text:
    NEGLIGENCE IN DRAWING A DRAFT.
    Court of Appeals for Hamilton County.
    The Second National Bank of Vincennes v. Amy R. Campbell.

    Decided, October Term, 1914.

      Banks and Banking — ■Draft Made to Read for a Larger Amount and is Accepted — Bank Negligent in so Drawing the Instrument as to Make the Change Possible Without Bxciting Suspicion.

    Whether a draft which had been “raised” and was accepted for the larger amount, had been so negligently drawn as to make the issuing bank liable for the full amount by reason of the fact that the alteration was possible without exciting the suspicion of a reasonably careful man, is a question for the jury, and an unequivocal finding as to such negligence will not be disturbed by a reviewing court.

      Charles B. Wilby, for plaintiff in error.

      Charles ~W. Baker, for defendant in error.
    Jones, (E. H.), J.; Jones, (O. B.), J., concurs; Swing, P. J., not sitting.

       Affirming Campbell v. Second National Bank, 17 N.P.(N.S.), 47; motion to require the Court of^ Appeals to certify its record overruled by the Supreme Court February 9, 1915.

   This action was originally brought by Amy E. Campbell against the Second National Bank of Vincennes, praying for judgment for $360 upon a draft drawn by said bank, which she cashed for the payee.

The draft when tendered to her was in the sum of $360. < She accepted it in payment of a tuition fee of $100, and paid the difference to the prospective pupil of' her business college in cash. She recovered judgment below against the bank for $260 with interest, the evidence showing that she really never parted with the remaining consideration, the matriculation in the college being only a ruse by which Miss Campbell was induced to honor the draft.

The judgment below in favor of the defendant in error rests upon the allegations of the second cause of action of her amended petition, which are as follows:

“Pia.int.iff says that defendant is a corporation under the laws of United States, and is and was doing banking business at Vincennes, Indiana.
“Plaintiff says that on the 27th day of September, 1910, at Vincennes, Indiana, the defendant drew a draft on the Fort Dearborn National Bank of Chicago,* Illinois, and delivered it to a man purporting to be one E. J. Andrews. That said draft was on the. usual forms used by the defendant in drawing such drafts; was made payable to the order of one M. J. Andrews, and this plaintiff is advised that the defendant claims that the said original draft was drawn for $3.00 only. •
“Plaintiff says, however, that the said draft was so negligently and unskillfully drawn and made out as that it permitted its alteration without detection, and whatever was the .amount of the original draft it was so carelessly and negligently drawn and written in and made out, and without the usual safe-guards ordinarily used in connection with the drawing of such drafts, that the said draft was susceptible of being altered without detection, and it was so altered by the said M. J. Andrews, or some one for him, so that the said draft came to be in the following form and shape:
“The Second National Bank of Vincennes,
“Vincennes, Indiana, Sep. 27, 1910, No. 25296.
“Pay to the order of M. J. Andrews ............ $360.00 three hundred sixty & No/100..............dollars.
To Ft. ■ Dearborn National Bank,
Chicago, 111. J. T. Boyd, Cashier.
Not over five hundred dollars.
‘ ‘ Endorsed: M. J. Andrews,
“A. R.'Campbell,
“Paid through Chicago Clearing House,
“Oct. 1, 1910.
“Mail.
“First National Bank,
“Pay First National Bank, Chicago, 111. or order,
“Prior endorsements guaranteed,
« “Fourth National Bank, Cincinnati, O.
“Charles Bartless, Cashier.
“Plaintiff says that, believing said diaft to be genuine and for three hundred and sixty ($360) dollars and the said M. J. Andrews having endorsed the same, as did this plaintiff, she deposited it for collection in the bank in Cincinnati, where she kept her account; but the said draft was refused payment by the Second National Bank of Vincennes, which said bank now claims that it never issued said draft for the said sum of three hundred and sixty ($360) dollars.
“Plaintiff says that, by reason of the carelessness and negligence of the defendant company, the drawer of said draft, in drawing a draft that was so carelessly and negligently drawn that it could be altered and changed without detection, she was deceived into taking said draft and giving its equivalent as aforesaid, all to her damage in the sum of three tymdred and sixty ($360) dollars, and without fault upon her part.”

These allegations were denied in the amended answer in which it is averred that “the draft was carefully drawn and protected by the use of the Todd protectograph, a device in use by most banks for the prevention of alteration of checks, which is the best device for that purpose known to bankers, and is the safeguard most commonly used in connection with the drawing of such drafts, and that said draft was altered without fault on its part.”

Thus, the issue of the care or want of care by the bank in drawing the draft, was made by the pleadings in the case.- The jury had that one question before it for determination; and in addition to their general verdict the jurors were required to answer certain interrogatories propounded-by the defendant below. The interrogatories and answers are as follows:

“1. "Was the bank negligent in drawing and issuing that draft?
“Answer: Yes. L. H. Bates,.Foreman.
“2. If your foregoing answer shall be ‘yes’ then state in what respect the bank was negligent.
“Answer: By not having used the necessary precaution, to-wit: the evidence produced in this case, showing the draft marked ‘Exhibit A’ in its present appearance to us does not show that same was stamped more than once by the protectograph device and that the draft does show it was stamped at least once, ‘Not over five hundred dollars ’ by the above named device, upon this evidence and testimony given that this device was used by ifhe defendant in issuing the draft they in our opinion were guilty of negligently preparing the draft in question.
“L. Tí. Bates, Foreman.”

It is claimed, however, that this finding of the jury is not supported by the evidence, and in support of this contention this court has been provided with two magnifying glasses and a Todd protectograph in an effort to show that there has been a change in the protectograph impression on the draft since it was issued by the bank, and that the jury was mistaken in finding to -the contrary. These aids in the determination of the issue, together with the draft, were in possession of the jury during its deliberations. Their clear and unequivocal answer to the second interrogatory amply supports the allegation of the amended petition as quoted above, and leaves no doubt as to the position of the jury upon this simple yet important question of fact. "We are not aware of any law or rule which would authorize this or any other court to interfere with this finding of fact by the jury, unless it was manifestly against the weight of the evidence. A great many witnesses were called to testify upon the point upon which the jury passed, but after all, the principal item of evidence is the draft itself. While its appearance satisfied some of the witnesses that the first protectograph stamping had been changed, there was a conflict, even among the witnesses upon this point. All possible assistance was rendered the jury in determining this issue. From its verdict there is no appeal. It would be a palpable usurpation of the province of the jury for a court to interfere.

The questions of law involved in this controversy have apparently not often arisen, especially in our state. The judgment against the bank, assuming the facts to be as found by the jury, was warranted by the law as well stated in Daniel on Negotiable Instruments, 6 Ed., Volume 2, Section 1405 :

“When the drawer of the bill or maker of note has himself, by careless execution of the instrument, left room for any alteration to be made, either by insertion or erasure, without defacing it, or exciting the suspicions of a careful man, he will be liable upon it to any bona fide holder without notice when the opportunity which he has afforded has been embraced, and the instrument filled up with a larger amount or different terms than those which it bore at the time he signed it. The true principle applicable to such cases is that the party who puts his paper in circulation, invites the public to receive it of any one having it in possession with apparent title, and he is estopped to urge an actual defect in that which, through his act, ostensibly has none It is the duty of the maker of the note to guard not only himself but the public, against frauds and alterations by refusing to sign negotiable paper made on such a form as to admit of fraudulent practices upon them with ease and without ready detection. The inspection of the paper itself furnishes the only criterion by which a stranger to whom it is offered can test its character, and when the inspection reveals nothing to arouse the suspicions of a prudent man, he will not be permitted to suffer when there has been an actual alteration.”

See also: Harvester Co. v. McLean, 57 Wis., 258; Garrard v. Hadden, 67 Pa. St., 82; Zimmerman et al v. Rote, 75 Pa. St., 188; Brown v. Reed, 79 Pa. St., 370.

The fifth paragraph in the syllabus of the last case cited is authority for the claim that the issue that we have here is one for the jury. It reads as follows:

“The paper in this ease was part of a contract so skillfully arranged that if the portion on the right end were cut off there would be left a negotiable note. Held: That- whether there was negligence in the maker in executing such paper, was for the jury.”

We find no error in the record to the- prejudice of plaintiff in error, and the judgment will therefore be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    WAIVER. BY INDORSER. OF NOTICE OF DISHONOR.
    Court of Appeals for Scioto County.
    Elizabeth Evans, as Executrix of the Last Will and Testament of Nelson W. Evans, Deceased, v. Kate Comins and Alice Comins.
    Decided, December 18, 1914.

      Promissory Notes — Implied Promise Toy Indorser to Collect Notes— Holders Relieved from Malting Demand and Giving Notice of Dishonor.

