text:
    RESTRICTION IN MORTGAGE GIVING LIMITED MONOPOLY VALID.
    [Circuit Court of Cuyahoga County.]
    Cleveland & Sandusky Brewing Co. v. Joseph Demko et al.

    Decided, January 14, 1907.

      Mortgage — Limitation on Business to be Conducted on Premises — Not in Restraint of Trade, When — Public Policy and the Liquor Business — Contracts—Reasonableness of Restraint — Principles Governing — Consideration.
    The condition in a mortgage, given to a brewing company for a sum of money advanced by it to enable the mortgagor to build a saloon upon the mortgaged premises, that the mortgagor shall not, for a period of twelve years, sell upon the mortgaged premises any beer, ale or porter except that manufactured by the mortgagee, is founded upon a valuable consideration, is not against public policy as in restraint of trade, and may be enforced by injunction to prevent the sale on the premises of other brews than that of the mortgagee.

      Hig-ley & Maurer cited in support of the validity of the contract considered as one in partial restraint of trade — Long v. Werk, 2 Ohio State, 519; Grasselli v. Lowden, 11 Ohio State, 349.
    Contracts to sell certain products exclusively are not against public policy — 24 Amer. & Eng. Enel, of Law (2d Ed.), 855; Anheuser-Busch Brewing Go. v. Houck, 27 S. W. 692.
    The contract does not affect a prime necessity of life nor one the trade in which the public is interested in extending — 24 Amer. & Eng. Enel, of Law (2d Ed.), 854; Harrison v. Lock-hart, 25 Ind., 112; Watrous v. Allen, 57 Mich., 362; AnheuserBusch Brewing Go. v. Houck, 27 S. W. Rep., 692.
    Agreements not to sell or covenants to sell only a particular product are enforcible — Ferris v. Brewing Go., 155 Ind., 539; Grasselli v. Lowden, 11 Ohio State, 349.
    Notwithstanding the payment of the money claim the plaintiff had a right to maintain an action in ejectment and recover possession of the property. The legal title at the time of the release was in the plaintiff and the situation is in all respects similar to a conveyance by the plaintiff to the defendant of the property in question with a limitation on its use — Doe v. Boll, 7 Ohio (pt. 2), 70; Hale v. Wetmore, 4 Ohio State, 602; Allen v. Everly, 24 Ohio State, 97; Williams v. Engelbrecht, 37 Ohio State, 383; Bradfield v. Hale, 67 Ohio State, 316.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Heard on appeal from the court of common pleas.
    In this action the plaintiff seeks to enjoin the defendant, Joseph Demko, from selling any beer, ale or porter, except of the manufacture of the plaintiff, upon certain premises in the city of Cleveland belonging to said Demko.
    Prom the pleadings and the conceded facts in the ease, it appears that on August 3, 1905, the defendant, Joseph Demko, was the owner of said premises, which are described in the petition, and was desirous of building a saloon thereon, and for that purpose applied to the plaintiff for funds with which to pay off a small mortgage then existing upon the said premises, and to erect said improvements. The plaintiff, on said date, loaned the defendant the sum of $3,700 for said purpose, upon certain conditions and covenants which are set forth in the mortgage of said premises of said date, executed and delivered by said defendant to the plaintiff. Said mortgage recites that the grantors, for the consideration of $3,7.00, and other valuable considerations, received to their full satisfaction from the brewing company, had conveyed said premises to the brewing company. Then follows an agreement in the following language:
    “And we, the said grantors, for ourselves and our heirs, executors, administrators and assigns, covenant with the said grantee, its successors and assigns, that for a period of twelve years from and after date hereof, the premises above described shall not be used for the sale of any beer, ale or porter whatsoever except of the manufacture of the Cleveland & Sandusky Brewing Company, its successors and assigns; and this covenant and agreement shall run with the land and be a limitation and restriction upon the use thereof for said period of time, without reference to the conditions upon which this mortgage deed is made, and shall be held as a grant for the benefit of the said the Cleveland & Sandusky Brewing Company, its successors and assigns, wholly independent of, and in addition to, the above conveyance of the premises by way of mortgage, and shall not be discharged by performance of any or all of the conditions and agreements the performance of which are hereinafter stipulated as rendering the mortgage void.”
    The defeasance clause of the mortgage is as follows:
