text:
    DIVORCE AND ALIMONY — DECREES.
    [Cuyahoga (8th) Circuit Court,
    June 10, 1897.]
    Marvin, Hale and Caldwell, JJ.
    John T. Nauman v. Catherine Nauman.
    1. Decree fob Divorce Becomes Operative at its Rendition.
    A decree of divorce becomes operative between the parties at its rendition although such decree is simply noted Upon the appearance docket and no entry thereof made .upon the journal.
    2. Court Cannot Reopen Divorce Case, When.
    Where a motion for a new trial was filed two days after the rendition of the decree in a divorce case and upon the same day, without knowledge of such motion, one of the parties remarried, a court is not authorized to reopen the case.-
    3. Motion for Temporary Alimony Will be Denied, When.
    Where' a court orders a divorce petition dismissed and says nothing as to defendant’s crosspetition, and makes no order or entry continuing the case, the case is ended and a subsequent motion by cross-petitioner, for temporary alimony, will be denied.
    Erbob to Cuyahoga common pleas court.
    E. C. Schwan, for plaintiff in error.
    Allen T. Brinsmade,.for defendant in error.
   MARVIN, J.

This case conies into this court upon a petition in error, the purpose of the suit being the reversal of the judgment of the court of common pleas of this-county granting to Catherine Nauman alimony to be paid by John Nauman pending the suit. The facts are substantially these: Sometime in 1895, John Nauman filed a complaint in the court of common pleas praying 'for a divorce from his wife, -Catherine Nauman. Thereafter she filed an answer, or cross-petition in the case. On March 14, 1896, that case was heard and a decree of divorce was made by the court in favor of the plaintiff.

On March 17, 1896, John Nauman remarried, and on that same dav a motion was filed by Catherine Nauman in this case for a new trial. On March 21, 1896,- the-motion was sustained; the court .heard - evidence and ordered the petition -of the plaintiff dismissed at -his costs, and said nothing as to the cross-petition of Catherine Nauman, and no-entry or order was made concerning the case. Later on, sometime in January, 1897', Catherine Nauman filed a motion entitled in the case of which I have already been speaking, asking that alimony be decreed pending the hearing of her cross-petition in that case. Before-the motion was filed, however, Catherine Nauman had filed a separate petition in another ease in the court of common pleas, praying for alimony 'against. John Nauman. The question then, is whether the court of common pleas Fad any jurisdiction to make the order it did make,, that John Nauman should pay alimony pending the hearing of this cross-petition in that original case.

No entry was made upon the journal prior to the hearing of the motion for a new trial. The first journal entry made in the case was the entry dismissing the petition of John Nauman.

An entry was, however,'made on the appearance docket showing that these things took place on March 14-, to wit, a decree of the court granting Nauman a divorce, and on March 17, motion for a new trial. It was urged upon the hearing that because no entry had been made upon the journal of the court, therefore there was no divorce. That counsel making that claim are mistaken, is settled in numerous cases, and settled in Ohio beyond any question, and in this court, in the case of State v. Meacham, 3 Circ. Dec. 335 (6 R. 31), in which the opinion was delivered by Judge Upson. He said in the first paragraph of the syllabus:

“The clerk of the court of common pleas must, under the statute, enter on the journal all orders and acts of the judge of the court during the term. All changes should be subsequently entered by the clerk without omission of any former entry.”

In the fourth paragraph of the syllabus he said:

“In an appealable case, after notice of appeal and bond has been given, the case is eo instanti in the circuit court, although the clerk has journal-ized neither the decree nor the notice of appeal; and the rule that a judgment in a case is within the control of the court during the term at which it is rendered, and that the case does not go beyond the power of the court until the close of the term, has no application to such case.”

In the opinion Judge Upson says, page 337:

“In the nature of things, a judgment must be rendered before it can be entered; and not only that, but though the judgment be not entered at all, still it is none the less a judgment. The omission to enter it does not destroy it, nor does its validity remain in abeyance until it is put on the record.”

That is not only the law in Ohio, but so far as I have been able to examine the text books, it is < the law everywhere.

I call attention to the case in Cook, Estate of, 77 Cal. 220 [19 Pac. Rep. 431; 1 L. R. A. 567; 11 Am. St. Rep. 267], in the second paragraph of the syllabus:

“A judgment of divorce becomes operative between the parties at its rendition, notwithstanding it be not entered by the clerk until a subsequent date.”

The fourth paragraph of the syllabus reads:

“After the rendition of a judgment it is the duty of the clerk to •enter it; and the fact that the entry was made at the request of a person not a party, is immaterial.”

The sixth paragraph of the syllabus reads:

“A judgment of divorce rendered in favor of a party during her .lifetime may be entered after her death.” In this case it was the matter of the settlement of the estate of a deceased woman. The question of who was entitled to distribution of the estate, was affected by the question, whether when she died she was the wife of Cook or of somebody else to whom she was thereafter married. The examination of the record .shows that it was quite a number of years; the divorce was granted in 1880 and the death occurred quite a number of years thereafter, and yet .the court in this case ordered the decree to be entered as of the date when the judgment was announced. In the case of Clink v. Thurston, 47 Cal. 29, in the opinion this language is used:
“It was objected that the judgment was not signed either on the roll or elsewhere by the judge or clerk of the court. It is not required that a judgment should be signed by the judge or clerk, and as the judgment roll was an original record of the court in which it was offered, it required no exemplification.”

In this case before the court, the entry had been made upon the minutes, and we hold that the fact that nothing had been entered upon the journal is wholly immaterial. But it is provided by our statutes that .a motion for a new trial may be filed in a case within three days after the rendition of a judgment, and the court may hear such motion, and it is urged that as a motion is here filed within three days, and the court subsequently heard that motion and granted it, and thereafter heard the case upon the petition and dismissed the petition, that these parties were mot divorced. Without undertaking to say what the court would hold if the fact were not in this case that Nauman was remarried before that motion was heard, and probably before it was filed, though the record does not show whether he was married before it was filed or not; he was married on the same day it was filed, the question here is, whether that being true, there is any question of public policy requiring this case to be treated differently from a decree in another kind of a case.

We are cited by counsel for the defendant in error here to numerous cases to show that judgments in divorce should be treated as judgments in other cases. The case is cited to us in 104 Mass. 297. In the opinion it reads:

“Aside from a well justified reluctance to nullify decrees in cases where second marriages have, been contracted, the tribunals of this country have, with few exceptions, treated final decrees in divorce precisely as final judgments in ordinary civil actions.’*

That is true in the case of State v. Railway Co. 38 Minn. 246, 252 [36 N. W. Rep. 870], where the court goes so far as to say that the judgment is to be treated as any other judgment may be treated in cases after decree being entered. The same is true of all cases cited except, perhaps, two in New Hampshire, in which I find nothing which seems to ns in any way to bear upon the question now under consideration. As strong a case as is cited to us on the proposition that a judgment for divorce may be reopened, as any other judgment, is Wisdom v. Wisdom, 24 Neb. 551 [39 N. W. Rep. 594; 8 Am. St. Rep. 215].

That case cited a case in Ohio which is relied upon by the plaintiff in error here (Parish v. Parish, 9 Ohio St. 534), and expressly holds that that is not the law in Nebraska. It is urged here that Parish v. Parish, supra, is at variance with the policy of the law of, Ohio, and is not in any event authoritative in this case.

The case of Parish v. Parish, supra, was one in which it was sought to open a judgment for divorce at a subsequent term. The reasoning of the court in that case was based upon public policy, which requires that the domestic relations of parties, especially that growing out of the marriage contract, is of such interest that the case is not to be treated as a judgment in other cases; but instead of that not being now the law in Ohio, a case was decided upon October 8, 1895, by the Supreme Court of this state, only reported in brief, but found in John v. John, 1 O. S. C. D. 356 (34 Bull. 189). That was a case like Parish v. Parish, supra, where if the allegations of the petition were true, a gross fraud had been perpetrated on the court. We cannot well conceive a case where a greater fraud was perpetrated, according to the petition than that case of Parish v. Parish, supra, and the court said in passing upon it that it was to be hoped for the honor of human nature that the allegations were not true; and the demurrer was sustained in that case; a fraud upon the court as to jurisdiction, as was also true in the case of John v. John, supra. So there is no question but that the ground laid down in Parish v. Parish, supra, is still the law of Ohio. But, does that apply to the present Case? It is not exactly such a case as this, and, as I have already said, without undertaking to sáy what this court would do if a new marriage had not been made, we think that must be considered, whether this court might grant a new trial and rehear the case.

