text:
    LOSS RESULTING FROM DELAY IN COMPLETING A STREET IMPROVEMENT CONTRACT.
    Court of Appeals for Hamilton County.
    J. A. Eberhardt v. Board of Commissioners of Hamilton County, Ohio.

    Decided, July 30, 1913.

      Contracts — Delay in the Worlc of Improving a Street — Caused by Conditions of ivhich the Contractor had Knoioledge — Claim for Damages Incident to the Delay Denied.

    Where it appears from the provisions of a contract for a street improvement that the contractor was advised the running of electric cars thereon was not to he interfered with, and that the tracks were to be readjusted by the railway company, and the right was reserved to suspend the work at any time for the purpose of reconstructing said tracks and no claim for damages was to be made by reason thereof, he will not after final completion of the work be allowed damages because of protracted delay in the readjustment of the tracks which made it necessary to do the work under unfavorable and more expensive conditions.

      Joseph W. O’Hara-, Gideon G. Wilson and Joseph Wilby, for plaintiff in error.

      Pogue, Campbell Groom and Irelon & Sehoenle, contra.
    The disallowance by the court below of the claim of the plaintiff in error for extras, under his contract for paving Carthage pike with granite, is affirmed.
    Jones (O. B.), J.; Swing, J., and Jones (E. IT.), J., concur.

       Affirmed without opinion, Eberhardt v. County Commissioners, 90 Ohio State.

   The case below arose upon an appeal made to the court of common pleas by J. A. Eberhardt from the action of the county commissioners of Hamilton county, rejecting his claim for damages growing out of a contract between him and the county commissioners for the improvement of Carthage pike tbrougb tbe villages of Carthage, Elmwood and St. Bernard in said county.

The contract provided for the grading and paving of said pike with granite blocks. In the center of said roadway were double street car tracks which plaintiff claimed said commissioners failed to have removed so that he could proceed to make such improvement without interference therefrom. The record shows that at the time the work was commenced there was some controversy between the street railway company operating on said tracks and the village of Carthage with regard to the operation of said street railway and the right of the company to maintain such tracks to operate in the manner it was then doing, and because of this controversy no arrangement was made by said street railway company at the time the paving was commenced by the contractor 'for the relaying and readjustment of said tracks, but the paving was laid between the curb- and the end of the ties on either side of said tracks before any paving was done in the center. Plaintiff in error contended that this method of operation was not contemplated by the parties at the time the contract was made, and that it had entailed heavy additional expense upon him by reason of being compelled to work in narrower quarters which prevented adoption of the usual method employed in such construction work. The basis of his entire claim is practically the additional expense claimed to be caused by the complications arising out of relaying the street ear tracks.

The case below was tried before a referee appointed to take and report the testimony and his findings of fact and law. An extended trial was had, and the testimony and exhibits', with the report of the referee, are embodied in the bill of exceptions consisting of eight bound volumes of type-writing. The report of the referee was adverse to the claim, and the court below entered a decree overruling the exceptions of Eberhardt to the report of the referee, and confirming the report dismissing the appeal. A motion for a new trial was filed by Eberhardt, which was overruled by the court. To reverse that judgment and decree the error proceedings are brought in this court.

The specifications under which the work was done provided, in Section 1, that:

“Each party will examine the location of the work and judge for himself as to all of the circumstances affecting it. No information derived from official or other sources will release the contractor from fulfilling all of the conditions of the contract.”

And the contractor admitted that he had looked over the ground and knew of the existence of the street railway tracks, and knew of the provisions which were embodied in the contract in Sections 35 and 13, which are respectively as follows:

35. ‘ ‘ Street Railway Tracks. Where the roadway is to be occupied by street railway tracks, they will be readjusted, renewed find placed in position by the railway company, to the lines and levels given by the enigneer, and all expenses pertaining to the laying of the street railway tracks shall be paid for by the railway company * * * but all work within the rails of said tracks, such as paving with granite and foundation, shall be done by the contractor for the street improvement as contemplated in these specifications.
“Where, in the opinion of the chief engineer of the board of county commissioners it is not necessary to renew the track stringers or cross-ties of the street railway tracks, the said tracks shall be adjusted as required of the specifications, and the sub-grade of foxindations be thoroughly compacted by the contractor with rammers at all points inaccessible to the roller, and without dishirbing the tracks. * # * Where electric railway tracks are laid prior to the pavement, the contractor will be required to construct street, including the laying of pavement, without interrupting the running of electric ears. The contractor will also be required to pave between and alongside all street railway rails that are or may be laid of whatever pattern, cutting the blocks to fit the level of said rail without additional compensation to that bid for paving.”
13. “The right to construct or reconstruct any electric railway * * * at any time prior to the completion of the road covering over the line of the same-, is expressly reserved by the board of county commissioners, and the contractor shall not be entitled to any damages by reason thereof, and said board of county commissioners reserve the right of suspending the work on any part of said street for the purpose above stated without compensation to the contractor for said suspension, but shall extend a corresponding time for completion of said work.”

It is clear, therefore, that the contractor was advised that the running of the electric ears was not to be interrupted by his work, and that the street railway tracks were to be adjusted by the railway company, and that the commissioners reserved the right to suspend work on any part of said street at any time for the purpose of constructing or re-constructing such electric railway, and that no claim for damages by reason thereof should be claimed. And under Section 5 of the specifications the right to change the method of construction in any particular was reserved to the engineer, subject to approval by the commissioners, and the contractor agreed not to claim damages on account thereof.

The record fails to show any interference by the commissioners on behalf of the county with the work of the contractor, that was not permissible under the terms of the contract, or that would in any way entitle the contractor to a claim for damages other than the extra amounts that were allowed him in the payments already made for the work. The contractor at the outset was met with the proposition that the car tracks would not be immediately readjusted in Carthage, where the work was begun, and he proceeded with the work under this condition. And this condition continued up to the time that he himself obtained from the traction company a contract for readjustment and relaying of said street car tracks, which was on October 27th, 1903. Any claim, therefore, that he might properly make an account of the interference of the street railway tracks would be limited to the period before the time when he became responsible for the work of relaying said tracks.

The work of construction extended over a much greater period of time than that fixed by the contract, and it is apparent from the record that the work during the first part of the entire period was more expeditiously and cheaply done than that during the latter part of the period, and it is shown by the testimony of one of the witnesses — an engineer named Innes, called by the county and not disputed — that the cost of the part of the work in Carthage where the interference of the street railroad tracks existed was cheaper than the corresponding work at the southern part of the improvement where no such interference existed.

The court is of the opinion that the plaintiff failed to prove any damages caused by any act or failure to act on the part of the county commissioners or under the terms of their contract. A careful examination of the record fails to disclose any error in the proceedings below prejudicial to the plaintiff in error. Judgment of the court below is therefore affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    VALIDITY OF A STIPULATION WITH RESPECT TO ADVANCEMENTS.
    Court of Appeals for Clark County.
    Ralph N. Stewart and Charles Nicholson v. Margaret Yeazell et al.
    Decided, December 5, 1914.

      Advancements — Heirs of a Grantee Barred from Interest in Beal Estate — Where Bedtal in a Deed Stated that Excess of Value Was in the Nature of an Advancement — Equitable Estoppel.

    Heirs of the grantee in a deed of conveyance between brothers, purporting upon the face thereof to be in the nature of an advancement, who upon the death of the grantor are in possession of the property conveyed and continue thereafter to hold possession under the deed are estopped to deny the validity of the stipulation of said deed in respect to advancements.

      Chase Stewart and Bowman c& Bowmcm, for plaintiffs.

      McMahon & McMahon, contra.
    Allread, J.; Ferneding, J., and ICunkle, J., concur.
   This cause was originally one for the partition of the lands of which Nathan Nicholson died seized.

The final issue for determination relates to the interest of Nathan R. Nicholson and Maud N. Gest, children of Lemuel Nicholson, deceased.

Nathan Nicholson died intestate seized of the real estate sought to be partitioned, leaving brothers and sisters and their representatives as next of bin.

Nathan R. Nicholson and Maud N. Gest, as representatives of Lemuel Nicholson, toob. by descent the legal title to one-eighth part thereof, unless such right is barred or defeated by the undisputed facts stated in the amended petition and the answer to which the demurrer is interposed.

The undisputed facts in brief are: that on or about January 10, 1911, Nathan Nicholson conveyed to Lemuel Nicholson by deed, a tract of 199% acres of the value of over $20,000, for a money consideration of $5,000, containing the following recitals in the consideration clause:

‘ ‘ In the consideration of the sum of $5,000 and other good and valuable considerations, ’ ’

and also the following in a subsequent part of the deed:

“As to the excess in value of said lands over .$5,000 this conveyance is in the nature of an advancement to my brother Lemuel and is in full of his share of my estate. ’ ’

It is undisputed that Lemuel paid the consideration of $5,000 expressed in the deed and took and held possession of said real estate until his death, when the real estate passed by inheritance to his children, Nathan R. Nicholson and Maud N. Gest, who took and still hold possession thereof, and that the excess in value above $5,000 of the land conveyed exceeds the value of the interest which but for said deed would have descended to said Nathan R. Nicholson and Maud N. Gest in the property of said Nathan Nicholson.

It is contended by defendants Nathan R. Nicholson and Maud N. Gest that under authority of Needles v. Needles, 7 O. S., 432, the recital contained in the deed to Lemuel in respect to the advancement and the release of Lemuel’s possibility in his brother’s estate is void.

