text:
    DRAINS AND DITCHES.
    [Fairfield (5th) Circuit Court,
    September 18, 1908.]
    Craine, Taggart and Donahue, JJ.
    John Love v. Jacob Simon et al.
    1. Improvement of Ditch having Inadequate Outlet Enjoined.
    Neither county commissioners nor individuals have any right to collect water and by turning it into a ditch with an insufficient outlet cause an overflow of the lands of a lower owner, and an injunction will lie against a ditch improvement where the testimony warrants the conclusion that such a result will ensue.
    2. Joint County Ditch may be Made to Provide Adequate Outlet by Abutting County.
    While the improvement of a joint county ditch may not be effected by proceedings for the establishment of a ditch wholly within the county, yet a joint county ditch may be widened and deepened by the commis- ■ sioners of one of the abutting counties, where the purpose is to provide a more adequate outlet for streams emptying therein, and the cost of such an improvement may properly be assessed upon those most benefited thereby.
    [Syllabus by the court.]
    Heard on appeal.
    William Davidson, for plaintiff.
    C. A. Radcliffe and Moore & Moore, for defendant.
   TAGGART, J.

The case of John Love v. Jacob Simon et al. (the Board of County Commissioners of Fairfield County, Ohio) is a petition for injunction. Tbe plaintiff says he is tbe owner of certain property consisting of about 175 acres in Perry county, Ohio; that these premises lie partly on tbe eastern terminus of a proposed county ditch that was petitioned for by Maggie Miller and others. The further averment is made that the eastern terminus of this ditch is in an alleged joint county ditch which had been attempted to be established and located some seventeen years ago between the counties of Fairfield and Perry. The petition further avers that in consequence of the location and establishment of the proposed ditch and that if the same is established as proposed, more water in times of flood will be precipitated into the said joint county ditch than the same is capable of carrying away, there being several ditches uniting at or near the said eastern, terminus of said proposed ditch, and that in consequence of bringing the water to this point near the eastern terminus of the proposed ditch that the plaintiff’s said lands will be flooded to a greater extent, and he will be injured in con.sequence of the establishment of the proposed ditch. He further avers that the defendants, the county commissioners of Fairfield county, utterly regardless of their absolute want of jurisdiction to widen, deepen, straighten and clean out said joint county ditch, and the part thereof lying in Perry county, Ohio, and regardless of the rights of others owning land in Perry county, along the line of this ditch, threaten, and unless restrained, will proceed to construct said proposed county ditch and throw the surplus water upon the lands of this plaintiff, to his great damage and irreparable injury and against which this plaintiff has no adequate remedy at law.

In brief it is the claim of the plaintiff in this ease that some seventeen years ago the commissioners of Fairfield and Perry counties sought to establish a joint county ditch, extending from Perry county westward into a portion of Fairfield county; that near the western terminus of this ditch is the confluence or meeting of a county line ditch (the Love ditch as it is often designated) and another ditch extending from the south, there being three streams of water — water courses or ditches near the western terminus of this joint county ditch.

It is claimed that no notice was given to the commissioners of Perry county of the proposed action, and, secondly, that there is no adequate outlet furnished for the proposed improvement. This case was heard in the common pleas court and judgment entered therein, .and an appeal taken to this court.

Several things are clearly established by the testimony in this case:

1. The entire watershed or territory sought to be drained by this improvement is the same as has been drained into this joint county ditch for many years — certainly more than seventeen or eighteen years; that is to say, the testimony does not show that any new territory is brought in, but only the natural watershed which has always drained •eastward.

2. That during the years last past there has been drainage of this territory, that has not been under the provisions of the ditch law, but it has been by individual effort of the various landowners; it has not been entirely systematic; yet it has been so concurrent that much of the water of this watershed reached the point which would have been the outlet of the eastern terminus of the proposed ditch.

3. The attempted location of this joint county ditch some fifteen years ago, while it may not have been under the forms of law, and while it might be that it could not be put through under the present ruling ■of the Supreme Court, yet it was attempted and the order was made .by the joint board of county commissioners of the two counties, that the creek which was the head waters of Rushcreek was straightened, .and was intended to furnish an outlet for the confluence of the streams that were turned into it at its western terminus.

4. It does appear clearly from the testimony that the plaintiff’s lands before this attempted location of the joint county ditch were overflowed and overflowed to a very considerable extent.

5. It also appears that since that time the plaintiff’s lands have been overflowed.

Now this suit is brought to enjoin this proposed improvement on the ground principally that there is not sufficient outlet under the law ■as required to be found by the commissioners. And, secondly, that great and irreparable injury will be done to the plaintiff by the concentration of the waters at this point of the confluence of those streams and projecting of them down and over his land.

If the testimony in this case would establish either of these propositions, the court are unanimous in the opinion that it would have full right and authority to enjoin this improvement. It is a jurisdictional fact that must be determined by the commissioners that there is a sufficient outlet for a ditch before it can be established. And we take it, that it is a matter of law that neither the commissioners of a county nor individuals have a right by the industry of man to gather together waters and project them down on and over the lands of an owner lying “below a proposed improvement to his injury and damage, for that is pro tanto an appropriation of his land, and unless he receives compensation therefor it is violative of the constitution of the state.

The testimony in respect to the question of outlet is somewhat in conflict. If we look to the cross-sections of this stream and to the profile that is presented in this case, showing the bottom of this ditch and the grade of the bottom of this ditch, we might be constrained to hold that the commissioners could not under such a showing have established this ditch with a sufficient outlet. If we look to the testimony of the witnesses in the case, we have- a division of opinion in that respect; certain of the witnesses who are property owners and have an opinion concerning the action of the waters at the western terminus of' the joint county ditch say that this joint county ditch or Rushcreek is wholly inadequate to receive the waters from these three streams that are now meeting there, and if the new ditch is established, the outlet is wholly inadequate. ¥e have the commissioners of the county, who have investigated this matter and in whom is reposed the duty of determining whether a sufficient outlet is provided; they say that they found a sufficient outlet for the proposed ditch. The engineer in charge on whom the law puts the duty of laying out this improvement says that a sufficient outlet is provided. So that with this divided sentiment in respect of the improvement we cannot say that the preponderance of the evidence is with the plaintiff upon this proposition. There is as much testimony here and as satisfactory evidence that there is a proper and sufficient outlet, as that they have failed to provide -a sufficient outlet.

Now the next proposition — the equitable proposition that the plaintiff has' the right to be protected from an increased flow of water down and over his lands. We have the testimony in this case and we think the great weight of the testimony is that the drainage for years back has been better along the line of this watershed than it is now; we think that by the concurrent act of the landowners they had practically the same drainage as is sought to be given by this proposed improvement; we think by the drainage going on for years and acquiesced in by the plaintiff, that the plaintiff received the same amount of water formerly and the same watershed was projected upon his land as will be projected by the proposed improvement. The engineer says that no-greater amount of water will come down upon his lands than came before. This is also the opinion of the owners of the land affected by the-improvement.

While the improvement of the joint county ditch may not be made by proceedings to establish a ditch, yet it can certainly be improved. We do not understand the Supreme Court to say that a water course cannot be widened, straightened or deepened. If it can be widened and deepened to furnish a more adequate outlet for the benefit of those 'three streams, the cost of that improvement may be assessed upon those most benefited thereby, rather than that the court should use the drastic and extraordinary writ of injunction.

So that taking all these things into consideration, we think that the judgment in this case ought to be for the defendants, and ’that the petition of the plaintiff should be dismissed with costs; exceptions will be noted on behalf of plaintiff; motion for a new trial may be filed and overruled; the statutory time will be allowed for bill of exceptions; and twenty days will be allowed for findings of fact.

Donahue and Craine, JJ., concur.


source: Caselaw Access Project

author: WINCH, J.

license: Public Domain

text:
    ATTACHMENT AND GARNISHMENT.
    [Lucas (6th) Circuit Court,
    November, 1908.]
    Wildman, Wincb and Marvin, JJ.
    (Judges Marvin and Wincb of tbe eigbtb circuit, sitting in place of Judge» Parker and Kinkade.)
    D. N. Ostrander v. J. A. Norris.
    Personal Service by Registered Letteb of Written Demand on Debtor, Sufficient.
    Service by registered letter of written demand for tbe excess over and above 90 per cent of a debtor’s personal earnings, and acknowledgment of its delivery to defendant personally constitute a sufficient compliance with See. 6501 Rev. Stat.
    [Proof of this decision and syllabus has been submitted to Judge Wincb and corrected.]
    Error to Lucas common pleas court.
    C. O. Richey, for plaintiff in error.
    Taylor & Foster, for defendant in error.
   WINCH, J.

This was an action begun in a justice court, in which an order of attachment was issued garnisheeing 10 per cent of the defendant’s wages. We are advised by the bill of exceptions that before bringing-his action, the plaintiff, pursuant to Sec. 6501 Rev. Stat., made a demand in writing for the excess over and above 90 per cent of the personal earnings of the defendant by sending to him by registered letter-a proper demand'which was delivered to the defendant personally, the-defendant admitting that he received said demand four days before? the action was- begun.

The defendant filed a motion before the justice asking for a dissolution of the attachment and this motion being overruled, he appealed said motion, as provided in Sec. 6494 Rev. Stat. to the common pleas court, the principal case still pending before the justice.

On appeal in the common pleas court, the only reason assigned why the motion to discharge the attachment should be granted, was: the want of a sufficient written demand upon the defendant for 10 per cent of his wages.

The common pleas court granted this motion; why, we do not know. /

Without discussing the ruling announced in the ease of K. B. Co. v. Batie, 25 O. C. C. 482 (2 N. S. 358), that failure to make such demand is no ground for discharging an attachment, it sufficiently appears in this case that a demand was made and that the defendant had a reasonable time within which to comply with it, and so save costs.

What difference does it make, so long as the debtor personally receives the written demand, whether it is handed to him by the creditor, his attorney, the attorney’s clerk, a messenger boy, or a letter carrier? In this case it isn’t a question of proving that the debtor received the demand by any presumption arising from depositing a letter properly addressed and stamped in the post office; — the debtor admits he received the demand, and it is immaterial how he received it, so long as he had time to answer it before suit was brought.

The judgment is reversed because contrary to law and the facts, and the cause is remanded to the common pleas court-with instructions to overrule the motion to dissolve the attachment and transmit its judgment with the original papers to the justice of the peace as required by law.

Wildman and Marvin, JJ., concur.


author: SWING, J.

text:
    ASSESSMENTS.
    [Hamilton (1st) Circuit Court,
    May 23, 1908.]
    Swing, Giffen and Smith, JJ.
    Louis D. Johnson et al. v. Cincinnati.
    Notice oe ImpiioveiMekt took Life Tenant of Property Sold fob Taxes on Lav of Sale Held Valid.
    Ownership of property acquired at judicial sale does not vest in the purchaser until judicial confirmation thereof. Hence, service of notice of a proposed street improvement upon the owner of a life estate on the day the property was sold for taxes and two days before the sale was confirmed, is upon the proper person, within the meaning of Secs. 2268, 2304 (Lan. 3603, 3660; B. 1536-212,1536-268) Rev. Stat. and an assessment thereafter levied upon the property is not rendered invalid for want of sufficient notice thereof.
    , [Syllabus approved by the court.]
    Appeal from Hamilton court of insolvency.
    W. F. Chambers, for plaintiffs.
    C. F. Hornberger, for defendant.
   SWING, J.

