text:
    TRIAL FOR. HOMICIDE.
    Circuit Court of Stark County.
    Joseph Andy v. State of Ohio.
    Decided, February Term, 1913.

      Criminal Lau> — Qualifications of an Interpreter — Exhibition to Jury of Heart of the Decedent — Charge of Court.

    1. - It is not error in a trial for homicide to permit a near relative of one of the witnesses for the state to act as interpreter, where there is nothing tending to show that the said interpreter was in any way biased or prejudiced or intersted in the outcome of the trial.
    2. Nor is it error in such a case to exhibit to the jury the mutilated heart of the decedent for the purpose of showing the character of the incision which had been made therein as bearing upon the cause of death.
    3. The addition by the court to a special instruction to the jury asked by the defendant of the words, “and to some degree contributed thereto,” was not prejudicial but mere surplussage, since the con- , elusion that he was an aider or abettor could not be reached by the jury unless there was evidence tending to show that he did something in furtherance of the common purpose to take the life of the decedent.

      Russell J. Burt, for plaintiff in error.

      H. C. Pontius and Frank N. Sweitzer, contra.
    Shields, J.; Voorhees, J., and Powell, J., concur.
   The plaintiff in error, Joseph Andy, was indicted by the grand jury of Stark county, Ohio, at the September term, 1912, for murder in the second degree. Afterwards the accused was placed upon trial, and was found guilty as charged in said indictment. A motion vfor a new trial was filed, which was overruled, and the accused was sentenced according to law. A bill of exceptions was taken, embodying the evidence taken upon the trial, including the charge of the court, and said case was brought into this court for review upon a petition in error filed for that purpose.

Numerous grounds of error are alleged in said petition in error for the reversal of the judgment of the 'court of common pleas, but the errors relied upon by plaintiff in error and argued to this court are:

1. That the verdict of the jury is clearly against the weight of the evidence.

2. That the court below erred in permitting one Mary Pew, a sister of one of the state’s witnesses, to act as interpreter throughout the trial below.

3. That said court below erred in allowing the introduction in evidence of the heart of decedent.

4. That said court erred in its charge to the jury.

5. That said court erred in its charge to the jury upon the subject of aiders and abettors.

6. That said court erred in receiving the verdict as returned by the jury.

First. It is contended that the verdict of the jury was clearly against the weight of the evidence. On account of the importanee of the case to the plaintiff in error, as well as to the state, we have reviewed the evidence in the entire record with no little care, and with special reference to the contention of counsel for plaintiff in error on this ground; and as a.reviewing court, keeping in mind the rule that the verdict of a jury should not be set aside unless it is manifestly against- the weight of the evidence, we are of the opinion that the record presents a case which does not require this court to interfere with the verdict of the jury od the ground stated.

Second. It is' contended by the plaintiff in error that there was an abuse of discretion upon the part of the court below in permitting one Mary Pew to act as interpreter at the trial of the plaintiff in error, because said interpreter was a relative of certain witnesses who testified upon the trial for the state. The record fails to show that -said interpreter was biased or prejudiced, or in ,any way interested in the outcome of said trial; and ex-ereising a sound discretion possessed by the court presiding at said trial, in the absence of any showing that said interpreter was disqualified to act as such, we think there was no error upon the part of the court in this respect.

Third. It is argued by the plaintiff in error that the court below erred in allowing the state to make profert of the heart of the decedent before the jury. The burden of proving the cause of death being upon the state, it was certainly the privilege of the state, in our judgment, to make such proof by the production of this mutilated organ, as tending to show the character and extent of the incision made therein, and we think that the action of the court in this respect was not erroneous.

Fourth. It is claimed by plaintiff in error that the court below erred in its charge to the jury, and especially upon the subject of aiding and abetting in the commission of the crime charged in the indictment. A' written request was submitted by the plaintiff in error, before argument, upon this subject with the request that the same be given by the court to the jury; and it appears that it was so given. But it is claimed that said court, in its general charge, when instructing the jury upon this subject, went beyond the rule of law embodied in said written request, and beyond the rule of law laid down by our Supreme Court upon this subject. An analysis of the instruction given leads us to disagree with the contention thus made; but granting that the words "and to some degree contributed thereto” were added, could, or did, such addition work any prejudice to plaintiff in error? We think not, for if the evidence showed that he was not a principal, but an aider and abettor in the commission of this homicide, such a conclusion could not have been reached by the jury, under the charge given; unless it appeared in evidence that he said or did something in furtherance of a common purpose to take the life of the decedent, and if such fact did so appear, it would contribute to the execution of such felonious purpose. We are of the opinion that this follows from the very definition of terms “aiders” and “abettors,” and that such additional instruction is mere surplusage at most.

Entertaining these views, the exception taken in this respect is held to be untenable,.and affords no ground of prejudicial or reversible error.

Fifth. It is also contended that the court below erred in receiving the verdict as returned by the jury, because said verdict does not specify the degree of the crime of homicide of which plaintiff in error was found guilty. This is not a case wherein the verdict of the jury was for any degree of crime other than that charged. He was indicted for second degree murder, and was found guilty of said crime; or, in the language of the verdict returned, “guilty as he stands charged in the indictment.” The court below properly instructed the jury that the crime charged included also the lesser crime of manslaughter, assault and battery, and assault, for either of which a "verdict of guilty might be returned by the jury, and not guilty of the crime of murder in the second degree as charged in the indictment. But the verdict was: Guilty of the crime charged. In a ease where a defendant is charged with first degree homicide, and the jury should find him guilty of second degree, or manslaughter, under the statute as it was prior to the enactment of Section 13692, General Code, then the contention of plaintiff in error might merit consideration, but not under the present statute; nor under the facts in this ease where, under the charge of the court, the jury were instructed that they might return a verdict of guilty of either of the offenses hereinbefore mentioned, on one of the several forms of verdict sent to the jury room, or a verdict of not guilty. For the foregoing reasons, we hold that this exception is not well taken.

We have also examined, said record in reference to the Other assignments of error set out in the petition in error, and we find no such error therein as to call for a reversal of the judgment of the court below.

The judgment of the court of common pleas will, therefore, be affirmed, and said cause is remanded to said- court for execution. Exceptions.


source: Caselaw Access Project

license: Public Domain

text:
    AS TO WHETHER. CERTAIN STATEMENTS WERE FALSE . REPRESENTATIONS*
    Circuit Court of Lorain County.
    The J. D. Smith Foundry & Supply Co. v. The Lorain County Banking Co.

    Decided, December 28, 1909.

      False Representations.

    1. That the statement: "I have money enough now. I could pay-cash for anything I should order if I wanted to,” was false is not conclusively shown by proof that the person making the statement did not, at the time, have money in the bank.
    2. The statement: ‘‘X have plenty of orders on hand,” is not unwarranted if the person making it at the time had tihe promise from various reliable establishments that he should have their orders.
    Marvin, J.; Winch, J., and Henry, J., concur.

      Affirmed without opinion, J. D. Smith Foundry Co. v. Lorain County Banking Co., 83 Ohio State, 481.

   The only question in this case is this: Did -the plaintiff in error (which was the plaintiff below) show by the evidence that it parted with its property to Lieblang, by reason of false representations made by Lieblang to the plaintiff? If it d'id, it was entitled to a recovery in this action. If it did not, the result in the court below was right.

The evidence shows that a Mr. Smith, representing the plaintiff, sold to Lieblang something more than six hundred dollars worth of devices and material designed for use in a foundry. He says in his testimony that he was induced to make the sale and deliver the property because of three things. First, Lieblang said in answer to an inquiry put to him by Smith as to his financial condition, “I have money enough now. I could pay cash for anything I should order if I wanted to.” That he also said in answer to the same question, “I have plenty of orders on hand,.” and also, “You can see the people I am working for now: the Weller Engineering Company.” He says that he inquired of Mr. Jones, the superintendent of the Weller Engineering Company, and Jones told him that Lieblang had told him (Jones) that be had property in Cleveland worth ten thousand dollars.

Surely it can not be said that Lieblang made anjr false representation to Smith by what he said to Jones, but it is urged that Lieblang’s statement “I have plenty of orders on hand” was false. The facts show that he had no orders in writing on hand at the time he said this. The evidence shown that the Weller Engineering Company had said to Lieblang that he could have all of their work in his line which would amount to three or four hundred dollars every month, and that two other companies had said to him that they would take all the product of the foundry which he proposed to start which they could use in their business. We think it can not be said that Lieblang’s statement, “I have plenty of orders on hand” was- a false representation. He spoke as one might well speak who had the promise from various reliable establishments that he should have their work. Shorn the evidence he was warranted in understanding that these several parties had agreed with him to take the products of his foundry. There, remains only the other statement: “I have money enough now, I could pay cash for anything I should order if I wanted, to.” It is claimed that this is disproved by the testimony of Lieblang himself. That testimony, so far as it.relates to this «question, is as follows:

“Q. At that time”- (referring to the time when contract of sale was made) “what money, if any, did you have in bank? A. None.
“Q. At that time did you have any personal property other than money ? A. No, sir. ’ ’

This is all the evidence there is to show that when Lieblang made the statement that he had money enough to pay for the goods .at the time of the purchase, if he wished to do so, he told what was not true.

