text:
    (Third Circuit—Allen Co., O., Circuit Court
    April Term. 1896.)
    Before Seney, Day and Price JJ.
    FRITCH BROTHERS v. JNO. D. DOUGLASS et al.

      Official Bonds — Strict construction in favor of surety.—
    1. Sureties on an official bond, may stand and rely on its strict letter. Their liability cannot be extended by implication or construction.

      Attachment before J. P. — Discharge of property only on bond, not on money deposit — Liability of J. P's bond for money deposited with him to discharge attachment.—
    2. The receipt of money, by a justice of the peace, from a defendant toan attachment proceeding pending before such justice, asa deposit to secure the discharge of the attachment, does not accomplish the discharge; and a failure to pay such money over to the person depositing it. on his demand, does not constitute a breach of the condition of the justice’s bond, which requires him “to pay over according to law, all moneys which may come into his bands by virtue of his commission :’’ Such money is not received by the justice, by virtue of his commission or by authority of law, and the sureties on his boud are not liable therefor. Such attachment can be discharged only by the giving of a proper undertaking or on motion to the court based on proper ground as provided by sections 6573 and 6522 R. S.
    Error to the Court of Common Pleas of Allen County.
   Day, J.

The action, in the common pleas court was by plaintiffs against Jno. D. Douglass and the sureties on his bond as Justice of the Peace, to recover $50.00 which it is alleged came into his hands in his official capacity, and which he omits to pay over to the party entitled, thus making breach of the conditions of his bond, so that the sureties thereon have become liable. The petition in the case recites the facts of the election of Douglass as Justice, his qualification by the giving of a proper bond, with sureties, and the condition that the said Jno D. Douglass “shall well and truly pay over, according to law, all moneys which may come in his hands by virtue of his commission, etc. Alleges a breach of this condition in omitting to pay over $50.00 which, it is said, he received from plaintiffs in virtue of his office, under circumstances stated substantially as follows: That one Joseph Morris commenced an action in attachment against the plaintiffs before Douglass, a Justice of the Peace, which action was pending; that plaintiffs appeared before the Justice and offered to give an undertaking for the discharge of the attachment, and was advised by the Justice that he could not accept such bond from plaintiffs for such purpose, refused to accept any such bond, and represented to plaintiffs that the only way said attachment cold be discharged, was by plaintiffs depositing money in the sum of $50.00 with the Justice; and thereupon plaintiffs did pay over to and deposit with said Justice $50.00 to release and discharge said attachment, and as security for any judgment said Morris might recover against them. Repayment of this $50.00 was afterwards demanded by the plaintiffs, but the said Justice refused and omitted to make re-payment, whereby it is claimed a right of action has accrued to the plaintiffs against the sureties on his official bond.

The court of common pleas sustained a general demurrer to this'petition, dismissed the action and entered judgment for costs against the plaintiffs. This action of the court below is complained of, and this court is asked to reverse the judgmefit" because of errors said to be apparent in the record.

A single question is presented by this record: Do the facts stated in the petition constitute a cause of action in favor of the plaintiffs a'lid against the defendants as sureties on the official bond of the Justice? . •

Sureties oh an official bond may stand on the'strict letter of their obligation, and their liability cannot be increased by 'implication'' or construction. They are not liable -and cannot be called upon to respond unless it is so nominated in the bond. The strict letter — the clear statement of their obligation in this instance, is that the justice shall pay over, according to law, all money received by him in virtue' of his office; and the precise question we have is, was the' $50.00 received by Douglass by virtue of his commission' as Justice of the Peace: Was it paid and received by him' by authority of law? If so, the sureties are liable, for that is the strict letter of their obligation. If not, it would' seem to follow, logically, that they cannot properly be held’ liable, for their undertaking is not that their principal shall pay over all money received by him on any account, from any source, but only such money as is received by him in virtue of his commission — money legitimately and lawfully received by him in his official capacity.

It seems there is no statutory provision .authorizing the discharge of an attachment m a Justice's court by the payment or deposit of money with the justice. Sections 6513 and 6522, of the Revised Statutes provide the only two methods by which, in such court, an attachment can be discharged. Section ,6513 provides for said discharge by the giving of a proper undertaking with sureties, and 6522 by motion to the court, based on proper grounds and supported, if necessary, by evidence; but nowhere is it provided that a discharge may be had by the-deposit of money

When the Justice advised plaintiffs they .could obtain a discharge of the attachment against the property by the-deposit of money and they paid him 'the $50.00 for that purpose, they were allowing themselves .to be deceived and’ misled, and the Justice was-subjecting himself to the-charge of obtaining their money tinder false pretense. ' In the circumstances appearing, .the‘Justice was receiving’into' his hands the $50¿Q0-, -not in-virtue, of .his commission,tas the-'condition of'his-bund'-is — not'-hy ibei''pr'oVi'sibnS of law'; but in' violation "of 1 áwj*'and'by ’íálsé i'eprés.enfatibhs. of the provisions of law. In such case there is no breach of the con-d'ition of the bond requiring the payment over, by the Justice,of all moneys coming into his hands “by virtue of his commission,” and it follows the sureties on the bond are not liable.

Becker, Bryan & Hutchinson, for Plaintiffs in Error.

Prophet & Eastman, for Defendants in Error.

We are of opinion the demurrer was properly sustained, and the judgment is affirmed, with costs.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Clinton Co., O., Circuit Court,
    April Term, 1892.)
    Before Smith, Swing and Cox, JJ.
    FEIKE v. C. & E. R. R. CO.

      Mechanic’s lien on Railroad itself before act of 1883—
    On the facts stated in the opinion ; Held : First — That the lien of the trustees for the bonds secured by the first mortgage executed by ^ the defendant company, and which mortgage was duly executed “ and recorded, and the bonds secured thereby issued and negotiated, long before the passage of the act of April &, 1883, (Ohio Laws, 99) and long before the perfecting by the contractors and subcontractors of their liens on the road, was superior and must be firsr paid.

      Same — Mechanic’s lien talcen after passage of act of 1883, not prior to lien of mortgage of road executed before passage of act—
    Second — The provisions of said statute “that a person who performs labor or furnishes material for, or in the construction of any railroad, * * * and a person who furnishes boarding on the order of any contractor or sub-contractor to persons employed by (hem, or either of them in furnishing materials or performing labor for, or in the construction of such railroad, * * .* in addition to his rights under the preceding section, shall have a lien for the payment of the same upon §uch railroad, and such lien shall have and maintain precedence over any lien taken or to betaken, and shall subsist for one year from the date of the filing the attested account herein provided for,” must be considered to have a prospective operation only, in so far as liens existing at the time of the passage of the act are concerned. It can not be deemed to have been the intention of the legislature to interfere with existing liens. If such interpretation must be given to it, then so much of the statute as so provides, must be held to be unconstitutional, as impairing vested rights
    Error to the Court of Common Pleas of Clinton County.
   Smith, J.

The following facts were found by the court of common pleas: That Goss, Richardson & Welsh were contractors with the defendant company, to build certain portions of its road. That Shirely, O’Brien and others were sub-contractors under them, or one of them, and each of the contractors and sub-contractors perfected a lien on the railroad under the act of April 6, 1883, under contracts entered into after the execution of all the mortgages and the issue of all the bonds secured by them. That each sub-contractor furnished material to his contractor, and each contractor furnished materials to the company rinder contracts entered into after the execution of all the mortgages, and the issue of all the said bonds, which materials were used in the construction of the railroad.

That each of the other persons who excepted, under the act of April 6, 1883, perfected their lien for work and labor done and materials and boarding furnished after that date, on contracts also executed after that date — except O’Brien (and others named in the finding) whose contracts were made before the passage of said law; but all of their claims accrued long after the execution of the mortgages on the railroad and the bonds to secure which they were given, and to pay which the railroad was sold.

On this state of fact the common pleas court held that the contractors had no lien, but that the sub-contractors who had perfected liens, had liens superior to those of the mortgages. The contractors now seek to reverse this holding as to them, and the trustees of the first mortgage ask the reversal of the judgment rendered in favor of the sub-contractors —the proceeds of the sale of the road not being nearly sufficient to pay the amount due on their mortgage claim.

We understand it to be practically conceded by all parties, that prior to the passage of the act of April 0,1883, amending sections 3207-8-9-10 and 11 (Ohio Laws, vol. 80, p 99; Williams’Stat. vol.8, 158) that there was no law which gave -either to contractors "or sub-contractors the right to take a lien upon the railroad itself. The sections named as they .stood in the revision of 1880, provided for the liability of .the railroad company to those who performed labor or .furnished material under a contract, for orto any contractor -or sub-contractor on the work contracted for by the company, and points out how that liability is to be raised and enforced, but did not give a right to a lien on the road itself. .The .amendment of 1883 to section 3207, provides also for the ■liability of a railroad company constructing a road, to those who perform labor or furnish any materials, stipulated for in the original contract with the company, under a contract express or implied with the original, or any sub-contractor, and directs that the company shall provide in its contract for the construction of the road, the mode in which the payments therefor shall be made, viz: First. To those performing labor, or furnishing materials or boarding on the order of any contractor or sub-contractor, to persons employed by them or in the construction of such railroad, without preference. Second. To any balance due a sub-contractor ,on his contract; and Third. To the original contractor any balance due to him.

