author: PARKER, J.

text:
    CONTRACTS — DAMAGES—ERROR.
    [Lucas (6th) Circuit Court,
    September 28, 1907.]
    Haynes, Parker and Wildman, JJ.
    Empire Coal Mining Co. v. George M. Jones Co.
    1. Right to Prosecute Error Waived by Failure to Stands on Motion to Withdraw Case from Jury.
    Where at the close of the evidence in support of a claim upon which judgment is asked a motion to withdraw the case from the jury is overruled, the right to prosecute error thereto is waived and lost, if the defendant does not stand upon his motion, but instead of so doing proceeds with the testimony for the defense.
    2. On Renewal of Motion to Withdraw Case from Jury after all Evidence, Defendant’s Evidence Enures to Plaintiff.
    Upon renewal of such a motion at the close of all the evidence, any deficiency in the evidence for the plaintiff which has been corrected by that offered for the defendant enures to the benefit of the plaintiff.

      3. Coal Dealer Testifying to Price of Coal need not Qualify as Expert.
    It is not necessary that a dealer in coal who has been called to ' testify as to the price of coal during a specified period should first qualify as an expert.
    4. Measure of Damages for Breach of Contract to Deliver Coal.
    In proving loss from breach of contract to deliver coal, testimony to the effect that during the period in question prices were irregular and high, ranging between certain figures which were given, affords a fair and safe basis for computation by the jury as to the loss sustained by reason of the breach, where the jury are also apprised' as to the sales made by the plaintiff during the period under review and the prices which he received.
    5. Instructions to Use Best Ability but to Do no Guessing not Erroneous.
    Where, in such a case, the jury were cautioned that they must do no guessing or speculating, a further instruction that they were to use their best ability and understanding in the light of all the evidence, is not erroneous.
    6. Readiness to Pay for Goods on' Delivery Need not Be Alleged or Proved to Recover for Breach of Contract to Deliver on Credit.
    In an action for breach of contract to deliver goods on credit it is not' necessary that the plaintiff allege or prove that he was ready, willing and able to pay for the goods on delivery.
    7. Contracts for Goods Bought on Credit and Cash.
    In the case at bar, two of the contracts being for coal bought on credit and one capable of being construed as a purchase for cash, and there being enough in the record to sustain the judgment which was rendered without regard to the contract for coal sold for cash, the judgment will be sustained, notwithstanding failure to allege and prove ability and willingness to perform the one of the three contracts requiring payment of cash on delivery.
    Error.

      Marshall & Fraser and Whitlock, Milroy & Malloiu, for plaintiff in error.

      Smith & Beckwith, for defendant in error.
   PARKER, J.

The Empire Coal Mining Co. brought an action, in the court of common pleas against the George M. Jones Co. to recover on an account for coal sold and delivered by the plaintiff to defendant under three certain contracts, its whole claim, including interest, at the time of the ’trial, amounting to $2,220.96. The defendant filed an answer in which was set forth three counterclaims, on account of the nondelivery of coal to it under such contracts. That it had received eoal of the amount and value sued for,..was:not disputed; so that, upon submission of the case to a jury, the jury was properly instructed to find for the plaintiff in the sum of $2,220.96. And then the question was submitted to them as to the amount, if any, that was due to the defendant from the plaintiff upon defendant’s counterclaim. The defendant’s demand upon the counterclaim was $10,332 and interest. The amount allowed by the jury was $2,243.86, leaving a balance due in favor of defendant of $22.88.

The first of the three contracts is dated September 8, 1902, and provides for the delivery of 1,000 cars of coal in the month of December, 1902, beginning with the first day of the month, at the rate of five cars per day, at $1.15 per ton of 2,000 lbs., the deliveries to be made free on board ears at the mines, which were located in the southeastern part of this state. This contract contains the provision: “This price is based upon the present mining rate and is subject to change to 'the same extent as the mining rate may increase or decrease. ’ ’ And also: “ It is further understood that we shall not be called upon to furnish the coal in case of shutdown of our mines through strikes or other unavoidable cause. ’ ’ And also: ‘ ‘ Shipments at the full rate on this order are conditioned upon our receiving an adequate car supply. Settlement for all coal shipped in any month shall be made in cash by the twentieth day of the next ensuing month. ’ ’ These are, I believe, all the provisions to which I need call especial attention.

The next contract is dated September 15,1902, and provides for the delivery of coal in January, 1903. This also provides for the delivery of 100 ears, at the rate of five ears per day, commencing with the first day of the month. This contract contains the same provision as to the seller being'excused in case of shut-down of mines through Strikes or unavoidable causes, and as to shipments being conditional upon sellers receiving an adequate car' supply; as to settlements for coal shipped during the month of January, being made in cash by the twentieth day of the next ensuing month, and as to the prices being based úpon the mining rate at the period subject to change to the same extent as the mining rate might increase or decrease. The prices agreed upon for this coal were for % lump, $1.25 per ton, and for run of mine, $1.15 per ton of two thousand pounds, f. o. b. at the mines.

The third contract is dated November 25, 1902. It consists of a written order from the George M. Jones Co. to the Empire Coal Co. at Pittsburg, Pa., for 50 ears of Pittsburg No. 8 % lump at $1.65, f. o. b. cars at the mines to be consigned to the George M. Jones Co., at Toledo, Ohio, and to be forwarded at the rate of five cars per day, and adds: “this to confirm order by telephone of this date.” This order was accepted by a letter reading:

“Pittsburgh, Pa., Nov. 25, 1902. The G. M. Jones Co., Toledo, Ohio. Gentlemen: We are in receipt of your order No. 2500 of Nov. 24, in confirmation of telephone conversation of the same date which calls for 50 cars % lump to be shipped at the rate of 5 cars daily to your address, Toledo, Ohio. The same has been entered for our best attention, subject to car supply. Please accept our thanks. Tours truly, Louis F. Newman, Mgr. B.”

This contains no stipulation as to credit and nothing on the subject of prices being modified by the mining rate at the mine; and nothing specific as to when the cars are to be delivered; so it was construed upon the trial — and we think correctly — to be an agreement to begin the delivery of the coal within a reasonable time, and we believe it was conceded that such reasonable time had expired before a claim for damages on account of the non-delivery of cars under this contract was asserted.

Upon the trial the defendant undertook to show in support of these counterclaims — one under each contract — that the plaintiff was in a position with respect to ears and other circumstances so that it might have delivered a greater number of ears of coal to the defendant than it actually did deliver. It was asserted and shown that under this first contract the plaintiff had delivered but 18 cars of coal instead of 100; that under the second contract it had delivered 5 ears instead of 100; that under the third contract it had delivered 22 cars instead of 50. It was contended by the plaintiff that it had delivered all of the cars of coal that it could deliver, in view of the shortage of cars prevail-' ing at this time; that the defendant had received its full share of all the ears available to the plaintiff for sueh use. It was conceded upon the trial that the rule as to the obligation resting upon the plaintiff under contracts of this charter, under circumstances like those shown, is correctly stated in the case of Jessup & Moore Paper Co. v. Piper, 133 Fed. 108, a decision by McPherson, District Judge of the Eastern District of Pennsylvania. I read from the syllabus only:

“Defendants, who owned a colliery reached by a single line of railroad, contracted to deliver at the works of plaintiff, at an agreed price, a stipulated quantity of coal each month during a series of months; the contract providing, however, that they should not be liable for a failure to perform if prevented by hindrances beyond their control. During certain months they delivered less than the required quantity, as claimed, through their inability to obtain sufficient ears. Held: That they were excused from full performance if they were unable to obtain cars to enable them to fulfill all their contracts, and they in good faith made deliveries to all customers ratably, but that they were bound to put forth all reasonable and proper exertion, and to pay any reasonable additional expense to obtain cars, and were liable for nonperformance if they, failed to do so, or if 'they made the shortage of ears an excuse to demand an increased price, and gave a preference to such customers as paid it, and that if, after knowledge of the shortage of ears, they made additional contracts which lessened their ability to ship to plaintiff, they would be liable to that extent.”

We say, it was agreed by counsel that that was the law of •the- ease, and it was so laid down to the jury upon, the trial.

Various errors are alleged by the plaintiff in error. It is said that at the close of defendant’s evidence introduced in support of these counterclaims, a case had not been made out in favor of the defendant and that a motion of the plaintiff to withdraw the case from the jury should have been, sustained. This motion was overruled, and the plaintiff went into its testimony upon the counterclaims. We are now asked, however, to examine this question, and if we shall find that that motion should have been sustained at that time, we are asked to reverse this judgment without regard to what may have subsequently developed or transpired upon the further trial of the case. We do not think that we are called upon or authorized to take such action. Had the plaintiff in error, at the close of defendant’s testimony in support of the counterclaims, made this motion, and, upon its being overruled, rested his case upon, it, allowed the judgment to go against him and then prosecuted error to this court, the question would have been fairly presented, and this court would have been called upon to determine whether the verdict was sustained by the evidence; but, where the course is taken which was pursued in this case, of going into the defense, we understand that the result is the same as where one demurs to a petition and, upon the demurrer being overruled, answers over. If the answer corrects the defect in the petition, the party can no longer stand upon his demurrer to the petition. So, in a case like this, if the further evidence introduced corrects that deficiency in the evidence introduced before the making of the motion, the party may no longer stand upon his motion. This motion was renewed at the close of all the evidence, on behalf of both parties; and that, of course, presents a question to this court for consideration upon that motion; and I may as well say at once, with respect to that, we do not find that the defendant failed in any material respect to introduce evidence tending to support the counterclaims, and, therefore, the court below was right in overruling that motion. I shall give more attention to certain specific claims respecting the deficiency, of the evidence, further along in this opinion.

