text:
    A CLAIM FOR. RENT IS A CLAIM FOR NECESSARIES.
    Circuit Court of Cuyahoga County.
    T. H. Shipman v. J. W. Stone.

    Decided, March 11, 1907.

      Attachment — Where Rent a Necessity.

    Rent due under a contract of lease of apartments as a place of residence, is a claim for necessaries, even though the tenant surrenders the premises before the beginning of the final month and the landlord re-rents the premises for a portion of that month.

      L. B. Wrn-e, for plaintiff in error.

      Howland ¡c& Niman, contra.

       Affirmed without opinion, Shipman v. Stone, 80 Ohio State, 715.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

This is a proceeding to reverse an order of the Common Pleas Court of Cuyahoga County, overruling a motion to discharge an attachment issued by a justice of the peace on a claim for necessaries. The agreed statement of facts, contained in the bill of exceptions, advises us that:

“On February 1, 1906, the plaintiff by his agent H. R. Crów, entered into a written lease with the defendant, and agreed to rent to him suite No. five (5) in the ‘Helberta’ apartment house, as a place of residence for himself and family, for the term of six months for the sum of one hundred and thirty-two ($132) dollars, which sum was to be paid by the defendant, in installments of twenty-two ($22) dollars a month, on the first of each and every month in advance.
“The defendant is a resident of the state of Ohio, and a married man, and the head of a family and its support, and the wages, of which ten per cent, is sought to be attached, were earned during the month ending August 18, 1906, and are necessary for the support of himself and his family, and he claims the same as exempt from execution. He has no homestead.
“The defendant continued to occupy the premises until the 18th day of June, 1906, at which time the defendant moved out of the premises, and at the time of the moving he gave two notes to the plaintiff, one of twenty-two dollars securing the June rent, and the other twenty-two dollars securing the July rent. The first note for the June rent was paid at maturity. The defendant refused to pay the second note! The lease expired on July 31, 1906-.
1 ‘ The plaintiff without any authority from the defendant, proceeded to rent the premises after they were vacated, to a new tenant. This was done July 1, 1906, but said new tenant did not move in until the 9th day of July, for the rent had already been paid by him for the month of July, but all the money received by the plaintiff from the new tenant for July was seven dollars and fifty ($7.50) cents, he being allowed by plaintiff to occupy the premises during the entire month of July if he saw fit, as an inducement to rent the said premises. Suit was brought by the plaintiff to collect fourteen dollars and fifty ($14.50) cents, being the difference between what the defendant should have paid and what the new tenant actually paid for the remainder of the term of six months. The plaintiff had no other opportunities to rent the premises after they were vacated by defendant. ’ ’

In the case of Smith v. Getz, decided by this court on March 15, 1904, we held:

“A month’s rent for a dwelling-house occupied by a man and bis family is a claim for necessaries, and as such ground for attachment, as provided in Section 552, Revised Statutes, and does not lose its character as a., claim for necessaries, by the tenant moving out during the month and renting and occupying another house.”

Counsel, for plaintiff in error most ingeniously distinguishes the Smith case from the case at bar, as follows:

“In the case of Smith v. Getz, can anything be found in the opinion of the court that decided that when the dwelling is re-rented to a new tenant, that during the time it is occupied by the new tenant, it is a necessary within the meaning of the statute to the old tenant? Can it loe said that during the month of July it was a nepessary both to the new tenant and the plaintiff in error? On the contrary, the court uses the expression 'when a reasonable amount of necessaries are furnished, ’ not contracted to be furnished. It is the law of sales in Ohio, that upon a failure of the vendee to receive the goods from the vendor, he has two remedies, either to keep the goods and sue for the difference in the price or deliver the goods to the vendee and sue for the contract price; no one has ever thought of bringing an attachment in this kind of a case. If the defendant in error is endeavoring to make the plaintiff in error pay for necessaries that never were furnished, but afterwards soid at a loss, the defendant in error’s remedy is by a suit for damages for the loss sustained.”

The trouble with this suggestion is that it assumes that the action brought by the defendant in error in the justice court was for damages for breach of the lease contract, whereas it appears to he an action on the contract for rent.

The affidavit alleges that the action is brought “for rent of a suite' of rooms. ’ ’ The agreed statement of facts bears out the claim. The fact that the tenant gave notes for the unexpired term of the lease shows that he did not consider the contract rescinded. The landlord’s renting to another for a part of the unexpired term of itself raises no conclusive implication that he considered the contract rescinded. To hold a tenant who abandons possession of the premises responsible for the rent for the balance of his term, the landlord is not bound to let the premises remain idle.

It is the landlord’s moral duty, if not his legal duty, to ease the tenant by reletting for the best rent he can get, and his so doing does not of itself work a surrender of the lease.

That there may a surrender of the lease, both parties must agree to it. See eases cited in 32 American Digest, Century Edition, 871.

Considering as we do. that the action here brought was for rent under the contract of lease, and not for damages for breach of the lease, it follows, in consonance with our former ruling, that the claim is for necessaries within the purview of the statute, and the judgment is affirmed.


source: Caselaw Access Project

author: Winch, J.; Henry, J., and Marvin, J.,

license: Public Domain

text:
    JUDGMENT ON THE PLEADINGS IN AN ACTION ON A NOTE.
    Circuit Court of Cuyahoga County.
    Noah Ellen v. S. F. Thrasher.
    Decided, March 18, 1907.

      Pleading and Practice — An Answer Denying Any Consideration for cl Note Upon Which Action is Brought in the Short Form Requires a Reply.

    Where a petition filed by the payee declares upon a promissory note in the short form and the answer avers that the note was obtained without any consideration whatsoever, in the absence of any reply by plaintiff the defendant is entitled to a judgment on the pleadings.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was a suit upon a promissory note brought by Thrasher, the payee, against Ellen, the maker. The petition declared upon the note in the short form, showed that partial payment had been made upon the note, and prayed judgment for the balance and interest. The answer admitted the making and delivering of the note and payment of part of it, but alleged that “said note was given to and obtained by’the plaintiff without any consideration whatsoever.” There was no reply to this answer. Upon the trial, before the introduction of any evidence, the defendant moved for judgment on the pleadings. This motion was overruled, the defendant excepted and the case proceeded over his objection, ending in verdict for the plaintiff. The case is here on error, and while many reasons are assigned why the judgment should be reversed, we find it unnecessary to consider any of them except the overruling of the defendant’s motion for judgment on the pleadings.

While it has been said that a petition declaring upon a promissory note in the short form authorized by the statute by implication alleges that the instrument is upon consideration, it may, perhaps, be more accurate to say that the statute authorizes the payee of a promissory note to sue upon it in that form without alleging consideration; in other words, that the statute dispenses with an allegation as to consideration.

On the other hand, it has been repeatedly held that want of consideration can not be shown under a general denial, but must be specially pleaded in the answer. Such being the case, we conclude that it is “new matter” within the purview of Section 5078, Revised Statutes, requiring a reply, and a material allegation, as defined in Section 5082.

Section 5081 says:

“Every material allegation of new matter in the answer not controverted by the reply, shall for the purposes of the action, be taken as true.”

It follows that the defendant below was entitled to judgment on the pleadings, because there was no reply to his answer. See Dalrymple v. Wyker, 60 O. S., 108.

In this view of the case, what occurred after the overruling of the defendant’s motion for judgment on the pleadings is immaterial, and for that reason we pay no attention to the other errors alleged to have occurred at the trial.

Judgment affirmed.


text:
    MUNICIPAL BONDS SUBJECT TO THE LONGWORTH ACT.
    Circuit Court of Cuyahoga County.
    City of Cleveland v. City of Cleveland.

    Decided, March 18, 1907.

      Municipal Corporations — Bonds.
    Bonds of municipal corporations issued to abolish grade crossings under authority of 95 O. L., 356, and bonds to pay the municipality’s portion of street and sewer improvements, are both subject to the provisions of the Longworth Act. Section 2835, Revised Statutes.

      Afflrmed without opinion, City of Cleveland v. City of Cleveland, 76 Ohio State, 594.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

We have given this case such attention as its importance demands, but our impressions at the hearing have been confirmed by an examination of the statutes we are asked to construe, and we hold that bonds issued by a municipality pursuant to the act to abolish grade crossings passed May 2, 1902 (95 O. L., 356), and bonds issued for the municipality’s portion of street and sewer improvements, where the residue of the cost thereof is assessed upon abutting or benefited property (Section 1536-213, Revised Statutes) are both subject to the requirements of the Long-worth act, so-called, Section 2835, Revised Statutes.

These statutes have been so critically and exhaustively examined in the opinions cited to us, that there is no need of further opinion by this court.

The demurrer to the petition is overruled, and if defendants do not desire to plead further judgment will be entered as prayed for in the petition.


text:
    ACTION BASED ON DANGEROUS PLACE TO WORK.
    Circuit Court of Cuyahoga County.
    The Cleveland Steel Castings Company v. Antoni Lewandowski.

    Decided, March 25, 1907.

      Master ancl Servant — Negligence—Dangerous Condition — Knóioledge.
    Where a servant’s action for damages for injuries is predicated upon the dangerous condition of the place where he was working, he can not maintain his action without introducing some evidence tending to prove that the master had knowledge of the condition and that he did not.

       Affirmed without opinion, Lewandowski v. Cleveland Steel Castings Co., 80 Ohio State, 704.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

Lewandowski was employed by tbe castings company as a' molder and was at work in its foundry on the night of January 24, 1905, when a large pile of flasks or forms, weighing about two hundred pounds each, near which he was working, toppled over and one of tbe flasks fell upon his leg and broke it. He brought his action against the company claiming that his injury, was due to its negligence, and alleging that the foreman of the company had directed the flasks to be placed in his vicinity and had carelessly and negligently ordered them to be placed on a thick layer of sand, several feet in depth, which was wholly insecure and unsafe, in such manner as to render them liable to topple over and injure him,; that by reason of the weight of said forms the sand was caused to give away beneath them; that he had no knowledge or notice of the insecure and unsafe condition of the layer of sand upon which the forms rested, or that they were liable to topple over upon him. The petition also shows that Lewandowski had been in the employ of the company, as a molder, for several months prior to the accident.