This is an action in this court on appeal from the court of insolvency. The plaintiffs seek to enjoin the collection of an assessment for a street improvement on Linwood avenue. The ground relied on is that there was not a proper notice given. The property in question belonged to one Kennedy, who died testate, giving a life estate to Anna E. Kennedy and the remainder to Louis B. and Nellie Kennedy. The estate of Louis B. and Nellie Kennedy was purchased by the plaintiffs at judicial sale. The property became delinquent for taxes and was forfeited to the state. Thereupon the treasurer of the county brought an action to sell the property to pay the taxes, and said property under said proceedings was sold to the plaintiffs, by the sheriff on March 4, 1905. This sale was confirmed by the court on April 6, 1905. Two days prior to the confirmation of this sale, to wit, on April 4, 1905? the notice of the improvement, as required by the statute, was served on,Anna E. Kennedy, the life tenant.

Was this a good service under the statute? We think it was. Section 2268 (Lan. 3650; B. 1536-258) Rev. Stat., says that special assessments shall be payable by the tenant for life. Evidently the life tenant is the proper person to be served with the notice for the improvement required, for the life tenant is the one charged with its payment.

Section 2304 (Lan. 3603; B. 1536-212) Rev. Statv should be read in connection with Sec. 2268 (Lan. 3650; B. 1536-258) Rev. Stat., and requires service of notice on the life tenant. It is claimed, however, that when the sale was confirmed by the court and the sheriff’s deed made, that the title of the purchaser reverts to the time of the sale. This is a settled principle of the law and is thus stated in the syllabus in the ease of Jashenosky v. Volrath, 59 Ohio St. 540 [53 N. E. Rep. 46; 69 Am. St. Rep. 786]:

“A deed for real estate executed by an officer of a court pursuant to its 'order confirming a judicial sale previously made takes effect by relation on the day of the sale and vests in the purchaser the right to intermediate rents. ’ ’

The court say in its opinion, page 545:

“The equity of the rule is manifest because the purchaser cannot escape from the sale because he may think it disadvantageous to him, and he is required to pay interest from the day of sale on so much of the purchase price as he has not actually paid. That the right to the intermediate rents passes to the purchaser as one of the results of confirmation has been held in numerous cases.”

This is a fiction of the law founded in equity, and is for the protection of tbe purchaser, and goes no further. It does not mean that the purchaser was the owner before the confirmation of the sale.

In the opinion of the court in Reed v. Radigan, 42 Ohio St. 292, 294, the court say:

“It will be found upon an examination of the authorities; that in states where confirmation is required, the purchaser obtains no vested rights until after the sale is confirmed, and if the confirmation * * * is refused, the rights of the purchaser fall to the ground.”

It seems evident therefore that on April 4, 1905, the time when Anna E. Kennedy was served with the statutory notice, she was the ■owner of the life estate in the property; that she continued to be the owner until April 6, 1905, when the court confirmed the sale, and under the statute she was the proper person to serve and the assessment is not invalid for want of sufficient notice.

Giffen and Smith, JJ., concur.


author: PER CURIAM.

text:
    INJUNCTION — PHYSICIANS AND SURGEONS.
    [Erie (6th) Circuit Court,
    1908.]
    Parker, Wildman and Kinkade, JJ.
    Charles H. Merz v. H. L. Murchison.
    1. Unskillful Practice of Medicine not Enjoinable.
    The practice of medicine or surgery will not he enjoined merely because such practice is unskillful, patients may be injured rather than benefited thereby, or because the patients are deceived by false claims of skill.
    2. Medical REGISTRATION Act — Its Purpose.
    Section 4403c Rev. Stat, prescribing who may practice medicine, is designed to protect the public, and notwithstanding some incidental benefits result to those having the necessary qualifications to practice, by excluding others not qualified, it is not intended to confer special privileges upon licensed practitioners, for the protection of which as a property right they may invoke equitable aid to restrain unlawful competition by unlicensed practitioners.
    3. Equity Will not Prevent Unlawful Practice of Medicine.
    Injunction will not lie to prevent the practice of medicine by one having no legal certificate therefor, the only ground urged for such relief being the diminution of profits to one lawfully engaged in such practice, by means of the unlawful competition.
    [Syllabus approved by the court.]
    Appeal from Erie common pleas court.
    O. E. Harrison and King, Guerin & Ramsey, for plaintiff.

      Williams & Steinemann and John Ray, for defendant:
    Cited and commented on the following authorities: 1 High, Injunctions (4 ed.) Sees. 20, 769; Smith'v. Lockwood, 13 Barb. (N. Yf) '209; State v. Ottman, 6 Dec. 265 (4 N. P, 195) ; State v. Hohert, 11 Dec. 166 (8 N. P. 246); People v. District Court of Lake County, 26 Colo. '386 [58 Pac. Rep. 604; 46 L. R. A. 850].
   PER CURIAM.

The plaintiff, a physician and surgeon of the city of Sandusky,-brought this action in the court of common pleas to enjoin alleged unlawful and unfair competition by the defendant. The case is brought to this court, by appeal. It presents an important and interesting question not heretofore, so far as we are apprised, specifically considered or determined in any court of this state or other jurisdiction. The defendant was engaged in the practice of what he denominates, not medicine or surgery, for which he concedes that he had no license under the medical examination and registration law of Ohio, but the “chiropractic” adjustment of displaced spinal vertebrae, with the result, as claimed, of effecting remarkable and speedy cure of numerous if not all bodily ailments.

The evidence before us discloses that the defendant is under indictment for alleged violation of the statute referred to (Sec. 4403c Rev. "Stat.). With this matter, however, we are not concerned, but the fact that the acts of defendant may be such as are forbidden by this penal enactment, may have an incidental bearing on the question of our power as a court of equity to prevent them.

There appears to be no serious contention by counsel for plaintiff '•but that his claim to the equitable interposition of this court is based ’mainly, if not wholly, upon this statute. Without legal provisions for the examination and licensing of physicians and surgeons, one person would-be as free as another to practice these professions without interference from the courts. True, there are in the plaintiff’s petition aver-ments that the acts of defendant are fraudulent in intent as well as illegal under the statute, but little emphasis has been placed on this assertion in argument or support given to it by evidence. However unfounded may be defendant’s claims as to the merits of the “chiropractic” method ■ of removing the cause of disease, and with regard to this we express no •opinion, we are not convinced that he knows or believes such claims to be false. But were it otherwise, it is’not apparent that the position of the plaintiff from a legal or equitable standpoint would be greatly strength- • ened. A court will not interfere with the practice of medicine or surgery .by one person on the petition of another, merely because such practice is ■unskillful and patients may be injured rather than benefited thereby, nor because the patients are deceived by false claims of skill.

The plaintiff relies rather on what he earnestly urges is a property right to practice medicine and surgery conferred on him by his statutory license, and an interference with that property right by the unlawful competition of a person unlicensed.

Probably the statute rather qualifies rights heretofore existing than, confers new ones. It is not apparent that the law could stand the test of the constitutional requirement that laws shall be for the equal benefit, and protection of the people, if it had no object, purpose or effect other' than to confer special privileges upon certain people having certain qualifications to practice medicine, through excluding from such practice all others not so qualified. The constitutionality of the statute is based on the police powers of the legislature, and whatever benefit is derived from the statute by those engaged in the practice of "medicin'e and surgery is. only incidental. The circle of competition may be narrowed by excluding unlicensed competitors, but that is not the purpose of the law. Palmer v. Tingle, 55 Ohio St. 423, 440 [45 N. E. Rep. 313]; State v. Gardner, 58 Ohio St. 599 [51 N. E. Rep. 136; 41 L. R. A. 689; 65 Am. St. Rep. 785].

The statute, which is designed to protect the public, contains certain penal provisions enforcible in behalf of the public. Can a private individual invoke it in his own behalf and in a civil proceeding prevent the very acts which the statute makes criminal ?

We quote this language from an opinion by Lord Mansfield, 2 Burr. 803:

‘1 The rule is certain ‘ That where a statute creates a new offense, by prohibiting and making unlawful anything that was lawful before; and appoints a specific remedy against such new offense (not antecedently unlawful) by a particular sanction and particular method of proceeding, that particular method of proceeding must be pursued and no other. ’ ’ ’

This rule is followed and applied in Hancock Co. (Comrs.) v. Bank of Findlay, 32 Ohio St. 194, 200, 201, and asserted in other phraseology in State v. Dairy Co. 62 Ohio St. 123, 126 [56 N. E. Rep. 651].

We refer also to High, Injunctions (4 ed.) Secs. 20 and 769. In the latter section the author asserts that an injunction will be withheld against the perpetration of an act prohibited by public statute, the only ground urged for the relief being the diminution of the profits of a trade or business pursued by complainant in common with others.

While no reported case precisely like the one under our consideration has been cited to us, the courts of New York and Texas have passed upon conditions and contentions very analogous and have refused the relief here sought.

We refer to the cases of Smith v. Lockwood, 13 Barb. (N. Y.) 209; and York v. Yzaguairre, 71 S. W. Rep. 563 (Tex.).

The principles enunciated in those cases, so far as applicable to the case before us, we are disposed to adopt. We have found no others so1 pertinent to our inquiry.

It is the judgment of the court that plaintiff’s petition be dismissed.


author: HENRY, J.

text:
    ATTORNEY AND CLIENT — PLEADINGS—VERDICTS.
    [Richland (5th) Circuit Court,
    October 28, 1908.]
    Winch, Henry and Marvin, JJ.
    (Judges of eighth judicial circuit sitting in place of judges of fifth judicial circuit.)
    Douglass v. Downend et al.
    1. Complete Defense to Action eos Quantum Meeuit.
    In an action for a quantum meruit for professional services rendered by an attorney, it is a complete defense that the plaintiff agreed before entering upon the case that he would, if necessary, prosecute it to the court of last resort for a contingent fee of one-third of the amount of the judgment recovered, and that subsequently, after losing the case in the court below, he refused to prosecute it to the highest court unless paid l'or so doing, and thereupon he was dismissed from further participation in the case.
    2. JUDSMENT ON THE PLEADINGS PsOPER PRACTICE.
    A confession and avoidance is not inconsistent with the allegations of the petition, and where the reply denies nothing in the answer except what is “inconsistent with the petition,” a court may properly give judgment for the defendant on the pleadings. But where this was not done, and the casé was tried to a jury who found for the defendant and judgment was rendered on their verdict, it is immaterial whether or not improper evidence was admitted, or the jury was misdirected, or other errors intervened at the trial.
    [Proof of this decision and syllabus has been submitted to Judge Henry and corrected.]
    ERROR to tbe court of common pleas of Richland county.
    Douglass & Mengert and Reed & Beach, for plaintiff in error.
    S. L. Americas, for defendant in error.
   HENRY, J.

In this proceeding in error the parties stand in the relation in which they stood below. The petition below counts upon a quanhtm. ■meruit for professional services as attorney, rendered to defendant “in and about prosecuting a certain action in the court of common pleas of Richland county, Ohio, said cause being styled Ethel Downend, plaintiff v. The Board of Education of Madison Township, Richland County, ■Ohio, and performing other business as such attorney, in counselling and advising defendants in matters relating to said action.”

The defendants filed separate answers, which are, however, largely identical.