It is claimed on behalf,of plaintiff in error that prejudicial errors intervened in the introduction of evidence. Mr. A. Gr. Blair, Jr., was called as a witness of defendant to establish the market price of the prevailing prices being paid for coal of the character that the defendant had purchased during the months that the coal should have been delivered. Mr. Blair testified that he was in the coal business in this city; had been engaged as a dealer in coal for about twelve or thirteen years; that for a few months prior to his appearing as a witness he had been engaged in operating a mine; that he was engaged in the business of buying and selling coal in the years 1902' and 1903; that he was familiar with coal of the character covered by these contracts. He tells where it came from, adjacent to the Ohio river, in the mines of the Harrison and Jefferson. Then he is asked:

“Are you able to state what was the market price of different grades of that coal at the mines in the month of November and December, 1902, and January, 1903? A. There are no different grades, there are different sizes.-
“Q. Different sizes? A. Yes, sir.
‘ ‘ Q. Now will you please state to the jury what the market price at the mines of three-fourth lump coal was during the month of December beginning with the first of December and up to the 24th of December ? A. The market price ?
“Q. Yes, sir. (Question, objected to.) ”

No specific ground of objection is stated. It is suggested to us that the objection was on account of the witness having failed to show qualification to answer this question. The court then asked this question: “Q. At the mines — in Belmont county?” To this there was no response. There was no ruling upon this objection. Counsel for defendant then asked the further question:

“Q. At the mines from which this coal was taken in Belmont county? (Question objected to; objection overruled; exception). A. The market price, or the selling price — do you mean — the market price was three to five dollars a ton,. (Motion to strike out the answer. Motion denied. Exceptions).”

There is a further examination of the witness, tending to show that he was advised of the prices prevailing at that time and place; so that, really, the question raised by this objection at this time is — whether the witness must first answer directly that he is able to state what the price was, before he may be called upon to answer the question: “State what the price was?” The question and the answer presuppose that the witness, a dealer in coal, knew what the price was. If he did know, he would not be called upon to answer, could not make the answer that he made. We do not understand that, under circumstances like these, it is necessary to go further to qualify the witness. In a sense, he is an expert — that-is to say he is familiar and acquainted with the business, and yet he is testifying to a fact within his knowledge that a person not in the business may have become acquainted with and may have been entirely competent to answer. It is not necessarily a question for an expert, and we see no error in allowing this answer, no error in refusing to require that the witness should be further qualified by his answers — assuming that that was the ground of the objection.

Mr. "William A. Gosline was called as a witness for the defendant, and it is said with respect to his testimony that he showed himself disqualified; that he did not pretend to know ¡anything about the market price, but that he only guessed, and that his testimony should have been disregarded. It is urged that the testimony of these witnesses supplied the only basis that was supplied at the time the defendant rested its case for computing the difference between the contract prices and the market prices or the value of the coal; but, as I have indicated, we do not feel called upon to examine that question., but only to consider the question of whether prejudicial error intervened in the admission of certain answers objected to.

On the other question, when we look into the record and read the testimony of the witnesses produced after the plaintiff went into its defense, we find ample grounds and basis for computing the difference between the market price or the value at the mines and the contract price of the coal. Mr. Gosline, who was also man in the coal business in 1902-3, had been in the business for a great many years, and when called upon to answer as to the prices being paid generally for coal during the period covered by these contracts, answered that he could ‘ ‘ give a rough guess.” The question asked was: “Q. Can you state the market price, the price being paid generally for that coal during that period?” And his answer is: “A. Yes, sir, I can give a rough guess. Of course during that period, there was much variation, in price and it depended upon the amount you bought. ’ ’

It appears from the record that the conditions prevailing at that time in the coal business were very peculiar, resulting in such irregularity and such rapid fluctuations in prices of coal that it was hard to name a price as .the “market price,” in the ordinary acception of that term. Further along in his testimony, this witness describes those conditions. I need not go into that in detail: they resulted from shortage of cars, lockouts, shutdowns, strikes, etc., so that there was no regularity in the price— there could not be said to be any prevailing prices, though it is clearly shown in this record that the prices were very much higher than those at which plaintiff had agreed to deliver this coal to defendant; that prices ranged between those named by Mr. Blair and Mr. Gosline, who answers further on that the prices ranged between $2.25 and $2.75 at the mine per ton and even ran as high as $3 per ton jn January, and shows that he is not guessing, but well informed on the subject. Although these prices were fluctuating rapidly, the information brought out upon cross-examination of the representative of the plaintiff company, is very full and satisfactory and afforded a fair and safe basis for computation on the part of the jury, for, through the books of the company and the testimony of this witness, Newman, we are apprised of all the sales that were made during these periods by the plaintiff company and the prices received. We find no error in the admission of this evidence.

It is also urged that the court erred in its charge to the jury, in that it gave to the jury free reign to continue the “guessing” which had been done by the witnesses and to act upon its own judgment rather than upon the testimony; and it is said that the court charged the jury, in substance, that if the market price could not be ascertained from the testimony, they were to take instead thereof the value at the place of delivery, and that such value per ton was to be multiplied by the number of cars undelivered that should have been delivered, and then by proper deductions the loss of the defendant would be ascertained. We have read this charge through very carefully, and, taken as a whole, we think it is correct and fair. Of course, every paragraph is not and can not be expected to be a complete exposition of the law upon the subject — the whole charge must be taken together. It appears that the court did, in one place, make a mistake by saying that the value per ton was to be multiplied by the number of cars undelivered, which should have been delivered; but that was an error that was corrected in the further statement of the matter to the jury, and, even if it had gone uncorrected, it would not have been prejudicial to the plaintiff in error, but rather to the defendant in error, because it would have given to the defendant in error but one-thirtieth of the amount he would have been entitled to, since there were an average of thirty tons of coal in each car.

The statement -upon the subject of the jurors using.their best ability and understanding, is a part of a paragraph in which the court is undertaking to direct the jury as to how they shall arrive at a correct result in the computation, and in the paragraph occurs this language:

“Upon this phase of the case there should be no guessing, of course, nor speculation. You should determine, according to the best, light you have, and your best ability and understanding, the difference in price between the contract and coal at the mine for the various days that the contract was broken. Multiply the price by the number of cars of coal that the-evidence shows should have been shipped to the defendant on this occasion by the plaintiff, and which was not shipped.”

In another part of the charge, however, the court says to the jury distinctly that they are to be guided by the evidence. I read from a preceding paragraph:

“It is the duty of the jury to determine these disputed facts from the evidence in the case. You can not guess at it. It will be your duty to determine from the evidence what the percentage was that the defendant lost by reason of the breach of any one of its contracts, or of all of them combined, ’ ’ etc.

So that the jury could not have misunderstood the direction of the court to them to use their best ability and understanding —they were to do that in the application and consideration of the evidence. "We find no error in the charge prejudicial to the plaintiff in error.

In the contract of September 15, 1902, it is said: “Shipments to be made in gondola cars only. ’ ’ That provision is not contained in either of the other contracts. It is urged on behalf of plaintiff in error that in arriving at the pro rata share of the defendant of the cars available to the plaintiff for the shipment of coal, the gondola cars only should be considered under this contract; and it is apparent that if that were so, there would be much less due on this account than would be due thereon if all the ears available to the plaintiff should be considered. It appears that there were within the control of the plaintiff for use in the shipment of coal more gondola cars than were necessary to fulfill this contract with the defendant. The other contracts that the plaintiff made with other dealers, for coal, which it was bound to respect and which were to be taken into consideration in'arriving at the defendant’s pro rata share, did not require of the plaintiff that it should furnish coal to those buyers in gondola cars. We think, therefore, that under the circumstances, the plaintiff was bound to keep and use for the benefit of the defendant under these contracts the gondola ears available to it, or a sufficient number of them to fulfill its obligation to the defendant and that it was correct, therefore, to estimate the share of the defendant in these cars upon the basis of all the ears available to the plaintiff.

It is urged that there was no evidence adduced to the effect that the defendant was ready and willing to perform these contracts, and we are cited to a number of authorities in support of the proposition that, usually, under contracts of sale where the purchaser sues on account of the default of the seller, it devolves upon the purchaser to allege and show that he was ready and willing to perform. Among other decisions, we are cited to the case of Geisel v. Blair Co. (not reported), decided, by this court February 11, 1905, the opinion being by myself. It is urged that it devolved upon the party to show that he was able to perform. As was said in the course of that opinion, the averment that one is ready, seems to involve the ability to perform, so that it is usually expressed as readiness and willingness to perform. We understand the rule of pleading — and the proofs ordinarily follow the pleadings — to be that the performance of conditions precedent must be alleged and shown, and that with respect to stipulations or conditions to be performed concurrently, a readiness and willingness to perform must be alleged and shown by the party who claims default on the part of another. But this is not true with respect to conditions subsequent. So that if the particular thing to be done by the person suing is to pay for an article to be delivered, whether he must allege and show readiness and willingness to perform, must depend upon whether the payment is to be made concurrently with the delivery of the property, or is to be made subsequently — in other words, whether the property is sold for cash or on credit. We have taken occasion to re-examine the record in the ease of Geisel v. Blair Co. and it appears from the record, that the sale was a cash sale — at least it does not appear that any credit was given, and it is therefore presumed to have been a cash sale — and with respect to that, it was said in the opinion:

“So it appears very clearly from the authorities that under circumstances like these disclosed in this record it would devolve upon the buyer suing upon a breach of this contract, to show that he was ready, willing and able to pay for the goods. ’ ’

In support of this, the case of Simmons v. Green, 35 Ohio St. 104, was cited and the syllabus read.

