text:
    CONTRACTS.
    [Cuyahoga (8th) Circuit Court,
    October 21, 1907.]
    Winch and Marvin, JJ.
    Gebbie & Co. v. Charles R. Welch.
    Withdrawal of Written Proposition Before Acceptance and New Agreement Made.
    A written offer not accepted by plaintiff is withdrawn when plaintiff and defendant at a later time make a verbal contract concerning the same subject matter upon different terms from those embodied in the first offer.
    if. E. Parsons and Beavis & Johnson, for plaintiff in error.

      Riley <& McQuigg, for defendant in error.
   WINCH, J.

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

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

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

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

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

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

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

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

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

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

Marvin, J., concurs.

Henry, J., not sitting.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    DIVORCE AND ALIMONY.
    [Cuyahoga (8th) Circuit Court,
    November 9, 1907.]
    William A. McIntire v. Lillian M. McIntire.
    Alimony to an Invalid Husband.
    When a husband was dying of consumption and wife strong and healthy, with property worth $5,000, court awarded him $600, and $30 per month for four years should he live that length of time.
    -- Copeland, for plaintiff.

      W. 8. Kerruish, for defendant.
   WINCH, J.

In this case we are asked to make an allowance of alimony to the plaintiff who was recently divorced from his wife by the common pleas court. He is dying of consumption, unable to work and his wife has about $5,000 worth of property which we find was accumulated principally by the joint efforts of both husband and wife. The defendant is strong and healthy; she has the care of an adopted child, a little girl, apparently four or five years old.

We allow, the plaintiff $600 to be paid him within two weeks, and a monthly allowance of $30, payable for four years, beginning November 1,1908, but to eease should he not live out that period of time.

Marvin and Henry, JJ., concur.


text:
    FORCIBLE ENTRY AND DETAINER — LANDLORD AND TENANT.
    [Cuyahoga (8th) Circuit Court,
    November 18, 1907.]
    Winch, Marvin and Henry, JJ.
    Jacob Matzas v. C. R. Heller.
    Forfeiture of Lease for. Gambling and Illegal Traffic in Intoxicating Liquors.
    When forfeiture of a lease was sought on grounds that the tenant had allowed gambling and unlawful sales of liquor on premises, and the jury found generally in favor of plaintiff, the higher court can not review the case if there was any evidence tending to show that gambling was carried on and there was no error in the charge as to that branch of the case.
    Error.
   WINCH, J.

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

The magistrate held that a three years lease between the parties had been forfeited. The landlord claimed the forfeiture under Sec. 4276 R. S. (Sec. 5972 Gr. C.), because his tenant had occupied the premises for gaming purposes, and under See. 4361 R. S. See. 6206 Gr. C., because of the unlawful sale of intoxicating liquors upon the premises by the tenant.

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

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

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

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

Although we have a bill of exceptions in this case, we can not examine it as to the weight of the evidence. State v. Wood, 22 Ohio St. 537.

Neither can we reverse the justice for any error alleged to have been made by him in his charge to the jury, for the defendant entered no exceptions to said charges. Pittsburg C. & St. L. Ry. v. Porter, 32 Ohio St. 328.

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

The defendant excepted to the refusal of the justice to charge as requested by him, but in this there was no error, for a justice of the peace is not required to charge the jury, though if he do so, he must charge correctly. Hirth v. Graham, 50 Ohio St. 57, 61 [33 N. E. 90; 19 L. R. A. 721; 40 Am. St. 641],

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

Marvin and Henry, JJ., concur.


author: HENRY, J.

text:
    ANIMALS — HEALTH.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Winch, Marvin and Henry, JJ.
    J. L. Stadler v. Cleveland (City).
    Property in Carcasses of Dead Animals.
    The right of municipal corporation to regulate the disposal of dead animals is limited to the reasonable necessities of the public health and welfare, and can not be so exercised as to deprive the owner of his property in the carcasses.

      Error.

      W. H. Boyd and E. J. Hart, for plaintiff in error.
    IV. D. Baker, City Solicitor, for defendant in error.
   HENRY, J.

The plaintiff seeks to enjoin the defendant’s alleged unlawful interference with his hauling in the innocuous carcasses of animals, which, though not fit for food, are his property, from points within the city, through the public streets, to his rendering works without the city. Judgment was rendered against him below on demurrer to his petition. California Reduction Co. v. Sanitary Reduction Works, 199 U. S., 306 (26 Sup. Ct. 100).

In the exercise of the police power, municipal corporations are authorized by Sec. 1536-761 R. S. (Sec 4470 G-. C.) to regulate the disposal of dead animals. But inasmuch as dead animals are valuable for purposes other than food, and the right of private property therein clearly exists, the city’s right to regulate the disposal thereof is limited to the reasonable necessities of the public health and welfare.

The petition alleges that the interference complained of is unlawful and that the carcasses in question are not noxious. The demurrer should therefore have been overruled. Whether the petition is vulnerable to a motion to make definite and certain we do not decide, nor is it necessary to speculate what ordinance reulations, if any, on the subject may be valid. That issue can doubtless be raised by answer to the merits.

Reversed and remanded.

Marvin and Henry, JJ., concur.


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    MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    December 16, 1907.]
    Winch, Marvin and Henry, JJ.
    Mat Garrity v. A. J. Farber et al.
    Risk Assumed by Workman by Using Defective Materials to Construct Place to Work.
    When a workman had used defective materials in erecting a scaffold and was afterwards injured by its collapse, the fact that he had called the foreman’s attention to the defective material and been assured by him that it was all right, does not obviate the workman’s assumption of risk.
    Error.

      E. P. Strong and W. E. Gunn, for plaintiff in error.

      J. H. Sampliner and M. J. Farber, for defendant in error.
   HENRY, J.

This was a personal injury damage case, wherein a verdict for the defendants helow was directed on their motion made at the close of the plaintiff’s evidence. Judgment having been rendered accordingly, the plaintiff below prosecutes this proceeding in error.

The injury of which he complains was occasioned by the breaking of one of the supports under a low scaffold whereon he was standing. The scaffold consisted'of planks laid upon said supports, and the supports consisted of two upright boards or planks connected at the top by a horizontal board or plank. Each support was made fast to one of the several posts in the building where the accident occurred, the upright part resting at the bottom on the floor on either side of the post. One of these upright boards broke because of being cross-grained and very dry. It does not appear that it was rotten in any other sense.

Garrity was told by his foreman to use these supports in erecting the scaffold. When he came to do so the appearance of the supports led him to suspect that they were not strong! enough for the purpose, and he complained to his foreman, who assured him that they were all right and had been used by other workmen. Both Garrity and his foreman were carpenters of many years experience. Close inspection of the upright that broke would have disclosed its condition, and Garrity had the same opportunity to know its condition as his foreman, save that the latter perhaps knew that the boards had been in a dry place where the temperature was 70 degrees.

Upon this state of facts we are asked to hold that the foreman’s assurance obviated Garrity’s assumption of the risk.

The rule is, of course, that an employee must allege and prove either a promise to repair on which he relied, or else that he had no knowledge of the defect or danger complained of and would not, in the exercise of ordinary care, have discovered the same; and he is conclusively held to appreciate the dangers which may arise from defects of which he has, or in the exercise of due care, would have knowledge. Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. 585.]

On the facts of this ease, Garrity’s suspicions as to the weakness of the supports having been aroused, it became his duty as an experienced carpenter about to use the same, in constructing a scaffold whereon he was about to work, to scrutinize the same with care. No assurance short of a promise to repair on the part of his foreman, could; in such case, suffice to shift the risk from his shoulders to the shoulders of his employer.

The judgment below is affirmed.

Marvin and Henry, JJ., concur.


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    BENEFICIAL ASSOCIATIONS.
    [Cuyahoga (8th) Circuit Court,
    December 16, 1907.]
    Winch, Marvin and Henry, JJ.
    Moses Klein v. Amazon Lodge No. 567.
    Remedy of One Expelled from Beneficial Society.
    When one has been expelled from membership in a fraternal or beneficial organization, he must exhaust all remedies provided within the organization before appealing to the courts.

      Kerruish & Kerrnish, for plaintiff in error.

      Strimple & Schrimshaw, for defendant in error.
   HENRY, J.

This was an action for damages in which the plaintiff in error, who was plaintiff below, sought redress for alleged unwarrantable expulsion from the defendant fraternal order, of which he had been a member. The regulations of the order provide with great particularity the procedure in such eases. That procedure was so far pursued as that Klein, after due notice, was tried for offending against one of the rules of the order, and as a result of such trial his expulsion occurred. Subsequently he invoked a review of this action by an appellate tribunal within the order, but he failed to pursue his remedy in this behalf as far as the regulations permit and contemplate. Instead, he brought this action, alleging that the appellate procedure was not convenient nor definitely pointed out either by the officers of the order or by its regulations.

An inspection of the regulations themselves shows that this claim was not warranted, and because he has failed to exhaust his remedy within the order, as provided by its regulations, his resort to the civil courts was premature. See Meyers v. Jenkin, 63 Ohio St., 101 [57 N. E. 1089].

