was fearful that the horse itself would come in contact with the pole; then the horse appeal's to have taken a turn, whether guided by the lines or by its own motion, toward the center of the road, toward the traveled track, and then the plaintiff became fearful that the buggy would strike the pole, as it did.

There is a dispute, and it is not certain from the. evidence how it should be settled, whether the buggy top was the part of the 'buggy which first came in contact with the pole, or whether it was some part of the running gear of the buggy. The evidence tends to show, and we think does show very clearly, that this pole did not have enough of an inclination toward the south so that a buggy going along in the ordinary way — no matter bow closely it came to the pole, if'the hubs of the buggy should miss, would be obstructed or caught in its top by the overhanging; pole.

The testimony on behalf of the plaintiff tends to show that the pole had a lean in a height of thirty feet, of about forty inches, and the evidence shows clearly that in order to have enough of a lean so that the pole would miss the hub of the buggy standing upright and yet strike its top", it must have had a lean of about seven feet; nevertheless, it does not appear but that the buggy, swinging somewhat from side to side, as buggies will swing in motion, and especially a buggy loaded somewhat heavier upon the north side than upon the south, as this buggy may have been', and one which is being carried along swiftly by a frightened horse, and one which has taken a northwesterly direction and then is suddenly turned in a southeasterly direction, might not so lurch and careen as that the top of the buggy would catch a pole located and having the lean that this pole had, or even a pole standing perpendicularly; so that we are unable to say from the evidence with certainty that the top of the buggy was not the first part of the buggy that came in contact with the pole. The circumstance of the buggy having become detached from the horse at the pole, and the top thereof having been thrown from the buggy toward the north, rather than dragged from the buggy, which would have a tendency to push it toward the west and south-ward, tends very strongly to show that the front part of the running gear of the buggy first came in contact with the pole; and that part would come in contact with the pole before the top had gone far enough to the eastward to strike the pole.

There is some difference in the testimony of witnesses as to the location of the line between the worked part and the sodded part of the street — sometimes described as the curb line, though there was no curb set at that point. Some of the witnesses testify that this line -was near the south side of the pole; others, that it came near the center of the pole, and that it was curved around the pole toward the north in order to let the -water flow by the pole. Others testify that it was a comparatively straight line, and that it ran anywhere from six to «seven inches to the north of the pole. At this point, the difference in- elevation between the worked part of the street and the sodded part where the trees stood, beyond what has been mentioned as the curb line, was inconsiderable— but a few inches.

As I have already said, this pole stood, according to the testimony, at least twelve feet four inches from the north rail. The extreme width of the buggy appears to have been five feet and eight inches to the ends of the hubs. This allowed what may be termed leeway between the railroad and the pole of nearly seven feet. This would be reduced somewhat, of course, if a car were passing the pole at the same time a buggy were passing. On this occasion, however, the buggy and the car passed at a point some distance to the west of this pole. I think it is fair to say that the great weight of the evidence tends tó show that the horse shied just as the car was passing it and that this was at a point at the west side of the vacant lot at the west of Mr. King’s premises, or at the line between the vacant lot and the Meyers property which was fifty or sixty feet at least, west of the pole.

The collision occurred after the horse had traversed a distance of perhaps fifty or -sixty feet after it shied; when the horse was swinging back to the south and into the road, as described by the plaintiff and her witnesses, it was not traveling toward the car, but the car- had passed that point, and there was open to them over twelve feet between the pole and the north rail of the track. But even with the car at the same point, there would be in the neighborhood of five feet of leeway between the car on the one side and the pole on the other, over the width of the buggy.

The plaintiff testifies that the horse was traveling along the middle of the roadway lying between the railroad track and the curb line when it shied. The traveled track appeared to he in about that location and not very close to the pole.

It is quite evident that this accident would not have happened — • this buggy would not have come in contact with the pole — but for the shying of the horse, and that is so whether the running gears of the buggy or the top of the buggy first struck the pole.

The case was submitted to the jury by the trial judge in such a way as that they might find liability upon the part of the city, even though the pole stood perpendicular, or with so little lean toward the south that the lean of the pole would not add to the danger of its location at that point; in other words, s6 that there might be a finding against the city simply upon the ground that the pole was located so far. into the street and that it was such an obstruction to travel as to make it a nuisance and malte the city liable for an accident like this.