At the trial, upon the close of plaintiff’s evidence, the defendant moved that a verdict be directed in its favor.

This motion being overruled, the defendant introduced no further evidence and the case went to the jury, which brought in a verdict for the plaintiff in the sum of $1,500. Motion for a new trial being overruled,-the ease is here on error, with bill of exceptions showing all the evidence, the sole allegation of error relied upon being that the verdict was not warranted by the evidence.

We find this claim well made.

While the plaintiff below, by his petition, brought himself within the rule laid down in the Norman case, 49 O. S., 598, he failed to prove that he had no knowledge of the insecure manner in which the flasks were piled, and he failed to show that having such knowledge, he informed his master, and continued in its employment, upon a promise, express or implied, to remedy the manner in which the flasks were piled.

This is not the full extent of what Lewandowski failed to show. There is no evidence in the bill of exceptions that the flasks were piled this night under any orders of the foreman, that they were piled insecurely; that the company knew that they were piled insecurely; or that Lewandowski did not know they were so piled.

On the other hand, the evidence shows that the flasks were piled this night by his fellow employes, without any special orders from the foreman, in the manner they had always been piled; the plaintiff was working so near to them, that, skilled workman as he was, he must have known just how they were piled; the objects were large and the pile open to his observation. The nature of the sand foundation was as well known to the plaintiff as to anybody, and further, he failed to show that this sand foundation was insecure.

The plaintiff’s own witnesses suggest another more probable cause for the accident and one which would not render the company liable. It appears that this molder’s own helper dug down in the sand close to the pile, probably for the very purpose of causing the flasks to slide down so that he would not have to lift them or carry them so far, and that this act of his helper undermined the pile and caused it to fall. Such being the conflicting nature of the evidence, under the rule laid down ’in the Andrews case, 58 O. S., 426, the matter should not have been submitted to the jury for it to guess upon. Because the verdict is not sustained by the evidence and for error in overruling the defendant’s motion to direct a verdict in its favor, the judgment is reversed.


text:
    NEGLIGENCE IN DRIVING ALONG STREET RAILWAY TRACK.
    Circuit Court of Cuyahoga County.
    Thomas G. Green v. The Northern Ohio Traction & Light Co.
    Decided, April 15, 1907.

      Street Railways — Contributory Negligence.

    One who drives behind a car upon one track of a street railway and in . front of an approaching car upon the other track, is guilty of contributory negligence.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Following our ruling in the case of The Cleveland Electric Railway Co. v. Wadsworth, 1 C.C.(N.S.), 488, this judgment must be affirmed.

We are unable to distinguish the case of one driving behind a passing car onto the next track on Avhich a ear is coming from the opposite direction, Avithout taking any precaution for his oaa'u safety, from that of a pedestrian who does the same thing. The statement of the plaintiff that he looked to see if a ear was coming, avails him nothing. He could not see through the passing car, and he knew it. The time to look is after the temporary obstruction has passed sufficiently so that there may be a view of the next track. .

Nor does the case involve the relative rights of street ears and pedestrians in the public streets. It may be conceded that the defendant was negligent in operating its car at too high a rate of speed, and in sounding no warning -of its approach. But the trial judge directed a verdict in its favor because the plaintiff showed himself guilty of contributory negligence. There was no error in this, and the judgment is affirmed.


text:
    WIFE HELD ON HUSBAND’SIACCOUNT FOR GOODS.
    Circuit Court of Lorain County.
    Helena Klamut v. The Cleveland Provision Company.

    Decided, May 1, 1907.

      Contract — Acceptance of. Offer by Silence.

    Where a party who had been extending credit to a dealer tells him and his wife in the presence of each other that in the future no goods will be supplied to them except for cash or upon their joint account, and the wife remains silent, both then and later when goods were delivered and bills sent to her and her husband charging them jointly: Held, that under the circumstances her silence amounted to an acceptance of the offer to sell upon the joint account of herself and husband.

      Ingersoll, Stetson & Wilcox, for plaintiff in error.

      Thompson, Glitch c& Cinniger, contra.

       Affirmed without opinion, Rice, Trustee, v. Klamut et al, 81 Ohio State, 566.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

The Cleveland Provision Company brought its action for the balance due on a joint account for meat sold and delivered to Peter Klamut and Helena Klamut, husband and wife, between July 15 and July 29, 1904.

The husband pleaded his discharge in bankruptcy, and a verdict in his favor was directed. The wife claimed that the husband was solely liable on the account, but the jury found against her.

The question of importance before us is, whether silence amounts to assent, i. e., whether a contract is proved by showing a proposition made by the plaintiff to furnish goods upon certain terms of credit, silence on the part of the defendant, and the subsequent furnishing of goods- by the plaintiff. The answer to this question depends upon the facts of the particular case.

It appears that Peter Klanrnt was running a meat market and pool room and saloon in connecting storerooms, and also that he and his wife lived in the same premises, the wife helping in the saloon, at times, but never in the meat market.

The provision company had been furnishing meat to Peter for •which he paid cash, until February, 1904, after which date he had credit, until July 15, after which date meat was furnished as before, but charged to the joint account of Peter and his wife.

On'the latter date, the agent of the provision company went to Peter and told him he wanted to see his wife. He found both behind the bar in the saloon. Peter said: “What do you want to see the Mrs. for ? ’ ’ Thereupon the agent made the following statement:

“I said we had heretofore extended a line of credit to Peter Klamut, and that I had received a letter that morning from our headquarters, stating that he had misrepresented to me the ownership of the property; that the commercial report showed the property belonged to his wife, and it was on his statement that he owned the property that I had opened an account with him in February, and I told him and Mrs. Klamut very distinctly that under the situation his account would have to be closed after the next day, which was Saturday, and that if any further goods was purchased from the Cleveland Provision Company that they would either have to pay cash as they had done previous to February second, 1904, or they would have to be charged jointly to Helena and Peter Klamut.
‘ ‘ Q. And where was Mrs. Klamut at that time ? A. She was standing right along side of her husband.
“Q. And you say this took place when? A. Friday afternoon, July 15. I received the letter in the morning and I went to them right after dinner. ’ ’

We think the jury was warranted in finding that'the wife heard and understood all that the agent said. It was also shown that some time previous, the husband had transferred all his real property to his wife.

For the ensuing two weeks meat was sent the butcher’s shop as before, a bill or statement accompanying each delivery.

Five of these bills were made out against Peter Mamut, two against Mrs. Peter Mamut and eight against Helena and Peter Mamut. The defendant-produced these bills at the trial and we think the jury was warranted in finding that the wife knew about them at the time.

Two weekly statements were also mailed in envelopes addressed to the husband, one dated July 19, and the other July 23, both, made out against Helena and Peter Mamut.

We think the jury was warranted in finding that the wife knew all about these bills at the time they were received by her husband. Indeed, she had the bill of July 23 in her hands when the agent called on her, August first, for payment, and on that day she paid the agent three hundred dollars, which he credited on said bill and handed it back to her. The next day her husband filed his petition in bankruptcy. Some ten days later when the agent 'called upon her for payment of the balance of the bill, the wife said, “she wouldn’t pay any more money into the meat business, and Peter could do as he was a mind to. ’ ’

We are not unmindful that the wife denied what we have said the jury was warranted in finding, but they had a right to disbelieve her.

The case was put to the jury in two aspects: first, was the meat furnished the husband upon the wife’s antecedent and original promise to pay if the husband did not, and second, was the meat furnished both, upon the joint undertaking of both to pay therefor. Special findings were requested by defendant involving both theories, and all the questions were answered by the jury, but we find no such inconsistencies in these answers as to invalidate the general verdict, nor do we find any error in the charge.

The sole question remaining is whether the silence of the wife when the agent made his proposition on July 15, and her conduct after that date, made her liable on this account1?

We have examined the authorities upon this question and believe the best exposition of the law is to be found in a ease cited by plaintiff in error, Royal Ins. Co. v. Beatly, 119 Pa. State, 6, the syllabus of which is as follows:

“Where in an action upon a contract the plaintiff’s case consists of the proof of a proposal, with the presumption of assent thereto, arising from the silence of the defendant, no legal inference of a contract can arise out of such silence, without evidence of a duty to speak on the part of the defendant, which was neglected, to the plaintiff’s harm.”

Mr. Justice Green, delivering the opinion of the court, calls attention to the difference between asking a question and receiving no .answer, and making a statement or assertion to which there is no reply.

Of the former class was the case cited. To the latter class we think this case belongs.

When the agent of the provision company told Mrs. Klamut that he would deliver no more meat unless she and her husband paid cash or she and her husband beeame jointly liable for it, under the circumstances of this case it was her duty to speak, and tell him not to send any more meat, if she did not desire to be charged for it. When the meat came with the invoice, she knew the provision company was looking for its payment from her. She then had the election to pay cash or have the goods charged to her and her husband jointly. She said nothing, but suffered other deliveries under the same circumstances. She knew the provision company was charging the meat to her and that deliveries would cease if she denied her liability. Every moral and legal obligation was upon her to speak and save the provision company from loss. The relation of husband and wife is so intimate in business matters as well as in other matters, and particularly so in this case, where the wife kept the meat bills behind the bar where she admits that she helped her husband, that we think her silence when the statement of their financial affairs as understood by the provision company, was made to her, coupled with a statement of what the company would do, should not absolve her from liability.

