text:
    (Sixth Circuit — Erie Co., O., Circuit Court
    —April Term, 1899.)
    Before King, Hayne and Parker, JJ.
    R A. MURFORD and W. SPELLMAN v. JAY J. PERRY, Sheriff, etc.

      Extradition — Habeas corpus to re-hear the case by other judge on other evidence not admissible—
    (1). Where in an extradition proceeding under sec. 95 et seq., R. S., the alleged fugitive has been brought before a judge having proper jurisdiction, and the case has been heard and the • questions to be determined under the statute have been determined by such judge from the evidence adduced and the alleged fugitive ordered into the custody of the sheriff for extradition; a writ of habeas corpus' can not be issued by another judge having jurisdiction, under the Ohio statute, although a judge of a higher court,, to re-hear the case and to determine the same questions passed upon at the first hearing on the same or on different evidence.

      Same — Proceeding reviewable on error—
    (2). Under the amendment of sec. 97, passed in 1898, (98 O. L.„ 255;. such proceeding is reviewable on error where the entire record of the case may be reviewed by the appellate court; but until reversed for error, the judgment and orders of the court in the first proceeding remain in force.
   King, J.

This is an application on the part of Robert A, Milford and William Spellman to the judges of the circuit court of Erie county for a writ of habeas corpus.

The petitioners set forth that they are imprisoned by ths sheriff of Erie county and confined in jail, illegally; that said imprisonment is under an order of commitment made by the Hon. Linn W, Hull, one of the judges of the court of common pleas of Erie county, a copy of which order is attached to the application. They further aver that that order was made upon a warrant issued by the governor of Ohio upon a demand on him made by the governor of Michigan for the apprehension and arrest of Charles Russell and Herman Finkle, alias Larry, as fugitives from justice from the state of Michigan, setting forth that an affidavit had been filed in Kalamazoo county, Michigan, charging Russell and Finkle, alias Larry, with the crime known to the statutes of Michigan as bank robbery. That said Russell and Finkle, alias Larry, after ihe commission of the offense, fled from the state of Michigan and took refuge in the state of Ohio, and were at the time said demand was made and warrant issued, fugitives from justice. And the petitioners aver that they are not the persons named in said affidavit, demand of the governor of the state cf Michigan, and warrant of the governor of the state of Ohio; that they are not fugitives from justice, and have never been in the state of Michigan. They further allege that their imprisonment is illegal for the reason that the said Hon. Linn W. Hull had no jurisdiction over the said persons or bodies at the time said order was made, and no jurisdiction to hear and determine whether or not these petitioners are the persons named in the pretended warrant of the governor of the state of-Ohio, and said order under which these petitioners are so wrongfully held and imprisoned is void and of no affect, and ask that the writ issue.

• The order, set forth by copy, upon which they are so imprisoned, recites that Charles Russell and William Spell-man, alias Herman Finkle, alias Larry, were brought before Said judge on January 17, 1899, under, and by virtue of a warrant to the sheriff issued and delivered by the governor iff Ohio,reciting that a requisition had been made upon him by the governor of Michigan for the surrender of the bodies of said Ru3sell and Spellman, fugitives from justice of said state of Michigan, charged with the crime of bank robbery, ás appears by a copy of the indictment, complaint and wariant, which is duly certified as authentic and to have been filed in the executive department of the state of Ohio, commanding said sheriff forthwith to arrest said Russell and Spellman and bring them before any judge of the court of common pleas in whose district or jurisdiction such persons so charged may be found. And it appearing that they have been duly arrested, as this order proceeds to state, to-wit, on January 14, 1899, and are now in the custody of the sheriff under an order made in another cause, hereto attached marked “A.” and said warrants having been served by the sheriff and the contents .thereof read to said parties, the parties were again’arrested at 1:18 P. M., and on said day and date first above written, it was ordered that the parties be kept in custody thereof until a later date; and on January 18th, it appears from the entry the sheriff again brought the said parties before said judge who proceeded to bear and examine into said charges against said Russell and Spellman, and upon proof being made in said hearing and examination, it was adjudged sufficient to justify and require the same to be done, no evidence whatever being offered by said parties alleged fugitives from justice, or either of them in their own behalf, it is ordered that said Russell and Spellman be committed to the jail of this county there to be kept in the custody of the sheriff of said county until .Saturday, January 21, 1899, at one o’clock P. M., and that due notice be given to the agent of the state of Michigan.

That is the order which the plaintiffs allege was mads and under which they are now held and deprived of their liberty.

The provisions for the extraditicn of criminals in the state of Ohio,undertaking to follow the provisions made by the congress of the United States and to provide the details for carrying out that law, are not presumed to be in conflict with it, but only in aid of it; and those statutes in Ohio provide that upon a warrant being issued to the sheriff of a county by the governor of the state under such proceedings, he is commanded to arrest and bring the person before a judge of the Supreme Court, or the circuit court or the common pleas court, to be examined on the charge, and upon the return of the warrant by the sheriff with the person so charged in custody, the judge before whom the person so arrested is brought, and to whom the warrant is returned, shall proceed to hear and examine such charge, and upon proof made upon such examination by him adjudged to be sufficient, shall commit said person to jail in the county in which such examination is so had, for such time as the judge fixes, to be turned over to the agent of the apprehending state. This petition sets forth that these men were arrested upon a warrant issued by the governor of the state, and that the warrant issued by the governor of the state was issued upon demand made to him by the governor of Michigan for the apprehension and arrest of these men as fugitives from justice, and setting forth that an affidavit had' been filed in Kalamazoo county, Michigan, charging the persons named in the application to the governor with, the crime known as bank robbery in Michigan, and that the persons named therein, after having committed the offense described therein, had fled and taken refuge in the state of Ohio. Having set that forth, and havingset forth the order that the judge has made before whom the sheriff' was required to and did bring these men, this application proceeds to say that they are not the persons named in the-affidavit, in the demand of the governor of Michigan, nor in the warrant of the governor of Ohio, and that the judge before whom they were brought had no jurisdiction over their persons. So far as that ground is concerned the application sets forth that he is a judge of the court of' common pleas of that county, and the statute provides that the arresting officer shall bring the person so arrested before a judge of the court of common pleas of that county. I think he was the proper person before whom these mem should be brought, and was the properperson to give such hearing as the statute provides in this case, and if an order was found necesaasry to be made, he was the proper judicial officer to make that order, and the order in question then was made by one who had the jurisdiction to make it- and the order is set forth in full, and it sets forth particularly that these men were brought before him, and that proof was adduced before him, and that it was sufficient and in the language of the statute, it was adjudged sufficient, and thereupon he did as the statute ordered him to-do and committed them to the jail of the coun'y.

Section 5726, Revised Statutes provides that “A person unlawfully restrained óf his liberty, * * * may pIogecu(e a, writ of habeas corpus, to inquire into the cause of such imprisonment, restraint or deprivation.”

Section 5729 Revised Statutes provides:

“If it appear that the person alleged to be restrained of his liberty, is in custody of an officer under process issued by a court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment or make the order, the writ shall not be allowed; or, if' the jurisdiction appear after the writ is allowed, the person shall not oe discharged by reason of any informality or defect in the process, judgment or order.”

A number of decisions are cited under this section of the statute to shew that when jurisdiction is established,'habeascorpus will not lie. -There are several cases in Ohio that have been before the Supreme Court, but they do not determine the question,and the only one that is raised here— and that is, Whether habeas corpus will lie for the purpose of re-trial upon evidence offered by the parties to the proceeding, the question which the statute I have read from — ■ sec. 97 — -commits to the decision of the judge of the supreme, circuit or common pleas court of the state. The-statute in relation to habeas corpus provides that the writ may be granted by the Supreme Court, the circuit court and the common pleas court or the probate court, or by a judge of either. I have said that the question of jurisdiction is practically determined against these applicants by the spplication itself; it shows jurisdiction, so that the only other allegation contained in their application is an allegation of fact, to-wit, that they are not the persons named in these oroceediugs at the various stages of them; that they are not only not the persons named therein, but they are-not fugitives from justice, and have never been in the state-of Michigan. These constitute perhaps two allegations;for, if they were the persons and yet were not fugitives-from justice they would not be subject to extradition; and if they are not the persons, then regardless of whether they be fugitives from justice or not, they are not subjeet to extradition in these proceedings. That question is a question which we think the legislature of the state of Ohio has submitted to the judge of the court before whom this warrant .is returnable,,in the first instance.