Section 3208, as amended also April 6, 1883, provides that “a person who performs labor or furnishes materials for, or in the construction of any railroad, * * * * and a person who furnishes boarding on the order of any contractor or subcontractor to persons employed by them, or either of them, in furnishing materials or performing labor for or in the construction of such railroad * * * in addition "to his rights under the preceding section, shall have a lien for the payment of the same upon such railroad, and such lien shall have and maintain precedence over any lien taken or to be taken, and shall subsist for one year from the date of filing the attested account, hereafter provided for.” And this section and those succeeding, point out the way in which this lien is to be perfected and enforced..

By the terms of those two sections, it would seem that no provision was expressly made for a lien on the railroad by the original contractor, but the right is clearly given to all material men and those who perform labor or furnish boarding, which enters into the construction of the road, when furnished under an arrangement with the contractor or a sub-contractor, to acquire such a lien, and that the provisions are broad enough to include a sub-contractor himself as one entitled to such lien. The amendatory law of April 10, 1884. O. L. vol. 81, 120, gives the same right to a principal contractor. So far, then, as the railroad company itself is concerned, it would seem that there can be no question, but that their lien is valid.

But how do they stand as to the mortgages which were upon the road long before it entered into the arrangement with the contractor for the construction of that part of the road, and of course before any of the work was done thereon or the materials or boarding furnished therefor?

Two questions arise to this. First. Was it the intention of the legislature, in the enactment of this section, to provide that liens which should be taken under it, should have priority over mortgages or other liens on the road, which existed at the time, and before the passage of the act? And second, if so, is the enactment in that respect a constitutional one?

We think it clear that this provision of the statute must have a prospective operation only. The law is well settled as to the construction which should be given to such statutes. As held in the case of Keeley v. Kelso, 5 Ohio St. 198, “statutes affecting substantial interests and rights of property, have a prospective operation only, unless the contrary is clearly expressed.” And to the same effect is 37 Ohio St., 72; Cooley’s Constitutional Limitations 370.

This case comes precisely within these holdings. The trustees of these mortgages held valid liens on this railroad at the time of the passage of this act. If it operates retrospectively, it might sweep away by an after-acquired right every security they hold. It can not be conceived that it was the intention of the legislature that this should be done. It does not say it shall so operate, and it can have complete effect by holding that in the future such liens have priority, which the legislature had full right to enact.

But if the language of the statute is so broad, that it should be held to mean that the legislature has provided that a lien taken after the passage of the act should have priority over a mortgage or other lien, taken before its passage, it would be clearly unconstitutional in this respect. It is hardly necessary to cite authority as to this, but we quote a single passage from the decision of Judge Brinkerhoff in the case of Rairden v. Holden, Adm’r, 15 Ohio St., 207-210: “The words ‘retrospective’ and ‘retroactive,’ applied to law, seem to be synonymous. * '* * Mr. Justice Story thus defines a retroactive law: ‘Upon principle, every statute which takes away or imjairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disabiliy in respect to transactions or considerations already past, must be deemed retrospective.” And our constitution, Section 28, Art. 2, provides expressly “that the general assembly shall have no power to pas's retroactive laws, or laws impairing the obligation of contracts,” which this law would do, if it is to have the construction claimed. We are of the opinion then, that any judgment of the court of common pleas, giving priority to the liens of any of these parties over the mortgages to the trustees, was erroneous, and must be reversed, and that the judgment as to the lien of the contractor should be affirmed. But in view of the fact that the purchase-money remaining is not nearly sufficient to pay the claim of the trustee for the bondholders, the controversy between the contractors and sub-contractors is of no moment.

C. B. Matthews, for Trustee of the Bondholders.

Judge Bannon et al., Contra.


author: Bentley, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1893.)
    Before Bentley, Scribner and Haynes, JJ.
    THE TOLEDO CONSOLIDATED STREET RAILWAY COMPANY v. THE TOLEDO ELECTRIC STREET RAILWAY COMPANY.

      Street B. R. —Appropriation by one Street R. R. of use of track of another Street R. R. —Successive proceedings to appropriate—
    1. Where one street railway company has appropriated the right to use a portion of the tracks of another company under the power conferred upon it by the legislature and the municipality, it will not be precluded thereby from prosecuting another appropriation proceeding to condemn the right to use more of the tracks until it has obtained an additional ordinance grant from the city.

      Proof of Construction and operation of eight times the amount of street R. R. track, sufficient to right to appropriate—
    2. It is sufficient in a street railway appropriation proceeding for the petition to substantially show upon its face that the appropriating company has constructed and placed in operation eight times'the amount of street railway track which it seeks to appropriate and use, to meet any objection upon tnat score.

      Time use of property is required, not necessary to be alleged—
    3. It is not necessary, in an appropriation proceeding, for the petition to state tho length of time the use of the property sought to be appropriated will be required by the appropriating company. Proof of Passage of Ordinance by certified transcript—
    4. Under sec. 1699, R. S., it is not erroneous to prove the jassage of a city ordinance that has been duly recorded, by a transcript • thereof, certified by the city clerk.

      Evidence — Record book — Sealed pages — Right to cross-examine as to their contents—
    5. Where certain pages of a record book are placed in evidence, and the other pages of the book are sealed up or fastened together, it is not sufficient to entitle counsel to cross-examine the pages so sealed, to oiler to prove that then contained matter pertinent to-the questions in controversy, when opposing counsel state that they have no relevancy to the case. To entitle to an examination-of the portion of a book so sealed, the proper action should betaken under sec. 5290-91, R. S.

      Tax-return by owner as evidence of value of property—
    6. A tax return by an owner, giving the value of his property, is competent evidence to go to the jury upon the value of the property sought to be condemned in an appropriation proceeding. The weight of such evidence is for the jury.

      Jury — Other person serving by misapprehension under the name of person summoned — Effect—
    7. Where a juror is summoned, and another party appears and6-answers to his name under a misapprehension, and is sworn and-serves as a juror, it will not invalidate the verdict, if the party serving would be a legal juror when properly summoned, and none of the parties to the case knew of the substitution until, after the verdict.

      Value of Street R. R. Track — Cost of paving—
    8. Upon the question of the value of the use of street railway tracks- ’ sought to be appropriated under the power of eminent domain quaere, whether the cost of paving between the rails of the track theretofore placed in the street by the company owning the tracks, is a proper element of value, where the ordinance grant of the owning company requires it to furnish and maintain such pavement.

      Same — Cost of future maintenance—

    9. In such an appropriation case: quaere, whether evidence- upon the-subject of the cost of future maintenance of and repairs to tracks should go to the jury upon the subject of the amount of damages to be awarded, or 'whether those matters are to be determined in the future when any controversy between the companies using the tracks should arise upon the subject.
    Error to the Court of Common Pleas of Lucas county.
   Bentley, J.

The case of the Consolidated Railway Company against the Toledo Electric Street Railway Company, No. 674, is an action in error in this court wherein it is sought to have the judgment of the court of common pleas affirming the judgment of the probate court of the county in the condemnation case and the judgment of the probate court reversed. It is perhaps ordinarily known among those interested in it as. The Summit street Condemnation Case, in which it was sought by The Toledo Electric Street Railway Company,to condemn or appropriate for its benefit and use, the use of certain street railway tracks in certain streets in the city, among them Summit street, the tracks being those of the Toledo Consolidated Street Railway Company.

The case in the probate court seems to have required a very great length of time-and an immense record, which we have before us here, brought up for the consideration of this court. There were a multitude of exceptions taken in the case in the course of the proceedings in the probate court. Quite a large number of them, and questions arising upon them, have been, perhaps, determined in this court hereto» fore in another case coming up to it between the same parties, in the condemnation of tracks in Adams street, Toledo Consolidated Street Railway Company v. Toledo Electric Street Railway Company, 6 O. C. C. R., 362. While the record in this case is immense, comparatively few questions have been argued by counsel and presented to this court at this time; that is to say, the general questions presented apply to a large number of the exceptions. Now, there will be no attempt to deliver a complete or orderly decision in this case. We think, considering the situation of the case and of the parties and of all concerned, it would not be proper or just for this court to retain it undisposed of for the length of time that it would require to treat all of the questions involved with particularity and to elaborate upon them- — as perhaps it might be, under other circumstances, well to do; but we will'simply allude in a general way to the questions which were made upon argument before us, indicating our views upon them, and the general disposition which we are inclined to make of the case.

A. number of bills of exceptions were taken during the trial of this case. These might be divided into two classes: those which pertain to the preliminary hearing in the probate court, and those which concern the proceedings upon the trial in the probate court before the jury. We notice that bills of exceptions were taken by others than those who are regarded as the principal parties here to the petition in error and cross-petitions in error filed in the court of common pleas; but allusion to them was not made in the trial before us, and we understand that there areno cross-petitions here,so that the questions made here are really between the Consolidated Street Railway Company and The Electric Street Railway Company.

In the order of the occurrences, the questions made on the preliminary hearing would naturally come first, and we will therefore allude to them and indicate ouf views regarding them one by one.