Her silence conceded the truth of said statements and also, in connection with her knowledge of the statements and invoices sent with the deliveries, amounted to assent to the proposition that they should be charged to her account, jointly with her husband, as they were.

Judgment affirmed.


text:
    RESTRICTIVE COVENANTS AS TO BUILDING.
    Circuit Court of Cuyahoga County.
    Fred and Louise Seyfried v. George Switzer.
    Decided, June 3, 1907.

      Covenants — Building Restrictions Not Enforceable Where Without Equity.

    Where plaintiff’s lot was sold to him without restrictive covenants, and defendant owns the next two lots, the deed for one of which contains restrictive covenants, which are not in the deed for the other, plaintiff can not enjoin defendant from building upon both lots though as to one lot the building will be a violation of the covenant in the deed.

      Ford, Snyder c& Tilden, for plaintiffs.

      W. H. Boyd, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This is an action in which the plaintiffs pray that the defendant be enjoined from building the southerly half of his apartment house within fifteen feet .of the sidewalk line.

Plaintiffs own lot 33 on the westerly side of Eaton street, and defendant owns lots 24 and 25, which are immediately south of plaintiff’s lot. C. C. Baldwin opened up and dedicated the subdivision of which these lots are part. He adopted no general scheme as to the property, but sold some lots with building restrictions and many more without. As to the three lots in question he first sold the middle lot, number 24, without any restrictions. He next sold lot 25 south of lot 24 inserting in the deed the building restriction mentioned. These two lots now belong to defendant. ' Thereafter he sold lot 23, north of lot 24, without restrictions in the deed, and this is plaintiff’s lot.

Plaintiffs claim that the restriction as to lot No. 25 was inserted by Baldwin for the benefit of his remaining land and that, being the subsequent grantees from Baldwin, it inures to their benefit.

We think plaintiffs have failed to prove their claim by any satisfactory evidence. It is not at all clear that the restriction as to lot 25 was inserted lor the benefit of lot 23, for Baldwin had previously parted with the title to lot 24 without restrictions.

Nor can we see that any benefit would follow to plaintiffs or any lot owner north of them, by enforcing the restriction as to lot 25, while none can be enforced as to lot 24, or, indeed, as to plaintiffs’ own lot. On the other hand, serious loss would result to defendant by granting the relief prayed for.

.Being without equity, the petition is dismissed.


author: Winci-i, J.; Henry, J., and Marvin, J.,

text:
    CONTRACT ENTIRE THOUGH GOODS WERE TO BE SHIPPED IN INSTALLMENTS.
    Circuit Court of Cuyahoga County.
    Herman B. Van Cleve v. Western Glass & Paint Co.

    Decided, June 15, 1906.

      Contracts — When Entire or Divisible — When Condition as to Time Waived.

    1. A contract for a gross amount of goods to be delivered within a certain time after specifications are received is an entire contract although the parties may contemplate shipping in installments.
    2. Where one party to a contract demands strict performance as to time, he must perform on his part, and a failure to do so operates as a waiver of the time provision.

       Affirmed without opinion, Western Glass & Paint Co. v. Van Cleve, 78 Ohio State, 427.

   Winci-i, J.; Henry, J., and Marvin, J.,

concur.

The plaintiff brought this action to recover damages for breach of contract between the parties for the sale and delivery of glass, and the plaintiff alleges that he sold the glass to the defendant, but that the latter refused to accept and pay for it. Certain letters are attached to the petition as exhibits and are said to contain the contract between the parties.

The defendant answered, admitting the offer of defendant to'sell, and that-the letters attached to the petition were written and received by the parties, but claiming a conditional acceptance, as exhibited by a telegram and letter of another date from defendant to plaintiff. This letter is attached to the answer as an exhibit. The condition claimed was that the glass was to be delivered during' the month of December, or within ninety days thereafter, and the defense is, that this condition was not complied with. A stipulation signed by the plaintiff and filed in the case, admitted the receipt by plaintiff of said telegram and letter of the defendant.

The cause coming on to be heard before the trial court, a jury was waived and thereupon the defendant objected to the introduction of any evidence under the petition.

The bill of exceptions shows that thereupon the court considered the pleadings and the several letters and telegram referred to and the stipulation as exhibiting the conceded facts in the case and construing the contract thereby shown, ruled with the defendant and dismissed the petition.

We think that the trial judge was warranted in disposing of the ease summarily, as he did, but that he came to a wrong conclusion as to the terms of the contract as shown by the conceded facts.

A short synopsis of facts is necessary, that the reasons for the conclusion we have arrived at may be made plain.

November 20, 1903, plaintiff wrote defendant, “would quote you 500 or 1000 boxes of window glass and not to exceed 1500 boxes, * # ' * you to name the definite quantity, specifications to be in at your convenience up to December 31st, and'shipment to be made within sixty to ninety days thereafter at the factory convenience. By the end oP December you should know just how complete or incomplete your stock is, and as we are taking advantage of the present conditions to book considerable business ahead, it will be no hardship to us if we know just.what we are to ship, and have the specifications to work to. ’ ’

Telegram from defendant to plaintiff .November 25, 1903:

“Will take 1000 boxes offer 20th. Want one car December shipment, sizes immediately,” followed by letter of the same date, eonfiimiing telegram and adding: “We have sizes in the mail on .the way now from one of our customers for a ear which, if satisfactory when received, we will forward to you. This car we would like to have shipped during December and the rest of it can forward at your leisure. We trust this arrangement will be satisfactory.”

Thus a contract was entered into between the parties, whereby plaintiff agreed to sell and defendant agreed to buy 1,000 boxes, about two carloads, of window glass. It will be noticed that defendant was to furnish specifications as to sizes, and upon receipt of same, plaintiff was to fill the order and could not do so until said specifications were received.

But this contract, we hold, was rescinded and a new contract entered into, by letter from defendant to plaintiff dated December 8, Í903, as follows:

“When we telegraphed you, we had an order for a car of glass to go west, and we were advised by wire that the sizes were in the mail. It seems they did not mail them until some time after, and they have not yet reached us. However, we will take one thousand boxes as per your offer, and presume that it makes no difference to you whether the sizes are furnished immediately or not.”

The construction to be put upon this contract is that plaintiff agreed to sell one thousand boxes of window glass to be shipped within ninety days after receipt of specifications from the defendant, and defendant agreed to receive and pay for one thousand boxes, if shipped within ninety days after it had furnished specifications therefor. It was an entire contract for one thousand boxes.

It is conceded that the defendant furnished specifications as follows: December 22, 1903, for 500 boxes, or one carload; January 1, 1904, for five boxes; January 5, 1904, for thirty-three boxes; January 17, 1904, for five boxes, being 543 boxes in all, which plaintiff did not undertake to ship until April 6, 1904, more than ninety days after December 31, 1903, and for that reason defendant refused to accept. Defendant has never furnished specifications for the remaining 457 boxes which it agreed to take.

Considering this contract an entire one, for one thousand boxes, plaintiff was under no obligation to ship any part thereof, 'until he received specifications for the entire lot. The fact that he did send forward about half of the order was gratuitous on his part, and does not affect the construction to be put upon the contract.

The defendant, by its letter of December 8, 1903, ordered one thousand boxes, as per your offer. That offer was to ship in ninety days after receipt of specifications: The condition in the defendant’s letter of November 25, 1903, that one carload should be shipped during December, was abandoned.

If we are right in our conclusion that this was an entire contract for one thousand boxes, it seems that it was the defendant’s delay in furnishing specifications which caused plaintiff’s delay in shipping, and that the defendant therefore may not allege delay in shipping as a defense for his refusal to accept and breach of contract.

The case of Dannot v. Fuller, 120 N. Y., 554, involved a building contract, the owner suing the contractor for delay and the contractor claiming that his delay was due to the owner’s fault, and the court said:

“Where one party to a contract demands a strict performance as to time, he must perform on his part the conditions requisite to enable the other party to perform his part and a failure to do so operates as a waiver of the time provision.”

This is a wholesome doctrine and was applied in the case of Supply Co. v. Cement Co., 4 C.C.(N.S.), 225, where the cement company agreed to sell 15,000 barrels of cement and to deliver the same from time to time during the season, as the supply company might require, payments to be made for each delivery within sixty days from date of each bill of lading. Some deliveries were made, but the suppty company not paying therefor as agreed, the cement company refused to make further deliveries until such payments were made. The court, Judge Mooney, now deceased, delivering the opinion held that the contract was an entire one, though of an installment nature, and cited the authorities on the proposition we turn this ease upon.

We think the court below erred in dismissing the petition, and for.that reason the judgment is reversed and the cause remanded for a new trial.


text:
    DITCH IMPROVEMENTS.
    Circuit Court of Cuyahoga County.
    Gerard J. Malle v. Smith and Babcock.
    Decided, January 14, 1907.

      Ditches — When Property Owner May Not Enjoin Construction of, or Óbtain Damages.

    Where county commissioners have followed the course prescribed by statutes in fixing a day for hearing applications for damages for land appropriated for or affected by a ditch improvement, a property owner who has failed to make claim for damages, is deemed to have waived them and can not enjoin the depositing of soil taken from the ditch upon his land when the work is being done in the usual manner.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was an action to enjoin the defendants from trespassing upon plaintiff’s farm, destroying his crops and depositing shale upon the soil of his farm, in the defendant’s operations in widening and deepening a county ditch running through the plaintiff’s land.

A temporary restraining order having been allowed upon the filing of the petition in the common pleas court, the defendants moved a dissolution of said order, and the same being granted upon affidavits showing that they were doing the work in the manner usual and customary in such operations, the case was brought here on error, for a review of said order.

The petition alleges that the defendants were doing the work complained of under a contract with the county commissioners, and as no attack is made upon the regularity of the proceedings of the commissioners, we must assume that they complied with the statutes in such ease made and provided, and look to said statutes'for a determination of the plaintiff’s rights in the premises.