    1. An indorser of a negotiable instrument who, before the time for presentment, agrees with the holder that he will collect the principal sum evidenced by said instrument and the interest due thereon, thereby waives notice of dishonor.
    2. An indorser of a negotiable instrument who, for eight or ten years has sold and delivered such instruments to the holders and has always collected the principal and interest due thereon, can not take advantage of the failure of such holders to make demand and give notice of dishonor to him, after such course of couduct, although he did not expressly agree to undertake the collection of the note in controversy,

      E. G. Millar and Jos. T. Micldelhwaite. for plaintiff in error.

      Blair (& Kimball, contra.
    Error to the Court of Common Pleas of Scioto County, Ohio.
   August 3, 1911, Hester Ann Copeland and Arthur J. Copeland executed and delivered to Nelson W. Evans tbeir five promissory notes, for $500 each, payable to him one year after date. Before the end of August, 1911, Nelson W. Evans, for a full and valuable consideration, sold and delivered two of the notes to Alice and Kate Comins, and signed his name on the back of each note. The notes contained no waiver of protest. Presentment for payment was never made or attempted, and notice of dishonor was never given to the indorser, Nelson W. Evans, who died May 27, 1913. Kate and Alice Comins claim that notice of dishonor was waived by the indorser, as appears by the testimony of their mother, which was undisputed and is as follows:

‘ ‘ Q. State your name, age, and residence ? A. Ann Comins; aged 85; No. 1M8 Gallia street, Portsmouth,'Ohio.
“Q. Were you acquainted with Captain N. W. Evans during his lifetime? ■ A. Yes, I have known him for 35 years; probably longer.
‘ ‘ Q. How close did you live -to him ? A. Next door but one for about the past eight years. We have always been friendly.
“Q. Did he come to your house; and if so, how frequently during that time? A. He came nearly every week or so.
“Q. What relation are you to Alice and Kate Comins? A. Their mother.
“Q. Did Captain Evans and your two daughters, Alice and Kate, have any business transactions together? A. Yes; we used to think that whatever Mr. Evans did was all right.
“Q. What were these business transactions? A. He would bring notes to them and sell them to them, and attend to collecting the interest and the notes.
‘ ‘ Q. Did the girls look after any of these notes that he sold them, or did Captain Evans ? . A. They let him have the care of them, always.
“Q. Do you know whether or not that he let them have a couple of notes given by Hester Ann Copeland and Arthur J. Copeland, dated August 3, 1911, for $500 each? A. I think I heard him talking about these notes, and he told them that they were on a farm and that they were as good as gold.
“Q. Was there anything said about who would look after these notes? A. He said he would look after them.
<£Q. I’ll ask you whether or not he did bring any interest here on the notes? A. I think he did.
“Q. How long were these business transactions about the notes between Captain Evans and the girls? How long back was he indorsing these notes, collecting the interest and looking after them for the girls? A. As much as eight or .ten years, probably more than that.
“Q. TIow near to the time of his death was he over here, talking about the Copeland notes? A. Not longer than three or four weeks before his death.
‘ ‘ Q. What did he say the last time he was over here, talking about the Copeland notes? A. H,e said they were on a farm, and that they were as good as gold, and I asked him who this Copeland was. He said, ‘He is a farmer, and as good as gold,’ and he says, ‘.I’ll attend to them and look after the notes.’
“Q. Did the girls ever look after any notes that Captain Evans ever indorsed to them? A. He did all the collecting.
“Q. Where would he give them the money? A. Here at the house, and some he sent by check through the mail.
‘ ‘ Q. Did the people that these notes are on, did the girls go and see them? A. I don’t think they did. We always had confidence, we never questioned. ■ Captain Evans looked after it.
“Q. You have said that they were dealing in notes with him fo.r the past eight or ten years. I’ll ask you that if during that entire time they held notes that he had sold them? A. Yes.
• “Q. Is it or is not a fact that he had practically entire charge of their money in this way? A. Nearly all of it.”

The Court of Common Pleas of Scioto County held that notice of dishonor was waived.

Sayre, J.; Walters, J., and Jones, J., concur.

Section 8214 provides that notice of dishonor may be waived expressly or by implication.

Waiver of demand and notice must be clearly shown. Second National Bank of Cleveland v. McGuire, 33 O. S., 295.

The necessity to give notice of dishonor is dispensed with by such conduct on the part of the indorser toward the holder of negotiable paper as is calculated to put a person of reasonable prudence off his guard or to induce him to omit to give such notice. Boyd v. Bank of Toledo, 32 O. S., 526.

It appears from the testimony that Nelson W. Evans', for several years, had been selling notes to Kate and Alice Comins and* attending to the collection of the principal and interest, and that he said he would look after these particular notes. However, it does not clearly appear, when he said he would look after the Copeland notes, whether it was before maturity or afterward, as the last conversation in which he said he would look after them was some time after the notes were due. It is not clear that Nelson W. Evans, before the time when demand and notice should have been given, agreed to look after the collection of these particular notes; but from the long course of similar transactions, in negotiating notes to Kate and Alice Comins and collecting the principal and interest, they clearly had a right to expect that he would undertake the collection of the Copeland notes. By such conduct, and without notice to the contrary, he did undertake to “look after the notes.” His promise to collect the notes is clearly implied from the situation of the parties, as shown by the evidence of Ann Comins. He thereby took upon himself the duty of collecting the notes, which included the duty to take the necessary steps required by law to make an indorser liable. He thereby relieved the holders from the duty to make demand and give notice of dishonor. It became his duty to do what the law required Kate and Alice Comins to do, that is, to make demand and give notice of dishonor. If he had made demand, as he was bound to do under his arrangement with them, he would have had notice of dishonor. If he did not receive such notice it was because he did not do his duty. So that neither he, nor his estate, could take advantage of his failure to do his duty. By taking upon himself the duty to collect the notes he clearly waived notice of dishonor. Torbert v. Montague (Cal.), 87 P., 1145; Bryant v. Wilcox, 49 Cal., 47.

The judgment will be affirmed.


text:
    INJURY FROM SUPPING ON A GREASED STREET RAILWAY RAIL.
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Mary Thompson.
    Decided, February 5, 1915.

      Negligence — By a Pedestrian at a Street Crossing — In Stepping on aCreasy Rail, Causing a Pall and Injuries.

    Where the street car rails on a curve at a street crossing had been greased with thick black grease which differed from the color of the street and could be plainly seen, and a young lady, familiar with the crossing and with the fact that the rails were sometimes greased, attempted to cross at a time when the street was clear and the grease could easily have been discovered, but did not look where she was stepping, and as a consequence slipped on the greasy rail and fell and was injured, she is not entitled to recover from the traction comppany, but judgment should be given for the company. Cincinnati Traction Co. v. Cramer, 12 C.C.(N.S.), 315, distinguished.

      Miller Outcall, for plaintiff in error.

      Spangeiiberg & Spangenberg and Thomas L. Miehie, contra.
    Swing, P. J.; Jones (E. IT.), J., and Jones (Oliver B.), J., concur.
   This cause is in this court on- error to the judgment of the Superior Court of Cincinnati, in which court said Mary Thompson recovered a judgment against the traction company for the sum of $2,034 on the 4th of December, 1913, for personal injuries caused by slipping and falling on the rails of the traction company at the northwest corner of Fifth street and Central avenue, in the city of Cincinnati. .

The allegations- of negligence charged in the petition are as follows:

“Plaintiff says that defendant wrongfully and negligently placed and caused to be placed, and allowed to remain, a large and unnecessary quantity of grease, oil and pitch upon its said south rail at the said street intersection, whereby it became and was then and there dangerous to the public using and crossing the said rail in this, to-wit: that the said rail was made slippery by the said large and -unnecessary accumulation of grease, oil and pitch which the defendant had placed and allowed to remain upon-its said south rail at the east crossing of the said Central avenue over the said Fifth avenue, whereby the plaintiff as she stepped upon the south rail then and there slipped and was caused to fall. ’ ’

There is no conflict in the testimony, and there was no evidence other than plaintiff’s evidence.

The evidence shows that the plaintiff below, in company with a friend, Miss Eleanor G-unlach, started across the street, as alleged in the petition, and plaintiff below was familiar with the crossing, having ferquently crossed the same; that at the time of, the crossing there were' no vehicles or ears on the street, and the street was perfectly clear. She was a woman of good sight, and in full possession of her mental faculties. She had frequently seen these railway tracks in the street, and was familiar with this curve and rail. She knew also that it was customary for the traction company to apply grease to the tracks at this curve. She testified:

“Q. You had noticed it (grease in the tracks) before? A. Many a time. Anybody could notice that grease.
”Q. You knew grease was slippery? A. Certainly.
“Q. You knew if you stepped upon grease you were likely to fall; that is true? A. Yes, sir.”

She testified that the grease was easily discernible and that it was very black and different in color from the rest of the street at the point where it was placed. She was asked this question:

“Q. The question is: why didn’t you look, on this occasion, when you came to that curve, that switch? A. I was crossing over on the crossing. I seen the road was clear. There was nothing coming, at all. I was right on that flagging, and there was nothing in front of me, and of course I put my foot right down there, and it went partly on the tracks and the other part on the flagging, and the grease slipped me; and that is how I fell. ' & & * # f
“Q. You say that you didn’t look? A. Not at that particular point.
‘1Q. So you knew it was likely there might be grease in the curve that morning? A. Yes, sir.”

Then again:

“A. If I knew it was there I could see it; knowing and looking I could not miss it.”
% #
“Q. If you had been looking to see, there would have been no difficulty in your stepping over it? A. No sir, there would not be if I had looked to see.”

The witness Eleanor Grunlach testified:

“A. We were not paying no attention just at the time on the track.”

She also testified that the grease was so black that it was different in color from the rest of the street. She further testified:

‘ ‘ Q. If it was on the street, if you looked you would have seen it? A. Yes, sir.”

There was no evidence which tended to show any negligence on the part of the traction company in greasing tracks at this point, unless it be found in the statement that there was too large an amount of grease placed on the track at this particular point. The witness testified that there was a quart or more, but whether this amount was in excess of what should have been placed there is not shown by the evidence. But whether it be so or not, it is not shown that the- excessive amount of grease placed upon the track was the cause of the injury.

The traction company at the close of the evidence moved the court to direct a verdict for the defendant company, which motion the court overruled, and afterwards entered judgment on the verdict.