Upon the contrary, counsel for plaintiff attack the authority of Needles v. Needles and also assert the doctrine of- equitable estoppel.

The doctrine of Needles v. Needles, at least as expressed in the syllabus has been followed by the Supreme Court in the following eases: Hart v. Gregg, 32 O. S., 502; Smith v. Smith, 57 O. S., 34; Gilpin v. Williams, 25 O. S., 283; Duncan v. Kline, 81 O. S., 371; Carter v. Grossnickle, 11 N.P.(N.S.), 465 (affirmed 88 O. S., 577).

The doctrine of the Needles case is therefore established as abstract law governing the validity of attempted conveyances of expectancies or possibilities of inheritance.

But we think it is equally clear that considerations of equity may readily overcome the abstract legal doctrine and justify a court of equity in the enforcement of the contract or conveyance.

Notwithstanding the broad expressions in the opinion in the case of Needles v. Needles, we find a recognition of this equitable doctrine. Bartley, J., in the Needles case, makes the following observation:

“Where two of the children contract with each other in regard to their expectancy from their ancestor, they stand upon equal footing, and although such contract can not operate by way of assignment or release, yet where a valuable consideration has been paid, it may operate by way of estoppel, or be enforced in equity.”

The generally accepted doctrine that a general warranty deed by an heir of his expectancy operates by way of estoppel is a familiar application of the availability of equitable defenses.

In Rosenthan v. Mayhugh, 33 O. S., 155, Johnson, Chief Judge, in reviewing the Needles case makes the following observation, which is of peculiar importance:

“That ease, so far as it bears.on this, merely holds that, at common law, the mere expectancy or chance of succeeding to an estate is not the subject of release or assignment, but, as the opinion shows, may be upheld in equity.”

This brings us to a consideration of the sufficiency of the undisputed facts to move a court of equity to validate and enforce the recital of the deed.

It may be conceded that advancements as between collateral kindred were unknown to the common or statutory la-w of this state.

We are not called upon, however, to extend the doctrine of advancements in a technical sense.

We have here a recital amounting to a contract, the language of which is to be construed. Can there be any doubt that by the use of the word "advancement” in this recital, that the parties intended to extend the doctrine of advancements' to the existing case by stipulation? We think it is unquestionable that the par* ties to the deed to Lemuel intended that the excess of value above $5,000 in the real estate conveyed should be brought in and considered in the distribution of the grantor’s estate upon the principle of advancement.

Such a provision in a case between parent and child would undoubtedly be enforced, and we see no reason why it would not be equitable to enforce a stipulation of this kind against the grantee or his representatives who are in possession of the property conveyed, at the time of the decease of the grantor.

It would certainly be an equitable duty on the part of the representatives of Lemuel, upon the death of their grantor, to bring in the value of their so-called advancement for consideration in the distribution of the grantor’s estate. To hold the advancement and repudiate the stipulation, which formed part of the consideration of the conveyance, would be unequitable and unjust.

■ By retaining the advancement after the inheritance from the grantor became available is such an equitable circumstance as would move a court of equity to give validity to the original recital or stipulation, and would constitute an equitable foundation for estoppel.

There is no authority in this state except perhaps some obiter in the Needles case, that reflects upon the soundness of this view, and we are attracted by the justice and reason of the following cases: Kershaw v. Kershaw, 102 Ill., 337; Kinyon v. Kinyon, 26 N. Y. Sup., 627.

We therefore hold that Nathan' R. Nicholson and Maud N. G-est, under the principle of equitable estoppel, are barred from their interest in the real estate of which Nathan Nicholson died seized.


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    BOUNDARY LINE FIXED BY LONG ASSENT.
    Court of Appeals for Hamilton County.
    Louis Helbling et al v. The Werk Realty Co.
    Decided, February 22, 1913.

      Boundary — Line Accepted as the True Boundary for More Than Twenty-One Years — Becomes the Established Boundary Line.

    Where the deeds of adjoining land owners call for the section line as the boundary line, and a fence maintained for more than twenty-one years on the supposed section line was treated by both land owners as the true boundary, the line ás so marked becomes fixed as the true line, and can not be changed against the will of either owner by a survey which shows that the old fence did not follow the true section line.

      L. H. Pummill, lor plaintiffs in error.

      Thorne Baker, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. IT., J., concur.
   The action below was a proceeding to enjoin defendants from trespassing and entering upon premises claimed by plaintiff and from taking down and carrying away a fence which it had placed upon what it claimed to be the boundary line between the lands belonging to the respective parties.

Defendants by answer and cross-petition denied the title and possession of plaintiff and claimed title and possession themselves in the strip of land in dispute, by adverse possesion. Issue was joined by reply and a jury was waived and the cause was heard and submitted to the court. .The court found for the plaintiff and that the line between plaintiff and defendants’ lands was the true section line, being a straight line from one section corner to the other, and entered a perpetual injunction as prayed for. To this decree defendants prosecute error.

The question to be determined in this case is the division line between the parties. The description of the respective tracts of land in the deeds each called for the section line as the boundary. The evidence shows that as early as 1868 the different owners of these tracts had constructed and maintained from time to time a fence upon a line to which each had continuously occupied, and while the land now owned by plaintiff had been in woods and uncultivated, that owned by defendants had been plowed and cultivated down to the line of the original fence, and while these fences had become dilapidated, plaintiff or its predecessors in title had recognized this line by placing stones therein in the Werk partition in 1894 or 1895 and by building a pasture fence upon it. And it was only at about the commencement of this suit when the straight line was run by Engineer Burke from one section corner to the other and plaintiff first built its fence upon it, that any question was raised as to the old fence line not being the true section line.

These facts bring the case directly within that of Jetzer v. Thomas, 17 O. S., 130, in which the syllabus is as follows:

“Where one of two proprietors, respectively, of adjoining lands holds actual, continuous, notorious and exclusive possession up to a certain line, though not originally the true one, for the full period of twenty-one years, the statute of limitations applies in its favor, and- against the adjoining proprietor, although such possession may have grown out of the mutual mistake of the parties respectively in respect to the locality of what was originally the true line between them.”

And following this case, the question of whether there had been a mistake in the line or what the motives of defendants or their predecessors in title had been-in so occupying to the old line becomes immaterial.

Judge Brinkerhoff in the opinion of the court in the above case at page 132 uses the following language:

“We think under our statute of limitations, if a party establish in himself, or in connection with those under whom he claims, an actual, notorious, continuous and exclusive possession of land for a period of twenty-one years, he thereby, execpt as to persons under disability, acquires a title to the land; and this irrespective of any question of motive or mistake.”

Nor do we think that the testimony of the witness Marshall, whose wife had owned the land and conveyed same to ITelbling, can be said to toll the statute of limitations. He admitted that he knew nothing of the subject of the controversy or the fences or the boundaries. Nothing in his testimony contradicts other evidence showing occupancy to the old line..

“Where the statute of limitations is interposed in an action of ejectment and it is shown that the original seizure was a disseizin, any subsequent act or declaration .of the claimant or his predecessor in title which does not estop the claimant to plead the statute nor suspend the right of the holder of the title to prosecute an action to recover possession, will not be sufficient to arrest the running of the statute. Neither a mere offer to buy within the twenty-one years, nor an acknowledgment by the claimant within that time that the title is in another or that the claimant does not own the land, will have that effect.” McAllister v. Hartzell, 60 O. S., 69.

i

And in the opinion in this ease, Spear, J., quotes with approval at page 90 from French v. Pearce, 8 Conn., 439, this language:

“The possession alone and the quantities immediately attached to it are regarded. No intimation is there to the motive of the possessor. If he intends a wrongful disseizin, his actual possession for fifteen years gives him title; or if he occupies what he believes to be his own, a similar possession gives him title. Into the recesses of his mind, his motives or purposes, his guilt or innocence, no inquiry is made. It is for this obvious reason, that it is the visible and adverse possession, with an intention to possess, that constitutes its adverse character and not the remote views or belief of the possessor.”

And again at page 93 Judge Spear indorsing the principle of the case of Drayton v. Marshall, 1 Rice Eq., 373, declares the rule to be “that where it is shown that the original seizure was a disseizin, no subsequent act or declaration of the claimant should be held to toll the statute which does not deprive the holder of the title of his right to prosecute his action to recover possession or suspend the same.”

The unreported case of Reily v. Whiteman, 69 O. S., 543, followed this case.

The decision below was erroneous and is therefore reversed and the cause is remanded for new trial.


text:
    DETERMINATION AS TO THE CHARACTER. OF A WRITING.
    Court of Appeals for Hamilton County.
    J. Willard Haley v. Grace King and Hazel Z. King, Administratrices.

    Decided, June, 1914.

      Contract — Paper Writing in the Form of a Promissory Note Held to Be —Defense of Adjudication — Not Denied hy Allegation of Pendency of the Cause in the Supreme Court.

    1. A writing binding the estate of the maker for a specified sum immediately after her death in payment for services rendered and to be rendered, is not a promissory note, but a contract under which it would be necessary for the person named .therein to prove rendition of the services agreed to be rendered.
    2. The defense that a claim has been adjudicated and all matters pending between said parties 'were included in said adjudication is not denied by an allegation of the pendency of an action in the Supreme Court to reverse said judgment; nor is a denial of every other matter not admitted a denial of the defense set up in the action so pending in the Supreme Court.

      S. 0. Bayless and Nelson cfc Hickenlooper, for plaintiff in error.

      H. E. Engelhardt and B. M. Ochiltree, contra.
    Swing, J.; Jones, 0: B., J., and Jones, E. II., J., concur.

       Settled and dismissed in the Supreme Court without opinion at the costs of defendants in error.