The remark of the court in the hearing of the jury during the trial complained of by the plaintiff in error as prejudicial; alleged errors in the charge to the jury, and the alleged want of merit in the case made against Klein on the trial within the order, are questions, as we view this record, of no moment inasmuch as, upon the conceded facts and documentary evidence, the judgment must necessarily have been rendered for the defendant below.

The judgment below is affirmed.

Marvin and Henry, JJ., concur.


text:
    ASSESSMENTS.
    [Cuyahoga (8th) Circuit Court,
    December 24, 1907.]
    Winch, Marvin and Henry, JJ.
    T. H. Johnson v. Glenville City.
    1. Abutter not Estopped from Enjoining Collection of Assessment by Signing Petition for Improvement.
    A property owner is not estopped from enjoining the collection of an assessment illegally levied against his property, because he had signed a petition asking for the improvement to pay for which the assessment is levied. ,
    2. Injunction Lies for Failure to Afford Abutter Opportunity to Build Sidewalk.'
    A property owner must be given an opportunity to elect whether or not he will build a sidewalk in front of his premises, and may enjoin the collection of an assessment to pay for one built by the city when not given such opportunity.
    Error.

      Thomas H. Johnson and Ford, Snyder Jo Tilden, for plaintiff in error.

      N. D. Baker, City Solicitor, and.W. D. Wilkin, for defendant in error.
   HENRY, J.

The injunction prayed for is allowed. The plaintiff was given no opportunity, before the construction of the sidewalk in front of his premises, to elect whether he or the city should perform the work. Section 2330a. Revised Statutes, the only statute purporting to authorize a different procedure, was not only unconstitutional, but was not attempted to be complied with.

Nor can we uphold the remainder of the assessment for this street improvement. The publication of the notice of the filing of an estimated assessment appears to have been made but twice, instead of three times, as required by law.

It is urged, however, that the plaintiff is estopped to complain, after the work is completed, of the assessment to pay for the same, in view of the fact that he petitioned for the improvement and was actually served with notice of the declaratory resolution concerning the necessity thereof. . It does not appear that he had actual knowledge of the further proceedings until after the work was done.

In McGlynn v. Toledo, 12 Circ. Dec. 15, (22 R. 34), affirmed no opinion, Toledo v. McGlynn, 67 Ohio St. 498, it was said by Parker, J., at p. 18 (39), “that what the parties asked for at the hands of the council was that they should proceed under valid laws, and proceed according to law, to make this improvement and the assessment.”

The plaintiff is thus not estopped to maintain this action, and, unless the parties can agree upon a journal entry excluding from the operation of our injunction such part of the assessment as represents actual benefit to the plaintiff from the entire improvement, except the sidewalk, the defendant must be remitted to such remedy, if any, as it has under Sec. 1536-268 R. S. (Sec. 3902 G-. C.)

Winch and Marvin, JJ., concur.


text:
    INSOLVENT DEBTORS.
    [Cuyahoga (8th) Circuit Court,
    December 24, 1903.]
    Henry, Marvin and Winch, JJ.

      Pabst Brewing Co. v. Cassius L. Johnson et al.
    Acceptance of Payment by Creditor from Insolvent Debtor.
    Section 6343 R. S. (Sec. 11102 G. C. et. seq.), as amended by 95 O. L. 608, does not alter the rule of Cross v. Carstone, 49 Ohio St. 548, that a creditor may accept payment as security from an insolvent debtor, so long as it is not obtained for the benefit of a third party also.

      Error.

      Klein & Harris, for plaintiff in error.

      Tanney & Linder, for defendant in error.

       Affirmed, no op., Pabst Brewing Co. v. Peltz, 81 Ohio St., 566.

   HENRY, J.

The petition must be dismissed. Section 6343 R. S. (Sec. 11102 G. C. et seq.), as amended by 95 O. L. 608, does not, we think, alter the rule of Cross v. Carstone, 49 Ohio St. 548 [31 N. E. 506] that a creditor may accept payment or security from an insolvent debtor, so long as it is not obtained for the benefit of a third party also.

Whatever may be effect of the words “in trust or otherwise” and the words “to prefer one dr more creditors,” we do not infer that, the leislature intended so revolutionary a change as plaintiff contends.

It follows that the first assignment to Pelitz did not bring this case within that statute.

Nor could the pendency of this action, considered as a creditor’s bill, have operated to prevent the administrator of Henry P. Johnson’s estate from exercising his right and discharging his duty of paying the fund in question to the administrator of Myra C. Johnson’s estate when the latter was appointed.

And whatever might have been the duty of Myra’s administrator, had he been made a party before disbursing the fund, we see nothing in the pendency of the action against Cassius L. Johnson et al to prevent lawful payment by said administrator to him, or on his order, to his creditors. And this is so, even though such transaction resulted in preferring the creditors so paid.

The end accomplished was not unlawful. Neither was the concerted means. Hence there was no actionable conspiracy.

Marvin and Winch, JJ., concur.


text:
    EVIDENCE — SALES.
    [Cuyahoga (8th) Circuit Court,
    January 20, 1908.]
    Winch, Marvin and Henry, JJ.
    Cogswell Dental Supply Co. v. Gideon Sibley.
    Result of Laboratory Test of Goods Sold on Warranty Admissible.
    In an action for the price of manufactured goods sold on warranty, evidence of laboratory tests of the goods delivered is admissible.
    Error.

      Billmcm & Billman, for plaintiff in error.

      Carr, Stearns & Chamberlain, for defendant in error.
   HENRY, J.

This was an action for the price of a large number of sets of artificial teeth sold by the defendant in error to the plaintiff in error, which is a dealer in dental supplies. The defense was breach of warranty of quality.

On the trial the burden of the proof was, of course, upon the defendant below, plaintiff in error here, and it offered to show by its clerk in charge of its teeth department that the said teeth, when tested in the laboratory, were found to be brittle and worthless, and of no value, that the metal pins attached to said teeth were brittle and fragile and broke on slight pressure, and that the teeth were absolutely worthless and could not be used. To the exclusion of this evidence the defendant excepted and rested its case. Thereupon the court directed a verdict for the plaintiff, which was accordingly rendered.

These rulings of the court we think were erroneous. True, the teeth were exhibited to the purchaser at the time of the purchase, placed in stock by him and an effort made to sell them, but with very little success. Upon reports from customers, that the teeth were unfit for the use intended, the fact developed, according to the proof offered but excluded, that when tested in the laboratory they were found to be defective and worthless.

Apparently these defects were not discoverable upon examination at the time of the purchase. The seller’s agent represented them to be good and strong, and the purchaser stated to the agent at the time that he bought them upon that representation. The evidence offered should have been received and the case submitted to the jury.

For the reasons indicated, the judgment of the court of common pleas is reversed and the cause remanded for a new trial.

Winch and Marvin, JJ., concur.


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    EASEMENTS — INJUNCTION—RAILROADS.
    [Cuyahoga (8th) Circuit Court,
    January 20, 1908.]
    Winch, Henry and Marvin, JJ.
    Joseph A. Ritter et al v. Cleveland Short Line Ry.
    1. Railway Liable to Abutter for Bridge Construction in Highway Interfering with Easement of Access.
    The easement of access to an abutting lot from the street is property within the meaning of Art. 1, Sec. 19, of the state constitution and when a highway crosses a railroad track by means of a bridge, the railroad in constructing the bridge and approaches thereto becomes liable to an abutting lot owner, whose easement of access to his property is injured by the throwing up of an embankment in the street in front thereof.
    2. Laches Preventing Owner from Reclaiming Property Taken.
    Public policy may require a court to hold that an "owner, who has delayed the assertion of his rights until public considerations have intervened, has forfeited the right to reclaim property taken and is remitted to his rights of compensation.
    3. County Commissioners and Railroads May Agree as to Manner of Crossing Highways.
    County commissioners are not precluded by Sec. 3337-17k. R. S. (Sec. 8896 G. C.) which provides that except in certain cases new lines of railroad shall cross highways above or below grade, from making a contract as to the manner of crossing a highway under the provisions of Sec. 3283 R. S. (Sec. 8763 G. C.), providing that public officers and railroads may agree upon the terms upon which railroads may occupy public property.
    Error.
    W. II. Boyd, for plaintiff in error.

      Kline, Tolies do Goff, for defendant in error.-
   HENRY, J.

The facts disclosed on the trial of this appeal are that the plaintiff owns an improved parcel of land abutting upon a state road, in this county, near the point where said road is intersected by the Cleveland Short Line Ry. right of way. This road being newly established comes within the recently enacted provisions of law prohibiting the creation of grade crossings, and pursuant to the terms of Sec. 3283 R. S. (See. 8763 G. C. et seq.), the railway company and the county commissioners have entered into an agreement whereby the grade of the railroad is to be seven feet below the former established grade of the highway, and the grade of the latter will be elevated eighteen feet above its former level.

The railway company in making the change of grade in the highway, pursuant to this agreement, has carried the slope or approach to the crossing to a point in front of plaintiff’s premises and is about to obstruct plaintiff’s driveway by an elevation of the roadway in front of the entrance to his premises to a height of four to six feet. Prior to the commencement of this case the highway had been temporarily diverted and a large part of the filling in of the highway on the opposite side of the railroad from plaintiff’s premises had been made; some progress also upon the filling in of the highway on plaintiff’s side of the railroad had been made, and in that state of affairs the plaintiff seeks to enjoin this interference with the access to his premises.