The fourth defense of Ethel Downend Wilson (for it appears that Ethel Downend had meanwhile married) alleges “that the plaintiff, A. A. Douglass, contracted and agreed with her, before entering into :said services, that he would prosecute her ease, entitled Ethel Downend v. The Board of Education of Madison Township, Richland County, Ohio, through the commón pleas, circuit and Supreme Courts of Ohio, if necessary; that his fees were to be 'contingent upon his 'successfully prosecuting the case to judgment and execution; that he was to receive one-third of the amount of the judgment if he won the «ase; and he was to receive no compensation whatsoever if he lost the •case. The said A. A. Douglass tried the case in the common pleas ■court and lost the case. * * * The said A. A. Douglass after he had lost said case in the court of common pleas, absolutely refused to prosecute said case any further than the circuit court, unless this answering defendant would pay him for so doing. Whereupon, and shortly thereafter, he was dismissed by this answering defendant from further participation in the prosecution of said case, for the following reasons, namely: * * * ,

“6. Because he refused to comply with his contract and agreement made with this answering defendant for the prosecution of said ■case. ’ ’

The reply is as follows:

“Now comes the plaintiff and for reply to the separate answer ■of Jennie Downend and the separate answer of Ethel Downend Wilson, ■says that he denies each and every allegation in said separate answers contained inconsistent with his petition herein, and having fully replied prays as in his petition.”

We think that the defense embodied in the quotation above made from the answer is a complete defense by way of confession and avoidance to the cause of action stated in plaintiff’s petition. Being a confession and avoidance, it is not inconsistent with the allegations of the petition.

The reply denies nothing in the answer .except what is “incon■sistent with the petition. ’ ’ On this state of the pleadings it would have been proper for the court below to render judgment thereon. The •court, however, tried the case out to a jury, which found for the defendants below, and judgment was rendered accordingly. In the view we take of the matter, it is wholly immaterial whether improper •evidence was admitted, whether the jury were misdirected, or whether any other error intervened during the trial, for, as .has already been stated, judgment against the plaintiff might well have been rendered upon the pleadings, and the judgment below is therefore affirmed.

Winch and Marvin, JJL, concur.


text:
    AFFIDAVITS — CONDITIONAL SALES — CRIMINAL LAW.
    [Hamilton (1st) Circuit Court,
    November, 1907.]
    Swing, Giffen and Smith, JJ.
    Jacob Tennenbaum v. State.
    Allegation that Transaction is Conditional Sale Essential to Charge Offense of Retaking Goods Sold on Installments.
    In the absence of an allegation that the transaction was a conditional sale as defined by Sec. 1 of act 98 O. L. 115 (Sec. 4155-2 Rev. Stat.; Lan. 6849), a demurrer will lie to an affidavit charging the seller with retaking goods which had been sold on installments and on which the amount paid exceeded 25 per cent of the contract price for sai'd goods.
    [Syllabus approved by the court.]
    T. H. Darby and L. S. Miller, for plaintiff in error.
    B. S. Oppenheimer, for defendant in error:
    Cited and commented upon the following authorities: Mull v. Typewriter Go. 14 Dec. 255; Wild v. State, 46 Ohio St. 450 [21 N. E. Rep. 643]; Sanders v. Keber, 28 Ohio St. 630; Gall v. Seymour, 40 Ohio St. 670; Lewis’ Sutherland, Stat. Constr. (2 ed.) Sec. 363, 370; Bishop, Stat. Crimes (2 ed.) Sec. 93, 200; Endlich, Interp. of Stat. Sec. 138; Manhattan Go. v. Kaldenberg, 165 N. Y. 1 [58 N. E. Rep. 790]; Eastman v. State, 6 Dec. 296 (4 N. P. 163); Barker v. State, 69 Ohio St. 68, 74 [68 N. E. Rep. 575]; United States v. Hartwell, 73 U. S. 385 [18 L. Ed. 830]; State v. Brown, 7 Ore. 187; Conrad v. State, 75 Ohio St. 52 [78 N. E. Rep. 957; 6 L. R. A. (N. S.) 1154]; Cavanaugh v. Bloom, 10 Dec. 222 (8 N. P. 6) ; Sun Fire Office v. Clark, 53 Ohio St. 414 [42 N. E. Rep. 248; 38 L. R. A. 562]; Clark v. Irvin, 9 Ohio 131;
      Tufts v. Haynie, 2 Circ. Dec. 668 (4 E. 494); Chicago Cottage Organ Co. v. Biggs, 12 Circ. Dec. 497 (22 E. 392) ; Krug' v. Cash Register Co. 13 Dec. 735; Williams v. West, 2 Ohio St. 83; Frank v. Jenkins, 22 Ohio St. 597; National Cash Reg. Co. v. Carey, 14 Dec. 302; Speyer v. Baker, 59 Ohio St. 11 [51 N. E. Eep. 442] ; Susman v. Whyard, 149 N. Y. 127 [43 N. E. Eep. 413]; Singer Mfg. Co. v. Smith, 40 S. C. 529 [19 S. E.. Eep. 137-, 42 Am. St. Eep. 897]; Perkins v. Bank, 43 S. C. 39 [20 S. E. Eep. 759]; Tischer v. Seely, 12 Circ. Dec. 750; Remington ,v. Press Assn. 7 Circ. Dec. 540 [13 E. 542]; Goodman v. Manning, 9 Dec. 373' (5 N. P. 94); National Cash Reg. Co. v. Born, 5 Dec. 99 (31 Bull. 350); Caldwell v. Manufacturing Co. 4 Circ. Dec. 680 (7 E. 460), affirmed, no report, Singer Mfg. Co. v. Caldwell, 55 Ohio St. 638; Jeffries v. Draper, 5 Dec. 160 (7 N. P. 386) ; Weil v. State, 46 Ohio St. 450 [21 N. E. Eep. 643]; Kubach v. State, 14 Dee. 726, affirmed, Kubach v. State, 25 O. C. C. 488; 22 Cyc. 352 ■ People v. Platt, 67 CaL 21 [7 Pac. Eep. 1].
   SWING, J.

Jacob Tennenbaum was tried, convicted and sentenced in the police court of the city of Cincinnati, on a warrant and affidavit containing the following charge:

“That one Jacob Tennenbaum, on or about the second day of April, 1907, at the city and county aforesaid, did unlawfully and knowingly take possession by writ of replevin of certain furniture and household goods, theretofore, to wit, on the twenty-sixth day of August, 1905, sold by said Jacob Tennenbaum to said affiant to be paid for in installments, and then and there in the possession of said affiant, without then and there tendering or refunding to said affiant any part of the money paid by said affiant to said Jacob Tennenbaum, the amount so paid having exceeded twenty-five per centum of the contract price of said property.”

We are of the opinion that no offense is charged in this affidavit under our statute. There is no allegation in it that it was a conditional sale, as defined by Sec. 1 of act 98 O. L. 115 (Sec. 4155-2 Eev, Stat.; Lan. 6849). A conditional sale as therein defined is one where the title remains in the vendor until the purchase price is paid.

Section 4155-3 Eev. Stat. provides that property so sold, that is conditionally, shall not be retaken except upon the repayment of a certain amount of the purchase price; and Sec. 4155-4 Eev. Stat. provides that any one violating this provision shall upon conviction be deemed guilty of a misdemeanor.

There being no offense charged, the demurrer of the defendant to the affidavit should have been sustained. The offense defined by the •statute must, in substance at least, be charged in the affidavit, and •there is no charge here.

Judgment reversed.

Giffen and Smith, JJ., concur.


author: SMITH, J.

text:
    GIFTS.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    Charles W. Galbraith v. Mary L. Sutton et al.
    ■Essential Elements to Consummate Gtet Causa Moetis.
    A delivery of bonds promised by the donor in anticipation of death within a year, possession taken by the donee, death of the donor without recovering from the sickness and without revocation thereof, constitute all the elements necessary to consummate a gift causa mortis.

    [Syllabus approved by the court.]
    Error to Hamilton common pleas court.
    David Davis and J. Q. Martin, for plaintiff in error.
    G. S. Hawke, for defendant in error:
    Cited and commented upon the following authorities: Flanders v. Blandy, 45 Ohio St. 108 [12 N. E. Rep. 321] ; Volley v. Hicks, 58 Ohio St. 218 [50 N. E. Rep. 809; 41 L. R. A. 858]; Grymes v. Hone, 49 N. Y. 17 [10 Am. Rep. 313]; Williams v. Guile, 117 N. Y. 343 [22 N. E. Rep. 1071; 6 L. R. A. 366]; Thorton, Gifts & Advancements 37; Emery v. ■Clough, 63 N. H. 552 [4 Atl. Rep. 796; 56 Am. Rep. 543] ; Waite v. Grubbe, 43. Ore. 406 [73 Pac. Rep. 206; 99 Am. St. Rep. 764]; 14 Am, & Eng. Ene. Law (2 ed.) 1052.
   SMITH, J.

' “A gift causa mortis is ja gift of personal property made in the immediate apprehension of death, subject to the conditions, expressed or implied, that if the donor should not die as expected, or if the donee should die first, or if the donor should revoke the gift before death, the gift shall be void.” 14 Am. & Eng. Enc. Law (2 ed.) 1052. '

We think the evidence in this case shows that the gift to defendant in error as claimed by ber was a gift causa mortis from Elizabeth L. Galbraith, and particularly when the donor used this language:

“Oh Mary, I am sick, I'"am very sick. I do not think-I am going to-live very long. I am going to make you a present.' I am going to give you some of my bonds,” and afterwards when the donor said:
“Mary, I am going to give you some of my bonds. I talked to you about it last fall. I did not do it. I will put it off no longer. The doctor tells me in all probability I will not live a year. I want you to have them. You have a right to them. You know where the money came from.”

The evidence shows that all the elements of a gift causa mortis were present in this case. It was made in expectation of death; the bonds were delivered, and the donee retained possession. There was no revocation of the gift and the donor subsequently died without recovering from the sickness mentioned by her.

The gift, therefore being legally consummated, the bonds to recover which this suit is brought, belonged to the defendant in error, Mary L. Sutton,.and not to the estate of Elizabeth L. Galbraith.

Judgment affirmed.

Swing and Qiffen, JJ., concur.


text:
    BURDEN OF PROOF — NEGLIGENCE—STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    1907.]
    Swing, Giffen and Smith, JJ.
    Cincinnati Traction Co. v. Louis Kroger.
    1. Driving along Street Car Track is «Negligence, when.
    Although it is not itself negligence to drive a wagon along a street railway track in the direction traveled hy the cars, it becomes such if the evidence shows that it was needless, and that the driver failed to keep a proper lookout when he knew a car was about due.
    [For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 266-427; 7 Cyc. Dig., “Street Railways,” §§ 534-548. — Ed.]
    2. Instructions should be Coneined to the Issues.
    Where the allegations in a petition do not warrant the application of a rule of law, it is error for the court to charge the jury upon the same.
    [For other cases in point, see 2 Cyc. Dig., “Charge to jury,” §§ 318-381. — Ed.]
    3. Charge as to Contributory Negligence.
    In a personal injury action it is error to charge without qualification that, “the burden of proving contributory negligence of plaintiff is upon the defendant.”
    [For other cases in point, see 6 Cyc. Dig., “Negligence,” §§ 762-781. — Ed.]

      EbroR to Hamilton common pleas court.
    G. P. Stimson, for plaintiff in error.
    J. R. Jordan and Geoffrey Goldsmith, for defendant in error..
   GIFFEN.J.

Although it is not in itself negligence to drive a wagon along a street railway track in the direction traveled by the cars, it becomes such if the evidence shows that it was needless, and that the driver failed to keep a proper lookout when he knew a car was about due.