   This case is in this court on error to the judgment of the court of common pleas.

It was in that court that Haley brought an action on what he alleged was a promissory note, against the estate of Susan M. Zilar, deceased. The note was in the following form:

“Cincinnati, October 11, 1902.
“In consideration of valuable services rendered to me and to be rendered for me by J. W. Haley in the management of my property, and for his advice and assistance in preventing great losses to me, I agree and bind myself to pay to said Haley, his heirs or assigns ten thousand dollars, to be paid immediately after my death, and I direct my executors or administrators to pay same accordingly. .
“(Signed) Susan M. Zilar.”

Haley assigned the note to his wife, with the provision that if it became due during his lifetime he should- have a right to collect the same; and then his wife afterwards re-assigned the note to him.

Several defenses were set up by the defendant — -among others the giving of the note by Susan M. Zilar was denied; want of consideration was alleged; and the further defense that in an action pending between Susan M. Zilar and J. Willard Haley for an accounting, the question of the right arising under this paper were fully adjudicated and unreversed.

Plaintiff offered the note in evidence, together with evidence tending to show the signature was that of Susan M. Zilar, and the further fact that the note had been presented to the administratrices for allowance. And thereupon the plaintiff rested.

Defendant offered no testimony. Thereupon the court instructed the jury to bring in a verdict for the defendant..

In doing this, we think the court of common pleas did not err. In our judgment the alleged note is not a promissory note; it is a contract. This is rendered so by the provisions in the note that the consideration is for services rendered and to be rendered. And it would be necessary, in order for the plaintiff to recover, to show the rendition of the services agreed to be ren-. dered. The note, with the endorsements thereon, lead us to think that it is a thoroughly dishonest transaction. In addition, we think there is virtually no denial of the defense set up that it has been adjudicated and that all matters between said Haley and Mrs. Ziler are included in the former action pending between said parties. The fact that Haley sets out that proceedings were pending in the Siipreme Court to reverse said judgment, is not a denial to the allegations of the answer; and the further allegation in the reply that plaintiff denies every other allegation not admitted, can not be held to lie a denial of the defense set up in the answer, for the reason that the allegation in the reply that proceedings are pending in the Supreme Court to reverse said judgment, must be beld to be the one that applies particularly to said defense.

We are thoroughly convinced that there is no merit in plaintiff’s action and for the reasons hereinbefore stated we think the judgment should be affirmed.


text:
    SUBSCRIPTION TO CAPITAL STOCK HELD NOT ENFORCIBLE.
    Court of Appeals for Hamilton County.
    G. A. Ginter, Receiver of the Blue Grass Inn Company, v. F. J. Blain.
    Decided, April 11, 1913.

      Corporations — Variance with Respect to the Purpose of a Corporation —As Stated in the Prospectus Upon Which Subscriptions for Stock Were Based and as Later Stated in the Articles of Incorporation — Preferred Stock and Cumulative Preferred .Stock.

    1. Where it has not yet been determined in what state a proposed corporation is to be organized, a subscriber to the stock is entitled to a voice in such determination, and the fact that the land which it was proposed to acquire was in Kentucky raised no presumption that the company was to be a Kentucky corporation, where the subscribers were resident in Ohio and the articles were executed in this state.
    2. The incorporation of a company to build and operate a hotel and restaurant is such a variance from the prospectus, which stated the purpose to be to build and possibly furnish a hotel, as; to relieve a subscriber to the stock under the prospectus from liability to make payment therefor.

      Ireton & Schoenle, for plaintiff in error.

      J. L. Kohl, contra.
    Jones, O. B., J.; Swing, P. J., and Jones, E. II., J., concur.
   This is an action on account claimed to be due for an unpaid subscription to the stock of the Blue Grass Inn Company, a corporation under the laws of Kentucky. The defendant denied that he ever became such subscriber.

The only proof offered of such subscription is found in the prospectus with its accompanying subscription list which show that it was proposed to organize the Blue Grass Inn & Hotel Company to erect a hotel on certain described property located in Campbell county, Kentucky, and sets out how the capital stock shall be constituted. Upon this list of stock subscriptions appears the name of P. J. Blain as one of the subscribers under date of Mj'ay.29, 1906, the amount subscribed being $1,000. Articles of incorporation were executed by five persons, four of whom were among those whose names appeared on this stock subscription list, organizing a Kentucky "corporation t'o be known as the Blue Grass Inn, and setting out that the “business to be conducted by said company 'is to construct and operate a hotel and restaurant.” The record shows that defendant did not in any way participate in its organization and he claims to have had no knowledge of the incorporation until the receipt of the notice demanding payment of the first instalment of stock subscription, when he made prompt inquiry, and on learning from the president of the company what had been done he repudiated their action and declined to have anything to do with the enterprise, and the president apparently recognizing his right to withdraw or rather to decline to go into the company, but without submitting the matter to the company or its board of directors, struck his name from the subscription list, and it appears no further calls were made on him until after the receivership. But defendant does not rely on such release.

We do not believe the facts shown make defendant liable as a subscriber to the stock of the company as organized. His proposal according to the prospectors was to take $1,000 — in stock (cumulative preferred) at 90 cents on the dollar with an additional 20 per cent, of the par value of this subscription in common stock as a bonus. In what state the corporation was to be organized had not been determined. The laws differ widely in the different states*. The defendant was entitled'to a voice in this matter. It can not be said that because the land was in Kentucky, the- corporation must be necessarily organized in Ken-lucky. The articles were executed in Ohio, where most of the subscribers resided, and it might as well be claimed, therefore, that it was understood that it should be organized under the laws of Ohiio.

The company described in the prospectus was for the purpose of erecting the hotel, possibly to build and furnish it. The company as organized was not only to construct but also to operate the hotel and a restaurant as well. This would be such a variance from tthe terms of the original proposal that it woulld require the consent of defendant either actual or implied to hold him. Woods Motor Vehicle Co. v. Brady, 181 N. Y., 145; Greenbrier Industrial Exposition v. Rodes, 37 W. Va., 738; Cook on Corporations, Section 62 and Section 194.

Counsel Eor plaintiff in error criticise the distinction made by the court below in the charge between preferred stock and cumulative preferred stock, and argue that the rules and regulations adopted by the shareholders rather than the articles of incorporation fix such provisions. Section 564 of the Revised Statutes of Kentucky (which was introduced in evidence but is not contained in the bill o£ exceptions) undoubtedly does authorize the corporation by appropriate action to provide for cumulative preferred stock, but no such action by the directors or the stockholders appears in the record.

Other errors are also pointed out by counsel for plaintiff in error but, holding' as we do that defendant was not a subscriber to the stock of the Blue Grass Inn Company as organized, it is not necessary to consider them, ás they can be in no way prejudicial to plaintiff.

Judgment affirmed.


text:
    NO RIGHT IN TENANT TO SURRENDER PREMISES BECAUSE OF DECAY.
    Circuit Court of Cuyahoga County.
    Morgan Wood v. Paul C. Searles et al.
    Decided, June 11, 1906.

      landlord and Tenant — When Tenant May Not Surrender Premises Because Untenantable.

    A tenant may not surrender premises under Section 4113, Revised Statutes, because unfit for occupancy, where the only change in the premises is from natural wear and decay, and the condition of the premises was fully known to him at the time the lease was made.
    IIenry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand in the relation opposite to that in which they stood in the original action. That was an action for rent of a house which the tenant had vacated during the term because of its becoming untenantable from the bad condition of the plumbing and sewer connection. The lease contained a printed clause, in language similar to that of Section 4113, Revised Statutes, providing that the tenant should not be liable for rent after surrender of the premises in case they should without his fault be injured or destroyed by the elements or other cause so as to become unfit for occupancy. At the close of all the evidence the court below directed a verdict for the landlord, upon the ground that neither the statute nor the clause in the lease contemplated a condition resulting merely from natural wear and decay as in this ease. . We do not find it necessary to pass upon that precise question, because it is perfectly plain from the plaintiff in error’s evidence contained in the bill of exceptions, at pages 19, 22, and his letter exhibit C, that the condition complained of by the tenant was well known to him when the lease ivas executed, and that it was for premises in this condition that he covenanted to pay rent. True the consequences to health therefrom may not have been fully appreciated by him; but the condition itself did not change materially after the term began. And both the statute and the clause in the lease are prospective in their operation and hence do not apply to this understood and pre-existing condition.

For a like reason the court’s exclusion of evidence of an alleged custom in Cleveland requiring -landlords to make such repairs could not possibly be prejudicial. The circumstances surrounding the negotiations of the lease show clearly that the contract of the parties and the reservation of the stipulated rental were agreed upon by taking into consideration the existing condition of the premises without reference to any repairs.

The judgment below is affirmed.


text:
    APPLICATION OF INVOLUNTARY PAYMENTS.
    Circuit Court of Cuyahoga County.
    The Dime Savings & Banking Co. v. Richard O’Rourke.

    Decided, 1905.

      Application of Payments — Creditor Has Right to Apply Involuntary Payments — Assignment of Securities as General Security Does Not Deprive Creditor of Right of Application.

    1. Creditors have the same right to apply involuntary payments that they have to apply voluntary payments where the debtor makes no designation as to method of application.
    2. The mere fact that securities had been assigned to a creditor as “security generally for any indebtedness that might be owing to it,” does not mean that any sum realized from those securities must be applied pro rata to reduce the various claims but it may apply such sums as it sees fit.
    Henry, J.; Winch, J., and Marvin, J., concur.