The first claim of the plaintiff is that the entire proceeding of the county commissioners and the railway company is illegal and unauthorized by the section to which reference has been made, the claim being that the whole subject is governed by Sees. 3337-8 R. S. et seq. (Sec. 8863 G-. C. et seq.). We think, however, that Sec. 3337-177c R. S. (See. 8896 G. C.) clearly contemplates a resort to such general laws, including Sec. 3283 (8763), as may be applicable to such a situation.

Section 3337-177c reads as follows:

“Every railroad company constructing a new line of railroad, under its charter powers, across highway, shall construct the same above or below the grade of the highway, unless permitted in the manner hereinafter provided, to construct the same at grade; and such railroad company, may exercise the power contained in its charter and the general laws, for altering the grade and location of highways in order to avoid grade crossings.”

That See. 3283 applies as well to the crossing of highways by railroads as to the longitudinal occupation thereof is clearly implied in the case of the Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. 738], And this section provides that:

“If it be necessary, in the location of any part of a railroad, to occupy any public road, street, alley, way, or other ground of any kind, or any part thereof, the municipal or other corporation or public officers or authorities, owning or having in charge thereof, and the company, may agree upon the manner, terms, and conditions upon which the smae may be used or occupied.”

This section seems to invest the county commissioners with the requisite authority to enter into the kind of agreement here under consideration. It further provides the method of procedure to be followed in case of disagreement between the railway and the public authorities. Section 3337-8 et seq., makes no provision for such a contingency.

We do not think that a resort to See. 3283 is precluded by the existence of the section last referred to, and it being undisputed that the provisions of Sec. 3283 if appilcable, have been followed, we can not enjoin the continuation of the railway company’s work on the ground of any illegality in the agreement under which it is proceeding.

It is further claimed that-even if the work being done by the railroad company is lawful, the plaintiff’s right to an injunction nevertheless exists in respect of any infringement of his property rights by impairment of the access to his property in consequence of said work.

It is admitted in this case that the damage, if any, which he has sustained, is ascertainable in money, but it is urged, on the part of the defendant, that although plaintiff’s premises are improved and consist of a residence site with a lawn and a house, the latter being remote enough from the highway so that it is not directly affected by the slight change of the level thereof, the impairment, if any, of his access thereto is not the taking of property for which, under the Constitution and laws of this state the defendant must make or secure a compensation in money, but is at the most, an incidental damage for which he has his action at law.

With this view we do not agree. In the case of McNulta, v. Ralston, 3 Circ. Dec. 163 (5 R. 330), it was held that the easement of access from the street to an abutting lot and from the lot to the street is properly within Art.1, See. 19, of the constitution of this state, and when a highway crosses a railroad track by means of a bridge, the railroad in constructing the bridge and approaches thereto becomes liable to an abutting lot owner, whose easement of access to his property is injured by the throwing up of an embankment in the street in front thereof.

See also Hatch v. Cincinnati & I. Ry., 18 Ohio St. 92.

The taking of property in such cases being by and on behalf of a private corporation is a taking for which compensations under the constitution, must be rendered or secured in advance; although, of course, the propehty owner may, if he prefers, wait until after the taking, and bring his action to compel appropriation for damages, as the case may require.

In this case, however, the public interest can not be ignored, and because the public use of the highway will be seriously interfered with so long as this change remains in its uncompleted state, we are bound to consider whether or not the plaintiff by waiting until the highway had become thus obstructed has deprived himself, as against the public, of his undoubted right to prevent the consummation of the threatened injury of which he complains until he shall have been first compensated.

In Goodwin v. Cincinnati & W. Canal Co. 18 Ohio St. 169 [98 Am. Dec. 95], is is recognized that considerations or public policy may require a court to hold that an owner who has delayed the assertion of his rights until such public considerations have intervened, has forfeited his right to reclaim property taken and is remitted to his rights of compensation. We think the same principle applies in this case, even though the injury is still only threatened, and for this reason and because the plaintiff delayed bringing his action until the public highway was so greatly obstructed that it will require less time to complete the work than to undo it, his prayer for injunction is denied and he is remitted to his plain remedy at law.

The petition is therefore dismissed.

Winch and Marvin, JJ., concur.


text:
    PAYMENTS.
    [Cuyahoga (8th) Circuit Court,
    January 20, 1908.]
    Winch, Henry and Marvin, JJ.
    Francis A. Harvey et al. v. Mary B. Shurtleff, Exrx.
    Application of Payments without Obligation Designated.
    When the debtor makes a payment to the creditor to whom he owes two obligations, one not yet due and the other past due, without specifying upon which the payment is to be applied, the creditor must apply it to the payment of the obligation which is due.
    Error.

      Mark A. Copeland, for plaintiffs in error.

      Burton & Bake and William Howell, for defendant in error.
   HENRY, J.

The original action in the court below was a mortgage foreclosure ease brought by one Ryder against the plaintiffs'in error and others. A decree of foreclosure was entered and other issues being reserved for further trial, the mortgaged premises were sold, resulting in a deficit. With respect to this deficit and upon the issues reserved the case was thereupon resolved into two actions for money only, which were separately docketed and tried, by consent of parties, and upon judgment being rendered in the second of these separated actions, this petition in error was filed.

The plaintiff in error, Frances A. Harvey, in June, 1902, owned a parcel of land at the corner of Kennard and Portland streets in this city. General Shurtleff, of whose will Mary B. Shurtleff is the executrix, through the firm of Harvey Brothers, sons of the plaintiff in error, then made a loan of $3,000 to the plaintiffs in error, evidenced by two promissory notes, one for $2,500, bearing interest at six per cent, due five years after date, the other for $500, bearing interest at eight per cent, and due six months after date, each of which was secured by mortgage on this property.

Before the maturity of either of these notes, Mrs. Harvey sold the mortgage premises to Mrs. Malvina Green, now insolvent, who assumed and agreed to pay the said 'mortgage indebtedness. A few months after this sale General Shurtleff, upon being paid the sum of $1,000 by Mrs. Green, through Harvey Brothers, released certain portions of the mortgaged premises from the lien of the mortgage. The $500 note was then due, but General Shurtleff applied the sum thus paid upon the $2,500 note, which was not due. Afterwards General Shurtleff sold the $2,500 note to said Ryder, plaintiff in the original mortgage foreclosure suit. In that suit General Shurtleff, or the executrix of his will, Mary B. Shurtleff, filed a cross-petition upon the $500 note and mortgage, but no part of that note was paid out of the proceeds of the foreclosure sale, and it is upon the action for personal judgment upon this note that the present proceeding in error arises.

The action by Ryder for a personal judgment against the Harveys for the deficiency resulting from the foreclosure sale resulted in a judgment for the defendants, apparently upon the ground that General Shurtleff had, in consideration of the assumption of the $2,500 note by Malvina Green when she purchased, released the Harveys from their liability as makers thereof. The pleadings and journal entries in the original mortgage foreclosure suit, as well as in the action for personal judgment for the deficiency due on the $2,500 note, were all put in evidence in this ease and are included in the bill of exceptions before us.

The defense to this action interposed by the Harveys are three in number:

1. That General Shurtleff’s release of this personal liability of the Harveys extended as well to the $500 note as to the $2,500 note.

2. That the release of a portion of the mortgaged premises from the lien of the mortgage, at the instance of Mrs. Green, and on payment by her of $1,000, was made without the consent of the Harveys, and impaired the morgaged security of the indebtedness by the full amount of the deficiency resulting from the foreclosure sale.

3. That General Shurtleff misapplied the $1,000 thus paid, which if applied according to law and the rights of the Harveys ’ would have extignuished the $500 note.

Upon the first defense it was alleged in the answer of the Harveys that General Shurtleff, being in the habit of lending money to or through them, had entered into a general agreement by the terms of which he had contracted to release them from personal liability on any mortgage notes which they executed to him, whenever they should sell the mortgaged premises to persons, whose responsibility upon an investigation by him, he should approve, in consideration of such purchasers’ assumption of an agreement to pay such mortgaged indebtedness; and that pursuant to this arrangement he had, upon investigation, approved of Mrs. Green’s responsibility, and had released the Har-' veys from personal liability upon their notes assumed by her and secured by mortgage on the premises which she purchased from them.

Upon the trial of the Harveys introduced some evidence tending to show that General Shurtleff had released them from personal liability, but the court charged the jury in substance that it was incumbent upon the Harveys to prove not only a mere verbal release by General Shurtleff but a substantial compliance with the terms of the alleged general agreement between him and the Harvey Brothers so far as the same related to this trans action, and the court declined to charge, as requested, that if the jury found that General Shurtleff had in fact verbally released the Harveys from their personal liability, in consideration of Mrs. Green’s assumption of the mortgage indebtedness, they should find for the defendants. In this we think the court erred. The material fact was merely whether a release had actually been given. If so, it was quite immaterial whether all of the matter of inducement alleged by the Harveys in their answer was proved. No matter what General Shurtleff’s general arrangement with the Harveys may have been, if he chose to make a' contract of release of their liability in this ease, that would suffice to make a perfect defense to this action.

