author: MARVIN, J.

text:
    ABANDONMENT — RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    October 28, 1912.]
    Marvin, Winch and Niman, 33.

    Cleveland & P. Ry. et al. v. Frank B. Ward et al.
    1. Resolution of Railroad Changing Right of Way to Eliminate Grades and Curves not Abandonment of Tract Originally Used.
    .When land has been acquired for a right-of-way by a grant to a railroad company which contains a clause to the effect that the land is to be used only for the purpose of operating a railroad over it and for purposes convenient thereto, the passage of a resolution by the board of directors of a railroad at a later date, reciting , that, for the purposes of eliminating grades and curves and to facilitate travel the line of the railway should be changed at a point, the actual construction of a new line of road upon a new right-of-way, and the removing of the rails and ties from the old right-of-way, do not amount to an abandonment of the old right-of-way for all purposes connected with the operation of a railway if the railroad company continues to exercise dominion over it and it appears that it would be valuable to the company for switching purposes.
    2. Abandonment of Railway Right of Way Question of Intention.
    The question whether or not there has been an abandonment of an easement is to be determined by the intention of the holder of the dominant estate and such intention is not proven by a mere nonuser for a period of three years.

      Squire, Sanders & Dempsey, for plaintiffs.

      Q. J. Gould and A. IP. Lamson, for defendants.
   MARVIN, J.

Each of the plaintiffs is a railroad corporation. The first is the owner of a railroad line extending- from the city of Cleveland, Ohio, easterly through Bedford township, Cuyahoga county, Ohio, to the city of Pittsburgh, Ra. The séeond is a lessee of this line of road from the first, and is the sole operator of the said line of railroad.

The defendant, Frank B. Ward, is the owner of certain land in Bedford township through which said railroad line as originally constructed in or about the year 1850 passed, and over which the same was operated, continuously, up to about the month of May, 1904.

The Cleveland & Pittsburgh Railway Co. obtained its rights in the land, which is in dispute in this ease, from the predecessors in title of the said Frank B. Ward. The greater part of s¡aid land was owned, at the time of the original construction of the railroad, by J. W. Ward. Another parcel was owned by School District No. 7 of Bedford township, and still lamother by one Samuel Burchfield. Whatever rights said original owners would have had in the present action, had there been no change of ownership, are now in the defendant,- Frank B. Ward, as the successor in' title of said original owners.

From those several original owners, the Cleveland & Pitts-burg Railway Co. obtained its rights by instruments in writing, all of siaid instruments being substantially alike. Each recites the legislation by which the railroad company Was authorized to construct its line of railroad, etc., and then in the -writing of J. W. Ward these words follow:

“Now, therefore, in consideration of the benefit to accrue to my property by the construction of said road, and especially for $180 to be paid by said company on entering the land for the construction of said railroad, I hereby agree to grant to said company the right of way for said road through and over the lands belonging to me, and particularly to the following- described land lying in the township of Bedford in the county oE Cuyahoga, being part of lots numbers 76 and 77 as now staked and located, it being understood and agreed that 'the said Ward is to make and construct his wagon way and crossing accord: ing to the directions of the company’s engineer, at his own expense. The said right of way, however, not to exceed 66 feet in width; to be held by said company, its successors and assigns forever, bnt for the purpose only of running a railroad over the same, and for purposes convenient thereto. And I agree that the said company may forthwith enter upon the possession of the land and take the materials hereby granted, and that I will execute according to law any deeds or other instruments in writing for the full and perfect conveyance of the rights hereby granted on reasonable request by said company.
“Bedford, October 10, 1849.
“ (Signed) J. W. Ward.
“Received the consideration mentioned in the within. $180 October 13th, 1849.
“(Signed) J. W. Ward.”

Without quoting from the other writings, they .are in effect the same, differing in the consideration, and the description of the land, and in no other material particular.

Later in this opinion these instruments are spoken of as grants, under authority of Junction Ry. v. Ruggles, 7 Ohio St. 1, Judge Brinkerhoff, in the opinion at page 7, speaking of a similar writing, says it is to be treated as if it were a formally executed legal conveyance.

Some time prior to the year 1900 the Cleveland & Pittsburgh Railway Co. decided to construct a new line of road between the village of Bedford and a point something like two miles southerly or southeasterly from said village, between which two points the line as originally constructed and as operated up to the month of May, 1904, was over and upon the land described in said several instruments of writing, hereinbefore referred to.

In furtherance of said purpose to construct such new line, the board of directors of the Cleveland & Pittsburgh Railway Co. took action on March 15, 1901, as appears by the minutes of the proceedings of said board in these words:

“Besolved: By the board of directors of the Cleveland & Pittsburgh Railroad Company, that, for the purpose of avoiding annoyance to public travel and difficult and dangerous curves and grades in its railroad, and to facilitate the movement of tha greatly increased traffic, and to enable this company to more efficiently and satisfactorily perform its duty to the public as a common carrier of freight and passengers, it is necessary to change the location and grade of its railroad from a point at or near Wheeloek Summit, Cuyahoga county, Ohio, to a point in the village of Bedford, Cuyahoga county, Ohio, for a disatnce of about 40,000 feet without, however, departing from the general route prescribed in its Articles of Incorporation.
“Further Resolved-. That for the purpose aforesaid, the location of this company’s railroad be changed between the points above stated from its old location to the new location, as shown on the map presented to this board, marked ‘No. 7902,’ which said new location shown upon said map is hereby adopted as and for the location of this railroad between said points, the same being more particularly described as follows, to-wit:
“Diverging from the old location of the Cleveland & Pittsburgh Railroad Company at a point near the Wheeloek Summit by a 50 degree curve to the left.”

Then follows a particular description of the proposed new line.

The new line so decided upon was constructed by the Cleveland & Pittsburgh Railway Co., and trains began running thereon in May, 1904.

Within a few months thereafter the rails and ties were re' moved from the old line, leaving along said line, or on a considerable part thereof, fills and embankments which consisted of gravel, earth, stone, cinders, etc., used in construction of the old road bed.

The defendant Ward, claiming to own the unused right-of-way, was, at the bringing of this action, removing from such old road-bed such material, and the other defendants, the township trustees, were also removing such material from said old bed, claiming their right so to do by consent given to them by said defendant Ward.

This action was brought on November 20, 1907, seeking to enjoin the defendants from removing such material and from in any manner interfering with said road-bed or its material, or any part thereof:

From the instruments under which the railroad company acquired its rights in the land in controversy, whenever it abandons the same for railroad purposes., it loses all right therein.

The language of Ward’s grant is:.

“To be held by said company, its successors and assigns for-, ever, but for the purpose only of running a railroad over the same, and for purposes convenient thereto.”

The language of the school board grant is:

“To have and to hold the above granted and bargained land in the said company or its assigns and successors forever, for the purpose of running as many sets' of track over the same as said company at any time may deem necessary, and also for any other purposes necessaiy, useful or convenient in the location, construction and repair of said road, and all work whatsoever, which may be necessary, useful or convenient for the use of said railroad, and for no other purpose.”

The language of the Burchfield grant is:

“ To be held by the said company, itsi assigns or successors, forever, for the purpose only of running a railroad over the same land for purposes convenient thereto.”

It has already been said in this opinion that the effect of each of these grants is the same. Each authorizes the railroad company to use the land for any legitimate purpose, for the successful operation of a railroad..

Although the company, as already said, removed its ties and rails from this- land in 1904, it does not necessarily follow that it thereby abandoned the same for all purposes connected with the operation of its railroad.

It is shown that the company has crossed the right-of-way, claimed by the defendants to have been abandoned, with three switch trades to reach an extensive manufacturing plant, and that, within a few weeks it has laid ties and rails along the old right-airway for a distance of 1,400 feet or more, and connected the same by a switch with the present through line, n¡sing this track so laid for cars to get them out of the way of trains on the main line. It has done some fencing in- and some mowing of weeds and grass on-this land; not very much, as indicating the use to which it proposed to devote the land, but it is shown that it is feasible to connect by proper switches, the tracks of the present operating line with tracks on the old line if they should be laid thereon, and that such old line might be useful and ■valuable for the running of freight trains and for storing of ears, and perhaps for other purposes.

On the part of the defendants it is urged that the resolutions of the board of directors of the railroad company passed on March 15, 1903, from which quotations are made earlier in this opinion, and the construction of the new line in ‘accordance with such resolutions, established the claim of the defendants that the company thereby abandoned its old right-of-way.

This action of the board was taken under authority of Sec. 3277 N. S. (See. 8753 G. C.), then and now in force which read -.

“For the purpose of avoiding annoyance to public travel, or dangerous or difficult curves or grades or unsafe or unsubstantial grounds or foundations, or when the road bed has been injured or destroyed by the current of any river, water-course or other unavoidable cause, or for other reasonable cause, a company may change the location or grade of 'any portion of its road, whether heretofore made or hereafter to be made, but shall not depart from the general route prescribed in the articles of incorporation.”

Certainly it does not follow from the action of the board or the authority given by the statute, that the company undertakes to devote the land covered by the old track to some purpose other than that of a railroad.

Section 8755 G-. C. provides:

“When the location is changed, after the road has been used for transportation of persons and property, the company shall be liable for all damages occasioned by the change, to the owner of the land upon which the road was first constructed.”

Eeading this in connection with Sec. 8753 G. C., it is urged on behalf of the defendants that the- statutes contemplate that the change of location provided for in the former of these sections, necessarily resulte in the complete abandonment of the right-of-way. This contention does not seem to be sound. The change may or may not cause damage to the land owner, and there might be damage to him by making a change of location so that the right-of-way through his laud was used for storing cars only; but it would hardly be claimed that even if he were damaged by the change in the use last suggested, the railroad company had abandoned the use of the land for railroad purposes.