The facts being undisputed, it became a question of law for the court,.provided these facts failed to show any negligence on the part of the traction company, or showed that the injury was caused by the negligence of the plaintiff as shown by her own testimony. We are of the opinion that the injury was caused by the negligence of the plaintiff herself in not using the ordinary care and prudence that persons are accustomed to use when crossing a street. It is clear that if she had looked she could have seen this grease upon the track, and could easily have avoided it. But she knew it was likely to be there, and she knew that if it was there and she stepped on it she was liable to slip. Knowing these facts, she paid no attention to it, and deliberately stepped upon the rail and received the injury. From these undisputed facts it seems clear that the plaintiff in error was not entitled to recover.

We have been referred to the case of Traction Co. v. Cramer, 12 C.C.(N.S.), 315, as a ease directly in point, and controlling upon this court in support of the contention of the plaintiff .below in this case. The ease is somewhat similar, and the syllabus as well as the opinion of the court would seem to bear out the contention of the plaintiff below in being decisive of the question raised here, as that case was decided by this court. But the facts in that ease as shown by the record, were different from the facts here, and the decision should go no further than its application to the facts of the ease. In that case the traction company had placed a large'quantity of grease outside of its tracks on the crossing, and the dust and dirt had covered that grease so as to obscure its presence and it was upon this that the plaintiff in that case stepped, and not upon the track of the company. Whereas in this case the plaintiff’s allegation was that the grease was placed upon the track of the company, and that she stepped upon the grease on the tracks of the company. The facts being different, we do not think that we are bound by the decision in that ease.

The judgment will be reversed, and judgment entered in this court for plaintiff in error.


text:
    ESTATE TAKEN BY WAY OF CONTINGENT REMAINDER.
    Circuit Court of Franklin County.
    Benjamin F. Lisle v. Mary A. Miller et al.
    Decided, April 2, 1912.

      Wills — Word “Heirs” Used in the Ordinary Sense — Estate Did Not Vest in Remainder Upon the Death of the Testator — -But Was Contingent Until the “Heirs” Were Ascertained by the Death of the Life Tenant.

    Under a will bequeathing to “my youngest son, H L, the farm that I now live on, to have and hold the same during life, then to go to his heirs,” a grantee of one of the heirs took no interest in the land capable of being asserted, where the death of his grantor occurred before the. estate took effect.

      M. B. Barnhart, for plaintiff in error.

      Ivor Hughes, W. 8. Page and L. W. Jones, contra.
    Allread, J.; Dustin, J., and Ferneding, J., concur.
   This action involves a construction of the following item of the will of Robert Lisle, deceased:

“Item IX. I will to my youngest son, Iiarvey Lisle, the farm that I now live on, to have and to hold the same during life, then to go to his heirs.”

The testator died in 1862. The son, Harvey, died August 10, 1910. Harvey had eight children, seven of whom survive him.

Robert.John, one of the sons, died June 26, 1910, after having conveyed his interest by deed to Mary A. Miller.

The controversy is between the grantee, Mary A. Miller, and the surviving children of Harvey over the interest of Robert John.-

The grantee contends that a vested interest in remainder was conferred by the will upon the children of Harvey, while the surviving children contend that the interest created in favor of the heirs was contingent and did not vest until the death of Harvey. The case of Linton v. Laycock, 33 O. S., 128, and Bonnell v. Evans, 26 O. S., 449, are cited in favor of the former, while Barr v. Denny, 79 O. S., 358, is cited to sustain the latter contention.

These cases are not exactly parallel to the ease at bar and are important only for the rules of construction announced.

The question is one of testamentary intention to be solved by a careful analysis of the terms employed in the light of established rules of construction.

The case of Bonnell v. Evans holds that the term “heirs,” in view of the context, wa,s intended to signify children. In the case of Linton v. Laycock, the devise was expressly to the testator’s children then living or their heirs. The court there, in view of the context, construed the devise to the children as vested at the time of the testator’s death, and that the fact that, they were to have the estate when the youngest child became of age related merely to the enjoyment. This construction was arrived at from a full consideration of the whole will.

These eases do not hold that the word “heirs” ex vi termini should be construed as meaning children or in any other than its ordinary and technical sense.

Upon a careful reading, and full consideration "of the will in controversy, we find nothing reflecting an intention to use the term "heirs” in any other than its ordinary sense.

This devise is, therefore, one falling strictly under the common law rule of Shelly’s case. This rule was adopted under the influence of the feudal system in order to vest the inheritance in someone capable of performing feudal service and the life estate was, therefore, enlarged into a fee simple.

In order to afford a rule more in harmony with testamentary intention, the rule in Shelly’s ease has been superseded by the following statute:

"Section 5968. When lands, tenements, or hereditaments are given by will, to any person for his life, and after his death to his heirs in fee, or by words in that effect, the conveyance shall be construed to vest an estate for life only, in such first taker, and a remainder in fee simple in his heirs.”

Under this statute the term "heirs” is no longer regarded in cases falling within its provisions as one of limitation but becomes one of purchase. The "heirs” take not from the first donee but as devisees under the will. The term "heirs” as employed in the will is therefore mere designatio personarum.

This brings ns to thé main and controlling question. Rid the estate devised to the "heirs” of Iiarvey vest an estate in remainder upon the death of the testator or was it contingent until the “heirs” were ascertained by Harvey’s death?

Two conflicting rules of construction are brought in. It is contended, upon the one hand, that the rule favoring vested interests should control in defining and applying the term "heirs” and, on the other hand, it is asserted that the doctrine of nemo est haeres vivenlis is applicable and that the remainder is, therefore, contingent.

We are unable to find that this exact question has been decided in this state.

In Massachusetts, under an early statute, it was announced in Bowers v. Porter, 4 Pick., 198, that a vested remainder was created in those’persons answering the description of heirs at the time of the testator’s death. This was followed by the opinion in Richardson v. Wheatland, 7 Metcalf, 169, holding that the heirs took by way of contingent remainder.

The direct question, arose under a statute of which ours is a copy in the case of Putnam v. Gleason, 99 Mass., 454, where it was held that the heirs took by way of contingent remainder. In the opinion it is said by Foster, J., that:

“Undoubtedly the law favors vested rather than contingent remainders; but not to the extent of disregarding the intent of the testator, or rejecting the natural import of the language he has used. ’ ’

The case of Putnam v. Gleason has become the settled law of Massachusetts. Putnam v. Story, 132 Mass., 205; Lavery v. Egan, 143 Mass., 389.

The Massachusetts rule of construction is adopted in: Sanborn v. Sanborn, 62 N. H., 631; Hunt v. Hall, 37 Maine, 365; Read v. Fogg, 680 Maine, 479; Williams v. Williams, 57 Tenn., 566.

In New York state (Moore v. Littel, 41 N. Y., 66) the rule is adopted that the heirs take a vested contingent remainder) Under this rule the devise opens up to admit after-born children and is defeated as to aiw interest by death before the estate takes effect in possession.

The construction adopted in Massachusetts seems to be in harmony with many of the expressions in the opinion in Barr v. Denny, and is supported, we think, by the weight of authority.

The grantee of Robert John Lisle in our opinion took, therefore, no interest under the will in controversy capable of being asserted in view of the death of his grantor before the estate took effect.

Upon examination of the record of the court of common pleas we find that there is no final judgment. The court overruled a demurrer to the answer and cross-petition of'Mary A. Miller. The case is, therefore, still pending in the court of common pleas. As the case stands this court has no jurisdiction to entertain a petition in error, and it must be dismissed. We have, however, expressed the opinion of this court upon the questions involved for the benefit of counsel and the court in the further progress of the case.


text:
    DETERMINATION AS TO NATURE OF THE ESTATE BEQUEATHED.
    Court of Appeals for Hamilton County.
    Edna Carol Tharp v. The United States Fidelity & Guaranty Co.
    Decided, March 26, 1913.

      Wills — Bequest Held to Have Been a Yested Rather than .a Contingent Remainder — Procedure where Recovery is Sought on the Bond of the Administrator.

    1. Under the will of T a life estate with power to consume was bequeathed to his widow, and at her death “should there be remaining of my estate and property a sum greater than $5,000, I give and bequeath the remainder thereof to my son W P T.”

      Held: That the son took a vested rather than a contingent remainder, and his daughter must therefore claim as his heir-at-law and subject to his debts.
    2. But even were it true that T took a, contingent remainder, his daughter could not maintain an action on his bond for the value the estate • alleged to have been appropriated to his o.wn use; but the proper procedure would be by exceptions to his account as filed in the probate court, or by petition to set aside the settlement which he made in the probate court as, administrator of the estate.