As to the second defense, we think, upon examination of the evidence contained in the bill of exceptions, that the court was warranted in submitting to the jury, and the jury was warranted in finding, that the Harveys did consent to the release of a portion of the mortgaged premises from the lien of the mortgage, if such consent was necessary under the circumstances of this transaction.

With respect to the third defense, we find the law to be as contended by plaintiff in error namely: when payment is made by a debtor to his creditor, without stipulation as to whether it shall be applied upon a debt that is due or upon a debt that is not due, it becomes the creditor’s duty to apply it upon the former. For it would be contrary to all reason to suppose that one who owes his creditor two debts shuold be presumed to intend to apply the payment upon one which is not due, leaving the other which is due to be enforced at once. Barbour, Law of Payments, 138; Stemfor Bank v. Benedict, 15 Conn. 437.

And this is true, despite the fact that in this case it was natural for General Shurtleff to desire to apply the payment upon the obligation which bore the lower rate of interest and which was without security of the Harveys’ liability as original makers, if we suppose that upon retrial the jury, when properly instructed on the subject of the release of the Harveys’ personal liability upon this $500 note, will find as they did before.

The creditor, as between debts not due, has the option, to apply payment as he pleases, if no stipulation in that behalf is made by the debtor, and if no application is made, a court of equity will apply it in an equitable manner. But under the circumstances of this case the creditor had no option. If he had made the proper application of the payment of $1,000 this $500 note would have been extinguished.

It is claimed, however, that the Harveys are estopped from asserting that the $500 note was paid, because it was adjudicated in the original foreclosure suit, to which both they and Shurtleff’s executrix were parties; that $500 was owing upon this note and $1,500 on the $2,500 note.

The answer to this contention is that so far as the issues then adjudicated are concerned, this finding was strictly trae. The personal liability of the Harveys was an issue which was then expressly reserved, and their contention then was and still is that no personal liability whatever attached to them.

We have carefully examined the pleadings which they filed in the original foreclosure suit, and in the other branch of the case, as afterwards divided, and we fail to find any allegation or admission therein, either that the $1,000 had been paid upon the $2,500 note, or that any part of the $500 note was due from them.

Shurtleif’s executrix has, moreover, failed anywhere to plead that Mrs. Green, in making the payment of $1,000 gave any direction, through the Harveys or otherwise, as to how that payment should be applied, or that the Harveys themselves gave any such direction -or are in any way estopped from interposing this defense. Neither do we discover anything in the evidence which would warrant us in supposing that General Shurtleif was under any direction or duty to apply said payment otherwise than as the law required for the preservation of the Harvey’s rights in the premises.

At the close of the plaintiffs’ evidence in the court below a motion to direct a verdict upon, this ground of defense was properly interposed, and that motion should have been sustained.

For the errors indicated, the judgment of the court of common pleas is reversed and cause remanded for a new trial.

Winch and Marvin, JJ., concur.


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    HIGHWAYS.
    [Cuyahoga (8th) Circuit Court,
    January 20, 1907.]
    Marvin, Winch and Henry, JJ.

      Charles O. Anderson et al v. Cleveland (City) et al.
    Property Owner Has no Claim for Compensation for Vacation of Street, when.
    A property owner on a street or alley, a portion of which other than that on which he abuts is vacated by the city council, has no right to compensation when he has reasonable access to his property by other streets and alleys, although the distance he may have to travel in some directions may be greater than before the vacation.
    Error.

      C. W. Poland and P. H. Kaiser, for plaintiff in error.

      N. D. Baker and John H. Clarke, for defendants in error.

       Affirmed, no op., Anderson v. Cleveland, 79 Ohio St. 451.

   HENRY, J.

The parties stand related here as they stood in the court below. Plaintiff owns a parcel of real estate at the southeast corner of Landon street and the right-of-way of the New York, C. & St. L. Ry. Detroit avenue a short distance north of this property forms with said street and right-of-way a small triangle. By reason of a separation of the grades of said avenue and said railroad at their intersection, pursuant to an agreement to that 'end entered into between the said railroad and the city of Cleveland, the railroad track at this point has been lowered; that part of Landon street between the railroad and Detroit avenue has been vacated, and in lieu of the vacated portion of this street an extension of Landon street has been opened up to Detroit avenue, south of and parallel with the railroad’s right-of-way. The grade of this extension is upward from a point near plaintiff’s premises to the level of Detroit avenue. The distance to be traveled between plaintiff’s property and the point of former intersection between Landon street and Detroit avenue has thus been increased, but no change has been made in the part of Landon street on which plaintiff’s property abuts. Upon this state of facts plaintiff sued to recover damages sustained by him in consequence of the impaired access to and from his premises. It is not complained that the grade of Landon street extension is impracticable, and any difficulty in travel by the new route instead of by the vacated portion of Landon street may be presumed, except as to the extra distance, to be offset by the elimination of thte hazards of the former grade crossing on Landon street.

We think the court below was right in holding that the rule of the Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264 [62 N. E. 341; 87 Am. St. 600], precludes recovery on this state of facts. The second paragraph of the syllabus in that case is as follows:

“A property owner on a street or alley, a portion of which other than the part on which he abuts, is vacated by the city council, has no right to enjoin the obstruction of the vacated portion by the owners to whom it reverted, where he has reasonable access to his property by other streets and alleys, although the distance he may have to travel in some directions may be greater than before the vacation. To entitle a party to any relief in such cases, the inconvenience he suffers must differ in kind from that of the general public, and not only in degree. ’ ’

It is said, however, that the facts in that case were such that the injunction prayed for should have been denied in any event, because they disclosed that plaintiff’s access to her property was not appreciably impaired but was in fact bettered by the changes complained of. But we think the rule as expressed in the syllabus of the case is controlling and that the plaintiff in this case, as in that, is not entitled to any relief, because no legal injury ai’ises in such case, unless the inconvenience suffered is diffex’ent in kind and not merely in degree from that of the general pxxblic.

It is complained of further in this case that the lowering of the grade of the railroad tracks alongside of plaintiff’s property to a depth of less than nine feet has deprived plaintiff of the lateral support naturally appertaining to his land, whereby the buildings thereon have been rendered less secux’e and the ground itself has crumbled away. So fax*, however, as the mere crumbling of the ground is concerned, the plaintiff has in open court here waived this claim.

With reference to the buildings thereon, the excavation being of the depth indicated merely, no right of the plaintiff is thereby invaded. Belden v. Franklin et al, 28 O. C. C. 373 (8 N. S. 159).

The judgment of the court of common pleas is affirmed.

Marvin and Winch, JJ., concur.


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    MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Marvin, Winch and Henry, JJ.
    James F. Goggin, Prochein Amy v. Electric Controller & Sup. Co.
    Servant May Rely on Assurance Defective Machinery has been Repaired,
    When a workman on a drill press notifies his employer of a defect in the machinery which allows the drill press to fall when not in use, and quits work until assured by the foreman that the defect has been removed, and after returning to work is injured by the same defect; Held, That, in the absence of contributory negligence, the master is liable.
    2. Failure to Observe Defect Remains after Assurance of Repair, Question of Contributory Negligence for Jury.
    The question as to whether the employe was guilty of contributory negligence is not observing that the defect still remained and in not swinging the drill clear of the base when not operating it are questions for the jury.
    Error.

      Hamilton c& Smith, for plaintiff in error.

      Hoyt, Dustin & Kelley, for defendant in error.
   HENRY, J.

This is a personal injury damage ease between master and servant. The parties stand as they stood below, a verdict for the defendant below having been directed upon motion, at the close of the plaintiff’s evidence.

The plaintiff although but thirteen years old was an experienced drill-press hand, employed in defendant’s shop. The spindle of the drill press which he operated fell down upon his hand while he was engaged in measuring the depth of a hole which he had just drilled. The spindle was normally held in its proper verticle position by a guide or cylinder through which it passed near its lower extremity, and it was kept from falling down by a collar or nut at the upper end of the cylinder clamped tightly around the spindle by means of a screw. On the morning of the accident, this screw had worked loose and the plaintiff had, by direction of his foreman, tightened it. Finally at noon the spindle came down and plaintiff left his work with the request to his foreman that the latter repair the difficulty. This the foreman promised to do, and when plaintiff returned in the evening to his work the foreman, advised him that he had done so. After working a short time upon the drill press as thus repaired, the spindle again fell down, inflicting the injury of which he complains. The defendant urges that the judgment below is correct for three reasons:

First. The drill press was so arranged that the bed might have been swung around to one side while the operator measured the depth of the hole which he had been drilling. This would have prevented any chance of injury from the turning or falling of the spindle, and the plaintiff failed to take this precaution.

Secondly. It is urged that plaintiff, experienced as he was and having the collar and screw complained of immediately before his face, should have seen the working loose of the screw before it had loosened sufficiently to allow the spindle to fall. He had made such observation in the morning, and it is claimed he ought to have seen the same thing in the evening.