The first ease to which our attention is called by the defendant is that of Columbus v. Railway, 37 Ind., 294. In that ease it was held that the changing of the line of a railroad which ran through the city of Columbus so that the trains ran on a new line outside the city, leaving the tracks still down in the city, but so disconnected with the new line by the taking up of a part of its track that trains could not run through on it, but so that it could be used as a switch, was not an abandonment of the old line.

Another case cited on the part of the defendants is Califorma & N. Ry. v. Mecartney, 104 Cal., 616 [38 Pac. 448.] This was a suit by the railroad company to quiet its title to a strip of land 12 1-2 miles long; the width is not given, but it plainly appears that the strip was a right-of-way for the tracks of the railroad company. The defendant claimed title through a tax sale, and in discussing the validity of the sale the court said, incidentally, that:

“The right-of-way is in the nature of an easement, and is acquired only for the purpose of the railroad. When the road is abandoned or removed from the strip of land over which the railroad has a right-of-way, the land is discharged of the burden. The right-of-way no longer exists.”

This was said, not because there had been any removal of the road here from the right-of-way, but as illustrating that application of the taxing laws of the state.

In Hannibal & St. J. Ry. v. Frowein, 163 Mo. 1 [63 S. W. 500], land was conveyed to a railroad company on condition that it would operate a railroad with passenger .and freight trains over the land, which was adjacent to a river where the grantor had a ferry, and would send all its passengers and freight across the river by the grantor’s ferry. This it did for ten years, then built a bridge across the river and so took the traffic from the grantor; then with the consent of the railroad company, the grantor leased the land to a lumber company. The railroad company sold its buildings on the land to the lumber company, which used the premises for its business until the expiration of the lease, when the grantor purchased the buildings from the lumber company and leased them to various tenants. It was held that the railroad company could not maintain ejectment, and that under the peculiar facts of that case, the railroad company had forfeited its title, although it had not absolutely abandoned the use of all the land.

Another case cited is Flint & P. M. Ry. v. Rich, 91 Mich., 293 [51 N. W. 1001]. In that case there was no question such as in the case under consideration. It w¡as a suit brought to obtain an order of court to abandon a railroad constructed in part by local subscription, and to repay the petitioners the money put in by them for the construction of the road. The suit was brought under a statute of the state; the question was whether the railroad company had so far fallen short of its obligations as to justify the order prayed for. The trial court held that it bad not. This was reversed by the Supreme Court.

We have been embarrassed in this case by being unable to find some of the authorities on which defendants rely, there being some mistake in the citations made in the brief, but so far as. we have found the authorities they fail, as we think, to sustain the claim of the defendants on the question of abandonment.

It is contended by the defendant that the railroad company is underbaking to use the lands in question for anything other than railroad purposes, but that it has ceased to use them for any purpose, and that this constitutes an abandonment in such wise that the company’s rights in the land are forfeited.

In Conabeer v. Railway Co., 156 N. Y. 474 [51 N. E. 402], it is said:

“Where one acquires title by deed it will not be affected by nonuser, unless there is a loss of title in some of the ways recognized by law, since mere nonuser, however long continued, does not create an abandonment.”

The question of abandonment of the rights of one in lands granted to him or it for specified purposes only is said, in numerous oases in Ohio and elsewhere, to be eminently one of intention. See Garlick v. Railway, 67 Ohio State, 223 [65 N. E. 896]; Nail & Iron Co. v. Furnace Co., 46 Ohio State, 544 [22 N. E. 639; 5 L. R. A. 652]; Hatch v. Railway, 18 Ohio St. 92; Townsend v. Railway, 101 Federal, 737; Peter v. Caswell, 38 Ohio St. 518.

In this last mentioned case a mill race bad been dug by a mill owner in such a way as to cause the water of a stream to flow in such r'aee and not in its natural channel, for a considerable distance, where it turned the wheel of the mill, returning below the mill to its natural channel. The flood-gate was, however, maintained at a point where the current left the natural channel, so that whenever repairs were required to be made on the mill, the water could be cut off from the race and returned to the channel.

For more than twenty-one years the water was carried through this mill race, and only occasionally and temporarily turned into the natural channel for the purpose of miaking repairs on the mill. The channel had so long been disused that it became obstructed and partially filled, so that it was not sufficient to carry off all the water which had originally passed through it.

It was held that nothing in this' condition of things or the acts of the parties showed that the use of the ancient channel had been permanently abandoned.

In the case of Garlick v. Railway, supra, the court in its opinion cites a large number of authorities on the question of what constitutes abandonment, and the court quotes with approval, from Wtashburn, Basements and Servitude, the following language:

"It is not easy to define in all cases what would be such act of abandonment as would destroy a right of easement, and each case seems to be a matter for ,a jury to' determine. But nothing short of am intention to so abandon the right ivould operate to that effect, unless other persons had been led by such acts to treat the servient estate as if free of the servitude, and the same could not be resumed, -without doing injury to their rights in respect to the same. And in this it is not intended to embrace questions which may arise from a mere nonuser of an easement. ’ ’

The facts in this case do not seem to warrant the conclusion that the railroad company ever intended to abandon the right-of way on which the railroad was originally constructed. At most, it can only be claimed for the defendants that there was a nonuser of this right-of-way for a period of about three years, for the rails and ties were removed in 1904 and in 1907 when the defendants assumed the right' to remove and began to remove the materials of which the old road-bed was constructed, this action to enjoin such removal was begun.

True, during the period from the removal of the ties and rails to the bringing of this action, the railroad company did very little upon this right-of-way to indicate ownership. However, there was some cutting of w'eeds and grass, as already said, and it can hardly be supposed that the railroad company, if it was its intention to abandon this right-of-way, would have done anything upon the ground.

The land in dispute in this right-of-way is near to a great city, and passes through a manufacturing district in the village of Bedford, wrhere it hardly seems probable that the railroad company would expect to abandon lauds which they had a right to use for railroad purposes. Such lands would seem to be exceedingly valuable for a right-of-way, even though the main line of. the road had been diverted from this old right-of-way to a distance in some places of several hundred feet, and even though such old right-of-way crosses Tinkers Creek and two or more public roads in such wise that the building of a track along the entire old right-of-way that would connect’ with the tracks as now operated on the new right-of-way, would be attended with considerable expense. But when we remember the expenditures which railroad companies make to-cross streams and to pass through obstructions, such as great hills .and even mountains, the matter of expense does not loom up as a preventive, as it does in those smaller enterprises where but a few hundred thousand dollars are invested. .

We reach the conclusion, therefore, that the plaintiff is entitled to the injunction prayed for, and the same is allowed.

Winch and Niman, JJ., concur.


source: Caselaw Access Project

author: KINKADE, J.

license: Public Domain

text:
    AUTOMOBILES — MASTER AND SERVANT.
    [Cuyahoga (8th) Court of Appeals,
    December 17, 1914.]
    Kinkade, Richards and Chittenden, JJ., sixth district sitting by designation.
    Charles J. Stewart v. Charles W. Whitford. Charles J. Stewart v. Sarah E. Whitford.
    1. Master not Liable for Negligence of Chauffeur Detouring on Per sonal Errand.
    A chauffeur who turns aside from a journey undertaken for and at the direction of his master, and drives one mile out of his course on business of his own and while so doing injures a pedestrian, after which he returns to his original route and continúes on the journey for his master, was not acting within the scope of his employment during the detour and at the time of the accident to the pedestrian.
    2. Question of Scope of Employment for Jury on Disputed Facts Only.
    Whether an employee was within the scope of his employment at a given time becomes a question for the jury only when the facts in issue are in dispute; if there is no question of fact to be passed upon, the matter is one of law and should be determined by the court.

      Hoyt, Dustin, Kelly, McKeehan & Andrews, and W. D. Wilkin, for plaintiffs in error.

      Harry F. Payer and Chapman, Howland & Niman, for defendants in error.
   KINKADE, J.

Error to the court of common pleas.

The defendants in error brought actions in the court of common pleas to recover damages sustained by reason of the alleged negligent management of an automobile belonging to the plaintiff in error, which resulted in a serious personal injury to Sarah E. Whitford, the wife of Charles W. Whitford. The jury returned a verdict in favor of the plaintiff in each case. The trial judge granted a motion for a new trial and rendered an opinion in doing so, to the effect that the evidence produced in the case was not sufficient to sustain a judgment in favor of plaintiff against the owner of the automobile. Thereupon the parties agreed to submit the case, without a jury, to another judge, upon a transcript of the evidence taken in the court below, and they agreed upon the amount for which a judgment should be rendered covering the damages in both cases, one for injuries and the other for loss of services, in the event that the trial judge found the owner of the automobile liable on the evidence shown in the transcript.

Stewart, who resided on Shaker Heights in the eastern portion of the city of Cleveland, was the owner of an automobile and had in his employ a chauffeur by the name of Pelrein. It was the custom of Stewart to have his chauffeur, Pelrein, drive him in his automobile from his home at Shaker Heights to his office in the Perry Payne Building in the morning, and then call for him with the machine at four in the afternoon to take him home.

It was stipulated between the plaintiff and defendant that the chauffeur, Pelrein, -was employed by Stewart to drive the machine when, where and as directed by Stewart.