    “Whereas, said grantors, in consideration of the granting of said loan, especially agree to conduct a saloon on said premises known as No. —, corner Woodland avenue and Goulding street, Cleveland, Ohio, for a period of twelve years, and until said obligation and debt is paid, and to buy and sell thereon during said period of time, beer, ale and porter of the manufacture of said grantee, its successors, and assigns, and more particularly the beer of its Cleveland or Gehring branch and no other beer, ale or porter whatsoever, and to pay for same upon request of said company; and further agree that any sum now or hereafter due to grantee for beer, ale or porter delivered by it, for Dow tax or other money advanced by it, or for rent, or otherwise, shall be a lien upon said property and secured by this mortgage. And the said grantee hereby agrees to supply in its customary manner, good, wholesome and merchantable beer, ale and porter for and during said period of time at a price mutually agreed upon and made a part hereof; provided however, that in case said grantors should fail to pay for same as aforesaid, or in case said grantors should fail to pay upon demand any installment due to grantee for rent, or for money advanced by it for Dow tax or otherwise, then grantee’s obligation to supply said beer, ale or porter shall be void at its option; in case of breach of this covenant, or any part thereof, the damages accruing to said grantee shall be a lien on said premises, and be secured by this mortgage. Any waiver by grantee of any breach of this covenant, or any part thereof, shall not be deemed a waiver as to any subsequent breach thereof. In case any additional tax burden shall be imposed upon the sale or manufacture of ale or porter the price agreed upon as hereinbefore set forth shall be increased by such added amount.”
    The defendant used the money in the improvement of his property, as agreed, and opened and conducted a saloon thereon, buying his beer of the plaintiff company until about May 26, 1906, about which time the Aiken law (98 O. L., 99; Rev. Stat., 4364-9, et seq.), increasing the tax on saloons from $350 to $1,000, went into effect, and Demko then stated to the plaintiff that he could not run his business profitably any longer and pay the plaintiff the agreed price for its beer. The brewing company, however, refused to reduce the price bf its beer, and Demko quit the saloon business temporarily and repaid to plaintiff said sum of $3,700, with interest accrued; whereupon the plaintiff endorsed upon said mortgage the following:
    The brewing company also canceled the note secured by the and the same is hereby satisfied and discharged; the independent contract herein contained, limiting the use of the premises, remains in full force and effect.”
    . The brewing company also canceled the note secured by the said mortgage, and delivered said canceled note and the mortgage, with said indorsement, to the defendant, Demko.
    On June 23, 1906, about a month after this transaction, Demko opened up his saloon again, vending therein the beer of another brewing company; whereupon the plaintiff brought its action, as above stated. It is claimed by the defendant that plaintiff is not entitled to the equitable relief it seeks, for three ■reasons:. First,.because the contract sued upon is without consideration ; second, because it- is against public policy, being, in restraint of trade; third, because there is an adequate remedy at law.
    We have no difficulty in finding that this agreement was upon a valuable consideration. The original advance of $3,700 by plaintiff to the defendant was sufficient consideration for his agreement to pay' interest, buy beer of the plaintiff for twelve years, and not sell beer of any other brew for twelve years. Repayment of the money advanced would end the agreement to pay interest, but not the other two agreements, to buy plaintiff’s beer and sell no other beer for the period limited, and so the matter stood between the parties, when defendant asked to have his mortgage canceled. He was not entitled to á release of the mortgage, though he had repaid the loan. It still stood as security for these two additional promises. Whether these promises were then enforcible in equity, because of their executory character on both sides, is immaterial. The plaintiff released defendant from his obligation to buy its beer and the surrender of this valuable agreement was sufficient consideration for the continuance of his further agreement not to sell any other brew of beer during the time limited in the agreement.
    We have no difficulty in finding that the agreement relied upon is not in restraint of trade. This question would'not- be raised if the plaintiff was not in the brewing business. Restraints upon the liquor trade are favored in this state. Indeed, the Constitution of the state (Section 18 of the schedule) authorizes the Legislature to pass- laws to provide against the evils resulting from the traffic in intoxicating liquors, and many laws have been passed absolutely forbidding the sale of such liquors in certain districts of the state, and have been held constitutional.
    So much for the public policy of the state, regarding the liquor business. It seems clear that the contract under examination does not concern a prime necessity of life, and that the people are usually benefited by having such contracts enforced.
    But it is said that the contract in question tends to assure the plaintiff in a monopoly of its beer business. Does it violate any of the rules laid down by Judge Ranney in the case of Lamge v. Work, 2 Ohio St., 520, by which contracts in restraint of trade are to be tested?