Section 4447 authorizes the county commissioners to locate and construct, straighten, widen, alter, deepen, box or tile any ditch, drain or water-course within the county, when the same is'necessary to drain lands or conducive to the public health, convenience or welfare.

By Section 4452, if the commissioners decide upon a ditch improvement, they are required to “fix a day for the hearing of applications for any appropriation of land taken for said improvement, and damages the parties affected by said improvement, or any of them, may sustain thereby. ’ ’

Section 4460 provides that at any time on or before the day set for hearing, as provided in Section 4452, any person or corporation whose lands are taken, or affected in any way by such improvement, may make application to said commissioners, in writing, for compensation or damages, and a failure to make such application shall be deemed and held to be a waiver of all rights thereto.

The first paragraph of Section 4461 provides that, “the commissioners shall, upon actual view of the premises, fix and allow such compensation for lands appropriated as they may deem just, and equitable, and assess such damages as will in then' judgment accrue from the construction of the improvement, te each person or corporation making the application therefor, as provided in Section 4460,” and the last paragraph of said section provides, “that if any person or corporation aggrieved bj any final order or judgment of the commissioners shall at the hearing before them, or within such time as may be providec by law, file a written notice of an intention to appeal therefrom no further proceedings shall bé had, and no payments shall be made until said proceedings on appeal shall be finally disposee of and determined.”

Subsequent sections of the statutes regulate the appeal to the courts, which is thus provided.

From the petition and the affidavits filed, it appears that the threatened injury to his land which plaintiffs sought to enjoin, was that contemplated by these statutes, as accruing from the construction of the improvement, and we must assume that plaintiff was either compensated therefor, or waived all claim therefor, as provided in said statutes.

The claim made by counsel for plaintiff, that to so hold would be to permit a taking of his property for public purposes, without first compensating him in money, contrary to the Constitution, is not maintainable.

The provision for appeal to the courts above mentioned which includes trial by jury on his claim for damages,' brings the statu' tory proceedings within the Constitution, as was held in the case of Zimmerman v. Canfield, 42 Ohio State, 463.

If the plaintiff neglected to avail himself of his statutory remedy, his counsel can not now seek relief for him in equity.

The restraining order was properly dissolved, and the judgment is affirmed.


text:
    ACTION FOR. POSSESSION OF PROPERTY IN HANDS OF RECEIVER..
    Circuit Court of Cuyahoga County.
    Strass et al v. The Lambs Inn Co. et al.
    Decided, June 28, 1907.

      Appeal and Error — What Gases Appealable.

    A claim to recover property in the bands of a receiver, made and determined in an equitable action in which the receiver was appointed, is appealable.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff being a creditor of the defendant, the Lambs Tnn Company, brought his action in the Common Pleas Court of Cuyahoga County against said company, setting up his claim, alleging the insolvency of the corporation, and praying for judgment on his claim, and the appointment of a receiver for the corporation.

Said court appointed a receiver, as prayed for, who took possession of all the property of the corporation, including certain ranges and other cooking apparatus, which, including the things mentioned, had been sold to it by the Born Steel Range Co.

Thereupon the range company came into the case as a defendant and claimed title to the ranges and other personal property it had sold to the inn eompony. The receiver contested this claim, and the matter was heard 'by the court without a jury, and adjudicated in favor of the receiver.

Thereupon the range company appealed the matter to this court, and the receiver has filed a motion to dismiss the appeal on the ground that the ease made by thé range company is not an appealable one.

We overrule this motion. As statedby Judge Boynton in the ease of Olds v. Tucker, 35 Ohio State, 581, 584:

“No principle is better settled than that a right asserted against a receiver to property rightfully in his hands, where the right to sue in an independent action is not given by statute, must be worked out, either in the action in which the receiver was appointed, or in an independent action brought only upon leave of the court by which the appointment was made.”

Here the range company chose to work out its right in the action in which the receiver was appointed. That action was in equity, and is appealable.

Coming to the merits of the case, it appears from the pleadings and the evidence, which we have no time to comment upon, that the range company claims the right to the possession of said chattels on three grounds:

First. That title to said chattels never passed to the inn company, because the delivery of the possession thereof was induced by the false representations of the latter.

On this point we find that if any false representations were made by the inn company as to any material matter, such representations were not relied upon by the range company, and it was not induced to deliver said chattels by reason of any false representations.

Second. That the sale was for cash and the inn company not complying with the condition of the sale, title never passed.

On this point we find that if the s,ale was originally for cash, 'as claimed, that condition was thereafter waived by the company, and it is now estopped from making such claim.

Third. That the range company is entitled to possession of the chattels under a chattel mortgage executed by the inn company to it.

As we find that the officer of the inn company who signed this chattel mortgage had no authority, express or implied, from the directors of said company, to execute and deliver said mortgage to the range company, it is of no validity, as against the receiver.

Thus it seems that the range company has failed to maintain the issue tendered by it in the cross-petition and the same is therefore dismissed.


author: Winch, J.; Henry, J., aud Marvin, J.,

text:
    PREFERENCES UNDER. THE BANKRUPTCY LAW.
    Circuit Court of Cuyahoga County.
    C. A. Chapman, Trustee, v. The Forest City Savings Bank Company.
    Decided, March, 1907.

      Bankruptcy — Where Payments Made Within Four Months of Bankruptcy do Not Amount to a Preference.'

    Where a creditor advances money to a bankrupt to enable him to carry out a contract with a third party and receives notes therefor more than four months before the act of bankruptcy, upon a verbal agreement that the third party shall pay the creditor such sums as may become due by reason of the performance of his contract by the bankrupt, which payments shall be applied upon the notes, payments made in pursuance thereof less than four months before the act of bankruptcy do not amount to a preference.
   Winch, J.; Henry, J., aud Marvin, J.,

concur.

This was an action brought by the plaintiff, as trustee in bankruptcy of Campbell Brothers, against the bank to recover preferential payments, aggregating $1.6,940.37, claimed to have been made by the bankrupts to the bank within four months of the filing of the petition in bankruptcy.

At the trial the defendant, admitting that said aggregate sum had been paid within the four months upon indebtedness to the bank existing prior thereto, made these claims:

. First. That the bank, by new loans mfide by it to the bankrupts during said period, increased the bankrupts’ estate by as much as, or more than the sum paid to it within said time.

Second. That said payments were received by it from the city of Cleveland upon-claims of the bankrupts against said city, assigned to the. bank prior to said time.

Third. That the conduct of the parties was not such as to make said payments,a preference under the bankruptcy act.

The jury found for the defendants and the matter is here upon petition in error, with complaint that the verdict is not, sustained by the evidence, and that the court erred in its charges and its refusal to charge as requested by the plaintiff.

If the jury was warranted in finding on any one of these issues in favor of the defendant, the judgment must be affirmed, unless the charge was erroneous as to all of the issues.

As to the first proposition, that the bank made new loans to the bankrupts after August 19, 1901, being the beginning of the four months in question, which equalled or exceeded the payments on pre-existing indebtedness received by it during said period an examination of the statement of the account between the parties attached to the bill of exceptions as defendant’s Exhibit L shows that this claim is not fully borne out. We find that after said date the bank made new loans aggregating $17,050 and received as payments on pre-existing indebtedness the sum of $18,842.81, being an excess of about $1,800.

The jury’s verdict, therefore, if based upon this claim, would not' be sustained by the evidence.

The second proposition involves the validity of the assignment by the bankrupts to the bank of money coming to the former from the city of Cleveland on contracts for street improvements.

The evidence on this point fairly shows that some years before their failure the firm of' Campbell Brothers, being engaged in the' contracting business and expecting to bid on street improvement work for the city, made an arrangement with the bank whereby it ivas to advance the funds necessary to carry on such work under any contracts the firm might enter into, until repaid out of estimates, as the same should become due and payable by the city. The city was advised of this arrangement, and instructed to make all its checks payable to the contractors and the bank, whenever anything should become due on any contracts that might be entered into between the parties; to this arrangement the city assented, and for years invariably made its checks so payable that the bank always drew the funds due from the city to Campbell Brothers on all contracts said firm had with the city.

Each time Campbell Brothers received any money from the bank, pursuant to this arrangement, there was at the time a contract in existence duly entered into by the firm with the city, upon which payments would become due as the work under said contract progressed, and each time the firm received any money from the bank, it was for the purpose of carrying on contracts at the time existing, and notes for such advances were given by Campbell Brothers to the bank on which were notated a memorandum of the particular contract with the city out of estimates on which said notes were to be paid.

The contention in this case is solely with regard to payments by the city to the bank which were received by it after August 16, 1901, and applied on such notes, which had been delivered to it previous to said date and bore said notations.

We think the jury might well have found from the evidence that each time one of the notes' in question was given, as collateral security thereto a verbal assignment, with the consent of the city, was then made by the bankrupts of the amount thereafter to become due to them from thd city on contracts at the time existing with it.

Such assignments would be valid. The Brooks Co. v. Tolman, 6 C.C.(N.S.), 137; Bodijkeil v. Andrews, 74 O. S., 104; Field v. Mayer, etc., of New York, 57 Am. Dec., 435.

In the light of these authorities there was no prejudicial error in refusing to charge as requested by the plaintiff on this- subject.

These assignments having been made before August 16, 1901, payments received from the city under them, after August 16, 1901, would not be preferential under the bankruptcy law.

Third. Was the conduct of the parties such ás to render the payments received by it, within the four months, preferential?

■While our conclusions on the second proposition make an examination of this question unnecessary still it is due to counsel, who have carefully presented the point, that we intimate our views thereon.

By reason of provisions of the bankruptcy law, it was incumbent upon the plaintiff to show:

(a) . That the debtors were insolvent on and aftér August 16, 1901. The trustee in bankruptcy seems to have sustained this burden.