In Lewis v. Lewis, 15 Kan. 181, an opinion was delivered by Justice Brewer, and he cites in that case the case of Bascom v. Bascom, 7 Ohio (pt. 2) 125. Justice Brewer in commenting upon the case said:

“In Bascom v. Bascom, supra, the court decided that a decree of divorce was not subject to review in the Supreme Court. It was conceded that the statute provided that divorce cases should be governed ¡by the rules respecting proceedings in chancery, and .that in chancery cases the right of review existed; but there was this difference; in divorce cases the testimony was oral, in chancery by depositions. Upon - this difference the court concluded there was no right of review of decree of divorce. Manifestly a controlling consideration. was the danger of intermediate marriage. It used this language in the opinion: ‘When a divorce is granted -upon which one of the parties contracts new relations, and a third party acquires rights, it cannot be that a process could be had to reverse a decree, the consequence of which would be a severance of all those new relations. Such anomalous mischief cannot be engrafted on the practice of our courts, except by clear and explicit legislative enactment. That, we feel confident, can never fake place. All the reasons that render a decision upon facts by a jury conclusive between the parties, unite in requiring that the decision of a court, upon, facts, on the hearing of a petition for divorce, should be final, and stand beyond the reach of judicial revision.’ ” An examination of the case of Bascom v. Bascom, supra, will show that Justice Brewer has correctly stated the position of the court.
I call attention to that case to show the opinion of Justice Brewer as to intermediate marriage. In .the case of Bingham v. Miller, 17 Ohio 445, the court held that “Divorces are the subject of judicial, not legislative action, and the constitution confers upon the legislature no power to grant them, but to avoid the consequences which would result from declaring all those void which have been grante'd by the legislature during the existence of the state, rendering illegitimate the issue of second marriages, the court will pronounce them valid.”

We think that in view of the fact that remarriage had taken place in this case, the court was not authorized to reopen the case, that the case was ended; but in any event, we hold that there was no case pending in the court of common pleas at the time this motion for alimony was filed, even though we should be wrong in what had already been announced. The last decree of the court, the one on March 21, was an order that the petition of the plaintiff be dismissed, and there being no continuance, and nothing said as to the cross-petition then filed, the case, if it were not already ended, then the effect of what was then done, was to end the case.

The case found in Petersine v. Thomas, 28 Ohio St. 596, I cite as establishing that whatever was then pending in this case was ended when that Judgment was made. The first clause of the syllabus reads:

“When a matter is finally determined in an action between the-same parties by a competent tribunal, it is to be considered at an end, not only as to what was determined, but also as to every other question which the parties might’ have litigated in the case.”

Now the'whole matter was pending in that court — petition and cross-petition; if we were wrong in what we have already said, the case was ended by the first decree. The court .should not have interfered with the first decree. That ended the case, if it was not at that time ended; but our holding is that that case was ended by the decree of the fourteenth, and with these views, we reverse the judgment of the court of common pleas.

Hale and Caldwell, JJ., concur.


source: Caselaw Access Project

author: JELKE, J.

license: Public Domain

text:
    ERROR — COURTS — BENEFICIARY ASSOCIATIONS — INSURANCE.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen, Jelke and Swing, JJ.
    Mary C. Gilligan v. Supreme Council of Royal Arcanum.
    1. Judgment, of Court Upon Requests for Verdicts ■ Must be,Clearly Against Weight of Evidence to Reverse.
    The court is clothed with the functions of a jury where each party, at the close of the evidence, requests the court to instruct the jury to return a verdict in his favor, and unless the party whose request is denied thereupon requests that the case go to the jury, the verdict so rendered will not be set aside by
    - a reviewing-court unless clearly against the weight of the evidence.
    2. Royal Arcanum not Governed by Insurance Laws — Is a Fraternal Order.
    The Supreme Council of the Royal Arcanum, being a “fraternal order” within the meaning of Sec. 3631-11 Rev. Stat., .is exempt from the provisions of the insurance laws of Ohio. Such orders, with reference to certificates of membership, are governed by the provisions of Secs. 3631-11 to 3631-23 Rev. Stat., and not by Secs. 3621 to 3625 Rev. Stat., which govern insurance companies.
    D. Attendance of Patient at Physician's Office a “Medical Attendance.”
    An attendance by a physician of a patient at the former’s office is sufficient to constitute “medical attendance;” attendance at the patient’s home is not required.
    Error to the court of common pleas of Hamilton county.
   JELKE, J.

Plaintiff in error complains that certain issues should have been submitted to the jury.

The bill of exceptions shows the following:

“And' thereupon counsel for defendant moved the court to arrest this «cause from the jury and to direct the jury to return a verdict in favor of the defendant; and counsel for plaintiff also moved the court to arrest the cause from the jury and to direct the jury to return a verdict for the plaintiff for the full amount named in the petition. After argument By counsel upon both sides, the court granted the motion of the defendant and overruled the motion of the plaintiff; to which the plaintiff, by 3ier counsel, then and there excepted.”

This brings this case clearly within the rule laid down in First Nat. Bank v. Hayes, 64 Ohio St. 100 [59 N. E. Rep. 893]:

“Where, at the conclusion of the evidence in a case, each party re•quests the court to instruct the jury to render a verdict in his favor, the parties thereby clothe the court with the functions of a jury, and where the party whose request is denied, does not thereupon request to go to the jury upon the facts, the verdict so rendered should not be set aside by a reviewing court, unless clearly against the weight of the evidence.”

We abide by our holding of March 14, 1902:

“We are of opinion that the Supreme Council of the Royal Arcanum is a fraternal order within the definition and provisions of Sec. 3631-11 Rev. Stat. (See certificate of incorporation, page 116 of exhibit “A;” Chap. 2, pages 1 and 3 same.) This being so, we find that part of Sec. 3631-11 Rev. Stat. provides as follows: ‘Such associations shall be governed by this act, and shall be exempt from the provisions of the insurance laws of this state.'
“Hence Secs. 3621, 3622, 3623, 3624 and 3625 Rev. Stat. would not apply to a certificate of membership in this order.”

Also, see Williams v. Donough, 65 Ohio St. 499, 502 [63 N. E. Rep. 34]; Catholic Benev. Legion v. McGinness, 59 Ohio St. 531 [53 N. E. Rep. 54] ; Grand Lodge of A. O. U. W. v. Bunkers, 13-23 O. C. C. 487; Standard Life & Acc. Ins. Co. v. Martin, 133 Ind. 376 [33 N. E. Rep. 105].

We follow the case of Cushman v. Insurance Co. 70 N. Y. 72:

“To constitute a medical attendance, it is not requisite that a physician should attend the patient at his home; an attendance at his own office is sufficient.”

The testimony of Dr. Hoppe was properly admitted under the policy. Foley v. Royal Arcanum, 151 N. Y. 196 [45 N. E. Rep. 456; 56 Am. St. Rep. 621].

Judgment affirmed.

Giffen and Swing, JJ., concur.


text:
    ADVERSE POSSESSION — LICENSE — RAILROADS — DEEDS — EVIDENCE.
    [Hamilton (1st) Circuit Court,
    1904.]
    Giffen, 'Jelke and Swing, JJ.
    Harriet L. Smith v. Pittsburgh, C. C. & St. L. Ry. Co. et al.
    1. Executed Parol License Irrevocable.
    An executed parol license in land is irrevocable when granted for a valuable consideration; and where a definite understanding exists between competent parties, an executed license is not affected by reason of not being in writing, but if such .understanding be lacking claimant must establish his right by an . adverse possession for twenty-one years.
    2. Accepting and Recording Deed and Entry not Conduct of a Mere Licensee.
    Acts of an abutter in accepting and recording a deed for and in taking possession of disputed land cannot be construed as the conduct of a mere licensee.
    3. Adverse Possession of Railroad Land- Must be Inconsistent With Company's Right, and not Permissive.
    To acquire title to a railroad right of way by adverse possession, an abutting owner, whether he owns the fee or not, must occupy and use the land in a manner inconsistent with the paramount rights of the company. Possession and user of part not used, needed or required for immediate railroad purposes and in a manner not necessarily -adverse or inconsistent with the company’s title or easement, but which is defined by the company’s then actual needs, and is consistent with the company’s right to reclaim the property when, needed or required for the purpose for which it was acquired, will be held to be permissive only.
    4. Necessities of Railroab and Whether use of its Land is Adverse, Questions of Fact.
    Whether the necessities of a railroad company demand exclusive occupancy of land acquired for its right of way, and what use of -the property by an abutting owner is a detriment to or interference with the company’s rights, are questions of fact and not of law.-
    5. Common User and Mixed Possession Evidence Against Adverse Possession.
    Evidence of common .user, or mixed possession of a railroad • right of way between an 'adverse claimant and the company is competent evidence to rebut a claim of adverse possession and to strengthen the company’s title.
    6. Deed for Fee and Entry Thereunder Evidence of - Adverse Claim Against Another Feeholder.
    While the acceptance and entry by a grantee under a deed from a third person, conveying the fee to land in which a railroad company has acquired an easement for a right of. way is not necessarily inconsistent with the company’s easement, and though color of title is wholly immaterial to obtain title by-prescription where the possession has been continuous, exclusive and adverse-for twenty-one years, yet where the company owned the fee at the time, the acceptance and recording of such deed and .the .entry thereunder by the grantee is evidence tending to explain the character of his act in taking posssssion, and is notice to the company that his claim and occupancy is hostile and adverse ; and if possession thereunder is continuous, hostile and adverse for twenty-one years a title by prescription in favor of such grantee is acquired.
    Appeal from court of common pleas of Hamilton county.
   JELKE, J.