For some reason counsel for the plaintiff did not see fit to ask Lieblang if he had any money in his pocket or anywhere except to ask him if he had any in the bank. It does not follow that one who does not have money in bank, to the amount of six or seven hundred dollars does not have that amount of money in his pocket or elsewhere. If the plaintiff desired to show that this statement of Lieblang was false, he should have tried to show by somebody, either by asking Lieblang, if he chose to do so, or by producing some other witness who knew, that he had no money.

This case was tried to the court -without the intervention of a jury. The court reached the conclusion that the plaintiff had not sustained his ease. In reaching such conclusion we think the court was right, and its judgment is affirmed.


text:
    VERDICT NOT INVALIDATED BY MISCONDUCT OF THE PROSECUTOR.
    Circuit Court of Lorain County.
    Harry Sisson v. State of Ohio.
    Decided, December, 1909.

      Criminal Lato — Misconduct of Prosecuting Attorney — No Reversal, When.

    In a criminal case, where it is plain from the evidence that the jury could not have reached any conclusion other than that which was reached, a verdict will not be set aside for reprehensible misconduct of the prosecuting attorney.
    Marvin, J.; Winch, J., and Henry, J., concur.
   Sisson was indicted under the name of Harry Sisson, alias Herman Connors, alias Joseph St. John, for murder in the first degree; the charge being that he killed Young Pa while he (Sisson) was engaged in perpetrating a robbery. Upon the trial the jury returned ,a verdict of guilty of murder in the first .degree with recommendation to mercy. Whereupon he was sentenced to imprisonment in the penitentiary for the term of his natural life. By proper proceeding the case is here on error.

The plaintiff in error urges as ground for the reversal of the judgment that the verdict was not sustained by sufficient evidence, by reason of which the court erred in overruling a motion filed by him for a new trial, and also that there was error in overruling such motion by reason of misconduct on the part of the prosecuting: attorney in his closing argument to the jury. Both of these questions were considered by Judge Washburn upon the hearing of such motion and a very able and instructive opinion was prepared by him upon the overruling of such motion. This opinion is now in our hands and it -is not deemed important that very much be said other than what is said in that opinion. We reach the same conclusion which was reached by Judge Washburn.

We think it proper to say, however, with such emphasis as we can, that the language used by the prosecuting attorney, .complained of by the plaintiff in error, is deserving of severe censure. It was improper for him to speak of the fact that the prisoner had failed to produce any evidence as to his good character. The language used in that regard was extravagant, and we think the court, when attention was called to it, erred in saying, “the argument is proper.” The only justification claimed for this is that the prisoner himself had been upon the witness stand and by his own testimony had shown a bad character, but that was not what he went upon the witness stand for, as he had nowhere by his own testimony or otherwise undertaken to show a good character.

So about the language of the prosecuting attorney in urging upon the jury that they should"not only find the prisoner guilty, of murder in the first degree but they should not recommend him to mercy, and in this connection, referring as he did to his record as prosecuting attorney and the hope that while he held that position in Lorain county no man guilty of murder in the first degree should be recommended to mercy, he was wholly outside of .and beyond the duties of the prosecuting attorney.

It was his duty to present the evidence and to make a legitimate argument from such evidence as to the guilt of the prisoner on trial, and he should have left it entirely with the jury to say whether he should be recommended to mercy; it was no part of his duty to urge the jury to overlook any inclination on their part to make such recommendation. Certainly no consideration of the record or reputation of the prosecuting attorney should have been permitted to weigh at all with the jury as to their action in this regard. However, as to this appeal that there should be no recommendation to mercy, the jury disregarded it, so the prisoner suffered nothing from this language unless it had a tendency to induce them to find that the prisoner was guilty.

An examination of the evidence brings us to the conclusion reached by the jury and by Judge Washburn, that beyond all reasonable doubt this man was guilty of the murder of which he was convicted, and that being so, we feel justified in affirming the action of the court of common pleas in refusing a new trial, and of affirming the judgment of that court.

In the Texas case of Pollard v. State, 26 S. W., 70, the language of the prosecuting attorney Avas very much like the language of the case under consideration, but in that ease the court refused to direct the jury not to consider these remarks of the prosecuting attorney. In that case the judgment was reversed. It does not clearly appear from the opinion whether it would have been reversed, but for the refusal of the court to charge that this language should be disregarded.

In the Michigan case of The People v. Evans, 40 Northwestern, 473, where similar language was used by the prosecuting attorney to the jury, the court held that the Avrong thereby caused Avas not cured by the instruction of the court to the jury to disregard the remark.

In the case of House v. State, 39 Tex. Crim. App., 227, the sixth clause of the syllabus reads:

“This court will reverse a conviction because in the trial the counsel for the state abused his privilege of debate, only when it appears, (1), that the remarks used in argument were improper, and (2), that .they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights1.” (See the opinion in extenso, and the statement of the case, for statements in argument held not to be such an abuse of privilege as to authorize the reversal of the judgment.)

This is cited with approval in the case of Coyle v. State, 21 Southwestern, 765; the same question arises in a Mississippi ease, Hemingway v. State, 8 Southern Rep., 317. Also in Wells v. State, 16 Southwestern, 577; Heyl v. State, 109 Ind., 589; State v. Ean, 90 Ia., 534; Price v. Commonwealth, 99 Ky., 370; State v. McGeahy, 3 No. Dak., 293; State v. Moody, 7 Wash., 395; State v. Shawn, 40 W. Va., 1.

In the second paragraph of the syllabus of the case last cited this language is used:

‘! Where a criminal trial is in other respects fair, a verdict of cónvicti«n will not be set aside for improper remarks of counsel where it” (the verdict) “is plainly warranted by the evidence of the case under the law, and no other verdict could have been fo\md without misconduct by the jury.”

In that case among other things which were improperly said by counsel for the state in his closing argument to the jury, were these words:' “He is so steeped in crime that he has no friend to sit beside him during the trial.” And yet in this case the conviction was affirmed because of the fact that the evidence so clearly established the guilt of the prisoner that no other verdict could have been found without misconduct by the jury.

From these authorities we feel justified in adhering to the general proposition that where it is plain from the evidence that the jury could not if they were sensible men reach any conclusion other than that which was reached, a case should not be reversed, though the conduct of the prosecuting attorney was reprehensible.

We reach the conclusion, therefore, that the judgment of the court below should be and it is affirmed.


text:
    EXTENT OF LIABILITY OF CONSIGNEE FOR. FREIGHT CHARGES.
    Circuit Court of Montgomery County.
    Alvin J. Fink v. The P., C., C. & St. L. Railway.
    Decided, December 30, 1913.

      Railways — Liability of Shipper for Freight Charges — Distinguished From that of Consignee Who Was Not a Party to the Contract for Carriage — Whether. or Not the Evidence Tends to Establish a Defense is a Question of Law.

    1. A consignee, not a party to the contract of carriage, nor the owner of the goods in transit, receiving such goods shipped in interstate commerce and paying the freight charged by the carrier thereon, who thereafter, relying upon the correctness of the freight charges, accepts the goods of the consignor and delivers the consideration without notice or knowledge of a higher rate or charge, is not liable for the balance of the true published tariff rate omitted through an error of the shipping clerk of the initial carrier.
    2. The doctrine that a shipper is charged with notice of the true tariff freight rate, no matter how obsecure or complex, does not apply to a mere consignee whose interest in the goods shipped and whose title thereto vests after delivery by the carrier.
    Allread, J.; Ferneding, J., and Kunkle, J., concur.
   This action originated before a justice of the peace. The railway company sought recovery of a balance of $15 alleged to be due it and its connecting carriers for the- transportation of certain merchandise. The original bill of particulars based the claim upon contract. The amended bill rested upon the conveyance and delivery of the merchandise to Fink upon his request.

There was a verdict and judgment in the magistrate’s court against the railway company. This judgment was reversed in the court of common pleas, where a final judgment was rendered for the railway company upon its claim.

The cause is brought to this court upon petition in error by Fink, seeking a reversal of the judgment.of the court'of common pleas and an affirmance of that of the justice of the peace.

It is contended on behalf of the plaintiff in error that the court of common pleas had no jurisdiction to reverse the judgment-of the magistrate, because the motion for a new trial in the magistrate’s court was not based upon the grounds stated in Section 10352, General Code.

We think it clear that the court of common pleas had no jurisdiction to grant a new trial upon the weight of the evidence. Derby, Jr., v. Heath, 59 O. S., 54.

Under the broad language of the syllabus and opinion of the case cited, there is some plausibility to the contention that the verdict and judgment in the magistrate’s court is final and not subject to a review upon any ground. But we have reached the conclusion that whether there was .any evidence tending to support the defensa-in the magistrate’s Court was a question of law. We rest this conclusion upon the decision in Kaufman v. Broughton, 31 O. S. 424, holding that whether there is any evidence tending to support the plaintiff’s claim is a question of law, and it seems to us that the same principle should be applied to a case where the evidence does not tend to establish a defense. This question is raised in the record by request to the magistrate to instruct the jury to render a verdiet in favor of the plaintiff. While a magistrate is not ordinarily required to instruct, the jury, yet the effect of this request was to test the sufficiency of the evidence to support the defense.

The only question, therefore, capable of review by the court of common pleas was whether the evidence tended to support the defense in the magistrate’s court.

The judgment of reversal in the common pleas court can only be sustained in case all the evidence, giving it its most favorable construction in favor of the defendant„in the magistrate’s court, tended to support the railway company’s claim.