On the morning of the day on which the accident to Mrs. Whitford occurred, in accord with the usual custom, Pelrein had driven Stewart to the office at the usual hour and was either then instructed to return for him at the Perry Payne Building at four o’clock in the afternoon, or was acting in accord with the usual custom and understanding between himself and Stewart when he did start to return for Stewart a little prior to that hour in the afternoon of that day. He drove from the residence in a westerly direction and by the route usually taken, until he reached East Ninth street, at which point he turned to the right and followed East Ninth street, which bore slightly in a westerly direction, until he reached the intersection of Superior street. From this point to the office of Stewart in the Perry Payne Building his direct course would be to the left westerly along Superior street a distance of about a quarter of a mile from its intersection- with East Ninth. As he approached the intersection of East Ninth and Superior streets the chauffeur met two lady friends of his, who were on the sidewalk at this point, and stopped to converse with them for a few moments. The ladies informed him that they were going to a dressmaker’s on some errands oí tbeir own on East Thirtieth, street near Payne avenue, running in an easterly and westerly direction. Thereupon Pelrein volunteered to take the ladies from that point to the dressmaker’s and they 'accepted his invitation. Then instead of turning- to the left and pursuing Ms usual course to the office of Stewart, he turned to the right on Superior street and followed that street to its- junction with Payne avenue, at which point he turned onto Payne avenue bearing still farther to the right, and continued in an easterly direction to a point about one mile from the intersection of East Ninth and Superior streets. In other words, at the point last mentioned he turned and went a mile in substantially a directly opposite course from that which he would have pursued had he gone to the office of Stewart instead of taking the ladies to the dressmaker. It was while thus driving easterly with his two companions that he ran against and injured Mrs. Whitford as she Avas passing from a street car, from which she had just, alighted, to the sidewalk of the street.

There was no dispute about the facts in the case. That which took place is as I have stated it, and no one pretends that the chauffeur, Pelrein, had any inteution to do anything other than to take the ladies to the destination mentioned .and then to return to the office of Stewart and take him home. After making-the journey with the ladies he did return to the Perry Payne Building and took his employer Stewart home without disclosing to him at that time that he had made this trip with his two friends or that he had injured anybody wMle doing- so.

The common pleas judge to whom the case was submitted without a jury, upon the evidence showing the facts as I have stated them, found the owner of the automobile, Stewart, to be liable and entered judgment in favor of the plaintiffs for the. amount covered by the stipulation between the parties.

The question that is submitted for our consideration by counsel is whether upon these facts, the owner of the automobile is liable for the injury to Mrs. Whitford caused by the negligence of the chauffeur while running the ear as stated.

Counsel for plaintiff in error contend that on the authority of Lima Ry. v. Little, 67 Ohio St. 91 [65 N. E. 861]; White Oak Coal Co. v. Rivoux, 88 Ohio St. 18 [102 N. E. 302; 1914C Ann. Cas. 1082]; Rawson v. Olds Motor Works, 22 Dec. 188 (12 N. S. 145), affirmed, Rawson v. Olds Motor Works, 37 O. C. C. 339 (20 N. S. 182), and affirmed, no op., Rawson v. Olds Motor Works, 90 Ohio St. 469, and the case of Nickens v. Becker, not reported, decided by the court of appeals Cuyahoga county, November 23, 1914, Stewart is not liable for the negligence of Pelrein, the chauffeur, for the reason, briefly stated, that although Pelrein was in the employ of Stewart at the time of the injury, nevertheless he was at, that time going upon a mission of hiis own and that the mission of his employer on which he had started was for the time being at least, entirely suspended. They claim that it is of no moment that the chauffeur may hav*e had in 'hip mind at the time of his injury that he would later go, as he did, and complete the mission that he had started out upon for his employer. They insist that when he abandoned his trip to the Perry Payne Building and turned aside on this business of his own and went a mile .at least in an entirely different direction, under no circumstances can it be said to be a mere deviation from the usual route in carrying out the general instructions under which he was acting, to come for his employer at the Perry Payne Building, but must be held to be a journey entirely for his own purposes.

The defendants in error contend, and the court of common pleas so held, that inasmuch as Pelrein was in the employ of Stewart during the whole time, and in view of the fact that he must have intended to do what he did after this journey to •the side, to wit: to go after his employer; therefore, it was a continuing engagement on his part, with the implied, if not the express, authority of the master attending him all the time, and thait, therefore, the master is as liable for the result of the injury as though it had occurred on a regular journey from the residence to the office and without any turning aside by the chauffeur for any such purpose of his own.

Some question is made in the ease ais to whether it is not a question for the jury whether the employee, under a given state of facts, is within or without the scope of his employment; and it may be admitted that in many instances facts might exist which, should be passed upon by the jury as to whether he was or was not within the scope of his employment, but where there is no dispute as to what has been done, and no inference can be drawn from the facts that are not in dispute, except one, there surely is nothing to submit to a jury. Nobody disputes the line of travel of the chauffeur in this instance. All .agree that he did what I have stated, and all agree that he had but one purpose in doing it, and that was to take his friends to their destination and then return and complete the mission on which he had started for his employer. This being true, there is no question cf fact to be passed upon by either a court or jury. It is simply an application of the law to the situation as thus clearly disclosed and wholly without dispute.

The common pleas court in deciding the case in favor of the defendants in error delivered .a written opinion covering over forty-one pages of typewritten matter, l’eviewing a very large number of authorities both English and American. We have read this opinion with care. It is presented to us by counsel for defendants in error in connection with, and as a part of their briefs in the ease, and wre think it fully reviews the authorities. It -would serve no useful purpose to attempt to review these cases in detail.

Our conclusion is, after the fullest examination of the case, that the authorities cited and relied, upon by the plaintiffs in error fully sustain their contention. We find ourselves unable to concur in the very full opinion rendered by the trial judge.

It follows from what has been said that1 the judgment of the court of common pleas must be reversed in each case. There being no dispute as to the facts, it is the duty of this court to enter the judgment in favor of the plaintiff in error in each case that should have been entered by the court below, and such will be the finding here.

Richards and Chittenden, JJ., concur.


author: SAYRE, J.

text:
    DEEDS — PARTITION.
    [Athens (4th) Court of Appeals,
    December 30, 1914.]
    Walters, Sayre and Jones, JJ.
    Daniel Fleming et al. v. Minx et al.
    1. Deed Absolute Declared Mortgage In Equity.
    A court of equity will' adjudge a deed absolute to be a morf> gage at the instance of either grantor or grantee, or theii representatives.
    2. When Necessary to Prevent or Relieve from Imposition or Injustice.
    But such adjudication will not be made, at the instance of the personal representative, for the sole purpose of making it possible for him to collect the proceeds of such mortgage and distribute the same. A court of equity will declare a deed absolute to be a mortgage only when it is necessary to prevent or relieve from imposition or injustice.
    3. Heirs and Devisees of Lessor not Entitled to Partition in Perpetual Lease.
    The heirs at law and devisees of the lessor in a lease for ninety-nine years, renewable forever, with an option in the lessee to purchase the premises leased at a stated time each year during the continuance of the lease, can not compel partition of the same.
    Appeal.
    On November 6, 1908, Elizabeth Nelson, one of the defendants, made application to Daniel Fleming for a loan of $15,000. Fleming was unwilling to take a mortgage in the usual way, and it was agreed that Elizabeth Nelson should convey to him certain premises in the city of Athens by deed, which she did, and that Fleming should execute and deliver to Elizabeth Nelson a least for ninety-nine years, renewable forever.
    The lease provides for an annual rental of $900 per year; that lessee shall pay all taxes and assessments that may be levied during the demise upon the property; that for the payment of the rents, taxes and assessments the lessor shall have a first lien upon the term thereby created; that upon failure to perform any covenant of the lease by the lessee the lease is to cease and determine at the election of the lessor by giving the lessee thirty days’ notice of such election “before such election; and upon such forfeiture and election the said lessor is to have the right to repossess, occupy and enter said premises;” that “lessor hereby covenants and agrees * * * that all rents, taxes and assessments herein specified being paid, and all the other covenants * # * being performed by the said lessee, he, the lessor, will at the expiration of any year after the first day of December, 1908, convey said premises to the said lessee by a good and sufficient deed of general warranty * * * upon the payment to the lessor by the lessee of the sum of fifteen thousand dollars.”
    The final stipulation of the lease is as follows:
    “It is agreed by the parties that the payment of five hundred dollars, or any multiple thereof, may be made on said purchase money at the end of any year after December 1, 1908, together with six per cent interest on shid payments from the date of the last payment of rents; and such payments when made, shall be applied on the purchase price of $15,000.00 in the event that said Elizabeth Nelson shall elect to purchase the same, and from the time of such payments, if made, the rental on said premises shall be at the rate of six per cent on the balance of the purchase price that may be due from time to time after such payments shall have been made.”
    Subsequently Daniel Fleming died, and in December, 1913, the plaintiffs, “as devisees and heirs at law of Daniel Fleming, deceased,” filed their petition for partition, seeking to partition the premises described in the deed and lease.
    By leave of court W. K. Scott, as administrator with the will annexed of the estate of D'aniel Fleming, deceased, filed an answer, in which he avers that Elizabeth Nelson is the owner in fee simple of the premises and that the deed made by her to Fleming is a mortgage, and ash® for a dismissal of the petition and for all further relief to which he may be entitled.
    Elizabeth Nelson answered and averred “that she is not advised, and does not know, what1 the legal effect of said instrument is -as between her and said Daniel Fleming, as to whether the same constitutes a mortgage, a sale, or creates other rights, and that she is not interested in said question except to have her rights as created by said transaction fully protected in any order, judgment or decree that may be rendered in said action * *
    The defendant, Marcia E. Linseott, in her answer, denied that anyone of the parties was entitled to the possession of the premises.

      Grosvenor, Jones & W or si ell, for plaintiffs.

      Lewis <& Keenan, for W. K. Scott, administrator.

      L. A. Koons, for Elizabeth Nelson.

   SAYRE, J.

The administrator with the will annexed of the estate of Daniel Fleming contends that the deed constitutes an equitable mortgage and desires an adjudication to that effect so he can foreclose the same and distribute the proceeds, while the plaintiffs claim that the transaction between Daniel Fleming and Elizabeth Nelson is a conditional sale and seek partition.