A parol license granted for a valuable consideration when executed is irrevocable. Tytus-Gardner Paper Co. v. Hydraulic Co. 8 Circ. Dec. 248 (15 R. 118) ; Wilson v. Chalfant, 15 Ohio 248.

The only difficulty about the application of this doctrine to the case at bar is fundamental — it is in the absence of sufficient, proof of the original contract of license. It would make no difference, having been executed, that such contract was not in writing, if the evidence showed a definite understanding between competent parties.

The testimony of S. M. Ferris shows that he had no definite notion ’of what kind of an interest, if any, he was acquiring in part of the railroads right of way. There is nothing to show authority on the part of. Mr. Williams to grant away an interest in the right of way of the railroad company. The respective rights of Mrs. Smith and the railroad company must rest upon and be determined by what was actually done, rather than upon .a contract relation.

This puts the case squarely upon the issue of adverse possession.

The deed made by John J. Ferris and wife to The Little Miami Railroad Company in 1839 begins with the following recital:

“Whereas, it has become necessary and convenient that 'The Little Miami Railroad Company’ should, hold the following described real estate for the purposes prescribed in the. act entitled an act 'To incorporate The Little Miami Railroad Company,’ ” and then proceeds with the words and terms which ordinarily would be held to convey a fee in the land.

We incline to the opinion that by this deed The Little Miami Railroad Company acquired a fee simple in its right of way, and, for the purposes of this case, so hold.

Be the nature of the company’s title what it may, it is clear, both from the deed and from user, that the property was acquired, for railroad purposes.

Disregarding, for the moment, the recitals of the deed from S. M. Ferris and wife to Harriet L. Smith, made in 1870, which recitals include a four-foot strip of the fifteen herein in controversy, and add an additional feature to such four-foot strip, we think that the facts of this case bring it within the principle of the case of Union Pac. Ry. Co. v. Kindred, 23 Pac. Rep. 112, 113 [43 Kan. 134], where it is said:

“Although the abutting landowners have cultivated and enclosed part of the right of way granted by congress, this possession cannot be considered as hostile or adverse. It must be regarded as permissive only. If the fee of the land belongs to the United States, then the' abutting landowners can acquire no title or claim by possession or limitation. Smith v. Smith, 34 Kan. 293 [8 Pac. Rep. 385]. If the abutting landowners own the fee of the right of way, they may .use the land in any way not inconsistent with the paramount rights of the railway company;, but such use will not give them adverse possession, so as to confer title. Kirk v. Smith, 22 U. S. (9 Wheat.) 241; McClelland v. Miller, 28 Ohio St. 488; Railway Co. v. Harris, 28 Kan. 206; Railway Co. In re, 20 Am. & Eng. Ry. Cas. 196; Sapp v. Railway Co. 51 Md. 115.”

This is the application to the right of way of a railroad of the established doctrine in Ohio as to public highways.

“L being the owner of lands adjoining a public highway, regularly-laid out and used by the public, extended his fence so as to enclose a portion of the ground within the surveyed linés of the highway, which portion was not then used nor required for the public travel, and kept up said fence without any objection, . for upward of twenty-one years. Held, that such partial encroachment upon the side of a surveyed and. traveled highway, was not necessarily adverse to the public, nor inconsistent with its easement, and therefore constituted no bar to its reclamation by the supervisor, when required for the public travel.” Lane v. Kennedy, 13 Ohio St. 42.
“An encroachment upon a highway regularly laid out and established, by putting out a fence or planting a hedge within the legal limits of the road, does not constitute such adverse possession as will confer title.” McClelland v. Miller, 28 Ohio St. 488, 489.

The reason for these decisions is that the past user of the property now in dispute has been devoid of the necessary element of hostile adversity, because the railway or the highway did not, up until then, need the property for the purposes for which it had been acquired.

The deposition of Mr. S. M. Ferris shows that he was permitted to-do what he did because the railroad did not then need the land for its-purposes. He says, on page six of his deposition, under examination by Mr. Matthews:

“Q. Mr. Ferris, you said that you did not suppose that you would ever have to take that wall down. What led you to suppose that? A. I didn’t suppose that the railroad would ever need it.”

This shows that the term of his user was defined by the time of .the railroad’s need.

It was said in the case of Kansas Cent. Ry. Co. v. Allen, 22 Kan. 285, 295 [31 Am. Rep. 190]:

“The trial court followed the authority of Jackson v. Railway Co. 25 Vt. 150; but that is an exceptional case. It goes too far. It transfers an easement into an absolute title. It announces as a matter of law, that a railroad company has the right at all times to the exclusive occupancy" of the land condemned for its purposes, and excludes all concurrent occupancy by the landowner in any mode or for'any purposes. We are unwilling to approve that doctrine. It is our opinion that it is a question of fact, not of law, whether the necessities of.the railroad demand exclusive occupancy for its purposes, and what use of the property by the owner is a detriment to, or interference with, the rights of the road. Again, this authority is in conflict with the majority of cases, and, if adopted as the law of this state, now so sparsely settled, and where in many of the frontier counties but a single track is necessary, and public highways and public crossings are at great distances from each other,, would work severe hardship and injustice. Blake v. Rich, 34 N. H. 282; Washburn, Easements 159, 214; Lance’s Appeal, 55 Pa. St. 16; Evans v. Haefner, 29 Mo. 141; Railway Co. v. Burkett, 42 Ala. 83; 1 Redfield, Railways 247; Railway Co. v. Kip, 46 N. Y. 546; Cemetery v. Railway Co. 68 N. Y. 591.”

All of this is on the ground that the railroad only had an easement and that any use of the land by the owner of the fee not interfering with the easement when needed, was not adverse. So, whether the railroad has a fee or an easement, any permitted use by an abutting landowner of part of the right of way up and until needed for railway purposes exclusively, cannot be said to be adverse in any hostile sense.

There is testimony of common user or mixed possession, and if this, is so it would strengthen the railroad’s case, for, as said above, it is a question of fact, not of law, whether the necessities of the railroad demand exclusive occupancy for its purposes and what use of the property by the owner is a detriment to or interference with the rights of the road.

As to the inner strip of four feet there is an additional fact which, while not ordinarily controlling, yet is of sufficient importance, when taken with the acts of the abutting claimants, to make a different case. This strip was covered by the deed to plaintiff in 1870. It is said that this deed gives color and meaning to the acts of plaintiff taking possession under it, and that it is notice to the railroad company that from that time on the plaintiff claimed to be the owner of the property in fee, free from any incumbrance or easement, and that her acts, user and possession were as such owner as against the world.

As against this contention it might be said that if the railroad owned only an easement, a deed of the fee and its acceptance and entry thereunder by plaintiff is not necessarily inconsistent with such easement. But it is more strongly contended that the deed adds nothing to the' strength of plaintiff’s case, because color of title is wholly immaterial in Ohio where there has been eontinnons, exclusive and adverse possession for the requisite time, and such possession is protected whether the. entry-was with or without color of title: Paine v. Skinner, 8 Ohio 159; McNeely v. Langan, 22 Ohio St. 32, 37; Humphries v. Huffman, 33 Ohio St. 395, 402; Yetzer v. Thoman, 17 Ohio St. 130 [91 Am. Dec. 122].

The foregoing .is undoubtedly the law, tut there is a well-marked distinction between possession with and one without color of - title as to the extent and character of the occupancy, the latter being limited to the part actually occupied, and, whereas occupancy of part under color is constructive of all the color extends to. Humphries v. Huffman, 33 Ohio St. 395, 403.

So, conversely, the o same acts may have a different or weightier significance, - dependent upon the nature or color of title asserted by contesting claimants.