The evidence in the bill of exceptions tends to show that in August, 1910, a shipper whose full name does not appear delivered a package marked ‘‘Indian curios” to the initial carrier at Los Angeles, California, billed to Alvin J. Fink, Dayton, Ohio, and that in due course of shipment the same was delivered to Fink upon his payment of the sum of $15, -being the amount charged upon the bills and receipts tendered and exhibited to Fink. The testimony of Fink tends to show that there was no agreement between him and the consignor and that he (Fink) should pay the freight. lie further testifies that the goods were shipped to him for examination and under an arrangement that if upon examination the same proved satisfactory they were to be taken by Fink in exchange for certain gold coins which had previously been shipped by Fink to Los Angeles, California, where they were in custody of the postmaster and subject to Fink’s order. Fink testifies that he paid the freight charges of $15 to obtain possession of the goods, and that after examination and without any knowledge or notice that any pther or additional freight charges were due he released the gold coins and the same as well as the most part of the curios are now scattered and their whereabouts unknown. The evidence shows that some considerable time after this transaction was entirely closed, the railway company discovered that the true tariff rate of shipment was $30 instead of $15, and this claim was thereupon .asserted against Fink as consignee.

Was Fink as consignee, therefore, liable under the evidence as a conclusion of law? This question is to be determined under the common law as affected and controlled by the commerce acts of Congress. Under the common law the shipper of goods was liable to carriers for the reasonable rate of transportation and this rate was capable of being fixed by contract. The consignor is generally considered the shipper as between him and the carrier, but the consignee was also held to be liable upon the contract of shipment for the freight charges where such consignee was the owner of the goods or requested or directed the shipment. While there is some conflict of authority, we think under the common law the consignee’s liability for the freight charges under the contract of shipment is confined to eases where the consignee was in some way a party to the contract of shipment or was the owner of the goods transported. There is, however, a liability of the consignee, based upon the receipt of the goods upon which freight charges are due. His liability in this respect is entirely different from that of shipper. It rests upon the presumed intention or agreement of the parties at the time of delivery. Blanchard v. Page, 8th Gray (Mass.), page 281; Cock v. Taylor, 13 East, 339; Old Colony Railway Company v. Wilder, 137 Mass., 536.

There are some English as well as American decisions based upon an express stipulation in the bill of lading to the effect that the consignee agrees to pay the freight but where, as in the ease at bar, there is nothing upon the face of the bill of lading tending to impose any liability upon the consignee, except that implied from the collection of the freight charges marked upon the bill, the liability of the consignee depends upon the real circumstances of the case. Here Fink was not a party to the contract of shipment, was not the owner of the goods during transportation and his title vested and the consideration .was delivered subsequent to his receipt of the goods. He paid the $15 charges, not by virtue of any agreement to do so, but because that amount was imposed as a lien upon the property and a condition of delivery. We think there are no circumstances in the case from which under the common law Fink would be held liable for any amount in excess of the $15 charged and paid at the time the merchandise was delivered. It is contended, however, that the effect of the Interstate Commerce act was to make it imperative upon the railway company to collect from the consignee the full tariff rate, regardless of the mistake of the agents of the railway company and regardless of the consignee’s connection with the property or the shipment.

We have examined the following cases decided by the Supreme Court of the United States: Railway Company v. Mugg, 202 U. S., 242; Railroad Company v. Kirby, 225 U. S., 155; Railroad Company v. Elevator Company, 226, U. S., 441; Railway Company v. Abline Cotton Oil Company, 204 U. S., 426; Railroad Company v. Interstate Commerce Commission, 200 U. S., 361.

All these cases were actions involving the shippers’ rights as against the carrier and,'therefore, involved the contract of shipment and the liability of the parties thereto. In none of these cases was the liability of the consignee directly involved. His rights must, therefore, be determined by the common law as modified by the Interstate Commerce act.

Section 6 of the Interstate Commerce act provides:

“That every common carrier subject to the provisions of this act shall file with the commission created by this act, and print and keep open to public inspection schedules showing all the rates, fares and charges for transportation between different points on its own route and points on the route of any other carrier, by railroad, by pipe line, or by water, when a through and joint rate have been established * * * the schedules printed as aforesaid by any such common carrier shall plainly state * * * all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part of the aggregate of such aforesaid rates, fares and charges, or the value of the service rendered to the passenger, shipper or consignee.”

Section 6 further provides:

“Nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property for any service in connection therewith between the points named in such tariffs than the rates, fares and charges which are specified in the tariff filed and in effect at the time.”

The Interstate Commerce act was amended June 18th, 1910, so as to make the carrier criminally liable for a misquotation of rates.

The only direct reference to “consignee” in the Interstate act is found in Section 6, in connection with charges made and services rendered to the “passenger” or “shipper.” We think this paragraph should be limited in respect to the consignee to one at whose instance the service was had and who becomes liable under the contract of shipment for the freight charges. This paragraph was not intended to create a new liability, but as a regulation of charges against persons at whose instance or for whose benefit the service was had.

The final reasoning brings us to a consideration of the paragraph of Section 6 prohibiting the carrier from charging, demanding or collecting “a greater or less or different compensation” than the tariff rates. This prohibition is addressed specifically to the carrier, but, under the broad principle of public policy undei’lying the Interstate Commerce act, is sufficient to charge the shipper or other party originating the service who is bound to take notice of the tariff rate no matter how obscure or difficult.

It is urged that the same inexorable rule of public policy should be applied to the consignee no matter what his relation to the property is. This contention is founded upon the second syllabi of Railway Company v. Mugg, supra, and also Railway Company v. Magnus, 13 C.C.(N.S.), 305.

In the Mugg case the liability of the consignee was incidental, and the syllabus referred to relates to the rights of the company at the time of delivery, and should not in our opinion be generally applied to all persons who happen to deal with railway companies in relation to the property.

In the Magnus ease the mistake in the freight charge was discovered before the property was delivered, and the delivery was made under a general arrangement charging the amount of the freight against the shipper instead of collecting it before delivery. We think the syllabus in the latter case as well as the opinion should be limited by the facts of the case, and so also the syllabus in the Mugg ease should be limited to cases where the freight charge and the delivery are concurrent. The rule of public policy, charging notice of the tariff rates against shippers, does not apply with equal reason to a mere consignee who receives and deals with the property upon the faith of the railroad company’s charges stated in the bill of lading. Such consignee should not be charged like the original shipper with the duty of ascertaining the public tariff rates, nor is he chargeable with as-. certaining the fact as to whether all or only a portion of the tariff rates are made chargeable against him. Undoubtedly if the shipment had been delivered-under a bill of lading showing freight paid, it could not in reason and justice be claimed that the consignee was bound to ascertain the fact of prepayment. Public policy does not require that our remedial laws should be made an instrument of injustice or oppression.

Fink when he received the goods found charged thereon $15 which he paid. We think he was not bound as a matter of law to go further than what appears upon his bill of lading and receipt-in the investigation of the amount of charges, and having paid that, there is no further personal liability. -

It, therefore, follows that the judgment of the court of common pleas should be reversed and that of the magistrate affirmed.


text:
    INJUNCTION AGAINST SALE OF ILLEGAL PORTION OF AN ISSUE OF MUNICIPAL BONDS.
    Circuit Court of Summit County.
    Charles R. Morgan, as a Tax-payer, on Behalf of the City of Akron, v. The City of Akron et al.

    Decided, December 30, 1909.

      Municipal Corporations — Sale of Bonds — Whole Issue Not Enjoined, Where Part Only Illegal — Bonds for Sidewalk and Retaining Wall in Street Not Lawful.

    1. When in one ordinance a municipality provides for the issue and sale of bonds to pay for several separate improvements, for some of which it has authority to issue bonds and for others it has not, an injunction will not be granted against the entire issue proposed, but only against that part which is for the. payment of unauthorized improvements.
    2. A municipality can not raise money by the sale of bonds to pay for the construction of a sidewalk and retaining wall in a street, though the improvement of the street'is adjacent to a park.
    Marvin, J.; Winch, J., and Henry, J., concur.

      Affirmed without opinion, City of Akron v. Morgan, 84 Ohio State, 499.

   Morgan is a tax-payer of the city of Akron; he called on the city solicitor, in writing, to bring this .action, which the city solicitor declined to do. Unless restrained by the order of this court, the defendants will issue bonds of the city of Akron, under an ordinance passed February .15, 1909, and sell said bonds for the purpose of improving Goodwin avenue, by grading, paving and curbing; Haynes street from about 120 feet from Thornton street to Ilowe street by the construction of a sewer therein; Amherst street from Thornton street to the Ohio canal by the construction of a sewer therein; Snyder street from a point 145 feet from Thornton street to Campbell street by the construction of a sewer therein; for the construction of a storm water sewer along the right-of-way of the Erie Railroad Company and the Cleveland, Akron & Columbus Railway Company from Market street to Oil street, thence in and along Oil street from the railroad to the Hydraulic race; for constructing sidewalks and a retaining wall at Pleasant Park; for improving and repairing streets, and for flushing, constructing and repairing sewers, ditches, drains and catch basins.

The prayer of the petition is that the defendants may be restrained from issuing or selling any such bonds, and from expending the proceeds or any part thereof obtained from any such sale, for any of the purposes named.