The contest here is between the administrator with the will, annexed and the devisees and heirs at law of Daniel Fleming. Elizabeth Nelson is not interested in the matter except that her rights, whatever they may be, shall be protected.

So we are called upon to decide whether a court of equity will construe a deed absolute on its face to be a mortgage, at the instance of the personal representative of the grantee of such deed, for the sole purpose of enabling such representative to collect and distribute the proceeds.

In 3 Pomeroy, Equity Jurisprudence (3 ed.), Sec. 1196, is the following:

“The general doctrine is fully established, and certainly prevails in a great majority of the states, that the gramtor and his representatives are always allowed in equity to show, by parol evidence, that a deed absolute on its face was only intended to be a security for the payment of a debt.

The right here seems to be limited to the grantor and his representatives, and not to extend to the grantee and his representatives. But in McMillan v. Bissell, 63 Mich., 66 [29 N. W. 737], and Kellogg v. Northrup, 115 Mich., 327 [73 N. W., 230], it was held that the grantee or his representatives may show that a deed absolute is in fact a mortgage. It woidd seem just that either grantor or grantee, or their representatives, should have the right, under proper circumstances, to show what the real transaction was. No reason can be assigned why one should not have the same right as the other.

The precise question to be determined then is: Under what circumstances will a court of equity look beyond a deed absolute and receive evidence outside the same to determine what the real transaction was between the parties?

An examination of a number of cases will show that an attempt to convert that into an absolute sale which was intended as a security for a loan is treated as a fraud. Morris v. Nixon, 42 U. S. (1 How.), 118, 126; Russell v. Southard, 53 U. 8. (12 How.), 139; Babcock v. Wyman, 60 U. S., (19 How.), 289; 9 Pomeroy, Equity Jurisprudence (3 ed.), Sec. 1196.

Usually the value of the property conveyed is in excess of the money loaned, and the grantee, by insisting upon the transaction as appears from the language of the deed alone, will thus secure an raifair advantage, and at the instance of the grantor a court of equity will hear evidence, and if the deed was given to secure a loan will declare the same to be a mortgage. The occasion for this action of the court is found wholly in the injustice which will result to the grantor. Consequently, if the grantor is satisfied with the transaction and it appears that no unfairness, imposition or injustice can result to the grantee, then the court will leave the deed to stand as an absolute conveyance.

A court of equity will treat a deed absolute as a deed absolute, unless by declaring it to be a mortgage injustice can be prevented.

In the case under consideration the grantor, Elizabeth Nelson, makes no complaint in regard to the transaction. From her answer it appears that she is willing to allow the deed to stand as a deed absolute. It appears that neither the heirs, dev-isees nor personal representatives of Daniel Fleming will suffer any imposition or injustice by allowing the deed to stand as a deed. There is, therefore, no reason to examine the facts surrounding the transaction in order to determine whether the deed was made as a security for a loan. The only possible reason which the administrator with the will annexed can have for desiring the court to treat' the deed as a mortgage is that he may collect the money and distribute the same in the course of administration. This is no ground for the action of a court of equity.

The plaintiffs desire partition of the premises conveyed by Elizabeth Nelson to Daniel Fleming, and the right to partition is contested by the defendant, Marcia Linseott, one of the heirs of Daniel Fleming.

The lease to Elizabeth Nelson for ninety-nine years, renewable forever, with option to purchase, is an estate in perpetuity on condition. It may be defeated by the lessee exercising the option to purchase, as a life estate may be defeated by the death of the life tenant.

In Tabler v. Wiseman, 2 Ohio St., 207, it was held that the heirs at law could not make partition in case the entire premises were assigned to the widow as her dower; and the reasons assigned for such holding were that a tenant in common could not derive any benefit from the partition, that where the property is subject to a life estate exclusive possession can not follow the judgment, and because the commissioners could not make an equitable division if permitted to speculate upon the probable condition of the property at the termination of the life estate.

Now all these reasons apply with equal force to the situation in hand. The tenants in common have not the present right of possession to any part of the premises which they desire to have partitioned. ' Partition, therefore, will not lie.

Walters and Jones, JJ., concur.


author: WINCH, J.

text:
    NEGLIGENCE.
    [Cuyahoga (8th) Circuit Court,
    October 28, 1912.]
    Marvin, Winch and Niman, JJ.

      John Bejac v. Cleveland, P. & E. Ry.
    Doctrine of “Last Chance" Does Not Apply When Negligence Is Concurrent.
    The doctrine of last chance has no application in cases where the negligence of both plaintiff and defendant are concurrent and directly contributing to produce the accident, but only in cases where the negligence of the defendant is proximate and that of the plaintiff remote.
    ERROR.

      Pattison & Austin, for plaintiff in error.

      Kline, Tolies <& Morley, for defendant in error.

       Affirmed, no op., Bejac v. Cleveland, P. &. E. Ry., 90 O. S. 409.

   WINCH, J.

The plaintiff in error was injured while crossing in front of an approaching ear of the defendant company. His case was submitted to a jury, which brought in a verdict for the defendant under a charge which eliminated from the consideration of the jitry any application of the doctrine of last clear chance.

For the purpose of testing the correctness of the judgment on this verdict, it may be conceded that the company was negligent in operating its ear at too great a speed and in not sounding a gong or giving other warning of the approach of the ear, or was otherwise negligent. But the plaintiff Was, negligent, also. He carelessly put himself in a place of danger. If he looked and did not see the approaching car, as he testified, his senses must have been befuddled by the beer he had just drunk. There was an unobstructed view in the direction from which the car was coming, of over 800 feet. It was a clear day about noon. The motorman saw the plaintiff and his companion when they left the saloon and started to cross the street and the tracks, u hen he was about 350 feet away. He had a right to believe that tbe men would look and see tbe car, as be saw them, 'and not step upon tbe track immediately in front of tbe car, as they did.

Plaintiff must bave been within fifteen to fifty feet of tbe car when be stepped upon tbe track. His companion was ahead of bim and barely jumped out of tbe way.

Tbe contributory negligence on tbe part of tbe plaintiff in stepping in front of a rapidly approaching ear, which be should bave seen, bars bis recovery, because bis negligence was contemporaneous with that of tbe motorman, and was a proximate cause of tbe injury.

In the ease of Drown v. Northern Ohio Trac. Co. 76 Ohio St., 234 [81 N. E. 326; 10 L. R. A. (N. S.) 421], Judge Davis, after quoting from Thompson, Negligence to tbe effect that “Although a person comes upon the track negligently, yet if the servants of the railway company, after they see his danger, can avoid injuring bim, they are bound to do so,” goes on to say, on page 248 of tbe opinion:

“Now it must be apparent upon even .a'slight analysis of this rule, that it can be applied only in cases where the negligence of the defendant is proximate and that of the plaintiff remote; for if the plaintiff and the defendant both be negligent, and the negligence- of both be concurrent and directly contributing to produce the accident, why then the case is one of contributory negligence pure and simple. But if tbe plaintiff’s negligence merely put bim in a place of danger and stopped there, not actively continuing until the moment of the accident, and the defendant either knew of bisi danger, or by the exercise of such diligence as tbe law imposes on him would bave known -it, then, if the plaintiff’s negligence did not concurrently combine with defendant’s negligence to produce the injury, the defendant’s negligence is tbe proximate cause of tbe injury and that of the plaintiff is a remote cause. This is all there is of the so-called doctrine of the last clear chance.”

On authority of the Drown ease, it would have been proper if the trial judge had directed a verdict for the defendant.

There is no error in the record prejudicial to plaintiff in error, and the judgment is affirmed.

Marvin and Niman, JJ7, concur.


text:
    PATENTS — -SALES.
    [Cuyahoga (8th) Circuit Court,
    November 11, 1912.]
    Marvin, Winch and Niman, JJ.

      W. C. Sunderland v. Amos Barnes.
    Patent not of Practical or Beneficial Use, Fails in Consideration, Defeats Recovery of Purchase Price.
    That a patent has no practical or beneficial use, is a defense to an action on a contract for the purchase price of such patent, as it amounts to a failure of consideration.
    EerOR.

      Ammerman & Thompson, for plaintiff in error.

      Bentley, McCrystal, Biggs & 8taiger, for defendant in error.
   WINCH, J.

This was an action for money due on a contract for the purchase of a patent. The defendant admitted the execution of the contract, but set up three defenses to the action against him:

First. That the contract was incorrectly read to him before he signed it, and that its written terms were different from what he was thereby led to believe them to be.

A copy of the contract was delivered to him; he had it in his possession and read it some two months after its date, but never offered to return the patent and have the contract canceled on this account for some two years, meanwhile continuing to make payments as stipulated in the contract.

There was no merit in this defense.

Second. That he was induced to enter into the contract through fraud and misrepresentation as to the merits, salability and use that had been made of the patented article.

This defense, also, was unavailable, by reason of the defendant’s laches. ,

Third. That the patent had no practical or beneficial use : in oilier words, that there had been a total failure of considerar tion.

The law applicable to this defense is found in the cases of Daust v. Brockway, 11 Ohio, 462, and Tod v. Wick Brothers & Co., 3.6 Ohio St. 370, from which we gather that:

“If the patent is valid, any interest in it, without regard to the degree of its utility, or its pecuniary value, constitutes a sufficient consideration for a promissory note” or other contract. Also: “If capable of being applied to some practical or beneficial use, and it is not frivolous or injurious to the well being or morals of society, it is a valid patent, although other similar machines may be of greater utility.”

The patent here involved was for a railway rail-joint. It had been regularly issued by the patent office, but the defendant introduced witnesses who testified that it had no practical or beneficial use.