Thirdly. It is claimed that the evidence nowhere discloses that the cause of the spindle’s fall at the time of the accident was the defect which plaintiff had noticed in the morning, and which the defendant’s foreman had promised and attempted to repair.

We think none of these points are well taken. The question of plaintiff’s contributory negligence in failing to observe the loosening of the' screw and in failing to turn the bed of the drill to one side was for the jury. It can not be said as a matter of fact or as a matter of law that plaintiff was guilty of negligence in either of these particulars, so far as the evidence contained in 1he bill of exceptions before us discloses.

On the third point at page 6 of the bill of exceptions the plaintiff testified that there was nothing else aside from the nut in question that supported the spindle in the cylinder, and on page 10 he testified, that just after the accident the nut was completely off the spindle. It thus appears, if these statements are true, that the cause of the spindle’s falling at the time he was injured, was the defective condition of the nut or the screw, which was a part of it. It was a defect in this precise place that he had observed and complained of in the morning; it was this defective condition which the foreman had promised to repair and assured plaintiff that he had repaired. The plain inference as it seems to us is that the repairs made were not complete or effectual, but that the same trouble which had twice appeared in the morning recurred again in the evening when plaintiff was injured. This, we hold, made a case for the jury, and it was error under the circumstance to direct a verdict for the defendant. The judgment below is reversed and the cause remanded.

Marvin and Winch, JJ., concur.


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    MASTER AND SERVANT — STREET RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Marvin, Winch and Henry, JJ.
    Jacob Siegel v. Cleveland Electric Ry.
    Master Liable for Assault Made by Servant While Acting within Scope of Employment.
    A petition which recites that plaintiff while a passenger on defendant’s car was assaulted by its servants while in the course of their employment states a cause of action.

      Error.

      C. W. Noble, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   HENRY, J.

This proceeding in error is prosecuted to reverse the judgment of the court of common pleas rendered in favor of the defendant in error, upon its objection, sustained, to the introduction of any testimony under the petition of the plaintiff in error, who was plaintiff below. The petition below alleges that the plaintiff was a passenger in one of the defendant’s cars; that he paid his fare but afterwards discovered that he had given the conductor two tickets instead of one; that he demanded the return of the extra and that the conductor, and later the motorman, whom the conductor called to his assistance, assaulted and beat him while they were in the employ of the defendant in the scope of the employment and in the course of business of their agency.

It is urged that the petition containing substantially these allegations, fails to state a cause of action, because it does not specifically aver that the alleged wrongs complained of occurred while plaintiff still remained a passenger upon the car, and because it alleges no facts directly connecting the assault with the demand made by the plaintiff for the return of the extra ticket, or with the performance of any duty by the conductor or motorman in their respective capacities as employes of the defendant, and because the defendant can not be held liable for a mere malicious assault by these men, even though they chance to be in the employ of the defendant. The case is likened to Little Miami Ry. v. Wetmore, 19 Ohio St. 110 [2 Am. Rep. 373], wherein it was held:

“A master is not responsible for the wrongful acts of his servant, unless that act be done in execution of the authority, express or implied, given by the master. Beyond the scope- of his employment, the servant is as much a stranger to his master as any third person, and the act of the servant not done in the execution of the service for which he was engaged can not be regarded as the act of the master.”

In that case the plaintiff after purchasing the ticket, as a passenger applied to the servant of the defendant, charged with the duty of cheeking baggage, to have his baggage checked to his place of destination, and by his importune conduct and abusive language towards the servant provoked a quarrel in which the servant to gratify his personal resentment struck the plaintiff, and it was held that the wrongful act of the servant in' striking the plaintiff could not be regarded as authorized by the master, nor as an act done in the execution of the service for which he was engaged by the master, and the fact that the blow was inflicted by a hatchet furnished by the master to be used for a wholly different purpose in connection with the servant’s business was held to be immaterial as respects the liability of the master. The assault in that ease was perpetrated by the baggage master outside of the enclosure where his business with the public was regularly transacted.

In the case before us, however, the petition expressly avers that the act complained of was done within the scope of the employment. If this be a conclusion it is at most vulnerable to a motion to require the petition to be made more definite and certain in this behalf. The petition can not be deemed demurrable.

Whatever the facts may prove to be upon the trial of the issue, the allegations of the petition bring the case within the principle of Passenger Ry. v. Young, 21 Ohio St. 518 [8 Am. Rep. 78], and the Nelson Business College Co. v. Lloyd, 60 Ohio St. 448 [54 N. E. 471; 46 L. R. A. 314; 71 Am. St. 729].

The judgment of the court of common pleas is reversed and the cause remanded for further proceedings.

Marvin and Winch, JJ., concur.


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    HUSBAND AND WIFE — TRUSTS AND TRUSTEES.
    [Cuyahoga (8th) Circuit Court,
    February 3, 1908.]
    Marvin, Winch and Henry, JJ.
    Johnson McFarland v. William Purper and Barbara Purper.
    False Representation by Husband as Trustee that He Is Owner oí Property of Wife does not Subject Property to Satisfy His Debts.
    When a husband holds the record title of real estate belonging to his wife, represents to his creditors that he is the owner of the property, but his wife did not know of, or join in, these representations, the husband’s creditors can not subject the property to the payment of his debts.
    Error.

      Burrows & Mason, for plaintiff in error.

      Walter D. Meals, for defendant in error.
   HENRY, J.

The question presented by this special appeal is whether the plaintiff having extended credit to William Purper, one of the defendants, on the faith of the latter’s record title to certain real estate, which the latter in fact held in trust for his wife, may resort to the property for the payment of his claim, the same having been reduced to judgment and having been a lien upon said land, if a judgment lien can attach under such circumstances.

Purper’s wife acquired the property in an amicable settlement of her parents’ estates by cross-deeds among the heirs, but caused or permitted the conveyance of her share to be taken in her husband’s name. The property has since from time to time been encumbered by mortgage, but we find nothing in these transactions to vary the interest and right of the wife as cestui que trust. She paid no particular attention to the state of the legal title as between herself and her husband, but her joinder in mortgages and her possession of tax receipts affected her with notice of and acquiescence in her husband’s custody of the title. He made representations to the plaintiff that he was the owner of the property, bnt there is no evidence that these representations were known to the wife, or that she by any affirmative conduct induced the plaintiff to extend credit to her husband.

On this state of facts the rule is as expressed in the first paragraph of the syllabus in Wright v. Franklin Bank, 59 Ohio St. 80 [51 N. E. 876] that lands held in trust can not be sold on execution for the payment of the debts of the trustee, and judgments against such trustee are not liens upon such lands.

See also: Manley v. Hunt, 1 Ohio 257; Minns v. Morse, 15 Ohio 569 [45 Am. Dec. 590] Butler v. Brown, 5 Ohio St. 211; Lefferson v. Dallas, 20 Ohio St. 68; Churchill v. Little, 23 Ohio St. 301, 308; Mannix v. Purcell, 46 Ohio St. 102 [19 N. E. 572; 2 L. R. A. 753; 15 Am. St. 562],

The petition is therefore dismissed.

Marvin and Winch, JJ., concur.


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    DIVORCE AND ALIMONY.
    [Cuyahoga (8th) Circuit Court,
    June 14, 1909.]
    Marvin, Winch and Henry, JJ.
    Celia Epstein v. Abraham Epstein.
    Divorce Under Constructive Service not Governed by Rule Regulating Opening Judgments.
    Section 5355, R. S. (Sec. 11632 G. C.), which provides for the opening up of judgments obtained on constructive service does not apply to divorce decrees.
    Error.
   WINCH, J.

This is a proceeding to review a judgment of the common pleas court refusing to set aside a decree of divorce, alleged to have been obtained through fraud and perjury, and without proper service upon the defendant in the original action.

As to service, it seems that the defendant was living in New York City, notice of the pendency of the action was properly published and the clerk mailed a copy of the newspaper containing the notice to the defendant at her proper address, postage prepaid.

The requirement of Sec. 5698 R. S. (Sec. 11984 G. C.) that when the residence of the defendant is known a summons and a copy of the petition shall be deposited in the post office, directed to the defendant at her place of residence, was not complied with.

it is said that the plaintiff in error was entitled to the relief she prayed for under favor of Sec. 5855 R. S. (See. 11632 G. C.) which reads as follows:

• “A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, may, at any time within five years after the date of the judgment or order, have the same opened, and be let in to defend; but before the judgment or order can be opened, the applicant shall give notice to the adverse party of his intention to make the application and shall file a full answer to the petition, pay all costs, if the court require them to be paid, and make it appear, to the satisfaction of the court, that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense; and each party may present affidavits. ’ ’

The application of this section to divorce cases is expressly held by the Circuit Court of the Fifth Circuit in the case of Mulligan v. Mulligan, 31 O. C. C. 89, (11 N. S. 585), but this court held the contrary in the case of Solomon v. Solomon, 26 O. C. C. 307 (4 N. S. 321), and we are not disposed to change our ruling, until the Supreme Court establishes a contrary doctrine and itself overrules the case of Parish v. Parish, 9 Ohio St. 534 [75 Am. Dec. 4821.