The acts of an abutter who takes and records a deed for the disputed land cannot reasonably be construed as the conduct of a mere licensee. While the taking of a deed of the fee may have no adverse significance as against the railroad owning only an easement, it certainly has as against the railroad company owning the fee, to the extent of giving character to the acts of plaintiff. This case, then, must turn upon findings of fact, whether the user by S. M. Ferris and his grantee, plaintiff herein, has been so in conflict with the ownership of the railroad company as to constitute adversity.

It seems to us that, as to the outer eleven-foot strip, this issue, in any hostile or exclusive sense, has never been raised- until the beginning of this pending controversy.

As to the inner four-foot strip, we think that the defendant knew that the claim, occupancy and acts of plaintiff were hostile and adverse from the record of the deed in 1870, and we so find that plaintiff’s occupancy of this strip was, since then, hostile and adverse.

As to the eleven-foot strip, we do not find such adversity present long enough to bar the railroad from asserting its right to use said strip of land for the uses for which it was acquired, to wit, railroad purposes, and as to it we cannot, therefore, grant the relief prayed for.

As to the four-foot strip, we find that plaintiff has maintained a continuous, open, notorious, hostile, exclusive and adverse possession fo? more than twenty-one years prior to the beginning of this actiou. and that-the defendant company is barred from asserting any claim thereto. As to this latter strip the prayer of the petition for an injunction will be granted.

Decree accordingly.

Giffen and Swing, JJ., concur.


author: MOONEY, J.

text:
    BILLS OF EXCEPTION — VENDOR AND PURCHASER — CONTRACTS.
    [Logan (3rd) Circuit Court,
    February Term, 1904.]
    Day, Mooney and Norris, JJ.
    Contractors & Builders Supply Co. v. Alta Portland Cement Co.
    1. Exhibits hot Sufficiently Identified not Part of Bill of Exceptions.
    Neither a pasteboard box bearing two labels as follows: “Pltffs. exhibits 16 and 17; Defts. exhibits Al, A2, A3 and A4,” and enclosing six separate specimens of cement composition labeled “Pltffs. Ex. 16,” “Pltffs. Ex. 17,” “Defts. Ex. Al,” etc., nor its contents are a part of a bill of exceptions when the box or its other enclosures bear no other marks of identification or refer in any way to the action or bill of exceptions, and the latter also fails to refer to the specimens as being attached to it, notwithstanding the bill of exceptions proper discloses that specimens so marked were offered in evidence at the trial; simultaneous filing with the. bill is not sufficient to identify it.
    ¡3. Amendment of Bills of Exceptions in Reviewing Court Improper, When.
    An amendment of a bill of exceptions in the reviewing court by attaching thereto exhibits offered in evidence in the trial court, but which are not sufficiently identified from the marks thereon or the bill proper, is without authority of law. Evidence áehors the record is inadmissible to identify such exhibits.
    3. Bill of Exceptions Affirmatively Defective, When.
    A bill of exceptions does not contain all the evidence submitted at the trial wheu it affirmatively appears therefrom that certain matters of evidence were considered by the jury which are not made a part of the bill; and the certificate thereto of the trial court that the bill contains all the evidence does not cure the defect.
    4. Breach of Former Contract no Defense.
    A vendee cannot refuse to pay for goods delivered by his vendor, in accordance with the terms of his contract, on account of a question of disputed damages between them which arose out of the delivery of defective goods by vendor under a prior contract of sale. A fortiori when the claim is illfounded.
    6. Time of Essence of Contracts for Manufacture and Sale.
    As a general rule, time is of the essence of contracts for the manufacture and sale of goods, and failure of either vendor or vendee to perform an essential part of their contract of sale within the time provided will excuse further performance on the part of the other.

      6. Vendor may Rescind fob Vendee’s Failure to Pay for Installment Deliveries.
    A contract of sale of 15,000 barrels of cement, to be delivered in installments during the year as ordered by vendee, each delivery to be paid for within ten days from date of bill of lading, although divisible or distributive as to its performance, is, nevertheless, a single and entire contract in its formation and obligation. Under such contract, the promise and performance on one side is the consideration for the promise and performance on the other; time is of the essence of the contract; and partial performance, at least, by. one is a condition precedent to a corresponding partial performance on the part of the other. Hence, the failure of vendee to pay for each delivery at the expiration of the ten days’ credit, and to-pay for past deliveries, will excuse vendor from making further shipments,, and justify him in rescinding the contract; and after his election. to rescind, anoffér by vendee to pay cash or make any terms as to payment for future deliveries, is of no avail.
    7. Selling Agency May be Terminated eor Failure to Account.
    When a selling -agency fails to transmit the proceeds of sales to the principal at the_ time when the payments become due under the agency contract, the principal may terminate the agency forthwith and bring suit for the balance then due.
    ERROR tq Logan common pleas court.
    Howemstine & Hustin, for plaintiff,
    J. P. Bower and J. R. Cassidy, for defendant.
   MOONEY, J.

In the original action defendant in error as plaintiff sued to recover from plaintiff in error as defendant a balance of $1,145.60 upon an account for'merchandise sold and delivered. In its amended and supplemental answer and cross-petition said defendant admitted the account and set up a credit on the same of $218.90 arising since the commencement of the action, leaving an admitted balance of $926.70 on the account. To' cancel this balance and also to secure a recovery in its own favor defendant by way of cross-petition pleads two causes of action:

First. That under a contract entered into in 1901 for an agreed price to be paid by defendant, plaintiff agreed tp sell and deliver certain cemént which .upon test made by the Osborn Engineering Company, of Cleveland, Ohio, would prove to be and in fact would be of a certain quality; that in pretended performance. of -said contract plaintiff did-deliver certain cement which in fact was not subjected to the required test and which was worthless in quality; that defendant relying upon plaintiff’s performance of its contract accepted more than 285 barrels of this worthless cement and used the same in the construction of a railroad platform; that said construction was defective by reason of the worthless quality of said cement, and defendant was compelled to reconstruct the platform, in all to its damage in the sum of $1,200 for which judgment is prayed.

Second. Defendant states that on March 6, 1902, plaintiff and lefendant entered into another contract by the terms of which for an agreed price to be paid by defendant, plaintiff agreed to manufacture and sell to defendant and deliver on board cars at Rushsylvania, Ohio, during the building season of 1902, 15,000 barrels of the best brand of Alta Portland cement, deliveries to be made in such quantities and at such times during said season as defendant might from time to time require, payment to be made within sixty days from date of each bill of lading, or defendant might pay in ten days and retain a discount of two per cent. Defendant states that during said season plaintiff delivered under said contract 950 barrels of cement and no more, the same' being the merchandise an account of which is stated in plaintiff’s peti-' tion, and-plaintiff “has and does now, without any fault of defendant,' 'fail, neglect, and refuse to furnish and deliver any more cement under said contract, and by reason of such failure, neglect and refusal, the' defendant, without any fault upon its part, has been unable to supply’ the demand made upon it and has suffered and sustained a loss of the difference between the market value of cement during the season of 1902 and the price at which plaintiff agreed to furnish the said 15,000 barrels of cement, to wit, the sum of $1.0742 per barrel, making a total of $15,092.91 for which upon this second cause of action "judgment is prayed. Plaintiff by way of answer to the cross-petition pleads a waiver' by defendant of the required test as alleged in the first cause of action and denies all other statements of the cross-petition.

The action on these issues was tried to a jury and a verdict returned for plaintiff in an amount exactly equal to the balance due on plaintiff’s account as admitted by defendant with interest from the date named in the petition to the day of trial. Defendant filed its motion' for a new trial, one ground of which is that the verdict is not sustained by sufficient evidence. This motion was overruled and judgment wqs entered on the verdict. Defendant duly took a bill of exceptions and now prosecutes error here to reverse the judgment of the common pleas. The errors assigned are in substance, in the rulings on evidence, in the charge to the jury, and in overruling the motion for a new trial.