      1. The restraint must be partial only.
    Here the restraint is partial both as to time and place. It is limited to twelve years, and one lot in the city of Cleveland.
    2. It must be founded upon a valuable consideration.
    We have already discovered not only a valuable but an adequate consideration.
    3. It must be reasonable and not oppressive.
    This rule is explained in the ease of GrasselU v. Lowden, 11 Ohio St., 349, 357, where it is said:
    “The reasonableness of the restraint here spoken of has no reference to its effect trpon the rights and interest of the cove* nantor as such, but'solely to its effect upon the rights of the covenantee and the rights and interest of the public as distinguished from those of the covenantor.”
    It must be “such only as to afford a fair protection to the interests of the party in favor of whom it is given, and not so large as to interfere with the interests of the public.”
    It does not seem that this restriction was greater than the interest of the plaintiff required. It enabled the defendant to build up a business on the plaintiff’s capital, with the understanding that the business so built up should be mutually beneficial.
    It appears that this good will is now participated in by another brewing company, to the exclusion of the plaintiff. The defendant is not restricted by his agreement from carrying on any business he sees fit on his premises, or selling thereon any kind of liquor he chooses, except, if he sells beer, ale or porter,, he must vend that brewed by plaintiff, during the time limited, and any place else, except on this particular lot, he can sell any brew of ale, porter or beer that he chooses.
    So we conclude that this agreement is reasonable and not oppressive. It is within Rule 560 of Greenhood, Public Policy, page 677, where cases on this subject are collected. See, also, Ferris v. Brewing Go., 155 Ind., 539.
    But it is said that plaintiff is not entitled to equitable relief— that he has an adequate remedy at law in an action for damages for breach of the covenant.
    The case of Steinau v. Gas Go., 48 Ohio St., 324, is relied upon in this behalf. In that case the gas company had agreed to furnish illuminating gas to Steinau for ten years, sufficient to illuminate his place of business, and Steinau had agreed to buy its gas and none other. Upon breach of the agreement by Steinau the gas company sought to enforce this executory agreement by injunction and failed, the court pointing out that it would not be fair to hold Steinau to his agreement, while the gas company could not be compelled to perform its agreement to furnish gas for the unexpired portion of the ten years.
    But in this case nothing remains for the brewing company to do; its agreement to sell beer has been canceled by mutual consent. Its executory contract has been terminated and we see no reason -why an injunction should not be allowed in this case, so that a multiplicity of suits for damages may be avoided.
    Injunction allowed as prayed for.

      Higley & Maurer, for plaintiff.

      E. J. Alie, E. K. Wilcox and Brady & Dowling, for defendant.

       For holding as to invalidity of covenant of a lease binding the lessee not to sell beer of any other manufacture than that of the lessor, see Huebner-Toledo Breweries v. Singlar, 8 C. C.—N. S., 49.


source: Caselaw Access Project

license: Public Domain

text:
    ASSIGNMENTS OF MORTGAGES.
    [Circuit Court of Hamilton County.]
    Emeline L. Williams v. The Queen City Homestead Co.
    Decided, February 5, 1907.

      Mortgage — Personal Liability as Distinguished from a Lien on- Land — Title Acquired, by Assignment — Record of Assignment -Lien for Taxes.

      A record of an assignment of a mortgage is not required by Section 4135 in order so give the mortgage priority over subsequent liens.
    G-iffen, J.; Jelke, P. J., and Swing, J., concur.
    The question whether the defendant company assumed and agreed to pay the mortgage claim affects only its personal liability, and in either event the mortgage remains a lien on the land.
    The mortgage was given for a valuable consideration paid by the plaintiff, but was by mistake executed and delivered to Sarah S. Alford, who voluntarily assigned it together with the note secured thereby to the plaintiff, by which the latter acquired a good title. Hitesman v, Dovmeb, 4.0 O. S., 287.