The case of Ex parte Sheldon, 34 Ohio St., 319 is one where the parties, by agreement, submitted the evidence that had been taken in the proceeding under sec. 97, under an attempt to take a bill of exceptions, which the court held, in another case, they could not take; and by agreement of counsel and consent of the court, the Supreme Court heard the case upon that testimony so set forth, and they review it to some extent; but they do not decide and determine the question which lies here, Whether a judge having jurisdiction to issue the writ of habeas corpus, may issue it at his own sweet will, and thereby review the decision of a judge before whom this warrant is returned, not upon the testimony beard by that judge,but upon testimony such as the parties may see tit to offer in that proceeding? and after a very careful consideration of that question, we have come to the unanimous conclusion that that can not be done. It would be a strange anomaly in the administration of justice if it could be- — if this warrant could be returned to a judge of the court of common pleas or of the circuit court, and he, after healing the evidence which the statute provides he must hear, and determining questions which he must determine, and some of which are, Whether the persons named in the affidavit are the persons before him, and whether they have fled from justice: After this is determined,that it were possible that a probate judge, or a judge of any of these other courts could take that case directly out of his hands, or take it after be had decided it and hear different evidence, or any evidence that the parties saw fit to bring, and set aside that order for judgment. It is a curious conflict of jurisdiction as it seems to us, and one that is not intended by the statute in relation to habeas corpus, and the Supreme Court have not decided that they could do any such thing, so far. and we are content to wait umil they do so decide before we lay down any law, to that effect.

Hills & Reed, and F. P. Colver, for Plaintiffs.

W. B. Starbird, Esq., for Respondent.

There is no doubt that a proceeding before a judge under this statute — 97—may be now reviewed on error. It was held in Ex parte Sheldon, supra, that it was not reviewable on error, but the statute of 1898, vol. 93, page 255, gives a right to review it on error. To what extent that review may go, it is not necessary to decide here; how much of the record may go up, or what the court may examine, but certainly it can examine everything that goes upon the record after the record begins to be made — after they begin to make a record in the state of Ohio, and all papers that come here certainly belong to the record, and they are a part of what is necessary for the movement of this writ from its source to the time it is served. Whether the oral testimony can be put into the record, is a question I need not now determine, but all those things that come upon Ike record may be reviewed by a court above that of the judge who makes the order; but we are satisfied that it would not be a just construction of these statutes to hold that any judge of this court shall have the power to issue a writ reviewing with new testimony, the action of a judge of any other court who has made this order. This order sets forth fully all the facts necessary to give him jurisdiction, all the facts necessary to show authority in the sheriff to hold these men and necessary to show the right to mako this order to turn these men over to the agent of the state of Michigan, and until it is reversed, we will presume it to have been properly made, and we therefore hold that the writ of habeas corpus must be refused upon This application.

Counsel for Robert A. Milford and for William Spellman entered a formal exception to the decision of the court for each of the plaintiffs respectively.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    (Sixth Circuit — Fulton Co., O., Circuit Court
    June Term, 1898.)
    Before King, Haynes and Parker, J. J.

    SHABEL M. REYNOLDS v. PETER SMITZ.

      Notes executed under contract not in accordance with it — Burden ■of proof to show agreement—

    Where in a written contract lor the sale oí land, to be paid lor in installments, the deferred payments being represented by promissory note, the scrivener in preparing the notes for signature makes them bear interest irom an earlier day than appears agreed upon in the contract, and the payor claims that he inadvertently signed such notes, charging fraud against the payee, an inspection ol the contract showing that interest on the notes was chargeable from a later date than that designated in the notes, the burden is on the payee to show that the change in the date from which interest was tobe charged was made by mutual agreement; and where he fails to establish such fact, and has sold the notes to innocent parties, the ■payor may recover the additional amount in interest so ■charged against him from the payee.
    Error to the Court of Common PJeas of Fulton county.
   King, J.

This action was brought by Smitz in the court of common pleas to recover of Reynolds the sum of $245, which it is alleged in the petition the defendant below had fraudulently included and written into certain notes by way of ■interest, which plaintiff had signed and given in ignorance •of their terms.

It seems that Smitz bought of Reynolds, August 27, 1895, by a written contract, a tract of land and certain personal property situated th.ereon and described in the contract. Reynolds reserved in the contract the use and occupation of the buildings and certain other privileges in the premises, until March 1st, of the following year, and Smitz agreed in the contract to pay $100 cash (which was done), $1,500 on September 23, 1895, and the balance —$4,168—on or before Septembr 23, 1905, with interest at iseven per cent, from and after March 1, 1902, on all sums not paid, and all interest payable anually. It was further -agreed that on payment of $1,500 in September, 1895, Reynolds was to make a warranty deed of the premises to the purchaser, who was to give notes for the unpaid pur•chase money, secured by a mortgage upon the premises.' •On September 25th, instead of the 23d, the parties met and executed respectively the deed and the notes and mortgage. These latter as written and signed varied somewhat from the terms of the contract in this: that they drew interest from date, to-wit: September 25, 1895, instead of March 1, 1896. The amount of the deferred payments was divided into ten notes, due yearly after March 1, 1896, the last one coming due March 1, 1906; and the notes coming ■ due March 1, 1903, and thereafter, being four in all, drew interest at eight per cent, per annum from date, payable ■ annually. Smitz in his petition below claimed that these -changes were without his knowledge or consent, and were written in fraudulently.

It is conceded that the notes do not follow the terms of the contract, and that the difference to the plaintiff is $245 at least; in other words, that he will be obliged to pay that •sum when he pays the notes, more than he would if the contract originally entered into had been followed. It is denied by the defendant that the change was either fraudulently or mistakenly made, but, he avers, it was made by -the agreement and the consent of the parties.

This case was tried to a jury, and a verdict for the plaintiff below rendered for $245. The plaintiff in error asks us -to reverse this, because it is not sustained by the law or the evidence, and because ■ of misconduct of plaintiff's counsel in his argument to the jury.

As above suggested, the petition alleges that the change was made by Reynolds, either alone or acting in collusion with the person whom he employed to write the papers, and was fraudulently máde. This the answer denies; and it is urged here that the evidence does not support this allegation in the petition, and if it does not, that the verdict must fall. It is also urged, and it is true from an inspection of the record, that the charge of fraud was ignored by the court in his instructions to the jury. We do not think the evidence supports the allegation in the petition that this change in the contract was fraudulently made; but is that the only charge that could be suOmitted to the jury under these pleadings? The court in his charge says:

“Now, the question for you to determine, then, gentlemen, is, Was this contract changed after it was executed, by the mutual consent of the parties, and before the deed,, mortgage, and notes were executed and signed by the parties? If it was changed by the mutual consent of the parties, so that the notes actually expressed their contract and understanding, then, of course, the plaintiff cannot recover. But. if, on the other hand, it was not changed, then the plaintiff would be entitled to recover, for the reason that it is conceded on behalf of the defendant that be has sold these notes to an innocent purchaser, and that they were executed.”

That is substantially all that is said on the issue of frEud' or mistake by the court, and it was not objected to or excepted to by either party. The question then submitted to the jury is, Was the change made by agreement of the parties? If by agreement, then they are bound;but if not, then plaintiff could recover the amount of the difference.. We are inclined to the view evidently entertained by the defendant’s attorneys at the time of the trial, that this charge is correct. It submitted the real question in the case, and one that might be submitted, notwithstanding the petition alleges a fraudulent change.

If.our conclusion here is correct, then the verdict is supported by the evidence. There is a conflict in the evidence about whether the change was made by agreement or otherwise; but we think, after an inspection of the papers showing the change from the contract to the provisions of the-notes and mortgage, that the burden would fall on the defendant below to show that this change was pursuant to an agreement made by and binding upon the parties. This burden we think the defendant failed to sustain. It is suggested that other changes were made from the written contract which were favorable to the plaintiff below; that the time of payment of the last note is fixed some six months later by the note than the' extreme limit named in the contract. This is true, but for such an extension of time the defendant was to receive interest at eight per cent. The contract provided that the purchaser should pay the deferred payment, to-wit: $4,168, on or before September 23, 1905. Thus, by his option, he need not pay under the contract any of the purchase money until 1905; yet by the notes he bound himself to pay the greater proportion of the purchase money before 1905, and is only permitted an extension of six months upon a single payment of $600. This hardly creates a consideration for the addition of $245 of interest money to the terms of the contract.