(b) . That the payments in controversy were made within four months of the filing of the petition in bankruptcy. This is conceded.

(c) . That the bank had reasonable cause to believe that the payments received by it were intended to give a preference.

There are two branches to this inquiry:

Did the bank have reasonable cause to believe that Campbell Brothers were insolvent, or that it was getting more than it should, as a preference?

On these matters the testimony is conflicting, and we would not disturb a verdict either way.

The criticisms on the charge as given, refer to this issue.

While we do not commend the charge as given — it is not always clear as to the law and contains some erroneous statements, which, however, were favorable to the plaintiff — still we do not find it prejudicial to the plaintiff in the respect claimed.

(d) . Did the bank receive more than it otherwise would, if it presented its claims to the trustee, surrendered the payment received by it by way of preference, and then received its dividend from the trustee?

Considering as we do, that the bank under such circumstances would have to surrender only $1,800, because it had increased the bankrupts’ estate by $17,050 after August 16, 1901, we are unable to say from the evidence, that the jury would not be warranted in finding that its dividends would still be $1,800.

The plaintiff did not sustain his burden in this respect, and there was no error in the charge on this point.

It remains to consider a general criticism of the charge as given, to the effect that it conveyed a notion to the jury fihat plaintiff had to prove that the entire sum claimed was a preferential payment under the law, in order to recover any part thereof.

General language used in the charge is in some places open to this objection, but in stating the issues between the parties the court said:

“Each separate item of the five amounts claimed by the plaintiff is a separate cause of action and the plaintiff may recover on one or more or all or none, as the evidence may warrant. ’ ’

If the. plaintiff desired more specific direction on this proposition, he should have requested it. Indeed, it seems that it is in this court that he first contends that though he may failed as to the whole, he is still entitled to some part of what he claimed as preferential payments.

We find no error in the record prejudicial to the plaintiff in error, and believing that the verdict is not against the weight of the evidence, the judgment is affirmed.


text:
    RECOVERY SOUGHT FOR. WASTE.
    Circuit Court of Cuyahoga County.
    Rebecca Harrison v. Herman Spitz.

    Decided, 1907.

      Pleading and Practice — Action Ex Delicto Not Maintainable Where Petition is Ex Contractu.

    Where by her petition the plaintiff seeks to charge defendant for waste under the covenants of a lease, and her evidence fails to prove any contract of lease binding upon the defendant, evidence tending to show the defendant liable ex delicto as for waste committed is not admissible.

      Eerruish <& Eerrmsh, for plaintiff in error.

      Carpenter, Young & Stocker, contra.

       Affirmed without opinion, Harrison v. Spitz, 80 Ohio State, 747.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff in error brought her action against defendant in error, seeking to charge him for waste under the covenants of a lease set forth in her petition. At the trial she failed to prove that the lease contract was binding upon the defendant, and thereupon offered evidence tending to show that the defendant was liable in tort for the waste committed. This the trial judge refused to permit her to do under her petition, holding that it stated an action ex contractu while the evidence offered was in support of a claim arising ex delictu.

In this we think there was no error, though it is urged here, as it was in the court below, that certain equivocal and ambiguous sentences and phrases, taken by themselves and disregarding all other allegations of the petition would support the theory that defendant had been guilty of a tort.

The character of a pleading is to be determined by the intention of the pleader as gathered from the whole pleading, and there is no question that the plaintiff, by her petition, intended to summon the defendant to court to answer for the breach of certain covenants óf a lease. lie came into court to answer that complaint and should not be held to answer another.

We affirm this judgment the. more readily because plaintiff has lost nothing by it. If she wishes to bring another action to recover for the alleged tort, she can do so. for this judgment as to the contract will be no bar to it.

Judgment affirmed.


author: Winch, J.; Henry, J.. and Marvin, J.,

text:
    JUDGMENT DEBTOR’S RIGHT OF APPEAL.
    Circuit Court of Cuyahoga County.
    Charles Brenner v. State of Ohio, ex rel Alice Spisak.

    Decided, June 11, 1907.

      Proceedings in Aid of Execution Appealable.

    Proceedings in aid of execution brought before a justice of the peace against a judgment debtor, may be appealed by him to the common pleas court.

       Affirmed without opinion, Brenner v. State, ex rel, 82 Ohio State, 424.

   Winch, J.; Henry, J.. and Marvin, J.,

concur.

The sole question in this case is whether a judgment debtor, against whom proceedings in aid of execution have béen brought before a justice of the peace, as provided in Sections 6080-1 to 5, Revised Statutes of Ohio, is entitled to appeal said proceedings to the common pleas court. *

This question was raised in the case of Deveaux v. Leslie, 18 C. C., 482, and the Lucas County Circuit Court, Judge Haynes delivering the opinion, held that an appeal would lie in such cases.

This court, in the case of Carlin v. Hower, 24 C. C., 153, concurred in said opinion, and we now see no reason for changing our views on the subject-

The ease of Wilson Co. v. Cleveland Electric Ry. Co., 7 C.C. (N.S.), 258, does not overrule the case of Carlin v. Hower, on this proposition.

Judgment affirmed.


text:
    ACTION ON AN OLD BOOK ACCOUNT.
    Circuit Court of Cuyahoga County.
    Jesse B. Marshall, Administrator of W. D. McClure, Deceased, Late Partner of the Firm of McClure & Co., v. Jacob H. Firestone.
    Decided, September 28, 1907.

      Statute of Limitations — Partial Payments — Burden of Proof — Computation of Time.

    1. It must affirmatively appear that the payment relied upon as defeating the statute of limitations was a part payment of a greater debt and not a complete satisfaction of the debt.
    2. Actions on a book account may be begun on the sixth anniversary of the date when the obligation was incurred.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

The original action was brought in a justice’s court, for the balance of an account, the items of which, according to the books of the plaintiff’s decedent, are as- follows:

February 10, 1900. Wrapping pipes. $ 15.00
December 20, 1898. Contract for heating plant. 365.00
February 13, 1900 Grate var. 2.00
.Total. 382.00
May 26, 1900. Credit by check. 350.00
Balance $ 32.00

The cheek thus credited, was dated May 24, 1900, and came through the clearing house to the, bank on which it was drawn on May 28, 1900.

A witness testifies that some time in 1900, when the decedent demanded payment of Firestone, the latter offered to pay $350 in full of what he owed, if the former would wrap the pipes; that the decedent agreed to do this for $15, to which Firestone assented.

The justice rendered judgment against the plaintiff, upon the ground that the action was barred by the six years statute of limitations, and this judgment having been affinnéd by the court of common pleas, is here sought to be reversed.

If the date of the credit on decedent’s books is deemed correct, the action having been brought on the sixth anniversary of that date is “within the six years,” as required by Section 4991, Revised Statutes, computing “'the time within which” such action must be brought in the manner prescribed by Section 4951, by excluding the first day, i. o., the one on which the cause of action accrued, and including the last day, L. e., the one on which suit is brought. Harris & Harris v. Harris, 13 C. C., 170.

True, this manner of computation results in the anomoly of giving six years and one day in which to sue; for of course suit may be brought on the very day a cause of action accrues. But the matter of computation being prescribed by statute, we have no other course than to follow it.

The date of the check, though doubtless evidence of the time when it was executed,1-is not evidence of the time of its delivery. The only evidence fixing the latter time is the date. Nay 26, 1900, of the credit in decedent’s book. It was on that date, as shown by said book, that decedent received payment, the check not having been thereafter dishonored.

The date when the pipes- were wrapped is involved m hopeless confusion and affords no aid in determining the date of delivery of the check. But the evidence that the check ivas given in full payment of all claims (except $15 for wrapping the pipes, which was not owing, because the work ivas yet to be done), renders applicable the principles laid down in Wood on TAmitaliom, Section 98:

“If the payment is accompanied by declarations and statements from some of which it is to be inferred that a further debt remained due, and from others- that all further liability ivas repudiated, it is for a jury 'to draw their own conclusions from the statements made, and adopt or reject what portions of them they think fit. * * * The burden of establishing a part payment sufficient as to time and other circumstances to remove the statute bar is upon the plaintiff.”

To the same effect are the following authorities: Kaufman v. Broughton, 31 O. S., 424; Bogart v. Cox, 4 O. C., 289; 25 Cyc., 1373, 1374; 19 Am. & Eng. Enc. of Law, 325; 33 Cent. Dig., 1180, 1202.

‘ ‘ It must affirmatively appear that the payment relied on as defeating the statute of limitations was a part payment of a greater debt and not a complete satisfaction for the debt. ’ ’

The justice in weighing the evidence, found that plaintiff had not sustained the burden the law imposed upon him. As every item of the account proved is on its face barred, unless acknowledged by the part payment, we can not hold' that the justice erred in refusing so to interpret the credit relied on.

Judgments below are affirmed.


author: Winci-i, J.; Marvin, J.,

text:
    WITHDRAWAL OF WRITTEN PROPOSITION BEFORE ACCEPTANCE AND NEW AGREEMENT MADE.
    Circuit Court of Cuyahoga County.
    Gebbie & Company v. Charles R. Welch.
    Decided, October 21, 1907.

      Contracts — Offer and Acceptance — Offer Withdrawn, When.

    A written offer not accepted by plaintiff is withdrawn when plaintiff and defendant at a later time make a verbal contract concerning the same subject matter upon different terms from those embodied in the first offer.

      PL. E. Parsons and Beams cO Johnson, for plaintiff in error.

      Riley d; McQuigg, contra.
   Winci-i, J.; Marvin, J.,

concurs;

Henry, J., not sitting.