- A majority of this court are of the opinion that this was wrong; ye are of the opinion, as I have already stated, that a verdict cannot be sustained upon the theory that it was the lean of the pole that caused the accident; and we are further of the opinion that a finding and a verdict based thereon that the location of the pole and permitting its maintenance at that point was negligence upon the part of the city, was not sustained by the evidence; for, while this matter is to be committed in the first instance to the council, and then in case of difference, to a jury and trial court, ultimately, when it is submitted to a reviewing-court upon the question of the weight of the evidence, it becomes necessary for that court to consider and decide that question, and, in the light of all the evidence as to the width of the roadway at that point, the location of the pole and the way the accident happened, that it was upon a street of this character where the widths provided for vehicles ranged between eleven feet six inches and fifteen feet, and where there was no regular and well defined'curb line, where it was away from the center of the city, at a place where there was not much travel or many teams passing, and where there is an absence of evidence that there was. anything about the curb line or about the situation that misled the parties who were driving, so'that they deviated from the track, or took a. course which brought them unexpectedly against the pole, we conclude that the evidence does not support a finding that the city was guilty óf negligence in so locating and maintaining the pole. It all happened in daylight, the way was open to their view, and it was not because of their being misled in their course by the situation and surroundings, but because of the shying of the horse that the collision and the accident occurred.

Mr. Young. Does the court mean to say that if the matter had been submitted upon the leaning of the pole and the jury had found for the plaintiff that that would not-have been sustained by the evidence?

Court. Yes, sir, we think the evidence does not show that degree of leaning of the pole that would support a verdict based on that condition.

On behalf of the city, counsel asked the court to charge the jury before argument as follows:

“A city has the right to determine the width of its streets which shall be devoted to lawful public uses; it may devote a part of the width to sidewalks, a part to lawns and shade trees, a part to necessary poles for public lighting, a part to drainage, gutters and ditches, and a part to vehicles and street cars. All these are lawful uses. If the part designed for drainage be partially devoted to poles for lighting, this is not an unlawful use or a negligent act in itself, and unless such poles so overhang the part of the street ordinarily used for travel* or so far project into it as to render them dangerous to persons using said streets for ordinary travel, it is not a negligent act to permit such poles to so remain in the ditch or gutter.”

We think this.should have been given whether the place, where this pole was set was distinctly a ditch or gutter or not, because there was evidence tending to show it was not a part of the road designed for the tracking of vehicles, or a part of the graded portion which would natrirally be devoted to and used for travel, but was a part designed and used for the carrying away of the water falling upon the street.

In view of the fact that there was evidence tending to show that (and that was a part of the claim of the city with respect to that part of the road), we think that charge should have been given, or that the substance thereof should have been given in some form to the jury; but we do not find that it was given even in substance by the trial judge.

In the course of his charge to the jury, the court said this, which we think, so far as it goes, is nearly correct, though it is not complete in that it does not cover the point involved in the request just considered:

“In determining, therefore, from the evidence in this'case, whether or not the pole referred to in the petition was so placed or maintained as to be dangerous or a nuisance, you will consider the ordinary width of vehicles in general use at that place, the width of the,street, the distance from this pole to the railroad track, the width of the roadway left' for use by travelers with vehicles, the condition and grade of the street, "the location, size and condition of the pole; whether it was perpendicular or inclined, and if inclined, how much; whether it was or was not inside the traveled part of the street; whether it did or did not interfere with the ordinary use of the street by travelers with ordinary vehicles known to be in common use at the time, and if so, to what extent; whether there was or was not any curb at that place; whether there was or was not any sidewalk along this street at that place; whether the railroad tracks were at or above grade; whether the said tracks were or were not in such condition as to be reasonably fit for the passage of vehicles drawn by horses across them; what, if any, space existed in the street to the north of the line of poles, and whether the same was or was not reasonably suitable for horses with ordinary vehicles to be driven over; the distance of that place from the business portion of the city, the extent of travel at that place; whether or not there were trees growing' on or along the highway in that locality, their number, if any, and location and character — you will consider all these matters and all other facts and circumstances in evidence throwing -light on-the question, and say from them all, whether this pole was or was not dangerous, or a nuisance.
“I have said to you in substance that it was the duty of the city to use ordinary care to s.ee that the company erecting and maintaining this pole did not by its negligence make this street unsafe for travelers thereon who were themselves using ordinary care and prudence. The eity is held to the use of ordinary care in exercising a general supervisory duty. The eity is not an insurer of the safe condition of its streets, but is only held to the exercise of ordinary care over them. If the pole was in the street and dangerous, or a nuisance, in the manner alleged in the petition, and under the rules I give you, and if the horse uas of ordinary gentleness and became frightened at an electric ear and shied and got beyond the control of the driver and ran away and the buggy came in contact with the pole whereby the plaintiff was injured as alleged, and if the defendant through its officers charged with the care of its streets had actual knowledge of such condition for a reasonably sufficient time to have the condition remedied; or, if in the exercise of ordinary care the city'should have had such knowledge for such time and failed to have the condition remedied, the defendant was negligent and became liable for any injuries to the plaintiff, directly resulting therefrom, provided the injury would not have been sustained but for such pole so .erected. If, however, the pole was not dangerous nor a nuisance, then under the circumstances stated, the defendant would not be liable.”