One question that is made is an underlying one. Under a certain ordinance granted by the common council in favor of The Toledo Electric Street Railway Company, it was specified that it might, and if it should build its road, should use only the existing tracks in certain streets named in the ordinance; and appropriation proceedings having before this action was commenced been begun by-the Electric Street Railway Company in the probate court to condemn the use of the tracks upon Adams street — it is claimed by plaintiff in error that the power to appropriate under that ordinance was exhausted; and especially is this claimed by reason of certain considerations named in the Adams street case (so called) as reported in the Sixth Ohio Circuit Court Reports, 362, and especially the eleventh and thirteenth paragraphs of the syllabus in that case. The eleventh paragraph of the syllabus is, in effect, that it would be sufficient under the law if at the time those proceedings were had in the Adams street case, that the appropriating company then had constructed and was operating eight times as great a length of line as was sought to be appropriated in that case; and the thirteenth paragraph of the syllabus is substantially, that the council having found the necessity foi this appropriation — if it acted in good faith and without fraud— its conclusions in that respect were conclusive and final upon the parties and upon the probate court. It is argued in view of these rulings by this court, that if the council in passing the ordinance is supposed to have conclusively determined the question of the necessity of this appropriation, it must be held to have rendered its judgment in view of the use of the tracks in all of the streets specified in that ordinance — all of the existing streets to be used by that company; and it is claimed, and was claimed upon that trial, that it is not proper or competent for the appropriating company to appropriate sections of the streets thus designated in the ordinance by piecemeal; that if the judgment of the council was as to its necessity at all, it related to .the necessity of the use and appropriation of all of the streets named in the ordinance to be used; and certainly (whether that be true or not,) it is argued, that if the appropriating company sees fit under an ordinance of that kind to apply for the appropriation of tracks in only one particular street of those mentioned, it cannot, without the judgment of the council as to other streets, appropriate the tracks existing in the other streets under this same ordinance.

Now, briefly as to the views of this court as expressed in that case to which reference has been made. I would call attention to the authorities cited upon page 390 and ending upon the top of page 391 of the opinion in that case, upon this question:

“That body in the exercise of its legitimate authority has authorized the defendant in error, as the assignee of, and successor to the rights of David Robinson, Jr., to operate its line of railway upon certain designated streets; no other streets than those so designated may be devoted to that purpose by the appropriating company. The statute requires the railway company to obtain the written consents of the owners of property abutting upon such streets before proceeding with the proposed enterprise. The council has also authorized the appropriating company to use, upon certain streets named, the tracks of the Consolidated Company; and as before stated, by an ordinance of a later date, it has required this to be done upon that portion of Adams street here in question. In the absence of evidence impeaching this action of the council for fraud, we think the probate judge is concluded thereby, and that he is not at liberty to annul or disregard it. ”

Now the same might be said of the portions of the tracks that this jury considered, viz: that by the first ordinance this appropriating company was given the right to use those existing tracks, and by a later ordinance, under which it claims to act, this was required to be done. Now, considering the nature of the case and the situation of affairs, it was thought by this court that the question of the necessity of the appropriation had been thus determined by the council. That in this conclusion the council is the final judge of the necessity, follows from the nature of the case rarher than from considering that the council in a particular case, as a matter of fact, found and stated that ariecessity for an appropriation of these tracks existed in each particular case in the different streets.

It'occurs to us that the same reasoning' which the court followed in that case, would still apply as to the appropriating of the tracks in Summit' street'or these-other streets', and that, from the very nature of the case, the appropriating company would have no more authority if it had a new ordinance, than it now has. under the ordinance already .passed. In general, we find that this position-afthe-counsel for the Consolidated Street Railway Company- is- not'well'taken, notwithstanding the 'appropriation proceedings'hpon''A'darilis street, .that tliis appropriation .proceeding, might bé’ihslitut•ed, -and, -that the sqme .r;u]p.regardipg,'.t,h.e,<i)eces.sity/of .th,e appropriation proceeding would apply in this case as in the other case, viz: that the probate court is concluded by the action of the council in the premises and the situation of affairs.

Another objection urged upon the preliminary hearing was: that it does not appear from the statements of the amended ^petition that the appropriating company had, at the time this action was begun, eight times the length of line constructed and in actual operation that was sought to be appropriated; while the length of line which it in fact had was stated in the amended petition; yet there was no statement of the relation of that length to the length of the line sought to be approppriated here, and no absolute statement of the length of the line that was in fact sought to be appropriated in this proceeding. R. S. Sec. 3438, 3440.

The amended petition sets forth that in certain streets the appropriating company has constructed and is operating its road. It gives the length of its line upon each of these streets — tabulates it, as it were — and then adds that besides the length of lines in these streets which it is operating, it has appropriated 1901 feet in Adams street, and then proceeds to state that the whole length of its line thus constructed and operated is over fourteen miles. •

It is said, however, the amended petition does not state that the portion of the Consolidated tract sought to be appropriated is one-eighth, or less than one-eighth of the entire length of line of the appropriating company — that is, fourteen miles — or whatever it might be; neither does it state ■ — it is claimed — the ab solute length of the tract sought to be appropriated in this proceeding, and that the court cannot determine'even from the statements of the amended petition that in fact it has eight miles to one sought to be appropriated. We have examined the amended petition in these'respects, Of course it is true that'there is no general allegation that the length of line sought to be appropriated is so many feet; neither is it stated that it has eight times the length of the line sought to be appropriated in actual operation. But the question is whetner from the petition the necessary facts sufficiently appear so that the proceedings ought to be sustained so far as this objection goes. From the statements of the amended petition we can determine, by addition, the length of the line claimed to be appropriated by the appropriating company besides the 1901 feet upon Adams street. There is attached to the amended petition a map or plat of the tracks in question — that is, the tracks sought to be appropriated; butit is claimed on the one hand that it does not show the length of the line sought to be appropriated; and on the other hand it is claimed that from it it can be determined. These papers are so voluminous that we will not attempt to turn to those portions of the record, which would require time, and we will content ourselves w'ith stating the general facts as we recollect them, attempting to state them exactly in the language of the amended petition, or to state the actual figures. This plat shows upon its face that it is drawn upon the scale of one hundred feet to the inch. It purports to give the section of those streets in question,and where cross-streets come in. It gives a representation of the tracks in question, and the amended petition designates the kind of line that shows the tracks sought to be appropriated. On the margin are certain figures which ordinarily would be taken to mean, the length of certain adjacent lines. For instance, where a cross-street comes across Summit street are figures between where the crossings come; in the case of Jefferson street, for instance, there are the figures “80“; in the case of another cro3S-street or two, are the figures “66“, and so on; and between these streets are the figures “420“, and in some places “120“ and in some places “100”. I think a person looking at those figures would conclude almost at once that they refer to the feet, and refer to the distance— the width of the streets and the length of the blocks between the cross-streets. Taking that in connection with what is said as to the scale upon which the map is drawn, we think that with a reasonable degree of certainty is indicated the length of these tracks which it is sought to appropriate; we think the length of these tracks sought to be appropriated can with reasonable certainty be fairly gathered from the statements of the amended petition in connection with the plat, and at least upon this question, under circumstances of that kind, we would feel unwilling to disturb the proceedings because it did not more definitely appear just what those figures were. We think it does sufficiently appear, for the purposes of the case, in the amended petition that the appropriating company has constructed and has in operation more than eight times — considerable more than eight times — the length of track that is sought to be appropriated; and also that this statement is true excluding what is said regarding the length of line on Adams street. 'So that we find it unnecessary to determine whether or not it would have been competent for the appropriating company to consider, as a part of its construction and its operating road,that part of Adams street which it did not originally construct and which it is operating its cars over simply by force of the former appropriation proceedings.

It is objected, in this preliminary matter, also that 'sufficient data are not given in the record whereby it can be determined what length of time this use sought to be appropriated will last. It is said that there is no statement in the amended petition as to what length of time this use will be required by the appropriating company; it is not ¡stated what length of time the right of , the Consolidated Company to maintainn its tracks upon the streets will last; that even the ordinance of the Consolidated Company is not attached; and neither is it stated in the amended petition when that ordinance was granted, so that it can be made to appear by the record in no way for what length of time this use is to be had. We think in an ordinary proceeding of condemnation it is not usual'for the appropriating company to state in the-proceeding for what length of time it proposes to use the property appropriated. It is to be supposed, under the law, that it will use it — claim the right to' use it — as long as it conducts the enterprise for which the appropriation is made." It is said, in this case and in the other cases to which I have alluded, that the right would end with the present franchise of the Consolidated Company, and although that does not appear in these proceedings, we are at a loss to see how the failure to make it appear can work prejudice to the Consolidated Company. From the presumptions that arise in the case the damages to be assessed would be compensated upon the same supposition and basis that its use was to be as long as the appropriating company saw tit to use it, or as long as the property in question existed; so we suppose the damages would be assessed upon the basis of ' that use continuing as long as it could continue mrler the law and the circumstances of the case; and therefore, if any prejudice resulted from the record not stating the limitation of this^TcÍBe — to be limited by the length of time that the franchises of the Consolidated Company are still to last— we think the prejudice would be to the other party rather than to the Consolidated, viz, that it would tend, if the limitation appeared, to lessen the damages rather than to enhance them. We therefore think that in this matter ño prejudice appears to the Consolidated Company.