Reynolds was to have possession of the farm after the execution of the deed to the purchaser until March 1, 1896. That is a pertinent reason for making the notes draw interest from that date. But there are indications that the scrivener who drafted the notes and mortgage intended to follow the contract, The notes are dated the day they are signed — September 25th — 'but all of them are written payable in a given number of years after March 1, 1896. That is the date from which computations of time are made in all notes. And the maker promises to pay the sums named with interest at seven or eight per cent, per annum, payable annually. This would seem to indicate that in the mind of the person who drafted the notes the interest would date from the same date that he had fixed to reckon the running of the note from. Again the contract recites that all the purchase money unpaid on September 28, 1902, shall draw interest at eight per cent. This is interpreted in the drafting'of the notes by making only those which come due after that date, to-wit: the last four, draw interest at eight per cent, from their date. This is .evidently a misinterpretation of the provisions in the contract; but from the form of it, it would look as if those who drafted the notes intended or thought it would have the same effect as the contract.

Handy & Ogan and J. Q. Files, for Defendant in Error,

G. B. Heise and J. W. Roseborough, for Plaintiff in Error.

So this change to our minds seems to be the result of a mistake in understanding and correctly interpreting the contract, and in carrying that interpretation into the notes and mortgage, and that the court below correctly submitted the matter to the jury to pass upon the single question of fact, whether the parties had agreed to an alteration of the terms of the contract, and if they had not so agreed, then the contract under which this land was sold and of which the notes and mortgage were simply acts in execution, should determine the rights of the parties.

Second. We do not think that the counsel have saved, the objection made to the remarks of the attorney of the plaintiff below on the trial to the jury. We probably should add that if properly saved, we do not think those remarks were prejudicial.

So, for these reasons, the judgment will be affirmed.


author: Smith, J.

text:
    (First Circuit — Cinton Co., O., Circuit Court
    May Term, 1897)
    Before Cox, Smith and Swing, JJ.
    MARIA CLAY et al. v. WILLIAM T. CLINE.

      Deed, not delivered, left with third party without instructions to deliver, of no effect—
    (1) . A deed made by a father to some of his children for a strip of ground to be used by them as a roadway, as against other of his children, not delivered, and found several years after the grantor’s death in the hands of third party, not as an. escrow, and without any direction for the delivery thereof under any contingency, confers no rights.

      Go-tenant holding other out of possession — Ejectment or trespass-proper remedy, not injunction — -
    (2) . One co-tenant can not enjoin another co-tenant depriving. him of the use of a part of the land where all are entitled to the-possession of it, and if one wrongfully keeps his co-tenant, out of possession, ejectment or trespass would be the proper remedy, but not injunction.

      Bight of way under verbal contract and possession — Extent~
    (3) . Where parties claim a right of way by contract not in writing and possession, they are limited to the width of the way so taken possession of and accepted.
    Appeal from the Court of Common Pleas of Clinton, county.
   Smith, J.

In this case the claim asserted by the petition of the-plaintiffs, is based solely upon the ground that they are the owners in fee simple of the strip of-ground one and one-half rods wide, of which four and one-half feet in width along, the strip is in controversy. And the only ground upon-which their claim rests, is the alleged deed therefor, executed to them by their father, John I. Cline, now deceased,, while he was the owner of the land, and which is dated May" 30, 1881, but which deed, so far as the evidence shows,, was never delivered to them by him, or by any other person-authorized by him to do so, or which was ever delivered by him as an escrow, to any person to be delivered to them in-any contingency, but which was found in the possession of another person a few days before the commencement of this suit, and several years after the death of the alleged grantor. The claim therefore of the plaintiffs in this regard is without any evidence to support it, and we might well dismiss the petition at their cost.

But we have heard the evidence offered in the case by the parties, as to the facts surrounding it, and we can, if equity requires it, allow the plaintiffs to amend their petition, and base their claim to the relief prayed for on other grounds, on proper terms as to costs. We are of the opinion that the plaintiffs are entitled to a roadway along the line of what is now the Bryant land, and this right ought, in some way, be assured to them. We are satisfied that when the father conveyed the three tracts of land to his three daughters, one to each, it was the arrangement and understanding between them, that they were to have a roadway or outlet through his other land to the road oh the south. There is no proof that it was to be of any particular width, but we are satisfied that Mr. Johnson, the surveyor whom he employed to survey the three farms intended for his daughters, and the one for his son Alexander which lay between them and the road, and to survey the road itself,and to write and take the acknowledgment of the deeds therefor, did run off this roadway rods in width. We question however from the evidence, whether the father had ever consented to give more than twenty feet for the roadway — but still, he signed and acknowledged the deed as it was written,for the strip 1-J-rods wide, but retained it in his possession until his death, and we think it very probable, in view of the evidence as to some of his statements, that it was the fact that the deed was for llj rods, that prevented him from delivering it to the plaintiffs. At all events, the strip was laid off 1-| rods wide, and the deed to his son called for the west line of this strip, and his line would seem to be l-j|. rods west of the Bryan line,

As the deed for the roadway was never delivered, the fee in the land remained in the father subject to the right of the three daughters to the use of a roadway through his land at this point, and on his death it descended to his heirs at law, and is now in them subject to the same easement. How wide this roadway should be is a question of grave doubt. It is shown that within a year or two after the deeds to the three daughters for their several tracts, and that to his son Alexander were delivered fall of them as well as the deed for this strip having been executed at,the same time), Alexander Cline proceeded to erect a fence on or along the west side of the strip, so "that, with the Bryant fence, there would be one on each side of it. The space between these two fences was not of the same width for the whole length of it. It varied in width from about twenty to twenty-nine feet. This was done in the ■ life time of John I, Cline, and with his knowledge, and without any objection on the part of any one, and the road was so used until this time and without any controversy as to its width, until about a year ago, when Mi. Bryant having removed his old worm fence which stood on and straddled his line, replaced it with a straight fence on the line,and thereby widened the roadway, when the defendant Wm. Cline, who had purchased the farm deeded by his father to his brother Alexander, undertook to move his worm fence eastward so as to leave but twenty feet of a roadway. Then plaintiff by this action sought to enjoin him from doing so. What would be the rights of the parties in such case if the question were properly raised ? The matter is not at all free from doubt.

If the heirs of John J. Cline are the owners of the strip 1-|-rods wide,free from any easement of the three daughters, it would seem that one or more of the six co-tenants could not enjoin another co-tenant from a use of a part of the land. They are all entitled to fhe possession of the tract. If one of them should wrongfully keep his co-tenants out of possession, ejectment or trespass would lie. But there could ■not be an injunction, as they would have an adequate remedy at law. If the three daughters have an easement in it, we suppose an unlawful interference with it might be enjoined. There is confessedly no easement by prescription, for the use has not been continued for twenty-one years. But as before intimated, we think they have such an easement by contract and the taking possession of it. But in this case it would be limited to the width so taken possession of and accepted. And the court could only decree them this right where the petition contained proper counts and all the parties in interest were before the court.

J. M. Morton, for Plaintiffs.

Wm. Slone, for Defendant.

In view of all the facts, we are of the opinion that it would be better for all the parties to accept the compromise which was at one time substantially agr.eed upon; and that the ■other heirs of John Cline should conevy to these three ■daughters twenty feet in width of the ground adjoining the Bryant land. This we think would be equitable and just, and would perhaps conform to the intention of the father, and of all the parties,

If the plaintiffs will not agree to this, and desire to amend their petition, it may be done on the payment of all the costs in the case up to this time. If defendant and plaintiffs agree to the suggestion and carry it out, plaintiff must pay the costs. If defendant will not agree to it, or it can not be accomplished, we will allow the amendment, and reserve the question of costs for future decision.


author: Douglass, J.

text:
    (Fifth Circuit — Licking Co., O., Circuit Court
    —March Term, 1899.)
    Before Adams, Douglass and Voorhees, JJ.
    (Adams, J., not sitting.)
    THE BALTIMORE & OHIO RAILROAD COMPANY v. SIMON STOLTZ.

      Speed of railroad train — Opinion of non-expert competent— Exception to charge, on point not requested — Judgment on special findings of jury, when proper to refuse motion for — Contributory negligence, when question of law, when mixed law and fact—
    (1) . A non-professional witness who has observed a moving train may give in evidence his opinion of its rate of speed although he may have no practical knowledge as to the running or management of trains. The opinion involves time, space and motion only.
    (2) . ,.In eases where it is not practicable (because the fact to be established must be derived from a series of instances passing under the observation of the witness), to place before the jury all the primary facts upon which matters lying within the common observation of men are founded, non-experts may state their opinions from such observed facts when such opinions involve conclusions material and pertinent to the issues.
    (3) . .'.In an action for damages lor alleged negligence on the part of the defendant, or of contributory negligence on the part of the plaintiff, it is generally a mixed question of law and fact to be decided by the jury, under proper instructions from the court.
    (4) .' But if all the material facts, touching the alleged negligence, be undisputed or be found by the jury, and admit of no rational inference but that of negligence, in such ease the question of negligence becomes a matter of law merely, and the court should so charge the jury.
    (5) . Touching the question of contributory negligence, in order that the special findings of a jury should control their general verdict to the contrary, such findings should be conclusive and admit of no rational inference but that of negligence, thus making it a question of law merely.
    Error to the Court of Common Pleas of Licking county.
   Douglass, J.