The bill of exceptions as it appeared when called to the attention of this court consisted of a volume of typewritten testimony, statements as to rulings thereon, certain identified letters, documents and depositions, the charge of the court and exceptions thereto. To this volume there was attached .a pasteboard box bearing two labels as follows, “ Plffs. exhibits 16 and 17 ” and “ Defts. exhibits Al A2 A3 and A4.” The box itself bears no other marks of identification. Enclosed in the box are six separate specimens of cement composition. These specimens are labeled respectively, “ Plffs. Ex. 16,” “ Plffs. Ex. 17,” “ Defts. Ex. Al,” etc., but none of them bears any other marks of identification. The bill of exceptions proper shows that specimens marked as those are were offered in evidence at the trial but the bill does not refer to the specimens as being attached to it, nor does the box nor the specimens refer in any way by any mark to the bill nor to the action either by number or title. The defendant in error moves to strike the box and its contents from the t>iíl for the reasons: 1. Said box and contents-were not filed in thé court of common pleas within time. 2. The same were never submitted to the trial judge as part of the bill. 3. The same were never attached to said bill until after February 15, 1904. 4. The said box and contents were never filed in this court. The motion was submitted here upon the evidence from which it appears that the second, third and fourth grounds of the motion are well taken. Although there may be some doubt we find that the bill proper and the box were each filed on the same day in the common pleas but at the time they .were not attached to each other and there is no fact except only that of simultaneous filing with the bill proper to identify the box or its contents with the case on review or in fact with any case whatever.

It is manifest that the attachment of the box to the bill proper when the case had been carried to this court, is either an amendment of the bill itself by an act of the party in this court or else such attachment has no significance whatever. If it be an amendment it is not authorized by law, if not an amendment it is unimportant in the case. In either event we think “ the tie that binds ” the box to the bill proper should be loosed and the disconnected parts receive such recognition here as each upon its own showing is entitled to. Disconnected from the bill proper there is nothing of record or discoverable upon mere inspection to identify the box or its contents with the case on review, and for information upon the point we are driven to sources dehors the record as defendant in error was upon his motion. On the authority of Lake Erie & W. Ry Co. v. Mackey, 53 Ohio St. 370 [41 N. E. Rep 980; 29 L. R. A. 757; 53 Am. St. Rep. 640], we hold the box and its contents to be no part of the bill of exceptions in the case. It results therefore that there is before this court no bill of exceptions containing all the evidence submitted at the trial. The certificate of the trial judge to the contrary is of no avail since upon an inspection of the bill it affirmatively appears that there were matters of evidence considered by the jury which are not a part of the bill which was submitted to the trial judge and which he signed. This proposition was also involved in Lake Erie & W. Ry. Co. v. Mackey, supra.

An examination of the bill of exceptions does not disclose any error in the admission or rejection of evidence, and no special complaint or objection in this respect is pointed out to us in argument, in the briefs or by notation on the bill itself.

We think it is evident upon a reading of the bill itself that if it be held that the evidence in the bill is all the evidence in the case, there is such a material conflict in the evidence relating to both causes of action statecl in the cross-petition that no reviewing court could hold that a finding against the cross-petition is against the manifest weight of the evidence upon either issue. Under these circumstances it is fortunate that the real matters in dispute between the parties are fairly and fully presented by at least one of the exceptions to the charge. We are pleased to be able to conclude that the failure of the bill to present all the evidence does not result in any different ruling here than would be required if we were to hold that the evidence is all in the bill.

Plaintiff in error specially excepted to the instructions given in-charge as to the measure of damages applicable to the second cause of action of the cross-petition. Without quoting the charge it is sufficient to say that the jury was instructed that' if plaintiff in error sustained the claim made in the second cause of action it would be entitled to a substantial amount in damages, and rules to determine the amount were stated. The jury returned its verdict for defendant in error for the precise amount defendant in error was entitled to recover in the event that plaintiff- in error failed to sustain either of its causes of action. It is thus manifest from an examination of the record that the jury found against plaintiff in error upon both of its causes of action. A misdirection as to the measure of damages on the. second cause of action is immaterial .unless, as the record stands, the jury was misdirected as to the right to recover oh that cause of action. Whether there is such misdirection is the question raised by another exception to the charge.

Plaintiff in error also excepted to the instruction that the dispute between plaintiff and defendant on the question of damages for defective cement furnished for the railroad platform under the former contract would be no excuse to plaintiff in error for refusal to pay for deliveries of cement under the contract in suit according to the terms of the latter contract. The correctness of this charge is held, in effect, in Bradley v. King, 44 Ill. 339, but we do not think it is now important in the case whether this instruction be correct or not. The jury found that plaintiff in error had no valid claim for damages on account of the platform transaction and that in consequence the assertion of such claim by defendant was groundless. However the law may be in the case of a well-grounded counterclaim made by defendant for damages, it is believed that no one will seriously contend that the assertion of a groundless counterclaim will excuse a defendant from the performance of his obligation arising from a contract either admitted or proved, upon trial.

“ An ill-founded claim for damages in such case does not excuse a defendant from performance when performance of his admitted obligation becomes due, and if the claim for damages is in fact illfounded the good faith of the defendant in asserting such claim is, in an action at law, immaterial.” Cresswell Ranch & Cattle Co. v. Martindale, 63 Fed. Rep. 84 [11 C. C. A. 33; 27 U. S. App. 277]. Hence, if this instruction be erroneous it-is not prejudicial to plaintiff in error.

Plaintiff in error also excepted to the instruction, in substance, that if the jury find the contract to be as claimed by defendant in error, and that plaintiff- in error did, not pay for each shipment of cement, at the expiration of the ten days’ credit provided by the contract, as defendant in error claims, then on account of such failure by plaintiff in error to :pay, defendant in error was released from the obligation to make further "shipments of cement under the contract. The jury did find, the contract to be as claimed by defendant in error, and so by the correctness of this instruction the validity of the judgment of the common pleas is to be determined in this proceeding.

The evidence in, the record together with the finding of the jury makes it clear that 'defendant in error agreed to manufacture and deliver in installments to plaintiff in error from time to time in 1902, as ordered, 15,000 barrels of cement; that plaintiff in error agreed to pay for each shipment within ten days from' date of bill of lading; that under said contract pursuant to plaintiff in error’s order defendant in error shipped on April 29, 130 barrels; May 5, 100 barrels; May 14, 130 barrels; May 16, 195 barrels; May 16, 100 barrels; May 28, 195 barrels and May 31, 250 barrels; that on June 3, 1902, defendant in error complained of nonpayment for goods theretofore shipped and in effect declined to make further shipments; in reply plaintiff in error asserted that the credit was sixty days on each shipment and that by contract it was the sole agent for Hamilton county for defendant in error’s product and that another Cincinnati firm was being supplied by defendant in error with “ Alta ” cement and that defendant in error had in consequence broken the contract. No part of the price for the cement shipped as heretofore stated having been made the original action was commenced- in the common pleas June 19, 1902, to recover the same. No payment for the cement shipped has ever been made. Plaintiff in error offered ábout June 25, 1902, to pay for future shipments in cqsh or in any way that defendant in error might desire, but defendant in error declined to make further shipments and based its refusal upon the failure to pay for the installments then delivered according to contract. The question of law is. whether under these circumstances and for the reason relied upon defendant in error had the right to refuse further performance. The trial court instructed the jury that defendant in error had such right by reason of the nonpayment.

While the contract to purchase is divisible or “ distributive ” as to .performance it was nevertheless a single entire contract in its formation and obligation. Pope v. Porter, 102 N. Y. 366 [7 N. E. Rep. 304]; Denny v. Williams, 87 Mass. (5 Allen) 1, 4; and the promise and performance on one side was the sole consideration for the promise and performance upon the other. In the nature of the contract at least partial performance on the part of the defendant in error was a condition precedent to a corresponding partial performance on the part of the plaintiff in error. An installment delivery was to precede by ten days a corresponding payment. The initial installment was shipped by defendant in error April 29, 1902. By the finding of the jury payment for this fell due on May 9, 1902. Subsequent payments fell due before June 3, 1902, on May 15, 24 and 26. Plaintiff in error made default in each case and no payment whatever was made before June 3, 1902, when defendant in error declined to make further shipments on the contract, nor before June 19, 1902, when the original action was commenced; nor before October 18, 1902, when plaintiff in' error asserted its second cause of action by way of counterclaim in the original action.

The question arising upon the exception to the charge in the respect tinder consideration has not been determined by the Supreme Court of our state. In other jurisdictions the cases are in conflict. Courts of the very highest authority have held that the failure of the purchaser to make installment payments or the seller to make installment deliveries at the very time agreed upon does not of itself authorize the other party, after performance has commenced, to refuse further performance. After some hesitation and with the decisions of the inferior courts in conflict, the house of lords has declared this to be the law of England. Mersey Steel & Iron Co. v. Naylor, 9 App. Cas. 434, 439. The same rule is recognized and enforced in New Jersey, Blackburn v. Reilly, 47 N. J. Law 290 [54 Am. Rep. 159]; Gerli v. Silk Mfg. Co. 57 N. J. Law 432 [31 Atl. Rep. 401; 30 L. R. A. 61; 51 Am. St. Rep. 612] ; in Iowa, Myer v. Wheeler, 65 Iowa 390 [21 N. W. Rep. 692]; Osgood v. Bauder, 75 Iowa 550 [39 N. W. Rep. 887; 1 L. R. A. 655], and in Michigan, West v. Bechtel, 84 N. W. Rep. 69 [125 Mich. 144], reviewing many cases. West v. Bechtel, supra, p. 76, states the rule and its consequences as follows:

“ The rule is that defaults by one party in making particular payments or deliveries will not release the other party from his duty to make the other deliveries or payments stipulated in the contract, unless the "conduct of the party in default be such as to evince an intention to abandon the contract, or a design no longer to be bound by its "terms. This rule leaves the party complaining of a breach to recover damages for his injury on the normal principle of compensation, without allowing him the abnormal advantage that might inure to him from an option to rescind the bargain.”