A question of importance is!also presented here in these preliminary proceedings as to the competency of a transcript or'copy of the ordinances of the appropriating company-. The récord of thé pásságe of'the ordinance was not introduced. ■ The' ordinances themselves were not introduced. Such proof'as was rnhde of the passage and existence of the ordinances appeared in the form of a . transcript certifled by the clerk of the corporation as being taken front the records of the corporation. "VYhat is said to be a transcript of the ordinances in question is here, and at the close are these statements: “Passed March 27, 1889. Attest, G. H. Cole,' City ■ Clerk. ”' And also the following certificate of acceptance, to-wit, “The within acceptance was filed by David Robinson, Jr., Trustee, on the 12th and 26th day.’of April, 1889. Attest, G.- H. Cole, City Clerk. In the testimony whereof witness my hand and seal the day and year above written, C. H. Durian, City Clerk.”

For myself, I could willingly wish that the difficulties here presented were not exactly in the form they are; I think-that upon this question there is room for some doubt; but' this is to be remembered: that the City Clerk certifies that this is an ordinance appearing upon the record books of the common council. . If it was .an ordinance, it was his duty to transcribe it — to enter it upon the records of the council, and then it was properly recorded under the law, and he could give a transcript and certify to it so as to render it receivable in evidence. Now it appears, that such a paper was recorded in the ordinance book of the City Clerk, and it comes from the place — is transcribed from the book where the ordinance should have been recorded,and unless it were duly passed,unless it had a right under the law to a position on the book, there is no authority to place it there. The fact that it was there; that it was recorded in the proper place of ordinances— taking into consideration the certifiate of the clerk — :we are at least not satisfied that the reception of it was erroneous — although, as I have said, there might be some question about it.

The next question presented arose from the fact that the appropriating company offered in evidence — in order ’to show its due organization &c. — a portion of its records — • presented a book, which is generally denominated “Exhibit No. 2, ” and- offered certain pages, to which’attention was called, in evidence. Certain other pages of the same book were sealed up, or fastened up in some way, and upon cross-examination of the*president of the appropriating company it was sought to be shown what the contents of the ■ book thus sealed up were, in whose handwriting the pages were, etc., and that evidence was ruled out by the court. It was asserted by counsel that this contained evidence pertinent to the matters then under inquiry. I will read a small portion of this, to indicate the character of the testimony, When Mr. Robison, the president, was on the stand he was cross-examined by counsel for the defendant company as follows:

‘ ‘ Q. Mr. Robison, have you examined the book to see that you know what it is? A. Yes, sir.

‘ ‘ Q. You may tell us whether or not there were other meetings and proceedings of the board of directors of the Toledo Electric Street Railway Co., in the parts of this book that you produced, which has not been offered in evidence — from pages 36 to 55? (Objected to.)

“Mr. Smith: I offer, expect and intend to prove by the answer of this witness to this question that from pages 38 to 55 inclusive this book contains the record of the proceedings of the plaintiff, The Toledo Electric Street Railway Company, including a meeting of the directors of said company which was held on the 8th day of August, 1890, and that that meeting of the board of directors related to the appropriation of this property.

“Mr. Brumback: If your Honor please, upon that statement, we ask the court to look at the book and examine those pages.

“Mr. Smith: I object to the court looking at anything not •offered in evidence.

“Mr. Hurd: You are trying to offer it in evidence.

“Mr. Brumback: We desire the court to examine those' pages in order to enable the court to pass upon this objection.

“The Court: I doubt the propriety of the court looking at anything that has not been offered in evidence. I think it •safer for the court to rule against it, without looking at the book.

“Mr. Brumback: Please note an exception to the refusal of the court to make the examination of the book.

“Mr. Smith: Q. You may tell us whether or not, Mr. Robison, pages 58 and 64 and 65 of this book marked “Exhibit No. 2“ are a part of the records of the proceedings of the plaintiff corporation? A. 58 was not offered.

“Mr. Brumback: He means those that were not offered.

“Mr. Smith: Q. I am referring to one of those which were not offered.

“Mr. Brumback: We object to the question.

“Mr. Smith: The court has passed upon that. I offer, expect and intend to prove by the answer of this witness to' this question that pages 58 and 64 and 65 of the book marked “Exhibit No. 2” contain the records of the proceedings of the board of directors and of the stockholders of the plaintiff’s corporation, and that those records relate to the organization and existence of this corporation.

“Mr. Brumback: We state that there it nothing of the kind contained in these pages relating to the appropriation of the property sought in this proceeding, and ask the court to inspect the pages for its own information, so as to know that our statement is correct. The same ruling is made as before, I suppose, and we desire an examination of the book. (Objection sustained.)’’

And to that the Toledo Consolidated Street Railway Company took an exception.

“Mr. Smith: You may tell us whether ornotpages 70 to 83 inclusive of the book marked “Exhibit No. 2“ are records of the plaintiff company, and whether or not they contain the proceedings of the board of directors and of the stockholders of that company? (Objected to.)

“Mr. Smith: We offer, expect and intend to prove by the answer of this witness to this question that pages 70 to 83 inclusive of the book marked "“Exhibit No. 2,” are part of the proceedings of the board of directors and of the stockholders of the plaintiff company herein, and that these pages relate to the existence of this corporation; to the legality of the election of the persons purporting to act as directors of said company; to the election of the person purporting to act as secretary othis company; to the inability of this plaintiff to agree with the defendant corporation as to the compensation to be paid for the use of the property described in the petition herein, and that these pages were written,and the transactions therein recorded occurred prior to the commencement of these proceedings.”

Then counsel for the appropriating company denied that such matters were in the parts of the record in question, and then requested the court to look at it and determine it. The court refusd to do so, and sustained the objection, and the Consolidated Street Railway Company took an exception. I will not read all of this part of the record, for it is very lengthy.

“Q. I call your attention to the book marked “Exhibit No. 2.” I find that certain leaves in this book are fastened together. Tell us by whose direction that was done? A. Mr. Brumback and I did that.

Q. Mr. Brumback is your attorney in this matter? A. Yes, sir; and he is an officer of the company.

Q. “And these pages fastened together are part of the proceedings, or purport to be part of the proceedings, of the Toledo Electric Street Railway Company? (Objected to.)

“Mr. Smith: I offer, expect and intend to prove by the answer of this witness to this question that pages 38 to 55, both inclusive,page 58, page 69 and page 83 of said book are part of the consecutive proceedings of the Toledo Electric Street Railway Company from its alleged organization down to the time of the commencement of this suit, and form a continuous part of the book marked “Exhibit No. 2.” (Objection sustained; to which the defendant the Toledo Consolidated Street Railway Company, then and there excepted.)”

There is again a request by the'appropriating company’s counsel for the court to examine and see whether anything pertinent to the issue was contained in that part of the record; and the court again refused.

“Mr. Smith: We ask permission from counsel for the defendant, The Toledo Consolidated Street Railway Company, to inspect jointly with the court the said' book for said purpose. ”

• Mr, Brumback objected, again stating that it had no relevancy.

“Mr. Smith: Do you consent to or refuse counsel for the Toledo Consolidated Street Railway Company permission to inspect these parts of the book to which attention has been •called ?

“Mr. Hurd: We refuse of course.

. , On pages 146 and .148. the mattejr,came, up again ..in another form. After it is stated by the officer of the appropriating company that certain pages of this record were in the hand-writing of certain members of the corporation — - James J. Robison, Jr, — this question was asked:

Q. And 70 to 83, whose hand-writing is that? (Objected to by the plaintiff.)

“Mr. Smith: I offer, expect and intend to prove by the answer of this witness to this question that pages 70 to 83 inclusive are in the hand-writing of said James J. Robison, and the signatures thereto are those of James J. Robison and David Robison, Jr. (Objection sustained; to which ruling of the court the defendant, The Toledo Consoliaated Street Railway Company, then and there duly excepted.)”

Mr. Brumback, counsel for the appropriating company, again requested the court to look at said exhibit, and the court again refused. The court says (on page 147): ‘‘We will sustain the objection on the ground that these pages have not been,put in.evidence.” .

“Mr. Smith: We offer, expect and intend to prove by the •answ er of the witness to this question that pages 37 to 56,page 58,and pages 70 to 83 inclusive,of said ‘‘Exhibit No.2,” have been sealed up by this witness in such manner as to prevent any inspection thereof, and for the purpose of excluding this defendant, The Toledo Consolidated Street Railway Company, from an inspection of these parts of this alleged record.

The court sustained the objection, and refused to permit the witness to answer, and an exception was duly taken.

On page 480 further proceedings relating to the matter took place:

“Mr. Smith: .1 now offer in evidence pages 38- to 55, inclusive, of‘Exhibit No. 2,5 ”

' Objection was made again, coupled with the allegation and claim that these pages purported to contain, and did contain matter material to the controversy.

‘ ‘ Mr. Smith: I offer and expect to prove, following along in the line of what we already find on page 87 of that bjok,' that all the rights this company ever had in these ordinances and this property was transferred to one Willard F. Robison on or about the 8th day of May, 1890. Now I understand that book to be in possession of the court.

“Mr. Brumbaclc: No, sir; it is not; we only introduced these certain pages.

“The Court: I think that is the same question we had once before, in which the court refused to look at those pages, and now again refuses to do so. We feel, under the circumstances, compelled to exclude these pages from being offered in evidence.”

And there was again an attempt to get the court itself to inspect the book, for the purpose of determining its materiality, and also an offer by the attorney of the appropriating company to submit it to other persons — naming certain persons and officers — or other proper person; but the court refused itself to look into the record for the purpose of determining whether anything material existed therein, and refused to allow it to go in evidence, and made no order referring the matter to any other person for the purpose of reporting.