      Section 4135, Revised Statutes, does not require a record of an assignment of a mortgage in order to give priority of same over subsequent lien's.
    No answer tos filed to the cross-petition of J. B. Meifeld setting up a lien for taxes, hence the allegations thereof are admitted to be true. The transcript shows that he was made a. party and filed his cross-petition, not after, but before the decree of distribution was entered.
    Decree accordingly.

      Wm. Hartley Pugh and George Elliott Pugh, for plaintiff.

      A. B. Dunlap and H. It, Weber, contra.


text:
    INHERITABLE CAPACITY OF ADOPTED CHILD,
    [Circuit Court of Guernsey County.]
    Thomas Simpson v. William Le Roy Simpson.
    Decided, November, 1906.

      Adoption of Child — Proof Required to Establish Irregularity in Pro» ceedings — Inheritable Capacity as to Lands in this State — -Where ■ Adoption Occurred in Foreign State — Proceedings to Pay Debts — 1 Questions xohich Become Res Adjudicata — -Descent-Infants—■ Domicile Creating Status — *Section 3140.
    1. Where the record, or deed, of adoption of a child states that it was duly and legally done, in order to invalidate the adoption it must be affirmatively shown by clear proof that the adoption was irregular in some essential particular.
    2. A child adopted in a foreign state has inheritable capacity to lands situated in this State.
    3. In a proceeding in the probate court to sell three parcels of land to pay debts, all questions that were legally determined in such proceeding as to all the land are res adjudicata in a subsequent-proceeding in partition of one parcel not sold in the probate court proceeding.
    Cook, J.; Burrows, J., and Laübie, J., concur.
    This is an action in partition and is before us on appeal.
    Thomas Simpson, the plaintiff, and Elizabeth Simpson were husband and wife and lived a number -of years in the state of Iowa, subsequently removing to this county.
    After coming to Guernsey county, they acquired three several pieces of real estate, the title to two of which were placed in the name of Elizabeth and the other in their joint names, and so remained until the death of the wife; the parcel in their joint names being the subject-matter of this action.
    While living in the state of Iowa, Elizabeth, the wi fe, adopted under the laws of that state a child two years of age, afterwards known as William Le Roy Simpson, who is the defendant in this action, and removed with his adopted mother and her husband to the state of Ohio, and remained with them until the mother’s death, he then being a little above his majority.
    After the death of his wife, plaintiff was appointed administrator of her estate, and as such administrator filed a petition in the probate court of this county to sell all of the real estate to pay debts. ,
    In his petition in the probate court he averred that his wife died leaving “him her widower and sole heir at law having the next estate of inheritance”; but further averring that William Le Roy Simpson, whom he made a party defendant in that action, claimed to have some interest in the premises adverse to the interest of plaintiff, and asking that he be required to set it up by answer, and that the validity of his claim might be determined by the court.
    William Le Roy Simpson filed an answer in which he averred that he had been duly adopted by Elizabeth Simpson in the state of Iowa under the laws of that state; pleading the law of that state and the facts constituting his adoption. The probate court upon hearing found that it was necessary to sell the real estate to pay the debts of the decedent, and further found in the decree upon the petition and answer -of plaintiff and defendant, William Le Roy Simpson, and the -evidence adduced, that the allegations contained in the answer and cross-petition of William Le Roy Simpson are true, and that the said William Le Roy Simpson is the only heir at law and having the next estate of inheritance from the said Elizabeth Simpson, deceased, in the premises described by plaintiff in his petition herein, and further found as follows:

      “The court further finds that said Elizabeth .Simpson,. deceased, on the 14th day of April, 1881, at “What Cheer,” Keokuk county, Iowa, adopted the said William Le Roy Simpson as her child, and that he is the only heir at law of said Elizabeth Simpson, deceased, by reason of said adoption, and that he is entitled to the next, estate of inheritance from the said Elizabeth Simpson, deceased, in the premises described by plaintiff in his petition herein, subject to the dower right of said Thomas Simpson.”
    The record shows that under this decree the entire premises were ordered appraised and sold. Afterwards, the plaintiff filed a motion to set aside the order to enable him to file an answer to take his dower interest in money. This motion was granted and the order set a-side. Thereupon the plaintiff filed an answer setting up “that he was the widower of the said Elizabeth Simpson, deceased, and as such he was entitled to dower in the premises,” setting forth his age and waiving the assignment by metes and bounds, or in rent and profits; “and asks the court that said premises may be sold free from his dower estate therein; and that the value of such dower estate may be allowed and paid him in money out of the proceeds of sale.”
    The court thereupon issued a new order directing the plaintiff to appraise, advertise and sell the premises firstly described in plaintiff’s petition free of the dower interest of plaintiff.. The title to the parcel that was directed to be sold as aforesaid was in the name of Elizabeth Simpson alone. It was appraised and sold, the sale approved, the proceeds brought into court; the costs were first ordered to be paid out of the proceeds; next the dower interest of Thomas Simpson ($276.40), paid to him, and the balance of the proceeds plaintiff ap administrator was ordered to retain to abide the further order of the court.
    This is all of the record in the ease. What was done as to the other two pieces we are not- informed. Three question are made:
    First. Was the adoption of the defendant valid under the laws of the state of Iowa?
    Second. If it Avas, did he inherit the real estate in Ohio ?

      Third. If not, is the plaintiff estopped from claiming the parcel involved in this action by reason of the proceedings in the probate court?
    As to the first question, it is sufficient to say that we have examined the law of the state of Iowa and the facts pertaining to the adoption, and we are fully persuaded that the adoption was in all substantial and essential particulars correctly done. We would not hold that the adoption was void except it affirmatively appear that the adoption was in some essential particular irregularly made. (Jossey v. Brown et al, 47 S. E., p. 350.)
    The next question is: Did such adoption in Iowa confer upon the defendant, William Le Roy Simpson, inheritable capacity as to land in this state? This question has never been decided authoritatively, so far as we know, in this state. In Pennsylvania, in the case of Smith v. Derrs, Administrators, 34 Penna. St., 126, it was practicaly decided in the negative. In this case it was held:

      “A. child born out of lawful wedlock, and legitimated by the law of another state, is not thereby rendered capable of inheriting land in Pennsylvania.
    “The fact that inheritable capacity is granted by the law of another state, can not change our law of descent.
    “It is the fact of birth in wedlock that gives inheritable capacity here, and not any legislative or judicial legitimation.”
    It is true that the question that arose in that case was not the- direct one in this case. In that case the party claiming inheritable capacity was born out of lawful wedlock but was duly legitimated by the decree of the court of the state of Tennessee under the laws of that state and on the petition of her father. Mr. Chief Justice Lowrie in the opinion says:
    “So far as our law is concerned, legitimation by subsequent marriages of parents abroad by an act of a'foreign legislature or by judicial decree abroad are all fruitless. If they are allowed to constitute inheritable capacity here, then adoption might have the same effect. ’ ’
    By reference to this case it will be seen that the opinion, which is very shoiT, is founded entirely upon the case of Doe y, Vardill,
      7 Cl. & Fin., 895-898; 5 B. & C., 438. This case of Doe v. Var<Mll, which is critically considered in Boss v. Boss, 129 Mass.; 243, was very vigorously contested, being before the House of Lords several times, and although it was finally determined that a person born in Scotland and there legitimatized by reason of the subsequent marriage of -his parents in Scotland, they having had their domicile there at the time of the birth, could not inherit land in England. That decision, however, was made, as shown by the opinions of Justice Littledale, Chief Justice Tindal and of Lord Brougham and Lord Cottenham, upon the 'statute of Merton and upon the settled policy of England, that no one had inheritable capacity born out of lawful wedlock, whether within or without its jurisdiction. It was unhesitatingly admitted that the law of the domicile at the time settled domestic relations; but when it came to the question of inheriting property, that was special in its nature and the law of England must control. Mr.- Justice Littledale said:
    “One general rule applicable to every course of descent is that the heir must be born in lawful matrimony. That was settled by the statute of Merton, and we can not allow the comity of nations to prevail against it. The" very rule that a personal status accompanies a man everywhere, is admitted to have this qualification, that it does not militate against the law of the country where the consequences of that status are sought to be enforced. Here it would militate against our statute law to give effect to that status of legitimacy acquired by the lessor of plaintiff in Scotland. He can not therefore be received as legitimate heir to land in England.” 5 B. & C., 455.
    Chief Justice Tindal, in delivering the opinion of the judges after the second trial, said:
    “The grounds and foundation upon which our opinion rests are briefly these:
    “That we hold it to be a rule or maxim of England with respect to the descent of land in England from father to son that "the son must be born after actual marriage between his father and mother; that this is a rule juris positwi, as are all of the laws which regulate succession to real property; this particular rule having been formed for the direct purpose of excluding, in the descent of land in England, the application of the rule of the civil and canon law, by which the subsequent marriage between the father and mother was held to make the son born before marriage legitimate; and that this rule of descent, being a rule of positive law annexed to the land itself can not be allowed to be broken -in upon or disturbed by the law of the country where the claimant was born, and which may be allowed to govern his personal status as to legitimacy upon the supposed ground of the comity of nations. 7 Cl. & Fin. 925.”
    The chief justice then proceeds to make an elaborate statement of the statute of Merton and the circumstances under which it was passed, showing the settled policy of England as to the law of descent.
    It was upon this ground that Lord Brougham, though not wholly convinced as he stated to the House of Lords, waived his objections to the judgment for the defendant; as did also Lord Cottenham, 7 Cl. & Fin. 939, etc., and 957.
    In the case of Dons TSslale, 4 Drewry, 194, Vice Chancellor Eindersley declares—
    ‘ ‘ That the general principle was that the legitimacy or illegitimacy of any individual is to be determined by the law of that country which is the country of his origin; if he is legitimate in his own country, then all other countries, at least all Christian countries, recognize him as legitimate everywhere, and that the ground of the decision in Doe v. Vardill was, that, admitting the personal status of legitimacy, the law of England attached to land certain rules of inheritance which could not be departed from. Therefore, assuming that a son born in Scotland before marriage of his parents domiciled there, and then legitimate in consequence of their subsequent marriage, was legitimate all over the world, at any rate, in England; yet as he could not inherit land in England from his father or from any other person, so no other person could succeed to him by inheritance except his own issue. ’ ’
    In Shaw v. Gould, L. R., 3 IT. L., 55-70, Lord Cron worth said of Doe v. Vardill:

    “The opinions of the judges in that ease and of the noble lords who spoke in the house, left untouched the question of legitimacy, except so far as it was connected with succession to real,estate. I think that they inclined to the opinion that for the purposes other than succession to real estate; for purposes unaffected by the statute of Merton, the law of the domicile would decide the question of status. No such decision was come to, for .no question arose except in relation to heirship to real -estate. But the opinions given, in the case seem to me to show a strong bias towards the doctrine that the question of status must for all purposes unaffected by the feudal law, as adopted and acted on in this country, be decided by the law of the domicile. ’1
    In the case of Boss v. Boss, already referred to, Mr. Chief Justice Gray, in the opinion, says:
    “The most accomplished commentators on the subject, English and American, are agreed that the decision in Doc v. Vardili which has so great an influence with English judges, does not rest upon general principles of jurisprudence, but upon historical, political and constitutional reasons peculiar to England.
    “Westlake’s Private International Law, Sees. 90-93-4, Kent’s Com. 413 N d, etc., upon questions of comity of states; considerations derived from the feudal law, from an act of Parliament of the time of Henry III, and from the Constitution and policy of the English government, have no weight in Massachusetts at the present day.”
    So in this state. Our Legislature as early as 1805 passed the act which is now Section 4175, Revised Statutes, which has remainded ever since in substantially the same terms. Then it was enacted in the act “regulating the course of descent and distribution of personal property;” now it is found in the chapter upon descent and distribution generally.
    In Morris v. Williams, 39 O. S., 554, it was held:
    “The issue of a slave marriage, though their parents die before the emancipation proclamation, are under the statutes of this state lawful heirs of their father as to lands situated in this state.”
    Mr. Judge Olcey in delivering the opinion of the court, after referring to this statute, says:
    “We need not determine as to the precise effect of the Virginia marriage. If we assume it even to have been void, the case is controlled by the provision uoted. If it was voidable the ease is still controlled by the statute, if indeed any such provision as to voidable marriage was necessary. And clearly, it is immaterial whether the, marriage ‘null in law’ took place in this state or elsewhere. ’ ’