The driver iñ this case, who was an employe of the plaintiff, testified that he had driven about three hundred feet at a slow trot without looking back, that there was no reason why he could not have driven on the left track or on the left side of the road, “only it ran much easier on the tracks than it did at the sides,” nor any reason why he could not have looked oftener for'an approaching car.

This raised a presumption of contributory negligence which was not removed by plaintiff’s testimony. The testimony of the defendant tended to prove that the wagon-was in the left track, and suddenly turned into the right track a moment before being struck by the car,, which makes the statement, which was undisputed by the plaintiff’s testimony, a disputed fact.

No motion was made at the conclusion of plaintiff’s evidence; hence’ this court cannot now say as matter of law that the plaintiff’s driver1 was guilty of contributory negligence.

There is no allegation in the petition of such negligence of the defendant as warrants the application of the rule of “last chance;” hence-the court erred in charging the jury upon this doctrine both in the-general charge and in special instruction number three. Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844].

The court erred also in charging the jury without qualification that, “The burden of proving contributory negligence on the part of' the plaintiff’s driver is upon the defendant.”

In answer to a question by the foreman of the jury after their retirement the court charged ps follows: ,

“A motorman who runs his car at an unusually fast rate of speed on a dark and rainy night under the circumstances of every particular-case is guilty of negligence; and if such negligence directly or proximately causes injuries, the traction company is liable.”

This was too broad and should have been confined to the circumstances of this particular ease, nor is it sound as a general proposition of law, for the rain and slippery track on a down grade or other cir•cumstance beyond the control of the motorman may have caused the unusual speed.

The trial judge might well have set the verdict aside because not .sustained by sufficient evidence, but this is not so manifest as to require this court to reverse the judgment.

For the errors above stated the judgment will be reversed and the •cause remanded for a new trial.

Swing and Smith, JJ., concur.


author: ■GIFFEN, J.

text:
    CORPORATIONS — INSURANCE.
    [Hamilton (1st) Circuit Court,
    November, 1908.]
    Swing, Giffen and Smith, JJ.

      Security Mutual Life Ins. Co. v. J. M. Schott & Sons Co.
    ■ Cooperage Corporation Cannot Insure its Directors.
    A company incorporated for the purpose of manufacturing cooperage, cannot, through its secretary and manager, without the assent of' its hoard of directors, incur obligations for the purpose of insuring its directors, such action being foreign to its incorporation and the corporation leaving no-insurable interest in its directors.
    ERROR to Hamilton common pleas court.
    Herron, Gatch, Herron & James, for plaintiff in error.
    John J. Gasser, for J. M. Schott & Sons Co..
    Renner & Renner, for the Brighton German Bank.
    Rogers Wright, for A. Wolfsohn.
    Smith, Simonton & Hawke, for C. B. Smith, trustee.

       Affirming Schott & Sons Co. v. Insurance Co. 19 Dec. 249.

   ■GIFFEN, J.

The defendant in error, the J. M. Schott & Sons Co., was incorporated for the purpose of manufacturing cooperage, and unless the promissory note in suit was executed and delivered in furtherance of ■such purpose, either directly or incidentally, is unauthorized and void.

The insurant under each of the five policies was not indebted to the company, and under no obligation to it other than as stockholder* •director or manager. The company was not investing surplus funds, but was incurring an obligation through its secretary and manager, without the assent of the board of directors, for the purpose of securing a policy of insurance for $5,000 on each of five directors, an object wholly foreign to its incorporation.

While it is true, as suggested by counsel, that each insurant might have taken out a policy, paid the premium, and made the. corporation the beneficiary, yet in this case the applicant incurs no liability, and it is expressly agreed that the corporation shall pay all premiums, and did execute and deliver its note for the first two annual premiums.

We think that the company had no insurable interest in its directors, and if it did that the secretary and manager was unauthorized to enter into the contract without the assent of the board of directors. Straus v. Insurance Co. 5 Ohio St. 59; Ryan v. Rothweiler, 50 Ohio St. 595 [35 N. E. Rep. 679]; Bradford Belting Co. v. Gibson, 68 Ohio St. 442 [67 N. E. Rep. 442].

Judgment affirmed.


author: GIFFEN, J.

text:
    MANDAMUS — SCHOOLS AND SCHOOL DISTRICTS.
    [Hamilton (1st) Circuit Court,
    February 5, 1907.]
    Jelke, Swing and Giffen, JJ.

      State ex rel. North Bend Vil. Sch. Dist. v. Mt. Nebo Spec. Sch. Dist. et al.
    1. When Township Boabd of Education max be Compelled to Make Appbopbiation bob Hiqh School.
    A township board of education may, under Sec. 4009-15 Rev. Stat. ■ which provides for the establishment and maintenance of joint township high schools, be compelled to appropriate its proportionate share of expense of the maintenance of such school from the tuition or contingent fund provided for by such section; but it cannot be compelled to make the appropriation from a levy made for á subsequent year.
    :2. Limit op School Levy.
    The levy, under Sec. 3959 Rev. Stat. for all school purposes, is limited to twelve mills, and if the estimate and certificate of the board of education is insufficient the remedy is by application to the county commissioners under Sec.'3969.
    [For other cases in point, see 7 Cyc. Dig., “Schools and School Districts,” i§§ 286-293. — Ed.]
    Mandamus.
    Louis A. Ireton, W. R. Collins, W. M. Schoenle and G. T. Poor, for plaintiff.
    H. J. Buntin, for defendants:
    Cited and commented upon the following authorities; Dye v. State, 73 Ohio St. 231 [75 N. E. Rep. 829]; State v. Board of Education, 12 ■Circ. Dec. 337 (21 R. 785) ; State v. Hamilton Go. (Comrs.) 20 Ohio ;St. 425; State v. Yeatman, 22 Ohio St. 546; State v. Cuyahoga Falls

      (Bd. of Bd.) 4 Dec. 329 (3 N. P. 236); Norman School'Dist. (Bd. of Ed.) v. Blodgett, 155 Ill. 441 [40 .N. E. Rep. 1025; 31 L. R. A. 70; 46:-Am. St. Rep. 348]; Cincinnati v. Seasongood, 46 Ohio St. 296 [21 N. E. Rep. 630]; Board of Education V. Board of Ed. 41 Ohio St. 680;. Monroe Tp. (Bd. of Ed.) v. Board of Ed. 46 Ohio St. 595 [22 N. E. Rep. 641]; State v. Powers, 38 Ohio St. 54; State v. Shearer, 46 Ohio-St. 275 [20 N. E. Rep. 335]; State v. Spellmire, 67 Ohio St. 77 [65 N.. E. Rep. 619]; Lehman v. McBride, 15 Ohio St. 573; State v. Constantine, 42 Ohio St. 437 [51 Am. Rep. 833]; State v. Kennon, 7 Ohio St. 547; Boot v. Board of Ed. 52 Ohio St. 589 [41 N. E. Rep. 135]; Bank v. Sines, 3 Ohio St. 1; Teazill v. State, 10 Circ. Dec. 794 (20 R. 646) ;. Williams v. Donough, 65 Ohio St. 499 [63 N. E. Rep. 84; 56 L. R. A. 766]; Coal Co. v. Bosser, 53 Ohio St. 12 [41 N. E. Rep. 263; 29 L. R. A. 386; 53 Am. St. Rep. 622] ; Hixson v. Burson, 54 Ohio St. 470 [43. N. E. Rep. 1000]; State v. Buckley, 60 Ohio St. 273 [54 N. E. Rep.. 272]; Bartlett v. State, 73 Ohio St. 58 [75 N. E. Rep. 939].

      Affirmed by Supreme Court, without report, May 28, 1907.

   GIFFEN, J.

We find no constitutional, nor other infirmity in Sec. 4009-15 Rev.. Stat., which provides that—

“The funds for the maintenance and support of such high school shall be provided by appropriations from the tuition or contingent-funds, or both, of each district, in proportion to the total valuation of property in the respective districts, the same to be placed in a separate-fund in the treasury of the board of education having control of the-school * * * but only for the purposes of maintaining said school.”

Hence it was the duty of the board of education of the defendant, school district, if it had sufficient funds in the treasury during the year-ending September, 1906, to appropriate from the tuition or contingent, funds, or both, its proportionate share for the maintenance of such, school; but it cannot be compelled to appropriate the same from funds derived from a levy made for a subsequent year, unless it can be done without impairing the general school fund or the efficiency of the common schools.

The levy for all school purposes is limited by See. 3959 Rev. Stat., to twelve mills on the dollar of valuation of taxable property of the district, and if the board of education failed to estimate and certify a sufficient amount within the limit, the remedy was an application to the county commissioners under Sec. 3969 Rev. Stat.

Upon the facts in this case, we think the relator not entitled to a writ of 'mandamus, and the petition will be dismissed.

Jelke and Swing, JJ., concur.


author: MARVIN, J.

text:
    ATTACHMENT — INSURANCE.
    [Cuyahoga (8th) Circuit Court,
    October 26, 1908.]
    Winch, Henry and Marvin, JJ.
    George M. Roosfeld, Admr. v. Bertha Glasgow et al. Bertha Glasgow v. George M. Roosfeld, Admr., et al.
    1. Anticipated Repudiation op Contract Ground for Attachment Against Nonresident.
    Attachment upon the ground of nonresidence under Sec. 5521 Rev. Stat., lies against the beneficiary of an insurance policy upon an allegation that the beneficiary has repudiated and refuses to carry out a contract to pay over to the estate of the insured the balance of the proceeds of such policy after paying a certain indebtedness of insured due the beneficiary together with advancements of premiums hy such beneficiary on such policy, and motion to dismiss the attachment, therefore, is properly-overruled.
    2.' Attachment Against Nonresident Assignee of Insurance Policy Properly Dismissed.
    The assignee of a policy of life insurance not being a party to a contract, between the insured and his beneficiary, as to the disposal of the proceeds thereof, an attachment against him upon the ground of nonresi-dence under Sec. 5521 Rev. Stat. is properly dismissed.
    [Proof of this decision and syllabus has been submitted to Judge Marvin and corrected.]
    Error to Cuyahoga common pleas court.
    Higley & Maurer, for Bertha Glasgow et al.
    C. W. Noble, for George M. Roosfeld et al.
   MARVIN, J.

Both of these cases grow out of proceedings upon motions to discharge an attachment made by the court of common pleas in a suit pending in that court, wherein George M. Roosfeld, as administrator of the estate of William McQueen Teetzel, deceased, brought suit against Bertha Glasgow and James V. Teetzel. The petition in the case alleges that a policy of insurance upon the life of William McQueen Teetzel in the State Life Insurance Company of Indiana, was taken out in the sum of $5,000; that the beneficiary named in the policy was the defendant, Bertha Glasgow, the sister of the insured; that a contract was made between the insured and his said sister by which it was agreed that this policy should be for the benefit of said Bertha only to the extent of an indebtedness of $850 owing by the insured to said Bertha, and evidenced by a promissory note, and also as security to her for whatever amount she might pay on premiums on said policy. The petition further says that Bertha paid the premiums on said policy in such an amount as that., together with the $850 indebtedness, the debt to her, in the aggregate, from the deceased is $1,400; that the contract between Bertha and the insured was that, except to the extent necessary to pay this indebtedness to her, the policy should be for the benefit of the estate of the insured; that upon his death she should collect the amount owing upon the policy, pay herself'what should then be due to her and pay the balance over to the representative of the estate of the insured. The petition avers that the insured is dead; but does not aver that the amount ■owing upon the policy has been paid, but says that, upon the facts, Bertha is indebted to the plaintiff in the sum of $3,600. The petition further avers that the defendant, Bertha Glasgow, has assigned said policy to James Y. Teetzel, her brother; that said assignment was without consideration and done simply for the purpose of convenience to said Bertha Glasgow, and that the said James Y. Teetzel has no interest whatever in said policy. The prayer of the petition is for judgment against the two defendants in the sum of $3,600.