I have called attention generally to the whole aspect of that controversy. It will be noticed on inspection of the record that a large part of these objections were first taken in this part of the proceeding, upon the cross-examination of one of the plaintiff’s witnesses. The plaintiff had introduced a certain portion of the record, for the purpose of showing its due organization and its right to make the appropriation. ■ It was held by this court; in the Adams street case, to which allusion has been made, that it is competent for the plaintiff company to do that — that is, to offer certain portions of its records, and that by that act the whole: of the record is not necessarily in evidence; neither is it bound, in order to get that portion which it desires in evidence, to offer the whole record. The question, perhaps, thus presents itself: whether this was a proper cross-examination'that the court was bound to allow.

So far as we can see by the record, it would not tend' to call upon the witness to explain or deny or modify, any oral statements which he had made as a witness upon the stand. It was sought to lay the foundation, perhaps, for the introduction of this evidence, for the purpose of overthrowing the effect which might otherwise attach to the portion of the evidence which had been offered by the plaintiff company. It is claimed, however, or perhaps might be claimed, that this pertains to a matter which the plaintiff was bound to go into; that he was bound to prove these matters, and that therefore, under the ruling of the Supreme Court, the cross-examination might go into everything which bore upon this question whether the paintiff by the witness upon the stand had gone into every question or not. But, as remarked, we think this cross-examination would not come under that rule* since it did not by any answer which the witness himself might make, tend to overthrow the testimony which had been introduced to the court in the proceeding — that really it was laying the foundation for evidence thereafter to be introduced on behalf of the defendant company; that wás its legitimate effect, and while ordinarily, when a witness is upon the stand — a witness for the plaintiff — there is no objection to presenting certain papers which are desired to be offered afterwards by the defendant in its defense, for the purpose of identification, yet in ’strictness we cannot say that as a matter of right the plaintiff’s witness may be thus used when called upon the stand by the plaintiff. This is a matter which would naturally pertain to the defense; it is competent, to call in a witness for this identification when the defendant should present its case. We think, so far as the questions to the witness not allowed to be answered are concerned, that they were not strictly proper cross-examination, and that the action of the court cannot be said to be erroneous in that view'.

Now, as to the part of the record which indicates that the defendant itself desired this part of the record in evidence: The book seems to have been before the court, to be sure, but it was stoutly denied by counsel producing it that it did offer, or desired or intended to offer, the book in evidence, but only those certain pages to which attention was called; it declined to and refused to allow an inspection of the other parts of the record. Neither the probate court nor this court can know — the probate court having refused to examine it — of course, what in fact was contained in that portion of the record. We have the statement of counsel that he offered, expected and intended to prove by that record certain facts to exist; that is, that it related to the organization of the company and the legality of the election of certain of its officers. So far as the last is concerned, it has been said in one case — the 15th Ohio State I think — ■ that in such a proceeding the defendant company may not go into the question of the legality of the appropriating company.

The Revised Statutes bear upon the consideration of some of these questions' — ns to the inspection and production of documents. Sections 5290 and 5291 provide for the inspection and permission to take copies &c., of a book or paper, or document in possession of the opposite party, and Sec. 5290 contains this provision:

“If compliance with the demand within four days be refused, the court or judge may, on motion and notice to the adverse party, order the adverse party to give the other, within the time specified, an inspection and copy, or permission- to take a copy of such book, paper or document; and on failure to comply with such order, the court may exclude the paper or document from being given in evidence, or, if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party, by affidavit, alleges it to be; but this section shall not be construed to prevent a party from compelling another to produce any book, paper or document when he is examined as a witness.

“Sec. 5291: If the party in possession of any such book, paper, writing or document alleged that the same, or any part thereof, is of mere private interest, or of such character that it ought not to be produced, or an inspection or copy thereof allowed or taken, the court may, on motion of either party, direct a private examination thereof .by a master; if the master find that such book, paper, writing or document ■contains matter pertinent to the case, and proper to be produced, inspected or copied, he shall report the same to the ■court, or a copy of such part as he finds pertinent to the case, and proper to be produced, inspected or copied; and the book, paper, writing or document, or part thereof, so reported shall be admitted in evidence on the trial, unless excluded by the court for proper cause. ’ ’

It will be observed that the parties did not bring themselves under the provisions of this section; that is, there was no affidavit or any statement under oath of any person as to the contents of the record thus excluded. There was a claim on the part of counsel as to what he expected and intended to prove if it was admitted, but no affidavit. There was no application to the court, when the court itself refused to inspect the paper for this purpose,' for the appointment of a master, or any other person, under section 5291. That was offered by the other party, to be sure, but the Consolidated Company made no application to the court, and no order of that kind was by it asked, and no order was made, and the record itself is not in evidence, and what were the contents, as I have said, we cannot know. This ■question, like many others which have arisen in the case, cannot be entirely free from doubt; but we are unable to see that the judgment in this case should be reversed upon ■the action of the court in this matter. It stands upon the record that this was claimed by the party — we must suppose-in good faith that this book contained, as to the part now-under consideration, matters of mere private interest. It is not shown that the other party knew in fact what it wa& —the excluded portions of this record; no affidavit or other-proof of its contents is here, or the substance of it. No-action being taken in the matter pointed out by the statute-for a inspection, and no report of the materiality having been made, we are not clear that there is any foundation for the-claim that error is manifest in the action of the court in this matter. So far as we know now, the statement made-by counsel for the defendant company is true — that it did. not contain anything pertinent to the case.

It is said that a portion of the record which was exposed-to view indicated that the rights of the appropriating company had been assigned to some person, and it was claimed that if the balance of the record so concealed were revealed and shown to the court, it would indicate an assignment of all the rights of the appropriating company under this ordinance. It is a little difficult for us to conceive how that necessarily follows. It is said in all these parts of the record that this was a record of the doings of the plaintiff' corporation. A transfer of interest would not, ordinarily, appear — the transfer itself- — upon its own records. An authority to make the transfer might well appear thereon, if any such authority in fact were given; that might perhaps-appear thereon- — an admission that some transfer had been made might possibly appear thereon; but it is not offered-to show that the transfer itself appeared, and it does not appear that naturally it would appear -there. There is no evidence offered in the record, so far as we have found or so far as our attention has-been called, that would supplement any assumption that it might appear to that effect upon the record. There is no offer or proof of the transfer,. •except as might appear there, and in view of these denials •and the action taken, in the portion which I have read, we are unable to say that this action was erroneous.

Upon the trial before the jury, a return for taxation over •the signature of an officer of the defendant company, was •offered as bearing upon the value of this part of the road in •question here. It was objected that a return for taxation under those circumstances, is no proof whatever of the value •of the property — upon the known usage of persons; that it •should not be regarded as proper evidence, and that under •the law it would no be. We confess that as to an ordinary person having no knowledge of the actual transactions of .property owners in this state, it would appear that returns for taxation might not be any very weighty evidence of the •actual value of the property designated therein; but this •is a matter as to the weight of the testimony, and we are unable to see why it would be incompetent to show a veri•fied statement of the managing officer of this company, stating in so many words what the actual value of the property ■in question was, and the question of competency is here •urged rather than its weight, which must be determined.

It is further claimed that one of the jurors was incompetent. ¡Of course, this transaction here is not to punish this juror;, whatever punishment he might be liable to for the action •that he took in appearing there and answering to a name .not his own, that is not for this court to go into. It seems that á juror not drawn upon the panel regularly, but .an interloper in the case, answered to the name of the .juror, and perhaps the parties supposed all the while that •he was really the man drawn. It turned out, after the ver- • dict, that this man was the father of the person really designated in the venire. This John Brown was summoned. .His name appears, and Michael Brown was the man who appeared and answered to the name of John. It seems he rtold the sheriff that he was not John Brown, but was sometimes called John Brown, but that his name was Michael.' If that was true, there would be a little doubt as to what the duty of the sheriff would have been, under circumstances of that kind, and whether he did his duty or not we do not know, except that it does not appear whether he did anything, and so far as we have been able to go through this mass of testimony, we do not find anything bearing upon the question as to whether counsel for either, party knew anything about it. There was the fact — he answered to the name of John Brown. He was not specifically asked if he was John Brown. He was a resident of the same ward with John Brown; he was, in fact, an elector, a legal juror, so far as his general status was concerned. Whether the parties concerned knew of this matter we do not know. There was no affidavit, or evidence, so far as we have ob- ■ served, to show that the parties concerned, or the officers, or counsel, did or did not know of this matter. Now, under those circumstances, we think that after this great trial it would not be proper for us to reverse the judgment of the jury for a matter of that kind; especially in view of the fact that he was a competent juror if he had been drawn, and that we are not apprised but that the parties seeking to complain knew regarding the matter during or before the trial.

We come now to the principal matter in this case, and that is as to the holding' of the probate court upon the question of damages. It seems that court excluded from the consideration of the jury finally, all testimony to show the costs'that the Consolidated Company had been put to in the matter of paving between these tracks, or the amount assessed upon it in;lieu of its doing the paving work itself; Testimony: was' given indicating the amount, but it was aftórwards excluded, and in various parts of the record the probate court held — indicated to the' jury and to counsel^ that he didn’t regard the cost of paving as a legitimate subject of inquiry in the'case at all. It is said that he did this even with the proof that it rendered the tracks and structures of the defendant company themselves more valuable, firmer and in better condition and shape, and also' would probably make it last longer; and finally excluded-from the jury the consideration of the matter of pavement as originally put down.