      It is difficult to see why the decision in this case, which refers to the latter clause of Section 4175, and which is conclusive of the question as to the general effect of that clause, should not have equal force to the former clause.
    We are, therefore, of opinion that the case of Smith v. Derrs, Admrs., supra, based as it is entirely upon Doe v. Yardill, and upon which plaintiffs in this case lay so much stress in their argument, and upon which they almost exclusively rely, has no force and effect in our law whatever.
    It having been determined that there is nothing in the policy and law of our state which restricts inheritable capacity to children born in lawful wedlock, the question is can a child duly adopted in a foreign state inherit from its ancestor real estate situate in this state? The general principle is that the status or condition of a person, the relation in which he stands to another person, and by which he is qualified and made capable to take certain rights in that other’s property is fixed by the law of the domicile; and this status and capacity are to be recognized in every state, so far as they are not inconsistent with its own laws and policy.
    See authorities cited in lioss v. Ross, 129 Mass., 246, 247:
    “If a marriage in the proper sense of the term is celebrated in one state, according to the form prescribed by its laws, between persons domiciled there and competent to intermarry, it is universally admitted that the woman must be recognized everywhere as the lawful wife of the man and entitled as such, upon his death, to such dower in his lands as the law of the state in which they are situated allows to a widow; although it is this law and not the law of the domicile which fixes the proportion she shall take.” (Same authorities.)
    As to foreign divorces, it is settled in most of the states that a decree of divorce recorded in another state in which the legal domicile of the parties is at the time, and according to its laws, is valid and conclusive in a suit concerning the husband’s interest and the wife’s dower in the real estate where it is situated. Such is the law of this state. McGill v. Doming, 44 O. S., 645-656.
    We have also seen in the discussion of the case of Doe v. Ya/r-dill, that the principle was recognized in that case, that a child’s status is fixed by the Jaw of the domicile of the parent, and if the child is legitimate under the law of the domicile he is legitimate everywhere and may have inheritable capacity in all states except those the laws and policies of which preclude such capacity.
    What, then, is the policy of our own state ? Could it be more signally set forth’ than by Section 3137 and 3140 providing for the adoption of children, which gives to such adopted children, even as to capacity to inherit, substantially the same rights as are possessed by children born in lawful wedlock? Can it be said that our statutes of descent and distribution, when they speak of children, do not mean children by adoption, wherever adopted ? Does the comity between the ■ states and the laws of the different states mean nothing? We have said, if not in tei’ms, by fair inference (Morris v. Williams, supra), that by the subsequent marriage of the parents, children illegitimate become legitimate wherever the marriage takes place. Can you say to other states: “You should recognize children adopted in our state as children for all purposes (Revised Statutes, 3140), including inheritable capacity, and deny the same rights to children adopted in such other states?” Certainly not. And this holding finds favor in nearly all, if not all,’ of the reported decisions to which attention has been directed by counsel or that we have been able to find.
    In the case of Boss v. Boss, 129 Mass. 243, to which we have referred so frequently, the syllabus is:
    “The status of any person, with the inherent capacity of succession or inheritance, is to be ascertained by the law of the domicile which creates the status, at least when the status is one which may exist under the laws of the state in which it is called in question, and when there is nothing in those laws to prevent giving full effect to the status and capacity acquired in the state of the domicile.
    “A child adopted with the consent of its father and the sanction of a judicial decree, in another state, where the parties are domiciled at the time, irnder a statute by which a child so adopted has the same rights of inheritance as legitimate offspring in the estate of the adopting father, is entitled, after the adopting father and the adopting child have removed their domicile into this commonwealth, to inherit here the real estate of -such father as against his collateral heirs: although his wife has given no formal consent to the adoption, as is required under the statutes of adoption of this commonwealth. ’ ’
    The last question is: What effect shall be given to the proceeding to sell real estate in controversy in the probate court? The conclusion to which we have arrived makes it unnecessary to decide that question, but as counsel have made it, we have concluded to do so.
    The plaintiff was the administrator of his deceased wife’s estate. He filed his petition, as such administrator, to sell the three pieces of land. He made the defendant a party, setting forth, he claimed, some interest in the real estate sought to be sold, and required him to answer. He did answer, and set up the same claim as he did in this court that, as the adopted child of the deceased, he was entitled to all the real estate subject to the dower interest of the plaintiff. The probate court decided precisely as this court has decided, that the adoption was valid and that defendant inherited the property.
    The issue was clear and distinct and fully litigated. Why, then, is not the decision of the probate court res adjudicaba? Counsel have informed us of no reason, and we can not conceive of any except it be that the parcel of land now in controversy was not sold; but the finding and decree of the court was made as to all three pieces.
    Furthermore, so far as we are informed by the record the proceeding in the probate court is still pending. No final disposition has been made of the case. Indeed, the plaintiff has waived that proceeding and brought this action; but he can not waive any question that was properly decided in that proceeding, but is bound by it; and we think the decision of the probate court goes to all the land that was sought to be sold, and the plaintiff is estopped from again litigating it. That the probate court had jurisdiction to hear and determine the questions there made, there can be no doubt. Doan et al v. Biteley, 49 O. S., 588.
    The decree of the court is that the defendant, William Le Roy Simpson, is entitled to the real estate sought to be partitioned, subject to the dower interest of Thompson Simpson.