Even if Sec. 5355 is applicable to divorce cases, plaintiff in error did not comply with it, and so the common pleas court committed no error in denying her application. She failed to file a full answer to the petition and from her own testimony, which we find in the bill of exceptions, full of contradictions and exhibiting an utter disregard for truthfulness, and the admonitions of conscience, the court might well have found that she had actual knowledge of the pendency of the divorce case in time to appear in court and make her defense.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    CONTEACTS — SALES.
    [Cuyahoga (8th) Circuit Court,
    June 18, 1909.]
    Marvin, Winch and Henry, JJ.
    John McMyler v. Beckman Co.
    1. Stokers Kept by Purchaser for Six Months with Seller Working to Make Satisfactory, Deficient.
    A contract providing that stokers sold should he satisfactory to the defendant, is not complied with, though the defendant kept’ and used them for over six months, it appearing that all that time plaintiff was working upon them, trying to make them satisfactory, but failing therein.
    2. Letter of Managing Officer to Third Person Recommending Goods, not Admissible against Corporation.
    A letter written by the managing officer of a corporation to a third person, recommending the kind of stokers his corporation had purchased is not admissible in evidence in an action against his corporation for the value of the stokers furnished it, on the proposition that it was satisfied with said stokers.
    Error.

      Weed, Miller & Nason, for defendant in error.
   WINCH, J.

In this ease we think that it was incumbent upon the plaintiff to show that the defendant company was satisfied with the stokers furnished (the contract being that the defendant would accept and pay for the same if satisfied with them), and having failed to show this material part of his case, his first cause of action was properly dismissed. The mere fact that the defendant kept and used the stokers from April to November before it ordered them out, was not sufficient to require a submission of this cause of action to the jury, for the plaintiff submitted this fact, with an explanation that continuously during that time he was working upon the stokers, manifestly because they were not satisfactory to the defendant.

There was no error in excluding the letter written by Mehling, the managing officer of the defendant company, to Lieber, of the Indianapolis Brewing Co., recommending the stokers. If Mehling had authority to bind the defendant company by his admissions, it was only in transactions that he was authorized to carry on and to those with whom he was dealing in behalf of his authority and properly rejected, being offered as substantive proof that the company was satisfied with the stokers. The use of the letter to contradict or impeach any evidence offered by the defendant, was not involved.

We have examined all the claims of error, and finding nothing prejudicial to the rights of the plaintiff in error, the judgment is affirmed.

Marvin and Henry, JJ., concur.


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    LANDLORD AND TENANT — VERDICT.
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Marvin, Winch and Henry, JJ.
    Bardons & Oliver v. William J. Crawford.
    Tenant not Liable for Unauthorized Occupancy by Subtenant of Adjoining Premises.
    A lessee of land adjoining premises of his own upon which are tenements used by his own tenants can not be held for occupancy of said adjoining premises after termination of the lease thereof, simply because his tenants continued to make use of said adjoining land, unless it be shown that they did so with his knowledge and consent.
    2. Special Findings not Framed to Test General Verdict Refused.
    It is not error to refuse to direct the jury to make special findings reguested in the event they bring in a general verdict, if the special findings submitted are not so framed as to test the general verdict.
    Error.

      Thompson <& Hine, for plaintiff in error.

      Samuel C. Blake, for defendant in error.
   WINCH, J.

This was an action to recover for the use and occupation of a strip of land owned by plaintiffs adjacent to certain flats or tenements of the defendant which had been originally leased to the defendant to be used by him as a means of access to said tenements. The lease was from month to month and was terminated February 1, 1903, by the plaintiffs who then demanded an increased rent. The defendant refused to pay more, but was alleged to have held over and continued to use the strip of land, not personally, but through tenants. The jury found for the defendant.

It was shown at the trial that previous to February 1, 1903, and before he was notified of the termination of the lease, the defendant had collected of the U. S. Express Co. a certain sum of money for the use of said strip of land as a rear entrance to said company’s land up to April 1, 1903. The express company was not a tenant of the defendant, but used premises adjacent to both parties. It was also shown that there were coal holes on plaintiff’s strip of land connected with defendant’s tenements; that after notified that he could not longer use said strip of land at the old rental, the defendant put steps to the rear windows of his tenements opening upon a new way on his own premises, called Lakewood court, and some time later cut said windows into doors but did not close up the doors opening onto plaintiff’s land, nor said coal holes. It was also shown in evidence that the tenants continued to use said doors opening onto plaintiff’s lands and said coal holes after February 1, 1903.

It ivas also claimed that defendant had notified his tenants to cease to use the premises in question, but the only evidence on this subject was the testimony of the defendant himself who said that he had notified them to cease using the plaintiff’s premises, except in the case of one Nicholls who did not become a tenant until September 1, 1903, and when he took possession of his flat the entrance onto Lakeview court was fully completed Nicholls and his wife testified that Crawford said nothing to them about the use of plaintiff’s land.

Conceding the law of the ease to be that, upon the termination of his lease from plaintiffs, it was the defendant’s duty to notify his tenants that they should no longer use the plaintiffs’ premises, still we can not say that the jury was wrong in finding for the defendant. They might well have believed that the tenants continued said use notwithstanding their landlord forbade them to; it can not be maintained that it was the defendant’s duty to board up the openings referred to.

It is claimed as prejudicial error, however, that the trial court refused to submit certain interrogatories propounded by the plaintiff to be answered by the jury in the event it should return a general verdict, as provided in Sec. 5201 R. S. (Sec. 11462 G. C.) These questions are as follows:

“Did defendant collect rent for the use of the ten foot strip of plaintiff’s premises from the United States Express Company, covering a period subsequent to February 1st, 1903, and if so, for how long a period?”

This question was cleverly worded to avoid asking when ho collected the rent, for the record shows that Crawford received it before he knew that plaintiffs would terminate his monthly tenancy.

Manifestly an answer to this question would not tend to show whether Crawford held over after notified that his lease was terminated, and the petition does not claim anything due plaintiffs by reason of this payment of the express company.

The next question was: “Were the coal holes on plaintiff’s land used by defendant’s tenants after February 1st, 1903, and if so, for how long 1 ’ ’

There was evidence tending to show such use, but the liability of the defendant depended upon his consent thereto. No question was asked, which, taken with this question, would tend to determine the defendant's knowledge of or acquiescence in such use.

The same objection arises as to the next question:

“After the doors were cut in the tenements on Fairview court, did the tenants of defendant continue to use plaintiffs’ premises as a means of entrance and exit?”

Another reason for rejecting this interrogatory is that no Fairview court was mentioned in the evidence. There was a Lakeview court opened by defendant, but no Fairview court.

These two questions if answered most favorably to the plaintiffs would not tend to “test the correctness of the general verdict.” The Supreme Court has several times stated that such must be the intent of the questions. Cleveland & Elyria Electric Ry. Co. v. Hawkins, 64 Ohio St. 391 [60 N. E. 558].

His tenants’ continued use of the coal holes and strip of land would be repeated trespasses on their part, and have no tendency to prove the liability of the defendant, unless followed up with proof of Crawford’s acquiescence therein or failure to notify them to cease such use. No question covering this important link in the chain was submitted and the court therefore, very promptly declined to submit the whole series of questions.

To have given them without reference to Crawford’s consent or neglect to notify, would have tended to mislead the jury as to the foundation for their general verdict.

The last question was: “Did W. J. Crawford notify his tenant, Chas. Nicholls, that he must not use plaintiff’s ten foot strip of land?” As Nicholls did not move in until six months after his landlord’s right to use this strip had terminated and until after the tenement was fully provided with other proper entrances, we think the defendant was under no obligation to notify his tenant not to trespass upon the adjoining premises.

We find no error in rejecting these interrogatories, and the judgment is affirmed.

Marvin and Henry, JJ., concur.


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    BILLS AND NOTES — MORTGAGES—REFORMATION OF INSTRUMENTS.
    [Cuyahoga (8th) Circuit Court,
    November 15, 1909.]
    Marvin, Winch, and Henry, JJ.
    Robert Scholl v. Walter Sobray et al.
    1. Mortgage may be Reformed in Hands of Assignee.
    A mortgage is not a negotiable instrument, though it secures one; hence a mortgage held by an assignee of it may be reformed, it the equities between the original parties to it authorize its reformation.
    2. Claim of Maker against Payee of Negotiable Note Can Not be Set Off against Holder in Due Course.
    A claim of a maker of a promissory note against the payee can not be set off against a holder of the note in due course.
    Error.

      jHarry F. Payer, for plaintiff in error.

      H. V. Boyd, C. W. Dille and Kline, Tolies & Morley, for defendant in error.
   WINCH, J.

The Goff-Kirby Coal Co. appears in this proceeding by cross-petition in error, complaining of the judgment of the court below. The action in the court of common pleas was brought by the Goff-Kirby Coal Co. against the defendants Walter Sobray and Julia Sobray to obtain a judgment upon a promissory note given by said Sobrays to one Robert Scholl, and by Scholl assigned to the Goff-Kirby Coal Co., and also to foreclose a mortgage given by said parties to secure said note.

The promissory note in question was for the sum of $5,000 and dated November 12, 1907, due in one year after date, with interest at six per cent, per annum, and for a valuable consideration and without notice of the claims of the Sobrays, the Goff-Kirby Coal Co. received this note from the said Robert Scholl, and became thereby a holder of the same in due course.