      C. W. Baker, for plaintiff in error.

      Harmon, Colston, Goldsmith Hoadly, contra.
    Jones, E. H., J.; Swing, P. J., and Jones, O. B., J., concur.
   Oliver P. Tharp, a resident of Hamilton township, Warren county, Ohio, died February 25, 1894. On March 9, 1894, as appears by a transcript of the docket entries in the matter of his estate, his will was admitted to probate. The will was as follows:

‘ ‘ In the name of the Benevolent Father of all.
“I, Oliver Ik Tharp, a Besident of Hamilton Township, iñ Warren County, State of Ohio, being of Full Age, and sound memory, do make and publish this, my last Will and Testament:
“Item 1st. It is my will that my Just Debts; and all lawful charges be paid out of my Estate.
“Item 2nd. All the remainder of my Estate, both Real and Personal, including my Real Estate in said Hamilton Township, and elsewhere, of which I may die seized, and all Bonds, Stocks, Securities, and Chattel Property of any and all descriptions whatsoever, which I may own at the time of my death, I give and devise to my beloved wife, Rachel S. Tharp, to be hers, and to be and remain under her sole control, so long as she shall live.
‘ ‘ Item 3d. Should the Chattel property which may remain after paying my debts as aforesaid, and the income from the Real Estate of which I may die seized, prove to be insufficient for my said wife’s maintenance in comfort then in that ease, I authorize and empower her to sell, by private sale, or in such manner, upon such terms of credit, or otherwise, as she may think proper, any part of, or all of my Real Estate, and Deed or Deeds, to purchaser or purchasers to execute, acknowledge, and deliver in fee simple, so that she may be enabled to live absolutely comfortable, and in accordance with her station in life.
‘ ‘ Item 4th. I hereby authorize and empower my said wife, to sell and convey in fee simple, at any time after my death, should she deem it expedient so to do, my Real Estate, or any part thereof, situate in said Hamilton Township; and I direct, that in the event of such sale, she invest the net proceeds thereof in some profitable manner, provided always that said proceeds are not necessary for her support.
“Item 5th. At the death of my said wife, I give and devise to my Grand-daughter, Edna C. Tharp, the sum of Five Thousand Dollars ($5,000); provided that so large an amount of my estate is found to be remaining at the death of my wife. If however there should not be such amount remaining, then and in that ease I give and bequeath unto the said Edna C. Tharp such amount as may be found (less than Five Thousand Dollars) remaining of my estate. I further direct that, should my said wife die before the said Edna arrives at the age of eighteen years, the said sum of Five Thousand Dollars, or fractional part thereof, be invested in some secure manner, and that the same remain so invested until the said Edna arrives at said age, when I desire that she receive into her own control the said sum, with the increase thereof.
‘ ‘ Item 6th. At the death of my said wife, should there be remaining of my estate and property, a sum greater than Five Thousand Dollars, I give and bequeath the remainder thereof to my son, Willis P. Tharp.
11 Item 7th. I do hereby nominate and appoint my said wife as executrix of this my last Will and Testament, desiring that she manage my estate in all things as she may conceive to be for the best interests of the same, and for her own interests, and I direct that she be not required to enter into Bond for the performance of her duties as such executrix, and I desire that the appraisement of my personal property be dispensed with, unless some reason to me not known shall render the same necessary. I desire that M. W. Conway of Hamilton County, Ohio, act as legal advisor for my executrix, should' she stand in need of legal advice in the execution of any of the several provisions of this, by last Will and Testament.
‘1 Item 8th. Whereas, I now own One Hundred Shares of Stock in the ‘Cincinnati Consolidated Street Rail Way Company, of Cincinnati, Ohio, which stock I consider to be worth, at least its full face value; Now therefore, should I continue to own the same at my death, and should the same not be consumed in the support of my said wife during her life time, then and in that case, I desire that the same be given to my grand daughter Edna C. Tharp, in lieu of ‘the sum of Five Thousand Dollars,’ as provided for in ‘Item 5th’ of this Last Will and Testament, upon the same condition as to age of said Edna, and death of my said wife, as are named in said ‘item.’
“Item 9th. Desiring to avoid any and all confusion or contention which may possibly arise after my death, in regard to the location of my Real Estate, as set forth herein in ‘Item 2d,’ I will state that I intend my Real Estate situate in Hamilton Township, Warren County, Ohio, and in Hamilton County, State of Ohio, and wherever else I maj^ own Real Estate at the time of my death, to come under the provisions of said ‘Item.’ 1 revoke all former Wills by me made.
“In testimony hereof, I have hereunto set my hand and seal, this 19th day of February in the year 1894.
• his
“Oliver P. Tharp, X (Seal).”
mark

Mrs. Tharp, the widow, declined to qualify as executrix of the will, and Willis P. Tharp, only child of the deceased, was on March 13, 1894, appointed administrator with the will annexed, and on the same day gave bond. He published due notice of his appointment, as required-by law, and thereafter acted as administrator until his resignation, which will be hereafter referred to. On February 8, 1898, tbe sureties on the former bond having been released, Willis P. Tharp gave a new bond in the sum of $25,000 with this defendant as surety thereon. Willis P. Tharp filed various accounts, all of which' were approved, and thereafter, on June 6, 1904, his resignation was filed and his final account was approved and his resignation was accepted. Willis P. Tharp died, and the plaintiff, his only child, brought this action to recover $25,000 against the United States Fidelity & Guaranty Company, surety on his bond. The cause was tried in February, .1912, and the facts heretofore set out appeared in evidence. In addition, the plaintiff offered to prove that Willis P. Tharp, as administrator, received from the sale of the property of his father’s estate about $25,000; that he appropriated this to his own use and accounted for it by filing in the Probate Court of Warren County accounts showing disbursements. for his own personal expenses of all sorts, which accounts were confirmed and approved by the court; that the amounts so appropriated were not expended for his mother but. for his own use ; that Willis P. Tharp died intestate September 5, 1908, and that Rachel S. Tharp, his mother, died in March, 1910; that Willis P. Tharp was the only child of Oliver P. Tharp and Rachel S. Tharp, and that the plaintiff was the only child of Willis P. Tharp, and that Willis P. Tharp left a widow who is now living.

The court excluded so much, of this testimony as tended to prove the appropriation of the proceeds of the estate by'Willis P. Tharp to his own use, and that he accounted for these proceeds by filing accounts showing the spending of it for his own personal purposes. Thereupon upon motion of the defendant the court directed a verdict for the defendant.

The main question presented by briefs and in oral argument is • whether Willis P. Tharp took a vested remainder in the estate of his father Oliver P. Tharp under the provisions of the latter’s will. The theory upon which this contention rests is tbat if the interest of Willis P. Tharp vested upon the death of his father, the plaintiff must claim as his heir at law and subject to his debts. If, on the other hand, her father took only a contingent remainder plaintiff may claim an interest as direct heir of testator, her father, the remainderman having died before any estate vested in him by virtue of the said will.

Another vital question occurring to the court, though not urged in argument, is as to the right of plaintiff to maintain this action in her individual capacity even though the second alternative of above proposition be correct.

We are of the opinion that the_ proper procedure would be by exceptions to the account or petition to set aside settlement of same in the Probate Court, and thus have the liability ascertained and claim presented to the surety by the legal representative of testator.

But, according to our view of the case such proceeding would avail nothing, for we hold that the claim made by the surety company that Willis Tharp took a vested remainder upon the death of his father is fully supported by the Ohio decisions cited, including the case of Johnson v. Johnson, 51 O. S., 456, cited in plaintiff’s brief. Also, Baxter v. Bowyer, 10 O. S., 490.

The estate of Willis Tharp would, therefore, be the recipient of any amount that might be adjudged owing by and recovered from the defendant surety, which sum, in turn, would constitute a valid claim of the surety company against his estate, so that it will be seen no benefit could be derived by this plaintiff and she could have no capacity to sue in this action, not being a party in interest.

For these reasons the judgment will be affirmed.


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    LIABILITY FOR. MONEY LOST IN TRANSIT.
    Court of Appeals of Richland County.
    The Adams Express Co. v. W. O. Starkey.
    Decided, January Term, 1915.

      Exemption from Liability — Contained in a Bill of Lading Issued by an Express Company — Binding on Shipper, When — Money Forwarded _ in Package as Merchandise and Lost in Transit — Contracts.
    A shipper by express of a package containing money, which fact was not disclosed at the time of shipment, is bound by a clause in the bill of lading which exempts the company from liability for the loss of money in transit not received and carried through its money department, notwithstanding his denial that he agreed to or had any knowledge of such a condition in the contract of shipment.

      McBride & Wolfe, for plaintiff in error.

      Wm. McE. Weldon, contra.
    Shields, J,; Powell, J., concurs; Voorhees, J., not sitting.
   This ease was originally commenced before a justice of the peace, and a default judgment was rendered against the defendant in favor of the plaintiff. The case was appealed to the court of common pleas, where a trial was had and judgment was rendered against the defendant.

It appeared by the petition of the plaintiff filed in the court below, that on December 20, 1910, a box containing certain goods consisting of books, dress goods, pocket knives, toys, including a twenty dollar gold piece and a five dollar gold piece placed in a nickle plated cup in said box, valued at fifty dollars, was delivered by the plaintiff to the defendant at its office in the city of Mansfield, Ohio, for transportation and delivery to one W. D. Starkey at Zionsville, Indiana, for which the plaintiff paid to the duly .authorized agent of said defendant company the sum of fifty-five cents. Said goods and money were not delivered by the defendant company to the said W. D. Starkey, but the said two pieces of gold coin and nickle plated cup and a certain book were found to have been taken out of said box upon its delivery to the said W. D. Starkey, to his damage in the sum of thirty-two dollars.

By answer the defendant admits that on the date named in said petition certain goods consisting of books, dress goods, nickle plated cup, pocket knives and toys, were delivered to it by the plaintiff at its office in the city of Mansfield, Ohio, for transportation to the party named and at the place named, but it denied all the other allegations of said petition. And further answering -it averred that said described goods were delivered to it under and by virtue of the terms of a written contract, which' was assented to by the plaintiff, and which said contract, among other things, contained the following:

“Said property is accepted as merchandise only, and the express company shall not be liable in any event for the loss of money, specie, bonds, coupons, or other negotiable paper which the company does not receive or carry except through its1 money department, provided for that purpose. ’ ’

That if any money was shipped by the plaintiff it was shipped in violation of the above stipulation in the contract without any knowledge on the part of the defendant that said package contained money, and that said money, if shipped, was not shipped through its money department provided for the purpose of shipping money.