On the day of the filing of the petition the plaintiff filed an affidavit, setting out substantially what is averred in the petition, and averring further that said Bertha has repudiated her said contract to pay the avails ■of this policy, after deducting the amount due to her on the promissory note and the premiums paid by her, and that she refuses to carry out the same. It further avers that each of said defendants is a nonresident of the state of Ohio: that the claim upon which the suit is brought is just and that he ought to recover thereon the sum of $3,600. It is further averred in the affidavit that the State Life Insurance Company of Indiana is indebted to said defendants in the sum of $5,000.

Upon the filing of this affidavit an order of attachment was issued against the two defendants, and garnishee process was issued and served upon an agent of the insurance company.

Each of the defendants, appearing for the purpose of the motion only, filed a motion, to dissolve this attachment, the court sustaining the motion of James Y. Teetzel and discharging the attachment as against him,-but overruling the motion of the defendant, Bertha, and sustaining ’the attachment as against her. Thereupon Bertha comes into this court seeking to reverse the judgment overruling her said motion, and the plaintiff comes into this court seeking the reversal of the judgment discharging the attachment as to James Y. Teetzel.

First: As to the attachment against Bertha. The ground of the attachment being nonresidence of the defendant, it must appear, under Sec. 5521 Rev. Stat., that the claim is for a debt or demand arising upon' contract, judgment or decree, or for causing death, or a personal injury by a negligent or wrongful act. It is urged here on behalf of Bertha that the claim made against her does not bring it within these provisions of the statute. Of course if it does, it is because it is upon contract. It is said, however, that if it is upon the contract set out in the affidavit and in the petition, that that contract only requires ’ payment to be made1 by her when she has recovered from the insurance company, but it is settled that a suit brought for the breach of a contract is a suit brought upon that contract. See Halbert v. Armstrong, 7 Circ. Dec. 705 (14 R. 296), where the suit was for a breach ,of a contract of marriage. Also Pennsylvania Co. v. Peoples, 31 Ohio St. 537, where the suit was based upon the contract of the railroad company to carry a passenger, and a breach was alleged in that defendant failed to carry the passenger in safety. But, it is said, there was no breach of the contract here, because nothing was to be paid by Bertha until she had recovered from the insurance company, and therefore, until she does so recover from the insurance company, she owes nothing to the plaintiff. It is held, however, in numerous cases that there may be an anticipatory breach by a renunciation of a party to a contract and an absolute refusal to be bound by it, and where that renunciation is complete the other party may bring suit, founded upon such renunciation. See Boehm v. Horst, 91 Fed. Rep. 345 [33 C. C. A. 550].

The second clause of the syllabus reads: “Where one party to a contract gives notice of his intention not to perform, the other is justified in treating such action as an anticipatory breach, and may sue for damages, without waiting for the time of performance to arrive, or making a tender of performance.”

Also, McCormick v. Basal, 46 Ia. 235, the first clause of the syllabus reads: 1 ‘ Where before the time of performance of a contract the promisor expressly renounces it, the promisee is authorized to treat it as broken,, and may maintain an action for the breach at once.”

Other authorities, to the same effect, are found in 9 Cyc., beginning' at page 635.

In view of the allegation of the affidavit that “said Bertha Glasgow has repudiated said contract and refuses to carry out the same,” we hold that the plaintiff had a right to begin the action; that it was an action upon contract, in the sense in which that word is used in the statute, and that with the other allegations of the affidavit, the plaintiff showed a proper case for the .allowance of the attachment, and that the action of the court in overruling the motion to discharge the same was right, and that judgment is affirmed.

As to the motion made by James Y. Teetzel, the court was clearly right in sustaining that motion and discharging the attachment. There was no contract between the plaintiff and James Y. Teetzel, and the ground of the attachment being the nonresidence of Teetzel, it is clear ■that the plaintiff was entitled to no attachment, as against him.

It was urged on the hearing that because of the failure of Teetzel ■to file the bond required by See. 5563b Rev. Stat., his case was not properly in this court. Since the result here must be that the judgment of the •court of common pleas is to stand, because if we dismiss the proceeding, it would be left to stand, and if we affirmed the judgment, it will stand, we affirm the judgment below without committing ourselves upon the ■question of whether bond should have been given by the plaintiff in error, mnder Sec. 5563b.

Winch and Henry, JJ., concur.


author: JELKE, J.,

text:
    CONTRACTS — CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    January 8, 1907.]
    Jelke, Swing and Giffen, JJ.

      John W. Herron, Admr. v. Geo. F. Stewart and W. T. S. Johnson.
    Contract ron Purchase on Employer’s Stock Payable out of Dividends not Lacking Mutuality or Consideration.
    A contract with, employes for the purchase of stock, of which the employer was to retain possession and apply part of the dividends payable thereon to the purchase price thereof, and giving the purchasers an option of making payments additional to the dividends, but containing no express promise to pay for the stock or time named within which it was to be performed, is not wanting in mutuality or consideration, and the law will cure’any uncertainty as to time by fixing a reasonable period within which to complete it.
    Error to Hamilton common pleas court.
    Jacob R. Stewart entered into a written agreement with George E. Stewart, W. T. S. Johnson and L. N. Gatch, whereby he agreed to sell, and they agreed to buy in equal proportions, 360 shares of corporate stock on certain terms and conditions which were in part:
    1. The purchase price of said stock shall be its par value of $100 per share.
    2. Said stock shall remain in the name of said J. R. Stewart until it is fully paid for as herein provided, etc.
    3. All dividends declared on said stock shall'be paid to said J. R. Stewart until it is paid in full. Enough of said dividends shall be retained by him to make 4 per cent on the balance of said purchase price unpaid at the time said dividends are respectively declared, and the balance thereof applied by him on said purchase price; and as soon as said stock is fully paid for, either through dividends or otherwise, it shall be delivered to said purchasers. In case the dividend declared any year shall be less than 4 per cent no interest shall run on said purchase price in excess of the dividend declared, and if none be declared there shall be no interest.
    4. Should said purchasers desire to make payments on said purchase price in addition to the dividends from time to time declared on said stock, they shall have the option of doing so.
    There was no express promise by the purchasers to pay for said stock, and no time named in the contract itself within which it was to be performed.
    John "W. Herron, as administrator of the estate of Jacob R. Stewart, brought suit in the probate court, alleging that the deceased died intestate, leaving as his sole heirs, next of kin and distributees, Carrie E. Stewart, his widow, George F. Stewart, Gertrude Stewart Titus and Mary L. Hazleton, his children; that intestate at the time of his death was in possession of 360 shares of capital stock in the Bradford Machine Tool Company, of the par value of $100 each, which stock stood in decedent’s name on’the company’s books, and the certificate representing the same came into possession of the administrators; the estate had been practically settled except as to said.stock; that George F. Stewart and W. T. S. Johnson claimed an interest in these shares under a contract entered into with them and Lewis N. Gatch by deceased, the alleged contract and certain endorsements thereon being set forth in the petition; that Gatch having assigned his interest in the shares to George F. Stewart and Johnson, was not made a party to the suit; that the widow and daughters had made demand on the administrator to disregard and disaffirm the contract and distribute the shares in question to the distributees of the estate, stating .also the reasons assigned by them for making such demand; and the administrator alleging ignorance of the true course he should adopt, prayed that the parties in interest be required to appear and answer, and for a decree determining their rights and the duties of the administrator in the premises.
    The younger Stewart and Johnson filed a joint answer, and Mrs. Stewart, the widow, and Mrs. Titus and Mrs. Hazleton, the daughters, filed separate answers, which practically admitted all the facts stated in the petition.
    The probate court held that the contract was voidable for uncertainty and indefiniteness, but on appeal to the common pleas it-was held to be valid.
    Herron, Gatch, Herron & James and J. W. Warrington, for plaintiffs in error.
    Maxwell & Ramsey, for defendants in error:
    Cited and commented upon the following authorities: 1 Beach, Mod. L. Cont. See. 57, 73, 889; Greenough v. Sm'ead, 3 Ohio St. 416; Lewis v. Tvpton, 10 Ohio St. 88 [75 Am. Dee. 498]; German Fire Ins. Go. v. Boost, 55 Ohio St. 581 [45 N. B. Rep. 1097; 36 L. R. A. 236;. 60 Am. St. Rep. 711]; Ashland Mut. Fire Ins. Co. v. Sousinger, 10 Ohio St. 10; Brown v. Fowler, 65 Ohio St. 507 [63 N. B. Rep. 76]; Nowlin v. Pyne, 40 Iowa 166; Bangor Furnace Co. v. Magill, 108 Ill. 656; Newmarket Mfg. Co. v. Coon, 150 Mass. 566 [23 N. E. Rep. 380] - Lewis v. Insurance Co. 61 Mo. 534; Minneapolis Mill Co. v. Goodnow, 40 Minn. 110 [42 N. W. Rep. 356; 3 L. R. A. 796; 12 Am. St. Rep. 701] ; McCartney v. Glassford, 1 Wash. St. 579 [20 Pac. Rep. 423]; 2 Cook, Corporations (5 ed.) See. 539; Nunez v. Dautel, 86 U. S. (19 Wall.) 560 [22 L. Ed. 161] ; Cota v. Buck, 48 Mass. (7 Mete.) 588 [41 Am. Dec. 464]; Gardner v. Barger, 51 Tenn. (4 Heisk.) 668; Palmer v. Summer, 10 Kan. 464 [15 Am. Rep. 353]; J ones V. Fisher, 3 Kan. 134; Scott v. Lord Fbury, L. R. 2 C. P. 225; Woodland Oil Co. v. Crawford, 55 Ohio St. 161 [44 N. E. Rep. 1093; 34 L. R. A. 62]; Leatherman v. Oliver, 151 Pa. St. 646 [25 Atl. Rep. 309]; Bay v. Gas Co. 138 Pa. St. 576 [20 Atl. Rep. 1065; 12 L. R. A. 290; 21 Am. St. Rep. 922]; Clark v. Jones, 1 Denio 516 [43 Am. Dec. 706]; Galey v. Kellerman, 123 Pa. St. 491 [16 Atl. Rep. 474]; Jones v. Gas Co. 146-Pa. St. 204 [23 Atl. Rep. 386]; Wills v. Gas Co. 130 Pa. St. 222 [18 Atl. Rep. 721; 5 L. R. A. 603] ; Ogden v. Eatry, 145 Pa. St. 640 [23-Atl. Rep. 334]; Smith v. Miller, 49 N. J. Law 521 [13 Atl. Rep. 39]; Taylor, Landl. & Ten. Sec. 492; 1 Smith’s Lead. Cas. 102, 119, 176, 177, 178; Bishop, Contracts Sec. 87; Hammond, Contracts-683; Webb’s Pollock, Contracts 167; Parsons, Contracts 451;-Clark, Contracts 169, 170;- Story, Contracts Sec. 569; An-dreas v. Holcombe, 22 Minn. 339; Underwood Typewriter Co. v. Realty Co. 118 Mo. App. 197 [94 S. W. Rep. 788]; Kauffman v. Raeder, 108 Fed. Rep. 171 [47 C. C. A. 278; 54 L. R. A. 247]; Thayer v. Allison, 109 Ill. 180; Dayton, W. V. & X. Tpk. Co. v. Coy, 13 Ohio St. 84; Himrod Furnace Co. v. Railway, 22 Ohio St. 451; Storm v.. United States, 94 U. S. 76 [24 L. Ed. 42]; Harvester King Co. v. Mitchell, 89 Fed. Rep. 173; Brown v. Bowman, 119 Ga. 153 [46 S. E. Rep. 410] ; Laclede Constr. Co. v. Iron Works, 169 Mo. 137 [69 S.. W. Rep. 384]; American Pub. Co. v. Walker, 87 Mo. App. 503; Saga-lowitz v. Pellman, 32 Mise. 508 [66 N. Y. Snpp. 433]; Boyd v. Brown, 47 W. Ya. 238 [34 S. E. Rep. 907] ; Willets v. Insurance Co. 45 N. Y. 45 [6 Am. Rep. 31]; Train v. Gold, 22 Mass. (5 Pick.) 380; Muscatine Water Co. v. Lumber Co. 85 Iowa 112 [52 N. W. Rep. 108; 39 Am. St. Rep. 284]; Emerson v. Packing Co. 96 Minn. 1 [104 N. W. Rep. 573; 1 L. R. A. (N. S.) 445; 113 Am. St. Rep. 603] ; Boone v. Eyre, 1 H. Bl. 273; Graves v. Legg, 9 Ex. 709; Pollock, Contracts 266, note 10; 1 Cook, Corporations Sec. 262.
    Majority opinion not reported.