Attention is called to the- decision of this court in the Adams street case, supra, upon this matter. Now it is fair to say that in that case the question really did not come up for necessary consideration. There was a suggestion regarding it in the record, and the court proceeded to state its views in the matter, and embodied it in the syllabus of the case after it was prepared — a statement of conclusions as to what would be proper for the jury to take into consideration in such a case,namely, that it might consider the question of the pavement,. In that case it had been stated by the probate court (through another Judge) that that was an element to be considered; not that any proportionate part of it would on that account be assessed against the appropriating company, but that it was a proper element to be taken into consideration by the jury in determining the value of the use sought to be appropriated. Well, now, we are still inclined to the opinion that what was'said in the case was the true conclusion in the matter; nevertheless, we find almost absolute dearth of authorities upon it:' A case in 1 Red-field on Railways was alluded to, a report by the Massachusetts Commissioners which bears upon the matter, but it will be noticed in that matter that there was a commission under the laws of the state of Massachusetts to determine these matters! ' It also appears in that casé that' the Broadway Street Railway Company, one of the partiés to that case, and the Metropolitan Street Railway Compány, whose tracks were to be used, had, befóré any franchise was granted to either, assented to a franchise that appeared in certain •proceedings before the legislature and endeavored to join to procure favorable action of the legislature in that respect. "They went into the matter in certain respects as partners in the transaction to obtain this concession. Afterwards it was arranged that the concession should be taken in the name of the Metropolitan Company,and the Broadway Street Railway Company should use a portion of these tracks after ■they were to be constructed, and nothing especially was said • as to what compensation it should make. Afterwards the Metropolitan Company having the concession, constructed its tracks — complied with the law and the ordinances with regard to the paving of the streets, and allowed the Broadway Company to use its tracks, and the question of what would be a fair compensation under those circumstances was presented to this commission. But while as to compensation under circumstances of that kind a little different •conclusion might be arrived at than in a case of this kind, it would seem that the commissioners were assuming to -proceed upon general principles such as they thought applicable to a case of that kind, or to Ihe case of an appropriating company where one company proposes to use the .tracks of another. They express dovrbts as to the correctness of the rule that they lay dowi is to whether the ..pavements which were to be done by tk-i Metropolitan Company should be considered, but their conclusion finally is, •that it would be equitable to consider the costs of those .pavements, and that a certain definite proportion of the whole matter should be assessed against the company that '•was using the track.

72 N. Y. 330 is a case which alludes to this matter in ..general terms,, as to the specific matter of pavement — Sixth Avenue Railroad vs. Kerr et al. It simply alludes in a .general way to this report of the Massachusetts commission-ers, and generally approves the reasoning. In a work which .has lately been written upon Street Railway Law, by Booth, this appears, being a part of Sec. 116, on page 170,. which is one considering the question of compensation fpr the use of tracks of another company: “A very important and pertinent inquiry at once arises: does this include the costs of bridges, viaducts, tunnels, or tolls for using them, the cost of the right of way over private property, the amount of future taxes and assessments, the expense of sprinkling and sweeping the streets, the removal of snow; from the tracks, the changes of grade to conform to public improvements- the original grading, the changes in gauge, size and kind of rails, to conform to charter obligations or rendered necessary by the changes in motive power or improvements introduced to secure greater speed and for the safer and more convenient handling of cars, the original cost of making pavements and the expense of their repair and renewal, and many other items necessary for the efficient maintenance of the roadway ?”

This leaves it as a query, and says that all these questions will arise. In a note it alludes to the holding of this court in the Adams street condemnation case; and substantially those authorities — if you may call them authorities at all — are all of the authorities that we have been able to find, all that have been suggested by counsel, bearing upon this question of taking the original construction of the pavement into consideration in determining the values to be assassed here.

Counsel for defendant in error strenuously maintain that the probate court was right in its ruling from, the jury evidence as to the expense of pavement, substantially on the ground that inasmuch as the ordinance of the Consolidated Company required it to supply and maintain the pavement between the rails of these tracks, such expense was the quid pro quo paid by it for the long' years of use of the street enjoyed by it; and that the appropriating company should be no more called upon to pay any portion of such pavement expense than it should be called upon to pay abutting property owners for the pavements laid by them in the streets where its new tracks are laid.

It will be seen upon this general view of the matter that it is a matter of great uncertainty. It is not settled. Now, counsel for plaintiff in error say, ,in their brief: “It being necessary then to set aside the judgment and order a new trial, and as such order is not a final order from which proceedings in error may be taken, we believe' it to be greatly for the interest of all parties thereto that all questions involved in this legislation should be passed upon by the Supreme Court at the earliest time and in the most convenient manner.’’ Now, in view of all these interests involved in this record, this question is presented to us: the question of the rule of damages in such a case; and while we have an opinion upon it and which we have expressed, we cannot find that it is supported by any authority bearing directly upon the question. If we should reverse this judgment for errors of the court occurring upon the trial, and send it back to the common pleas for another trial, in the natural order of proceedings, the case would again come into this court upon error, until finally some party would take the whole matter to the Supreme Court, and the questions made upon a former hearing of this case would be decided. This great case would simply be handed back from one court to the other upon questions of what is proper in the trial of the case before a jury without the important questions arising in the case ever being authoritatively decided by the Supreme Court until it should finally go to that court.

We think in view of the situation of the case and the doubts that arise in the matter, that it would be more proper for this court to affirm this judgment notwithstanding its doubts regarding the measure of damages, than to simply reverse it and send it back to the court of common pleas for a trial before'a jury. We are not inclined to reverse this judgment, upon the other questions here; and counsel can well see the condition in which the case and the parties would be in for many years, perhaps several years, in case we sent it back.

There is another important question in this matter, and that is as to the question of future maintenance and repairs: whether this is to be considered by the jury, or whether it was to be left for final adjustment in some manner after appropriation proceedings shall be had and the parties enter upon the use. In the former case cited by this court, that question cannot well be made or passed upon by the Supreme Court, as we think. However erronous a view might have been taken by the probate judge in that case regarding the matter, if any error was committed, it must be regarded as in favor of the plaintiff in error, and we so regarded it and found that it was not prejudicial error whether it was in fact error or not. It is an important question, and can never be authoritatively settled until it has been passed upon by the Supreme Court. We confess that we are in doubt about it. We have no right to reverse this judgment upon any consideration of that kind, unless we feel clear that there has been manifest error, and we are not sufficiently clear to warrant us in reversing the judgment on that account. And so we think, with counsel for the plaintiff in error, that it is better for the ease to go into the Supreme Court, and these questions be authoritatively settled at as early a day as possible. In saying this, and in affirming this judgment, we say that we are not convinced that in any of these matters there is error. We simply are not clearly convinced that they are so prejudicial as to warrant us acting under the general rules ■ which bind us in these matters, to reverse the judgment; and therefore we have determined to affirm the judgment, and the entry will be so made.

Baker, Smith & Baker, and Doyle, Scott & Lewis, for Plaintiff in Error.

Frank H. Hurd, Orville L. Brumback, and John F. Humler, for Defendants in Error.

(The case was taken to the Supreme Court on error, but there dismissed by consent of parties without a decision on the merits by that court,)


author: Price, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    January Term, 1895.)
    Before Haynes, Scribner and Price, JJ.
    (Judge Prior of the Third Circuit taking the place of Judge King.)
    ADAM KARSNER, v. THE UNION CENTRAL LIFE INSURANCE COMPANY.

      Life Insurance Agency — Cancellation of Agency — When for Company alone to determine—
    Where the contract between an insurance company and one of its general agents for a fixed period .of years, provides — “That whenever the amount of new business done by the agent is, in the opinion of its officers, unremunerative; or, when the business of the company is not conducted in a manner satisfactory to the officers, they may cancel the contract:” Held: It is for the officers alone to decide, if acting in good faith, when the condition , arises for such cancellation.
    Error to the Court of Common Pleas of Lucas County, 0,
   Price, J.

The plaintiff brought his suit against the defendant company, in the court of common pleas of Lucas county, and after formal averments, usual in an action against a corporation, alleges in his petition the character- of the business of the defendant to be that of issuing policies of life insurr anee, and also of loaning money to the insured on certain terms as to times of payment and rate of interest; and further that prior to June 19th, 1890, he had been in the service of the company as its agent in a district near to or about Toledo, under contracts made with the defendant, one in 1886 and the other in 1889; that in the latter year, an ■ arrangement was made between him and the defendant, whereby the plaintiff selected certain territory in the state of Missouri, in which he was to act for defendant as its general agent, and that in pursuance of this arrangement he went to Missouri and took charge of that field, and entered upon the duties of such agency. He further says that to evidence the duration of his term (five years,) and the rates of his commissions, and for that purpose only, he signed a written contract with the company, on the 19th day of June, 1890, (which we will refer to more fully hereafter), which provided a term of five years’ service for the company as its general agent in the counties of Missouri named therein, and also providing rates of commissions as his compensation on the different classes of policies which might be issued within his district.