Plaintiff by reply set up that when he delivered said package to the defendant’s agent, he asked whether said package could be registered to insure safe delivery thereof on account of the special value of its contents, and was told by said agent that the defendant did not have a department in which packages could be registered, but by placing a proper value on the shipment, the company would be responsible to plaintiff for the safe delivery thereof to the consignee, whereupon he placed a value of fifty dollars on said package, and accepted a receipt therefor,' quoted in the second defense of the defendant’s answer; that the plaintiff was ignorant of any such provision or stipulation or custom and never assented thereto, nor did he assent to releasing the defendant from liability for loss of the money contained in said package. lije further set up that the agent of the defendant, by his acts and declarations, and by his failure to call plaintiff’s attention to the defendant’s "money department” misled plaintiff into, thinking and believing that the defendant would be responsible for the safe delivery of said package to the consignee up to the full value of fifty dollars, regardless of the contents, and that plaintiff relying thereon delivered said package to the defendant for transportation as alleged in said petition.

With the issues thus made by the foregoing pleadings, the case was submitted to a jury resulting in a verdict for the plaintiff. On the overruling of a motion for a new trial judgment was entered on said verdict, and a petition in error with a bill of exceptions was filed in this court for a review of said judgment.

Numerotis errors are assigned in said petition in error, but the view we take of this case will not require us to notice all of them.

In the bill of lading (denominated a contract in the defendant’s answer) issued by the plaintiff in error to the defendant in error, upon the delivery of said box to it at its office in the city of Mansfield, it is averred in said answer that said box containing said property was received by the plaintiff in error to be transported and delivered to Zionsville, Indiana, subject to the said conditions contained in said bill of lading, that is:

"Said property is accepted as merchandise only, and the express company shall not be liable in any event for the loss of money, specie, bonds, coupons or other negotiable paper, which the company does- not receive or carry except through its money department provided for that purpose.”

In the reply it is admitted that such bill of lading or receipt was at said time issued by the plaintiff in error, and accepted by the defendant in error. Do these recitals constitute a contract between the said parties ? True, the bill of lading or receipt is signed by the plaintiff in error only, and not by the defendant in error, but it is held in the case of C., H. & D. R. R. Co. v. Berdan, 22 C. C., 326, that:

"A shipper is bound by the conditions of a bill of lading which he accepts at the time of shipping the goods, although he does not sign such bill of lading or agrees to it in writing, if signed by the railroad company and he accepts it.”

So too in the ease of Jackson v. Ely, Executor, 57 O. S., 459, Judge Bradbury in announcing the opinion of the court in that case, when commenting on the case of State v. Vance, 6 Ohio, 246, says:

‘ ‘ There, only the party that received the property signed the instrument which was in the form of a receipt, but nevertheless it was held to embody the terms of a contract binding on all parties. The fact that this party not signing takes into his possession, control and custody the instrument, establishes his assent to its terms. ’5

But as stated, while admitting the delivery and acceptance of this bill of lading or receipt, the defendant in error claimed that he was ignorant of the contents thereof and was misled by the representations of the agent of the .plaintiff in error into the belief that the plaintiff in error would be liable to the consignee of said box to the full value of fifty dollars, without regard to its contents. The fact that the defendant in error made inquiry of the defendant’s agent if the box could not be registered, or that he was led to believe from said agent’s representations that he could recover the full fifty dollars, regardless of its contents, if the plaintiff in error made default in making a safe delivery of the box, we regard as immaterial; but it is alleged that the defendant in error was not aware of the.contents of the bill of lading or receipt when he accepted it, and that he did not know that it contained the stipulation set out in said answer and heretofore referred to. It is not claimed that said bill of lading or receipt was .issued to him through any fraud or mistake, for neither' are pleaded, nor does it appear that the defendant in error even read said bill of lading or receipt at the time it was delivered to him and he accepted it without objection. Will the law thus permit a party to a written contract afterward to take advantage of his own neglect? We think not, nor do we think that a shipper delivering a package or parcel to a carrier with no accompanying representations that it contains articles of special value can recover for such articles of special value.

Judge Ranney in delivering the opinion in the ease of Wilson v. Hamilton, 4 O. S., 723, says:

“It is but tbe dictate of common honesty that he who delivers property to a carrier, knowing it requires peculiar care and attention to its safe transportation, should make known to him the necessity in order that the proper precaution may be used.”

Mere notification to the agent of the carrier that a package or parcel is one of importance is not sufficient to charge the carrier with knowledge of its value. The carrier is entitled to know if it be claimed that the contents are valuable. In Humphrey v. Berry, 184 U. S., 627, it is held:

“The principle which governs the compensation of carriers is that they are to be paid in proportion to the risk they assume. It is the duty of -every person sending goods by carrier to make use of no fraud or artifice to deceive him whereby his risk is increased or his care and diligence may lessen. ’ ’

Í

Again in American Express Company v. Perkins, 42 Ill., it is held that:

‘ ‘ In order to charge common carriers as insurers, they must be treated in good faith; and concealment, artifice or suppression of the truth will relieve them of this liability.”

"Without pursuing this subject further, we are of the opinion that the box in question was received and accepted by the plaintiff in error for transportation from Mansfield, Ohio, to Zions-ville, Indiana, at the time stated, upon the conditions1 contained in said bill of lading or receipt, that the acceptance of the same by the defendant in error constituted a binding contract between the plaintiff in error and the defendant in error, and that the latter is now estopped from denying that he had agreed to said conditions..

While we think that the defendant in error is concluded by the stipulation contained in said bill of lading or receipt from recovering for the value of the two gold pieces, we are likewise of the opinion that he is entitled to recover for the value of the book and silver cup lost in transit and described in the petition of the plaintiff below.

Further quoting from the case of C., H. & D. R. R. v. Berdan & Co., supra:

1 ‘ Common carrier may limit his common law liability by a fair contract, but he can not limit or avoid his liability for his own negligence.”

Here it is not denied that said book and silver cup fall within the classification of goods covered by the assumed risk, and the judgment of the court of common pleas will therefore be affirmed, upon condition that the defendant in error accept a remittitur of $25 and interest thereon from the day of 1914,' from said judgment, with the costs herein to be taxed against the plaintiff in error; or if the defendant in error shall refuse to accept said remittitur in five days from the rising o£ this court, the judgment of the court of common pleas will be reversed, and said case will be remanded to said court for further proceedings.


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    COLLISION BETWEEN STREET CAR. AND CARRIAGE.
    Court of Appeals for Hamilton County.
    Frank Greve v. The Cincinnati Traction Company.

    Decided, April 19, 1913.

      Negligence — Driver Crossing Street with His Vehicle — Injured in Collision with Electric Car — Error in Directing Verdict for the Traction Company.

    In an action by a driver who was thrown from his seat and injured in a collision between a traction car and his vehicle, it is error to - direct a verdict for the traction company, where the evidence tends to show that the vehicle could have been clearly seen by the motorman, crossing from one side of the street to the other, in time for him to have avoided the accident by stopping or checking the speed of his car.

      Thomas L. Michie, Harry H. Friedman and.Jacob S. Hermann, for plaintiff in error.

      Joseph Willy, contra.

      Jones (Oliver B.), J.; Swing, J., and Jones (E. EL), J., eoncnr.

      Judgment affirmed without opinion, Cincinnati Traction Co. v. Greve, 90 Ohio State, —.

   Plaintiff drove a two-horse carriage carrying four passengers west on Eighth street which has, in the center of the street, double car-tracks. Just after crossing Linn street he found the north side of the street in which he had been driving obstructed with a pile of gravel, granite blocks and street paving material, where the track was being repaired, so that it was necessary for him to cross over the tracks to the south side of the street in order to continue on his way. This he proceeded to do. "When he started to cross the tracks diagonally he saw a traction car coming in the opposite direction, going eastwardly on the south track and as he testified some two hundred feet away from him. Other witnesses fix the distance of the ear from the crossing when it commenced to cross the tracks at from one hundred and fifty to three hundred feet. All the witnesses agree that the car was running at a “pretty fast” rate of speed and that the speed of the car was not in any way slackened until it was very close to the carriage — within fifteen feet one witness testified. The carriage was struck by the car on or near the hind wheel, although one witness thought it was at its front part from the fact that the lamp was injured. The driver was thrown from his seat to the street and was severely injured, his leg being broken and his shoulder dislocated.

The evidence tends to show that the motorman of defendant’s car should have clearly seen the carriage upon the tracks, and that if he made proper effort to slacken the speed of his ear and have it under control he could have avoided striking the carriage.

At the conclusion of the evidence offered on behalf of plaintiff the trial judge instructed a verdict for defendant.

In Toledo St. Ry. Co. v. Westenhuber, 22 C. C., 67, which was a case of collision between a street ear and a vehicle crossing a track at the intersection of two streets, the court held:

“It is negligence in the motorman of an electric street car, when the car is from one hundred and fifty to two hundred feet from a street crossing and he sees a wagon about to cross the track, not to try to stop or slacken the speed of the car until almost at the crossing, when by so doing the collision which ensued might have been avoided.
“It is not negligence in the driver of a wagon to attempt to drive across a street car track ahead of an approaching electric car, when the car is so far away that, by the exercise of reasonable care it might be stopped before reaching the place of crossing. ’ ’

In Toledo, etc,, St. Ry. Co. v. Rohrer, 9 C. C. 702 (aff. 57 O. S., 667):

‘ ‘ This wagon was in plain sight of the motorman on the car. He came up to- this grade toward this bridge at a speed which, from his onw story, was so rapid that when he saw that the wagon was not going to get out of the track he could not stop the ear in time to avoid a collision. We think it is a fair question to submit to the jury, whether the railroad company through its motorman was negligent when he did not stop the car under these circumstances in time to avoid a collision with a vehicle in plain sight -in front of it.”