       Affirmed without opinion, Madigan, Admr., v. Dime Savings & Banking Co:, 76 Ohio State, 576.

   This appeal involves two phases of the doctrine of the application of payments. The facts are set forth in a stipulation and need not here be rehearsed. The additional evidence adduced (except perhaps certain Illinois decisions) does not, in our opinion, vary the rights of the parties.

As to the Chicago branch of the matter, the application of the proceeds of the sale of such part of the substituted securities as were sold must be determined upon the same principle as if they had been realized by judicial sale of a like portion of the property originally levied on. It may be considered that the judgment debtor in such case could not direct the application of an involuntary payment of this sort. As to the creditor’s right of application we see no reason for a distinction between voluntary and involuntary payments. Here the plaintiff must of course apply the payment in reduction of the judgment. But as to the two notes represented by the judgment, the doctrine of merger can not be pressed to deprive plaintiff of the right to apply such payment on the note which is less secured. 2 Am. Eng. Enc. of Law, 459; Gaston v. Barney, 11 O. S., 506; Monson v. Meyer, 190 Ill., 105; Baker v. Kinsey, 41 O. S., 404, 409.

The defendant, not being a party to the judgment in Chicago, is not concerned therewith. As co-surety with the judgment debtor on only one of the two notes, he is not entitled to any voice in determining the application of a payment by the latter, who .is surety on both. The plaintiff can pursue the sureties in such order and to such extent as it sees fit, provided it does not relinquish any security of either in which the other is entitled on principles of contribution to participate. To this extent the defendant is, of course, entitled, in respect of any payment that he may make, to be subrogated to the rights of the plaintiff in the Chicago securities.

As to the other branch of the controversy, the stipulation recites that:

“The bills and accounts receivable had been duly assigned to the Dime Savings and Banking Company, as security generally for any indebtedness which might be owing to it by said company, and without any direction as to how the proceeds should be applied.”

The defendant now contends that the word “generally” must be construed as a direction to apply the proceeds pro rata to all the items of indebtedness. .

Obviously such construction of the stipulation would be self-contradictory. Moreover the fact that a security applies generally to several obligations does not deprive the holder of his right to apply the proceeds of such security to any of them in his discretion. Northern National Bank v. Lewis et al, 78 Wis., 475.

The plaintiff may take a decree in accordance with this opinion.


text:
    ORDER. FOR PAYMENT DISTINGUISHED FROM ASSIGNMENT.
    Circuit Court of Cuyahoga County.
    Ralph Gray v. Leopold Dautel.
    Decided, June 4, 1906.

      Assignments — An Order for Payment of 'Money Generally Not an Assignment.

    An order given by a contractor on the owner of a building which the contractor was erecting, requesting the owner to pay a certain sum to a certain person “and charge the same to me” is not an assignment of the money due him, but a mere order for the payment of money, which must be accepted before it becomes binding on the drawee.

      Hogan (& Parmely, for plaintiff in error.

      Hills ■& Van Derveer, contra.
    Henry, J.; Winch, J., and Laubie, J., concur.
   Levi Wherry & Son, having a carpentry contract under the defendant in error, bought lumber therefor from the plaintiff in error to whom they gave the following order on defendant in error:

“Cleveland, Ohio, Oct. 4, 1901. “Messes. L. Dautel & Son,
‘' City.
“Please pay to Ralph Gray thirty-five hundred dollars ($3500.00) and charge the same to our account.
“Levi Wherry & Son.”

On the following day plaintiff in error collected on this order all that was then due Levi Wherry & Son, to-wit, $1,500, leaving $2,000 still owing thereon. Defendant in error, on making this payment, endorsed on the order: “Paid $1,500. This order is not acknowledged in full. L. Dautel & Son.”

Afterwards defendant in error paid’ to of for Levi Wherry & Son on the same contract (which was the only one between the parties) various sums, in cash, or upon their orders, amounting to about $1,200 which plaintiff in error now seeks to recover, upon the theory that the order above quoted an equitable assignment of Levi Wherry & Sons’ pecuniary interest in the contract, not exceeding the amount of the order, whether accrued or to accrue. The defendant in error contends that inasmuch as the order is not expressed to be paid out of a particular fund it can not operate as an assignment of such fund in whole or in part, but is merely an order, or bill of exchange, drawn upon' the defendant in error personally, and the circumstances that there was only one account or contract between the parties does not operate to change its effect.

Counsel have been diligent in searching for precedents and their very excellent briefs have greatly aided us. Without attempting to review the authorities cited, we find that the law, as we view it, is most cogently stated in the first two paragraphs of the syllabus of Hurd et al v. Johnson Park Inv. Co., 34 N. Y. Supp., 915, as follows:

“An order given by a contractor on the owner of the building which he was erecting, requesting the owner to ‘pay to the order of H, $1,049.47, when the same is due me by the terms of the contract,’ is an equitable assignment to t)he payee of the fund to become due to the amount named in the order.
“Orders given by a contractor on the owner of the building which the contractor was erecting, requesting the owner to pay a certain sum to a certain person, ‘and charge the same to me,’ is not an assignment, but a mere order for the payment of money, which must be accepted before it becomes binding on the drawee.”

It follows that the distinction contended for by defendant in error is sustained and the judgment below is affirmed.


text:
    POLICY VOIDED BY FALSE WARRANTIES.
    Circuit Court of Cuyahoga County.
    The Supreme Lodge Knights and Ladies of Honor v. Louise Kopittke.
    Decided, June 15, 1906.

      Mutual Benefit Insurance — False Warranties in Application — Whether Material or Immaterial Voids Policy.

    Where a party in order to effect insurance upon his life, states that the answers and declarations made by him in his application to participate in a benefit fund of a fraternal society and in his medical examination are true, and agrees that they are to be treated as warranties and made a part and parcel of the contract and that if untrue the policy shall be void; Held: That the society is not liable if any of the statements are untrue and that the agreement of the parties removes the question of the materiality of the warranties from the consideration of the jury.
    Henry, J.; Winch, J., concurs; Marvin, J., dissents.
   This proceeding was commenced to reverse a judgment recovered by the defendant in error, in an action for a death benefit upon a certificate of membership issued to her husband, John C. Kopittke, January 14, 1903, by the Supreme Lodge Knights and Ladies of Honor, a fraternal order, the plaintiff in error here. John C. Kopittke died April 5, 1904, of an inflammation of the brain, which was not shown to be in any way referable to his previous infirmities concerning which it is claimed that he had made false representations when he took out his certificate.

Incorporated in the certificate itself is the following language:

‘ ‘ This relief fund certificate is issued upon the following conditions :
* ‘ First. That the statements made by the member in the contract known as ‘Application for Membership in Relief Fund’ and answers to questions in applicant’s statement to the medical examiner, known as ‘Medical Examiner’s Certificate,’ upon the faith of which this relief fund certificate is issued are true and shall be treated as warrantees.”

In the application for relief fund membership the decedent stated:

‘ ‘ I hereby agree and contract that my compliance with all the laws, rules and regulations covering said fund now in force, or that may hereafter be enacted by said order, and that my answers to the questions propounded or propounded by the medical examiner, are full, correct and true, as the expressed condition and warranty upon which I am to be entitled to participate in its relief fund as the constitution and laws of the order provide.”

The decedent further stated in his application:

‘11 hereby warrant the foregoing statement, and each of them, and also the statements and answer to questions in my medical examination, to be true and correct. I expressly contract and agree that any untrue statement or answer, or my suspension, or expulsion from, or voluntarily severing my connection with the order, shall forfeit the rights of myself and my family or dependents, to all benefits and privileges therein.”

In the medical examiner’s certificate we find the following questions and answers:

“Q. Has the applicant undergone any surgical operation? A. No.
“Q. Have you had any serious illness, local disease, or personal injury? A. No.
“Q. Have you fully recovered? A. Never sick.
“Q. How long since you were attended by a physician, or have personally consulted one? A. A long time.
“Q. For what disease? A. Nothing except slight cold.
“Q. Give name and residence of physician? A. None.”

Kopittke answered “no” to all other questions as to whether he had had any disease, and closed the applicant’s statement to medical examiner as follows:

“I hereby deckne that I am the person whose name is written upon the second page of this statement * * * and that the answers as written herein are as given by myself to the medical examiner and that I have not made any mis-statements or concealed facts in relation to my past or present condition.”

As a matter of fact he had undergone a slight surgical opera-' tion, three years before at the Huron Street Hospital Clinic, for the removal of a very small suppurating gland in his neck. Anaesthesia ivas administered to him and he remained at the hospital over night. This trouble had existed for perhaps two months, and he -was under occasional observation of the surgeon for several weeks.

The jury, moreover, in answer to interrogatories specially found that the deceased had undergone a surgical operation about May 5th, 1900; but their general verdict was for the plaintiff, the trial judge having charged them, in part, as follows:

“Notwithstanding the express provision in the certificate of membership and the application for membership as to such state- ■ ments and answers being warranties, it is not the policy of our law to treat them as strict warranties, so that if there be any slight or trivial mis-statement of fact therein, the policy will be avoided however immaterial to the risk proposed to be assumed such mis-statement may be. Although the answer to a question is untrue in effect, it will not necessarily avoid the policy, unless the fact untruly stated, or denied, be material. It is for the jury to say from the testimony whether or not the decedent gave any full and untrue answer to questions propounded to him in the suit referred to, and if so, whether or not such mis-statement was material in the sense I have explained to you.”