The plaintiff further alleges a contemporaneous parol contract with the company, whereby it agreed to furnish him for the purposes of loans to parties who would insure, all the money necessary to supply the demand in his district, and that all correspondence should be direct with the company, and not through any branch or other agency; and that the company would provide for local examination of abstracts, so that the work could be facilitated and delays avoided. Neither of the latter provisions is in the written contract.

After more fully detailing the facts of this cause of action, plaintiff says that after he located in Missouri and had built up a good business, the company became slow in supplying money for loans- — -failed to meet the demand; was slow in passing on loans and abstracts; did not send correspondence direct to him, made a change requiring the borrower to take insurance in double the amount of the loan, and by these and other means retarded him in his work, disappointed customers and injured and crippled his business — and that on the 7th day of December, 1891, the company, without good cause, cancelled the contract and terminated the agency to his damage in the sum of twelve thousand dollars.

The amended answer filed during the trial, which we find in the record, denied all the parol arrangements above quoted, and sets out two distinct sections of the written contract, under which defendant claimed to be justified in cancelling it, and admitting that the contract was declared cancelled by defendant at the time alleged by the plaintiff, denied all damages, etc.

The trial resulted in a verdict for the company. A motion for new trial was filed and overruled, ,and exceptions were entered.

The grounds of error relied on are as follows, in substance:

First: The verdict is not sustained by sufficient evidence.

Second: The court erred in the charge to the jury as to one particular part thereof.

Third: Misconduct of the jury in regard to conversations with agents of the defendant, and that one of the jurors was not competent, as found out after the verdict.

It must be observed at the beginning of our consideration of'this case, that most, if not all the delinquencies which the plaintiff charges on the defendant, and which led to his injury, were delinquencies in not doing certain things, not promised to be done in the written agreement between the parties, but were provided for alone, and existed alone, in the parol contemporaneous agreement, to-wit: to supply all the money needed for loans; to furnish local examination of abstracts, to conduct correspondence directly with plaintiff and not through any other branch, and to send no other agent to plaintiff’s territory etc. None of these provisions are claimed to be in the written agreement,but they rested in the parol agreement.

The bill of exceptions discloses that great latitude was given plaintiff by the trial court in the introduction of his testimony. He was permitted to put in evidence the written contracts of 1886 and 1889, and give the parol understandings that ran with them, under the claim that such evidence was necessary in order to a correct understanding of the contract or contracts on which this suit is founded.

In the light of all that was introduced — that which was competent and that which was incompetent — what was the contract between these parties during the agency in Missouri? Were there two contracts — one in writing and the other in parol running along with the writing? Or, was there but one contract binding on the parties which was in writing, and that the other things done or to be done were simply incident to the performance of the written contract?

We hold that there was but one contract — the one in writing. If there were negotiations and propositions pro and con, which were under discussion prior to the execution of the writing, they'are supposed to have either merged in the written agreement or had been abandoned by the parties. We are unable to see how there can exist such a contemporaneous parol contract as is relied on in this case.

The written agreement provides for five years service, at a certain monthly salary, and certain commissions in addition thereto. Could there have been contemplated by the parties that they were also acting under a contemporaneous parol agreement for five years, dealing with the same subject in many respects and necessarily covering duties of the parties relating to the same -subject matter? We think not. It would be of no benefit to the plaintiff for us to find otherwise, because a parol contract not to be performed within a year, is invalid under our Statute of Frauds, and the plaintiff could base no action upon it. But we find from the evidbuce of the plaintiff himself, that the business of defendant was life insurance under the laws of Ohio; and that he was to receive no commissions on any loans made, his compensation being certain commissions on the cash premiums paid in addition to monthly salary. Under the law, the •company could not loan more than its surplus money, and that would necessarily vary from year to year. It is but fair to conclude, that the matter of loans was but an incident to the main business, to-wit: life insurance.

We proceed to the consideration of the terms and conditions of the written contract, the only contract binding on the parties.

The term of agency was five years, but subje'ct to certain powers contained in the latter part of the instrument, and it was by virtue of these powers, that the defendant exercised the alleged right to cancel the contract, as it attempted to do by the letter dated December 3rd, 1891, and which was received by plaintiff December 7th, 1891,

The 6th section or clause is as follows: “In case the said agent fails to comply with any of the conditions, duties and obligations under this agreement, or should the amount of new business received by said agent prove insufficient or unrenumerative in the opinion of the officers — nr if the business of the company be not conducted in a manner satisfactory to the officers, then the company may, at its option, terminate this agreement.”

10th: “This contract may be terminated upon service of notice by the company upon said agent for good, cause in accordance herewith; otherwise shall continue in force for the term of five years from July 1st, 1890, etc.”

The record discloses, that on the 8th day of October,-1891, the defendant wrote a letter to the plaintiff, calling his attention to the decrease of new business and the increase of expenses, and in a tone of complaint, asked the plaintiff for an explanation of the cause — to show why the company was receiving so little benefit for such large out-lays.

There was no answer made to that letter giving any explanation, so that on December 3rd, the defendant, by letter, notified the plaintiff, that under the right reserved in section 6 of the contract above quoted, it cancelled the agreement, on the ground that in the opinion of the.officers, the business was not renumerative etc,, and plaintiff was directed to surrender all papers etc. belonging to the company.

This action of the defendant is the principal ground of recovery in this case. Under this contract, had the defendant the right and power to terminate the agency, and was the power rightfully exercised?

It was claimed in argument, that the falling off of the business was largely the fault of the company, in not supplying money for loans — and also in changing the rule, so that a party desiring to obtain a loan, must take insurance in double the amount borrowed — which was objectionable, •and lost business to the agent and the company.

There is no provision in the written contract as to what amount of insurance the borrower should take, and, as before stated, no agreement as to furnishing any money for loans; and if these things had been merely a matter of previous custom, we see no reason why the company could not change such methods as the exigencies of the case might require.

The company itself is a subject of legislation and legislative control, and its manner of conducting its business may be changed and regulated from time to time as the General Assembly deems wise and prudent. So, also, the company, where not restricted by express contract, may modify and •change its methods of business, without being liable in damages to one of its agents for such changes.

The court charged the jury,that if the officers of the company acted in good faith in cancelling the contract under clause 6 of the same, the plaintiff could not recover, This is not the exact language, but the substance thereof. There was an exception taken by the plaintiff to this part of the charge — not so much that it is not the law, the counsel say ■ — ns, that at the request of defendant, the court, at the close of the charge, gave prominence to this rule by repeating it to the jury

Was the law charged correctly? We have examined the cases cited by counsel, and have carefully considered such other authorities as have come under our observation in the practice.

In the case of Barrett v. Hart, 42 Ohio St., we find a rule quite pertinent: ‘‘A chattel mortgage contained the following: If the said party of the second part shall at any time deem himself in danger of losing said debt or any part thereof, by delaying collection thereof until the expiration of the time above limited for the payment thereof, * * * said party of the second part is hereby authorized to take possession of said goods at any time etc. Held, The mortgagee may take possession of such property, when he, acting in good faith * * * does deem himself in such danger.’'

In that case, the Supreme Court quote the following from the case of Furlong v. Cox, 77 Ill. 293: “This rule does not require that there should be actual danger, or that the proofs should furnish the court, at the time of the trial, with reasonable grounds to decide that there was actual danger; but it will be sufficient if at the trial, it appears that at the time of taking possession there was apparent danger * *

It was held in Cline v. Libby 46 Wis. 123 — that a “clause in a chattel mortgage providing that if a mortgagee shall at any time deem himself insecure, he may take possession of and sell the property, vests in him an absolute discretion; and his right does not depend upon his having reasonable ground for deeming himself insecure.’’

Here we again call attention to a part of clause 6, in the contract: “Or, if the business of the company be not conducted in a manner satisfactory to the officers,then the company, at its option, may terminate this agreement.’’

By this clause, if the business was not being conducted in a manner satisfactory to the officers of defendant, it could cancel the agreement. What were the rights of the defendant under such language?

In the case of Wilbur v. Bingham and Phelps, 3rd Circuit Court Reports, page 459, that court held:

“Where it is agreed that a furnace for a dwelling house shall be placed in the house and shall be satisfactory to the defendant, or if he is not suited with it, he need not pay for it, and may reject it, it is error to charge — that if the furnace was built in a workman-like manner and performed its intended purpose in a manner that ought to have suited and satisfied the defendant, he had no right to reject it.”

The case just cited quotes a number of authorities bearing on the question, showing that by the use of such language the party to whom the promise is made is the sole judge as to whether the work done is satisfactory.

In case of Brown v. Foster, 113 Mass., the Supreme Judicial Court say:

“If the plaintiff saw fit to do work upon articles for defendant and furnish materials therefor, contracting that the articles when manufactured should be satisfactory to the defendant, he can only recover on the contract as it was made; and even if the articles furnished by him were such that the party ought to have been satisfied with, yet, it was in the power of the other party to reject them as unsatisfactory. It is not for any one else to decide * * * ”

In the case of Gibson v. Cranage 39 Mich., p. 49, it appeared that an artist had undertaken to enlarge a picture — the picture, when completed, to be satisfactory to the purchaser. It was completed, and it was proved at the time that it was an excellent picture, and such as should have satisfied the party.