Plaintiff in error was plaintiff below and claims error in the conclusions of law based upon the finding of facts made by the trial judge. Said finding and conclusions are as follows:

“Gebbie & Company, the plaintiff, is a corporation under the laws of Pennsylvania; that James Atkinson at the time of entering into the agreement hereinafter mentioned, was plaintiff’s canvassing agent for the sale of books sold on the installment plan, and that as such soliciting agent on the 30th day of March, 1901, entered into the contract, on behalf of the plaintiff, with the defendant, as set forth, in terms in the petition, to which reference is made for the terms of the contract. That at the time of the making of said contract, defendant upon the signing of it, stated that the down payment of four dollars could not be made by him until 12 o’clock of that day, at which time he would go to his employers and get an advance upon his wages; that said plaintiff’s agent took possession of the writing and agreed to return at 12 o’clock at defendant’s place of employment, that he so returned; whereupon defendant declined to carry' out the terms of the written agreement, stating to the agent that he was liable to be discharged from his position, in which event he would be unable to perform the contract. Whereupon said plaintiff’s agent agreed with the defendant that in case he at any time desired, while making the deferred payments, he might surrender the boobs and be relieved from further obligation to make payments on the contract, with the further stipulation that in that event, what he had paid should be treated as paid for the use of the books which were in his possession. The defendant thereupon, relying upon such promise, paid to the agent the four dollars down payment and later received the books, being delivered by the plaintiff’s agent. That among further instructions to the plaintiff’s agent was1 this: that he should receive on behalf of the plaintiff the first payment from purchasers and deliver it to the company. The court finds that later the defendant, being about ready to leave the city of Detroit for Cleveland, and being discharged from his employment, went to the branch office of plaintiff maintained by it in the city of Detroit, and stated to such agent that he had the books at his boarding house in Detroit, giving the street and number, and offered to surrender them to the plaintiff under the terms of said agreement. And thereupon the defendant came to Cleveland, Ohio, leaving the books at Detroit in said boarding house. That plaintiff refused to receive the books so tendered, and brought this action for balance of purchase as provided in the written contract set forth in the petition. The court finds, as a matter of law, that the said agent of plaintiff had authority to make the supplemental agreement which was entered into at the time of said agent’s receiving the four dollars down payment and that in making the same the plaintiff was bound thereby. and that the defendant having kept the agreement as thus modified is relieved from liability to make the subsequent payments on the contract and is entitled to a judgment against the plaintiff.”

The “contract entered into on behalf of the plaintiff,” referred to as set forth in the petition, is as follows:

“To the Gebbie Publishing Co., Ltd., Philadelphia.
“Continental Co., Detroit, Mich.
“Tn consideration of the agreement on your part to deliver the Library Edition of the Comedie Humaras by Honoré De Balzac, at my address, without extra charge, and as nearly as convenient to the directions given bélow, I hereby subscribe for one set, about thirty-two volumes bound % morocco, gilt top, and agree to pay you therefor the sum of $3.00 for each volume on delivery, and Spafford’s Cyclopedia for $24.00 with Atlas.
“(Deliver 85 W. Elizabeth St.)
“Name — Chas. R. Welch.
‘ ‘ Collect at address Fletcher Hardware Co., “Woodbridge St.
“James Atkinson. Date — March 30, 1901.”

It will be noticed that this so-called contract is a proposition signed by the defendant and it does not appear that it was accepted by the plaintiff, or its agent. For aught that appears in the writing the terms were cash and all the books were to be delivered at once.

The only error we find in the conclusions of law is the characterization of the agreement made verbally by the agent, at noon, on the faith of which the four dollars was paid him, as a supplemental agreement.

As wTe view the facts in this case that was the only agreement made by the parties.

The written proposition made by plaintiff having been withdrawn by him, before its acceptance, the parties entered into the contract proposed by defendant at noon and the books were delivered and four dollars paid pursuant to the contract, which we'construe to be of conditional sale, x>ayments made to be compensation for the use of the books in the event further payments were not made and the books were returned.

Doubtless that agent would have full authority to make such a contract, in the absence of limitations upon his agency, communicated to the purchaser, and in the absence of a disavowal of the agent’s authority within a reasonable time and tender back of the payment made by the purchaser.

Iii this view of the case the authorities cited by counsel for plaintiff in error are not applicable to the ease and the judgment is affirmed.


text:
    REVIEW OF ACTION BY MAYOR IN GRANTING A “WET” PETITION.
    Circuit Court of Cuyahoga County.
    Roy Murray, a Qualified Elector, etc., v. Tom L. Johnson, Mayor.
    Decided, November 6, 1907.

      Intoxicating Liquors — Review of Finding of Mayor.

    No review of the finding of a mayor on the merits of the case, in passing upon a Jones law petition can be had, where the bill of exceptions does not contain all of the evidence adduced before the mayor.

      W. B. Wheeler and K. F. Leek, for plaintiff in error.

      Max Meisel, George Blum and R. F. Payer, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This action is brought to review the actions of the mayor of the city of Cleveland in granting a “wet” petition under the Jones law, for certain territory now within the city of Cleveland, but formerly in the city of Glenville, which, before its annexation, went ‘' dry ’ ’ at an election held under the Beal law.

We regret that the merits of the controversy can not be settled in this action, because we have no sufficient bill of exceptions exhibiting all the evidence adduced before the mayor.

The jurisdiction of the mayor to hear and determine the petition presented to him depended upon the facts shown as to said Beal election in Glenville and the subsequent annexation of that city to the city of Cleveland, for there was no controversy as to the sufficiency of the petition in itself on its face.-

It is claimed that all the facts represented to the mayor were included in an agreed statement of facts submitted to him, but we have no certificate from the mayor to that effect. All that has been presented to this court is a document purporting to be a “record of hearing and agreed statement of fact, Local Option law.” This document we have treated as a transcript and also as a bill of exceptions.

‘ ‘ The following is a correct copy of the boundaries of said district and the proceedings had thereon.”

Then follows a copy of a notice of public hearing, copy ot docket entries, showing that Mr. Williamson filed objections and C. A. Leisher filed ap affidavit and that a statement of facts agreed upon was filed. Then follows a copy of the agreed statement of facts and after that a communication from the mayor to the city clerk, certifying that he had examined at a public hearing, duly announced, “the petition attached hereto,” filed July 29, 1907, “and find on the 26th day of August, A. D. 1907, that the said petition is sufficient.” Said petition is not attached, as certified.

The last entry in this bill of exceptions is as follows:

“The above and foregoing is a true and correct copy and transcript of the record and agreed statement of facts -in the hearing upon the aforesaid petition, and said transcript and record of said hearing is hereby approved, signed, sealed and made a part of the record in this case, all of which is correctly done this 5th day of September, A. D. 1907.”

It will be noticed that there is no certificate that this bill of exceptions contains all the evidence given and offered at the hearing; it does not state that the agreed statement of facts was used in evidence, nor that the same wa.s all the evidence received. It simply shows that the agreed statement of facts was filed, as was also an affidavit and certain objections, the contents of which are not divulged, but which may also have been offered in evidence.

Indeed the communication from the mayor to the city clerk would indicate that all the mayor did was to examine the petition itself, which he found sufficient, apparently- upon inspection, without other evidence being adduced before him.

Tbe only error complained of depending upon the facts presented to the mayor and there being no bill of exceptions showing said facts, we can not review his action in this proceeding. ITence it Avould be useless to alloAA^ a petition in error to be filed, and therefore, the motion for leave to file a petition in error in this case is overruled.


text:
    ALIMONY TO AN INVALID HUSBAND.
    Circuit Court of Cuyahoga County.
    William A. McIntire v. Lillian M. McIntire.
    Decided, November 9, 1907.

      Divorce and Alimony — Amount of Alimony.

    Where a husband was dying of consumption and wife strong and healthy, with property worth $5,000, court awarded him $600, and $30 per month for four years should he live that length of time.

      -Copeland, for plaintiff.

      ~W: S. Kerruish, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

In this ease we are asked to make an allowance of alimony to the plaintiff AA'ho was recently divorced from his Avife by tnc common pleas court: He is dying of consumption, unable to work and the wife has about five thousand dollars worth of property which AAre find was accumulated principally by the joint efforts of both husband and Avife. The defendant is strong and healthy; she has the care of an adopted child, a little girl, apparently four or five years old.

We allow the plaintiff six hundred dollars to be paid him within two weeks, and a monthly allowance of thirty dollars, payable for four years, beginning November 1st, 1908, but to cease should he not live out that period of time.


text:
    ACTION FOR. CONVERSION OF WATER PIPES.
    Circuit Court of Cuyahoga County.
    The Village of Lakewood v. Clarence L. Newell.
    Decided, November 6, 1907.

      Municipal Corporations — Liability for Water Pipes Laid by Owner of a Subdivision.

    Where the owner of a subdivision lays pipes in the streets under a license from the municipality, and such pipes are afterwards appropriated by the municipality and made a part of its water works system, an action in conversion for their value will lie.

      C. M. White, for plaintiff in error.

      D. C. True, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

We think this case is ruled by the case of City of Cleveland v. Denison, 16 C. C., 541, decided by this court in 1898, the syllabus of which reads as follows:

“Where a contract is entered into between the city and the owner of a subdivision, that the owner should lay water pipes in some streets dedicated and accepted in such subdivision, which the city would adopt as part of its water works system and pay for them, the city having taken possession of the property and using it, and it being impracticable to restore the property to the other party, is liable for the expense of the pipes, although it was not legally authorized to enter into such a contract.”

The correctness of that decision as to the liability of the city under a contract entered into without complying with the Burns law, may well be doubted, but the principle involved, that the city should pay for pipes laid in the streets under license from the city, which it afterwards takes possession of without compensation to the owner, is sound. This case is one for conversion; no contract rights are involved. The agreed statement of facts shows that Newell put the pipes in the street under license from the village, but they were still his pipes when the village, without his permission, took possession of them, and made them a part of its water works system.