Samuel Rockwell, chief engineer of the Lake Shore Railroad, on page 45 of the reeord, states, “I do not consider it practical, ’ ’ and then he goes on to give his reasons for his opinion, which seem sensible and to sustain his opinion.

R. C. Newcomer, a division engineer of the Pennsylvania Company, located at Cleveland, was a witness for the defendant* and testified, on page 59 of the record, as follows:

“Q. Will you state in your opinion whether these two wedges at the bottom in there are of any beneficial use? A. I would say from the model, no, and from the full sized bar to look at it, more so.
“ Q. I call your attention now to an 85 or 95 pound joint. Will you state whether the wedges in this full sized joint add any beneficial use to a rail splice or rail joint? A. No, sir, they do not.”

The patent was for a combination, the wedges referred to being the only new thing in the combination not found in other rail joints in use.

Cross-examination of these two witnesses tended to show that other rail joints were in use containing a less or greater number of parts, or the same number of parts,, some of them differing substantially from the parts of the patent here involved, but these witnesses did not depart from their opinions that this rail joint had no practical or beneficial use; indeed they- seemed to have the impression that the wedge referred to was a bad thing and made this rail joint an improper one to use.

With this evidence before the jury, the trial judge directed a verdict for the plaintiff.

In this we think he erred; the evidence of the witnesses referred to tended to show that the patent was valueless, not merely that it wras of less utility than other devices on the market. If valueless, the defendant was under no necessity of tendering it back, before making this defense.

The plaintiff should have been required to meet the evidence of the witnesses Rockwell and Newcomer, with some testimony that the patent had some practical and beneficial use, for their evidence needed contradiction before it could be said that defendant had failed to establish their defense.

For error in directing a verdict for the plaintiff below, the judgment is reversed and the capse remanded for further proceedings.

Marvin and Niman, JJ., concur.


author: NIMAN, J.

text:
    ERROR — SALES—TRIAL.
    [Cuyahoga (8th) Circuit Court,
    November 11, 1912.]
    Winch, Marvin and Niman, JJ.
    Bigalow Fruit Co. v. Frederick B. Huxley.
    1. Verdict for Full Amount of Claim Is Finding of First Quality of Goods Sold and Waives Error in Charge as to Custom when Goods of Poorer Quality Mixed.
    When, in an action for the purchase price of fruit sold under a contract providing different prices for first and second grades, it was alleged that all fruit shipped was first grade, the court erroneously excluded evidence of a custom of the trade that where first and second grades of fruit are mixed, all are to be considered second grade, such error is rendered harmless by a verdict of the jury for the full amount claimed by plaintiff, as this amounts to a finding that all fruit supplied was of the first grade.
    2. Retention of Goods after Inspection Waives Defects.
    Where goods delivered under a contract of sale are retained and used after inspection or after a reasonable opportunity for inspection, any defect in them is thereby waived.

      G. G. Wise, for plaintiff in error.

      II. A. Couse, for defendant in error.
   NIMAN, J.

Frederick B. Huxley, tbe defendant in error, was plaintiff, and tbe Bigalow Fruit Company, tbe plaintiff in error, was defendant in tbe court below. Tbe action was begun to recover tbe balance claimed to be due tbe plaintiff on account of a quantity of pears and apples sold tbe defendant. Tbe plaintiff below-recovered tbe full amount sued for and this proceeding in error is prosecuted to reverse tbe judgment rendered against tbe plaintiff in error, as defendant below.

Tbe controversy relates to tbe pears sold tbe plaintiff in error, and not to tbe apples involved in tbe sale.

Tbe agreement between tbe parties provided for certain price for No. 1 pears and one-baif that price for .No. 2’s.

Tbe plaintiff claimed that all tbe pears shipped to tbe defendant were No. l’s and tbe recovery sought was based upon this claim, while tbe defendant contended that tbe pears shipped to it were partly No. l’s and partly No. 2’s with some culls mixed in, and that according to an established trade custom known to both parties, when pears are so mixed together they are all classed as No. 2’s.

Tbe court instructed the jury to1 disregard the evidence offered by tbe defendant to prove the custom referred to because, quoting tbe language of tbe charge, “it is in contravention of tbe contract itself, and no such custom has been shown as would bind tbe plaintiff to any such appropriation of bis goods as that.”

Wo do not share tbe view of tbe trial court on this subject. Tbe contract between the parties contemplated that tbe plaintiff might deliver either No. 1 or No. 2 pears, or some of each.kind, and provided a certain price for No. 1 pears and one-half that pidce for No. 2 pears. Proof of tbe custom, therefore, would not contravene tbe contract but would furnish ,a means of ascertaining whether tbe pears were all to be classed as No. 2’s. It would simply, in other words, have a bearing on determining the quantity of No. 2 pears, if any, in the shipment.

This portion of the charge being, in our opinion, erroneous, it remains for us to decide in this connection whether in view of other parte of the charge given on the issues involved, and the verdict returned, the defendant below was prejudiced by the mistake.

One of the issues presented to the jury was whether or not the defendant, either by itself or its agent, had accepted the pears after inspection, or opportunity of inspection. There was evidence before the jury which made it proper and necessary to submit this question to the jury. The verdict was for the full amount sued for and indicates that the jury must necessarily have found either that the pears were all No. 1 's, or that the defendant had accepted them as such after inspection or opportunity of inspection.

"We are impelled to this conclusion because the court charged the jury in substance that if they found that part of the pears delivered were No. 2’s, the plaintiff was entitled to one-half the price of No. l’s for such pears. The amount of the verdict shows that the jury made no allowance for any peal’s of the quality of No. 2. It is to be presumed that the jury followed the instructions given them. The inference is clear that the result would have been no different even if the court had not mistakenly taken from the jury's consideration the evidence tending to establish the custom contended for by the defendant. We therefore reach the conclusion that the error committed by the court on this subject was not prejudicial.

Complaint is made that the court charged the jury in effect that if the defendant accepted the pears and used them after inspection or a reasonable opportunity to inspect, without offering to return the same, it would be deemed in law to have accepted them and to have waived any defect.

We think tills instruction was justified by the evidence and that it is sustained by the authority of Bowman Lumber Co. v. Anderson, 70 Ohio St. 16, the syllabus of which reads as follows:

“By an executory contract for the sale and delivery of chattels of a described grade or quality, the seller becomes bound to deliver goods of the character described, but in the absence of express terms of warranty, no obligation is imposed upon him which survives the acceptance by the purchaser of an article delivered by the seller in good faith as in the performance of the contract, if the acceptance is with full knowledge of all conditions affecting the character and quality of the •article.”

Other parts of the charge are complained of, but in our opinion, when the charge is taken as a whole, and the verdict returned is considered, it does not appear that the plaintiff in error was prejudiced by the parts of the charge referred to.

It is contended on behalf of the plaintiff in error that the evidence established an express warranty that the pears shipped were all No. l’s, and that the verdict is against the weight of the evidence. The court charged the jury as to what constitutes a warranty, and submitted the question whether or not a warranty existed. We are unable to say that the verdict, whether it be presumed to have been founded on the determination of this issue or on any or all of the other issues involved is so manifestly against the weight of the evidence as to justify a reversal on this ground.

We find no error in the ruling on evidence complained of, and no error prejudicial to the plaintiff in error in any of the matters covered by the argument and brief of its counsel *

Judgment affirmed.

Winch and Marvin, JJ., concur.


text:
    EVIDENCE — JURY-PARTNERSHIP.
    [Cuyahoga (8th) Circuit Court,
    October 28, 1912.]
    Winch, Marvin and Niman, JJ.
    William H. Miller, Tr. v. Louis Sands et al.
    1. Juror's Qualification Determined as at Date of Trial.
    A new trial will not be granted because one of the jurors may have been disqualified to act at the time he was summoned, if it does not affirmatively appear that he was disqualified at the date of the trial.
    2. Partnership Books Admissible in Suit against One Partner.
    The account books of a partnership are admissible in evidence in a suit against one of the individuals constituting the partnership, when it appears that the partnership has been dissolved and that the defendant had taken over all the assets and assumed all the liabilities of the partnership.

      P. P. & G. A. Groot, for plaintiff.
    W. D. McTigKe and B. J. Sawyer, for defendants.
   NIMAN, J.

This action was brought by the plaintiff in error, who was plaintiff in the court of common pleas, to recover of the defendants there, compensation and expenses for acting as trustee under a chattel mortgage or deed of trust executed by the Riggi Candy Co. The mortgage given by the company to the plaintiff in error, as trustee, provided that the trustee should be entitled to reasonable compensation and all necessary and reasonable .expense, to be paid by the mortgagor or out of the trust estate.

The petition does not, by positive averments, charge any agreement on the part of the defendants to become liable for the foes and expenses sought to be recovered, but the case was tried on the theory that the mating of such an agreement was sufficiently averred in the petition.

The action was dismissed as to the defendant, the Union National Bank. All the other defendants, except C. S. Homer, defended on the ground that the services performed by the plaintiff as trustee trader the mortgage were rendered as the result of an agreement between him and Horner .alone, and that the latter, who was alleged to have been the attorney for the Riggi Candy Co., bad been paid in full for all Ms services and tbe services of the plaintiff in connection with said mortgage.

The defendant, C. S-. Homer, in Ms answer alleged in substance that the plaintiff, in acting* as trustee, acted at the request of the said defendant and no one else, under an arrangement whereby an equal division of the fees and charges was to be made between plaintiff and the said Horner; that the sum of $900 was paid by the Riggi Candy Co. to the aforesaid defendant as full compensation for all work done by both himself and plaintiff; that the plaintiff, being indebted to said defendant in the sum of $950, said defendant retained the half of said $900 clue the plaintiff as his share of the fee paid by the Riggi Candy Co., and applied it on the account due said defendant from the plaintiff.