The Supreme Court, however held:

“The plaintiff agreed that the picture, when finished, should be satisfactory to the defendant. It may be that the picture was an excellent one, and that the defendant ought to have been satisfied with and accepted it, but under the agreement, the defendant was the only one who had a right to decide that question. * * *. ”

In a Connecticut case, the plaintiff, a sculptor, agreed to make for the defendant, a bust of her deceased husband, agreeing that she was not bound to take it unless she was satisfied with it. The bust when completed was a fine piece of workmanship and an accurate likeness. The defendant was not satisfied with it, and-refused to pay. The Supreme Court of that state said:

“Courts of law must allow parties to make their own contracts * * *. Whether the contract is wise or unwise, reasonable or unreasonable, is ordinarily immaterial. In this case, the plaintiff undertook to make a bust which would be satisfactory to the defendant. The case shows she was not satisfied with it. The plaintiff has not yet fulfilled his contract.” * * *.

Zaleski v. Clark, 44 Conn., p. 218.

See also Wood Reaper and Mowing Machine Company v. Smith, 50 Mich., 565; McCormick Harvesting Company v. Chesrown, 33 Minn., 32. The authorities are numerous on this line, and very harmonious.

The law of the case at bar was correctly given to the jury. It was the duty of the court, and not the province of the jury, to construe the contract, and we find no error in the charge of the court in his respect.

It has been pressed in argument in behalf of the plaintiff, that the cancellation of the agreement worked a great wrong in that it deprived him of commissions on renewal premiums maturing afterwards on policies which he had solicited. His contract controls that. See the clause at the bottom of the first page: “Commissions shall accrue only as premiums are paid to said company. ”

Wilson & Gorhery, for Plaintiff.

Robert Ramsey, and C. ~V. Wagner, for Defendant.

Directly above this is the statement,§ under the head of commissions: “Fifty per cent, on first year’s premium; on all subsequent years' premiums during the continuance of this contract, five per cent.’’

It is plain,from this provision, that if the contract ceases, the right to commissions ceases also, and there would be nothing due plaintiff on collections of subsequently maturing premiums.

As to the only remaining question' — the misconduct of the jury — we have only to say, that all that the plaintiff charged on this subject was fully denied in the trial court, and that court did not err in refusing a new trial on that account.

The judgment of the lower court is affirmed.


author: Haynes, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    January Term 1896.)
    Before Haynes, Scribner & King, JJ.
    AMERICAN LAMP AND BRASS CO. v. FRANK M. BALDWIN.

      Contract for fixed salary — Can not be modified by employer without employe's consent.—
    Where a contract provides for a fixed salary for a certain time for an employe, and the employer asks a modification involving a temporary reduction of such salary which is not assented to by the employe who however ofiers the modification of the contract in a different form, which is not assented to by the employer, there is in such case no valid modification of the contract, and the employer proceeding thereupon to act according to a modification óf the contract by paying the reduced salary as proposed by it, is liable to the employe for the balance of the salary is fixed oy the contract.
    Error to the Court of Common Pleas of Lucas county
   Haynes, J.

This action was brought upon a certain contract existing between the plaintiff below and the defendant for his services for a term of years. It appears from the testimony that plaintiff was employed as a salesman by the defendant, speaking oE the parties below, at a salary of $2000 a year, payable in weekly installments, and the arrangement continued until the 22d of August,’93, when a proposition was made by the defendant below to the plaintiff to modify the contract. Without reading the letter, it proceeded to say that owiug™to the hard times they are not able to keep the plaintiff employed, and other companies are reducing expenses, and they find it necessary to reduce theirs; that the officers of the company have voluntarily reduced their salaries, and they ask him if he would not reduce his salary from the time of the date of the letter, or about the 1st of September, to the 1st of January following — a temporary reduction of 25 per cent. — in order that they might be able to keep him employed. To that he replied that he had received the letter; that he fully realized the condition of affairs and the present depression of business; and stating that his personal expenses were as great as ever, yet at the same time he says, “I will make you the following proposition: to avoid violating the contract at present existing between us will allow you to draw upon me last of September, 1893, for $41.67, and each succeeding month until last of December, 1893, for same amount. This will amount to same as the reduction you ask for. Hoping this will be satisfactory, I remain, yours truly. ’ ’ They did not answer the letter, but at some time subsequently they commenced to send to the wife of the plaintiff an amount equal to the amount of the salary with the 25 per cent deduction, the letters stating that the amount is sent to apply on salary. Mr.Baldwin had requested the defendant to send his salary to his wife. They had been so sending it, and August'lOth sent a check for thirty-eight dollars and some cents in full for the salary for the month of July, but after this date they sent to her a statement saying they sent her a check for $28.85 to apply on salary. It nowheres appears that the plaintiff had any -knowledge of that fact in any manner or form. In the first place they didn’t send any money at all for some time, and then they sent it for a short time, and they didn’t send enough to pay the whole salary at even $28 per week by about $100. There was a credit, however, as against that to be allowed, from a certain draft and a certain acceptance which would amount to about $80, leaving about $20 on that still unpaid. With these facts before the court, briefly stated, the plaintiff in error objects that the jury returned a verdict for too much, having returned a verdict for the amount of his salary according to the contract price; and second, that the court erred in submitting to the jury certain questions arising upon these letters and upon the action of the parties under them.

The plaintiff in error claimed that all of these letters and contracts amounted to a new agreement, and excepted to that part of the charge of the court which reads as follows :

“Now it is,- as I say, not for me to say whether this was changed or not, but it will be for you to say. I may say only this — perhaps may properly say this: that you are not to look necessarily at any particular circumstance connected with it; you are not, to use a common expression, to ‘stick in the bark’- — that is to say, to view the circumstances as meaning any more than they do mean when you look at them as business men in the common view of business transactions. You are to look and determine, I say, as to whether the details of the transactions as stated in these letters are carried out — as you are to look at the intent and purpose of the parties and the circumstances under which they acted in connection with these letters, and you aíre to take all these circumstances into consideration for the purpose of determining in what light the parties understood the arrangements between them, and how they acted upon them. If you find under these rules simply that there was this agreement made to change the amount of the salary which was to be received, of course you will in making up that amount after that time make it at the lower rate; if you do not find any such arrangement established between the parties, you- will then regard the compensation as being at the old rate. This is all the instruction the court thinks you will need in passing upon the facts as they are revealed to you by the evidence, ”

We think the court was right in its opinion that there was no evidence before the jury to show that a new arrangement had been made or a new contract had been made. There was a proposition upon one side, but that was not accepted, but a counter proposition was made, and that was not accepted upon the other side. They proceeded to send a certain amount of money, not upon that contract, but to be applied upon the salary generally. We think the court might well have refused to, as it did, hold that a new contract was made, and we think that it might have rested there and let the case go. But the court did leave the question to the jury whether, under all the circumstances of the case, there had been an agreement made which had been acquiesced in and accepted by the parties; for that is what it amounts to, because, as I have said, there was no evidence to show that the plaintiff ever knew that this money had been advanced to his wife in any manner or form, The court went a great, ways in favor of the defendant below in submitting this question to the jury. It does not lie in the mouth of the plaintiff in error to object to it as to the manner and form in which he did it.-

Without discussing any of the other questions, we simply hold in this case that the verdict was just and right, and, if anything, for a less amount than it should have been; and we hold that the charge of the court not only upon the point that was excepted to, but the action of the court in refusing to give the charges that were requested by the defendant below, the plaintiff in error here, was correct.

W. H. A. Bead, for Plaintiff in Error.

A. Farquharson, for Defendant in Error.

The judgment of the court of common pleas is therefore affirmed, but without penalty.


text:
    (Fourth Circuit—Athens Co., O., Circuit Court
    Sept. Term, 1890.)
    Before Clark C. J., and Cherrington and Russell, JJ.
    HERBERT BYARD v. THE B. & O. S. W. RY. CO.

      Bill of Exceptions, not signed by trial judge within fifty days, must show reason—
    A bill of exceptions should show why the same was not signed by the trial judge within fifty days from the rendition of the judgment excepted to and sought to be reversed, else it will, on motion, be stricken from the files; and where the petition in error contains no assignment other than the one appearing in thebill itself,as in this case, the petition in error will be dismissed on motion.
    Error to the Court of Common Pleas of Athens Co.
   The case came upon a motion to dismiss the petition in error.

The trial in the common pleas was had on the 24th day of June, 1893, at which time a motion was made to arrest the case from the jury, which motion was sustained, and plaintiff excepted, and on the 8th of August, 1895, the plaintiff deposited in the office of the clerk of the court of common pleas a bill of exceptions in order to have the same 'signed and allowed, and at the next term of said court; to-wit, the October term, 1895. The Judge of said court of common pleas, on the 15th day of October, 1895, signed said bill of' exceptions, which was within the first five days of said October term, 1895, of said court of common pleas.

Sleeper, Sayre & Davis, for plaintiff in error.

Grosrenor, Jones & Worstell, for defendant in error.

The record was silent and failed to disclose any of the reasons named in the proviso of said section 5301 Rev. Stat. for allowing the bill of exceptions to be signed and allowed and filed wi.thin five days after the first day of the next succeeding term, and the bill of exceptions not having been signed, allowed and filed within fifty days from and after the day the decision was made:

By the Court: Held, that there was no bill of exceptions, and the motion to dismiss the petition in error was sustained, and said petition in error of the plaintiff was dismissed, with costs.