On the other hand, many courts of equal authority with those heretofore referred to have announced and enforced the rule “ that the failure of either party to perform an' .essential term of the contract gives to the other the right to rescind ” or refuse thereafter further to perform the contract. Such is the holding of the Supreme Court of the United States, Norrington v. Wright, 115 U. S. 188 [6 Sup. Ct. Rep. 12; 29 L. Ed. 366] ; Cleveland Rolling Mill Co. v. Rhodes, 121, U. S. 255 [7 Sup. Ct. Rep. 882; 30 L. Ed. 920]; New York, Pope v. Porter, 102 N. Y. 366 [7 N. E. Rep. 304]; Winchell v. Scott, 114 N. Y. 640 [21 N. E. Rep. 1065; Kokomo Strawboard Co. v. Inman, 134 N. Y. 92 [31 N. E. Rep. 248]; Illinios, Bradley v. King, 44 Ill. 339; Hess Co. v. Dawson, 149 Ill. 138, 139 [36 N. E. Rep. 557]; Rhode Island, King Philip Mills v. Slater, 12 R. I. 82 [34 Am. Rep. 603]; Providence Coal Co. v. Coxe, 19 R. I. 380 [35 Atl. Rep. 210]; Pennsylvania, Rugg v. Moore, 110 Pa. St. 236 [1 Atl. Rep. 320], citing and distinguishing Scott v. Kittanning Coal Co. 89 Pa. St. 231 [33 Am. Rep. 753], which is often cited as opposed; Maryland, McGrath v. Gegner, 77 Md. 331 [26 Atl. Rep. 502; 39 Am. St. Rep. 415]; Curtis v. Gibney, 59 Md. 131; Massachusetts, Stephenson v. Cady, 117 Mass. 6, in which case it was held that “ when executory contracts are made on different days for the sale of goods, the price of which is to be payable on delivery, and the deliveries under the second contract are by its terms to commence when the full quantity required by the first has been shipped, the purchaser cannot, after refusing to pay for goods delivered under the first unless the seller will give security for the entire fulfilment of the contracts, maintain an action for nondelivery under the second contract. ’ ’ See also, Stokes v. Baars, 18 Fla. 656; Robson v. Bohn, 27 Minn. 333; Branch v. Palmer, 65 Ga. 210; Fletcher v. Cole, 23 Vt. 114, 119; Haines v. Tucker, 50 N. H. 307; Dwinel v. Howard, 30 Me. 258. These last cases are cited and relied upon as sustaining the rule last above statéd, but the writer has had no opportunity to examine the cases themselves in any official report. Coffinberry v. Oil Co. 68 Ohio St. 488, distinctly recognizes the principle upon which these cases are decided.

It is suggested in the case of Norrington v. Wright, supra, that the rule announced in Mersey Steel & Iron Co. v. Naylor, supra, “ is applicable only to the case of the buyer to pay for and not that of a- seller to deliver ” installments, and the inference to be drawn from the suggestion is that a different rule applies to a buyer in default than to a seller in the same situation. The suggestion referred to was obiter. Norring-ton v. Wright, supra, and the other cases do not lend support to the inference; see Benjamin, Sales Sec. 593a. Kokomo Strawboard Co. v. Inman, supra; Hess Co. v. Dawson, supra; Rugg v. Moore, supra, Stephenson v. Cady, supra, and McGrath v. Gegner, supra, are all cases in which the buyer made default and it was held that the seller was thereby released from the duty to make further performance, and in none of these cases is it held or suggested that the result of a default of the buyer is other or different from that of a default of the seller.

In view of all the cases and after a careful and critical review of them, Mechem in his recent and valuable work on Sales, Sec. 1148, says, “ though the cases are not in harmony, this view, that the failure of either party to perform an essential term of the contract gives to the other the right to rescind that contract, is sustained by the clear weight of American authority.”

In Gerli v. Silk Mfg. Co. supra, Van Syckle, J., dissented and wrote a dissenting opinion, maintaining that for the seller’s default in delivering one installment the buyer could refuse further performance.

In a note to Gerli v. Silk Mfg. Co. 51 Am. St. Rep. 612, 615, the learned editor says:

“We entertain no doubt that the dissenting opinion is well supported by authorities, and sustained by reason.”

The consequences of the prevailing opinion were thus described by the dissenting judge:

“ Under the rule on which the judgment below is based, if there is a contract for twelve successive monthly deliveries,' the vendor may be-fuse to make eleven of the deliveries as the due days arrive, and still hold the vendee to the acceptance of the twelfth delivery. Such a doctrine will be startling to the business community. It needs no discussion to show that in those pursuits where supplies are essential to the employment of labor no business enterprise can be' conducted with safety or success under such a rule. A contract for goods in installments is thereby perverted into an agreement to engage in a succession of lawsuits, if the vendor so elects, for such damages as the purchaser may be able to recover, as a substitute for what he expressly bargains for, and during all this period the purchaser cannot safely secure his needed supplies elsewhere, because he cannot know, until the due days arrive, whether the vendor will make further default. The injustice of such an exposition of the law is even more conspicuous when we consider that in many cases the purchaser will be compelled to seek redress in the courts of another state, or in those of a foreign country.”

If the seller ready to perform is not released, at his option, from further performance upon failure of the buyer to make his payments as agreed, an equal injustice will be dope the former and an unexpected hardship visited upon him without any fault whatever upon his part. This seller was a manufacturer of cement. The seller had stipulated for payments within ten days of each delivery. It was not bound by any contract duty to extend a further time of credit and assume the risks incident thereto. It had the right to rely upon prompt payment of the installments to supply the necessary funds to continue its manufacture. Having thus arranged for funds it was not bound to look elsewhere for its supply. It was not bound to enlarge investment by using its own funds or by borrowing funds in order that the buyer might continue to make default or to remain in default. It was not bound to accept a chose in action when cash was promised. “ In mercantile contracts time is generally of essence,” and this is particularly true in contracts for the manufacture and sale of goods. Bowes v. Shand, 2 App. Cas. 455; Jones v. United States, 96 U. S. 24 [24 L. Ed. 644] ; Norrington v. Wright, supra, and Cleveland Rolling Mill Co. v. Rhodes, supra; Camden Iron-Works v. Fox, 34 Fed. Rep. 200; Scarlett v. Stein, 40 Md. 512; Cromwell v. Wilkinson, 18 Ind. 365. While time of payment is not generally of essence we have seen that in contracts such as the one under consideration here it is held that time is of essence as to payment as well as delivery. We conclude in accordance with what we believe to be the clear weight both of American authority and cosmopolitan reason that in the case on review the seller had the clear right to refuse further performance under the circumstances stated in the instructions to the jury.

How does plaintiff in error stand with the very authorities relied upon by it? Defendant in error maintained below and the jury found that each installment delivered should b.e paid for in ten days. The admitted fact is that plaintiff in error denied that this was the contract and insisted that by the contract it was entitled to a sixty day credit, and this not only upon the deliveries already made but upon those to be made in the future. This contention of plaintiff in error involved by necessary implication the declaration- of plaintiff in error’s intention “ to abandon the contract or a design no longer to be bound by its terms,” as the jury upon sufficient evidence found the contract and its terms to be. The offer of plaintiff in error through its attorney to make any terms as to the payment for further deliveries is not material in the case because the offer was made after the defendant in error had exercised its option “ to rescind.” So even upon the case of Mersey Steel & Iron Co. v. Naylor, supra, and similar cases the plaintiff in error must fail.

It may be added that at the very time when plaintiff in error filed its crossTetffion in the original action that party was in default for performance of its contract not in some mere matter of detail nor as to ■some “ subsidiary provision ” but as to every single duty which was enjoined upon it under the contract and the performance of which constituted the consideration — the entire consideration for defendant in error’s performance. The effort of plaintiff in error was therefore to enforce a contract which before action brought it had broken, and the entire consideration of which it had then caused to fail.