The verdict was for the defendants, and the plaintiff in error prosecutes error to reverse the judgment entered thereon.

The first ground on wMoh the plaintiff in error bases his claim for a reversal is that the court erred in overruling his motion for a new trial on the ground that one of the jurors was disqualified because of insanity.

The views of the court on tMs subject were expressed on the hearing, and no reason has been found for adopting any different views than were then indicated. There oan be no dispute with the proposition of law laid down in Waits v. Ruth, 20 O. S., 31, and found also in other decisions, that jurors must have the qualifications of electors. But in this case there was no satisfactory proof offered in support of the motion for a new trial that the juror complained of did not at the time of the trial possess the necessary qualifications to act as a juror. Even though he might have been disqualified when Ms name was originally selected, yet if he possesses the-necessary qualifications, at the time he served as a juror, the verdict would not be invalidated.

A similar question was presented in Toledo Consolidated Street Ry. v. Toledo Elec. St. Ry., 5 Circ. Dec. 643 (12 R. 367). The syllabus of that case reads as follows:

“Where a juror is summoned and another party appears and 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 ease knew of the substitution until after the verdict. ’ ’

The second ground of error is based upon the admission of testimony given by the defendant, O. S. Homer, as to the indebtedness of the plaintiff to said defendant.

A book constituting the record of the law firm of Hile & Homer, of which the defendant Horner had been a member, was produced and by reference to this book said defendant testified to various items of charges against the plaintiff, and to a credit of $450 thereon. This evidence was offered in support of the averment in the defendant Homer’s answer, that $450 due the plaintiff on account of the fee received from the Riggi Candy Company had been retained by said defendant and credited on an indebtedness from the plaintiff to him, greater in amount than this sum.

The objection urged against this testimony is that it permitted an indebtedness due from the plaintiff to the firm of Hile & Homer to be utilized as a set-off by Homer alone to defeat a claim asserted against him individually.

We think the answer to this objection is found in that portion of the testimony of Mr. Horner in which he states that at the time of the dissolution of the firm of Hile & Homer, be assumed the liabilities and took over the assets of the firm. There was evidence, therefore, before the jury that the defendant Hor-ner was the sole owner of the indebtedness shown by the books of Hile & Homer to be due from the plaintiff. In this view of the case, the testimony to which objection was made was competent for the purpose of showing that the claim asserted by the plaintiff against the defendant had in fact been paid by the giv ing of credit therefor on an account against the plaintiff owned by said defendant.

The language of the petition in error indicates that a claim of error is made because of the fact that the defendant Homer was permitted to refer to and read from the account book of Hile & Homer referred to, although it was not offered in evidence. The witness, however, testified that he, himself, made the entry in the boob. This being so, it was proper for him to refer to the entries for the purpose of refreshing his recollection as to the transactions there indicated.

No error prejudicial to the plaintiff was committed by the trial court, and the judgment is affirmed.

Winch and Marvin, JJ., concur.


text:
    TRABE NAMES.
    [Cuyahoga (8th) Circuit Court,
    October 28, 1912.]
    Winch, Marvin and Niman, JJ.
    Cleveland Transfer & Carriage Co. v. M. R. Brailey et al.
    Use of Words Which Could Not be Trade-Names May Be Enjoined. Words which are not capable of being an arbitrary trade-mark or tradename, because they are geographical or purely descriptive, may constitute an unfair use for trade purposes, but when used unfairly tend to create confusion on the part of the public as to goods or firms, and when so used and such confusion results, their use will be enjoined.
    Appeal.

      W. H. Boyd and M. W. Sanders, for plaintiff.

      Matthews & OrgiU, for defendant.
   NIMAN, J.

The plaintiff is a corporation engaged in the business of handling, transferring and transporting baggage to and from railroad depots, hotels, private residences and places of business in the city of Cleveland, and the hiring of conveyances and the doing of general livery and transfer business. The business conducted by it was founded by its predecessors in interest about fifty years ago. The business so founded was conducted until about the year 1SS6 under the name of ‘ ‘ Cleveland Transfer” or “Cleveland Transfer Company,” and was generally known as “the Cleveland Transfer” or “Cleveland Transfer.”

In'1886 the owners of the business incorporated it under the name of ‘ ‘ the Cleveland Transfer Company, ’ ’ and continued to operate in the city of Cleveland, using the names and designations of “the Cleveland Transfer,” “Cleveland Transfer” and “Cleveland Transfer Company” until 1890, when the plaintiff company was incorporated under the laws of Ohio as “the Cleveland Transfer & Carriage Company.” Upon its incorporation the plaintiff acquired all of the assets, property, interests, rights and trade names of the Cleveland Transfer Company, and continued the business as before, making general use of the name “Cleveland Transfer Company,” on it£ baggage checks, building's, wagons and other vehicles.

The plaintiff claims that the names indicated have become familiar to the public of Cleveland, and have been exclusively associated for many years in the public mind with the' business conducted by the plaintiff and its predecessors in interest, so that such association has become a property right of great value to it.

Complaint is made by the plaintiff against tire defendant, M. R. Brailey, who is engaged in tire auto livery, and transfer business in the city of Cleveland, that he has caused the defendants, the Cleveland Transfer Auto Lively & Baggage Company, the Auto Livery Company and the Taxicab Company tó be incorporated, and has adopted various names, fictitious in character, under which to conduct his business; that in the conduct of his business under the names of the corporate defendants and under the fictitious names referred to, said defendant, M. R. Brailey, has assumed and appropriated the names “Cleveland 'Transfer Company,” “the Cleveland Transfer Company” and “Cleveland Transfer,” and used the same in telephone directories and otherwise in such a manner as. to induce the belief in the minds of tire public that said business is the same as that conducted by the plaintiff; that the object of said defendant in so making use of said names is to obtain the customers of the plaintiff on the representation made by the use of said names that they are dealing with the plaintiff, and that he has in fact unfairly obtained some of such customers who have been deceived into the belief that they were patronizing the plaintiff. The equitable interference of this court is sought by the plaintiff .to enjoin the defendants and each of them from using the name “Cleveland Transfer” and “the Cleveland Transfer’’ and “tlie Cleveland Transfer Company, ’ ’ or any one of said names in the .manner complained of, in tbe conduct of the business of the defendants.

The authorities sustain the contention of the defendants, that neither the word “Cleveland” nor the word “Transfer” nor the two words in combination, can be protected as a'trademark or trade name. The first is geographical and the second merely descriptive of the business. If the plaintiff is entitled to the relief sought, it must be because of unfair competition on the part of the defendants.

The doctrine of unfair competition is discussed in G. W. Cole Co. v. American Cement & Oil Co., 130 Fed. 703. In the opinion on page 705 it is said:

“Unfair competition is distinguishable from the infringement of a trade-mark in this: that it does not involve necessarily the question of the exclusive right of another to the .use of the name, symbol, or device. A word may be purely general or descriptive, and so not capable of becoming an arbitrary trademark, and yet there may be an unfair, pse of such word or symbol which will constitute unfair competition. Thus a proper or geographical name is not the subject of a trade-mark, hut may be so used by another unfairly, producing confusion of goods, and so come under the condemnation of unfair trade, and its use will he enjoined. The right to the use of an arbitrary name or device as indicia of origin is protected, upon the grounds of a legal right to its use by the person appropriating if. The doctrine of unfair competition is possibly lodged upon the theory of the protection of the public, whose rights are infringed or jeopardized by the confusion of goods produced by unfair methods. Whether such confusion has been or is likely to be produced by the acts charged, is a question of fact to he resolved either by evidence of actual sales of the one product for the other, of actual mistake of one for the other, of fraudulent palming off of the one for the other, or, on the other hand, failing such evidence, by comparison of the two brands to determine whether the one can he readily mistaken for the other, even by the inattentive and unobserving retail purchaser.”

The doctrine under consideration is discussed in Nims, Unfair Business Competition, Sec. l,.in tills language:

“Unfair competition is not confined to acts directed against the owners of trade-marJks or trade names, but exists wherever unfair means are used in trade rivalry. Equity looks not at what business the parties before the court are engaged in, but at the honesty of or dishonesty of their acts. It is unfair to pass off one’s goods as those of another person; it is unfair to imitate a rival’s trade name or label; but he who seeks to win trade by fair means or foul is not limited to these methods. He may copy and imitate the actual goods made or sold by a competitor, he may libel or slander these goods, make fraudulent use of a family name, or trade secrets, of corporate names, of signs, of threats, of action; he may construct buildings which are reproductions of peculiar buildings of a rival, thus producing confusion in the minds of purchasers, which enables him to purloin his rival’s trade, and in a. hundred other unfair ways secure another’s trade. .All acts done in business competition are either fair or fraudulent, equitable or inequitable, whether they relate to marks or not; and it is believed that the question of trademarks Avill soon be lost sight of in discussing unfair competition, in the problem of securing, through the principles of equity, full protection to every merchant against unfair business methods. ’ ’

The laiv on the subject of unfair competition being as stated in the authorities cited, if the defendants have so appropriated and used the Avords “Cleveland Transfer” as to deceive the public and obtain the plaintiff’s customers by inducing them to believe that they Avere patronizing the plaintiff, AAnhen in fact they were patronizing the defendants, or some of them, the plaintiff should recomo protection against the acts complained of.

We think the proof is snoh that the plaintiff is entitled to the relief asked.

This conclusion is in accord with the holding of this court in Enterprise Mfg. Co. v. Pflueger Co. (not reported), decided May 21, 1909, the principle of Avhieh was sustained by the Supreme Court.

A decree Avill, therefore, he granted the plaintiff.