We think that should be qualified to this extent:

The city is bound to use reasonable care to keep its streets in repair and free from nuisance; but as we understand the law, it is only bound to keep them in such condition as to make them safe for ordinary travel; not safe for extraordinary emergencies; it is not bound to keep the streets so smooth and so level and so well paved as that persons may speed horses upon them; may run races with their horses upon the streets with entire safety; it need not have the streets so smooth and level and wide as to make such a course safe; nor need they be made so wide and so smooth and level and free from ruts or obstructions or hindrances that they would be safe for one riding behind a runaway horse or a horse beyond control. Neither is the city required to make the streets so wide, so smooth and level and free from nuisance or obstructions that an unmanageable horse or a horse shying' and leaving the roadway or the track, refusing to be guided by its master, could be driven thereon with safety; or so that, if the horse should shy and leave its proper course the road would be safe for such an emergency. We think it should be made safe for ordinary travel, and for horses that are broken for ordinary travel, and that leaving such a space as was left here between the pole and the track, or between the pole and a car, was as much as could be required of the city under the law.'

A municipality may allow street ears to be run upon its streets, and people who drive horses that will shy at street cars, where they are left ample room for safe and well-broken horses to travel must take the risk themselves, and they cannot hold the city responsible for an accident occurring through the shying of their horses at street cars where they voluntarily drive past them and where they are in operation.

Mr. Young. Supposing it is shown that a horse is ordinarily gentle and not .accustomed to shy, but for some reason on some special occasion, should shy — a horse that perhaps was never known to shy before ?

Court. That goes to the question of contributory negligence. If a horse was never known to shy before and shied on a single occasion, it could not be said that the party riding behind the horse was guilty of contributory negligence; but we do not place this decision upon the ground of contributory negligence, but hpon the theory that the city was not guilty of negligence; that the city was not bound in the first instance to make provision for shying horses; otherwise there would be no limit — no reasonable limit — to the width that might be required of the city; for while some horses might shy a little,-going out a few feet, others might shy and go out a great deal further; and for horses that shy or act otherwise so as to become unmanageable and not keep the roadway, there is no reasonable limit of width that could be fixed for the street to insure safety. For the reasons expressed, the judgment of the court below must be reversed.

If it were in our power to make a special finding of fact we would gladly do it so that a retrial might be avoided; but we think the precise question involved cannot be presented to the Supreme Court without a special finding of fact by a jury, and the case will be remanded in order that such finding may be obtained if either party should desire it.

Haynes and Wildman, JJ., concur.


text:
    ERROR.
    [Cuyahoga (8th) Ciicuit Court,
    November 26, 1906.]
    'Marvin, Winch and Henry, JJ.
    Jones Law v. Johnson.
    1, Necessity of Transcript of Final Record in Error Proceedings.
    If the functions conferred upon the mayor and judge by the Jones law (98 O. L. 68; Rev. Stat. 4364-30a et seq.; Lan. 7283a et seq.), are' of a judicial nature, then the proceedings in error provided for in Sec. 12 of said law come-within the requirements óf Rev. Stat. 6716 (Lan. 10308), and a transcript of the final record, or of the docket or journal entries, must be filed with the petition in error. If said functions are of. a ministerial nature, then said Sec. 12 of the Jones law is unconstitutional, being an attempt to confer original jurisdiction upon the circuit court in excess of that limited by Art. 12, Sec. 6 of the constitution.
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1209-1221. — Ed.]