At the time of the commencement of this action the Sobrays had pending in the court of common pleas of Cuyahoga county an action in which they sought to recover from Robert Scholl damages for failure properly to perform a building contract relating to the same property covered by the mortgage. By consent of all parties this action was consolidated with the action of the Goff-Kirby Coal Co., and the two causes were tried together. The issues between the Sobrays and Scholl were purely legal, and were tried to a jury, and subsequently the equitable issues, arising on the pleadings between the Sobrays and the Goff-Kirby Coal Co., were heard by the court on the same evidence submitted to the jury.

On the trial of the action to the jury, at the close of the evidence of the Sobrays, the court, on motion, entered a judgment for the Goff-Kirby Coal Co. on said promissory note, it appearing undisputed in the evidence that that company was a holder in due course of said note, and entitled to said judgment. Subsequently the court held that notwithstanding this situation of the Goff-Kirby Coal Co., the Sobrays were entitled to have the mortgage securing said note reformed so as to make it (the mortgage) payable to said company in installments of $50 each per month until the whole should be paid. At the same time the court held that the Sobrays were entitled to have credited upon said mortgage the amount of 'the judgment which they had obtained against Robert Scholl, to-wit, $1,200, thereby, reducing the claim of the Goff-Kirby Coal Co. against the Sobrays on said mortgage by that amount.

Robert Scholl is here claiming that the $1,200 judgment against him should be reversed for errors in ruling on evidence as to the measure of damages and for want of sufficient evidénce to sustain it.

The Goff-Kirby Coal Co. is here claiming that the court erred in the following particulars:

“1. In reforming the mortgage, and decreeing that the Goff-Kirby Coal Co. should receive payments thereon at the rate of $50 per month.
“2. In decreeing that the Sobrays should have credited upon said mortgage the sum of $1,200, being the. amount of the judgment recovered by them against Robert Scholl for the breach of said building contract.”

As to the judgment against Scholl we find no prejudicial error; the exceptions to questions regarding the “value” of the property and the “fair and reasonable value” of the property should have been sustained, but an examination of the record shows that the witness thereafter in each case explained his answers as meaning the “market value” of the property. This cured the previous error and made it harmless. Neither are we able to say that the jury was not right in finding that Scholl did not comply with his contract or that the amount of the damages, after remittitur entered in the common pleas court, is too great.

Nor do we find that the court was not warranted by the evidence in reforming the mortgage or that there was any error in law in reforming it in the hands of the assignee thereof, Bailey v. Smith, 14 Ohio St. 396 [84 Am. Dec. 385].

However, manifestly the court had no authority to set off the $1,200 judgment of Sobray against Scholl against the mortgage security of the coal company. There was no connection between the claim of Sobray against Scholl for damages for breach of a building contract and the note and mortgage held by the coal company. The two actions never should have been consolidated. Had they proceeded separately, this error would not have occurred. The consent of parties to the consolidation and their conduct in trying the two cases together without objection, however, makes it impossible for this court to say that reversible error grew out of the consolidation. ¥e have the right, however, to modify the judgment rendered by the trial court and we do modify it by striking out that part of the decree which allows a credit of $1,200 on the mortgage and finds that the conditions of the mortgage have been complied with and that the plaintiff is not entitled to foreclose the same, and by inserting a finding to the effect that the installment due March 1, 1908, and all subsequent installments are unpaid, fifteen of them for more than sixty days, whereby the conditions of the mortgage have been broken and the plaintiff is entitled to foreclose and ordering sale unless all over due installments are paid.

Judgment as modified is affirmed.

Marvin and Henry, JJ., concur.


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    MORTGAGES — RECORD.
    [Cuyahoga (8th) Circuit Court,
    November 23, 1909.]
    Marvin, Winch and Henry, JJ.
    Jennie Licker v. Mary F. Green et al.
    Record Best Evidence of Priorities and Burden of Proof is on Contestant to Show Different Priority.
    When the record shows the priorities of mortgages, the burden of proof is upon the one asserting a different priority to prove it, and when the evidence leaves the point doubtful the priorities will be adjudged according to the record.
    Appeal.

      WilUam Bothenherg, for plaintiff.

      A. H. Martin and McGraw & Hauxhurst, for defendant.
   WINCH, J.

Plaintiff’s petition sets up a mortgage on certain premises, ■which she claims to be a first mortgage and asks to be foreclosed. The defendant, D. A. Howard, in a cross-petition sets up another mortgage which he claims to be a first lien and likewise desires foreclosed. The plaintiff then sets up a contract between herself and Howard by the terms of which it was agreed that she should release her vendor’s lien on the property and take a mortgage second to Howard’s mortgage, but that if Howard should neglect to advance $4,550 to the defendants, Green, the purchasers of the property, or if that amount should not be invested in improvements on the property, then her mortgage should become a first lien.

The record of the two mortgages shows Howard's to be the first lien. The burden is then upon the plaintiff to prove that Howard did not advance the $4,550 to Green, or that it was not expended upon the property.

We think the evidence of Howard’s advancing the money to Green is sufficient, but have had considerable doubt as to whether Green expended it upon the property. It is suggested that Green expended part of this money on other property, but there is no evidence to show that he did. We think the vouchers he produces, while not in the best of shape, might be considered as showing the full amount went into the property here involved. However, he is not a very creditable witness. There is a dispute between him and his mason contractor, as to whether the mason work was to come to $2,000 or $1,000, and as to how much was paid him. We understand there is a lawsuit pending between them on this point.

Plaintiff’s expert witness, architect Gleiehman, testifies that the improvements could not have cost as much as Green claims they did. On the other hand, Green’s architect, Janowitz, says the job is a fair one and he estimated it would cost $5,000 and was paid a commission on that amount.

All in all the evidence is unsatisfactory and inconclusive. We are left with a feeling that $4,550 may have been expended upon the property, but are not sure about it. On the other hand, the burden is upon the plaintiff to prove by a preponderance of the evidence that $4,550 did not go into the property. This burden, we think, she had not borne; the evidence is too mueh in equipoise.

For this reason, we have to leave the priorities of the mortgages to stand as fixed by their record and decree may be drawn accordingly.

Marvin and Henry, JJ., concur.


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    BASTARDS.
    [Cuyahoga (8th) Circuit Court,
    November 23, 1909.]
    Marvin, Winch and Henry, JJ.
    Peter Richard v. State ex rel.
    1. Short Period of Gestation not Conclusive of Innocence of Putative Father.
    It is not conclusive that one charged with being the father of a bastard child is not guilty, that the period of gestation was only 259 days.
    2. Resemblance of Bastard to Putative Father Determined by Jury on Exhibition of Child.
    When the bastard child, two years old, was exhibited to the jury to show its resemblance to its putative father, a reviewing court will be loath to reverse a judgment against him on the weight of the evidence.
    Error.

      Berkley Pearce, for plaintiff in. error.

      Davis & Manak, for defendant in error.
   WINCH, J.

This is a bastardy case which we are required to review upon the sole question of the weight of evidence.

It is claimed that the relator's story is improbable in two respects, as to the manner in which the bastard was begotten and the date thereof. ■

The conclusion of twelve men as to the former we are not able to confute, and as to the latter, only 259 days elapsed between the conception and birth, we can not say that it is too short a period to be possible. The usual period of gestation is forty weeks. Such is the law of England according to Lox’d Coke (1 Coke on Litt., 123). It is common knowledge, however, that old housewives count the forty weeks as beginning at the last menstrual period before conception. The evidence of Dr. Burke on this subject, as found in the record, would not preclude the jury from believing the relator’s story as to the date on which the act of intercourse occurred. We do not think her story improbable in this respect and her entire evidence seems to be that of a truthful witness.

The defendant denies that he ever had intercourse with the girl and proves an alibi for the date she gives for the occurrence.

But is his denial to be believed?

It seems that the day he was arrested, he met the relator and invited her to his office that evening where they talked matters over. I will read some of the evidence as to what occurred there, and his comments thereon. On page 81 of the bill of exceptions is the following:

“A. On the day that she brought the proceedings against me, I took hér to my office and got her version of the affair, and got her to make an accusation.
“Q. She had already made an accusation before that hadn’t she? A. Well I got her to repeat the accusation, and to make some statement.”

And on page 84:

“When I asked her other questions, as I was ready to leave, I told her I couldn’t recollect of having any intercourse with her on January 6th.”

And on page 85:

“A. Well I said, when she said ‘January 6th,’ I knew instantly that she was not telling the truth. ’ ’

And on page 87:

“A. I said to her: ‘Well I can’t recollect having seen you on January 6th; I must think this thing over. If, on thinking it over, I find I recollect anything about that case to convince me that I am responsible for your condition, I will make proper sort of a settlement. ■ That is, I will either marry you or I will provide for your ehild, if I convince myself that your story is right.’ I was convinced immediately on the moment that it was not true, her story.”