      The circuit court divided in this case, modifying and reversing the common pleas, to which Judge Jelke filed a dissenting opinion which was affirmed "by the Supreme Court in Stewart v. Herron, 77 Ohio St. 130.

   JELKE, J.,

dissenting.

The parties evidently thought they were making a contract, a bilateral agreement, something of business significance, and intended that it would be mutually obligatory and enforceable. It does not read like á, one-sided undertaking of benevolence. There is no “charity” about it.

Has that which they reduced to writing and acted upon, the essentials of a legal contract? Neither George Stewart nor Johnson are bound to stay or pay. When everything was executory there was no mutuality.

As a business proposition what was Stewart, Sr., driving at? He wanted these young men to continue in the company’s employ. If they did so continue, he recognized that their services were worth to the company and to him, its largest shareholder, something over and above their respective salaries. When they had entered upon the employment and under this contract, at the end of the first day’s work had they done something to and for Stewart, Sr., which he recognized as of value and which would be to him a /price paid by these young men wherefore they could have the right to exercise these options? It seems to me. they had.

With rare subtility this writing was framed to secure in an ae-•cumulating degree that which Stewart, Sr., wanted, i. e. the loyalty and zeal of these young men. The longer they stayed, the harder they worked, the more successful their efforts, the more strongly were they cemented to the company and to him, and if they must leave, the more potent the inducement to buy.

These are the things which operated upon the mind of Stewart, Sr., .and at the end of the first day’s work he had received an installment on account of the consideration for the options.

It is not for us to weigh this consideration if we find from the writing it was to the mind of Stewart, Sr., the moving consideration.

I incline to the opinion that the executed consideration supporting the Johnson and Stewart shares will likewise serve as to the Gatch shares, but on this point I am willing to yield to my colleagues.

As to the uncertainty of time the law will “annex” a “reasonable time. ’ ’


text:
    WILLS.
    [Hamilton (1st) Circuit Court,
    July 8, 1898.]
    Marvin, Douglass and Caldwell, JJ.
    •(Judges Marvin and Caldwell of the eighth circuit and Judge Douglass of the fifth-circuit sitting in place of the first circuit judges.)

      David W. Miller et al. v. Howard Douglass, Exr., et al.
    Tub by Devise Relates Back feom Peobate of Will to Death of Testatoe.
    A title in a devisee relates hack from the prohate of the will, and takes effect as of the date of the death of the testator; or if not at the death of the testator, the devisee takes upon prohate of the will no more than a naked legal title, and where he has made a conveyance of his interest during the interim between the death of the testator and the probate of the will, he takes the legal title upon probate of the will as trustee for his grantee.

      Reversing Douglass v. Miller, 4 Dec. 414 (3 N. P. 220).

   It appears from the evidence in this ease that John M. Miller, the father of David W. Miller, died on March 21, 1894, leaving a will by which he bequeathed and devised the one-ninth part of his estate, consisting of personal and real property, to David^V". Miller. This will was read to the children on March 24, 1894, and thereupon on that day David W. Miller executed a paper writing whereby he set over all his right, title and interest in his father’s estate to Matilda 6. Miller, his wife, “in consideration of certain accounts and notes” dne by him and at that time transferred to him. Two days later he executed the following deed:

“Know all men by these presents, that David W. Miller, of Cincinnati, Hamilton county, Ohio, in consideration of one dollar ($1.00) and the indebtedness which he owes to Matilda G. Miller, does hereby grant, bargain, sell and convey to said Matilda G. Miller, her heirs and assigns forever, all his right, title, interest and demand of every kind whatever, in, to and concerning the personal and real estate belonging to the estate of John M. Miller, late of Hamilton county, Ohio, being all the share and portion of said estate, both real and personal, which was devised to the said David W. Miller by the last will and, testament of said John M. Miller, deceased, to have and to hold the same to the said Matilda G. Miller, her heirs and assigns forever.”

The one dollar consideration was paid by Matilda G. Miller to David W. Miller, and the deed was duly delivered to Matilda G. Miller, and filed for record on the same day. Five days thereafter, on March 31, 1894, the will of John M. Miller was admitted to probate in the probate court of Hamilton county.

Soon thereafter the plaintiff obtained a judgment for $2,770 and ■costs against David W. Miller, and caused an execution to issue on said judgment and levied on the real estate devised to David W. Miller under said will as the property of David W. Miller, claiming that the deed was made without any consideration and was fraudulent and void for want of consideration, and that it cast a cloud on the title of David W. Miller in said real estate so that it could not be sold on execution; that it was made for the purpose of defrauding the plaintiff and other creditors, and for the purpose of hindering and delaying them in the collection of their claims, and asking that the cloud on the title be removed and that the instrument be held to be void.

This raised the question as to what was transferred by the instruments executed by David W. Miller to Matilda G. Miller, after the death of John M. Miller and the reading of his will, and the subsequent probate of the will. Judge Sayler of the common pleas court answered this question as follows, Douglass v. Miller, 4 Dec. 414, 416 (3 N. P. 220):

“It seems to me that when David W. Miller executed the transfer of March 24 and the deed of March 26, 1894, he had no title unless by inheritance from his father; that his title as devisee was a new titlé acquired subsequent to the deed on the probate of the will; that the deed conveyed only such interest as he then had, and did not convey his title as devisee, and which title he or his judgment creditors, may assert as against the grantee under the deed.
“I think, therefore, that the plaintiff and such other judgment, creditors as obtained a lien after the title vested, may subject the interest of David W. Miller, as devisee under the will, to the payment of their liens.”

JOURNAL Entry.

This cause came on to be heard upon the petition in error, the transcript and the original pleadings and papers from the court of common pleas of Hamilton county and was argued by counsel and submitted to the court.

And the court, being fully advised, finds that there is error apparent upon the record prejudicial to the plaintiff in error, as follows:

The court having found the facts and the law separately in the decree rendered in the court below, erred in matters of law in finding-that said David W. Miller, at the time of the execution and delivery of a certain conveyance set forth in the decree, to Matilda G. Miller, had no interest in the property mentioned and described therein, under the will of his father, John M. Miller, deceased, and that - said Matilda G. Miller took no interest nor title in said property by virtue of said conveyance as against David W. Miller and the other parties to said action.

The court below also erred in finding that said defendants in error herein, or any of them, acquired any lien upon said property by virtue of the judgments set forth in said action against said David W. Miller, and erred in decreeing said conveyance to be set aside and in ordering any money paid into court.

This court holds that David "W. Miller had an interest in said property under said will at the time of the execution and delivery of said instrument to his wife, Matilda G. Miller, that might be then conveyed; that said instrument affected such conveyance; that upon the ripening of the legal title in David W. Miller by the probate of said will, by relation the title took effect as of the date of the testator’s death and therefore instantly devolved upon said Matilda G. Miller. Even if it did not thus take effect by relation, David W. Miller acquired no more than the naked title, and all ownership and beneficial interest were in said Matilda G. Miller, for whom he,held such legal title in trust, and that the defendants in error, by their judgments and levies, obtained a lien upon no more than such naked legal title, and that therefore said Matilda G. Miller is entitled to the real estate devised to David W. Miller, or the proceeds arising from a sale thereof, and said defendants in error have no right or interest therein.

It is therefore adjudged and decreed that the decree of the court ■of common pleas be reversed and set aside as to the findings of law •and the orders based thereon, as herein set forth.

And it is further ordered that this cause be and is hereby remanded to the court'of common pleas of Hamilton county for a decree in favor •of the plaintiff in error and such further proceedings, in accordance with the decree, as may be required in the premises.

And it is adjudged that the defendants in error shall pay the costs ■of the proceedings, .taxed at $-, and it is ordered that a special mandate be issued herein to said court of common pleas to carry the foregoing judgment into execution.

And said defendants in error except to the finding and decree of the court herein.