That the allegation or proof of readiness and willingness to perform is not required where a sale is upon credit, is stated in a great many authorities. ¥e think it is the unquestioned law of the land. I cite but one ease, that of Monarch Mfg. Co. v. Royer Wheel Co., 105 Fed. 324.

This contract of September 8, 1902, as I have pointed out, was for a sale of coal on credit. The contract of September 15, 1902, was also for a sale of coal on credit. The contract of November 25, 1902, for fifty carloads of coal, says nothing about extending credit, and we suppose that, under the rules, that must be regarded as a cash sale. Therefore, to support the counterclaims based upon the alleged breach by the plaintiff of this contract, it would devolve upon -the defendant to show a readiness and willingness to perform by paying for the coal upon delivery. If, however, this verdict can be sustained upon the contract of September 2, 1902, and September 15, 1902, disregarding this contract of November 25,1902, it ought not to be disturbed even if there were a failure to show any loss or damage under this contract of November 25, 1902. The general rules governing courts of error, where there is a failure of evidence as to one branch of a claim constituting a separate and distinct cause of action, or as to one defense among several defenses, or where there is error intervening in the charge of the court or in the introduction of evidence with respect to one claim or defense only of several involved in a case submitted to a jury — the general rule is, that if there is enough to sustain the verdict, disregarding the claim or defense in respect to which error has intervened, the judgment should be allowed to stand. Illustrations of this rule will be found in certain decisions of our Supreme Court which I shall cite. In the case of Sites v. Haverstock, 23 Ohio St. 626, it is said in the syllabus:

“Where the jury, by their verdict, ‘find the issues joined in the cause’ in favor of one of the parties, this is to be taken as a verdict finding each and all of the issues therein for such party.
“In such case, if the issues are such that a finding of either of them in favor of the successful party entitles him to the judgment rendered, the judgment will not be reversed for error in the instructions of the court relating exclusively to the other.”

As I have said, we understand the same rule to apply to a failure of evidence in support of one claim, where there are other claims upon which the evidence would support a verdict, and the verdict in this case is upon three counterclaims and there is nothing in the record to indicate that any allowance was made to the defendant by the jury on account of this certain claim arising upon the contract of November 25,1902, for the fifty cars of coal. Now, this case was followed and approved in Smith v. Gardner, 57 Ohio St. 666 [50 N. E. 1134] and in National Union v. Rothner, 57 Ohio State 679 [50 N. E. 1131].

In McAllister v. Hartzell, 60 Ohio St. 69 [53 N. E. 715] it is held that where two issues are presented in the pleadings for the determination of the jury, and there is a verdict finding the issues for the defendant, and such finding on either issue entitled him to a general judgment in his favor, and a judgment is reúdered on the verdict, such judgment will not be reversed for error in the instructions of the court to the jury relating exclusively to one of the issues.

In Beecher v. Dunlap, 52 Ohio St. 64 [38 N. E. 795],

When distinct issues are submitted to a jury arising upon distinct defenses, and the verdict of the jury is general, the erroneous admission of evidence bn one of the issues, does not of itself render the judgment entered upon the verdict erroneous.

In Clark v. Clark, 8 Circ. Dec. 752 (16 R. 103) :

Where there are several distinct issues in the ease, an omission to properly direct the jury upon a certain matter, is not prejudicial error, unless such omission was in regard to a controlling issue in the case.

In Topliff v. Topliff, 4 Circ. Dec. 312 (8 R. 55) affirmed, no op., Topliff v. Topliff, 51 Ohio St. 625, it is held that:

If the court, a jury being waived, finds the issues joined with the defendant, this means all the issues, and the plaintiff can not show by parol that the court in fact was governed by one alternative.

In a ease that we decided in Wood county a year or so ago, we had occasion to go into this question very fully and we examined these and a great many other authorities bearing upon the question. I have not been able to find that decision. I do not know that it has been reported, and in the hurry of examination of this case I am sure I have not found all of the decisions of our own courts — I mean the courts of this state — in support' of this general proposition. I know that there is one criminal case in which the same rule was applied, although generally in constructions and practice there is more liberality in favor of the prisoner, or strictness against the state, in a criminal proceeding, than prevails against a party in civil cases.

Upon looking’ over this record we find sufficient to sustain the verdict of the jury upon the counterclaims disregarding entirely the claims under the contract of November 25, 1902. We have taken the analysis of the evidence furnished by counsel for defendant in error, his computations, etc., and have made comparisons thereof with’the record, and we are satisfied that his data and his deductions are substantially correct and that this verdict should stand.

There is one other matter to which I should make reference. In this case of Geisel v. Blair & Co., supra, we had under consideration a blank for a contract which was not filled out nor signed, but which it was claimed was the basis of the contract between the-parties; and we were furnished by oral evidence with the date which would have enabled the court to fill out the contract — determine what the contract was — had we given credit to it. Upon looking at that blank we found in it a clause like that contained in certain of these contracts, to wit: “the prices named in this contract are based on the present mining rate of (blank) per ton, and shall advance or. decline as said mining rate may advance or decliné during the life of this contract.” Counsel had said nothing about this clause in the blank, the alleged basis of the agreement, and when we came to examine it and consider it, we assumed that what was meant by the “mining rate ’ ’ was the market rate or price of coal at the mines, and upon that assumption we concluded that the party had no claim, under his alleged contract, for what he was contracting for was a certain amount of coal to be furnished to be paid for according to the prevailing market rate — that7 he had no contract for a special price except such as would be governed and controlled by the fluctuation of the market. While the case was not decided upon this ground, this was mentioned by us as something that appeared to us to be an additional reason why the ease should be decided as we were deciding it. These contracts of September 8 and September 15, 1902, contain like provisions, and we are not enlightened by any averment or proof as to what is meant by the “mining rate.” It is said by counsel for plaintiff in error, however, that we should follow our decision in Geisel v. Blair Co. and reverse. It is alleged by counsel for defendant in error that ‘ ‘ the mining rate ’ ’ means' the rate to be paid to miners for mining the coal. Without any further light upon the subject, we conclude that we are not authorized to assume, as we did in the other case, that the mining rate means the market price of coal at the mines. We think that if there was any change in the mining rate affecting the price, so as to relieve the plaintiff to any extent from its apparent obligation under these contracts, such change should be alleged and shown by the plaintiff. In the absence of any showing upon this subject, we conclude, as we believe we are bound to, that there was no such change in the mining rate.

We find no error in the record prejudicial to the plaintiff in error and the judgment will be affirmed.

Haynes and Wildman, JJ., concur..


source: Caselaw Access Project

author: SMITH, J. SWING, J.

license: Public Domain

text:
    DIVORCE AND ALIMONY.
    [Hamilton (1st) Circuit Court,
    June 5, 1911.]
    Smith, Swing and Jones, JJ.

      Margaret B. Mathers v. Warren Mathers.
    Alimony Allowed Wife Notwithstanding Divorce Granted for Wife's Aggression.
    A wife may he granted a share of her husband’s estate payable monthly, notwithstanding in the same proceeding the husband has been granted a divorce from her on her aggression.

      Cogan, Williams & Ragland, for plaintiff in error.

      Charles B. WiVby and Mitchell Wilby, for defendant in error.

       Affirmed, no op., Mathers v. Mathers, 88 Ohio St. 554.

   SMITH, J.

In this case the wife sued for alimony in the common pleas court. The husband denied her allegations and by way of cross-petition asked for a divorce from her on the ground of gross neglect of duty and adultery. At the hearing the court dismissed the petition of the wife and granted a decree of divorce to the husband on the ground of gross neglect of duty. As to the charge of adultery the decree recited that “the court does not make any finding.” The costs were assessed against the wife, and on a subsequent date the court made an entry finding “as a matter of law that it has no power to grant alimony in its discretion, where the divorce is granted for the aggression of the wife.” An appeal was taken from this holding, to the circuit court. A motion by the husband to dismiss the appeal having been overruled, he filed an answer, alleging that he had no property except what he had inherited; that as a result of illness in his youth he had never been able to earn anything, and that the plaintiff had not in any way helped him to acquire anything and brought no property to the marriage. , The case coming on for hearing in the circuit court, the husband offered to produce evidence tending to show that the plaintiff had been guilty of adultery, which evidence the court declined to hear. The case was argued, and on December 17 the court handed down the following opinion:

SWING, J.

(Heard on Appeal.)