It is urged on the part of the plaintiff that the issuing of bonds for any such purpose is without authority of law, or, in any event, that the avails of such bonds can not be used for all of said purposes, and that if the bonds may not be issued for all of such purposes then that, .as a single' ordinance of the cfly provides for the issue and sale of bonds for all of such purposes, the court should enjoin it from the issuing and selling o£ said bonds for any of such purposes.

So far aS the issuing of bonds for all the purposes named, except for constructing sidewalks and a retaining wall at Pleasant Park is concerned, we think the council had authority to provide for the sale of the bonds. As to the constructing of the said sidewalk and retaining wall, we think the council was clearly without authority to issue bonds or to use the avails of the sale of any bonds for this last named purpose.

Section 2835 of the Revised Statutes provides for what purposes municipalities may issue and sell bonds.

Paragraph 22 of said section provides that such bonds may be issued and sold for resurfacing, repairing, or improving any existing street or streets, as well as other public highways. We think this is 'sufficient authority for the using of funds raised by the sale of bonds for grading and paving Goodwin avenue, and for improving and repairing streets.

Paragraph 14 of said section, authorized the issue and sale of such bonds for constructing sewers, sewage disposal works, flushing tunnels, drains and ditches, and we think this sufficiently authorizes the construction of a sewer in Haynes street, Amherst street, and for the construction of a storm water sewer along the right-of-way of the Erie Railroad Company and the Cleveland, Akron & Columbus Railway Company, and thence in and along Oil street.

The only language in the section which it is claimed authorizes the using of money from the sale of bonds “for constructing sidewalk and .a retaining wall at Pleasant Park” is paragraph 20 of the section under consideration, which reads:

“For purchasing and condemning the necessary land for park and boulevard purposes, and for improving the same, as well as for improving or completing the improvement of any existing boulevard, park, or parks. ’ ’

The evidence shows that it was a sidewalk along the south side of East Thornton street that it is proposed to construct with the money obtained on the sale of these bonds, and that it is a retaining wall along the south side of said street that it is proposed to construct. East Thornton street extends along the north side of Pleasant Park, but constitutes no part of the park itself, and from this it follow's that to construct the sidewalk and the retaining wall proposed, would not be an improvement of an existing park, but simply the construction of a sidewalk and retaining wall in a street adjacent to a park. For this purpose money can not be raised by the sale of' bonds, and the order of this court is that the defendants be enjoined from issuing, selling or using the avails of the sale- of any bonds under said ordinance for constructing sidewalks and a retaining wall at Pleasant Park.

Plaintiff’s attorneys will be allowed a fee of $100 in this case.


author: Jones, O. B., J.

text:
    LIABILITY OF MUNICIPALITY FOR. DAMAGES FROM A LANDSLIDE.
    Court of Appeals for Hamilton County.
    City of Cincinnati v. Charles Filser.
    Decided, February 14, 1914.

      Municipal Corporations — Removal of Support of Hillside in Improving Street — Barth Slips Upon Adjoining Property — City Liable.

    Where a municipality removes earth from a hillside in improving a street, the soil of which hill is known to be slip soil, .without shoring up the bank the support of which is thus removed, and a slide upon the lot of an abutting owner results after a hard rain, liability for the damage thus suffered can not be escaped on the ground that the work was being done by an independent contractor, or that the city was the owner of the dominant tenement, or that the slipping of the hillside following a heavy storm and downpour was an act of God.

      Coleman Avery, Assistant City Solicitor, for plaintiff in error.

      Geoffrey Goldsmith and Guido Gores, contra.
    Jones, E. II., J.; Swing, J., concurs; Jones, O. B., J., dissents in a separate opinion.
   The plaintiff in error seeks to reverse the judgment of the court below, assigning many reasons why this should be done.

The case presents numerous interesting questions and has been the source of much discussion among the members of this court, and has received prolonged and careful consideration at our hands. The majority of the court are of opinion that there was no prejudicial error in the trial below and that the judgment of the court of common pleas should be affirmed.

The negligence alleged in the petition, is that .the city failed to bolster up or shore up the soil of the hillside while they were engaged in removing dirt from the street opposite the plaintiff’s residence and that the city’s negligence in this respect caused the damage to plaintiff’s property. This statement is sufficient to explain the nature of the complaint although it may not be complete. The evidence offered at the trial fully supports this charge of negligence in the petition. It is shown by the evidence that the city through its civil engineer and other officers and employees had actual notice of the danger to adjoining property which attended the work upon which they were about to enter. The evidence further shows that at the time the slide occurred precautions, which, in the opinion of expert witnesses produced at the trial, were necessary owing to the known nature of the soil, had not been taken.

. There is no claim in the answer, nor is there any attempt to show by evidence, that it would have been impossible upon the part of the city in the exercise of reasonable care to have prevented the damage which we think the evidence shows followed as a natural consequence of the character of the work being done. The duty resting upon the city as well as upon an individual to so carry on its work, even upon its own premises, as not to interfere with or cause damage to its neighbors, we feel that the evidence was sufficient to warrant the jury in finding actionable negligence on the part of the city.

It is claimed that the work was being done by an independent contractor. This claim we think is fully and ably answered in the brief of counsel for defendant in error. The work was shown to be dangerous to adjoining property owners unless carried on carefully. Such being the case, the city could not absolve itself from liability by employing another to do the work.

It is further claimed that the city was the owner of the dominant tenement and had a right to the lateral support of its street by the ground of defendant in error. This is all true, but the trouble is that it had no application to the facts in this case. The jury must have found in this ease that the work being done by the city had a direct connection with the slipping of the hill. The damage was not caused by the weight of the street toppling .over the wall that had been built by the defendant in error; it was caused by the dirt from the hill slipping down upon and underneath the street, and the very doctrine urged here by the plaintiff in error made it the duty of the city to provide a lateral support along’ the line of its street, and if by failing to do so it caused the injury to another’s property, particularly while it was engaged in digging and removing the soil of the hill, we think its failure so to do makes it liable for any damage resulting therefrom.

It is also claimed by plaintiff in error that the damage was due to “an act of God.” In this connection it was claimed that just before the slide occurred which caused the damage, there was an extraordinary rainfall. There is nothing in the evidence to show that this rain was an unprecedented one, nor does the evidence clearly establish that it was unusual for the season of the year in this latitude. We hold that such rains as this must reasonably be anticipated and that the city can not be excused from the consequences of its negligence by not contemplating the probability of heavy rain.

We find no error in-the charge of the court, nor any prejudicial error in its refusal to give certain special charges requested.

There being in the opinion of the majority of the court no errors apparent on the record, the judgment of the' court below will be affirmed.

Jones, O. B., J.

(dissenting).

I am not able to agree with the majority of the court in the decision of this case.

In the first place, the amended petition under which the trial was had fails to allege that anj^ claim for damages had been filed with the clerk of the city, and that sixty days had elapsed thereafter béfore the filing of the suit. Such an allegation was contained in the original petition but it was superseded at the time of the trial by the amended' petition and of course is not to be considered. The record of the evidence also fails to show proof that any such claim was filed. This being an action for damages occasioned, as claimed by plaintiff, by a street improvement, Section 3830 of the General Code makes the filing of such a claim a prerequisite.

There are two of these claim sections in the statutes relating to street improvements: Section 3823 applying to claims of abutting property owners where the damages are obvious; and Section 3830 in its terms applying to “damages arising from any cause.” The difference between these two sections is discussed by the Supreme Court in the case of Cohen v. Cleveland, 43 O. S., 190, in the opinion of th© court at page 195. While the language of Section 3830 is general it has been limited by the case of Davis v. Warren, 43 O. S., 447, to damages arising from street improvements. The failure to file such a claim is a bar to the action (Ernst v. Kunkle, 5 O. S., 521; Cohen v. Cleveland, 43 O. S., 190, 195). These sections are also discussed in the opinion of the court in the case of Ironton v. Wiehle, 78 O. S., 41.

Outside, however, of this failure to show the filing of a claim, in my opinion, the judgment is not sustained by the evidence.. The record of the evidence is very unsatisfactoiy in clearly determining just how the improvement of Glenway avenue was made by the city, and just when and 'how the damage resulted to the plaintiff below. It does, ho welder, show that Glehr way avenue extends up a hill with a steep hill extending upward on the west side and downward on the east side; that the house of the plaintiff Avas built up to the street line on the east or loAA^er side of the avenue and that opposite it the surface of the hill had slid down covering a part of the west side of the street; that the improvement made by the city consisted simply in repaving a macadamized street with granite pavement and the building of a concrete retaining wall along'the west side to prevent future slides. It appears that the land lying west of GlenAvay avenue up as far as Wilder avenue was owned by a private party, the traction company, aaRo had thrown upon it masses of dirt taken off of Wilder and Warsaw avenues.. All of the witnesses agree that this hillside was composed of what they call “slip soil” that had been sliding more or less for years, ever since they can remember. It also appears that plaintiff had suffered damages to his house by previous slides, and that his sidewalk and water-pipes had been broken from time, to time by the bulging up of the street; that his foundation had be.en thrown doAvn and Avas rebuilt because of a slide about three years before the one complained of in this ease. It is hard to' determine from the evidence jnst what the facts are as to the particular slide or slides which caused the damage. The only testimony given is by plaintiff himself and another property owner, Mr. Ahern, and Mr. Kuhlman, who was at one time building inspector, and Mr. Rees McDuffie, who operated the incline railway south of this property and who was an old resident of that locality. None of these witnesses give a detailed account of the method of the improvement or the nature of the slide which caused the damage. The two latter witnesses named above advised the city engineer and his assistant that certain precautions should be taken to avoid a hill slide, the latter suggesting that the soil which had been placed at the top of the hill on the property of the traction company should be first removed by the city, and Mr. Kuhlman advising that the engineer should -drive piles 'to prevent sliding. He afterwards admitted that the piles were driven by the'engineer in the trenches which were made for the foundations of the concrete wall and were driven just as he thought they should be. It appears that these trenches were dug in sections not more than fifty feet long and piles were driven in the bottom and the concrete laid upon them, and that these trenches were not dug until after the damage to plaintiff’s house. Plaintiff himself gives the best story of this damage, and his testimony would indicate that there was but one slide which caused the damage and which occurred on June 27th or 28th and was contemporaneous with a severe and unusual rainstorm which was described by the United States Observer as being very heavy, and which defendant claims caused the slide.