This charge is assigned as error, and we think it is erroneous. In Aetna Life Insurance Co. v. France et al, 91 U. S., 510, the syllabus is:

“Where a party, in order to effect an insurance upon his life, agreed that if the proposal, answers, and declarations made by him — which he declared to be true, and which were made a part and parcel of the policy, the basis of the contract, and upon the faith of which the agreement was entered into— should be found in any respect untrue or fraudulent, then, and in such case, the policy should be null and void; Held: That the company was not liable if the statements made by the insured were not true.
“The agreement of the parties that the statements were absolutely true, and that their falsity in any respect should void the policy, removes the question of their materiality from the consideration of the court or jury.”

And this is quoted with apparent approval in Insurance Co. v. Pyle, 44 O. S., 19, 30. True the syllabus states the rule less broadly than in the former case, but this was evidently because the facts did not require the application of the principle in its full breadth. The undeniable severity of this rule caused the enactment of Section 3625, Revised Statutes, which abrogates it with respect to life insurance companies generally, as pointed out in Life Ins. Co. v. Warren, 59 O. S., 45, 53. But this section can have no application here because fraternal orders are expressly exempted from its operation by Section 3631-14, Revised Statutes.

It is urged, however, that the term “surgical operation” must not be taken in its technical sense, which would involve the absurdity of including such trivial matters of domestic surgery as the pricking of a boil or the picking out of a sliver; and that the jury should be allowed, under proper instructions, to find that the removal of a suppurating gland the size of a shot under the skin of the neck is not within the common understanding of the phrase in question, though they are without instructions, -for hone were asked, as to the proper significance of the words. Presumably they used their common understanding when they adopted and approved the language of counsel and witnesses in thus describing the incident referred to. And we can not say that an occurrence such as this, in which Kopittke deliberately went to a hospital clinic, was anaesthetized, and suffered the application of the knife to his neck for the healing of a small but persistent and discharging sore, remained over night at the hospital to recuperate and continued under the surgeon’s supervision for some weeks 'in all, is not enough to impress the patient and every one else aware of the facts, that a surgical operation has taken place, somewhat trivial it may be, but unmistakable to every one of common understanding, professional and lay minds alike.

It was thus an untrue representation which Kopittke made, and the truth of which he expressly agreed should be regarded as a condition on the faith whereof his certificate was issued, when he stated that he had never undergone a surgical operation and that he had not consulted a physician for a long time and then only for a cold. We hold that this prevented any right to participate in the relief fund from arising under the provisions of the certificate and application: and that the court’s charge as quoted is erroneous and that tbe judgment must therefore be reversed. And upon the indisputable facts as shown by documentary evidence and the special .findings of the jury we now proceed to render the judgment which the court of common pleas should have rendered and enter final judgment for plaintiff in error.


text:
    REVIEW OF JUDGMENT DEFEATED BY DEATH OF STENOGRAPHER..
    Circuit Court of Lucas County.
    Edward J. Searles and Daniel C. Searles v. Arthur Cowdrick; Error to the Court of Common Pleas. Daniel C. Searles and Edward J. Searles v. Arthur Cowdrick; Appeal from the Court of Common Pleas. Daniel C. Searles and Edward J. Searles v. Augusta Cowdrick, Executrix of Arthur Cowdrick; Error to the Court of Common Pleas.

    Decided, December 7, 1912.

      Privilege of Prosecuting Error Does Not Exist as a Matter of Right— Compliance with Statutory Provisions Jurisdictional — Duty of Preparing Transcript is on the Defeated Party — Impossibility of Obtaining a Transcript Not Ground for Reversal — Presumption that the Judgment of the Trial Court is Correct.

    The death, after verdict, of the official stenographer who took in short hand the testimony of the witnesses, and the fact that no other person is able to transcribe her notes, and the defeated party having relied on such, stenographer and being unable to prepare a bill of exceptions which the trial judge will certify contains all of the evidence, does not justify a reversal of the judgment entered on such verdict.

      Bay & Cor dill, for Searles Brothers.

      Marshall & Fraser, for Arthur Cowdrick and Augusta Cowdriek, executrix.
    Richards, J.; Wildman, J., and Kinkade, J., concur.

      Affirmed by the Supreme Court without opinion, October 20, 1914.

   These three cases arise out of the same controversy and may be conveniently disposed of in one opinion. The original action out of which the first case arises was brought in common pleas by Cowdrick to recover of Searles Brothers the sum of $4,557, which he claimed was due to him for services, on the percentage basis, in the erection of certain green-houses for the defendants. The answer in that case denied the allegations of the petition, and set up by way of cross-petition a claim for damages resulting by reason of the loss of the use of the green-houses by delay in construction and for failing to construct them in accordance with the terms of the contract providing therefor. The claim presented in the cross-petition aggregated as therein set forth $11,527.89. The result in the first trial in the common pleas court was a verdict and judgment in favor of Cowdrick for $1,285.20, which judgment was reversed by this court and the judgment of reversal affirmed by the Supreme Court. On a retrial in the common pleas court, Cowdrick recovered a verdict of $5,094.80, upon which judgment was entered in that 'Court, and the proceeding in error in the first above case is to reverse that judgment.

It appears from the record in these eases that on the last trial in the common pleas of the original case, Mary Weinland, a duly appointed and regular court stenographer, took shorthand notes of the evidence by direction of the court, and that within three days after the rendition of the verdict a motion for a new trial was filed, which was overruled by the court on December 5,' 1910. It appears from the record that counsel for Searles Brothers directed Miss Weinland about November 10, 1910, to get out a transcript of the evidence taken by her in said cause which she agreed to do, and that on December 5,1910, they again requested her to immediately finish getting out a transcript of such evidence, but that on January 3, 1911, she died, after a short illness, without having completed said transcript, and that Searles Brothers had no knowledge of her illness. She had, at the time of her death, transcribed only some seventy-five folios of the testimony, and the whole of the testimony, if transcribed, from her shorthand notes, would have made about nine hundred folios. From the peculiarity of the system which she used in writing shorthand, it was and is impossible for others to transcribe her notes. All due diligence was used by counsel for Searles Brothers to decipher her notes and thus procure a bill of exceptions, but because of the facts stated, it was impossible to procure a bill which the trial judge would certify to contain all of the evidence. The certificate, however, of the trial judge is that the bill of exceptions contains all of the evidence in substance produced on said trial, but it is conceded that the bill is incomplete and inaccurate, and that by reason of the circumstances stated Searles Brothers are deprived of the right to present to the court a true and complete bill of exceptions so as to have the case reviewed on thp weight of the evidence. ■

The term at which this case was tried in the common pleas ended by final adjournment late in December, 1910, and on April 1, 1911, Searles Brothers brought an action in equity against Cowdrick ill the common pleas court, the object and purpose of which was to set aside the verdict and judgment rendered against them, alleging as grounds therefor the facts already stated. That case resulted in a finding and decree in the common pleas court in favor of Cowdrick, to which finding Searles Brothers prosecute in this court both appeal and error. After the last trial in the court of common pleas, Arthur Cowdrick died and his widow, Augusta Cowdrick, was appointed as executrix of his last will and testament. •

The cases are of more than usual interest and have demanded and received a great deal of attention by the court. Neither counsel nor this court has found any error to the prejudice of Searles Brothers in the original case, unless it arises by reason of the action of the trial court in refusing a new trial, solely on account of the death of Miss Weinland, and the consequent inability of counsel to obtain a complete bill of exceptions setting out all of the evidence. This question has been presented to us both orally and in briefs, and has been argued with much ability, the investigations of counsel having taken a wide range- and their respective claims being supported by many authorities of more or less pertinency.

Any view which we take of the case may result in such a judgment as will produce an apparent hardship as to the defeated party. If the plaintiffs in error shall be by the facts stated deprived of the right to prosecute error on the claimed ground that the verdict is not sustained by the evidence, then the judgment rendered against them in the court of common pleas is a finality. On the other hand, if the death of the stenographer and the consequent inability of the defeated party to procure a transcript of the shorthand notes shall, in and. of itself, be sufficient ground for granting a new trial, then Cowdrick will be depraved of the fruits of his judgment through no fault of his own, and this situation is intensified in this case by the fact that having died since the trial, his executrix would be deprived of the benefit of any additional testimony which he might be- able to give on a re-trial and his presence at such trial.

The judgment rendered in the common pleas court is, of course, presumed to be regular and valid and must stand, unless reversed in some method authorized by law. It is provided in Section 11564, General Code, that "the party excepting must reduce his exceptions to writing and file them in the cause, not later than forty days after the overruling of the motion for a new trial.” The General Assembly in the exercise of its wisdom has provided this method for the review of a case on error wherein a bill of exceptions is necessary to raise the questions desired to be. submitted to the reviewing court. By this section the duty of reducing the exceptions to writing and filing them in the cause within the time limited is imposed upon the party excepting, and not upon the stenographer. True, by a nearly universal practice followed for many years, stenographers have furnished transcripts of the testimony for use in preparing bills of exceptions, but before the statutes of Ohio provided for official stenographers, bills of exceptions were taken by the defeated party, and, as many of the older members of the bar will recall, written out in longhand in narrative form by counsel and settled as embodying all the evidence either by agreement of counsel or by decision of the court.

The right to review a case by a proceeding in error may be granted or withheld by the Legislature and on such terms as it may provide, and unless the defeated party brings himself within the provisions of the statute granting such right, he has no standing in the reviewing court. The rule is well stated in the opinion of the court by Price, Judge, in Canfield v. Brobst, 71 O. S., 45, and is again stated by Spear, Judge, in Mitchell v. State, 78 O. S., 352. The privilege of prosecuting an error proceeding does not exist as a matter of right, and can not be enlarged by the court, and a compliance with the statutory provisions, so far as the duty is imposed upon the litigant, is jurisdictional in its character.