      2. Jurisdiction of Circuit Court on Error Proceedings.
    Where a motion for leave to file a petition in error and a petition in error are both filed with the clerk of the circuit court within the fifteen days 1 limited by Sec. 12 of the Jones law, but during vacation: Quaere, can1 the circuit court, when thereafter duly convened in session, grant said! motion and entertain consideration of said petition in error?
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 65-72» — Ed.]
    [Syllabus by the coui>t]
    Error.
    W. B. Wheeler, for the motions.
    G. W. Shaw, C. W. Collister, Hobday & Quigley, Blandin, Rice & Ginn and F. D. Morrow, contra.
   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, 98 O. L. 68 (Rev. Stat. 4364-30a et seq.; Lan. 7283a et seq’).

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 Rev. Stat. 6716 (Lan. 10308).

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 cast in the residence district at the last regular municipal election and the mayor shall make a 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 any 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 0£ # * *

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 cannot 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 statute, but during vacation, they must be stricken from the files.

In each of these eases plaintiffs in error did all that this statute requires of them to be done. Each first 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 the 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 eases, in any event.

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 Rev. Stat. 6716 (Lan. 10308), 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, title 4, part 3 of the Revised Statutes, and as Rev. Stat. 6716 (Lan. 10308), 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. 489, 490; Stewart v. Williams, 15 Ohio St. 484; Barton v. Bank, 8 Circ. Dec. 27 (14 R. 450).

If the proceedings before the mayor or judge were of a ministerial nature — if said officers exercised nonjudieial functions under the Jones law, — then said Sec. 12 of said law is in contravention of Sec. 6, Art. 4 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. Rep. 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.


text:
    PRINCIPAL AND AGENT.
    [Cuyahoga (8th) Circuit Court,
    November 12, 1906.]
    Marvin, Winch and Henry, JJ.
    Charles Ettinger v. Albert J. Weatherhead.
    1. An Agent to 'Sell Land Cannot Contract to Sell Same.
    A real estate broker, authorized to sell, has no implied authority to execute a contract of sale, binding upon his principal.
    [For other cases in point, see 7 Cyc. Dig., “Principal and Agent,” §§ 181-232 — Ed.]
    2. Ratification of Unauthorized Acts of Agent.
    Where the owner of lands takes no steps to repudiate a contract to convey the same made by an unauthorized agent, but accepts the benefits of such, contract, he thereby ratifies the contract and is liable to the vendee for its breach.
    [For other cases in point, see 7 Cyc. Dig., “Principal and Agent,” §§ 463-484. — Ed.]
    [Proofs of this decision and syllabus were submitted to Judge Winch and! corrected. — Ed.]
    Error to Cuyahoga common pleas court. ■
    Foran, McTighe, Pearson & Marvin, for plaintiff in error.
    Kline, Tolies & Goff, for defendant in error.
   WINCH, J.

This was an action to recover damages for breach of a contract to convey lands.

It appears that the defendant directed a real estate broker to sell said lands and the broker having found the plaintiff as a purchaser, entered into a written contract with the plaintiff for the conveyance of said lands to him, specifying the terms and agreeing that deed should be delivered within eight days. This contract the broker signed in behalf of the defendant and at once delivered a copy thereof to the defendant, retaining $50 which the purchaser paid when the contract was- executed.

At tbe close of plaintiff’s evidence the trial judge directed a verdict for the defendant, holding that a real estate agent authorized to sell has no authority to execute a contract of sale binding upon his principal. That such is the law is abundantly established, both upon principle and authority. Coleman v. Garrigues, 18 Barb. 60; Glentworth v. Luther, 21 Barb. 145; Duffy v. Hobson, 40 Cal. 240 [6 Am. Rep. 617]; Carstens v. McReavy, 1 Wash. 359 [25 Pac. Rep. 471]; Brandrup v. Britten, 11 N. Dak. 376 [92 N. W. Rep. 453] ; Halsey v. Monteiro, 92 Va. 581 [24 S. E. Rep. 258].

In this ease, however, the plaintiff introduced evidence tending to, prove that the defendant ratified the contract the broker had made for him. He took no prompt steps to repudiate the contract; he failed to disavow the agent’s authority and never directed the agent to pay back the purchaser’s $50 which had been paid down to bind the bargain, nor did he ever himself offer to refund said $50 to the purchaser.

Whether, under all the circumstances, this unauthorized act of the agent was ratified by his principal, should have been submitted to the jury.

It was also error to exclude from evidence the written contract signed by the agent.

For the two errors mentioned, the judgment is reversed and the cause remanded for a new trial.

Marvin and Henry, JJ., concur.