It appears that at the time of this rainstorm the only work that had been done in the matter of the improvement was the removal of the slope of earth that had encroached upon the west side of the street in the cleaning off of the street preparatory to repaving, and that the trench to which plaintiff attributed the slide had not at that time been dug.

The allegations of negligence in the amended petition were that the defendant and its agents knew or should in the exercise of reasonable care have known that to improve Glenway avenue, without bolstering or shoring up the street or the land above by wall or shoring so as to prevent a slide or slip of the said street against and into said lot and against the fall of soil and dirt against said lot, would as a direct consequence cause a slip of the said street and of said lot, and would cause the fall of soil from said street onto said lot and would thereby cause damage to said lot and to the improvements thereon; and that

“The defendant city, despite its knowledge or despite the knowledge which in the exercise of ordinary care it should have had, or the nature of the soil and of the locality and of the consequences of its own acts, negligently failed in the exercise of ordinary care to shore up said street or the land above it as a protection to plaintiff’s aforesaid lot against damage.”

The plaintiff can only recover by proving the acts of negligence alleged in the petition and that such n igligence caused the damage. R. R. v. Kistler, 66 O. S., 326, 333; R. R. v. Lockwood, 72 O. S., 586, 590-1; Elster v. Springfield, 49 O. S., 82, 101.

In my opinion the negligence complained of was not proven but is merely a matter of inference, as there was no attempt to show in any way how the city could have shored up or bolstered up either the street or land to the west of the street without first digging foundations for the necessary retaining walls, as was really done in this ease.

“To establish negligence there must be direct proof of facts constituting such negligence, or proof of facts from which negligence may be reasonably presumed. There should be no guessing either by court or jury.” R. R. v. Marsh, 63 O. S., 236.

The rights of plaintiff and the city as owners of adjoining premises come under the law relating to lateral support. The city as the owner of the street, the dominant tenement, owed no legal duty to hold up plaintiff’s house as the servient tenement. On the contrary it was the duty of the plaintiff or his predecessor in title, when his cellar wall was excavated and the house was built, to so construct his cellar wall as to sustain and support the street as fully as the hill in its natural state would have done. The same rule might be invoked to require the city to hold the hill west of the street from sliding while in its natural condition, but conld not be extended to require it to support same where it was caused to slide by the fact that large quantities of .excess dirt had been piled thereon by its owners. U. S. v. Peachey, 36 Fed. Rep., 161; Village of Haverstraw v. Echerson, 192 N. Y., 54, 59; Milburn v. Fowler, 27 Hun., 568; 1 Cyc., 775, 777.

I think the court erred in refusing to give the following special charges wheh were asked by the defendant and which I believe should have been given:

“4b. The petition avers that in the exercise of ordinary care the street, Glenway avenue, and the land above, while the work in Glenway avenue was in progress should be bolstered and shored up and retained by walls and shoring to prevent a slide or slip of said street against and on to plaintiff’s lot, and that the city negligently failed in the exercise of ordinary care to shore up said street or the land above. This being the only negligence alleged is the only negligence You can consider. Plaintiff must prove by a preponderance of the evidence that in the exercise of ordinary care thé city should have done things he mentions and that the city negligently failed to do those things. Unless plaintiff hds proved all this by a preponderance of the eVl&enee as aforesaid, your verdict should be for the defendant.
“6. The jury are charged if they find that the slide of which plaintiff complains was caused by extraordinary rain, or would not have occurred excepting for an extraordinary rain, the verdict should be for the defendant. By extraordinary is meant not necessarily a rainfall of a volume or intensity which never had h.efor§ occurred in this vicinity, but one which is so heavy as to be unusual, and not to be reasonably anticipated and guarded against by persons using ordinary care and prudence in the progress of work of the kind which the evidence shows was called for in the improvement of Glenway avenue.
“7. The jury are charged that if persons other than the city of Cincinnati piled earth or other materials on the space between Wilder and Glenway avenues west of plaintiff’s premises which caused the slip of which plaintiff complains, the verdict should be for the defendant.”

Defendant was entitled to have these charges, which are correct in form, given before the argument to the jury.


text:
    LIMITATION ON THE ISSUE OF MUNICIPAL BONDS.
    Circuit Court of Summit County.
    Charles R. Morgan, as a Tax-payer, on Behalf of the City of Akron, v. The City of Akron et al.

    Decided, December 30, 1909.

      Municipal Corporations — Sale of Bonds — Bonds for Cleaning Catch Basins and Streets Unlawful.

    A municipality can not raise money by the sale of bonds to pay for the cleaning of catch -basins or streets.
    Marvin, J.; Winch, J., and Henry, J., concur.

      Affirmed by the Supreme Court without opinion, City of Akron v. Morgan, 84 Ohio State, 499.

   The plaintiff is a tax-payer of the city of Akron; he served notice on the city solicitor asking him to bring this suit, which the city solicitor refused to do. Unless restrained by the order of the court, the city will, under an ordinance passed on the 19th day of April, 1909, issue and sell bonds of said city for the purpose of improving and repairing Allyn street sewer from Main sewer in Wolf Dedge Run to a point 300 feet southerly; Cuyahoga river sewer outlet; Maiden Lane alley sewer from Mill street to a point 200 feet northerly therefrom; storm water sewer from Water street to the Ohio canal, near Chestnut street; culvert in east Exchange street; cleaning catch basins, and Munsons street, and unless restrained by order of this court the defendants named as the trustees of the sinking fund will purchase said bonds.

The section of the statute relied upon as justifying the issue and sale of these bonds is Section 2835, Revised Statutes. To the provisions of this section attention has been called in an opinion just prepared in cause No. 898, in this court. This section justifies the issue and sale of these bonds and the use of the avails of such for all of the purposes named, except that which is embraced in the words “cleaning catch basins and Munson street.” Jnst what is meant by the words “and Munson street” we are unable to say. Probably what is meant is that the money is to be used for cleaning Munson street. There is no authority-under this statute for the issuing of bonds for the purpose of cleaning ,a street, or cleaning catch basins, and the defendants, other than the ones named as trustees of the sinking fund, will be enjoined from issuing and selling, or using the avails of any sale of bonds under said ordinance for cleaning catch basins or on Munson street and the defendant, trustees of the sinking fund, are enjbined from purchasing any bonds issued for the purpose of doing any wofk contemplated in the ordinance of April 19, 1909, already mentioned, on Munson street, or .for cleaning catch basins.

The plaintiff’s attorneys will be allowed a fee of $100 in this case.


text:
    SALES1BY A MUNICIPALITY.
    Circuit Court of Lucas County.
    Kerlin Bros. v. City of Toledo.
    Decided, June, 1909.

      Municipal Corporations — Basis of Dealings where Properly is Sold 0y the City.

    City officers can not bind tlic municipality as to title or quantity of property offered for sale, and a purchaser of property so offered can not maintain an action for the value of property not delivered.

      Marshall & Fraser, for plaintiff in error.

      Charles S. Northup, contra.
    Kinkade, J.; Parker, J., and Wildman, J., concur.
   In this cas» Judge Barber directed a verdict in favor of the city at the close of the testimony. We think the petition does not state a cause of action. No fraud or deceit is charged, nor is it stated that the plaintiff did not know the quantity of pipe that the city had for sale. The city had power to sell the pipe it owned, but no authority to sell property it did not own. The plaintiff having paid the amount of the bid to the city, might under certain conditions have rescinded the contract, but we think the plaintiff did not have the right to treat the contract as if made by an individual, and sue for the value of the property not delivered. The city officials can not bind the city as to title or quantity. The judgment of the court of common pleas will be affirmed.


text:
    ACTION FOR BREACH OF CONTRACT.
    Circuit Court of Cuyahoga County.
    Taplin, Rice & Company v. McKeefrey & Company.
    Decided, December 20, 1909.

      Contract for Sale of Pig Iron-^-Delivery — Time Not of Essence of Contract — Measure of Damages.

    1. In a contract for the delivery of 150 tons of pig iron to the defendant free of freight charges on board cars at Leetonia, Ohio (the place of business of the plaintiff), “in about equal monthly proportions during the last three months of the year 1907,” time of delivery is not of the essence of the contract, and where the plaintiff shows that he was ready, willing and able to deliver the pig iron during the time agreed, but defendant refused to receive it, he may recover damages for breach of the contract.
    2. Where the seller of pig iron is not the manufacturer of it, upon the breach of a contract for the purchase of pig iron from him, the measure of damages is the difference between the contract price and the market price at the time specified for delivery.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The relation of the parties here is the reverse of their relation in the court below. The terms plaintiff and defendant as used in this opinion refer to the parties as they stood in the original action.