text:
    CARRIERS.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    Sig & Sol Freiberg v. Cleveland, C. C. C. & St. L. Ry. et al.
    IiIABILITY OF CARRIER FOR DOSS OF GOODS SEVERAL MONTHS AFTER CONSIGNOR’S Demand for Tracer and Return of Goods.
    The consignor has the right to demand, and a.carrier the duty to comply therewith, that goods shipped to a consignee he traced and returned upon failure or refusal of the consignee to receive them. Hence, where a carrier upon receiving a demand that certain goods he traced apparently acquiesces therein, but in fact takes no action for several months during which time the goods are destroyed by the burning of a warehouse in which they were stored by a connecting carrier on refusal of the consignee to receive them, the carrier is liable as a matter of law to the consignee for the loss sustained.
    Error to Ciucinuati superior court.
    Cobb, Howard & Bailey and C. E. Tenney, for plaintiffs:
    Cited and commented upon the following authorities: Lake Erie W. By. v. Hatch, 52 Ohio St. 408 [39 N. E. Rep. 1042]; Union Pac. By. v. Moyer, 40 Kan. 184 [19 Pac. Rep. 639; 10 Am. St. Rep. 183]; East Tennessee V. <& G. By. v. Kelly, 91 Tenn. 699 [20 S. W. Rep. 312 ;. 17 L. R. A. 691; 30 Am. St. Rep. 902]; Bichmond <& D. By. v. Benson.
      86 Ga. 203 [12 S. E. Rep. 357; 22 Am. St. Rep. 446]; Kansas City, Ft. S. & G. By. v. Morrison, 34 Kan. 502 [9 Pac. Rep. 225; 55 Am. St. Rep. 252]; Sherman v. Railway, 64 N. T. 254; Balt. & 0. By. v. Hubbard, 72 Ohio St. 302 [74 N. E. Rep. 214]; Central of Georgia By. v. Murphey, 196 U. S. 194 [25 Sup. Ct. Rep. 218; 94 L. Ed. 444]; Faulkner v. Hart, 82 N. T. 413 [37 Am. Rep..574]; Mynard v. Raihoay, 71 N. T. 180 [27 Am. Rep. 28]; 5 Am. & ±Eng. Enc. Law (2 ed.) 280; Hudson v. Baxen-dale, 2 Hurl. & Nor. 575; Keystone v. Moyes, 28 Mo. 243 [75 Am. Dec., 123] ; Hull v. Railway, 60 Mo. App. 593; Lesinsky v. Great Western Dispatch, 13 Mo. App. 576; Weed v. Barney, 45 N. Y. 344 [6 Am. Rep. 96] ; Kremer v. Express Co. 46 Tenn. (6 Coldw.) 356; Zinn v. Steamboat Co. 49 N. Y. 442; American M. U. Exp. Co. v. Wolf, 79 Ill. 430; American Sugar Refining Co. v. McGWee, 96 Ga. 27 [21 S. G. Rep. 383]; Green & B. B. Nav. Co. v. Marshall, 48 Ind. 596; Lake Erie & W. By. v. Hatch, 52 Ohio St. 408 [39 N. E. Rep. 1042] ; Myrick v. Bailway, 107 U. S. 102 [1 Sup. Ot. Rep. 425; 27 L. Ed. 325] ; Moore. Carriers 266, 267; Fisk v. Newton, 1 Denio (N. Y.) 45 [43 Am. Dee. 649]; Manhattan Rubber Shoe Co. v. Railway, 9 App. Div. 172 [41 N. Y. Supp. 83]; Hudson v. Baxendale, 2 Hurl. & Nor. 574; Cook v. Railway, 58 Barb. (N. Y.) 312; Wilson v. Railway, 94 Cal. 166 [29 Pac. Rep. 861; 17 L. R. A. 685] ; 3 Am. & Eng. Enc. Law (2 ed.) 733, 746; Read v. Spaulding, 30 N. Y. 630 [86 Am. Dec. 426]; Michaels v. Railway, 30 N. Y. 564 [86 Am. Dec. 415]; Deming v. Cotton-Press & Storage Co. 90 Tenn. 306 [17 S.- W. Rep. 89; 13 L. R. A. 518]; Burlington & M. By. v. Arms, Í5 Neb. 69 [17 N. W. Rep. 351]; Burlington <& M. By. v. Arms, 15 Neb. 69 [17 N. W. Rep. 351]; Tarbell v. Royal Exch. Ship. Co. 110 N. Y. 170 [17 N. E. Rep. 721; 6 Am. St. Rep. 350]; Scheu v. Benedict, 116 N. Y. 510 [22 N. E. Rep. 1073; 15 Am. St. Rep. 426]; Becker v. Radlway, 109 App. Div. 230 [96 N. Y. Supp. 1]; Mynard v. Railway, 71 N. Y. 180 [27 Am. Rep. 28] ; Westcott v. Fargo, 61 N. Y. 542 [19 Am. Rep. 300]; Alexander v. Greener 7 Hill (N. Y.) 533; Wells v. Navigation Co. 8 N. Y. 375; Nicholas v. Railway, 89 N. Y. 370; Aaronson v. Railway, 52 N. Y. Supp. 95 [23 Mise. 660]; Fairfax v. Railway, 67 N. Y. 11; Sherman v. Railway, 64 N. Y. 254; McKinney v. Jewett, 24 Hun 19, affirmed McKinney v. Jewett, 90 N. Y. 267; Hirsch v. Platt, 89 N. Y. Supp. 362; Security Trust Co. v. Wells, Fargo & Co. 81 App. Div. 426 [80 N. Y. Supp. 830], affirmed, 178 N. Y. 620 [70 N. E. Rep. 1109]; Rathbone v. Railway, 140 Ñ. Y. 48 [35 N. E. Rep. 418]; Wheeler v. Steam Nav. Co. 125 N. Y. 155 [26 N. E. Rep. 248; 21 Am. St. Rep. 729]; Kenney v. Railway, 125 N. Y. 422 [26 N. E. Rep. 626] ; Westcott v. Fargo, 65 Barb. (N. Y.) 349; Ghormley v. Dinsmore, 51 N. Y. Supr. 196; Baltimore & 0. By. v. Hubbard, 72 Ohio St. 302 [74 N. E. Rep. 214]; Falkenburg v. Railway, 59 N. Y. Supp. 44; Frankfort v. Weir, 83 N. Y. Supp. 112; Goodwin v. Insuranoe Go) 73 N. Y. 480; Wabash By. v. Brown, 152 Ill. 484 [39 N. E. Rep. 273]; Chicago & A. By. v. Grimes, 71 Ill. App. 397; Hudson v. Railway, 92 la. 231 [60 N. W. Rep. 608; 54 Am. St. Rep. 550]; Massengale v. Telegraph Go. 17 Mo. App. 257; Clev. G. C. & St. L. By. v. Heath, 22 Ind. App. 47 [53 N. E. Rep. 198] ; Hess v. Bailway, 40 Mo. App. 202; Soper v. Railway, 113 Mich. 443 [71 N. W. Rep. 853]; Bice v. Railway, 63 Mo. 314; Illinois Cent. By. v. Bogard, 78 Miss. 11 [27 So. Rep.. 879]; Jacobson v. Express Go. 1 Circ. Dec. 212 (1 R. 381), affirmed, Adams Exp. Go. v. Jacobson, 24 Bull. 496; New York Life Ins. Co. v. Eggleston, 96 U. S. 572 [24 L. Ed. 841].
    Harmon, Colston, Goldsmith & Hoadly, for defendant.
   SWING, J.

This was an action in the superior court of Cincinnati, brought by the plaintiffs in error against the defendant companies for the value of five barrels of whiskey which had been shipped by the plaintiffs over the railways of the defendants to one Hanley at the city of Buffalo, N. Y. A jury was waived, and the cause was submitted to the court and judgment was rendered for the defendants. It is here on error to this judgment. The question is one of law as the facts are not disputed. The facts are in the main as follows:

On July 24, 1902, the plaintiffs delivered to the C. C. C. & St. L. Railway Co., commonly called the “Big Four Railway Company,” five barrels of whiskey consigned to James K. Hanley, Buffalo, N. Y., and received from the railway company the usual bill of lading. The “Big Four” Company transported the whiskey to the city of Cleveland, and there delivered the whiskey to the “Nickel Plate” Railway Company, a connecting line, defendant herein, which said company transported said whiskey to the city of Buffalo, where it arrived about August 1, 1902. Hanley was promptly notified of the arrival of the whiskey by the “Nickel Plate,” but paid no attention to the notice and did not receive the whiskey, whereupon within a few days the railway company placed the same in a warehouse where it remained until destroyed by fire on June 7, 1903. The plaintiffs were not notified by the railway company that Hanley refused to receive the whiskey. The plaintiffs claim to have sold the whiskey to Hanley on four months’ time. At the end of that time they drew on Hanley for the value of the whiskey. The bank through which the draft was drawn notified Hanley, and in reply be said: “I never ordered nothing from them people and received nothing?” This reply was sent to the plaintiffs on December 26, 1902. On the same day the plaintiffs wrote the Big Four Railway Company a letter as follows:

“Cincinnati, Dec. 26, 1902.
“Freight Agent, C. C. C. & St. L. Ry. Co.
“Dear Sir: Enclosed please find copy of bill of lading for our •shipment of July 24, consigned to James K. Hanley, Buffalo, N. Y. Ye are today informed by consignee that he had never received these goods, and we will thank you therefore to kindly send tracer after this ■shipment at once and report delivery to us here. Trusting you will give this your immediate, attention, we remain
“Very truly yours,
“Sig & Sol Freiberg.”

To this letter no reply was made by the railway company and apparently no attention was paid to it. Afterward the plaintiffs wrote to Big Four as follows:

“Cincinnati, Jan. 21, 1903.
“Mr. F. P. Boisseau, Agent, C. C. C. & St. L. Ry. Co.
“Dear Sir: On December 26 we sent you copy of bill of lading for our shipment of July 24, consigned to James K. Hanley, Buffalo, N. Y., requesting you to have this shipment traced and report delivery to us here. We have written you several times since that date in reference to this matter, but have no reply from you. Kindly trace this shipment immediately and report delivery to us here. Awaiting your reply, we remain
“Very truly yours,
“Sig & Sol. Freiberg.”

To this letter the following reply was sent:

“Cincinnati, Jan. 23, 1903.
'“Messrs. Sig & Sol Freiberg.
“Gentlemen: Replying to your-favor dated January 21, wherein you refer to your letter of December 26, enclosing us copy of your bill of lading covering shipment of July 24, consigned to James K. Hanley,. Buffalo, N. Y., requesting that we have this shipment traced ■and report delivery to you.
“Your letter with a copy of bill of lading was endorsed to Mr. George Metzger, our division freight agent, as this office does not do •any tracing whatever for shipments delayed in transportation. If hereafter when yon desire a shipment traced yon will address Mr. Metz*-:ger or Mr. N. R. Johnson, our general freight agent, at Fourth and Vine, it will receive prompt attention. I have referred your letter of •the twenty-first to Mr. Metzger.
“Yours truly,
“F. P. Boisseau, F. C. A.”

No further attention was paid by the railway company to this matter and the plaintiffs wrote the railway company as follows:

“Cincinnati, Feb. 19, 1903.
•“Mr. F. P. Boisseau, C. C. C. & St. L. Ry. Co., City.
“Dear Sir: Enclosed please find original bill of lading for our ■shipment July 24, consigned to James K. Hanley, Buffalo, N. Y. Mr. Hanley informed us that he has never received this shipment, and we therefore instructed you several times to trace this shipment and- report •delivery to us here. As you failed to comply with our request, we beg to make claim to this shipment and enclose herein copy of original invoice and our bill for the shipment. Kindly send us claim number at your earliest convenience.
“Trusting this claim will be speedily1 adjusted, we remain
“Very truly yours,
“Sig & Sol Freiberg.”

On February 24, 1903, the C. C. C. & St. L. Railway, through Mr. F. P. Boisseau, acknowledged the receipt of this letter and gave the number of the claim and asked them to refer to the number given in subsequent communications. Afterwards the railway company sent the following letter to plaintiffs:

“Cincinnati, Aug. 5, 1903.
'“Messrs. Sig & Sol Freiberg.
“Gentlemen: We respectfully return you herewith your claim presented against us for $335.76, account of loss on whiskey to James K. Hanley, Buffalo, N. Y. We have carefully investigated the handling -of this shipment and find the same was delivered to the N. Y. C. & St. L. -at Cleveland under date of July 29. Mr. James Webster, of the N. Y. C. & St. L., has returned claim papers advising that repeated notices were mailed to consignee of the arrival of the shipment, but no re-spouses were received by them. The shipment was finally placed in storage with the Buffalo Storage & Crating Company, where it was destroyed by fire on June 7, and it is found that the storage company carried no insurance whatever on any of the property stored by them. Under the circumstances the N. Y. C. & St. L. R. R. refuse to entertain your claim, and as we are in no way responsible would thank you to-cancel your bill against this company and allow us to close our records.
“Yours truly,
“F. P. Boisseau, F. C. A.”

The defendants filed answers setting up five defenses. The.N. Y, C. & St. L. Railway Co. said it was not asked to trace the goods by plaintiff, and that it had notified the consignee of the arrival of the goods and after four days it had placed the goods in the warehouse, and that it had done all that in law it was required to do.