‘ ‘ This is an action by the plaintiff for alimony. The defendant-filed an answer and cross petition for a divorce, and on the issues thus made, the ease came on for hearing on June 18, 1910, at which time the court rendered judgment, granting a divorce to the defendant on his cross-petition,, on the ground that the plaintiff was guilty of gross neglect of duty, and ordered the petition of the plaintiff, and her amended petition, to be dismissed. No appeal was presented from this judgment, dismissing plaintiff’s petition. On July 2, 1910, the court, on motion, made an entry modifying the decree of June 18, 1910. This decree, among other matters, contained the following:
“ ‘And the court further finds that the plaintiff is not entitled to alimony as of right, the divorce being granted to the defendant for the plaintiff’s aggression, and as to any question of alimony, which it may be in the power of the court in its discretion to grant, and as to whether it is in the power of the court to grant alimony in the exercise of discretion, independent of the petition of plaintiff, this cause is continued. ’
“No appeal was taken from this decree, although an exception was taken.
‘ ‘ On November 15, 1910, the court entered up the following judgment:
“ ‘The court taking up the matters left for further consideration, by the order of July 2, 1910, herein, and having duly considered the same, and being fully advised, finds, as a matter of law, that it has no power to grant alimony in its discretion, when the divorce is granted for the aggression of the wife. ’
‘ ‘ This last decision is in effect the same as that of July 2, but the court had, on June 18, dismissed the petition of the plaintiff asking for alimony. This petition was the foundation for whatever alimony the court could grant, and when it was dismissed, there was no longer in the court, the power to grant alimony. An appeal should have been taken from the judgment of November 15. But it would seem that plaintiff had really lost nothing by her failure to appeal from the judgment of June 18, dismissing her petition for alimony, for the reason that a divorce having been granted the husband, by reason of her aggression, she would not be entitled to alimony. Hassaurek v. Markbreit, 68 Ohio St. 554, 579 [67 N. E. 1066],
“Appeal dismissed.”
Gifeen and Smith, JJ., concur.

A few days later the opinion of the Supreme Court in the case of Fiesler v. Fiesler, 83 Ohio St. 200 [93 N. E. 899], was published, and thereafter the circuit court reconsidered the present case, and subsequently filed the opinion following:

(Filed December 26, 1911.)

‘ ‘ Smith, J. :
“In accordance with our construction of the case of Fiesler v. Fiesler, 83 Ohio St. 200 [93 N. E. 899] heretofore announced, we are of opinion that plaintiff should be allowed a share of defendant’s property, and adjudge to her as just out of his real estate such an amount thereof as will equal in value the sum of $2,500.”

The husband also prosecuted error to the action of the common pleas court in allowing alimony pendente lite, etc., against him. In that proceeding the circuit court held:

“Smith, J.:
“We think the order allowing alimony pendente lite entered July 14, 1909, ordered the defendant to pay the sum of $60 immediately after the filing of that entry, and that upon the 25th day of that same month and the 25th day of each month thereafter, the defendant was ordered to pay the sum of $60.
“From the language of this order we can place no other construction upon it different than that of the trial court.
“While it is true that on June 18, 1910, a divorce was granted to defendant by reason of the aggression of the plaintiff, nevertheless the question of alimony was on July 2, 1910, continued for further and final order by the court. This, therefore, we think left in operation the decree for alimony pendente lite entered by the court July 14, 1909.
“We can not see how we can assist defendant in allowing him a credit for the amount of costs paid. These costs were ordered paid by the plaintiff, but was not compelled to do so.
‘ ‘ The court below and this court having found the defendant liable for the installments of alimony, and that they should have been paid as ordered, interest upon the same would naturally attach.
“The judgment of the court below will be affirmed.”

Error was prosecuted by. the husband to the Supreme Court, where the judgment below was affirmed without opinion on April 22, 1913, Mathers v. Mathers, 88 Ohio St. 551. One of the considerations urged upon the Supreme Court by counsel for the husband was that—

“Alimony is nourishment or maintenance, and'wherever the word ‘alimony’ is used in the statutes, it is used with that meaning, and when the word was used in the entries in this case, it was used in its usual sense, .which is not synonymous with that share of the husband’s property which may be adjudged to the erring wife under Sec. 11993 G. C. Such share of the husband’s property is not nourishment or maintenance, which implies a periodical payment for that purpose. A share of the husband’s property, is a payment in a lump sum, often intended to reimburse the wife for what she may have brought to the marriage, or what she may have contributed to the property acquired by the husband after the marriage.”

Swing and Jones, JJ., concur.


author: BY THE COURT.

text:
    SCHOOLS AND SCHOOL HOUSES.
    [Licking (5th) Circuit Court,
    February Term, 1912.]
    Voorhees, Shields and Powell, JJ.
    Bowling Green Tp. School Dist. v. Preston E. Breese.
    1. Dismissal'of Teacher Confined to Reducing Charges to Writing and Affording Opportunity for Hearing..
    The authority conferred upon a board of education to dismiss any teacher for inefficiency, neglect of duty, immoral or improper conduct can be lawfully exercised only after the charges have been reduced to writing and the accused teacher has been given reasonable opportunity to appear before the board and make defense thereto.
    2. Teacher Wrongfully Discharged Entitled to Full Pay for Contract Period.
    A teacher, employed for a school year or for any specified term, if wrongfully discharged before expiration of the term of employment, may recover salary in full for the remainder. of such term, upon a showing of failure to obtain other employment after reasonable effort so to do.
    •Error.

      Fitzgibbon & Montgomery, for plaintiff in error.

      Smyth <& Smythe and J. M. Swartz, for defendant in error.
   BY THE COURT.

A petition in error is filed in this ease for the purpose of reversing the judgment of the court of common pleas, in an action brought by the plaintiff below, defendant in error, against the defendant below, plaintiff in error, to recover damages for said defendant’s alleged wrongful discharge as a school teacher.

In his amended petition in the court below, the plaintiff says that on June 3, 1907, the defendant, the board of education of said school district, contracted with the plaintiff by electing him as a teacher, to teach one of its schools in the district of Bowling Green township, in the town of .Brownsville, Licking county, Ohio, known as the grammar school, for the coming year, which school year covered the term of eight months, and which school term was to commence at a time to be fixed by said board of education. It is further alleged that the plaintiff had and held, at the time of his employment by said board as such teacher, a good and valid certificate issued by the board of school examiners of Licking county, Ohio, authorizing him to teach the school, which he, the said plaintiff, was so employed to teach by the defendant; that the plaintiff accepted said employment as teacher in pursuance of said contract with the defendant board, and on September 16, 1907, he entered into his employment as teacher of said grammar school of said district, and continued to teach and instruct the students of said school in accordance with his said contract of employment, made and entered into by him with the defendant, up to January 15, 1908. He further says that at a called meeting of said board of education held on January 15, 1908, said board attempted to discharge and dismiss the plaintiff as said teacher, and, from that time, until the end of the time for which he was so employed as aforesaid, did refuse and prevent him from discharging his duties as such teacher under said contract, and refused to pay him any part of the compensation to which he was entitled under and by virtue of said contract; that by the terms of said contract, he says he was to receive the sum of $40 per month, to be paid at the end of each month, and he says that from the time of said pretended discharge to the end of said eight months was seventy-seven days, amounting in all to the sum of $154. He says that said action taken by said board was taken without giving to the plaintiff a hearing and opportunity to defend himself against the charges made against him. He says that there was no cause for the action of said board, and that the same' was unlawful; and, by reason thereof, defendant was guilty of a breach of said contract, to his damages in the said sum of $154, with interest thereon from June 2, 1908. He further says that his business and profession is that of a school teacher; that after the said alleged discharge he went from place to place in an effort to secure employment as a school teacher, and used every effort that he could to get employment during the remainder of said time for which he was employed as aforesaid. He further says that he used due diligence to get other employment during said time, and that during said time he was unable, notwithstanding his efforts, to earn any money whatever, and he did not earn any money. He therefore prays judgment for said sum of $154, with interest from June 2, 1908.

To this amended petition the defendant filed an answer, admitting the employment of said Preston E. Breese as a teacher for a school year for one of the schools of said district; that the plaintiff had a certificate authorizing him to teach school at said time; that said plaintiff entered upon his employment as a teacher on September 16, 1907, and continued to teach under said employment until January 15, 1908; that the plaintiff was paid therefor; that on January 15, 1908, the board of education of said school district discharged said plaintiff; and defendant denies all the other allegations contained in said petition, not therein specifically admitted to be true.

The cause was submitted to a jury, resulting in a verdict for the plaintiff below. A motion for a new trial was filed and overruled, and judgment was rendered upon said verdict. A petition in error is filed, together with a bill of exceptions, embracing all the evidence, for the reversal of said judgment upon various alleged grounds of error, but principally because the verdict of the jury is contrary to the weight of the evidence and is contrary to law.

An examination of the record shows that the defendant in error was employed to teach said school for . the period of eight months, at an agreed price of $40 per month; that on or about January 15, 1908, he was dismissed from said school as such teacher by the board of education of said district; that a contract of hiring existed between said board of education and the defendant in error, by the terms of which defendant in error was employed to teach for the time stated, on the terms stated, and that he was dismissed as such teacher by the board., at the time stated, is admitted, the matter in dispute being as to whether or not the board was justified in its said action.

Section 4017 R. S. (Sec. 7690 G-. C. et. seq.) provides that “each board may dismiss any appointee or teacher for inefficiency, neglect of duty, immoral or improper conduct; but no teacher shall be dismissed by any board unless the charges are first reduced to writing and an opportunity be given for defense before the board, or a committee thereof, and a majority of the full membership of the board voting upon roll call in favor of such dismissal.”

It appears from the record that some disagreement arose between the superintendent of said school and the defendant in error in reference to certain exercises proposed to be given in said school on Thanksgiving of said year. This led to some feeling between the two, which manifested itself in certain complaints being made by the superintendent of said school to said board, that the defendant in error was not complying with the rules of said board in being present at the school building fifteen minutes before the opening of the school, and also that he had threatened violence upon the person of the superintendent of said school. This latter charge was made by a witness other than the superintendent, which said charge was denied by the defendant in error, who claimed that, while he was at all times present at the opening of said school and ready for duty, he was unavoidably detained from being present at the school building on one or two occasions.