The plaintiff is a co-partnership, the defendant is a corporation. The plaintiff sued to recover from the defendant for an alleged breach, on the part of the defendant, of a contract entered into between the parties on the 10th day of June, 1907. The suit originally included a claim for damages growing out of the alleged violation of another contract between the same parties, but that was abandoned, so that the suit was tried upon the claim first above stated.

By the contract of June 10, 1907, the plaintiff agreed to sell to the defendant, and the defendant agreed to buy from the plaintiff one hundred and fifty tons of No. 2 Allegheny pig iron, the same to be delivered to the defendant free of freight charges on board cars at Leetonia, Ohio, in about equal monthly proportions during the last three months of the year 1907, and the defendant agreed to pay the plaintiff therefor the sum of $2á p«r ton, the same to be paid for in cash within thirty days from date of shipment, or by four months’ note with interest at 6% per annum, interest to begin thirty days .after shipment.

The plaintiff alleges in its petition that it was ready, able and willing to perform the contract on its part, but that the defendanton the 27th day of September, 1907, notified the plaintiff that it had sold its property, real and personal, and assets of every description, and from that time forward refused to accept and pay for the iron so contracted for, and so the plaintiff prays for damages.

The defendant answered admitting that it entered into the contract, as stated in the petition; that it notified the plaintiff that it had sold its assets, and it denies every other allegation of the petition. And further the defendant answers that it frequently demanded and requested of plaintiff to furnish the iron in question in accordance with the contract; that the plaintiff neglected to make such delivery at the time agreed' upon, and that because of such refusal the defendant notified the plaintiff that it would not accept any iron under the contract.

Upon the trial it developed that the assets of the defendant had been purchased by a Mr. Clerkin, and there was- a new corporation organized to take over the business of the defendant, which new corporation was known as “the Taplin, Rice, Clerkin Company,” of which Mr. Clerkin was the principal officer and stockholder, and the notice, already mentioned, of September 27, 1907, was made because of this sale. In that notice, which was in the form of a letter, the defendant said to the plaintiff that “we find that we still have due from you considerable iron to be delivered through the balance of the year. Mr. Clerkin and his associates' are putting money enough into the concern to put in a good financial condition, .and hereafter all of our bills will be discounted, instead of being settled by notes in the past. In view of this fact and also that iron is considerably cheaper now than when the contract was made with you, we would like to inquire if there are any concessions that you could make on the iron still due us ? ”

To this the plaintiff answered, declining to make any concessions. This answer was dated October 8, 1907.

On the 11th of October, 1907, there was written by the Taplin, Rice, Clerkin Company a letter to the plaintiff urging that there be a concession made in regard to the price of the iron contracted for by Taplin, Rice & Company. On the 14th day of October, 1907, the plaintiff wrote to the last named corporation again declining to make any concessions. On the 17th of October, 1907, the last named corporation wrote the plaintiff saying, among other things, “We wish you would send the number of tons you still owe us- on these contracts, as we want to see how they correspond with our records here.” On the 18th of October, the plaintiff answered this letter, in which, among other things it is said: “We also have your contract under date of June 10, 1907, for 150 tons of No. 2 Allegheny at $24 cash, f.o.b. furnace, on which there was no iron shipped.” On the 30th of October the new corporation wrote the plaintiff that a Mr. Fisher of that company would probably call upon the plaintiff the next day regarding the pig iron contracts that were unfilled. On the 31st of October, the plaintiff wrote the new corporation that Mr. McKeefrey, one of the partners in the plaintiff__ co-partnership would not be at home either on that day or the next, and saying that they had tried to communicate by telephone with Mr. Fisher.

On the 5th of November, the plaintiff wrote the defendant saying among other things: “We are prepared to make shipments on your contracts and will be glad to have you advise us when you want to have shipments resumed. On the 13th of November the new corporation wrote the plaintiff not to ship any more pig iron on any contracts with the defendant. . On the 15th of November the plaintiff wrote the new corporation tha.t as its contracts were with the defendant, they would have to do business with it (Taplin, Rice & Co.).

Enough of this correspondence has been given to show that the plaintiff shipped no iron under the contract of June 10, 1907, in the month of October, whereas by the contract it was to be shipped “in about equal proportions during the last three months of the year. ’' The plaintiff does not plead any waiver of it on the part of the defendant, but relies for recovery on the allegation that it was ready, able and willing to furnish the iron under the contract, and that the defendant refused to accept it. If time of delivery were of the essence of this contract, we should have the question here of whether, the plaintiff having failed to deliver the first shipment under the contract, the defendant might revoke the entire contract. But we think it clear that neither party regarded time of delivery as of the essence of the contract. The letter of October 30th to the plaintiff can not well be explained, except upon the theory that the defendant did not regard the delivery of the iron in October as essential to the performance of the contract on the part of the plaintiff.

The evidence shows that the partners constituting the plaintiff co-partnership were Neal J. McKeefrey, John McKeefrey and William D. McKeefrey, and that they were officers of a corporation engaged in the manufacture of pig iron at Leetonia, Ohio, the place where this partnership was located, and in the correspondence which has not been quoted, the plaintiff refers to its connection with this manufacturing corporation, and gives as a reason why no concessions could be made as to the price of the iron, that the manufacturing company declined to make any change in the price to the plaintiff. And, it is urged, that the plaintiff should be treated exactly as this manufacturing company should be treated if it were the plaintiff here, and it is said that the measure of damages, if the plaintiff was damaged, would be the difference between the cost of manufacture and the contract price, whatever the measure would be in the case of one who sells property of which he is not the' manufacturer. However, this may be, the evidence did not warrant the court in holding that the plaintiff was to be treated as the manufacturer of the iron which was to *bé delivered under the contract.

The plaintiff gave evidence tending to show that it could have delivered the iron required by the contract substantially at the times severally specified, and also tending to show that the price of pig iron was considerably less at the time when it was-to have been delivered than the price which the defendant agreed to pay for it, and that therefore the plaintiff suffered a loss by reason of the refusal of the defendant to accept the iron. At the close of the evidence on the part of the plaintiff a motion was made. to have a verdict directed for the defendant. This motion was overruled, and we think properly overruled, if we áre right in saying that the evidence tended to show that time of delivery was not of the essence, of the contract, and that the plaintiff was ready, able and willing to perform; for then clearly no verdict should have been directed for the defendant. This motion was renewed at the close of all the evidence, and w.as again overruled, and for the same reasons that the court was justified in refusing the motion at the close.of the plaintiff’s evidence the court was justified in refusing the motion at the close of all the evidence.

At the close of the evidence the defendant submitted certain propositions in writing, which it requested the court to charge singly and not as a series. It does not appear from the record, nor dó we understand that it is claimed here, that these propositions were requested to be given in writing before argument. The first of these requests was not proper, because of the first sentence in such request which reads:

I say to you, gentlemen of the jury, that time is of the essence of the contract entered into between the plaintiff* and the defendant on the 10th day of June, 1907.”

In the second request this language is used:

‘' The plaintiff must show that it has fulfilled the contract entered into between it and the defendant on the 10th day of June, 1907, as to the delivery of the iron to be furnished by it to the defendant.”

Of course if this .proposition had been given, it would have been equivalent to saying that the plaintiff could not recover, because there was no claim that it had fulfilled its contract, but only that it was ready, able and willing to fulfill it, and that it failed to fulfill, because of the refusal of the defendant to receive the iron.

Without stopping to quote further we content ourselves with saying that the propositions contained in requests Nos. 3, 4, 5 and 6 so far as they state the law properly applicable to this ease, were given in the charge.

Requests Nos. 7, 8, 9 and 10 are each based upon the claim that the plaintiff is to be treated as a manufacturer of the iron or else that the plaintiff was simply entitled to retain commissions on the iron sold, and each stated some proposition which we hold is not the law applicable to the case.

As to the other requests, so far as they state the law, applicable to the case, they were given in the charge.

Without stopping here to quote from the charge, an examination of it satisfies' us that the court properly and clearly stated to the jury in the charge the lawjapplicable to the case, including the proper rule for the measurement of damages.

. The result is that we find no error in the record in this case which would justify a reversal and the judgment is affirmed.


text:
    REFUSAL TO MAKE DOW TAX A CHARGE UPON THE LAND.
    Court of Appeals for Hamilton County.
    Charles E. Roth, Treasurer, v. Caroline M. Hulbert et al.
    Decided, March 22, 1913.

      Taxation — Action to Declare Dow Tax a Lien on the Premises — Failure of Proof as to Sales Having Been Made — Section 6080, General Code.

    A charge on the tax duplicate of an unpaid balance of Dow-Aiken tax will not be declared a lie.n on the premises occupied by the party who is alleged to have trafficked in intoxicating liquors, where the only testimony as to liquor having been sold on the premises sought to be so charged was given by two inspectors of the state dairy and food department whose testimony was so vague and uncertain that the trial court refused to believe it.

      Charles A. Groom, Assistant Prosecuting Attorney, for plaintiff in error.