But counsel for defendant in error contend that these cases do not apply, because they fix the rule as to the right of persons to cross street car tracks at the intersection of streets and this accident occurred at least one hundred feet from the intersecting street.

The same court in Lake Shore Elec. Ry. Co. v. Majewski, 1 C.C.(N.S.), 305, discusses the rights of drivers not at street crossings on page 311 in its opinion:

“When they come upon the track of the company between streets, in other words, people driving vehicles along a street are not bound to keep away from the tracks of the street ear company as they are to keep away from the tracks of a steam railroad in the open country. They have a right to use the street, as well the part of the street where the tracks are as other parts from his own story, was so rapid that when he saw that the wagon of the street, * * * and as this woman did * * * to drive there ahead of the street car when the car was so far away that by the exercise of reasonable care she might suppose she had time to pass by such vehicles would not in our opinion be negligence. The street car company can not insist that the speed of its cars shall not be retarded by people driving in ahead of cars upon the streets, when in the use of the street the exigencies require them to drive upon the tracks, they may drive there and the street car company must retard the speed of the ear to allow them to use that part of the street as well as the part where the tracks are not laid. ’ ’

And the latest case on the subject by the Supreme Court, Steubenville, etc., Traction Co. v. Brandon, Admr., 87 O. S., 187, paragraph 3 of the syllabus is as follows:

‘ ‘ Where the motorman of a street car being operated on a public street in a much frequented part of a city discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing in front of such car, it is the motorman’s duty to use ordinary vigilance to stop or check the car in order to avoid a collision; and the fact that such driver may have omitted to look for the approach of the car will not, as a matter of law, defeat his right to recover for injury from a collision with such car, if the motorman has not used such vigilance. ’ ’

And in the opinion on page 195 Judge Spear uses the following language:

' ‘ It is possible that he did look and mistaking the speed of the. car thought he could safely cross," thus attempting to exercise an imdoubted right in a public street. If he did, it would be a question for the jury whether a man of ordinary prudence situated as he was then situated would have done as he did. * * * The driver of such a vehicle is not in the use of the street a trespasser nor a licensee, but one pursuing an undoubted right, and the question always is, did he in the pursuing of that right exercise ordinary care ? Nor is- he bound .to refrain from going upon the crossing merely because a street ear is in sight. If he reaches the crossing first he is entitled to cross, unless it should appear that the car is in such close proximity and traveling at such speed as to make it impracticable to check the same in order to permit him to cross- in safety. * * * It is not negligence in the driver of a vehicle to attempt to cross a street car track ahead of an approaching car so far away that by the exercise of reasonable vigilance on the part of the motorman it might be stopped or checked before reaching the crossing.
“But assuming that Brandon was- guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care after he saw the horse and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to exercise such care, such neglect would be negligence, and might properly be regarded as the proximate cause of the injury.
‘ ‘ Such a situation presents a case where different minds might reach opposite conclusions, and thus was a proper case for a jury under proper instructions.”

This ease was also where the accident was at a street crossing, but the principles laid down apply to the case at bar. In the opinion of this court, the court below erred in directing a verdict for defendant. The judgment below is reversed and the case remanded for new trial.


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    SURVIVAL OF CAUSE OF ACTION FOR. INJURIES.
    Court of Appeals for Belmont County.
    Andrew H. Sloan, Administrator, v. The Lorain Coal & Dock Co.
    Decided, December 11, 1914.

      Claim for Injuries to the Person — May he Prosecuted by an Administrator — Causes of Action Distinguished from Pending Actions— Section 11235.
    1. A cause of action in favor of a person injured by another’s negligence survives the death of the injured person by virtue of Section 11235, General Code, and may be maintained by the administrator for the benefit of the estate.
    2. The recovery in such case is limited to such loss of wages, pain and suffering, and the like, as the decedent himself could have recovered at the time of his death.

      J. H. Bees, for plaintiff.
    P. P. Lewis, contra.
    Metcalfe, J.; Pollock, J., and Spence, J., concur.
   This action is brought by the administrator of Everett Sloan, deceased, to recover damages for injuries to said Everett Sloan by reason of the alleged negligence of the defendant. The action is brought on behalf of the estate, and it is averred in the petition that said Everett Sloan did not leave surviving him any of the persons on whose behalf a recovery could be had under the wrongful death statute. A demurrer was sustained to the petition in the court of common pleas. The question here is, does such a cause of action survive the death of the injured person purely for the benefit of the estate by virtue of Section 11235, General Code.

In the ease of Ohio & Pennsylvania Coal Company v. Smith, Administrator, 53 O. S., 313, and Railway Company v. Van Alstine, Administrator, 77 O. S., 395, it is held that pending actions for such injuries survive the death of the plaintiff by virtue of Section 11397, General Code, but it is insisted that where the action had not been begun the cause of action would not survive.

Section 11235 provides:

“In addition to the causes which survive at common law, causes of action for mesne profits or injuries to the person or property, or for deceit or fraud, also shall survive; and the action may be brought notwithstanding the death of the person entitled or liable thereto.”

This section seems to us susceptible of but one construction. For injuries to the person the cause of action shall survive, notwithstanding the death of the person entitled or liable thereto. The statute speaks of “causes of action” which survive, not of pending actions, and we think the reasoning in the Van Alstine case, supra, supports the contention in this case.

The judgment of the court of common pleas in sustaining the demurrer to the petition is reversed.


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    LIABILITY OF CARRIER. FOR EXCESSIVE FREIGHT CHARGES DUE TO MISROUTING.
    Court of Appeals for Lawrence County.
    Chesapeake & Ohio Railway Company v. The W. G. Ward Lumber Company.
    Decided, December 5, 1913.

      Railways — Connecting Carrier the Agent of the Initial Carrier, When —Liability May Be Limited by a Carrier to Its Own Line, When — ■ Application of the Carmack Amendment Controlling Interstate Shipments.

    1. Unless controlled by legislation, the rule in Ohio is that a consignment beyond an initial carrier’s line is a through contract; the connecting carrier becomes the agent of the receiving carrier and the latter is liable for the defaults of the former in the carriage of goods.
    2. Subject to the same limitation, the initial carrier has the right to specially contract for a limitation of its liability to its own line; and a provision in the bill of lading, agreeing to carry to destination, if on its own road, otherwise to deliver to another carrier on the route to said destination, exempts it from damages occurring on a connecting line.
    3. The Carmack amendment of June 29, 1906, of Section 20 in the act of Congress regulating interstate commerce, controls contracts of interstate shipments. Under it the reception of freight for transportation from one state to another imposes liability on the initial carrier for the whole route; and the contract becomes one for through carriage.
    4. The liability imposed by said admendment for “loss, damage, or injury to property” caused by any carrier includes any damage by reason of excessive freight charges caused by misrouting by a connecting carrier.

      Henry Bcmnon, for plaintiff in error.

      Johnson & Jones, contra.
    Jones (Thomas A.), J.; Walters, J., and'Sayre, J., concur.
   Suit was brought by the W. G. Ward Lumber Company, the consignor, in the court of common pleas, against the Chesapeake & Ohio Railway Company, as the initial carrier of a ear of lumber, which was consigned to it at Garrison, Kentucky, to. be shipped over the Chesapeake & Ohio and connecting lines to Kemptville, Ontario. The "Ward Lumber Company had sold this lumber to the Canadian Pacific Railway. For convenience of billing it had billed it to Kemptville, Ontario, but routed it in care of the Canadian Pacific Railway at Detroit. The initial carrier took the car to Cincinnati, the terminus of its own line, and there delivered it, with shipper’s instructions, to the Cincinnati Northern, a connecting carrier, to be shipped to its destination. The connecting carrier omitted the notation upon its way-bill that it received from its initial carrier and misrouted the car of lumber so that it reached St. Thomas, Ontario, a point which was between its origin and destination, but which was upon the line of the Canadian Pacific Railway. The original bill of lading contract between the shipper and the Chesapeake & Ohio Railway contained a notation in ink consigning the ear to the “Canadian Pacific Ry. Co., c/o A. Fronhoefer, Kemptville Jet., Ont., c/o C. P. Ry. at Detroit.” The way-bill of the initial carriier contained those notations with the additional notation: “Via Cn., M C. & C. P. R. at Detroit.” The Cincinnati Northern Railway, the connecting carrier, omitted from its own way-bill the notation: “Via Cn., M. C. & C. P. R. at Detroit. ’ ’

The original bill of lading had the following stipulation printed therein:

“The property described below in apparent good order * * * which said company agrees to carry to the said destination, if on its road, otherwise to deliver to another carrier on the route to said destination.”

It is also agreed in the printed form that every service to be performed under the bill of lading “shall be subject to all the conditions, whether printed or written, herein contained.”

One of the conditions printed and endorsed on the back of the bill of lading was :

“No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said property is ready for delivery to the next carrier or to consignee. ’ ’

It appears from this record that the consignor, the lumber company, had not only .sold the ear of lumber to the Canadian Pacific Railway Company, but in order to avoid the additional freight had noted it on the bill of lading in care of the Canadian Pacific Railway Company at Detroit. By the misrouting of the car to St. Thomas, Ontario, a larger freight was super-added, which the Chesapeake & Ohio Railway Company collected, amounting to the sum of $96.33, the rate from Garrison, Kentucky, to St. Thomas, Ontario. Had the car been properly 'routed to the Canadian Pacific’s care at Detroit the amount of the freight would have been $51. It was for the amount of the overcharge of $45.33 which the Cheapeake .& Ohio collected that this suit was brought by the consignor.