If, as Judge Day finds from the record, the transaction between the parties hereto amounts merely to the creation of a selling agency, it is very clear that upon failure of the agent or factor to transmit the proceeds of sales to the principal at the times when under the contract of agency the payments became due, the principal was at liberty to terminate the agency forthwith and bring suit for the balance then due. The writer is not of opinion that the transaction resulted in the creation of a selling agency but that it was and is. a contract to sell.

In any view we find no error in the record to the substantial prejudice of plaintiff in error and for that reason the judgment of the court of common pleas is affirmed.

Day and Norris, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — STREETS—NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    April, 1904.]
    Giffen, Jelke and Swing, JJ.
    Matilda Sharp v. Cincinnati.
    1. Municipal Corporation not Liable for Damage bt Surface Water from Street, When.
    Where property naturally is situated lower than the street upon which it abuts the municipal corporation, in the absence of negligence, cannot he held liable for damages resulting from the overflow of surface water from the street.
    2. Change of Street Grade does not make Municipal Corporation Liaele for Damage by Surface Water, When.
    Where a municipal corporation raised the grade of a street, thereby making abutting property lower than the street, the owner thereof was entitled to compensation therefor, and having received it or having waived it the reciprocal relations became as though the topography was entirely natural, and he cannot thereafter complain of the burdens incident to the low location of the property.
    3. One Negligent of Contractual Duty Cannot set up Act.of God as Proximate Cause of Injury.
    In cases involving negligence of duty based on contract the question of proximate cause is immaterial, and while the law, in some cases, will permit one to set up as a defense that he was prevented by a vis major from doing what he contracted to do, where he has been negligent, he will not be permitted to take refuge in an inquiry whether his own negligence or a vis major has been the proximate cause of a resultant injury.

      4. Negligence of Implied Duty Creates no Liability Where Damage Resulted Proximately from Act of God.
    In cases involving negligence of duty imposed by law the question of proximate cause is an essential element of liability or defense, and when the damage has proximately been caused by the act of God the law does not concern itself in implying duties, the observance or breach of which had. nothing to do with the damage for which recovery is sought.

      5. Reviewing Court Will Consider Affirmative Errors Only, When.
    Where a record does not contain all the evidence a reviewing court must presume every finding of fact necessary to support the verdict and judgment, and where a portion of the charge is omitted, affirmative errors only will be considered.
    ERROR to' court of common ple.as of Hamilton county.
    Norwood J. Utter and Chas. E. Tenney, for plaintiff in error:
    If a city so constructs its streets, that the surface water from the adjacent territory is collected into a channel and cast upon the premises of a lotowner, -thereby causing damage, the city will be liable therefor. Rhodes v. Cleveland, 10 Ohio 159 [36 Am. Dec. 82] ; McCombs v. Akron, 15 Ohio 474; Springfield v. Spence, 39 O. S. 665; Zanesville tv. Fannan, 53 Ohio St. 605 [42 N. E. Rep. 703; 53 Am. St. Rep. 664] ; McBride v. Akron, 6 Circ. Dec. 739 (12 R. 610) ; Toledo v. Lewis, 9 Circ. Dec. 364 (17 R. 588) ; Bastable v. Syracuse, 8 Hun (N. Y.) 587, 589, 591; Manning v. Lowell, 130 Mass. 21, 25; Gillison v. Charleston, 16 W. Va. 282, 303, 304 [37 Am. Rep. 763] ; 24 Am. & Eng. Ene. Law (1 ed.) 946, 947, 948; 2 Iiillon, Mum. Corp. (4 ed.) Sec. 1042, n. 1; Sec. 1045, n. 6 and 7; Sec. 1053, n. 1, 2, 3 and 4; Weis v. Madison, 75 Ind. 241 [39 Am. Rep. 135] ; Patoka Tp. v. Hopkins, 131 Ind. 142, 143 [30* N. E. Rep. 896; 31 Am. St. Rep. 417] ; Ashley v. Port Huron, 35 Mich. 296 [24 Am. Rep. 552] ; Inman v. Tripp, 11 R. I. 520 [23 Am. Rep. 520] ; Dixon v. Baker, 65 Ill. 518 [16 Am. Rep. 591]; Chicago, R. I. & P. Ry. Co. v. Clough, 134 Ill. 586, 588 [25 N. E. Rep. 664; 29 N. E. Rep. 84]; Indianapolis v. Lawyer, 38 Ind. 348; Evansville (City) v. Decker, 84 Ind. 325 [43 Am. Rep. 86] ; Byrnes v. Cohoes (City), 67 N. Y. 204; Pettigrew v. Evansville" (Vil.), 25 Wis. 223 [3 Am. Rep. 50] ; Lehn v. San Francisco, 66 Cal. 76, 78; Lynch v. Mayor, 76 N. Y. 60’ [32 Am. Rep. 271] ; Poillon v. Brooklyn, 101 N. Y. 132, 135 [4 N. E. Rep. 191] ; Moran v. McClearns, 63 Barb. (N. Y.) 185; Jacksonville v. Lambert, 62 Ill. 519; Sykes v. Van Bibber, 88 Md. 98, 100 [41 Atl. Rep. 117]; O’Brien v. St. Paul, 25 Minn. 331 [33 Am. Rep. 470]; Seymour (City) v. Cummins, 119 Ind. 148 [21 N. E. Rep. 549; 5 L. R. A. 126] ; Crawfordsville v. Bond, 96 Ind. 236; Limerick & C. Tpk. Co. Appeal of, 80 Pa. St. 425; Arn v. Kansas City, 14 Fed. Rep. 236; Stanford v. San Francisco Co. Ill Cal. 198 [43 Pac. Rep. 605] ; Demour v. Lyons City, 44 Iowa 276, 278; Powers v. Council Bluffs (City), 50 Iowa 197.

      The intervention of the act of God will not be a defense when the negligence of the defendant combined therewith to cause the damage. 1 Am. & Eng. Enc. Law (1 ed.) 176; 1 Am. & Eng. Ene. Law (2 ed.) 587, 595, 598; Fonvard v. Pittard, .1 Term 27; 2 Parsons, Contracts (9 ed.)159; Polack v. Pioche, 35 Cal. 416 [95 Am. Dec. 115] ; Central Line of Boats v. Lowe,- 50 Ga. 509; McGraw v. Railway Co. 18 W: Ya. 361 [41 Am. Rep. 696]; Wolf v. Express Co. 43 Mo. 421 [97 Am. Dec. 406]; ‘Siordet v. Hall, 4 Bing. 407; Campbell v. Morse, 1 Harper (S. Car.) 46S; Packard v. Taylor, 35 Ark. 402 [37 Am. Rep. 37] ; Lodwieks v. Insurance Co. 5 Ohio 433; Smith v. Transportation & Trading Co. 20 Wash. 580 [56 Pac. Rep. 372; 44 L. R. A. 557] ; Wald-v. Railway Co. 162 Ill. 545 [44 N. E. Rep. 888; 35 L. R.'A. 356; 53 Am. St. Rep. 332]; Bell v. Reed, 4 Binn. (Pa.) 127, 158; Rodgers v. Railway Co. 67 Cal. 607 [8 Pac. Rep. 377] ; Story, Bailments- 511; Nugent, v. Smith, L. R. 1 C. P. Div. 19; Michaels v. Railway Co. 30 N. Y. 564 [86 Am. Dec. 415] ; Reed v. Spaulding, 30 N. Y. 630, [86 Am. Dec. 426] ; Condict v.-Railway Co. 54 N. Y. 500; New Brunswick S. & C. Transp. Co. v. Tiers, 24 N. J. Law (4 Zab.) 697 [64 Am. Dec. 394].
    Chas. J. Hunt and Frank H. Kunkel, for defendant in error:
    It is not the duty of any municipality to provide drainage for-surface water so as to prevent said water from flowing upon the adjoining lands. Dillon, Mun. Corp. (4 ed.) Sec. 1039; Tiedeman, Mun. Corp. Sec. 354; Elliott, Roads & Streets (2 ed.) Sec. 465; Gould, Waters See. 270.
    The city is not liable for any damage which may be done by the extraordinary rainfall. Gould, Waters (2 ed.) Sec. -262; Elliott, Roads & Streets (2 ed.) Sec. 475.
    The city is not liable if the damage is caused by reason of the fact that the surface water flowed upon property which is below the grade of any street. Elliott, Roads & Streets (2 ed.) Sec. 470; Dillon, Mun. Corp. (4 ed.) Secs. 1040, 1051; see also Springfield v. Spence, 39 Ohio ■St. 665, 671.
    In the case of Collier v. Yalentine, 11 Mo. 299, it was held that a carrier will not be held responsible for loss occasioned by the act of God, even-though he is in default, if he can show that the loss was wholly independent of his fault and not only might, but must, have happened in any respect of the case. See also Smith v. Whitman, 13 Mo. 352, 358; Gillespie v. Railway Co. 6 Mo. App. 554; Hill v. Sturgeon, 28 Mo. 323, 328, which are to the same effect.
    If the act of God was of such an overwhelming and destructive character as by its own force and independently of the practical negligence alleged or shown to have produced the injury, there would be no liability though there was negligence on the part of the carrier. Baltimore & 0. Ry. Co. v. Sulphur Springs, 96 Pa. St. 65 [42 Am. Rep. 529].
    But if it can be established that the same loss not only might, but must, have happened had there been no fault on the part of the carrier, his negligence may be disregarded apd the injury attributed solely to the act of God. 1 Am. & Eng. Enc. Law (2 ed.) 597.
    The responsibility of a common carrier is far greater than the responsibility of a municipality, the common carrier being in the nature of an insurer of the goods while in its care, while a municipality is only bound, to use reasonable care and precaution.
   JELKE, J.