Judgment affirmed.


author: Winch, J.: Henry, J., and Marvin, J.,

text:
    ACTION ON MECHANIC’S LIEN.
    Circuit Court of Cuyahoga County.
    The Howe Building & Realty Co. v. Wolf Blasberg et al.

    Decided, November 18, 1907.

      Appeal and Wrror — Action to Foreclose Mechanic’s Lien Appealable.

    An action to foreclose a mechanic’s lien and for a personal judgment for its amount is appealable.

      Foster, Foster t& Howells, for plaintiff in error.

      Neff & McTighe, Max F. Goodman and Joseph Moore, contra.

      Petition in error dismissed (unreported, 81 Ohio State, 482) on authority of Thatcher v. Watson, 51 Ohio State, 561.

   Winch, J.: Henry, J., and Marvin, J.,

concur.

Motion is made to dismiss the appeal taken in this case on the ground that the action is not an appealable one.

The petition sets forth three causes of action, the first two alleging facts upon which it is claimed the defendant is indebted to the plaintiff for materials furnished and work done in the sum of $1,355 and the last says that the defendant failed to pay the $1,355 as agreed and that the plaintiff filed, an attested account and obtained a lien upon the property on which the work was done.

The prayer of the petition is for judgment in the sum of $1,355 and for sale of the property to satisfy it.

In other words, we have here an action for foreclosure of a mechanic’s lien, with prayer for a personal judgment for the amount secured by the lien.

At the October term, 1906, in the case of Jesiononski v. Wismiewski, this court held such cases appealable, basing that conclusion upon an amendment of the statute authorizing the rendition of a personal judgment in foreclosure cases.

Section 5021, Revised Statutes of Ohio, formerly provided that in an action to foreclose a mortgage given to secure the payment of money, or to enforce a specific lien for money, the plaintiff may also ask in his petition a judgment for the money claimed to be due; and such proceedings shall be had, and judgment rendered thereon, as in a civil action for the recovery of money only.

When this section became the eighth paragraph of Section 5058, by the amendment of 1900 (94 O. L., 279) the words italicized “and such proceedings shall be had, and judgment rendered thereon, as in a civil action for the recovery of money only,” were omitted, and we thought this significant.

The argument was as follows:

Actions for the recovery of money only are triable to a jury. Section 5330, Revised Statutes of Ohio.

An action in foreclosure and for personal judgment is not for money only, but is for money and equitable relief; hence, when the Legislature first authorized the joinder of such causes of action, realizing that the action would not then be for money only, it specifically provided that it should, notwithstanding that fact, be triable to a jury and used apt language for that purpose. Color to this view is lent by the- opinion in the case of Wood & Pond v. Stanberry, 21 O. S., 142, 149, where it is said that this provision of the statute was “a limitation upon the authority to render personal judgments in actions for the foreclosure of mortgages which would otherwise be inferred from the general terms of the statute.”

This limitation being removed by the amendment referred to, it would seem that the issues are no longer Liable to a jury.

The right to demand a jury being gone, the case is appeal-able. Section 5226, Revised Statutes.

This construction of the amendment is reasonable. Foreclosure eases are better tried to a court than to a jury aud it is rare that one was tried to a jury, even under the old section, 5623, Then, too, granting a personal judgment adds little to the value of a decree in foreclosure, for there may be execution on an unsatisfied balance of a decree in equity. Gliddings v. Barney, 31 O. S., 80.

We are aware that our conclusions are in conflict with the ruling of 'the third circuit, as shown in the case of Lumber Co. v. Troxel, reported in the Ohio Law Bulletin August 5, 1907, at page 574, affirmed without report by the Supreme Court, but as the significant amendment of the statute referred to was not called to the attention of that court, and as we are advised that the common pleas courts of this circuit have been following our recent ruling since it was announced, we have concluded to abide by that ruling. The matter is not without difficulty and further doubt is thrown upon our conclusion by an examination of the case of Ladd v. James, 10 O. S., 437, but it is fitting that the question be submitted to the Supreme Court to the end that the rulings on this matter be uniform throughout the state.

The motion to dismiss the appeal is overruled. Cause referred to Walter D. Meals, Esq.


author: AYinch, J.; Henry, J., and Marvin, J.,

text:
    ACTION FOR. GOODS SOLD AND DELIVERED.
    Circuit Court of Cuyahoga County.
    Ben Sands v. The Forest City Savings & Trust Company, Receiver.

    Decided, November 18, 1907.

      Pleading and Practice — Issues Raised by General Denial in Action for Goods Sold and Delivered.

    In an action for goods sold and delivered, to which a general denial is pleaded, the only questions for the jury are the sale and receipt of the goods and their value.

       Affirmed without opinion, Sands v. Forest City Savings & Trust Co., 81 Ohio State, 551.

   AYinch, J.; Henry, J., and Marvin, J.,

concur.

This was an action on an account, in the short form, for goods sold and delivered. The answer was a general denial and the verdict was for the plaintiff.

Tlie defendant below alleged errors in ruling on evidence and in the charge.

All of these rulings are due to the general nature of the answer. Under a more specific answer, the issues the defendant tried to intermix might have been available to him.

The goods delivered were fixtures for a jeweler’s store. The defendant claimed that there had been a written contract between the parties for other fixtures and that said contract contained a clause that no charge for extras should be made unless an agreement for them was made in writing.

One of the defendant’s claims was that the goods involved in this case were extras, and that there was no written agreement concerning them.

Another claim he made was that by reason of defects in the goods furnished under the contract, these were furnished without extra charge, to make good that contract. He also desired to show that he had paid the full price stipulated in the written contract and that such payment paid for these goods. Another claim was that part of the goods in the account sued upon were included in the written contract.

He also made an effort to show the value of the goods by an expert, but as this expert did not see the goods until some six months after they were delivered, we think this testimony properly excluded.

The defendant admitted the receipt of the goods, and under this situation we think the court properly charged the jury that the only thing for them to do was to determine the value of them and bring in a verdict for the plaintiff for the amount so determined.

We have examined a large number of Ohio cases and some from other states as to what is admissible in defense under the general issue in assumpsit. The question has always been difficult and those of us who have been brought up under code pleading may be thankful that many of these difficulties were swept away by the code. That was the purpose of it.

It is said in 2 Enc. of PL & Pr., 1027:

“According to the strict original principles of the common law, no defenses were admissible under the general issue except such as went in denial of the allegations of the declaration. Gradually, however, not only such defenses as deny the allegations of the declaration, but almost all matter -in avoidance, have been held good defenses under the plea of non-assumpsit until now the general plea may be said to deny not a part of the case only, but the whole case to such extent that under it the defendant is generally entitled to give evidence of any thing which shows that ex aequo et bono., the plaintiff ought not to recover.”

The code provides what an answer must contain:

“5066. The answer shall contain:
“1. A general or specific denial of each material allegation of the petition controverted by the defendant.
“2. A statement of any new matter constituting a defense, counter-claim or set-off, in ordinary and concise language.
“3. When a defendant seeks affirmative relief therein a demand for the relief to which he supposes himself entitled.”

The defendant in this case brought himself within the first paragraph of this section and sought only to controvert the allegations that the goods mentioned in the account were sold and delivered to him and were of the value claimed. After a careful examination of all the rulings of the trial judge, we think he was right in excluding the offers made by the defendant on the ground that he should have followed the second paragraph of the section and pleaded the new matter which he sought to offer in defense and in recoupment.

Finding no error in the record, the judgment is affirmed.


text:
    RESTITUTION IN FORCIBLE DETAINER.
    Circuit Court of Cuyahoga County.
    Jacob Matzas v. C. R. Heller.
    Decided, November 18, 1907.

      Landlord and Tenant — Forfeiture of Lease Not Reviewahle, When— Supported l)y Evidence.

    Where forfeiture of a lease was sought on grounds that the tenant had allowed gambling and unlawful sales of liquor on premises, and the jury found generally in favor of plaintiff, the higher court ■can not review the case if there was any evidence tending to show that gambling was carried on and there was no error in the charge as'to that branch of the case.
   Winch, J.; Henry, J., aud Marvin, J.,

concur.

This is an action to reverse the ruling of the common pleas court which affirmed the judgment of a justice of the peace in granting restitution of certain premises in this city to a landlord upon his complaint in an action in forcible detainer.

The magistrate held that a three years lease between the parties had been forfeited. The landlord claimed the forfeiture under Section 4276, Revised Statutes of Ohio, because his tenant had occupied the premises for gaming purposes, and under Section 4361, Revised Statutes of Ohio, because of. the unlawful sale of intoxicating liquors upon the 'premises by the tenant.

A bill of exceptions allowed by the justice of the peace, exhibits evidence tending to show that gambling was carried on as-alleged, and that the tenant had made sales of liquor without having paid the state Dow tax or the federal license.

The case was ably argued in this court by counsel on both sides, who spent much time in illuminating the question as to whether the liquor sales were “unlawful” in the sense meant by the statute, so as to forfeit the lease.

That question is not without difficulty, but finding it unnecessary to determine it in this case, we express no opinion upon the subject.

It seems to us that evidence having been introduced, as stated, tending to show that gambling was carried on upon these premises, the judgment of the justice of the peace must be affirmed.

Although we have a bill of exceptions in this case, we can not examine it as to the weight of the evidence. Ohio, ex rel, etc., v. Wood, etc., 22 O. S., 537.

Neither can we reverse the justice for any error alleged to have been made by him in his charge to the jury, for the defendant entered no exceptions to said charges. Railroad v. Porter, 32 O. S., 328.

Furthermore, no error is claimed in the charge as to the gambling issue, and the jury having found generally for the plaintiff, it is immaterial to inquire whether the justice erred in his instructions as to the sales of liquor upon the premises. Stites v. Haverstick, 23 O. S., 626.