And on page 92t

• “A. Well, the first remark I made was ‘Well,’ I says, ‘when did this take place, when I got you into.this fix?’ She said, it was the first Sunday in January. I took a little desk calendar and turned to it and found that that was January 6, I said, ‘is this the date?’ and pointed to it, and she said, ‘Yes’ that must be the date, January 6th.’ I said, ‘Well, I don’t remember this, I don’t remember when this happened but,’ I says, ‘I will think this over and if I can find, if I can recollect of having been with you then, I don’t recollect having been with you then, if I can, however, I will consider that I really did this, and I will make the proper sort of a settlement.”

With evidence like this from his lips the jury might well have believed that he protested too much when he said he had never had intercourse with the girl.

There is another reason why we are loath to disturb this verdict. The baby itself, then about two years old, was exhibited to the jury for it to determine any real or fancied resemblance it might have to its putative father, a practice approved by the Supreme Court in the case of Crow v. Jordan, 49 Ohio St. 655 [82 N. E. 750]. What weight this exhibit had with the jury we do not know, but a reviewing court has no such exhibit to examine and therefore has an added reluctance to reverse a verdict on the weight of the evidence.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    December 16, 1909.]
    Marvin, Winch and Henry, JJ.

      Cleveland Steel Castings Co. v. Anton Lewandowski.
    Rule of Assumed Risk in Force.
    The rule of assumed risk is in force in Ohio until the legislature changes it.
    Error.

      Affirmed, no op., Lewandowski v. Cleveland Steel Castings Co., 83 Ohio St. 505; former decision, Cleveland Steel Castings Co. v. Lewandowski, 41 O. C. C. 639 (16 N. S. 472).

   WINCH, J.

This case is here for a second time upon evidence differing but little from the evidence shown in the record of the former trial. We then reversed a judgment in Lewandowski’s favor because of insufficient evidence to sustain it. The opinion rendered in that case on March 23, 1907, points out that Lewandowski could not recover because, if the injury resulted from the insecure manner in which the flasks were piled, that- was the fault of fellow-servants, the foreman not being shown to have given orders to pile them as they were piled, and if the flasks fell because of improper sand foundation upon which they were piled, that was a risk which Lewandowski assumed, for it was open to his observation and he knew as much about it as anybody else.

The record this time seems to destroy the explanation of the accident suggested in the first trial that Manak pushed the flasks over upon Lewandowski, and brings home to the company knowledge of the insecure character of the. sand foundation, which, by the way is not pleaded in the petition, but it nowise shows that Lewandowski did not know all about the nature of the sand with which and upon which he had worked for two months. So long as the doctrine of assumed risk is the law in this state, the defendant in error can never fasten a liability upon the company, for the injury which he received. Why the trial court did not direct a verdict in favor of the defendant at the close of plaintiff’s evidence, in view of the law of the case as laid down heretofore, not only by this court, but by the Supreme Court, we can not understand, and for error in that regard the judgment is reversed, and proceeding to render the judgment which should have been rendered upon the conceded facts of the ease, judgment is entered in this eourt for the plaintiff in error.

Reversed judgment for plaintiff in error.

Marvin and Henry, JJ., concur.


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    CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    December 17, 1909.]
    Marvin, Winch and Henry, JJ.
    Calvin D. Paxson v. Cleveland Auto. Dealers Co.
    Requirement that Stockholder Must Continue in Certain Line of Business Unlawful.
    A provision in the constitution and by-laws of a corporation for profit and printed upon its certificates of stock, that a stockholder shall cease to be such and his stock be returned to the company and its face value be refunded to him upon his ceasing to be engaged in a particular business, is unlawful and unenforceable.
    Appeal.

      Solders, Thayer & Ma/ns field, for plaintiff.

      C. B. Haskins, for defendant.
   WINCH, J.

This case was heard here upon an agreed statement of facts. The question involved is whether plaintiff can be deprived of his rights as a stockholder in the defendant company, pursuant to certain regulations and by-laws.

The defendant is a corporation for profit, incorporated for the purpose of “protecting, promoting and enchanting the interests of the automobile dealers of northern Ohio, also the promoting, managing and controlling of automobile show- exhibits and races in Northern Ohio together with all things necessary or incidental to the carrying out of said purposes. ’ ’

Among its by-laws is found the following:

“No person shall be entitled to hold more than one share of the stock of this company.
“And no person shall be eligible to hold stock in this company, unless such person be a bona fide retail dealer in automobiles, and be determined to be such by the board of directors of this company.
“Upon the filing with the secretary of a written complaint by three stockholders, in good standing, against the continuance of any person as a stockholder in this company, the secretary shall at once notify such stockholder of the time and place of the next meeting of the board of directors, and the secretary shall upon receipt of such complaint, forthwith transmit a copy thereof to the president and to the stockholder against whom the complaint has been filed; and the president shall bring said complaint to the attention of the board of directors, at their next meeting, for their consideration, and said board shall have the power to declare said stockholder to be disqualified to hold stock in this company, and if said stockholder shall be found to be so disqualified by said board they shall at once communicate their finding in writing to the secretary of this company, who forthwith shall tender such disqualified stockholder the sum of ten dollars ($10) whereupon the stock held by said stockholder shall be canceled, and the name of said stockholder stricken from the records of this company, and said stockholder shall thereupon cease to be a stockholder in this company. ’ ’

Pursuant to this by-law the board of directors has duly found plaintiff to be no longer a bona fide retail dealer in automobiles, and has canceled his membership, and tendered him back $10, the face value of his share.

It is conceded by counsel for defendant that taken by itself this is an unenforceable by-law, but that by reason of certain statements printed upon the face of plaintiff’s certificate of stock it became an enforceable contract with him when he paid his money for and received his said certificate.

The language of the certificate is as follows:

“The capital stock of this company is issued, held, owned and transferred subject to the conditions, provisions and limitations as provided by the regulations and by-laws of this company which are hereby made a part of this certificate, the same as though herein written.”

Of course the law writes into this the word “lawful” regulations and by-laws.

This contract, so-called, whether expressed upon the face of the certificate or found only in the by-law is unlawful for three reasons:

First. It seeks to make an unrecognized distinction as to qualifications for membership. Every corporation for profit in the state of Ohio must open its books of subscription to all citizens, and having received subscriptions it can not thereafter cancel" them because the stockholder ceases to possess some qualification the law does not impose.

Second. It seeks to provide that the corporation may deal in its own stock.

Third. It provides for a reduction of capital stock in a manner not sanctioned by law. The statutes point out how capital stock may be reduced, and this “contract” is not in accordance therewith.

Judgment for plaintiff.

Marvin and Henry, JJ., concur.


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    APPEALS.
    [Cuyahoga (8th) Circuit Court,
    December 17, 1909.]
    Marvin, Winch and Henry, JJ.

      J. W. Sykora v. Jelena Djurdjec.
    Judgment upon Transcript upon Dismissal from Justice Court Erroneous.
    In a case appealed from a justice of the peace to the common pleas court, upon dismissal of the appeal for failure of the defendant to comply with an order to give an additional appeal bond, it is error for .the court of common pleas to thereafter enter judgment for the plaintiff upon the transcript filed in such dismissed . case.

      TF. G. Rogers, for plaintiff in error.

      Palda &■ Svarc, for defendant in error.

      Affirmed, no op., Sykora v. Djurdjec, 83 Ohio St. 476.

   WINCH, J.

Sykora recovered a judgment against Djurdjec before a justice of tbe peace; the latter appealed. Plaintiff filed a petition in the common pleas court and defendant filed an answer.

Thereafter plaintiff moved for additional bail for the appeal, which was granted. The defendant neglected to comply with this order for additional bail, whereupon the court dismissed the appeal and rendered judgment for the plaintiff on the transcript.

Within the term the defendant moved to vacate the order dismissing the appeal; this motion was continued to the next term and then granted, at which time the court also vacated the judgment in plaintiff’s favor.

Error is prosecuted to this ruling.

It is conceded in argument that the court has jurisdiction on motion made within the term to vacate the dismissal of the appeal, but it is claimed that no motion, was made to vacate the judgment on the transcript in plaintiff’s favor, and that said judgment therefor could not be set aside at a subsequent term.

The point is not well taken; the judgment on the transcript was a nullity. No authority for entering it up can be found in the statutes. Section 6588 E. S. (Sec. 10388 Gr. C.), applies to cases where the defendant before the justice of the peace files a bond with him but neglects to perfect his case by filing a trans-script and other papers with the clerk of the common pleas court and have his appeal docketed. The defendant in this case complied with the requirements of the statutes and perfected his appeal; when the court subsequently dismissed his appeal there was no case left upon the docket in which to enter a judgment; it was at an end. Plaintiff’s judgment in the justice court was still in force, after the dismissal of the appeal, and if he desired a judgment of the common pleas court thereon, he had to comply with the latter part of See. 6588, (10388)), file a transcript and have the cause docketed. A transcript filed by somebody else in a case dismissed, without re-docketing, can not be held to be a foundation for the judgment authorized in Section 6588. Such looseness of practice should not be permitted in the face of a statute requiring the docketing of a cause as a new case, when a transcript is filed by the appellee.

Papers found in a disposed of case form no basis for a subsequent judgment in that case.

Judgment afSrmed.

Marvin and Henry, JJ., concur.