This is an action brought by the^defendantfjin error, as administrator of Prances M. Stoltz against the Baltimore & Ohio Railroad Company, to recover damages resulting from the death of said Prances M. Stoltz, who] was [killed in attempting to pass over the Sixth street crossing in the city of Newark, on the 26th day of October, 1894.

The particular negligence averred against the Baltimore & Ohio Railroad Company is: That said defendant caused one of its passenger trains, No. 104, to be carelessly and negligently run towards and over said Sixth street crossing, at a high and dangerous rate of speed, in violation of the city ordinance then in force limiting the speed to five miles per hour; that the said train was run at the rate of over thirty miles per hour, and that the defendant negligently omitted to sound or ring the bell, or give any other signal for said crossing on its approach thereto. That when within thirty feet of said crossing, the danger signal was negligently given, and caused the horse then driven by Frances M. Stoltz to become frightened, when, but for this, she could have crossed in safety.

That the train was in charge of an incompetent engineer. That the brakes were defective. That, by reason of the aforesaid acts and defaults of the company, or some of them, the said Frances M. Stoltz, and the buggy in which she was riding (without any fault on her part) were struck by the said locomotive and thrown a distance of sixty feet, and killed. And this administrator claims damages in the sum of $1999.00.

The answer denies these allegations of negligence, and says that the decedent, Frances M. Stoltz, was guilty of contributory negligence.

The cause, on these issues, was tried to a jury, and re-resulted in a verdict for the plaintiff in the sum of six hundred dollars.

Error is prosecuted here to reverse the judgment on this verdict.

The errors relied upon and argued are:

1. Error in the admission of improper evidence.

2. Error in the exclusion of evidence.'

3. Error in the refusal of the court to direct a verdict.

4. Error in refusing to charge as requested.

5. That the court erred in the charge.

6. Error in overruling the motion of plaintiff in erorr or judgment upon the special findings of the jury to the interrogatories as answered, notwithstanding the general verdict.

7. That the verdict and judgment are against the evidence an! the law of the case.

First: As to the admission and exclusion of evidence:

During the course of the trial, various persons who saw this train as it was approaching the point of collision, were permitted to give their opinion as to the rate of speed at which the train was moving. Some of these persons had no special knowledge or experience in the running or management of railway trains. They were the average, ordinary persons with some familiarity as to moving trains. The claim is that these opinions are inadmissible, on the ground that such witnesses are not qualified to express an opinion on this subject.

We think that the case of R. R. v. Schultz, 43 Ohio St., 270, at 282, and the Shelby-Claggett case in the 46 Ohio St., answer this against the claim of the plaintiff in error. The substance of what the court say is this: Where it is not practicable to place before the jury all the primary facts upon which matters lying within the common observation and-experience of men are founded, non-experts may state their-opinion from such facts, when such opinions involve conclusions material and pertinent to the issues.

This was a matter directly in issue, viz: the speed of this train. It was simply a question of time, space and motion, That is all that was involved in this non-expert opinion. If' it be relevant and proper to say how fast a man or a horse,, or any moving object, is going, the same principle is here-involved, as we think, and none other. A want of observ-■ation and experience (which can easily be discovered upon cross-examination), goes to the weight, but not to the competency of the evidence.

We find no error either in the admission or exclusion of the evidence on this, and, I will say, on any other particular or ground in this record that is prejudicial. 'We have read every word of the record, and carefully examined it, and that is our view on this proposition as to the admission and exclusion of evidence.

This brings us to the third alleged error, viz: The refusal of the court to direct a verdict for the defendant. Applying the well known rule that if there is any evidence, however slight, tending to show each of the material allegations that it is necessary for .the plaintiff to prove in order to recover, then it is error for the trial judge to direct a ■verdict. We have this matter to consider in the light of that rule.

32 Ohio St., 66, second and third syllabus:

“In an action for damages for alleged negligence, the question of negligence on the part of the defendant, or of contributory negligence on the part of the plaintiff, is generally a mixed question of law and fact, to be decided by the jury, under proper instructions from the court.
“But if all the material facts, touching the alleged negligence, be undisputed, or be found by the jury, and admit ■of no rational inference but that of negligence, in such case the question of negligence becomes a matter of law merely, and the court should so charge the jury.”

The 24 Ohio St., 631, and numerous other authorities, a solid rank of them, are a unit upon this proposition, and lay this down as the rule that shall govern the court wh.en this motion is interposed.

Unless the proof in this case, when the plaintiff rested, was such that no rational inference could be drawn from the ■proof except negligence on the part of the deceased, directly •contributing to her injury, then the court was right in overruling the motion, Tested by this rule, we are of the opinion that this motion was properly overruled.

The fourth and fifth grounds of complaint are: ' Error in •refusal to charge as requested, and in the charge as given. These we will consider together.

First, however, I will refer to an objection that does not appear in the charge affirmatively; neither is there a request to so charge. It is said that the court erred in its failure to charge that if the evidence of the plaintiff raised •the presumption of contributory negligence, that the burden was on the plaintiff to remove this presumption by evidence. There was no request to so charge. If the same had been requested, it doubtless would have been given. It is the law in a proper case. But, unless it can be seen from the whole charge that this omission prejudiced the defendant, in the absence of a request to so charge, the case would not be reversed on that ground.

We have carefully read and examined these requests and the whole charge. The requests to charge, with some verbal changes, are given, in our judgment; and there is no prejudicial error in this regard. We see no error in the charge as given.

I will not take up the time to read as much from this charge as I had intended, but I will make some reference to it. The court says;

“It is the law that, notwithstanding the company may have been guilty of negligence, yet if Miss Stoltz was also guilty cf negligence which contributed to cause the accident and her death, the plaintiff cannot recover. If the carelessness or negligence of Miss Stoltz, together with the carelessness or negligence of the defendant, operated proximately to produce the injury, plaintiff cannot recover, The test of negligence on her part is the same as upon the part of the plaintiff. It is the want of ordinary care, and ordinary care is such care as persons of ordinary care and prudence are accustomed to exercise under circumstances similar to those which surrounded her in the approach to that crossing, If persons of such ordinary care and prudence would have acted as she did in approaching the orossing, then she was not guilty of contributory negligence.
“The burden of proof is upon the defendant to show, by a preponderance of the evidence, that she was so negligent. ’ ’
“It is the duty of a person approaching a railroad crossing to make use of his senses of sight and hearing to ascertain if a train is approaching the crossing; and if Miss Stoltz failed to see or hear the approaching train, when a person of ordinary care and prudence, by exercising his eyes and ears, would, under the circumstances surrounding her, as shown by the evidence, have discovered a train in close proximity, and was injured, she would be guilty of such negligence as will prevent a recovery by the plaintiff.
“Ordinary care and prudence requires that a person, before attempting to cross a known rail road crossing, should use his eyes and ears for the purpose of discovering ánd avoiding danger from a passing train; and the omission to-do so, without reasonable excuse’ therefor, is negligence such as will defeat an action for an injury to which such-negligence contributes.
“The fact that the view of the track was obstructed does-not excuse the neglect to look and listen. It makes the-neglect to do so even greater”

We think that this is the law.

“Notwithstanding the fact that the train was running at ' a higher rate of speed than five miles an hour, if Miss Stoltz, by the exercise of ordinary care might have avoided the injury, it would be negligence on her part if she did not avoid it, and she could not recover.”

Defendant in error complains somewhat of that, We think that is the law.

“If the bell was not rung, and, by the exercise of ordinary care, she could have avoided the injury, and she did not do it, it would be her negligence, and she could not recover. ”

And thus the court proceeds; and as to the charge relaiive to the ordinance, and as to what she had a right to an. ticipate respecting that, we feel that it is due to say, that this is a first-class charge in a very troublesome and doubtful sort of a case.