Winch and Marvin, JJ., concur.


text:
    APPEAL.
    [Cuyahoga (8th) Circuit Court,
    June 7, 1909.]
    Marvin, Winch and Henry, JJ.
    Samuel Pickersgill v. William J. Hunt, et al.
    Appeal on Dismissal of Cross-Petition Tendering Equitable Defense before Issues Tendered by Petitions Tried is Premature.
    Suit was brought upon a building contract and for extras; the defendant, by cross-petition, asked that the contract be reformed to include modifications of it claimed to have been made by the parties; hearing on the cross-petition was had to the court, before the issues made by the petition were tried to a jury and the court dismissed the cross-petition, whereupon, and before trial of issue tendered by the plaintiff, the defendant appealed. Held: As the judgment on the equitable cause of action set up in the cross-petition did not dispose of the entire case there was no final order and the appeal was prematurely taken and must be dismissed.
    [Syllabus by the court.]
    Appeal.

      L. B. Ware, for plaintiff.

      Smith, Taft & Arter, for defendant.
   MARVIN, J.

The plaintiff sued the defendants, claiming to recover a balance due upon a building contract, and also to recover for certain extras which he claimed to have furnished for the building named in the contract, and he prayed to foreclose a mechanic’s lien upon the property described in the petition.

The defendants answered, denying some of the things averred in the petition, .and admitting some of them, and filed a cross-petition in which they aver that the contract sued upon, which was in writing, was subsequently to its being signed, modified in such wise as that some, if not all of the extras for which payment was claimed in the petition, were to be included in the contract itself, and they prayed that the court modify the contract upon which suit was brought. This claim clearly raised a question to be tried by the court,-whereas the other issues made in the ease were triable to a jury. The court heard the evidence, upon the matter of the modification of the contract, and refused to make the modification, and dismissed the cause of the defendant’s cross-petition. The language of the entry is:

“Feb. 10, 1909. To court: This cause came on to be heard on the issues joined upon the first cause of action set forth in the cross-petition of the defendants, William J. and Sarah Hunt, and the evidence, was argued by counsel and submitted to the court-, and upon due consideration thereof, the court find in favor of the plaintiff and ag’ainst' said defendants on said first cause of action and the same is dismissed. x\nd it is considered that said plaintiff recover of said defendants' Ids costs made on said first cause of action. Judgment is rendered against' said defendants for their costs thereto. ’ ’

From this judgment the defendants, William J. and Sarah Hunt, appealed to this court. Motion is made to dismiss that appeal. This motion is well taken. Our statute (Sec. 5236 R. S.; See. 12237 G. C.), provides only for appeals (except in special proceeding’s) from a final order, and a final order is defined in Sec. 6707 R. S:.; Sec. 12258 G. C., which reads:

“An order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right made in a special proceeding or upon summary application in an action after judgment is a final order which may be vacated, modified or reversed, as provided in this title. ’ ’

It is true that this definition of a final order is in the chapter relating to proceedings in error, but the circuit court in the case of Williams v. Wyant, 30 O. O. C. 431 (10 N. S. 427), treats it, and we think properly, as being the definition of a final order as Avell for appeals as in proceeding's in error.

We have examined the authorities to which attention has been called by the appellant, but are unable to reach the conclusion reached by him. We think the appeal was prematurely taken. The ease should have been tried, and when it is tried an appeal can be taken. The eonrt will try the appeal and then being bound by the determination 'of' the questions submitted to the jury in the trial court, can modify its decree if it should find that a revision of the instrument should be made in such wise as to reach the proper result. We think the proper course is pointed out in the ease of Buckner v. Mear, 26 Ohio St. 515. An examination of this case indicates, and we think, clearly, that no appeal can be taken from the decision on the equity branch of the case until the case has been finally disposed of in the common pleas. Of course where the determination of the equity question determines the entire case, an appeal would forthwith be had, because the ease so far as any trial of it could be had in the court of common pleas, is ended. But that is not this case. Here the court held against the claim made by the defendants for equitable relief. The result is, as already indicated, that the appeal is dismissed.

Winch and Henry, JJ., concur.


text:
    ABORTION — CRIMINAL LAW.
    [Cuyahoga (8th) Circuit Court,
    June 14, 1909.]
    Marvin, Winch and Henry, JJ.
    Norman M. Geer v. State of Ohio.
    Verdict Finding Accused Guifty of Usiing Instrument to Procure Miscarriage not Responsive to Indictment Charging Use of Instrument for Said Purpose Resulting in Miscarriage.
    A verdict finding the accused “guilty of unlawfully, wilfully and knowingly using a certain instrument to procure a miscarriage as charged in the first count of the indictment” is not responsive to an indictment which charges the use of an instrument for the said purpose and that the result of its use was a miscarriage, and no judgment can be entered upon such verdict.
    EeROR.

      Walter D. Meals aud Charles Selzer, for plaintiff in error.

      J. A. Cline >and IS. Brucbio, for defendant in error.
   MARVIN, J.

Geer was indicted upon two counts.

Upon trial he was found “not guilty” as charged in the second count.

The first count charges the said Norman M. Geer at Cuya-hoga county, Ohio, with

“Unlawfully,.wilfully, and knowingly did use a certain instrument, the name of which instrument is to the grand jurors aforesaid, unknown, in and upon the body and womb of one Addie Sutter, she, the said Addie Sutter, being then and there a pregnant woman, with intent then and there and thereby to procure the miscarriage of the said Addie Sutter, said miscarriage not being then and there necessary to preserve the life of the said Addie Sutter, and then >and there not having been advised by two physicians to be necessary for said purpose, and by means and in consequence of the said use of said instrument, but the said Norman M. Geer then and there used with the intent aforesaid, the said Addie Sutter afterwards to wit, on the 20th day of July, A. D. 1908, miscarried and wa¡s prematurely delivered of said child, contrary to the form of the statute in such ease made and provided and against the peace and dignity of the state of Ohio.”

The verdict of the jury as to this count reads :

“We, the jury in this case, being duly impanelled and sworn do find the defendant guilty of unlawfully, wilfully and knowingly using a certain instrument to procure ia miscarriage as charged in the first count of the indictment. ”

The sufficiency of this verdict was challenged by a motion on the part of Geer for a new trial and to vacate the judgment.

It will he noticed that on the trial, it was admitted that Addie Sutter the woman upon whom it is charged the instrument was used, had a miscarriage. It was not however .admitted that such miscarriage resulted from the use of iany instrument, so we need not inquire whether, if such admission had been made, it would have affected the validity of this verdict.

No admission was here made which could in any wise affect it. It must stand or fall upon its sufficiency as it reads.

Exactly the same question was raised in this court in the ease of this same plaintiff in error against the state, decided on December 12, 1897, (not reported), in which we found the verdict invalid.

The indictment in that.case charged in due form the use of drugs with intent to procure a miscarriage which resulted in the death of the patient, or possibly with miscarriage as the result for the purposes of this case, it is immaterial which. The verdict returned reads:

“We the jury in this case do find the defendant guilty of unlawfully, wilfully, and knowingly administering certain noxious and poisonous drugs and medicines with intent to procure a miscarriage, as charged in the first count of the indictment. ’ ’

Speaking for the court, Judge Caldwell said, in the opinion :

“The verdict was that he administered, his drugs and medicines with the intent to commit an abortion, .and no averment that it resulted in that, or that there was a result of death.
“This statute makes the intent no crime whatever, unless it results either in abortion or death, and hence it is clear that the verdict is not responsive to the indictment, ¡and not responsive to the statute, and does not find the plaintiff in error guilty of any crime whatever.”

No authorities are cited in this opinion supporting the proposition made, but it is abundantly supported by the case of Riflemaker v. State, 25 Ohio St. 896; State v. Bludow, 45 Wis. 279, and 1 Bishop, Criminal Procedure, Sec. 1005, and cases there cited. See also Florien v. State, 8 Circ. Dec. 171 (18 R. 596).

AVe reach the conclusion that the court erred in overruling the motion to vacate the judgment and grant a new trial, for the reason that the verdict was not responsive to the indictment and that what was found by the verdict was not a crime under the statute.

Winch and Henry, JJ., concur.


text:
    APPEAL — COUNTIES.
    [Cuyahoga (8th) Circuit Court,
    July 19, 1909.]
    Marvin, Winch and Henry, JJ.
    State ex rel. McClain v. Coshocton Co. (Comrs.) et al.
    County Commissioners’ Right to Dismiss Appeal Notwithstanding Prosecutor Opposed.
    County commissioners may dismiss the appeal of a case taken by them on appeal to the circuit court, notwithstanding the prosecuting attorney of the county is opposed to such dismissal.
   MARVIN, J.

This case was brought by a taxpayer, who first applied to the prosecuting attorney of the county to hare it brought, who declined to bring it.

' The relief sought is -an injunction to prevent the defendants from issuing a series of bonds for the construction of a bridge across the Muskingum river and the Ohio canal in the county of Coshocton. The result- of the trial, in the court of common' pleas was the granting of the injunction. Thereupon the defendants appealed the ease to this court by proper proceedings. The case being called for trial here, this peculiar situation presents itself. Counsel for the plaintiff were ready to proceed with the case; the prosecuting attorney of the county and other attorneys associated with him were ready to proceed with the case, and the case was fully heard in this court, but an attorney of this bar who has a right to appear as a friend of the court, if for no other purpose, brings to the attention of the court thaib on the —day of-, 1909, the board of county commissioners adopted a resolution requesting that the appeal be dismissed. -No formal motion is made by anybody in this court to dismiss the appeal. It is said in argument that there is no proper evidence before the court that the resolution spoken of was ever passed by the board of commissioners, but this is a mistake. It is true that an affidavit is filed showing the passage of the resolution, and it is further true that upon the hearing, all of the records of the board of commissioners, in reference to the construction of the bridge mentioned, were admitted in evidence, so tliat the court is not dependent upon the affidavit alone referred to, but has a record itself which shows the adoption of the resolution, and we are confronted with the question of whether, in view of this resolution, the court should dismiss the appeal.