It is true that certain decisions in Ohio have granted relief against the failure to comply with certain statutory requirements in error .proceedings, where that failure was chargeable to the judge or clerk of courts. Such cases are Cincinnati Traction Co. v. Ruthman, 85 O. S., 62, and Pace v. Volk, 85 O. S., 413. It will be noticed, however, that in the last case cited, the court in the syllabus explicitly holds that the provisions of Section 11564, General Code, requiring that the party excepting must reduce his exceptions to writing and file them in the cause, is mandatory. In that case the omission relieved against was a fail-lire of the judge to sign the bill of exceptions, such duty being held to be directory merely, so far as the time of signing is concerned. ' ■

It is argued in the case at bar that the stenographer is an official of the court, and that the failure of the stenographer to furnish a transcript within such time as would enable the defeated party to prepare a bill of exceptions containing all of the evidence is the failure to perform a duty which is directory only. This argument overlooks the language of Section 11564, General Code, already cited, in which the duty of reducing the exceptions to writing and filing them in the cause is cast upon the party himself and not upon the stenographer, and this duty so imposed upon the party by the statute is, as held in 85 O. S., 413,- one which is mandatory. While, in a sense, the stenographer is an official of the court and is required to furnish upon tender of fees therefor a transcript of the evidence to the party demanding it, yet the money so paid is the money of the party and becomes upon payment the property of the stenographer and the transcript the property of the party ordering it. The only duty imposed by law on the stenographer is to furnish a transcript of the testimony as already stated; every other duty rests by statute on the litigant. By reason of the death of the official stenographer, the defeated party is unable to clothe this court with jurisdiction to review the case on the weight of the evidence, and the presumption being that the judgment rendered in the trial court is right, it must stand. #

We will not undertake a review of the decisions of the various states where reversals of judgments have been sought by reason of the death of the stenographer, or loss of the shorthand notes and the inability of the party,. because of such facts, to procure a complete bill of exceptions. The decisions in other jurisdictions are not in harmony and frequently result from the peculiar language of the statutes or constitutional provisions. We have examined many of these decisions and find it impossible to reconcile all of them.

The course pursued by counsel for Searles Brothers in this case was the same as is pursued by counsel in-other cases and the same as has been followed for many years past by attorneys throughout the state. The practice has been so universal that no criticism can arise because of the fact that they omitted to have the transcript prepared as the ease progressed, nor by reason of their failure to take such notes as would make it possible to prepare a bill of exceptions without the aid of a stenographer. The trial of an action always subjects the defeated party to the possible hazard, arising out of an incident such as occurred in this case, of being unable to procure such a bill of exceptions as the trial judge will certify to contain all of the evidence, and this situation could hardly be guarded against by human foresight.

Counsel for the plaintiffs have contended vigorously at every stage of this litigation that the claims of their clients, Searles Brothers, were meritorious in every respect, and with great industry they have exhausted every resource in an effort to avoid the serious results' attending the ease -by reason of the death of the official stenographer. It is difficult to see how they could have protected the interests of their clients more effectually in any other way. This case makes quite pertinent the language of Johnson, Judge, in Michael v. National Bank, 84 O. S., 383, in which he says:

“It is insisted that this case presents a great hardship, and that in the result of the original action, injustice was done the defendants. That may be true. Courts .at their best can only approximate exact justice. Where such hardships and imperfections seem to be apparent, courts would gladly redress them if a rule could be.contrived that ivould remedy the evil without producing worse conditions.”

The judgment in the first case will be affirmed. Tn the appeal case there will be a finding and decree for the defendant. The last error case will be dismissed.


text:
    PROPERTY USED IN TRANSPORTATION OF THE MAILS SUBJECT TO TAXATION BY THE STATE.
    Court of Appeals for Hamilton County.
    R. Y. Woodlief v. William A. Hopkins, Treasurer.
    Decided, March 1, 1915.

      Taxation — Agencies of the Federal Government Subject to Taxation— TThere the Tax Does Not Obstruct Their Operations.

    The horses, wagons, etc., used by one'under contract to transport the mails from the post office of a municipality to the various substations and railway depots, are not exempt from taxation by reason of the fact that it is property used exclusively in the service of the federal government.

      McNeill & Thompson, for plaintiff in error.

      John V. Campbell, Prosecuting Attorney, and Louis U. Capelle, Assistant Prosecuting Attorney, contra.
    Gorman, J.; Jones (E. H.), P. J., and Jones (Oliver B.), J., concur.
   This is a proceeding in error to reverse a judgment of the court of common pleas. The action below was one to recover judgment for taxes claimed by the state to be due and payable from the plaintiff in error, R. Y. Woodlief, for the year 1909, and amounting to $44.48, as shown by the tax duplicate of that year. The taxes levied were upon certain horses, wagons and harness owned by the plaintiff in error and exclusively used by him in the transportation of the United States mails from the various railroad stations, depots, and to and from the substations of the Cincinnati post office.

The facts in the ease disclose that during the year for which these taxes are claimed the plaintiff in error, Woodlief, had a contract with the United States Government to carry the mail in wagons to and from certain points as the postmaster of the city of Cincinnati should direct. The record further shows that the government of the United States prescribed the kind of wagons to be used, the materials out of which they were to be made and the use to which they would be put, and also prescribed the kind of horses to be used, their size, age and color, and also prescribed the drivers of the wagons and the number of persons who would be permitted to ride upon the wagons; and in general laid down and specified very strict regulations and rules to govern the plaintiff in error, "Woodlief, in the carrying of the mails.

Woodlief was an independent contractor and entered into an agreement to do the carrying of the mail for a period of years for a specified sum. The wagons and horses and the drivers were put under the direction and control of the postmaster but not in his possession. Woodlief kept the wagons, harness and horses upon his own premises in his own stable at 617 West' Third street and he himself resided at 632 West Fourth street in this city. He bought all the horses and wagons and harness; the title was in him and in no other person. He was a resident of Hamilton county during the year 1909; the horses were fed by him at his own expense, and eared for, cleaned and stabled by him. The wagons were cleaned and taken care of by Wood-lief at his own expense, and the harness also. It is claimed by counsel for Woodlief that because he was an agent of the United States Government and carried the mail, although an independent contractor performing services for the government, 'and because the property is used exclusively in the service of the government it is exempt from taxation under the laws of the state or, to put it in another way, that the state and state authorities have no power to levy a tax upon this property, and that therefore the judgment of the court below was erroneous in finding in favor of the state and against the plaintiff in error.

By the provisions of Section 5325, General Code, the term “personal property” includes every tangible thing being the subject of ownership, whether animate or inanimate,, other than money, and not forming part of a parcel of real property, as hereinbefore defined.

Section 5328, General Code, among other things provides that all personal property in this state belonging to individuals or corporations and of persons residing in this state shall be subject to taxation, except only such property as may be expressly exempted therefrom. And further, that such property subject to taxation shall be listed as taxable property.

Section 5370, General Code, among other things provides that each person of full age and sound mind shall list the personal property of which he is the owner, etc.

Section 5372, General Code, among other things provides that personal property of every description, etc., shall be listed in the name of the person who was the owner thereof on the day preceding the second Monday of April of each year, etc.

This property, therefore, from its description is subject to taxation in Ohio, unless the contention of the plaintiff in error is sound that because of the fact that it is used exclusively in the service of the federal government by Woodlief, an agent of the federal government, it is exempt from taxation.

There has been attached to the bill of exceptions a printed pamphlet of the post office department of the United States Government laying down the instructions, rules and regulations to govern the bidders upon mail contracts or contracts for the carriage of mail. But we do not think it necessary to quote from these regulations and instructions further than to say that they are prepared and distributed for the benefit of those who contemplate entering into contracts with the government for the carriage of the mails, and that they prescribe the kind of wagons, horses and harness very minutely, and the character of the person to use these agencies and that they shall be under the direction and control of the postmaster.

We are of the opinion that this case comes within the rule laid down in Union Pacific Railroad Company v. Peniston, 18 Wallace, page 5. The first paragraph of the syllabus of said case reads as follows:

“The exemption of agencies of the federal government from taxation by the states is dependent not upon the nature of the agents, nor upon the mode of their constitution, nor upon the' fact that they are agents, but upon the effect of the tax; that is, upon the question whether the tax does an truth deprive them' of power to serve the government as they were intended to serve it, or hinder the efficient exercise of their power. A tax upon their property merely, having no such necessary effect, and leaving them free to discharge the duties they have undertaken .to perform, may be rightfully laid by the states. A tax upon their operations being a direct obstruction to the exercise of federal power may not be.”

In this case it appears the state of Nebraska had passed a law providing for a tax upon the Union Pacific Railroad Company, which was chartered by Congress, and which had property given to it by Congress, and was obligated by its charter to carry the mails of the federal government, to transmit messages over its telegraph lines and whenever called upon, to transport federal troops, munitions of war and supplies and public stores of all kinds, upon the said railroad, for the federal government. It was urged in this case that because the railroad company was an agent of the federal government and engaged in the government service, therefore its property was exempt from taxation. The Supreme Court, Justice Strong delivering the opinion, held otherwise, and on pages 30-31 of this report employed the following language:

“It can not be that a state tax which remotely affects the efficient exercise of a federal power is for that reason alone inhibited by the Constitution. To hold that would be to deny to the states all power to tax persons or property.”