Thus far there is no serious trouble about this case so far as the court is concerned. We have had some difficulty about another proposition, and the real proposition in the case. We think this is a close case. Next we come to consider the action of the court in overruling the motion of the plaintiff in error for judgment upon the special findings of the jury, notwithstanding the general verdict. It is not necessary for me to refer further to these authorities. They are so familiar to counsel that it is like A., B., C., — 32 Ohio St., the 24 Ohio St., 35 Ohio St., 40 Ohio St., 41 Ohio St., the 50 Ohio St., and many others. In their various bearings, as they relate to the facts of the particular case, we have examined them, because of our trouble with this case. This interrogatory was propounded: “Do you find from the evidence that Miss Stoitz looked or listened for the train between the Straitsville Railroad track and the place of the accident?” Answer: “No evidence she did or did not.” It is said that the answers to the interrogatories absolutely foreclose the plaintiff; that all the material facts thus found by the jury put them beyond the domain of dispute, so that- they admit of no rational inference but that of negligence, and that the question of negligence is one of law only. That must be the position assumed in order to make the claim that is insisted upon here in argument for these answers to these interrogatories. This,question was propounded: After she left the Straitsville track and drove towards this crossing where she was killed, did she look and listen? They say there was no evidence whether she did or did not. Negligence is never presumed. If there is no evidence, then the presumption, if any arises, is in favor of the plaintiff, and such presumption must prevail until overcome by proof. That would be our view of that. It íb simply a blank. She drove there, but there is no evidence whether she looked or listened. The presumption is not against her; and, if there is no evidence, she has the best of it.

The second interrogatory is: “Do you find from the evidence that Miss Stoltz, as she approached the crossing, had the curtains upon her buggy and the apron in front of her fastened up, and was driving with the lines through an opening in the apron?” Answer: “Yes.’ This does ■ not. prove that she did not look and listen. She was bound to look and listen. It only shows that the conditions surrounding her were unfavorable. This was properly left open for the jury to determine, under proper instructions by the court.

“Do you find from the evidence that it was raining at the time of the accident?”’ Answer: “Yes”.

This is only remotely related to the matter. That is, it does not go to the vitals of the case. It reflects upon the ability of the engineer to manage his train and stop it suddenly, and as to the carrying of sound as far as hearing is concerned. There is no trouble about that.

“Do you find from the evidence that Miss Stoltz stopped her horse or slacked its speed before the horse reached the railroad track?” Answer: “No.” This, like question two, does not prove that she failed to perform the duty that the law enj'oins, viz: To look and listen, or both. It is one of the circumstances of the case for the determination of the iury- .

“Do you find from the evidence that Miss Stoltz was driving her horse in a trot from the time she passed the witness Richardson near the Straitsville track until the horse went upon the track where the accident occurred?” Answer: “Yes”. The same may be said of this as of the other.

We do not find, as we view it, that these answers furnished any additional reason why the court, as matter of-law, should have disregarded the general verdict and entered judgment upon the special findings of the jury.

Is the verdict sustained by sufficient evidence? When, tested by the rules laid down in the charge of the court, and by the principles that must govern a case of this kind, it is, as I have said, not free from doubt. The question is: whether, as a matter of law, Miss Stoltz was guilty of contributory negligence; whether or not that was such a mixed question of law and fact that a rational inference could be-drawn in her favor as would require the court, under proper instructions, to send that to the jury. We think that is the whole question in the case. Here was a known railroad crossing. She was coming to cross it. She drove in a trotr up until she got upon the track; clear on to the track. She had the curtains of her buggy up. She had the storm-apron buttoned up in the usual way with the lines through an aperture, or opening, in the front. There is the further fact, as found by the jury, that there is no evidence either way that she either looked or listened. To my mind, the-conclusion is almost irresistible that she did not perform the duty enjoined upon her by law to look and listen. But, if there is a rational deduction that can be made the other-way, then this should be sent to the jury under proper instructions of the court. The evidence warrants the conclusion that this train was running at the rate of twenty-five to thirty miles an hour; that the bell was not rung. That the signal by whistle was given not to exceed sixty or seventy feet from the crossing. The jury found that there is-no evidence pro or con that she looked or listened; that she was driving and continued to drive on a trot up to and under the crossing. That she was in a buggy, with the curtains on, with a storm-apron fastened up in the usual way, and with the lines through an opening therein. Taking into consideration the speed of this train, together with other circumstances of this case, there is no difficulty until you have reached the point of time when Miss Stoltz reached the north end of the Lane' Brothers’ office, forty-five feet from the center of the track. At one hundred and fifty feet away, you could see eleven hundred and fifty feet. At one hundred feet distant, you could see three thousand feet. At forty-five feet, or the north end of Lane Brothers’ office, you could see three-quarters of a mile, or almost four thousand feet. There is evidence about poles and trees and all that. If this train was running at the rate of twenty-five or thirty miles an hour, the eleven hundred and fifty feet would be covered in perhaps twenty-five seconds. Had she looked at any time before reaching this last point, taking into consideration .the speed of the train and the obstructions, she would have discovered nothing. The train was not in sight at eleven hundred and fifty feet,, or even three thousand feet, running at that rate. If she listened, could she have heard it? When she comes to pass the corner of Lane Brothers’ office, forty-five feet distant, did she look and listen, in view of her situation in the buggy, and the speed at which she was going? It is said she could see three-quarters of a mile, then and thereafter until she reached the track. At this point she was bound to look. Is it true that she did not look? She had the right to assume that the railroad company was complying with the ordinance. That its speed was not to exceed five miles an hour, unless she knew to the contrary, that it was running twenty-five or thirty miles an hour, or at least faster than five miles; and if a person of ordinary care and prudence, so assuming, with a train three-quarters of a mile distant, running at such rate of speed, to-wit: five miles per hour, would have crossed, and could have crossed in absolute safety, then it is difficult to say from this whether she did or did not look «nd listen. It seems to us that inferences may be drawn and rational deductions made for and against her right to recover. My own might be against it. That being true, it is removed from a question of law merely to a mixed question of law and fact, to be determined by the jury under proper instructions from the court.

Kibler & Kibler, for Plaintiff in Error,

J. A. Flory and B. G. Smythe, for Defendant in Error,

This opinion of Judge McIlvaine aids this view: (24 Ohio St., 631, at page 636):

“The testimony undoubtedly shows that the deceased were well acquainted with the cross ing, and knew its dangerous character; and it also seems clear that they did not, in fact, discover the approach of the train until they had reached, or were within a few feet of the crossing. But to say nothing of the conflict of the testimony, we think the circumstances which surrounded them; the doubt whether they could have heard or sesn the approaching train before they did; and as to their exact location at the time it was discovered approaching; their situation, not only in reference to the track and the train, but also as to other conditions which may have required their attention, etc., brought the case so peculiarly within the province of the jury, for the purpose of weighing the circumstances, drawing inferences, and testing their jonclusions by the rule of ordinary prudence, that a majority of the court do not feel authorized to interfere with the verdict, especially as the same result has been reached, upon substantially the same state of proof, by four separate and distinct juries. ”

That is very pertinent to the very matter under discussion here.

Taking this view of the case, we are of the opinion that this judgment should be affirmed.


text:
    (Sixth Circut — Sandusky Co. O., Circuit Court
    —Dec. Term, 1898)
    Before King, Haynes and Parker, JJ.
    H. J. JOHNSON v. W. H. SLAYMAKER et al.

      Building contract — Failure of contractor to comply—

    (1) . Where in the performance of a building contract work has been done and materials furnished, but not in the manner stipulated in the contract, the contractor may recover in an action against the owner on a quantum meruit for the work and quantum valebant for the materials, and the proper measure of damages is the contract price of the house, deducting therefrom so much as the house was worth less on account of the deviations from the contract.

      Same — Time of performance where of essence of the contract—
    (2) . Where it is stipulated in the contract that the building must be finished within a certain time, the contractor is bound to finish the building within the time stipulated, and can not show that it was impossible to do so, unless the owner himself prevented, or unavoidable accidpnt intervened. Same — Bight of owner to stop contractor from proceeding—

    (3) . Where the contractor fails to finish the building within the time stipulated, the owner may stop him from completing the contract.

      Extras agreed upon verbally where contract provides they should be in writing—
    (4) . Where the contract provides, that no extras should be allowed except as might be agreed upon by the parties in writing in advance of doing the work, a charge for an extra which was agreed upon verbally is not admissible.

      Payment on monthly estimates — Failure to name in contract person to make estimates—
    (5) . Where the contract provides that monthly estimates of the work done should be made and 85 per cent, thereof paid, the fact that the contract fails to state who should make these estimates, will not make such provision ineffective but the estimates themselves must be agreed upon by the parties and payment made accordingly.