It is conceded that if the board represented only itself, were acting for itself alone, the appeal should be dismissed, or in any event that the court would be authorized to dismiss the appeal. The circuit court of the eighth circuit on December 16, 1907, held in the case of Albert Menjou v. Local No. 106, Hotel & Restaurant Employes (not reported), that a party who had appealed might dismiss his appeal where the rights of others were not thereby prejudiced, and as has already been s.aid, no serious objection has been made against that proposition.

But, it is said, that the board of commissioners acting in a representative capacity, and only 'as trustees of the public, to permit them to dismiss this appeal, in view of the fact which is shown in the evidence of the case that ait an election at which the question of the construction of the bridge, to pay for Which the bonds were to have been issued received a majority of votes in favor of the construction of the bridge, would be violating their trust and sacrificing the rights of the public, who had voted as above indicated. If the board of commissioners are to be considered as trustees in the sense that they have no other interest in the case and no other rights in the case than a guardian would have in a suit brought on behalf of his ward or an ordinary trustee on behalf of his cestui que trust, this proposition would be sound.

Authorities cited by counsel opposing the dismissal of this appeal support the proposition. These authorities are largely found in Encyclopedia of Pleading aud Practice, p. 853. The text supported by these authorities reads:

“A trustee or nominal plaintiff can not voluntarily terminate his cause without the consent of the real party in interest; and where he dismisses without or against the consent of his cestui que trust, the case will be reinstated on motion or by mandamus.”

Among the authorities cited in support of this text is the case of Thomas v. Thomas, 13 Ky. (3 Litt.), 9, where this language is used:

“There may be eases where it might be improper to permit those in whose names a suit is prosecuted to dismiss it; as for example, where the suit' is brought for the benefit of another, and the person claiming the beneficial interest is proved t'o have the equitable right, in the exercise of its discretionary powers over litigants, permit the nominal plaintiff to defeat a recovery.”

We are of opinion that the board of county commissioners is such a party to this case as that it may do what a natural person could for himself do in the matter of dismissing an action, or dismissing an appeal.

By See. 845 Rev. Stat. (Sec. 2408 G-. G.), it is provided that:

“The board of county commissioners shall be capable of suing and being sued, pleading and being impleaded in any court of judicature, and of bringing, maintaining, and defending all suits, either in law or in equity, involving an injury to any public, state or county road, bridge oar ditch,” etc.

If the board may bring suits it must bring such suits, when in the exercise of its discretion it deems it best1 for the county that the suit should be brought, so too in the matter of the defending of any suits brought against the county, and this necessarily implies on the part of the hoard, authority to compromise and adjust claims to settle suits, and to- dismiss suitsi, when in the judgment of the board such should be pursued. Certainly their authority in this matter can not he less than the authority of the officers of a business corporation. Such officers are, in a sense, trustees for the stockholders of the corporation, hut it has never been doubted, that acting in good faith, such officers might dismiss the suits brought by them for and on behalf of their corporation, and this because the corporation can only act! through its proper officers, and in a matter of litigation the hoard of county commissioners constitutes such officers.

lu the case of State v. Moriarity, 20 Ia. 595, it is held that an appeal taken by the state may he dismissed by the stlate, as any other party may dismiss Ms appeal, unless it appear that the appellee will be prejudiced.

Here there is no complaint by the appellee tbat be will be prejudiced by tbe dismissal of tbe appeal, and we bave tbe extraordinary situation of both appellant and appellee being content tbat tbe appeal should be dismissed and tbe ease stand upon tbe judgment appealed from, and somebody else, not representing tbe public, objecting to such dismissal.

It is true tbat tbe prosecuting attorney for tbe county is made by law tbe legal advisor of tbe board of county commissioners, and it is made bis duty to prosecute and defend suits for tbe county, and certain suits may be brought by him on bis own initiative, but generally bis action, so far as prosecuting and defending suits is concerned is directed by tbe commissioners. It is certainly no part of 'bis duty to direct tbe commissioners as to tbe policy to be pursued by them in any business transaction. It is bis duty to advise them of wbat their legal rights and duties are as a board of commissioners; having done this, it is for tbe commissioners to determine tbe policy they will pursue in tbe matter of bringing or defending actions or settling actions already brought.

We reach tbe conclusion tbat nobody’s rights will be prejudiced by dismissing this appeal pursuant to the resolution of tbe commissioners requesting tbat it be dismissed, and an order will be entered accordingly.

Winch and Henry, JJ., concur.


text:
    INTOXICATING LIQUORS.
    [Cuyahoga (8th) Circuit Court,
    November 1, 1909.]
    Marvin, Winch and Henry, JJ.

      Johnson, Mayor, In re Hearing.
    1. Wet and Dry Petitions May Be Remanded for Hearing by Mayor,
    When an order made by a mayor on a hearing on a wet and dry petition has been reversed by the circuit court for irregularity in making the order, the petition may be remanded and may be heard by the mayor.
    2. No Further Notice Required.
    In such case the mayor is not required to publish further notice of hearings to be had on such petition.
    3. Forty Day Limitation for Hearing Directory Only.
    The provision of law that such petitions shall be heard in not more than forty days after they are filed with the mayor is directory only.

      Bentley & Arnos, for plaintiff.

      Shaiv, Sawyer é Slum, for defendant.
   MARVIN, J.

This ease is before ns on motion for leave to file a petition in error to a finding of Tom L. Johnson, mayor of Cleveland, on a petition filed with him under the statute found in the 98 O. L., 6S, et seq. This statute provides that after two years from the time when it has been found, by proper proceeding, that the sale of intoxicating liquors within a certain residence district is unlawful, a majority of the qualified 'electors may file a petition wiith the mayor against the prohibition of the sale of intoxicating liquors as a beverage within such district. By an amendment to this act found in the 99 O. L., 52, 53, it is provided that the filing of such petition as has already been mentioned, shall not prevent the filing of a petition for the prohibition of the sale of intoxicating liquors within such district, and it further provides that when two are filed, that which has the signatures of the greatest numbers of electors shall be granted, and that! the territory containing the greatest number of resident electors shall have precedence in the hearing.

By proper proceedings it had been found that in a certain district in the city of Cleveland the sale of intoxicating liquors should be prohibited. After more than two years thereafter, certain electors did file a petition against such prohibition. This was done on February 4, 1909, and the petition was numbered 38. As required by the statute the mayor fixed the time for the hearing of this petition on February 11, 1909. Before February 11, a petition was filed with the mayor by Richard Newton and others, asking for prohibition in this district, and this was numbered 39. The hearing of petition No. 38, was continued from February 11, to February 23, and from then to February 24. Notice of the filing of this petition No. 38, and of the time of its healing was given in the newspapers, as provided by law. On February 24, the vice-mayor heard the petition No. 38, No. 39 being then pending, but not yet heard. The vice-mayor on the hearing on February 24, held petition No. 38 sufficient, and an order to that effect was made. Error ivas prosecuted in this court to this finding and the judgment already made under it was reversed. It was not in terms ordered by the court upon such reversal that the ease be remanded to the mayor for further proceedings, but in the announcement by the court of the reversal, it was so ordered.

The grounds upon which the reversal was placed were that the vice-mayor had no jurisdiction, and that No. 38 could not Le lawfully heard until No. 39 had been heard. Thereafter, the mayor heard No. 39 and found it insufficient, and then on July 21, 1909, he set’ No. 38 for hearing on July 30, and on that day heard it, and found it sufficient, and a petition in error is presented to us with a motion that it may be allowed to- be filed. If error was committed by the mayor and that error is manifest on the record this motion should prevail and we should allow the petition to be filed, but we have reached the conclusion that there is nothing set out in the petition in error which would justify a reversal of the order made by the mayor.

It is said that the mayor lost all control of petition No. 38 when this court reversed the order made by the vice-mayor on that petition, because it is provided by the statute that the circuit court shall have final jurisdiction in the matter. It is manifest that the circuit court by finding that the petition had been prematurely heard, even if heard by the right party, did not undertake to pass upon the merits of the petition; certainly when this court found that the hearing by the vice-mayor was a nullity it did not finally determine whether it should have been granted or not have been granted when heard by the proper officer, so that it is clear that this- petition No. 38 was still before the mayor for hearing- after the action of the circuit court. Before the mayor undertook to hear No. 38, No. 39 was out of the way, so that the objection as to precedence was gone. As to the matter of notice, the mayor had given' the notice required by law for the original hearing. There was no- authority under the statute to give another notice. As a matter of fact, however, Richard Newton, who prosecutes this proceeding in error, had actual notice of the time of the hearing, because he was present at the hearing, as appears by the record.

A further claim is made that as the mayor was without jurisdiction to hear this petition because more than forty days had elapsed from the time of its filing before such hearing was had, and this is based upon the language of the statute which is that:

1 ‘ Such mayor * * * shall cause a certified copy or certificate of his findings together with the original petition to be filed with the clerk of the municipal corporation or counsel in uot less1 than live days -after such findings and not more than forty days from the filing of the petition with the mayor. ’ ’

There can be no doubt that this language is directory and not mandatory. To hold otherwise would put every petition filed by either those desiring to prohibit or those desiring to prevent prohibition in peril, because if the mayor were unable to hear the petition within the time directed by reason of his health, by reason of other duties, or for any other reason that would prevent his hearing the same, the petition was absolutely good for naught.

This clearly was not intended, and we reach the conclusion that this petition in error ought not to be filed, because upon an examination of the case, if it -were permitted to be filed, we should be required to affirm the action of the mayor.

Winch and Henry, JJ., concur.