And on page 32:

“Notwithstanding this, the railroad and the telegraph line are neither in whole nor in part the property of the government. The ownership is in the complainants, a private corporation, though existing for the performance of public duties. The government owns none of its stock, and though it may appoint two of the directors, the right thus to appoint is plainly reserved for the sole purpqse of enabling the enforcement of the engagements which the company assumed, to which we have already alluded.”

And on page 33, the following language: .

“Yet, as we have said, a state tax upon the property of the company, its road-bed, rolling-stock and personalty in general, was ruled by this court not to be in conflict with the Federal Constitution. It may, therefore, be considered as settled that no constitutional implications prohibit a state tax upon the property of an agent of the government merely because it is the property of such an agent. A contrary doctrine would greatly embarrass the states in the collection of their necessary revenue without any corresponding advantage to the United States.”

In Cooley on Taxation, 3d Edition, page 133, Section 3, under the title of “Federal Agencies,” we find this language:

“And the state may tax the property of federal agencies with other property in the state, and as other property is taxed, when no law of Congress forbids, and when the effect of filie taxation will not be to defeat or hinder the operations of the national government. A different rule, as has been well said, ‘would remove from the reach of state taxation all property of every agent of the government. Every corporation engaged in the transportation of mails or of government property of every description, by land or water,, or in supplying materials for the use of the government, or in performing any service of whatever kind, might claim the benefit of the exemption,’ and the effect would be to embarrass and injure the state to the benefit of individuals rather than of the nation.” Citing State v. Thomas Cruse Savings Bank, 21 Mont., 50; Thompson v. Pacific R. Co., 9 Wall., 579, 591; Railroad Co. v. Peniston, 18 Wall., 5.

In this case we are of the opinion that the imposition of the tax on the personal property of the plaintiff in error Woodlief, although that property is exclusively devoted to the service of the United States Government in carrying the mail, neither inhibits, interferes with or prevents the service to the government by Woodlief. The property belongs to him, it is located in this state, the place’ of his residence, and we see no reason why this property should be exempt from taxation any more than any other property of any other citizen or resident of the state. There is no law either of Congress or of the state which exempts this property from taxation.

We have given careful consideration to the cases cited by counsel for plaintiff in error, and we do not believe that these cases sustain his contention. The case of McCullough v. Maryland, 4 Wheaton, 316, which is the leading case on that question in this country, merely held that it was unconstitutional to levy a tax upon the circulating medium of the United States Bank, because the effect of that was to prevent the bank from transacting business in the state of Maryland if it failed to comply with the requirements of the law to pay the tax.

We are of the opinion that the judgment of the court of common pleas was sustained by the evidence and the law, and the same is affirmed.


author: Per Curiam

text:
    THE NEW CONSTITUTIONAL PROVISION ABOLISHING APPEAL.
    Court of Appeals for Lucas County.
    Martha Page v. Stanley G. Page.
    Decided, February 17, 1915.

      Appeal Under the Amended Constitution — Not Allowable in an Alimony Case. ,

    Under the provision of Section 6 of Article IV of tbe Amended Constitution a decree relating to alimony is not appealable.

      Beard <& Beard, for plaintiff.

      C. W. Meek, contra.
   Per Curiam

(Chittenden, Richards and Kinkade, JJ.).

A motion has been made by the defendant to dismiss the appeal in this case. The case is one pending -in this court solely for the purpose of procuring an allowance of alimony. Under the new Constitution, Article IV, Section 6, the case is not appealable and the motion to dismiss the appeal will be granted./ See Deeds v. Snyder, 12 Ohio Law Reporter, 358; 90 Ohio St., -; Dewitt v. Dewitt, 67 Ohio St., 340; Price v. Price, 10 Ohio St., 316; Reed v. Reed, 17 Ohio St., 564.

A similar conclusion has been reached by the court of appeals in Franklin county in the unreported case of Dodd v. Dodd, decided February 2, 1915, and in eases in the court of appeals in Cuyahoga county and in other appellate districts of the state.

Appeal dismissed.


text:
    AGREEMENT WITH AN ABUTTING OWNER. FOR A REDUCED FARE.
    Court of Appeals for Lucas County.
    Taylor et al v. Niles, Receiver, et al.
    Decided, January 25, 1913.

      Contract Between Abutting Landowner and Interurban Railway— Right-Of-Way Granted for a Stipulated, Fare — Subsequent Put-chasers of the Railioay Property Bound by its Terms.

    1. A contract between a landowner and an electric interurban railroad company providing for a right-of-way for the company along a public highway extending by the owner’s property, and fixing a rate of fare of five cents from that point to the interurban station in a nearby city, is one which a court of equity will specifically enforce.
    2. Subsequent purchasers of the railroad property, with knowledge of the contract, are bound by its terms.
    3. Such contract is not abrogated by the act, subsequently passed, establishing a railroad commission and providing for the fixing of rates for the transportation of passengers.

      Smith t& Beckwith, for plaintiffs.

      King, Tracy, Chapman ■<&' Welles, contra.

      Richards, J.; Wildman, J., concurs; Kinkade, J., concurs in the decree entered.
   The plaintiffs, John W. Taylor and others, brought this action for the benefit of themselves and all others interested for an order requiring the defendants to perform a contract providing for a rate of fare and enjoining the defendants from charging a fare in excess of that prescribed by the contract referred to in the petition. The case was submitted upon an agreed statement of facts from which it appears that John W. Taylor was the owner in 1902 of a tract of about eighteen acres of land lying a short distance west of the western bounary of the city of Toledo, and that the Toledo & Indiana Railway Company was then obtaining a right-of-way for the construction of an interurban railway. The Taylor property, by the agreed statement of facts, lies on the north side of this public highway and extends to the center line thereof, subject to the right of the public to use the road as a highway. On July 11, 1902, Taylor and the railway company entered into a contract by which he agreed to allow the railway company to construct its line of road on the north half of the public highway extending by his property, and the contract contained as one of its provisions a clause fixing the rate of fare from this property to and from the interurban station in the city of Toledo at five cents. The parties concede that this contract was valid at the time of its execution.

On April 16, 1906, the General Assembly of Ohio passed a statute (98 O. L., 342) establishing a railroad commission and making provision for the regulation of railway rates. The railway company thereafter adopted and published a schedule of rates as required by the act and the same was approved by the commission. While the contract fixed a rate of. fare of five cents from the Taylor property to and from the interurban station in the city of Toledo, the schedule rate as thereafter adopted and published by the railway company ignored this agreement and fixed a rate of ten cents between said points. The line of railroad after leaving the western boundary of the city, passes a station known as Calvary, which is 3.8 miles from the interurban station, and extending westerly passes next through a station or stop known as Reynolds, which is 7.2 miles from the interurban station, while the Taylor property lies between Calvary and Reynolds.

In 1908 Niles was appointed by the common pleas court of this county receiver of the property of the Toledo & Indiana Railway Company, and in 1910 he conveyed the property, under an order of court, to the Toledo & Indiana Traction Company, which latter company thereafter, by deed duly executed and delivered, transferred said railway and all property and assets which it had received by the sale under order of court to the Toledo & Indiana Railroad Company, which last named company is now operating said railroad.

Taylor conveyed about half of his eighteen-acre tract to the Taylor Land & Improvement Company, and he owns nearly all of the stock of said corporation. It appears from the agreed statement of facts that at the time of the purchase of the property of the railway company by the traction company and the sale by the traction company to the railroad company, this suit was pending in the court of common pleas and that both the traction company and the railroad company had full knowledge of the execution and terms of the contract already mentioned.

The contention by counsel for defendants is well stated in their brief filed in the ease, as follows:

“1. It is not a ‘covenant running with the land'/ and is therefore not obligatory upon it, as assignee of the Toledo & Indiana Railway Company, and can not- be enforced by the plaintiff, The Taylor Land & Improvement Company; as assignee of John W. Taylor.
“2. That by the enactment of what is commonly termed the public utilities act in the state of Ohio, the agreement has become superseded and invalidated, and can not be enforced. ’ ’

Multitudes of cases have been decided relative to covenants running with the land; and the- discussions in the text-books upon that matter are very numerous. We shall not enter into á detailed consideration of the subject. It is apparent that the contract which was made was of substantial value to the Taylor land and that in the language of the books it does “touch” and “concern” the land. It created an easement in this land, the fee in the highway occupied by the railway company being in the adjoining owner, which in this case was the plaintiff, Taylor. "We do not think that this case, being one for the equitable consideration of the court, raises a question of a covenant running with the land so much as it raises a question of the right and duty of the court to enforce in equity a compliance with the contract under the circumstances shown. The case of Brown v. Huber et al, 80 Ohio St., 183, which arose in this .county, afforded an opportunity for the Supreme. Court in the opinion to state certain principles on questions analogous to the one now under consideration. In the course of the opinion, on page 203, the court quote approvingly the following .language :

“We understand, then, that it is a principle upon which all the court unite, that the right to equitable relief in these cases depends upon the following considerations: First. A precedent agreement, in some form, by which a restriction is imposed upon the lot owned or held by defendant for the benefit of the lot owned or held by the plaintiff. Second. In case the agreement is made by the defendant’s predecessor in title, notice in some form to the defendant of the fact and nature of the agreement, either from the language of the title deed under which he holds, or otherwise.”
“* * * The question is, not whether the covenant runs with the land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased.” See also Lewis v. Gollner, 129 N. Y., 227.