      DeCamp & Sutphin, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   This is an action to enjoin the collection of the unpaid balance of $180.04 tax for trafficking in intoxicating liquors by Helen Ray, in real estate owned by plaintiffs below and rented by her as a residence from month to month.

Reliance is placed by defendants on the tax charge standing upon the Dow-Aiken duplicate (in which the owner of real estate is listed “W. P. Hulbert Estate,” Ree., 38) as making a prima facie ease in their favor. It appears, however, that this charge was placed upon the duplicate by certification from the Auditor of State, and that his action was solely based upon the reports of two inspectors in the state dairy and food commissioner’s department. Each of these inspectors testified that he went with a woman to this house and succeeded in purchasing beer, which they drank. There is no confirmation of this testimony by the woman companion or any one else, nor is there any denial by the tenant in the house of her servants, none of whom were called. There is, however, testimony of the real estate manager, rent collector, workmen engaged in sundry repairs to the building, and a man who collected the money from a musical instrument operated by coins, all of whom were at the house at irregular times and intervals sufficient to have seen some evidence of a, regular trafficking in liquor, if such had been conducted, and who failed to see any indications of such sales.

While we agree that in some instances a single sale or two such sales may constitute trafficking and that the knowledge of such sales by the tenant on the part of the landlord is not necessary to create a lien on the real estate, yet in this case the charge depends entirely upon the evidence of the inspectors, who showed by their unfamiliarity with the location and appearance of the premises and the identification of the tenant in their cross-examination, a lack of certainty that should not exist in evidence necessary to create such a lien as against property owners who have exercised the care in the management of property shown this ease.

The character and weight to be given to this class of testimony has- been passed upon and discussed in Foley v. Roth, 13 C.C. (N.S.), 318, and 8 N.P. (N.S.), 425; King v. Richardson, 9 N.P (N.S.), 209; Hall v. Roth, 9 N.P.(N.S.), 215, and we are content with the rulings there made.

The trial court below had the advantage of seeing these inspectors as witnesses upon the stand and noting their demeanor and evidently gave no credence to their testimony. We are not disposed to view it in any more favorable light when we have no such opportunity.

We find no errors in the proceedings below and the judgment is therefore affirmed.


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    UNCERTAINTY AS TO THE MEANING OF THE WORDS “COMPLETE AUTOMATIC SPRINKLING SYSTEM.”
    Circuit Court of Stark County.
    The W. H. Hoover Company v. The Niagara Fire Extinguisher Company.
    Decided, February 21, 1910.

      Contract — Ambiguity—Extrinsic Evidence.

    In a written contract to install “a complete automatic sprinkler system such as will be satisfactory to the stock insurance companies, and when completed will meet strictly with their approval,” the work to be “completed in accordance with the requirements of the Ohio Inspection Bureau,” there is an ambiguity which authorizes extrinsic evidence as to the meaning of the word “complete.”

      McCarty Pontius, for plaintiff.

      Turner & Webber and Orlando Wilcox, contra.
    Marvin. J. (of the Eighth Circuit) ; Taggart, J., and Donahue, J., concur.
   The relation of the parties here is the reverse of their relation in the court of common pleas. The terms plaintiff and defendant as used in this opinion, will refer to the parties as they stood in the court below. Each of the parties is a corporation.

On the 24th day of March, 1906, a contract in writing was entered into between the parties, whereby the plaintiff undertook to equip the manufacturing plant of the defendant with an approved wet pipe system of the Niagara sprinklers and fire extinguishing apparatus, for which the defendant agreed to pay the sum of $5,500. The contract provided among other things, that this sum of $5,500 should be “in full for work and materials, as specified herein, including surveys, preparation of plans, board and ear fare for men, and the final payment shall be due and payable thirty days after the work is completed, in accordance with the requirements of Ohio Inspection Bureau, under whose rules and regulations the work is to be performed.”

The specifications made a part of the contract, contained the following clauses, among other things:

“The foregoing proposition is based upon furnishing and erecting the necessary number of automatic sprinklers in your plant located at New Berlin, Ohio, together with all pipe, fittings, valves, gauges, clips, hangers and labor necessary to erect the same' in strict .accordance with the requirements of the Ohio Inspection Bureau. * * * It is understood under this agreement that you (meaning the defendant) are to do all excavating and backfilling of trenches,' and any carpenter and masonry work, .and furnish piers for tank. Otherwise, we are to install a complete automatic sprinkling system, such as will be satisfactory to the stock insurance companies, and when completed will meet strictly with their approval.”

The plaintiff put into the manufacturing plant of the defendant a system of Niagara sprinklers and fire extinguishing apparatus which was to the satisfaction of the stock insurance companies and to the inspection bureau, and claims to have fully performed the contract on its part to be performed. The defendant by its answer, denies-that the plaintiff has put in a complete automatic sprinkling system, and avers that the fact is that it is such system, when complete, and would have included . all that which was put in, together with an electric alarm system, and that no such “electric system” was put in. Aside from this, there is no disagreement between the parties.

The contract entered into was upon a printed form prepared by "the plaintiff, to which was annexed the specifications, from which quotations have been made. This printed form consists of a proposition made by the plaintiff to the defendant, and accepted by it. The specifications are typewritten. It developed upon the trial that on the 17th of March, 1906, the plaintiff had made a similar proposition to the defendant at a different price, to'-wit, $6,000, which was not accepted by the defendant. The defendant placed upon the stand W. H. Hoover, who was its president .and general manager, and who acted for it in the making of the contract sued upon. He testified that-he had a conversation with Mr. Frazer, manager of the plaintiff .at the time the contract was entered into, and then he was asked this question :

"Q. In that conversation did you call his attention to the fact that there was no itemized statement in this proposition of March 24th similar to the one set out in the proposition of March 17th?”

This question was objected to; the objection sustained, and an exception taken by the defendant. And the defendant’s counsel stated that he expected the answer to be that the witness called Mr. Frazer’s attention to the fact that in the proposition of March 17th there was an itemized list of the various things that were to make up said system complete, and that in the proposition of March 24th, there was no such itemized list.

This question was then asked of the witness:

" Q. I will ask you if .at that time, before the signing of the contract, you asked Mr. Frazer what this proposition, which was not itemized, and which is incorporated into the contract of March 24th, included?
"A. I did.
‘ ‘ Q. What did he say ? ”

This question was objected to; the objection sustained, and an exception taken by the defendant, and the defendant’s counsel stated that he expected the witness to say, in answer to this question, that Mr. Frazer, who represented the plaintiff in the transaction, said that the proposition included in the contract of March 24th was the same, and included all the work and material the same as that set out in the proposition of March 17th; that it was their flat form of contract, and that it included everything that was itemized in the form marked "Defendant’s Exhibit A” (this Defendant’s Exhibit A being the proposition which the defendant claimed was made to it on the 17th day of March).

Counsel for the defendant then said, "in connection with the testimony of this witness, the defendant offers the proposition, or blank contract of March 17, 1906, heretofore marked as its "Exhibit A.” Objection to this was sustained and an exception taken by the defendant.

If there was any error for which the defendant can properly complain in the trial of this case, it was the ruling of the court upon the several questions, and offers made by the defendant, shown in the foregoing. On the part of the plaintiff in error it is urged that this should have been admitted because it would have explained what the plaintiff meant or represented to the defendant that it meant by the words used in the contract actually entered into when it said “otherwise we are to install complete automatic sprinkling system.-” The ¡wbrd “otherwise” as here used is so used because immediately preceding it the defendant was to do certain work. This is seen by the quotation heretofore, made of the clause preceding the word “otherwise.” So then, except as to the things which the defendant was to do and which precede in the specifications the word “otherwise,” the plaintiff was to install “a complete automatic sprinkling system.” It is said that what constitutes “a complete automatic sprinkling system” would not be understandable necessarily by an intelligent man, without some explanation, and that such explanation was furnished by the plaintiff, as would appear if the witness had been permitted to answer that when he asked Frazer what was- included in it, he answered, that it included all that was included in the proposition' of March' 17, and if the court had then permitted the proposition of March 17 in evidence, the words “complete automatic sprinkling system” would, it is claimed, have been fully explained. The specifications attached to the proposition -of March 17th contain these words:

“The. foregoing proposition is based upon furnishing and erecting 725 automatic sprinklers in your plant located at New Berlin, Ohio, together with all pipe, fitting,- valves, guages, clips hangers and labor necessary to erect the same in strict accordance with the requirements of .the Ohio Inspection Bureau. We further estimate that it will require.” (Then follow twelve items of equipment, one of which is an “electric alarm system.”)

But for certain words contained in the contract actually made, and also - contained in the proposition .of March 17th it would seem as though there could be little doubt flmt defendant was entitled to show what he offered to show, that the plaintiff said at the time the contract was entered-into that the complete system included the- items named in the'-specifications attached to the proposition of March 17th. Certainly it can not be claimed-that the words “complete automatic sprinkling system” convey a distinct idea to one not familiar with the system. In other words, there is an ambiguity in these words. To no member of this bench does it convey a distinct idea of what would be necessary to make such complete automatic sprinkling system. But, on the part of the plaintiff, it is urged that when the entire clause is read in which the words occur, “complete automatic sprinkling system” it will be seen that an arbitrator was determined upon in the contract, who should decide that question. The entire paragraph reads: “We are to install a complete automatic sprinkling system such as will be satisfactory to the stock insurance companies, and when completed will meet strictly with their approval.” And in the printed proposition already quoted, the agreement is that the work is to be “completed in accordance with the requirements of Ohio Inspection Bureau.” The trial court evidently regarded this contention on the part of the plaintiff as sound, and in the argument of plaintiff and in briefs furnished by its counsel, abundant authority is cited to show that where parties determine upon one who is to decide whether the contract is completed, such decision is final. But is that fairly applicable to the case here? The plaintiff was to put in a “complete system” and it was to be a “Niagara System.”