The foregoing facts are practically conceded in the case. The sole question arising from this state of the record is whether, under the facts, the Chesapeake & Ohio Railway Company, as the initial carrier, is liable for the misrouting of the ear of lumber by its connecting carrier and for the additional freight by it collected.

A large number of authorities, both text and judicial decisions, as bearing upon this question have been cited by counsel in this case.

The English rule upon this subject is, that where goods have been consigned by a shipper to a consignee beyond the terminus of the initial carrier the contract of affreightment is prima facie a through contract and the connecting carriers became agents of the initial carrier and their default becomes the default of the initial carrier.

The leading English ease upon this subject is found in Muschamp v. Lancaster & Preston Junction Ry. Co., 8 M. & W., 421. This case was decided in 1841.

The English rule has been followed by a minority of tthe American states, and we think it can be conceded that Ohio is Pound among the number of states aligning itself with the principle adopted by the English rule. That which is known, however, as the American rule is otherwise, and that is: That when a consignment has been made beyond the terminus of the initial carrier’s line, in the absence of any special contract to the contrary, the mere fact of the consignment beyond its terminus does not ipso facto make it a through contract, and the initial carrier becomes liable only for default upon its own line.

The latter is the rule adopted by the United States Supreme Court and by the courts of a majority of the states which have been called upon to pass upon the subject.

The English rule seems to have been applied, in principle, in the cases of B. & O. R. R. Co. v. Campbell, 36 Ohio St., 647, and Stevens v. L. S. & M. S. Ry. Co., 20 C. C., 41.

AAIhile the foregoing may be recognized as the general rule applying to bills of lading or contracts of affreightment between consignor and consignee when shipping over connecting lines, there is no court, so far as we have been able to ascertain, whether following the American or English rule, that has not recognized the contractual right of an initial carrier to specially contract for the carriage of goods to the termination of its own route.

This principle has been unequivocally adopted in the case of C. H. & D. Ry. Co. v. Pontius et al, 19 Ohio St., 221, in that case the bill of lading contained the provision that the goods were to be transported by the initial carrier "to its terminus, and there delivered to the agents of connecting steamboats, railroad companies, or forwarding lines.”

The Supreme Court held that this contract was not a through contract which would carry them to the city of New York, but was merely a contract to carry them to Dayton only, which was the terminus- of the initial carrier’s road. On page 237 of that case Welch, J., says:

"It was surely in the power of the parties, notwithstanding the destination of the goods, to make an express agreement that the company should only take them to Dayton. And had they undertaken to make such an agreement, they could hardly have embodied it in language more plain and direct than they have used. No case is shown, English or American, where an explicit contract like this has been held to be overruled or varied, by the simple fact that the goods were received with the knowledge that they were consigned to a more distant point than that specified in the contract.”

The right to limit its liability for carriage to its own terminus is also recognized by Judge Okey in Railroad Co. v. Campbell, supra, wherein he says:

‘ ‘ Of course the carrier selling such ticket may lawfully agree with the passenger- that it shall not be liable except for loss or damage occurring on its own road. ’ ’

In view of the authorities, therefore, we are of the opinion that when the initial carrier iu this ease contracted, by its bill of lading, and agreed ‘1 to carry to the said destination, if on its road, otherwise to deliver to another carrier on the route to said destination, ’ ’ it exempted itself from the general rule by special contractual provision, and that its liability ended at its terminus, Cincinnati, if it delivered the goods to its connecting carrier, together with the notation of shipping instructions on its bill of lading.

The record in this case shows that there was a notation on this bill of lading that this car was to be shipped in care of the Canadian Pacific Bailway Company at Detroit; it further shows that the initial carrier complied with its duty in delivering said car together with said shipping instructions, to its connecting carrier. It would seem, therefore, that in this case the Chesapeake & Ohio Bailway Company acted both in the capacity of carrier and forwarder. It was to carry the goods to its terminus at Cincinnati and there deliver the same to a connecting line.

A case analogous to this in prnciple, although applied conversely, is found in Little Miami R. R. Co. v. Washburn, 22 Ohio St., 324. The first proposition of the syllabus is:

“A common carrier who undertakes to transport goods over the whole or any part of his own route, and then to forward them to a designated destination beyond, is bound to transmit with their delivery to the carrier next en route, all special instructions received by him from the consignor; and in default thereof, in any material or substantive particular, to stand responsible fox’, and make good, the loss to which such negligence shall have contributed.”

Oux’ conclusion, therefore, upon the subject is that, by reason of this special provision entered into between the shipper and the Chesapeake & Ohio Railway Company, as the initial carrier, this was a contract to carx’y to its terminus only, and there deliver to its connecting carrier to be forwarded to destination.

This beixxg the case, upon the facts stated, the Chesapeake & Ohio Railway Company was entitled to judgment unless the special contract has been annulled by the adoption by Congress of the Carmack amendment to Section 20 of the Hepburn law (34 U. S. Stats, at Large, 595), which reads:

“That any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, daxxxage, or injury to such property caused by it or any common carrier, railroad, or transportation company to which such property xxxay be delivered or over whose line or lines such property may pass, -and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company for liability hereby imposed.”

Counsel for the railway company coxxcedes the fox’ce of the amendment only holds the initial carrier to such liability as may result from actual “loss, daxxxage, or injury to such property;” that, since the cause of action here was for excessive freight charges caused by the misrouting of its conxxecting carrier, the liability for such excessive chax’ges does not fall within the terms of the act; and that the initial carrier is not, therefore, chargeable with the dereliction of its connecting carrier.

Does the negligent act'here resulting in the excessive charge come within the intendment of the act?

It is the universal rule of statutory construction that the mischief to be remedied is the greatest subject for the court’s consideration when it comes to pass upon the interpretation of doubtful phrases.

What was the condition before its passage? What mischief was to be corrected, and what remedy did the legislative authority have in mind?

By the joint action of railways in the carriage of goods beyond the receiving carrier’s line, there had developed a uniformity of operation between the various connecting lines, prescribing, by a common arrangement for through rates, for continuity of transportation and for a single collection by one carrier of .the entire charges which were thereafter prorated among the several carriers engaged; at the same time a custom had also developed by which the initial carrier limited its liability to its own route, thus causing the shipper all of the inconvenience of locating the liability and thereafter seeking redress in a distant jurisdiction.

These and other considerations caused the action by Congress in its regulation of interstate shipments; its purpose was to stamp the contract between the shipper and the initial carrier as a through bill of lading in every case where the shipment was to be made to another state.

It would be futile to here revert to the reasons and purposes of Congress in adopting the Carmack amendment. These are found both in the speeches of the congressmen who advocated its passage and in the opinions of our highest federal judges in interpreting its scope and effect.

It has been held that the Carmack amendment, in all such cases of interstate shipments, has impressed upon the contract of shipment the character of a through contract and has converted every connecting carrier engaged therein as an agent of the initial carrier. The bill of lading, therefore, is a through contract of shipment, and the ordinary common-law liability arises from the negligent defaults of connecting carriers in cases of that kind.

The United States' Supreme Court seems to have taken this view of the scope and effect of the act.

In the case of The Atlantic Coast Line R. R. Co. v. Riverside Mills, 219 U. S., 186-198, Justice Lurton says:

‘1 Congress by the act here involved has declared, in substance, that the act of receiving property for transportation to a point in another state and beyond the line of the receiving carrier shall impose on such receiving carrier the obligation of through transportation with carrier liability throughout.”

And further on he says-:

“Reduced to the final result, the Congress has said that a receiving carrier, in spite of any stipulation to the contrary, shall be deemed, when it received property in one state to be transported to a point in another involving the use of a connecting carrier for some part of the way, to have adopted such other carrier as its agent, and to incur carrier liability throughout the entire route.” * * *

And the learned justice further on emphasizes- the fact that if. the carrier is obliged to use connecting carriers as agents, the receiving or initial carrier must use them as its agents and not as agents of the shippers.

The foregoing ease was later followed by the Supreme Court of the United States in the ease of Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S., 481, where the seventh proposition of the syllabus states:

“Under the Carmack amendment, wherever the carrier voluntarily accepts goods for shipment to a point on another line in another state, it is conclusively treated as having made a through contract, Atlantic Coast Line v. Riverside Mills, 219 U. S., 186; it thereby elects to treat its connecting carriers as its agents and the presumptions are that if goods are lost the loss results from the negligence of itself or of its agents. ’ ’

There may be some doubt as to whether the word “loss” in the act is related to the word “property,” since it is followed by a comma and by the conjunctive “ or. ” Counsel for the lumber company also insist that an excessive freight charge constitutes an indirect loss to the property, since, to the extent of the freight charge, the property is made less valuable.

Although the Carmack amendment was not involved it has been held that, in a contract for through shipment, an excessive freight charge by reason of misrouting, s-uch as was made in this case by the connecting carrier, was a liability imposed on the .initial carrier. Lord & Bushnell Co. v. Texas & N. O. R. R. Co., 155 Mo. App., 175; 134 S. W. Rep., 111.

In the ease of Missouri, K. & T. Ry. Co. v. Stark Grain Co., 103 Tex., 542, the Carmack amendment aforesaid was so construed as to hold the receiving carrier liable for delay in transportation only. In that ease there did not seem to be any liability asked for loss, damage or injury to the property shipped.

We therefore think and conclude that the bill of lading here is converted by the amendment into a through-carriage contract, and is impressed with the common-law obligations resulting therefrom; that the default of its connecting carrier in misrouting the lumber was the default of an agent of the defendant below. The defendant, therefore, is liable in this case.