The defendant excepted to the refusal of the justice to charge as requested by him, but in this there was no error, for. a justice of the peace is not required to charge the jury, though, if he do so, he must charge correctly. Hirth v. Graham, 50 O. S., 57, 61.

We find no prejudicial error in the record and the judgment is affirmed.


text:
    ADAPTING HIGHWAY TO DIAGONAL CROSSING BY RAILWAY.
    Circuit Court of Medina County.
    L. O. Brown et al v. The Akron & Chicago Junction Railroad Company.

    Decided, May, 1907.

      Diversion of Highway by Railroads — Necessity and Convenience of Public Governs Right to Divert Highway — Diversion of Highway May Be Permanent.

    1. When in the construction of a railroad it becomes necessary to cross a highway in the country at such an angle as to render the building of a necessary bridge impracticable, the grade of the railway being twenty-seven feet above the grade of the highway, the railroad company is granted, by Section 3284, Revised Statutes, the right to divert the course of the highway, that a crossing may be made at right angles, provided it does not impair the usefulness of said highway.
    2. The question of the necessity of the diversion of a highway for railroad purposes is for the court to decide, and in determining such question the convenience and necessity of the whole public, including travelers on the railroad as well as the highway should be considered.
    3. The diversion of a country highway which is authorized by Section 3284, Revised Statutes, may be permanent, provided said diversion is reasonably necessary, and does not unreasonably interfere with the use of said highway by the public.

       Affirmed without opinion, except as to compensation for maintenance, Brown et al v. Railway, 79 Ohio State, 440.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

This case involves the right of a railroad company to divert a public highway, and the manner in which the diversion should be made, if permitted.

The contention between the parties, together with a map of the proposed changes, will be found fully set forth in the opinion of Judge Washburn, published in the Ohio Law Bulletin, April 8, 1907, at page 418, and for that reason, we shall confine this opinion to a brief statement of the conclusions we have reached.

We have no doubt that under Section 3284, Revised Statutes, a railroad company has the right to permanently divert a highway or country road, when it becomes necessary to do so in the construction of its road; such diversion, however, must be reasonable and the highway must be restored to such condition as will not impair its permanent usefulness.

The necessity for the grant of such power to a railroad company is manifest, when we consider the great number of township and other officials with whom a new road must deal in crossing the state, and the diverse views apt to be held by them, but it is to be regretted that the Legislature has not limited and defined this right by requiring notice and application to some tribunal for approval of plans of the railroad company, before they are executed.

An arrogant exercise of this right by a railroad company naturally stirs the local officials and people, whose, pride and independence sometimes will not bend to a reasonable settlement of the controversy. The courts, however, must see that the right is so exercised as to produce the greatest good to the greatest number.

The best engineering skill of the country has been produced and given in opinions as to the proper method of crossing a diagonal road with a railroad on an embankment or fill of from 26 to 42 feet, intended to take care of fast trains on a through line. Without exception, all these experts have said that a stone arch crossing the highway at right angles is the best construction.

Such a bridge estimated to cost about $50,000, with a middle arch of 60 feet span and two side arches of 35 feet each is planned by the railroad company, the side arches to accommodate future trolley lines on the highway. To build such a bridge requires a diversion of the highway, making it 280 feet longer than the old location along the original road, and means that it will, take less than one minute longer to. walk from Lodi to West Salem, or less th.an one half minute longer to drive that distance that it formerly took over the old road.

On the other hand the engineers all agree that a skew bridge at the old location of the road is not beyond engineering skill and the various standard styles of such bridges will not cost more than fifty to one hundred per cent, more than the stone arch planned by the railroad company.

Counsel'for plaintiffs urge that the paramount interest of the public on the highway requires that the old diagonal course of the highway be retained, no matter what the cost of engineering difficulties, and the sole practical reason assigned for this demand is that thereby a longer view of approaching automobiles might be had; that this is important because horses shy at automobiles more in the country than they do in the city.

It- is in evidence that of the 775 vehicles which passed this point during two days in April this year, three were automobiles. The contour of the old road is somewhat rolling, so that the slight hills on it might hide approaching vehicles. It also appears that there is a clear view of approaching teams for a distance of from 520 to 700 feet through the stone arch planned by the railroad company. This is twice the view one has in the city where automobiles run out of intersecting streets from behind obscuring business blocks. When we remember that the middle span of the stone arch planned on the diverted road is sixty feet and the road macadamized and of a regular grade, it would seem that one .accustomed to pass automobiles on the ten foot traveled portion of a country road would have little trouble in passing an automobile under or approaching this arch. We think the automobile difficulty is as trivial as the 280 feet extra distance on the road.

Again, the suggestion of plaintiffs’ which involves piers or abutments in the middle of the diagonal road, must be discarded on account of the ruling in Railway Co. v. Elyria, 69 O. S., 414, leaving the only possible construction a steel structure, either on a skew, or with extra long span if the abutments are squared. The center line of the road would run for 120 feet under this structure and it would seem that the noise and vibration resulting from the passage of trains over such structure has been forgotten by those who suggest it for the benefit of drivers upon the highway.

No mail would dare to drive under such a bridge when a train was passing over it. Travel on the highway would come to a standstill at such times. But not so with the stone arch under which one might pass without knowledge whether a train was on top or not.

. Our conclusion is that as all engineers agree that the stone arch is the best for the public traveling on the railroad, and as but trivial inconveniences result to the public traveling on the highway, from the diversion of the road, that an injunction should not be granted against the diversion of the diagonal road as planned by the defendant railroad company.

As to the diversion of the North and South road, called the Chatham road, we are not satisfied that the railroad company has or contemplates restoring it to its former usefulness. The map exhibited to us shows a reasonable and satisfactory diversion of the travel to the westward which formerly passed over the Somerville road and will now pass on the proposed road north of the railroad until it reaches the arch over the Black river, under which it will pass to the Somerville road on the south, but it is unreasonable to require those traveling between Chatham and West Salem to go so far east as the first bridge we have considered, without making the way to it as short as it reasonably can be made. We think a fair solution of this difficulty is offered by the opening of a diagonal road about 1300 feet long in a northwesterly direction from station C on the map, to a point on the Chatham road, 1000 feet northerly from station B, at the junction of said road with the new road north of and parallel to the railroad.

This new diagonal road should be macadamized and correspond in all respects with the diversion of the West Salem road, and the distance over it would be only about 900 feet longer than over the old Chatham road through to the West Salem road.

There is little travel over this road, and driving between Chatham and West Salem would probably take no longer than it did before, as the road would be better. Incidentally those living on the Chatham road would reach Lodi, the nearest village, much easier than ever before.

There is one objection to the creation of. the new roads suggested, and that is that the public authorities would have considerably more public highway to take care of. The suggestion of Judge Washburn that the railroad company contribute the sum of $500 for the maintenance of these extra roads is a good one. It would seem, also, that upon the completion of the new roads, the Chatham road south of the railroad, and the Homer-ville road from the West Salem road west to Black river would be useless, and might be abandoned and vacated, in'case the proper public authorities- shall hereafter deem it wise to do so.

Decree may be drawn pursuant to this opinion in this case and eases numbered 138 to 143; injunction against the diversion of the West Salem road, as planned by the defendant company, is refused, but the railroad company is enjoined from diverting the Chatham road in any other manner than as suggested by this court. The case will be continued until the improvements are completed, so that the progress of the work may be subject to the control of the court. The decree may also specify in detail the changes and plans of the defendant with regard to both roads, and should be submitted to the court, with exceptions, if any, of opposing- counsel, in writing, within ten days.


author: Henry, J.; Marvin, J., and Winch, J.,

text:
    AS TO VACATION OF A JUDGMENT BY DEFAULT.
    Circuit Court of Cuyahoga County.
    John C. Keefe v. James W. Evenden.
    Decided, February 21, 1905.

      Proof Required in an Action to Set Aside Judgment.

    In an action to set aside a judgment on the ground that defendant had not been served with summons, the evidence must clearly show such want of service.

      J. .P. Pawley and P. A. Beecher, for plaintiff.

      Smith & Taft, contra.
   Henry, J.; Marvin, J., and Winch, J.,

concur.

This cause comes into this court on appeal from the court of. common pleas. The action below was begun June 14, 1904, to enjoin the collection of, and to vacate a judgment by default obtained December 12, 1898, in a previous action begun in the same court October 15, .1898, wherein the plaintiff here was defendant and the defendant here was plaintiff. It is alleged by Keefe that the return of .service of summons in that action is erroneous, and that summons' was in fact never served on him. The answer oP the defendant here denies this allegation The return of summons in the former case showed upon its face that summons1 was served' on him personally.

Upon the trial he testified that he was not personally served, and that he had no notice of the pendency of the action until he procured an abstract of title to certain of his real estate which he desired to encumber or sell, and found that the judgment was a lien thereon. His testimony is not, however, clear as to when he first learned of the judgment. In one portion of his evidence he declares that it was six months after judgment was obtained. Later on he testified that it was not until about a month before this suit was brought. He produces other evidence it confirm his own testimony relative to the want of personal service, and Ms want of knowledge of the pendency of the action. But this evidence, is all either negative in character, or, at all events, insufficient to corroborate his claim.

The defendant produces as a witness George F. Arnold, deputy sheriff, who served the summons in the primary action. Arnold testifies that in making the service he knocked at the side door of Keefe’s residence; that, apparently, in response to his knock a man came from behind the house, and in answer io his question said that he was John Keefe, and thereupon Arnold handed the summons to this man personally. Other witnesses for the defendant testify that various letters were written to Keefe within the nest three years, requesting that he pay the judgment, and that in April, 1903, Keefe called twice about the matter at the office of the firm with which Evenden was connected.

Upon the whole ease we are not satisfied that the evidence shows with such degree of clearness as equity requires in an action of this sort, that the averments of the petition are true. A decree will, therefore, be entered for the defendant, dismissing the petition at plaintiff’s costs.