The plaintiffs were not notified that the goods were delivered to-the N. Y. C. & St. L. Ry. Co. by the “Big Four” until so informed by the letter of August 5, 1903.

We do not deem it expedient to consider here the question whether it is incumbent on a railway company to notify the consignor when the consignee refuses to take the goods, for the reason that it does not determine any question in this case. Nor do we think there is here any question as to the duty resting on a railway company after the consignee refuses to take the goods. We consider it settled law that the railway company had the right to place the goods in a warehouse, and change its relation of carrier to that of bailee, and its responsibility as to the goods after that is such as the law places on a bailee. The rights of plaintiffs, if they have any, do not rest on the question whether the railway company wrongfully placed the goods in a warehouse.

We regard it as settled law that upon the failure of the consignee to receive goods shipped to him the title to the goods is in the consignor, and that he has the right to repossess him of the goods and that it is the duty of the railway company to reship the goods to the consignor upon his demand, subject to reasonable regulations by the railway company as to the payment of charges, etc. According to the evidence in this ease the goods were always the property of plaintiffs. Hanley says he never bought the whiskey. Upon receipt of knowledge by the plaintiffs that the goods had not been delivered to Hanley, the defendant was notified to trace the goods and return them to plaintiffs, but it was more than seven months- before the defendants informed plaintiffs as to what had become of these goods. The goods had in fact been destroyed by fire more than five months after the company had been asked to trace and return the goods.

Ordinarily questions as to what railway companies should do under circumstances of this kind are questions of fact to be left to the jury, but where they admit of but one conclusion they become questions of law for the court.

When plaintiffs informed the defendants that they wanted the goods traced and reported to them, the demand was a right they had. It was a duty resting on the railway company to comply with this demand. It made no claim at the time that it was not a duty resting upon it. It received the request and apparently acquiesced in it, and apparently did nothing, although repeatedly urged by plaintiffs. . It is not claimed by defendants that it was not within their power to trace the goods or to return them until the goods were destroyed.

We think the defendants had ample time in which to trace the goods and return them. The goods were destroyed long after they should have been returned to plaintiffs, and we think they should be held liable for their loss.

Judgment reversed and judgment for plaintiff.

Giffen and Smith, JJ., concur.


text:
    ERROR — PLEADING—SALE.
    [Hamilton (1st) Circuit Court,
    June 20, 1908.]
    Swing, Giffen and Smith, JJ.
    Cincinnati & Columbus Trac. Co. v. Jewett Car Co.
    1. Defense of Bbeach of Warranty and Demand for Damages Good Against Demurrer.
    A defense of breach of warranty and prayer for damages therefor demands affirmative relief and must be treated as a cross petition, against which a demurrer will not lie if the facts set up entitle the defendant to any relief against plaintiff on the contract sued.
    2.'Order Sustaining Demurrer to Answer and Cross Petition, not Final.
    An order sustaining a demurrer to an answer and cross petition setting up' breach of contract and prayer for damages does not in effect determine the action nor prevent a judgment. Whether it is final within the meaning of Sec. 6707 Rev. Stat., quaere.

    ERROR to Hamilton common pleas court.

      C. B. Matthews, for plaintiff in error.
    Wright & Wright, for defendant in error.
   GIFFEN, J.

The Jewett Car Company as plaintiff in the original action set up a contract for the construction of certain railroad cars, alleged full performance, and prayed judgment for the balance due.

The defendant admitted the contract and that it received the cars, but denied each and every other allegation of the petition; and as a ■second defense and by way of cross petition pleaded an express warranty and breach thereof, for which it asked damages.

A demurrer to the second defense was sustained and an amended ■answér and cross petition being presented to the court for filing, permission was denied, and thereupon the original cross petition was dismissed at defendant’s cost.

The second defense must as a whole be treated as a cross petition because affirmative relief is demanded therein. Section •5055; Klonne v. Bradstreet, 7 Ohio St. 322. Hence, if the facts stated entitled the defendant to any relief against the plaintiff, the ■general demurrer was improperly sustained. The defendant averred in substance that the plaintiff agreed to construct the car of good .materials and workmanship and warranted the same and its several parts fit for the purpose of operating the same on its interurban line; that while so operating the car with due care the brake rod broke, by reason of a defective weld, and the car was precipitated down an embankment and damaged in the amount of $200 in addition to certain necessary repairs amounting to $167.07, and defendant was deprived, ■by reason of said breach of warranty and damages to said car, of its use for the period of thirty-nine days, estimated at $25 a day.

The express terms of the warranty show that the parties had in contemplation, at the time the contract was made, that the brake rod was fit for the use to which it was put, and was expected to be so used. The car would be of little value to the defendant while deprived of the use* for which intended. The amount of the damages claimed, and whether the defendant had another car to use in place of the disabled car while being repaired, are questions of fact to be submitted to the jury. It does not appear how much of the damage to the car occurred before, and how much after the car was precipitated down the embankment, nor does it definitely appear that such precipitation was caused by the fracture of the defective brake rod. Enough appears, however, to show some injury to the car, and some loss of its use by reason of such defect, thereby making a pleading good against demurrer. Champion Ice Mfg. & Cold Stor. Co. v. Iron Works Co. 68 Ohio St. 229 [67 N. E. Rep. 486].

We entertain some doubt whether the order complained of is final within the meaning of See. 6707 Rev. Stat., as it does not in effect determine the action nor prevent a judgment, but as the question was not raised by counsel we have so treated it. Holbrook v. Connelly, 6 Ohio St. 199; Carpenter v. Canal Co. 35 Ohio St. 307.

The judgment will be reversed for error in sustaining the demurrer to the second defense of the answer and in denying leave to file amended answer.

The cause is remanded for further proceedings.

Swing and Smith, JJ., concur.


text:
    INSURANCE.
    [Hamilton (1st) Circuit Court,
    1908.]
    Swing, Giffen and Smith, JJ.
    National Fire Ins. Co. of Hartford, Conn. v. John Kneidel, Jr.
    "WANT 01’ ENDORSEMENT OF CHATTEL MOliTGAOE INCUMBRANCE ON PERSONAL PROPERTY Defeats Recovery on Policy Making it a Prerequisite.
    A condition in a fire insurance policy on personal property that it shall he void if the property is incumbered by a chattel mortgage without in-dorsement thereon is reasonable and binding on insured, and in the absence of evidence that the omission of such endorsement was the result of fraud or mistake, no recovery can be had thereon; notwithstanding an allegation and proof that insured, when the policy was taken out, had informed the agent of such incumbrance.
    [For other cases in point, see 5 Cyc. Dig., “Insurance,” §§ 582-593. — Ed.]
    ERROR to Cincinnati superior court.
    W. T. Porter, for plaintiff in error.
    M. C. Lykins, C. D. Robertson and Burch, Peters & Matthews, for defendant in error:
    Cited and commented upon the following authorities: Eureka Fire & Mar. Ins. Co. v. Baldwin, 62 Ohio St. 368 [57 N. E. Rep. 57]; Durbin v. Fisk, 16 Ohio St. 533; Kehm v. Insurance Co. 12 Dec. 227; O’Brien v. Insurance Co. 134 N. Y; 28 [31 N. E. Rep. 265]; Walsh v. Insurance Co. 73 N. Y. 5; Marvin v. Insurance Co. 85 N. Y. 278 [39 Am. Rep. 657]; Hickey v. Insurance Go. 11 Circ. Dee. 135 ( 20 R. 385) ; Union Gent. Life Ins. Go. v. Hook, 62 Ohio St. 256 [56 N. E. Rep. 906]; Smith v. Insurance Go. 19 Ohio St. 287; Hammel v. Insurance Co. 24 •O. C. G. 101; Keith v. Insurance Go. 117 Wis. 531 [94 N. W. Rep. 295]; Northern Assur. Co. v. Building Assn. 183 U. S. 308 [22 Sup. Ct. Rep. 133; 46 L. Ed. 213] ; Glemments v. Insurance Co. 153 Fed. Rep. 237; Webster v. Insurance Co. 53 Ohio St. 558 [42 N. E. Rep. 546; 30 L. R. A. 719; 53 Am. St. Rep. 658] ; Sun Fire Office v. Clark, 53 Ohio St. ' 414 [42 N. E. Rep. 248; 38 L. R. A. 562]; Stevens v. Insurance Go. 81 Wis. 335 [51 N. W. Rep. 555; 29 Am. St. Rep. 905] ; Fries-Breslin Co. v. Insurance Co. 36 Ins. L. J. 804; National Surety Co. v. Long, 125 Ped. Rep. 887 [60 O. C. A. 623] ; Smith v. Insurance Co. 118 N. T. 518 ![23 N. E. Rep. 883]; Germania Fire Ins. Co. v. Werner, 76 Ohio St. .543 [81 N. E. Rep. 980; 12 L. R. A. (N. S.) 456; 118 Am. St. Rep. 891] ; Germania Fire Ins. Co. v. Schild, 69 Ohio St. 136 [68 N. E. Rep. 706; 100 Am. St. Rep. 663]; Farmers Ins. Co. v. Wells, 42 Ohio St. 519; Travelers Ins. Co. v. Myers, 62 Ohio St. 529 [57 N. E. Rep. 458; 49 L. R. A. 760].
   SWING, J.

This action is here on error to the judgment of the superior court. Kneidel brought this action in that court against the National Fire Insurance Company on a fire insurance policy, and recovered a judgment. To the petition is attached a copy of the policy of insurance sued on. The policy contained these provisions:

“If the subject of insurance be personal property and become encumbered by a chattel mortgage the policy shall be void. * * * This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto and no officer or agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as by the terms of this policy may be the subject of agreements, may be endorsed hereon or added hereto and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under the policy exist or be claimed by the insured unless so written or attached hereto.”

The defendant filed an answer alleging that at the time the policy was issued there was a chattel mortgage on the property covered by the policy and that it was not endorsed on the policy. Plaintiff filed a reply admitting tbe existence of tbe chattel mortgage, and that it was ■not endorsed on tbe policy, but alleged that at tbe time tbe policy was taken out that plaintiff bad informed tbe agent- of tbe company that there was a chattel mortgage on tbe property, and on tbe trial tbe plaintiff introduced evidence tending to prove this allegation.

It is settled law that tbe conditions contained in this policy are reasonable and are binding on tbe parties when made. So that tbe case presented by tbe record is one where plaintiff sues on a policy which ■contains a provision that if tbe property insured is mortgaged, it is to be void, unless tbe fact of tbe mortgage is endorsed on tbe policy. There was a chattel mortgage on tbe property, and it was not endorsed on tbe policy. By tbe express terms of tbe policy such a state of facts rendered tbe policy void. No claim was made, and no evidence was introduced tending to show that tbe endorsement provided for in tbe policy was omitted by tbe fraud or mistake of tbe defendant company, or that the company agreed to place such an endorsement on tbe policy. It is not sought to reform tbe policy, but a recovery is sought on tbe terms of tbe policy, and it is admitted that tbe terms of tbe policy are reasonable and binding on the parties. By tbe terms of tbe policy it was to be void if there was a chattel mortgage on tbe property insured, unless tbe fact was endorsed on tbe policy, and it is admitted that there was a chattel mortgage on tbe property and that was not endorsed on the policy. It follows that tbe plaintiff, Kneidel, can not recover.

Judgment reversed, and tbe facts being admitted, judgment will be entered for defendant.

Giffen and Smith, JJ., concur.