The judgment of the lower court is affirmed without penalty and the cause remanded for execution.

Judgment affirmed.


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    EQUITABLE LIEN IN DONOR.
    Circuit Court of Cuyahoga County.
    John Hicks v. Elizabeth A. Bool et al.
    Decided, 1906.

      Donor of Beal Estate with Interest Beserved Has an Equitable Lien.

    Where one buys real estate and causes it to be deeded to another under a verbal agreement that the donee shall pay to the donor interest on his investment during his natural lifetime; Held: That the donor has an equitable lien upon the real estate to enforce payment of interest as agreed.
    Henry, J.; Winch, J., and Marvin, J., concur.
   That this suit should either have been brought by the one party or defended by the other is as absurd as it is deplorable. And our decision can not be construed as a vindication of either, inasmuch as it necessarily proceeds upon principles that have not been mooted before us.

The plaintiff and defendant are father and daughter. By agreement between them, the former bought a house and lot which he caused to be conveyed to the latter as a gift; she, however, to pay him interest on the purchase price during his life. Pie asserts that this obligation was to be secured by mortgage, and she denies it, or other contract lien upon the property. The payments have been regularly made and the daughter is able, willing and ready to continue them. This suit is brought merely to enforce the alleged agreement for a lien. There is also a prayer for general relief. ‘

The evidence fails to show an express agreement for such a lien, and the plaintiff having intended a gift to his daughter, no trust can result from-the mere fact of his having paid for property taken in her name. The gift was, however, subject to the condition subsequent, that the stipulated payments be made. Piad the title to the land emanated directly from the father, a vendor’s lien would no doubt have arisen. As the matter stands, the daughter accepted the land, with its attendant burden. That burden is a contract obligation, and therefore cognizable at law. But since it would be inequitable for her to retain the benefit dissociated from the burden, the latter must also be regarded in equity as a charge upon the former. This equitable lien, or charge, arises not from any express agreement therefor between the parties, but by mere implication of law as to their presumed intention. Yearly v. Long, 40 O. S., 27; Wright et al v. Franklin Bank et al, 59 O. S., 80, and that part of the opinion found on page 94.

The strength of this implication consists in the facts that the father, instead of making a direct gift of money to his daughter, saw fit to invest it in fixed property, which he caused to be conveyed to her, upon her assumption of the burden which he imposed therewith.

The plaintiff may therefore take a decree declaratory of the equitable charge herein defined. But inasmuch as his daughter’s sok default, either actual or threatened, consists in a simple denial of this abstract proposition of law, we think the plaintiff should pay the taxable costs of having his interest in the premises judicially determined.


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    SALE OF OUTSTANDING CONTRACTS.
    Circuit Court of Cuyahoga County.
    J. A. Spitzig v. The Osborn Engineering Co.

    Decided, December 22, 1905.

      Contracts — Sale of Contract Benefits Includes Right of Action on Account.

    A sale by an individual of all the tangible property of the business of that individual and all “outstanding contracts” transfers to the purchaser the right to bring an action on account of services performed by the individual.
    Henry, J.; Winch, J'., and Marvin, J., concur.

       Affirmed without opinion, Spitzig v. Osborn Engineering Co., 78 Ohio State, 397.

   This proceeding in error is brought to reverse a judgment for $1105.23 recovered by the Osborn Engineering Company against J. A. Spitzig in the Cuyahoga Court of Common Pleas', in an action upon an account for engineering services rendered by F. C. Osborn (the predecessor in business of the Osborn Engineering Co.), preliminary to the construction of the line of the Cleveland & Southeastern Railway Company, of which Spitzig was president.

It is claimed here, first, that the record fails to show that the plaintiff company ever acquired or was the owner of the account, and secondly, that the services in question were not rendered to Spitzig but to his company.

The sale of the assets and business of Osborn to the Osborn Engineering Company is shown by a certain writing purporting to transfer all the tangible property of the business and all ‘ ‘ outstanding contracts. ’ ’ This it is claimed is insufficient to transfer the account which is the foundation of this action. Osborn himself was, however, permitted to testify that the account was included in the transfer. Accounts of this sort in question belong to the class of contractual relations which the parties have not expressed but which the law implies, so that an action upon an account properly sounds in contract. We think this account was a contract, and it is clear that it was outstanding. If there is any ambiguity in the expression, Osborn’s testimony dispelled all doubt.

On the other question, the evidence shows that Spitzig was promoting the railroad project and had a paper corporation behind him, which, however, was never financed. Before the project fell through Spitzig furnished all the cash and'paid all the bills. There never was any cash in the corporate treasury. The correspondence between Osborn and Spitzig shows that Osborn knew of the existence of the corporation and recognized Spitzig’s official relationship thereto. But the evidence does not conclusively show that he dealt with the corporation rather than with Spitzig personally. We think it was peculiarly a question for the jury. The jury were properly directed to consider what holding out Spitzig liad made in the premises, and whether Osborn was thereby induced to believe and did believe that he was dealing with Spitzig personally. We find no error in the record and the judgment is affirmed.


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    COMPETENCY OF EVIDENCE IN MALICIOUS PROSECUTION PROCEEDINGS.
    Circuit Court of Cuyahoga County.
    William Schultz, a Minor, v. The Baltimore & Ohio Railroad Company.

    Decided, December 22, 1905.

      Evidence — Malicious Prosecution — Witness May Tell of Evidence in Magistrates Courts.

    In an action for malicious prosecution founded upon a criminal proceeding before a magistrate, it is competent to prove by any competent witness who was present that no evidence in support of the criminal charge was offered or given by defendant.

      Herman Preusser, lor plaintiff in error.

      Kline, Tolies & Goff, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

      Reversed, B. & O. Railway Co. v. Schultz, 76 Ohio State, 627.

   The action below was for malicious prosecution, and the court directed a verdict for defendant.

Schultz and one Joe Bierce were arrested for stealing, on warrants issued from the police court pursuant to an affidavit made by the railroad company’s detective, one Haley Wilson. When Schultz’s case ivas called for trial, a nolle prosequi was entered.

Thereupon he sued the railroad company for damages. On the trial of the latter cause he sought to show no evidence had been offered against him in police court. J. W. Sykora, Esq., a bystander in that court, and a witness for plaintiff in the court of common pleas, was asked on direct examination “What if any evidence was offered by Haley Wilson in police court to support the charges made against William Schultz?” and “who testified against Mr. Schultz?” The witness answered that “Wilson tried to testify what he heard from Joe Bierce, and he was stopped; no other evidence was, as to Schultz, then given or offered,” and tliat “no one testified against him.” On motion .of the defendant, these answers were taken from the jury’s consideration, upon the theory that Wilson had in fact testified and that the witness Sykora could not be heard to explain or detail what that testimony amounted to. We think this was error under the rule of John v. Bridgman, 27 Ohio State, 22. In that case the court said by Whitman, J., at pages 39 and 40:

“But it is supposed that it was error to allow the testimony of Eury, who said ‘there was nothing in the testimony of John John to implicate Elizabeth Bridgman;’ and of Thomas Bridgman, who said ‘that there was no testimony to implicate her that he heard of. ’ And it is claimed that this was testifying as to the effect of the evidence. We do hot so understand it. It was only a form of Avordsby Avhich the Avitnesses meant to shy that they heard no testimony, or that there was no testimony given, against Elizabeth Bridgman. But while Aye think that the testimony to prove that no evidence was given before the magistrate, in support of the charge by the defendant beloiv, clearly competent.” * * *

The similar testimony excluded, in the case before us, tended to prove want of probable cause and had some slight tendency also to show7 that the prosecution had been maliciously instigated. On this the plaintiff should haAm been alloAA7ed to go to the jury. For error in excluding this evidence and in directing a verdict for defendant, the judgment below is reversed and the cause remanded.


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    QUESTION AS TO ACCEPTANCE ONE FOR THE JURY.
    Circuit Court of Cuyahoga County.
    E. J. Aldefer v. The Cleveland Store Fixture Co.
    Decided, February 26, 1906.

      Sales — Trials—Question of Acceptance One for Jury.

    Upon an action for the purchase price of fixtures Avhere the defense is made that the fixtures were not according to specification and were not accepted, tlie question of acceptance or non-acceptance is one for the jury.

      Wilcox, Parsons Ai Burch, and White, Johnson, McCaslin & . Gannon, for plaintiff in error.

      Win. A. Hill, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error is prosecuted to reverse a .judgment -for $653.3d recovered at the September term of the common pleas court, by the Cleveland Store Fixture Company, for the unpaid balance alleged to be due on a written contract for the erection of certain fixtures in plaintiff in error’s store in Akron. The defense was that the fixtures did not conform with the contract in divers-particulars. A small portion of the goods furnished under the contract were actually shipped back, but the remainder were put in place by the company’s representative, on the plea, acquiesced in by Aldefer according to his testimony, that it was then raining and the goods could not be left out in the weather. Aldefer testifies that he then and thereafter protested that the fixtures were not in accordance with the contract, and that the company’s representative promised some changes which were never made. But the court below ruled that he had accepted the fixtures within the rule of The Bowman Lumber Co. v. Anderson et al, 70 Ohio St., 16, and charged the jury to disregard the claims of the defendant except as to certain minor matters.

We think the evidence on this subject should not have been excluded from the consideration of the jury, -and that under that evidence the question of acceptance was one for the jury.

For error in excluding evidence of the non-conformity of the fixtures furnished with the contract and for error in refusing the fifth request to charge, the judgment is reversed and the cause remanded.