As the record does not purport to contain all the evidence, we-must presume every finding of fact necessary to support the verdict and judgment. Neither does the record contain the whole charge, so we cannot consider any errors of omission complained of, but must confine ourselves' to the affirmative errors, if any, omitted in the general charge or in the giving or refusing special charges asked for.

The two errors relied on are presented by special charges given at the request of defendant and excepted to by plaintiff, and it is complained that these errors are further carried into the general charge.

The trial court gave the following special charge:

“If you find that the property of the plaintiff was located belovr the grade of East Third street, and that the same wpuld not have been, damaged had it been on the level with Third street, then I charge you,, gentlemen of the jury, that the plaintiff cannot recover.”

We find no error in this charge.

Of course, if the issue is complicated with other elements, such as negligence on the part of the city in constructing the street, and street drainage, or the city is charged with collecting the surface water from a large area and by building the street diverting it upon plaintiff’s land, other and different principles of law apply.

But taking the case simply, if the plaintiff’s property is damaged because it lies low, that is not the city’s fault; plaintiff’s property must bear the burden of its unfortunate situation.

When the city built apd improved East Third street, if it changed and raised the grade; thereby making plaintiff’s property low, plaintiff was entitled to compensation and either recovered compensation from the city or waived the same. ’

When that matter was closed either by payment or waiver and the. street was built, the reciprocal relations again became as though the topography was natural, and plaintiff thereafter could not complain, of the burdens incident to the low location of her property.

Elliott, Roads & Streets See. 470, says:

“A city is not however liable merely because.water collects on land in consequence of its being lower than the grade of a street which the city had a right to establish.” Citing cases.

Tiedeman, Mun. Corp. Sec. 354a, says:

“"When the authority is vested in the municipal corporation, by charter or statute, to improve streets and establish street grades, and, in the exercise of that power, changes are made in the surface of the city’s highways, by which surface water is caused to collect, on, or flow over, the adjacent land of private owners, there is no implied liability on the part of the municipal corporation for such indirect and consequential injuries, provided the city does not exceed its lawful power.
“So, also, it has been held that, ordinarily, there is no obligation upon the city to provide drainage for the surface water upon its unimproved or unguarded streets; and when a city has begun the process of grading, it is under no implied liability to keep open former existing drains, or to construct new drains in their pace, in order to prevent the surface water from overflowing land which may be situated below the level of the highway. Upon this point, the decisions are far from harmonious, many cases holding that the city, when practicable, should provide drains and culverts. Many eases go further, and deny any implied liability, where, in making local improvements, which are legally authorized, surface water is made or permitted to flow from the street directly upon the adjoining property.” Citing eases.

Dillon, Mun. Corp. Sec. 1051, says:

“But since surface water is a common enemy, which the lotowner may fight by raising his lot to grade, or in any other proper manner, and since the municipality has the undoubted right to bring its streets to grade, and has as much power to fight surface water in its streets as the adjoining private owner, it is not ordinarily, if ever, impliedly liable for simply failing to provide culverts or gutters adequate to keep surface water off the adjoining lots, below grade, particularly if the injury is one which would not have occurred had the lots been filled so as to be on a level with the street. The cases are not in harmony on the point last presented, but the above is believed by the author to be the correct doctrine.”

Counsel for plaintiff object to this statement from Dillon, because it is based on the common law, and say that the rules of the civil law as to the surface water obtain in Ohio, citing, Crawford v. Rambo, 44 Ohio St. 279, 283 [7 N. E. Rep. 429] :

“The difference arises as to surface water. In some of the states the rule of the civil, and in others that of the common law, prevails. The former requires each tenement to submit to the conditions imposed on it by nature, so that the owner of a lower tract cannot divert the water that flows to and upon his own from a higher one to the injury of the latter. This rule was recognized by this, court in Butler v. Peck, 16 Ohio St. 334, and was adopted as the rule of its decision in Tootle v. Clifton, 22 Ohio St. 247.
“The civil law acts upon the maxim that water is descendible by nature, and that its usual flow should not be interfered with, so that its burden, if it be one, should be borne by the land where it naturally flows, rather than by land where it can ony be made 'to flow by artificial means. The common law does not recognize this principle as to surface water, but permits any one to protect hig own premises from it as he may choose to do, without becoming liable to others injured thereby; or, more properly, it does not regard' it as an injury to do so, whatever inconvenience or loss may result to others therefrom. It is not necessary, as we have said, to discuss the merits of either system in this Case, as the injury complained of does not arise from an interference with the flow of surface water.”

However, the Supreme Court said in Springfield v. Spence, 39 Ohio St. 665, 671:

“The owner of private lots can raise the same to grade if he so desires, and can thus keep keep out all surface water; but the municipal government has neither the interest nor the right thus to improve and protect private property. If the city could thus improve private lots, its power might become oppressive; and if the private person could thus compel the city to care for his private interests, its weakness might become ruinous. The law protects each in the proper exercise of rights, and excuses many omissions.”

The charge puts the issue, was the damage caused solely by the low situation of the property, fairly before the jury, and the best test of this, is by asking, would, the damage have occurred if the property had been on the level with Third street ?

On this issue it makes no difference whether the doctrine of the civil or the common law is applied.

The next error charged is against the following special charge:

“If you find from the evidence, that the damage to the property of plaintiff was caused by an extraordinary and unprecedented rainfall, then I charge you, gentlemen of the jury, that the city of Cincinnati, in the absence of negligence is not liable, and that the plaintiff cannot recover any damages.”

It is not said that this proposition is erroneous, but it is contended that the converse of the proposition should have'been given and it is complained that the general charge fails in this regard, and that it should’ have been ■ charged that if the city was guilty of negligence it would be liable, and in that ease the act of God would be no defense irrespective of any question of proximate cause.

Counsel for plaintiff in error urge that. “The intervention of the act of God will not be a defense when the negligence of the defendant combined therewith to cause the damage.”

The eases cited are obscuring and misleading because they are common carrier cases or eases based on contract.

There is a fundamental difference in setting up the act of God as a defense in cases involving negligence of a duty imposed by law and cases involving negligence of a duty based on contract.

In the former the question of proximate cause is an essential element of liability or defense and in the latter it makes no difference.

Where one contracts to do a thing, without reservation, he should be held to its performance no matter what intervenes. .But the law in some cases, as in that of common carriers, has been more gracious and has said that where one has been prevented from doing what he contracted to do by a vis major, he may set this up as a defense, relieving him from liability. But this grace will not be extended to one who has been negligent. Where one has negligently failed to perform a duty which he has contracted to do, he will not be allowed to take refuge in an inquiry whether his own negligence or a vis major has been the proximate cause of a resultant injury.

As to a duty imposed by law it is quite otherwise.

Duties imposed by law are duties implied from the facts, circumstances and relation of the parties.

Now, where damage has proximately been caused by an act of God, the law does not concern itself in implying duties, the observance or breach of which had'nothing to do with the damage. The law makes no immaterial implications. See 1 Am. & Eng. Enc. Law (2 ed.) 592.

The charge given gave to plaintiff the full benefit of all she was entitled to under this aspect of the law, and the proposition asked for by counsel for plaintiff would have been misleading and erroneous.

On account of the condition of the record the judgment in this' case could only be reversed for such affirmative prejudicial error appearing as could not be cured by subsequent addition, correction or explanation, as we are bound to presume that any necessary curing addition, correction or explanation was there, and as we find no such error, the judgment will be affirmed.

Giffen and Swing, JJ., concur.