' It is evident from the record that a condition of things obtained which the board thought was not best for the interests of the school, for on January 13, 1908, the superintendent or said school resigned his position; on or about said, date an assistant teacher also resigned, and that on January 14, 1908, said board though its secretary, notified the defendant' in error, by letter, to appear before it on January 15, 1908, to answer certain charges. This letter, it seems, was received by the defendant in error the following morning, the morning of the day named in said letter for him to appear before said board. He did so appear, and, - after learning of the intention of the board to take action against him, he protested and insisted upon being granted time to make his defense, all of which was refused him, and the board, by its action, thereupon discharged him.

While we recognize that boards of education may prescribe rules for the government of schools, and are given power under the law to dismiss teachers for causes therein enumerated, such power can not be exercised “unless the charges are first reduced to writing and an opportunity be given for defense before the board.” Were these conditions complied with in this instance? Was the defendant in error properly notified of any charges, and a reasonable time allowed him thereafter to prepare and make his defense to such charges? We think not. This alone, however, would not give the defendant in error a right to recover for the unexpired time of his contractual service, unless it further appears that he made an effort to procure employment during such term and failed to obtain employment. Did he do so ? He testifies that he did, and his testimony in this respect is unopposed and uneontradicted. Under the charge of the court, the .jury seems to have taken this view, having found for the plaintiff below, and we think, from an examination of the record, that the verdict of the jury is sustained by the weight of the' evidence, and that the judgment of the court below is right. Said judgment is, therefore,. affirmed, but without penalty, and the cause is remanded to said court for execution.

Voorhees, Shields and Powell, JJ., concur.


text:
    DAMAGES — MUNICIPAL CORPORATIONS.
    [Lucas (6th) Circuit Court,
    February 29, 1908.]
    Parker, Wildman and Kinkade, JJ.
    Toledo (City) v. Elizabeth K. Meinert.
    1. Compliance with Statutory Requirement as to Filing Claim for Damages Sufficiently Shown by Testimony Drawn out by City for Other Purpose.
    In an action against a municipality for damages on account of a change of grade, compliance with the statutory requirement as to the filing of a claim for damages more than two weeks before the commencement of the suit is sufficiently shown, in the absence of direct evidence offered in chief, by testimony drawn out by the city, although introduced by the city for an entirely different purpose.
    2. Value of Property Before and After Change of Grade not Prejudicial, Controlled by Charge to Jury.
    In such a case evidence as to the value of the property before and after the change of grade was made, while not admissible-on the theory that it affords a proper measure of damages, yet because of the necessity of permitting such an inquiry to take a wide range, such evidence is not necessarily prejudicial where properly taken care of in the charge to the jury.
    3. Ordinance Repealing Ordinance Establishing Grade Competent but not Conclusive of City’s Liability.
    An ordinance repealing a former ordinance establishing the grade of a street is competent in an action for damages to abutting property on account of the change of grade, but such an ordinance is not conclusive as to the liability of the city on account of such change of grade.
    4. Refusal to Withdraw Evidence of Information Received by Plaintiff from Her Father Held Prejudicial,
    Where the plaintiff testified that the improvements were made to conform to the grade originally established, and on cross-examination testified that she received this information from her father, it is prejudicial error not to withdraw the testimony so given from the jury.
    5. Failure to Contradict Allegations as to Construction of Buildings at Established Grade not Admission by City that Change of Grade Impairs Value.
    Failure on the part of the municipality to contradict allegations as to construction of the buildings to conform with the grade previously established and a subsequent change of the gradé by the municipality in such a manner as to impair the .value of the improvements so made, does not amount to an admission of these facts by the municipality; and a charge to the jury which states that these facts were uncontroverted and had been, established, and that the sole question to be submitted to the jury was the amount of damage, if any, suffered by the plaintiff, is prejudicial error.

      6. Measure of Damages for Change of Grade Based on Value of Improvements.
    In fixing the amount of damages to he awarded to an abutting owner on account of a change of grade, the test to be applied is the effect of the change upon the value of the improvements and not of the property, but this does not mean that the damages awarded must be limited to the expense of adjusting the improvements to the new grade.
    7. Cost of Filling Lot to New Grade and Damage to Property Therefrom Elements of Damages.
    There can be no allowance made for damages to the lot in its natural state, unless an unreasonable grade has been established; but where improvements have been made in reliance upon a previously established grade, or if none has been established with reference to a grade which might be reasonably anticipated, allowance may be made for filling the lot up to the new level around the house, and also for the cost of such changes in the building as a prudent man would make in restoring it to as good condition with reference to the new grade as it was with respect to the -old, adding thereto any diminution in the value of the building after restoration, or subtracting therefrom any increase in value after restoration, general benefits not considered, but special benefits may be deducted where in excess of the amount which the property owner will be compelled to pay for by way of assessments.

      Charles S. Northtup, City Solicitor, and John P. Mantón, Assistant City Solicitor, for plaintiff in error.

      Marshall & Frazer, for defendant in error.
   PARKER, J.

Suit was brought in the court of common pleas by Elizabeth K. Meinert against the city of Toledo. The petition alleges that the plaintiff was the owner of certain lots on Woodruff avenue in the city; that on February 1, 1859, the city duly established the grade of said East Woodruff avenue at all points between Canton street and Cherry street; and that plaintiff’s lots were between these points; that thereafter plaintiff erected certain buildings and other improvements upon said lots in accordance with the grade of said street so as aforesaid established, and this remained the grade of said street during the time of making of said improvements and until June 13, 1904, when the city changed and re-established the grade of said East Woodruff avenue between Cherry street and Canton street, along and in front of plaintiff’s lots, much higher than the grade before established and in accordance with which said plaintiff had eonstructed her said improvements; that in pursuance of this new grade, the street was filled up with dirt in such manner as to leave - a bank of dirt and mud in front of her lots, about eight feet above the surface of the lots, and about eight feet above the grade of the street established in 1859. She says that this resulted in great damage to her property, and sets forth specifically that it injured the ingress to said lots and said property and the egress from said lots to said street so. that the same have been rendered diffiult and dangerous to plaintiff and others using said property, and that the value of said lots has been greatly diminished in many other ways, through imperfect drainage and the situation of said lots, buildings and improvements far below the surface of said street. .Then follows this averment to which I will give some attention:

“That said city of Toledo did, more than sixty days prior to the commencement of this action, at request of plaintiff, and after having due notice of the claims and demands of this plaintiff make a thorough investigation of the damages to the property of plaintiff, but has utterly failed to settle or adjust the same although plaintiff has been ready and willing at all times to receive compensation for her said damages. ’ ’ and she puts' her damages at two thousand dollars.

The city answering, admits certain allegations as to the location of her lots, as to her ownership thereof, as to the established grade in 1859 on Bast Woodruff avenue between Canton street and Cherry street, and “denies each and every allegation and part of allegation" in plaintiff’s petition which is not expressly admitted to be true.' The city further says:

“Answering further, defendant says that on May 25, 1865, the common council of the city of Toledo, by ordinance duly passed, repealed and revoked the grade theretofore established on February 1, 1859, for said Bast Woodruff avenue between Allen street (now Canton street) and Cherry street, and that thereafter until June 13, 1904, there was no established grade for said Bast Woodruff avenue between said points."

The defendant admits the re-establishment of the grade between these points on June 13, 1904, and sets forth how the grade was fixed, that is to say, the height above the datum line; it sets forth a resolution adopted by the council providing for the improvement of this street by filling it up to the grade; it says the plaintiff was duly served with a copy of said resolution, and that on or about September 28, 1904, and in and by said notice in writing, required plaintiff to file with the clerk of the council in writing her claims for whatsoever damages she might consider would be caused to her said lot by said improvement; and defendant further says that said plaintiff did not file with the clerk of council nor with this defendant within the time required by law for filing such claim, any claim for damages or injury to her said lot which might be caused by the making of said improvement, and said defendant proceeded to make said improvement in the manner hereinafter set out, retying upon plaintiff’s waiver of damages for injury that might be caused to her said lots from said improvements. Then there are averments as to further proceedings. taken by the council to make the improvement.

The trial resulted in a verdict and judgment in favor of the plaintiff for $500 and interest. A motion for a new trial was overruled, and error is prosecuted in this court and a number of things are complained of that we feel required to mention.

It is said by counsel for the city that when the trial was entered upon an objection was made to the admission of any evidence on the ground that the petition does not state a cause of action, the specific reason being that the petition, does not state, as claimed by the city solicitor, that plaintiff filed her claim for damages and that she had delayed her suit for sixty days after filing such claim as required by See. 1536-279 R. S. (See. 3830 G. C.).

We entertain some doubts as to whether this question was' presented in time. It is a question, as we understand it, which must be presented at once, before any testimony is received. No material testimony had been adduced before this motion was interposed; but the trial was begun and was proceeding; the record shows fully a page of examination of a witness before the motion was interposed. But waiving this question, we conclude that the paragraph which I have read, beginning with the words "the said city of Toledo more than sixty days prior to the commencement of this action,” etc., is intended to and does meet this requirement of the statute sufficiently to make the petition good as against this motion. Perhaps, if a motion had been interposed in due time to require the plaintiff to make her petition definite and certain, something different in the way. of averment would have been required. It may be that a more critical view should be required if a demurrer had been interposed before the parties had entered upon the trial. But as against this motion, no mere lack of proper regard for the art of pleading can be regarded — I mean the fact that it is not artistically ■ stated in view of the rules of pleadings. The purpose of this averment seems to us to be apparent; we do not see how it could have been intended otherwise than as an averment to meet the requirements of this section.