      Same — Question for jury—
    (6) . The question whether the contractor has substantially performed the contrac* is one for the jury to determine. Knowledge by owner of deviations — Effect—
    47). Where the owner or his agents itnew of the deviations from the contract while the work was going on, although this would not amount to a waiver of his right to object to”the work or claim damages on account of the failure of the contractor to comply with the contract, yet it would estop the owner from objecting to the contractor being paid for the work done and material furnished because not in compliance with the contract.

      How verdict to be determined—
    (8). In suoh a case the jury should allow for the work done, and material furnished, deducting therefrom damages for the delay in construction, damages on account of the contractor’s failure to construct according to the contract, and damages, if any, on account of the cost to the owner of completing the building, in excess of the contract price. If these damages amount to more than the value of the work and material of the contractor, the verdict should be for the owner; if less the verdict should be for the contractor for the balance.

      Damages for delay in completing building — Proper measure—
    (,9). The proper measure of damages for failure to complete the building within the time stipulated in the contract is the value of the use of the building during the months its completion was delayed, if it had been completed according to and within the time stipulated in the contract.
    Error to the Court of Common Pleas of Sandusky county.
   King, J.

(orally.)

This action was commenced in the common pleas court by H. J. Johnson, plaintiff in error, against the defendants, Slaymaker and The American Surety Company, and on the trial resulted in a verdict and judgment in favor of defendant Slaymaker, for $4,432.00, and also judgment in favor of The American Surety Company for its coats. This judgment the plaintiff in error seeks here to reverse. The record is extremely long and contains a large number of exceptions to the admission and rejection of evidence and the charge of the court and its refusal to charge as requested by plaintiff.

Plaintiff in his amended petition sets forth that on February 21, 1896, he entered into a contract with Slaymaker to build for him ("the plaintiff) upon the plaintiff’s premises, a building known as the Oak Kidge Sanitarium, situated near the village of Green Springs, Ohio. A copy of the contract is attached to the petition and made part thereof, together with the specifications for the construction of the building, He avers that the defendant contractor departed from the contract in many respects, particularly that the footing courses in the wall should be of large flat limestone; the range work to be of first-class white limestone laid in straight level courses, and the water tables of Berea blue sandstone. And he avers that the contractor did not use mortar and cement as he agreed; did not put in the kind of stone in the footing courses, range work and water tables required; that the door frames and window frames were not set as called for in the specifications, but some fourteen inches higher; that he did not use the character of lumber for door frames agreed on, and that he did not construct the building within the time limited in the contract, to-wit, June 20, 1896; and avers that by reason of the breaches of the contract set forth and the failure to complete the work an additional period of five months was necessary to finish it; and that he was kept out of the use of the building as a sanitarium during the summer and fall season of the year, a time when it would have been most valuable to him, and was thereby damaged in the sum of 17,300.00. The contract set forth that the contractor was to do the work between the day of the contract and June 20th. That he was to be paid by monthly estimates made on the first day of each and every month for the material and labor put info the building on the last preceding month; and of said amount that plaintiff was to pay eighty-five per cent., retaining fifteen per cent, until the building should be completed and accepted by the plaintiff. There was a provision in the contract that'no liens should be created by or through the contractor,^and that he should purchase, furnish and provide labor' and^material so as to not make Johnson liable, and so that there could not be placed upon the building any liens. A further provision was to the effect that no extras were to be charged except as might be agreed upon by the parties in writing in advance of doing the work. It was further stipulated that the contractor should give bond in the sum of $10,000.00, which he did, with the defendant, The American Surety Company, as surety.

Defendant Slaymaker, in his answer, admits the making of the contract and the bond; admits he began work under it and continued until June 20, 1896; admits that he had not on that day completed the work according to the contract. Admits he had not constructed a sun house provided for in the contract strictly as provided for in the specifications. He denies all other allegations of the petition' alleging breaches on his part, and by way of counter-claim he sets forth eight causes of action or counter-claims.

And as his first cause of action he says that the plaintiff, Johnson, attempted to buy him off, and failing to do this, maliciously and wrongfully obstructed and delayed him in the prosecution of the work and caused liens to be taken out on his property, and represented to divers persons that he was not applying the money paid him to the payment of bills, and was squandering the same, whereby he says he was damaged $2,000.00.

And second, he avers that the defendant maliciously held money due him, and maliciously stated to the Surety Company that defendant was wrongfully refusing lo pay for labor and material, and was squandering his money in intoxicating drink, to his damage $2,000.00.

For a third cause of action, he says plaintiff wrongfully requested and procured men, men who had furnished labor and material, to perfect liens, to defendant’s damage $1,000.00.

. Fourth, that after he commenced work and after plaintiff had designated the place where the building was to stand, he came and objected to placing the building at that place, and requested it to be built in another place. That this required him to do an additional amount of work at great expense, to his damage $600.00.

For his fifth, he allege? that because of numerous changes made and caused by Johnson, he was entitled to reasonable time for the completion of his work; that on June 20, 1896, an estimate was made at that date;that he had performed work and furnished material amounting to $10,176.00. That on June 22d, two days later, Johnson maliciously and forcibly ejected him from the building and left unpaid on the contract $6,376.00; and further avers that he would have made a profit of $2,000,00 if allowed to continue, and he asks judgment for both said sums.

In the sixth cause of action he states that a contract was made by which he agreed to lay certain rough floors not included in the original contract, for which Johnson agreed to pay him $545.00, $425.00 in cash and $120.00 in glass material of the plaintiff.

In the seventh he avers that by agreement with plaintiff he constructed a thirteen inch wall instead of an eight inch wall, for which he asks $25,00.

The eighth cause of action alleges the performance of extra work upon certain steps, for which he asks $5.00. I should have stated that the contract provided, among other things, that the plaintiff should have the use of the old material on the ground. It was the refuse of a hotel or sanitarium that had stood on this location previously, and had been burned,

The plaintiff, in his reply, denies all allegations in this answer of any consequence, He does, however, admit that the defendant not having finished the building, nor having it more than about one half constructed on June 20th, he did order him to leave, and as defendant was insisting on his right to come back and resume work, he procured an injunction enjoining the defendant from entering upon the premises and molesting the plaintiff in the possession of the building. It was on these issues that the defendant recovered a verdict and judgment in this case. The exceptions taken in the course of the trial are so many in number, I can notice but a few of them.

It was contended by the plaintiff on the trial, and is so argued here, that the defendant did not construct this work and building so far as he had progressed, according to the contract. That he used limestone where sandstone was stipulated for, and that he used blue limestone where white limestone was stipulated for, and that he used poplar lumber instead of white pine. These are claimed in argument to nave been the material deviations, although many others were insisted on, but last and most important he so delayed the performance of the work that the building was not nearly completed on June 20th. That this constituted an utter failure on the part of the defendant to perform, and that so far as these several causes of action are concerned, he cannot recover at all without proving and showing substantial performance of the whole contract. That the contract is entire, and to recover anything he must have substantially performed the whole of it. That the jury should have been so instructed, and that the court should, after the verdict, have set it aside because it violates that fundamental principle of law that the defendant must show a substantial performance of all of the conditions of the whole contract before he can recover anything on account thereof.

A determination of this proposition will dispose of a large number of objections to the charge and refusal of the court to give plaintiff’s requests. Whether defendants right of action under circumstances such as are disclosed here is based upon the contract or upon the value of the labor and material furnished, is not important to the determination of the question whether he can recover anything in any form of action, I refer, however, on that subject briefly to the citation in the case of Goldsmith v. Hand, etc., 26 Ohio St., 101, where the court, on page 108, cites with approval the case of Hayward v. Leonard, 7 Pick., 181, in which it is said that where “work was done and the materials furnished, but not in the manner stipulated for in the contract,” one might maintain an action against the owner, “on a quantum meruit for his labor, and quantum valebant for the materials, and the proper measure of damages was the contract price of the house, deducting from it so much as the house was worth less on account of the variations from the contract.” This, I think, states the rule generally understood in that class of actions even under the liberal rules of pleading of our code. We do not hold that defendant’s counter-claims were not pleaded on that theory .Doubtless, however, the essentials for that form of pleading might be more definitely stated; yet if defendant might recover at all, we think his answer so far as the fourth, fifth and sixth causes of action are concerned, is sufficient, and we resume the subject of whether defendant has any right of action.