It would hardly be contended that if any system other than the Niagara System had been put in, it would have been a fulfillment on the part of the plaintiff of its obligations under the contract, although such system should be' to the entire satisfaction of the “Ohio Inspection Bureau,” and meet entire satisfaction of the “stock insurance companies.” The insurance companies and the inspection bureau are interested only in having such a system as will properly secure the premises from danger by fire. It certainly is conceivable that a system of fire extinguishers might be installed which would meet with the entire approval of the inspection bureau and the insurance companies, which would not be a “complete automatic sprinking system” of the Niagara pattern.

Suppose A should contract to furnish B a complete McCormick harvester' machine, to the satisfaction of the man in the charge of B’s farm, and A should furnish not a McCormick but a Deering Harvester machine, and such Deering machine was to the entire satisfaction of the man in charge of B’s farm, it surely could not be claimed that A had performed his contract. The machine was not only to be to the satisfaction of the man in charge of B’s farm, but it was to be a McCormick machine.

Suppose A undertakes to furnish B a complete harvesting machine to the complete satisfaction of the man in charge of B’s farm, and B not himself being familiar with such machinery or its use, inquires of A what that includes, and he answers, either in writing or by word of moqth, that it includes an Appleby automatic binding attachment. A machine is furnished to the entire satisfaction of the man in charge of B’s farm but it has no Appleby automatic binding attachment. It would seem as though there could be no doubt that A has not fulfilled his contract.

Suppose that A agrees to furnish B a certain span of horses and a carriage, with all the necessary attachments to the satisfaction of B’s coachman. B inquires what is included in that complete carriage, and A answers, it includes among other things, .a pole and shafts. A delivers the horses and the carriage with the pole and no shafts. It is entirely satisfactory to B’s coachman. Has A fulfilled his contract ? It would seem as though this question answered itself.

Suppose that at the time of the contract being entered into there had been present some of the appliances constituting a part of the .apparatus, which appliances were made of brass, and which if made of iron would be equally satisfactory as they well might be, to the insurance companies and the inspection bureau, and the defendant had asked of what material .are these particular appliances to be made when you put in a “complete automatic sprinkling system” of the Niagara pattern, and the answer had been, ‘ ‘ They are always of brass. ’ ’ The system when put in, has several appliances of iron or some other material much cheaper than brass. They are equally satisfactory to the insurance companies and the inspection bureau, but could it be claimed that the plaintiff having said, either in writing or by word of mouth, that their completed system included these appliances made of brass, that tbe contract had been complied with? This seems to answer itself. In short, a fair construction of this contract would seem to require that the work and the materials should be satisfactory to the insurance companies and the inspection bureau, but that the fact that they were so satisfactory was not necessarily all that was required, but that such contract might include something else. We think the court clearly erred in excluding the evidence to which attention was called, which was offered by the defendant. We therefore hold that this evidence should have been admitted as explaining what the plaintiff represented to the defendant was meant by the Niagara sprinkling and fire extinguishing apparatus, and a “complete automatic sprinkling system,” and for error"in excluding this evidence, the judgment is reversed and the cause remanded.


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    CONTINGENT RIGHT OF DOWER NOT RELEASED BY DIVORCE.
    Circuit Court of Summit County.
    Don A. Goodwin v. Mildred Goodwin.
    Decided, April 12, 1911.

      Alimony — Bower Not Released by Bivorce for Husband’s Aggressions— Election to Receive Money in Lieu Thereof.

    The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death is property, and the property right is not lost by her by divorce from him on his aggressions, unless she voluntarily release the same and agree to take a money consideration in lieu thereof, which, in an alimony case, may be awarded her upon her election.

      Grant, Sieber & Mather, for plaintiff in error.

      Otis, Beery & Otis and G. M. Anderson, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   The defendant in this action was divorced from the plaintiff by reason of his aggressions. The defendant not being content with the order in reference to alimony, comes to this court by appeal from that part of the decree.

The evidence shows that the parties lived together as husband and wife but a short tune; that both had been married and both divorced before their marriage to each other. The defendant is now about 38 years of age, and though there is no evidence as to the age of the plaintiff, it does appear that they were acquainted as children, and from Ms appearance on the stand we reach the conclusion that he is a few years, and only a few years, the senior of the defendant. It is perhaps not profitable that we should spend any considerable time in the discussion of the obligations which each of these parties took to the other at the time of the marriage. The law imposes duties upon each, and gives rights to each. When the plaintiff married the defendant he undertook to provide for her in such wise as one in. his circumstances and with surroundings shcruld provide for his wife. And further he conferred upon her by the very act of marriage the right to be endowed of all the real estate of which he should be seized at any time during the coverture, provided she outlived him. This right, though inchoate, is still spoken of and declared by the courts of Ohio to be a property right. In the case of Mandell v. McClave, 48 Ohio St., 407, it is said in the syllabus:

"The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death, is proper, having a substantial value that may be ¡ascertained with reasonable certainty from established tables of mortality, aided by evidence respecting the state of health ¡and constitutional vigor of the husband and wife respectively.”

The evidence shows that the husband is the owner of real estate which is worth, above the mortgage encumbrances upon it (which encumbrances we assume to have been upon it at the time the parties hereto were married), about $80,000. Tie has a considerable amount of personal property, but probably not sufficient to pay all of his debts, including this mortgage debt. This contingent right of dower, estimated by the tables, ¡and assuming the husband to be 40 years of ¡age, is worth about $3,200. The decree of divorce in this ease could not deprive the defendant of that right, so she still has it. If she chooses to relinquish it for its fair value in money she may do so, but it is no part of the duty of this court to determine that she shall, .and without going further into the reasons for the allowance made, it will be the order of the court that the plaintiff pay to the defendant the sum of $1,800 as alimony, and that if she chooses to, and she releases her right to dower in his real estate, he shall pay her the additional sum of $3,200; so that in any event she shall receive $1,800 and it will be at her election whether she will release her dower and receive $5,000.

This decree for alimony will constitute a lien upon the real estate of the plaintiff until it is paid, and in the event that the defendant shall elect to release her claim for dower to the plaintiff, such release shall' not operate to discharge such real estate from any part of the lien created by this decree.


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    NEGLIGENCE ON THE PART OF A DRIVER.
    Circuit Court of Cuyahoga County.
    Ludwig Spielberger v. The Northern Ohio Traction & Light Company.
    Decided, October 12, 1910.

      Street Gar Accident — Driver Grossing Track — No Time to Stop Gar— Company Not Liable.

    Where a person with knowledge that a street ear is coming rapidly, drives upon the track and his hind wheel is struck before he clears the track and he is injured, there being no evidence that the motorman had time to stop his car in time to save the accident, there can be no recovery against the street car company.
    Henry, J.; Winch, J., and Marvin, J., concur.
   From this record it appears that a verdict for the defendant below was directed at the close of plaintiff’s evidence in an action to recover damages for personal injuries sustained by the plaintiff, a groeeryman, the hind wheel of whose delivery wagon was struck by a street ear as he was driving across Main street in the city of Akron on the morning of November 27th, 1907. The only negligence of the defendant which the plaintiff in error now relies on is that the mortorman had time, - after notice of the danger, to prevent the collision.

Spielberger himself testified (pp. 6-8), “When I got on Main I looked around the north side, did not see anything, looked around south and it was about 300 feet away from the crossing from where I was going to cross the track.” Beipg asked “And at the time you saw the ear 300 feet away how close was your horse to the track that the car was coming on?” he answered, “About 10 or 15 feet.”

Question. “What did you do then Avhen you saw the car coming and you was that close to the trade, Avhat did you do?” Answer. “Well, I started, I drove ahead,"I drove on because I seen — ” Question (interrupting). “You drove where?” AnsAyer. “West.” Question. “Across the track?” Answer. “Across the track.” Question. “And as you was crossing the track state'what, if anything, happened?” Answer. “I seen the 'car was pretty close to me and I jacked up the horse, tried to jack up the horse after they didn’t stop, they didn’t stop, they didn’t ring the bell, didn’t stop nor nothing, just coming ahead, hit my hind wheels, upset the wagon, I dropped doAvn then, that was my last. ’ ’

The wagon it appears was slowly toppled over, and the car come to a standstill within half or three-quarters of its own length after hitting the wagon (p. 80). Another witness says (p. 82) that plaintiff’s horse was ten or twelve feet from the track when the car was coming within 150 feet of him. ’ ’ The plaintiff beloAAr ¡also proved (pp. 101-5) that, at ten miles an hour, the shortest distance in which this car could be stopped at that place, is 150 or 175 feet, Avith1 perfect conditions; and at 16 miles an hour, 250 feet. The speed limit under city ordinance was then 12 miles an hour, but it nowhere appears how fast this car was going.

Upon this state of evidence Ave think the court below was clearly right in holding that there was nothing-for the jury to consider. The only negligence discernible from the record is that of the plaintiff in error.

Judgment affirmed.