There is another section of the statute (Sec. 1536-214 R. S.; Sec. 3823 Gf. C.), on the subject of filing claims for damages, that seems to have a different purpose in view, that is, to provide that unless the claim for damages is filed within two weeks after a certain notice, it shall be deemed waived; it amounts to a bar if it is not complied with; it is a notice under a kind of statute of limitations. Section 1536-279 R. S. is intended to give a municipality an opportunity to investigate, and if it pleases to settle the claim before it shall be subjected to suit and costs of suit, and therefore it is provided that no person shall commence a suit against the corporation upon his claim until he files it with the clerk of the corporation and sixty days elapse thereafter, to enable the corporation to adjust the claim.

It is apparent that a compliance with See. 1536-279, might not or would not necessarily fulfill the requirements of Sec. 1536-214. In other words, Sec. 1536-279 might be complied with at the time of the filing of the claim for damages, and yet a claim might be filed and still prevent the bar provided for in Sec. 1536-214. But if the claim is filed in compliance with Sec. 1536-214 R. S. that is to say, so as to meet its requirements, we can not see why .that does not fully comply with the requirements of 1536-279 R. S. in so far as the filing of the claim is required. Then, of course, remains the other consideration whether the plaintiff has waited sixty days before bringing suit upon the claim.

It is contended here on behalf of the city that this matter required by See. 1536-279 is not only averred in the petition, but that it is unnecessary for the plaintiff to prove it, as well as to aver it; and that she has failed to prove it.

At the close of the plaintiff’s case, a motion was made to withdraw the case from the consideration of the jury. At the time the plaintiff closes her ease in chief, she had not introduced any evidence in support of the allegation that she had filed this claim for damages, or in support of her other allegation, which may be adduced from this allegation I have mentioned, that she had delayed suit upon her claim for sixty days after she had filed it; but immediately upon entering upon its case, the city put the plaintiff upon the witness stand and she was inquired of whether she had filed a claim for her damages with the city, and it obtained from her the admission that she had filed such a claim. It seems that the city had tried to draw this out upon her cross-examination but was prevented from doing this by the court; perhaps upon the ground that it was a part of the defense of the city that the city was attempting to enter upon prematurely. It is evident that the city by pleading the bar under Sec. 1536-214 R. S., that is to say, that plaintiff had not filed her claim within two weeks after having been served with notice, was undertaking to use this evidence as to the time she had filed her claim for one purpose, that is in support of their plea in bar; but we think the evidence here served another purpose, it served the purpose of the plaintiff, for it showed the filing of the claim. The city did not sustain its plea in bar because it failed to show the service of the notice and a delay of two weeks after the service of the notice; it only showed the fact that claims in writing were filed (and they were exhibited to plaintiff and identified as Exhibits 2 and 3) that these claims were filed on October 12, 1904, and that taken in connection with the file-mark upon the petition discloses that suit was begun April 3, 1906, a matter of which, for the purposes of the trial, the court was bound to take judicial notice and a fact that the jury had a light- to consider. Those two things taken together discloses the fact that the claim was filed and that suit was not begun upon it until sixty days after it was filed.

The city complains of error in the admission, of evidence touching the value of the whole property before and after the change or grade in 1904. We are of the opinion that evidence upon this subject is not admissible on the theory that this is the measure of damages; but a wide range must be permitted in the admission of evidence on this subject, especially upon cross-examination. The test of values, etc., may be made by many inquiries aside from those embodying the facts constituting the ¡exact test in fixing the measure of damages. Perhaps the plaintiff, in chief, should not go into this matter as she did; but she seems to have been driven to this course by the objection of counsel on behalf of the city; and in view of this, we can not find that error or at least prejudicial error occurred in the adjmission of this evidence. The whole matter should be taken care of by the charge of the court when he came to give the jury the rules to guide them in. ascertaining and fixing the damages.

It has been seen that the city denied that the ordinance fixing the grade of Bast Woodruff avenue at this point adopted in 1859 remained in force until 1904; and besides, the city alleges affirmatively that this grade ordinance, in so far as it affected this part of the street, was repealed in 1866. The city in support of this allegation undertook to introduce in evidence an ordinance passed by the council May 25, 1866, and on objection of the plaintiff this ordinance was excluded.

It is urged by counsel for the defendant that in so far as it purports to abolish this grade at this point the council blundered ; that it was a mistake; that it was never so intended; but we do not see how we or the trial court can assume any such thing. The ordinance fixes the grade of East Woodruff avenue between Allen street and Adams, fixing the height of the grade above the datum line at all the street intersections at Union, Wakeman, Putnam, Territorial road and Adams street, and provides that the grade of the street between the above mentioned points shall be an inclined plane. Nothing is said in this part of the ordinance about the grade of East Woodruff between Allen or what is now known as Canton street and Cherry street; but See. 5 of the ordinance repeals certain ordinances theretofore passed -to establish the grade of certain streets, including the ordinance of 1859 establishing the grade of streets and alleys in Woodruff’s Addition to Toledo, and by its plain language it seems to disestablish or repeal the ordinance establishing the grade of East Woodruff avenue, between Cherry street add Franklin avenue, which would cover the part of East Woodruff avenue between. Canton street and Cherry street.

Now we are not prepared to say that this ordinance is conclusive evidence in favor of the city that the grade established by the ordinance of 1859 was then and thereafter to be disregarded by the city. We are of the opinion that under the authority of Nolte v. Cincinnati, 2 Circ. Dec. 289 (3 R. 503) such action might be taken by the city notwithstanding the repeal of this grade ordinance as would make it liable for an actual change of grade; but it is entirely clear to us that this repealing ordinance is competent evidence on behalf of the city and should have been admitted, and that it was prejudicial error upon the part of the court to refuse to admit it. It is for the jury to consider in connection with the fact that the grades at the intersections of Woodruff avenue with Cherry street and Canton street were not altered by this ordinance, and that the grading between the different streets must be inclined planes; together ■ with any work on this part of the street that might have been done or permitted by the city in the way of bringing the level of the street up to the level of the grade fixed by the ordinance of 1859, the setting of stakes for improvements, the fixing of curbs, or anything else that may have been done or shown to have been done by the city in addition to or in connection with the ordinance of 1866.

The plaintiff in the course of her testimony in answer to a question stated that the improvements upon these lots (which consisted of two dwelling-houses) were made to conform to the grade established by’ the ordinance of 1859, and upon' cross-examination she said that she had this information from her father. A motion was made to withdraw her answer from the jury, which motion was overruled. It seems to us that her testimony upon this point was mere hearsay, and that the motion should have been sustained. If she meant to testify to the fact that the building conformed to the actual grade of the street, rather than to the grade established by ordinance, that they were made to conform to the level of the grade actually built upon the ground, this would be competent, provided she knew the fact and did not have it as mere matter of information from others. "We think that in this the court committed error prejudicial to the city.

At the close of the evidence and the arguments, counsel on behalf of the city asked the court to charge four several propositions, which appear in the record and which are as follows:

1. Before the jury can find for the plaintiff in this case, it must appear by: a preponderance of the evidence that the buildings on the land described in the petition of plaintiff were erected or constructed to a grade previously fixed and esablished for such street by the city of Toledo, and that the city of Toledo, after such buildings had been erected, changed the grade of the street so as to impair or render less convenient the means of ingress to or egress from, such buildings.

2. Plaintiff is entitled to recover only for the injury to the means of ingress and egress from the improvements on the said lots, and if the jury find that plaintiff is entitled to recover damages from the defendant. Plaintiff is entitled to recover only such sum of money as damages as she will be required to expend to adjust the said improvements on her lots to the' changed grade of the street.

3. Before plaintiff can recover in this action she must establish by a preponderance of the evidence the following facts, to wit: That the buildings on her said lots were erected or placed thereon to the grade of said street which the city of Toldeo had previously established; that the said city of Toledo changed such grade after the said buildings had been erected or placed on said lots, and that such change of grade of said street impaired or rendered less convenient the means of ingress to or egress from said buildings from said street. Plaintiff is required to show by competent evidence the cost of adjusting the improvements or buildings upon said lots to the changed grade, and plaintiff can recover in this action only such sum as would be required to make such means of ingress and egress to and from said buildings as convenient as it was prior to the change of the grade of the street.

4. If the jury should find from the evidence that plaintiff’s said property was worth as much immediately after the street was graded up to the grade established in, 1904, as it was immediately before the grade of the street was changed, and that the change of the grade of the street eaused no depreciation in the value of plaintiff’s property, then I say to you that your verdict should be for the defendant.

We think it entirely clear that the court was not required to charge requests numbered 2, 3 or 4; not required to charge No. 2 because the plaintiff might be entitled to recover more than the mere expense of readjusting her improvements to the new grade; not required to give No. 3 for the same reason; not required to give No. 4, because the test there to be submitted was as to the effect upon the plaintiff’s property, whereas the court was confined to the matter or test of the effect upon the value of the improvements only, not to the whole property; and some of these requests seem to authorize the setting off of general benefits, which we think was not allowable.

The substance of the first request should have been given. It is calling the attention, of the jury to the fact that there were certain issues of fact to be considered and resolved, both as to .whether or not the buildings were erected or constructed to a grade previously fixed and established upon the street by the city of Toledo, and as to whether the grade was afterwards changed by the city of Toledo so as to impair the value of the improvements thus made.