The most material failure to perform this contract is failure to complete it by the time named. He claims he was delayed by plaintiff. There is but one delay shown, and that is a change in the situation of the building. I doubt if defendant shows that this ought to have delayed him a week, and certainly it ought not to have cost him $50.00 from his own testimony. And had he pursued this contract diligently, he could have made up the time lost occasioned by the change in the location. Beyond that, nothing was done by plaintiff to hinder the performance of the contract. If it were a possible thing to perform this contract within the time named, defendant ought to have done so. He agreed that he would perform it, and although he offered some evidence to show that it was impossible to'^perform, we are not inclined to accept that view, but rather say, having covenanted to perform, he is bound to do it, unless plaintiff prevented or unavoidable casualty intervened. United States v. Smoot, 15 Wall., 36.

Defendant was the judge when he entered into the contract, of the time within which he could perform it, and if he agreed to difficult or inconvenient obligations, a court of law cannot relieve him from the consequences of his erroneous judgment. He was bound to perform this contract within the .time named in it. See on this subject: 1 Beach on Contracts, page 73; 114 Mass., 479; 22 Maine, 132.

Under the circumstances of this action, time was essential to the plaintiff, who desired to open this building as a hotel and sanitarium, and desired to open it before the summer season commenced. Hence the plaintiff had a fight to put into his contract that stipulation, and defendant the equal right of agreeing to it. And if he did not complete it on the day named, the plaintiff had a right to say to him he should not longer continue the work, I cite Phillips, etc., Co. v. Seymore, 91 U. S., 646, and read an extract from page 651:

“If the builder had done a large and valuable part of the work, but yet has failed to complete the whole, or any specific part of the building or structure within the time limited by his covenants, the other party has the option when that time arrives of abandoning the contract for such failure, or of permitting the party in default to go on. ' If he abandons the contract and notifies the other party, the failing contractor cannot sue on the covenant and recover, because he cannot make or prove the necessary allegations of performance on his own part, What remedy he may have in assumpsit for work and labor done, materials furnished, etc., we need not inquire here.”

So that the plaintiff was justified, we hold, under the circumstances of this case, in stopping the defendant from completing this contract, but that does not dispose of the question we are considering. Defendant had furnished a large amount of labor and'material; he had undertaken to, and the evidence discloses that he was following substantially the plans and specifications of this contract. That there were deviations from it, that there were imperfections in the work, and that there were changes of material made, cannot, from the evidence in this case, be denied. But there was all the time a construction of a building on the plan and line of the contract. The fact that the time had expired within which it was to be constructed is not sufficient to debar defendant from recovering on his counterclaim.

Let me cite here a quotation from Story on Bailments thought sufficiently authoritative to be quoted by our Supreme Court in the case of Allen v. Curles, 6 Ohio St., 505, and on page 508, I read this much from the quotation:

“If the work has been done and fully completed, but not according to the terms of the special contract, as if there had been a deviation from the plan or contract, or a bad or improper execution thereof, or the work has not been completed within the stipulated time, then the workman will be entitled to recover compensation, or not, according to circumstances. If the work has been so improperly or unskilfully done, that it is of no use, benefit, or value to the employer, or does not in any manner answer the intended purpose, no compensation whatsoever is recoverable. But if the work, although improperly or unskilfully done, is still of some use, benefit and value to the employer, the workman will be entitled to recover sc much as the work is reasonably worth to the employer, under all the circumstances, making him all due and reasonable deductions and allowances. If the work has been well and properly done, but not within the stipulated time, the workman will, in like manner, be entitled to the compensation stipulated in the contract, making to the employer all due deductions and allowances for any damages or loss occasioned by delay.”

I cite the case of Engle v. Jones, 2 Wall., 67 U. S., page 1, and read from the opinion the following:

“When he (the contractor) has been guilty of fraud, or has willfully abandoned the work, leaving it unfinished, he cannot recover in any form of action. Where he has in good faith fullfiled, but not in the manner or not within the time prescribed by the contract, and the other party has sanctioned or accepted the work, he may recover upon common counts in assumpsit.”

I might extend these quotations, but they state, in our opinion, the law, and that which we design to follow, so that as far as time is concerned, that in itself, will not bar the defendant of his right to recover, Has he then so far deviated from the contract as to prevent a recovery ? The opinions of the courts in the cases we have already referred to, amply sustain it. I quote the following from the case in 7 Pick., reading from page 185:

“We think the weight of modern authority is in favor of the action, and that upon the whole it is conformable to justice, that the party who has the possession and enjoyment of materials and labor of another shall be held to pay for them, so as in all events he shall lose nothing by the breach of the contract. If the materials are of a nature to be removed, and liberty is granted to remove them, and notice to that effect is given, it may be otherwise. But take the case of a house or other building fixed to the soil, not built strictly according to contract, but still valuable and capable of being advantageously used or profitably rented; no absolute rejection of the building with notice to remove it from the ground; it would be a hard case indeed if the builder could recover nothing.”

To the same effect are the United States cases, and to the same effect, we understand, are the Ohio cases.

It is argued in this connection that whether defendant substantially performed the contract was a question for the court, not the jury. We think the authorities hold, that it is a question for the jury, but if it is a question for the court, we should hold under the evidence submitted in this case, that the plaintiff has sufficiently performed that part of the contract completed by him, to entitle him to recover the value of his services and the materials, subject to certain deductions. It is true he did not follow in every respect the plans and specifications; but as to the stone work we think the evidence fairly disclosed that the plaintiff and his agents authorized by him to be at and upon the work, knew of these deviations, and if plaintiff is allowed to assert that defendant shall recover nothing, he could do this only where he proved absolute ignorance of the changes made. We do not hold, and it is not necessary in this case, that plaintiff ever waived his right to object to this work or to claim damages on account of the failure of defendant to follow his contract. But he has waived the right to object, or rather is estopped from objecting to the defendant being paid for the material and work because he used different material than that implied in the contract. This remark applies to the stone work and to the use of poplar instead of pine; perhaps to some other things. All these, however, are not in our judgment as a matter of law substantial deviations which would prevent defendant from recovering. They are, however, deviations which would enable plaintiff to have damages on account thereof if he could show them. Enough now is said to enable us to hold that there was no error in the refusal of plaintiff’s request to charge on this point, and here we desire to say that we find no error in the refusal to charge any of the requests proposed by the plaintiff. We should say further in laying down the law on this part of the case, that while the defendant may recover the value of his materials and labor, plaintiff has a right and should be entitled to recover in this case damages for the delay in the completion of this building. It was undisputed. The amount of the value therof is undisputeed. No excuse for this [delay is shown by the defendant. We cannot discover from the verdict that anything was allowed to the plaintiff on that account. Plaintiff should further recover cn account of the damages or loss, if any, occasioned by his being required to complete the building.

In the next place, the damage sustained by the plaintiff in the construction of the building differently than called for by the plans, is an item which would reduce the amount to be recovered by the defendant. How much that is we cannot say from the evidence, but that is a question for the jury, and they should be instructed that from the value of the labor and material put into the building by the defendant there should be deducted:

First — Damages for the delay in the construction.

Second — Damages on account of defendant’s failure to construct according to plans.

Third — Damages, if any, on account of the cost to plaintiff of completing building in excess of contract price.

If these damages amount to more than would be coming to the defendant on account of the value of his labor and materials, less that which he has been paid, then it would result in a verdict for the plaintiff. If it did not amount to as much as that due the defendants, the verdict should be for the defendant. While on this point, I should say, that the question should be submitted to the jury, whether the contract for the rough floor was made; and if it was made, whether the defendant performed it, and if he'performed it, then he is entitled to recover not $540.00, but $425.00, the amount of cash that was to be paid. The glass furnished was not to go to the defendant; it was to go into the building.

It is possible the plaintiff makes out a case on his fourth cause of action, but we have no hesitancy in saying he does not show to exceed $50.00 damages on account of that.

As to the seventh cause of action, he does not make any case, and the jury should be instructed he is entitled tore-cover nothing, for one very good reason that he does not show any contract in writing as required by the original contract.

They were rightly instructed a3 to the eighth. Nothing was said to the jury as to the first, second and third causes of action, but we hold that the defendant makes no case under them, and will hold further that they none of them state a cause of action, and the jury should be so instructed. This will somewhat simplify the issues in this action, and confine the evidence to the three causes of action on the part of the defendant and the one on the part of the plaintiff. We have very carefully examined this charge, and while we should disturb this case upon the charge with great reluctance, and should probably have been able to overlook the proposition I am about to notice, yet, as we have found it necessary to reverse this case on account of the evidence admitted and rejected, we are compelled to criticise one proposition in the charge. It is this:

“If the contractor, Slaymaker, failed to substantially comply with the contract in material matters, or the building was not substantially completed on June 20, 1896, in either case the plaintiff, Johnson, had the right to take the building as it was and complete the same in accordance with the contract, and recover for the necessary delay, if any, in the substantial completion of the contract. The difference, if any, in the value of the building, as constructed, and as it ought to have been constructed by Slaymaker under the contract, (to this point little fault can be found with this charge but the words following which seem to have been put in advertently make all the difference imaginable with the proposition) and defendant, Slaymaker would be entitled to claim the contract price less the difference, if any, in the value of the building, as constructed and as it ought to have been constructed by Slaymaker under the contract.”