In view of the full notice which these parties had of the contract executed by Taylor and the railway company, containing a provision that it should bind the company’s successors and assigns, it would be highly inequitable to refuse to decree an enforcement of the same. •

The other contention made by defendants, that the agreement has been superseded and invalidated by the statute above cited, can not receive the assent of this court. That act was under consideration by the Supreme Court in The Railroad Commission of Ohio v. The Hocking Valley Ry. Co., 82 Ohio St., 25, and while the matter there determined is not precisely the same as that now before this court, it is apparent from the opinion of the court in construing the statute that the courts- in determining the lawfulness of a rate established by a railway company may 'consider the circumstances disclosed by the evidence relative thereto. In the ease now under consideration a vital circumstance not to be overlooked was the existence of this contract, and it should not have been disregarded by the railway company in establishing the rate for the transportation of passengers from the Taylor land to the city, nor in the opposite direction. Its predecessor in title having by contract fixed a rate of five cents for such service, and that contract being binding on the present company, it must be observed. The agreed statement of facts- does not show that the rate specified in the contract was unfair or unjust to either company or the public.

The decree of the court will be that the defendants specifically carry out the provisions of the contract, and that they be enjoined from charging a greater rate of fare than is fixed therein. In order to enable the defendants to correct and publish a schedule o| rates the carrying out of this decree will be stayed until the 1st day of March, 1913.

Decree for plaintiffs.


author: Jones (Oliver B.), J.,

text:
    DRIVER KILLED AT A RAILWAY CROSSING.
    Court of Appeals for Hamilton County.
    The P., C., C. & St. L. Railway Co. v. George Stugard, Administrator.

    Decided, June 5, 1914.

      Negligence — Driver so Places Himself that His Load Obstructs View of Railway Trade — Btrudc by a Train — Railway Company Not Liable.

    Where it appears that the intestate, a driver who was killed at a railway crossing, was walking beside his wagon, which was between him and the railway track and was piled high with lumber so as to obstruct the view of an approaching train, and there is evidence that the whistle was blown for the crossing, it is error in an action for damages on account of his death to overrule a motion to direct a verdict for the railway company.

      Maxwell & Rmnsey, for plaintiff in error.

      T. J. Edmonds, J. E. Shepard and Nelson \<& Hichenlooper, contra.
    Jones (E. EL), J.; Swing, J., concurs; Jones (Oliver B.), J., dissents.

      Motion for an order directing the Court of Appeals to certify its record in tbis case, overruled by the Supreme Court, December 1, 1914.

   This action was brought in the superior court by George Stugard, administrator of the estate of John B. Yastine, against the plaintiff in error, for damages on account of the death of said intestate, which is alleged to have resulted from injuries received by him. While driving a wagon along Erie avenue at the intersection of said avenue with the track of the plaintiff in error company, Yastine’s wagon was struck by a train, and he received injuries which resulted in his death.

The evidence shows that at the time of the accident Yastine was driving his team, and that he himself was walking on the left side of the load of lumber, which was piled so high upon the wagon as to obstruct his view of the train which was approaching from his right at the rate of thirty miles per hour. .

We think that the evidence satisfactorily shows that the whistle was sounded for this crossing at the proper distance, and that therefore the claim of negligence on the part of the railway company in the management of its trains is not well supported by the evidence.

The decision of the court, however, will not rest upon the failure to show negligence on the part of the railway company. We find no escape from the conclusion that the proximate cause of the death of the intestate was his own negligence in failing to ]ook or listen for the train, and that if he had done either he could and would have seen the train in ample time to have avoided his injury. There is no conflict in the evidence but that the emergency whistle was sounded as soon as the engineer and fireman discovered his peril, and at least three whistles were sounded in rapid succession a short distance from the crossing, and that after the sounding of this signal the decedent, being upon the ground, had ample time and opportunity to have reached a place of safety. The warning whistle for this crossing was sounded hy those in charge of the locomotive about 1100 feet from the crossing. These men not only testified to this, but the whistle was heard by Mr. Bailey, who was at the time near the crossing and saw Vastine driving along with the load of lumber.

There is no reason given why Vastine could not have heard this whistle as well as Mr. Bailey, and if he did not hear it the noise of his wagon must have been responsible for his failure so lo do. This being the case, it was his duty to have stopped the noise of his wagon so as to have made his listening effective. See B. & O. S. W. Ry. Co. v. Stewart, 12 C.C.(N.S.), 250; Traction Co. v. Smith, 15 C.C.(N.S.), 134.

The evidence shows, too, that he was prevented from seeing this approaching train by the lumber upon his wagon. It is c-laimed that there were obstructions to his view such as lumber piles and a mound of earth with a fence upon it, but we think that he was prevented from seeing up the track by the lumber upon his wagon and that if he had stepped from behind this barrier, within twenty or thirty feet of the track, he would have bad no difficulty in seeing the approaching train.

The evidence of his negligence is so strong, as gathered from-all the facts and circumstances of the case, as-to become a question of law, and the request for a directed verdict in favor of the defendant, at the close of all the evidence, in' the court below, should have been granted. The judgment of the superior court will therefore be reversed, and judgment may be entered here for plaintiff in error.

Jones (Oliver B.), J.,

dissenting.

I can-not agree with the majority of the court that the record presented here shows no negligence on the part of the defendant below or conclusively shows contributory negligence on the part of 'the plaintiff below.

There is evidence of negligence on the part of the railroad company, and in my opinion no direct evidence of contributory negligence on the part of plaintiff, and in the absence of evidence to the contrary there would be rather a presumption that plaintiff looked and listened before attempting to cross (R. R. Co. v. Landrigan, 191 U. S., 461). Different minds might reasonably anive at different conclusions, and this record presents a case where in my opinion, it was the duty of the court to submit the questions, both of negligence and contributory negligence, to the jury under proper instructions and it would have been error for the court to direct a verdict for the defendant. R. R. Co. v. Crawford, 24 O. S., 631; Cin’ti St. Ry. Co. v. Snell, 54 O. S., 197; Traction Co. v. Brandon, 87 O. S., 187; Gibbs v. Village of Girard, 88 O. S., 34.

The jury having passed upon the question of negligence and of contributory negligence, I do not think that the record is of such character that the reviewing court should say that their verdict is so manifestly against the weight of the. evidence that it should be set aside.


text:
    LIABILITY UNDER. THE FEDERAL LAW FOR. THE DEATH OF A SWITCHMAN.
    Court of Appeals for Hamilton County.
    The Pittsburg, Cincinnati, Chicago & St. Louis Railway Co. v. Stewart, Administratrix.

    Decided, July 22, 1913.

      Negligence — Federal Law Relating to Interstate Commerce Controls— In Case of Death of a Switchman While Handling a Car Load of Coal in Transit From One State to Another.

    A car of coal, shipped into Ohio from another state and transferred' to an Ohio railway for its own use, continues to he interstate commerce business whiie standing in the yard of said road with bulk unbroken, and the law relating to interstate commerce business is applicable to the case of a brakeman who was killed in the shifting of said car from one track to another.

      Robert Ramsey, for plaintiff in error.

      Sherman T. McPherson, contra.
    Swing, J.; Jones (E. II.). J., and Jones (Oliver B.), J.,. concur.

      Affirming Stewart v. Railway. 11 O. L. R., 430; motion to require the Court of Appeals to certify its record overruled February 3, 1914.

   This action is in this court on error to the judgment of the Superior Court of Cincinnati. In that court it was an action for the wrongful death of Morey M. Stewart, who, at the time, of the accident, was a brakeman in the employ of the said the P., C., C. & St. L. Railway Company.

Two principal grounds of error are alleged in this court in said judgment: First, that the evidence does not show in what manner and by what means said Stewart met his death. At the time Stewart was killed he was engaged in braking on a car loaded with coal in the yard of the said company in the-city of Cincinnati at about 11:30 o’clock on the evening of June 12, 1912. The last seen of him he was stationed at the brakes on said ear, whieh car was making vdiat is called “a flying switch.” Shortly afterwards his body was found mutilated on the track near where the switch Arms being made. No one saw him fall, and the exact manner in which he was killed was not shown. But the evidence fairly shows that the brake Avas defective, and the platform on AAdiich he rvas compelled to stand in order to operate the brake Avas defective.

It seems to us, under the evidence, that the jury was justified in finding that he met his death from either one of these defects, or both combined. It seems to us, as it must have seemed to the jury, that this Avas the most probable and most reasonable cause of the accident. Stewart Avas, as it Avas shown, a brakeman of skill and a man of good habits, and the only reasonable hypothesis upon which his death can be predicated must be that it was caused by the defects in the appliances which he was compelled to. use in the performance of his duty.

The next question urged is, that at the time of the accident Stewart was not engaged in interstate commerce business. The facts as to this are not in dispute. The car was loaded with coal and was shipped over the Chesapeake & Ohio Railway from Handley, West Virginia, on April 24, 1912. It was received by plaintiff in error in the city of Cincinnati, and by it transferred to its Undereliff yard four or five miles east of Cincinnati, where it remained until the day of the injury. The ear was intended for use at the power house of the said company in said city. The bulk had not been broken and it was in the same condition as wherj received from said Chesapeake & Ohio Railrvay Company. It seems to us that this AA'as still interstate commerce business and, being such, that the laAA's of the United States applicable to such business applied to this case.

The other question raised in the. case in regard to the charge of the court, we do not think was well taken; on the whole, we think the charge was fair and correct, and therefore hold that there is no error in the record, and the judgment will be affirmed.

Judgment affirmed.