We are not prepared to say that the court would be required to give this in the exact language submitted; but we call attention to it to emphasize another question made as to the charge given by the court, to show that counsel for the city had not waived any right arising under these issues of fact; that the city was not conceding that it had been established that the improvement had been made to conform to the grade established in 1859. Of this part of the charge the counsel for the city complains. I read it :

“It is admitted by the parties in the pleadings which they have filed in this case, and established by the uncontroverted testimony, that the city of Toledo is a municipal corporation; that East Woodruff avenue is a public street in said city; that the plaintiff, Elizabeth K. Meinert, is the- owner of the east 25 feet of lot 134 and lot 135 of Woodruff’s Addition to the city of Toledo, and that said lots have a frontage of 75 feet on East Woodruff avenue between Canton street and Cherry street in this city. That on the first day of February, 1859, the city of Toledo, by ordinance duly passed, established the grade of said East Woodruff avenue.”

Now this far, we do not know that any complaint can be made of what the court said as to what had been established; for while these things may not have been established by uneontroverted evidence, we think the .truth is they are established by the averments and admissions of the pleadings. Then the court continues:

“That after the establishment of the grade of the street in 1859, and in accordance therewith, the plaintiff constructed certain buildings and made other improvements upon the said lots. That on June 13, 1904, the city of Toledo changed and re-established the grade of the said street between Cherry and Canton streets and in front of the said lots at points higher than the grade before established; that thereafter the street was graded to the grade established on June 13, 1904. ’ ’

And then the court continues:

“The plaintiff claims in her petition that by reason of the change in the grade of the street, she has suffered the damages of which she complains.
‘ ‘ The sole question of fact which you are asked to determine is what, if any, damages the plaintiff has suffered by reason of the change of the grade of the street in accordance with the grade established in 1904.’-’

Now if the ordinance of 1866 had been admitted there would have been more room for controversy as to the evidence upon which the plaintiff relied, and as to the truth of certain of these alleged matters which the court says have been established by. uncontroverted evidence. We think that that ordinance should have been admitted; but even without that ordinance in evidence, the issue was made by the pleadings, as to whether these buildings had been constructed to conform to an established grade, even if as the case stood it might be fairly said that the grade of 1859 was established, it was not for the court to say, and the court was not authorized to. say that it had also been established-that the buildings had been constructed to conform to this grade. It matters not that the evidence, consisting of the testimony of certain witnesses, tended to establish that fact; it matters not that the evidence may have been of -a character so persuasive as to convince the ordinary mind that the testimony was true that the buildings wére constructed to conform to that grade; the issue has been made by the pleadings, no evidence upon the subject that was conclusive in law had been submitted, the issue had not been waived by the city, the city was insisting upon the submission of this issue, as shown by the first request to charge.' The issue should have bisen .submitted to the jury. Some of us remember an expression of Judge Shauck in. a case recently decided by the Supreme Court (we have not been able to lay our hands upon it) to the effect that uneontradicted facts are not admitted facts; that because certain witnesses testify to facts and the witnesses are not contradicted, that does not amount to an admission of these facts by the adverse, party. The jurors are not bound to believe the testimony of these witnesses; they may not believe them; they may be fully persuaded that the witnesses are either falsifying or that they are utterly mistaken; and so, notwithstanding the fact that there may be testimony tending to support a certain state of. facts, not controverted by other witnesses or other evidence, the jury may disbelieve the testimony and may find the facts to be different from what the witnesses have testified to. The party insisting upon having the issues submitted to the jury, has that right; and we think that in stating to the jury that these facts were uncontroverted or established and in following • that- statement with further statement that the sole question of fact to be submitted to them was the amount of damages, if any, the plaintiff suffered, prejudicial error was committed.

That, I believe, disposes of all the questions submitted, save that as to the measure of damages; and counsel for the city have asked us to say something upon that question. Of course, we are not required to say more than that we find no error in the general charge upon this subject that would justify a reversal of the judgment. We think that in the main the charge upon the subject is correct; that it is correct as far as it goes, though we think that the court might have made the charge somewhat fuller and thereby made it somewhat clearer; but there was no request to charge further upon the subject. We call attention to a few of the authorities that have reference to the rule that the damages recoverable consist of the diminished value of the improvements —improvements that are made in reliance upon a grade that has been established, or if none had been established, a level the establishment whereof might reasonably expected as a reasonable grade. The law upon the subject is discussed in the case of Cincinnati v. Williams, 8 Dec. Re. 718 (8 N. P. 561) in the charge and in a note appended thereto by Hon. F. M. Coppoek, of the Cincinnati bar. We think that in the main the statements made by Judge Avery and by Mr. Coppoek are correct statements of the law upon the subject. No damage to the lot, in its natural state is allowable, unless an unreasonable grade shall be established; then the law seems to allow for damages to the property; but that we have not considered here — I mean damage to the naked lot. Ordinarily damages are not allowed because of the diminution in the value of naked unimproved properly. It is only to be allowed on acount of the improvements that the proprietor has made in reliance upon an established grade or one reasonably to be anticipated; therefore, where damages for improvements are allowed, care should be taken, to not include damages to the lot considered independent of the improvements. Here the claim is made that the grade was raised about eight feet and a half. The question for the jury was how did the raising of the grade by the city affect the value of the houses, assuming that it had been established, that there was a grade and that the houses were built in conformity thereto. What were the houses worth as they stood upon these lots immediately before the change of the grade and what were they worth immediately thereafter; not what did the house cost, nor what they would be worth situated elsewhere, for sometimes improvements are inappropriate to the location; sometimes it turns out to be a waste of' money to put a residence of a certain value in a certain place, or to put up a business house in a certain place, because the building is inappropriate to such place. This change of value the jury have a right to consider; the cost of making the houses convenient of access, if they have been rendered inconvenient of access by the improvement, to restore them as far as possible to their condition of convenience of access by such means as would be deemed reasonable and expedient by the jury. Of course such expenditures as would be deemed imprudent under the circumstances are not to be considered by the jury. The city is not bound to pay the cost of rendering the property as convenient of access as possible, or. as it was before, if such cost would be wholly disproportionate to the advantage resulting therefrom. . Sometimes with a dwelling-house upon a small lot, in order to make it fairly convenient of access it would be necessary to fill up the lot to the grade of the street. Suppose the case of a lot upon which there were an inexpensive house, a a large lot requiring a great deal of filling, the house, we will say, worth five hundred dollars, and the expense of filling more than five hundred dollars, perhaps one thousand dollars, of course the jury would not be authorized to take into consideration the 'expense of filling up the lot to the level of the house ; because the city would be entitled to discharge its obligation by paying the whole cost of the house which it has rendered wholly useless and worthless; and the same rule may be applied to any other alterations and changes made necessary by the change of grade. The city could not in any event be required to pay more than the value of the improvements destroyed or rendered worthless by the improvement. General benefits to the lot are not to be considered to set off against this depreciation. What are general benefits and what are special benefits, as they are often called, is often a different question.

That the property may have been made more valuable as a business property by the city improving the street, or that it could be made more valuable by being otherwise improved and used than as designed, and as used by the owner, is, we think, wholly immaterial. The owner has a right to improve and use his property as he may please. It may please him to use as a place of residence a lot that he could use much more profitably for a business house; but that is his right; and the question for the jury is as to the diminution, if any, of the value of the particular improvement upon the lot — such diminution as may have resulted from the change of grade.

As I have said, general benefits are not to be considered, such benefits as may have resulted to all property in the neighborhood; but special benefits, not to this lot as such, not to this lot considered with respect to its availability for other uses; but special benefits resulting to those improvements as they stand, or as prudence may require them to be changed. Such special benefits are to be considered. If, for instance, it is found to be prudent to raise the dwelling-houses up to the new level of the street, as against the expense of so changing the house, the expense of filling up to the houses may be considered, any special benefits found to result from the houses being placed where they may have basements that they could not have before; any special benefits arising from increasing or improving the facilities for drainage, sanitary or otherwise — I mention these things simply as an illustration. In considering drainage, however, of course the jury should take into consideration such benefits as the lot may be required to pay for fully by assessments; but only such benefits as would result from these particular improvements in excess of what the proprietor may have been required to pay for.

As we have said, we think the charge is substantially correct as far as it goes, and as no specific charge upon this subject was desired or requested, we find nothing in the charge justifying a reversal, except as to the issue of fact.

In this note of Mr. Coppock’s on page 573, he extracts and states certain rules of law which we think are well settled; state the law correctly and may be applicable to this case. I read them:

“1. If after the changes which a prudent man would make to restore the premises to as good condition with respect to the new grade as they were with reference to the old, they are of the same value as before the change of grade, the reasonable costs of such restoration would be what the owner is entitled to recover.
“2. If under like circumstances, they are less valuable when restored, than before the change of grade, the amount of this diminution in value should be added to the costs of restoration, as the amouht of recovery.
“3. If under like circumstances, they are more valuable when restored than they were before the change of grade, there should be a recovery for the difference between the costs of restoration and the increase of value if less than the costs of restoration,, but no reovery, if more. ’ ’

The judgment of the court below will be reversed, and the cause remanded, because of the error in excluding the ordinance and of error in declining to rale out the answer of - the plaintiff before referred to, and the error in the statement in the charge as to uneontradieted facts.

Wildman and Kinkade, JJ., concur.


author: MARVIN, J.

text:
    CONTRACTS.
    [Cuyahoga (8th) Circuit Court,
    November 30, 1908.]
    Marvin, Winch and Henry, JJ.
    M. A. Hanna et al v. J. J. Crozier
    1. Reason for Admitted Breach of Contract Permits Conclusions and is Incompetent.
    It is not competent for a defendant, sued for a breach of contract which he admits, to be asked by his own counsel why he broke his contract, for that permits him to give conclusions instead of the facts from which his conclusions were drawn.
    2. Failure, to Institute Action on Notice of Breach of Contract not Evidence of Acquiescence in Contract Termination.
    The fact that one has delayed bringing suit for damages for breach of a contract for some months after notification that the other party to the contract will not abide by the contract is no evidence of acquiescence in a termination of the contract.
    Error.