It is manifest, I think, without argument, that these two cannot both recover the same measure of damages upon the same state of facts.

It is urged that the contract is silent on the-subject as to ■who should furnish estimates, and hence the court erred in saying defendant should furnish them, As the parties have not agreed upon anybody to make estimates, either in the contract or outside of it, plaintiff cannot be heard to say, that he should never be required to pay because estimates were not furnished. It is as well his fault as the fault of defendant that no person was agreed upon to furnish the estimates. He is required to pay monthly, and upon estimates. As no person has been agreed upon to make those estimates, it must follow that the estimates themselves must be agreed upon, and it may well be that the estimate being a mere statement, the defendant to furnish the same and to be submitted to the plaintiff for his examination and correction, if' need be, and when agreed upon, then, 85 ner cent, of the amount thereof to be paid. It is a serious defect in this contract, but it does not avoid the contract, nor render nugatory any of the obligations into which the parties have entered.

We think substantially the court submitted this case to the jury correctly, but as we have previously indicated, on a future trial the rights of the parties could be more definitely defined, and will be somewhat limited by eliminating from the case, at least all these causes of action except the three, — the fourth, fifth and sixth, in the defendant’s answer.

As we are required by the motion for a new trial to' pass upon the weight of the evidence, we think this verdict is too large for the defendant.

Defendant alleges in his counter-claim that he furnished material to the amount of $10,176.00; that under the special contract he would be entitled to recover $425.00, and for change in location we suggest that $50.00 would be ample. This would make the maximum limit of these three items $10,651.00. He was paid $6,516.00. This would leave not to exceed $4,135.00. The plaintiff is certainly entitled to recover for the delay in the construction of the building for the period of not less than four months under his proof, an amount which we do not fix, but which the evidence discloses, and which should be passed upon by the jury.

The record satisfies us that the most serious defects in the construction of this building were not the change in the stone or mortar or door frames, but in the general manner of doing the work. The defects in this building ate not really denied by the defendant, and the plaintiff’s evidence overwhelmingly shows most serious defects. Competent witnesses put the ^alue of those at $2,000.00, and if those defects are there, one cannot very well see how the damages could be much less. We, however, do not undertake to fix or point out the amount of that damage, but we say that the question should be submitted to the jury, and that whatever amount they find, together with the value of the delay should be deducted from the amount found due the defendant for labor and material, and as we have before said, also the excess in cost of construction beyond the contract price, if any there be.

This brings us to the evidence in the case excluded and admitted over the exceptions of plaintiff.

The question on page 52, asked of James Shank: “How long would it have taken you, Mr. Shank, to have taken one foot off of the door and brought it down so you wouldn’t have had to raise your windows,” we think should have been permitted,

The question on page 54, “In wbat manner was it changed to take out that foot elevation,” should have been permitted.

“WhaCwas the position of floors after Slaymaker left” on page 163, should have been permitted.

“What was the conversation, and where was it, and when was it,” (the conversation called or was between Johnson and Slaymaker while Slaymaker was at . work upon the building, with reference to mortar), should have been permitted.

“How many carpenters did Mr. Slaymaker have upon the work before he quit the job,” and “after Slaymaker was off of the job, how many carpenters did Captain Johnson employ to complete this building,” are the next questions, and we think both of these questions should have been permitted; the first of which was given to show how Mr. Slay-maker was carrying on his work, and the second was to show that Johnson was doing it expeditiously.

He was also claiming damages for delay in the work; claiming damages for the use of the building for several months — 'that he had been kept out of it improperly. He should show he has expeditiously completed the building as far as was possible to do, because he couldn’t add to his own damages by unnecessarily delaying the work.

In the testimony of Frank Ennis, on page 232: “Did you have a conversation with Slaymaker at the time the brick was going into this building about the character and kind of brick that was going in;” that should have been answered.

On page 250, speaking of cracks, “what in your judgment or in your opinion caused that crack,” should have been answered. The witness showed that he was a competent builder, and if a competent builder, it was a question that might well be put to a builder, and questions put upon the same line were permitted when defendant’s witnesses were upon the stand.

On page 251, “what would you say in your opinion was the cause of the settling at th.at place, I mean the crack at that place,” is the same question, and should have been answered.

“What in your opinion was the cause of the cracks on the inside.” That should have been answered for the same reason.

On page 298, a witness was asked this question: “What was the result, if any, upon the ceiling of the south porch, by cutting them down that way.” There was considerable more of this testimony which showed its application, and we think should have been allowed.

In the testimony of H. J. Johnson, pages 393, 394 and 395, are questions and answers that after being given were ruled out.

“Take the south side”, was a question that follows after other questions leading up to it. Answer: “On the south side there is a bulge in the wall as near as I can tell with my eyes; I didn’t measure it; there is a bulge; I examined it inside; and it has went away from the wood work, went away from the baseboard probably half an inch;” that was ruled out.

' On page 394, “what, if anything, do you know about the porch being too high”' — Answer: “Well I don’t know; it is a foot too high, the windows are a foot too high.” And the question “do you know anything about the height of the windows from the water table,” and the answer, “The cap I measured; it was ten feet and an inch, I believe, and I looked on the plans and found it should be nine.” I should say that that last answer is correct. The court ruled out only the last part of the answer “I looked on the plans and found it should be nine.”

The same complaint is made that on page 403 and 404 Johnson.was asked as to the rental value of the building between certain dates, but this was excluded. The proper question, should have been as to the value of the use of this building"during these months if it had been completed according to and within the time of the contract.

In the testimony of Charles Wolfe, this question was asked: “Were those window frames made for check sash.’’ There is a claim made that the plans were for checked sash, and it is the purpose to show that these were not. If the. witness would so answer, this would have been competent.

This question and answer we think was competent, “Will you decribe as fully as you can the crack you noticed there,” and the answer is “the wall has the appearance of sliding out or tipping out, whatever you would call i.t, drawing the brick with it makes oblique cracks of the brickwork in the window frame in the tower.”

Again A. Foster was asked the question “can you tell the jury what caused those cracks in the walls of the building,” which he seems to have been competent to answer, and of him was asked the hypothetical question on page 529, and, we think it was proper, and he should have been permitted to answer both.

On page 651, June was asked: “From your experience, what do you say as to its being possible to construct a building of the size, weight and character of the Oak Ridge ¡Sanitarium building, and of the material of which this building is constructed, upon earth supports to the foundation, without the building cracking more or less where it is built within six months from the commencement of the work.” We think the witness was competent to answer that question, If there is the qualification as to whether it could have been done without having it crack it was, competent..

It was objected that a witness was permitted on the part of defendant to give conversations with Johnson, Oobb, and Johnson's son. We think along that line there was evidence enough to permit the conversation with Cobb and with Johnson’s son to go to the jury. There is, however, in that connection a matter which should be noticed. Cobb was placed upon the witness stand and asked if he had authority to do certain things about this work; we think Cobb should have been permitted to testify as to his authority. We can see no reason why he would not be allowed to state What authority he had, if any. Of course, that goes in with all of the rest of the evidence in the case showing what he did do there. A witness wa3 asked to state how much it. would cost if white mortar was used instead of brown mortar. We think that was competent as showing damages to the plaintiff on account of deviations from the plans and specification.

Garver & Garver, and S. H. Holding, attorneys for Plaintiff in Error.

Bartlett & Wilson, Finch & Dewey and Garfield & Garfield, attorneys for Defendants in Error.

There is a question on page 387. Slaymaker was permitted to state that he was not able to pay for materials in the building as fast as he procured them or as they were needed. We cannot see the competency of that.

On page 1139, it was sought to show by Cobb that he had authority to do certain things. On page 1142, it was bought to show by Cobb that the work had been completed by Johnson according to the plans and specifications. We think it was competent to show that, but perhaps that testimony was improper on account of its leading and suggestive character.

It is urged that the court refused to permit Cobb to tell the jury the value of material and labor necessary to complete the building. There are two questions on that subject: One was the value, and one was the cost. The court permitted him to answer what the cost was, but did not permit him to state the value. We think the one referring to value the proper one, but there was no error in that to the pfejudice to the plaintiff, for the answer to the other gave him what he was after.

For these errors this judgment is reversed.