      Squire, Sanders & Dempsey, for plaintiff in error.

      Burton & Dake and William Howell, for defendant in error.
   MARVIN, J.

The parties here stand in the reverse order in which they stood in the action in the court of common pleas. The terms “Plaintiff” and “defendants” as used in. this opinion, will refer to the parties as they stood in the original action.

■The plaintiff avers in his second amended petition that on November 18, 1901, he and the defendants entered into an agreement by which the defendants were to furnish to the plaintiff five hundred tons of a certain grade of iron-; that the same was to be shipped at the rate of twenty tons per week, between January 1, 1902, and August 1, 1902, and the plaintiff agreed to pay therefore at the rate of $17 per ton, to be paid at the town of Kennet Square, Pennsylvania, in installments; when the iron aforesaid was delivered at the furnace of the defendants at (Buffalo, New York, in cars for shipment to the plaintiff upon presentation to plaintiff of bill of lading for same with sight draft attached for the amount due therefor, at the rate aforesaid.

The plaintiff further says that the defendants failed to deliver any part of the iron so contracted for, and that prior 1o the time when.delivery, was to begin under the contract, to wit, on the 28th day of December, 1901, the defendants notified the plaintiff, in writing, that they would not carry out the contract but repudiated the same.

The defendants answer, admitting that they entered into the contract as claimed by the plaintiff, and that on December 28, 1901, they notified the plaintiff that they would not carry out the contract. They say, however, that the contract was a continuation of a former contract, under which the defendants were furnishing iron to the plaintiff and that subsequent to the making of the contract sued upon, the plaintiff defaulted in the earlier contract, in that he failed promptly to pay for the iron shipped under such former contract as he was required by said former contract to do. And though the answer does not set up the fact that the plaintiff was unable to carry out his part of the contract of November 18, 1901, yet upon the trial the claim was made, and to a certain extent at least a trial was had upon the theory that the plaintiff was unable to carry out the contract of November IS, 1901; that his financial condition was such that he could not have carried it out.

The answer further avers that the plaintiff acquiesced in and agreed to the cancellation of the contract, for the breach of which this suit was brought. The result of the trial was a verdict for the plaintiff.

A motion for a new trial, made by the defendants, was overruled, and exception to such overruling of- the motion was made by the defendants.

Exceptions also were taken to a ruling upon the introduction of evidence which is complained of in the proceedings here, and exception is taken to the charge of the court; and it is urged here that the court erred in these particulars, and that therefore the judgment should be reversed.

The ruling upon the evidence complained of is found by an examination of pages 66 and 67 of the bill of exceptions. One Beuben E. McNahon, an agent of the defendants, who had charge of the shipping of the iron, was being examined, and was asked this question by counsel for the defendant:

“I will ask you, Mr. McNahon, if under the terms of the contract which is in dispute here, you did make any shipments to Kennet Square Foundry Company of this iron?”
To this he answered: “We did not.”
He was then asked: “You may state why you did not.”

This question was objected to by the plaintiff and the objection. sustained. To this ruling the defendants excepted, and then stated that they offered to show that “if the witness were allowed to answer, that the defendants had obtained knowledge, through the conduct of the plaintiff, subsequent to the execution of the contract, that he did not intend to carry out the term of the contract, and that he was insolvent and unable to do so. ’ ’

The question asked by counsel for the defendants of their own witness, “You may state why you did not,” is clearly improper. One can conceive of any number of answers which-might have been given to this question, which would have been incompetent. The witness might have answered, because we heard from John Doe that the plaintiff was insolvent; or he might have answered, because we had made up our minds that we didn’t care to do business any longer with the plaintiff. Indeed, he might have answered in such wise that his answer would necessarily be incompetent. It is not competent ordinarily, for one to ask of his own witness why he did or did not do certain things. However, we are not left here to conjecture as to whether the answer obtained was incompetent. It was not proposed to have the witness say what facts he relied on as a justification, but only state certain conclusions at which he had arrived.

There was no error in the ruling of the court on this question.

The language complained of in the charge is that the court said, in reference to the claim of the defendants, there the plaintiff acquiesced in and agreed to the rescission of the contract; "There is no evidence that the par ties, here at. any time abandoned or rescinded this contract, so that part of the issue you will have no reason to consider.”

We think the court was entirely justified in using - this language.

The only evidence the defendants could claim tended in any way to support their contention in this issue ivas their letter of December 28, 1901, which reads:

1 ‘ Cleveland,. 0., Dec. 28, 1901.
"Kennet Foundry Company,
Kennet Square, Pa.
"Gentlemen: We are advised today by the agent of the Pennsylvania By. that you have not paid for the car of Buffalo pig iron which was shipped you last Nov. We think you will readily understand that we can not do business in this way, and that when we entered your order of Nov. 16th for 500 tons of Buffalo charcoal iron the understanding was that oúr drafts would be paid immediately upon presentation. The experience we have had with this car is such that we can not do business in this way, and have therefore, canceled your order of Nov. 16th and will not ship any more pig iron to you accepting on receipt of your New York draft, or postal order, before the iron is shipped and we will then ship you iron if you desire at the market price, but under no other conditions.
"Yours very truly,
"M. A. Hanna & Co.”

The plaintiff did nothing until the 20th of March next following, when he wrote the following letter:

“Kennet Square, Pa., Mar. 20; 1902.
“M. A. Hanna & Co.,
Cleveland, Ohio.
“Gents: The writer has been absent from the office for some time on account of sickness; or would have taken up your letter of December 28th, before this. Now you say that the understanding was that we were to pay your drafts immediately upon presentation. Now we do not know of any such an agreement, but we are aware that it is always supposed to pay drafts promptly, .and we regretted as much as you did that the draft was not paid promptly, but we had a firm that was holding us back a settlement that put us very short, and that is the reason we could not pay the draft. Now we wish to know if you will-give us another chance, as you will admit that all our other dealings were satisfactory and we paid very dear for the delay in the last draft. We have experimented with your iron and have been put to extra expense in doing so, and have the iron now at a point where we ean make satisfactory profits from the same and now to use another iron, it would mean to go all over-the matter. Will you not.consider this matter, place yourself in our position, and you would thank us to favor you for which we will thank you to do for us.
“If you will favor us, the drafts will be paid promptly when presented to us; if not we will ask no more.
‘ ‘ Trusting to hear from you, favorably, we are “Yours truly,-
“Kennet Foundry & Mac. Wks.
“Diet, by J. E. C.”

The defendants on March 22, 1902, wrote the following letter:

“Cleveland, 0., Mar. 22, 1902.
“Kennet Foundry & Machine Works, .
Kennet Square, Pa.
“Gentlemen: We have your favor of the 20th inst., and note contents carefully. We feel that we are fully justified in the position that we take. As written you Dec. 28th and as advised at that time, we cancelled your order and do not understand that we owe you any iron whatever. In the future, if we had iron such as you desire, we will be pleased to ship it to you at the market price at the time of shipment, but only upon receipt of your New York draft before the iron is shipped. We regret the necessity of taking this position, but feel that our past experience with you makes it a necessity.
“Very truly yours,
“M. A. Hanna & Co.”

To which letter the plaintiff made no response until July 1, 3902, when he wrote the following letter:

“Kennet Square, Pa., July 1, 1902.
“M. A. Hanna & Co.,
Cleveland, Ohio.
‘ ‘ Gentlemen: Taking up the matter of the balance of charcoal iron due on our contract for 500 tons, we do not understand why you take the position, that you do in this matter, as we were the losers in this transaction as the first car we admit was not cared for promptly, but as we stated we were at that time held up for settlement due us and this was the cause of us not being able to take care of the bill of lading promptly, but as we paid all of the expense for the same we do not see, as stated before why you take such action in this matter and while we are in need of this iron, we wish to do the right thing in every way and as we have said in our previous letters if you will continue to supply us with this iron we can assure you bill of lading will be taken care of promptly upon arrival of the car.
“Now we trust you will carefully consider this matter and advise us by return mail if we could have 100 tons shipped immediately''. Trusting to have a favorable reply, we are,
“Yours very truly,
“Kennet Foundry & Machine Works.
“Diet. J. J. C.”

The jury necessarily found from the pleadings and the evidence that the contract claimed by the plaintiff was entered into, and that on December 28, 1901, the defendants repudiated it.

Then if the plaintiff was damaged by reason of this breach, he had a right of action at once upon the receipt of that letter to begin an action. Or, he might wait until the expiration of the time in which the defendants were to have completed their part of the contract. He might have said nothing to the defendants after the receipt of their letter of December 28th and he would still have a right of action upon his contract., and provided he could show that he was at all times ready, able and willing to perform on his part. The jury necessarily found that he was so ready, able and willing, and from the evidence they might well have so found.

Without going into an analysis of the two letters written by the plaintiff hereinbefore quoted, the one of March 22d and the other of July 1st, it is sufficient to say that we find nothing in either of those letters indicating on the part of the plaintiff that he consented to the repudiation of the contract by the defendants.

Under the facts as shown by the bill of exceptions, it would have been surprising if the jury had not reached the conclusion which it did reach, and hence the motion for a new trial on the ground that the verdict was not sustained by the evidence, was properly overruled, and as has already been said there was no error in the ruling upon the evidence or the charge of the court, the judgment is therefore affirmed.

Winch and Henry, JJ., concur.