      John F. Stochdale, for plaintiff.

      Charles S. Turnba/agh and W. W. Slewart, for defendant.


text:
    PROCEEDINGS FOR REVIEW UNDER. THE JONES LAW.
    [Circuit Court of Cuyahoga County.]
    In re Petition in Favor of Prohibiting the Sale of Intoxicating Liquors v. Tom L. Johnson, Mayor, etc. (and five other Jones Law Cases).
    Decided, November 26, 1906.

      Liquor Laios — Nature of Functions Conferred on Mayor and Judge under the Jones Law — Judicial and Ministerial Duties — Motion Filed During Vacation — For Leave to Prosecute Error — 98 O. L., 68 — Section 6716.

    1. If the functions conferred upon the mayor and judge by the Jones law (98 O. L., 68) are of a judicial nature, then the proceedings in error provided for in Section 12 of said law come within the requirements of Section 6716, Revised Statutes, and a transcript . of the final record, or of the docket or journal entries, must be filed with the petition in error. If said functions are of a ministerial nature, then said Section 12 of the Jones law is unconstitutional, being an attempt to confer original jurisdiction upon the circuit court in excess of that limited by Section 6, Article XII, of the Constitution.
    2. Where a motion for leave to file a petition in error and a petition in error are both filed with the clerk of the circuit court within the fifteen days limited by Section 12 of the Jones law, but during vacation, quaere, can the circuit court, when thereafter duly convened in session, grant said motion and entertain consideration of said petition in error?
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to the Court of Common Pleas.
    During the summer vacation six petitions in error were filed in this court, upon leave of one judge thereof, to review a like number of rulings, four by the mayor of the city of Cleveland and two by a judge of the Common Pleas Court of Cuyahoga County, within which said city is situated, upon petitions presented to said mayor and judge, respectively, in favor of prohibiting the sale of intoxicating liquors as a 'beverage in certain resident districts in said city, described in said petitions, as provided under the Jones law, so-called (98 O. L., 68).
    The jurisdiction of the court to consider these petitions in error is challenged upon two grounds:

      Finst. Because leave to file said petition in error was granted by a judge of the circuit court in vacation, instead of by the court itself during term time.
    Second. Because neither transcript of the final record, nor a transcript of the docket or journal entries, was filed with any of said petitions in • error, as required by . Section 6716, Revised Statutes of Ohio.
    A determination of these propositions requires an examination of part of Sections 4 and 12 of said Jones law, reading as follows:
    “Section 4. * * * The taayor or judge shall decide whether the petitioners are qualified electors in the residence district and equal in number a majority of the votes cast in the residence district at the last regular municipal election and the mayor shall make' a record of his findings on his docket and the judge shall cause the same to be recorded in the records of his court.” * *
    “Section 12. Any person being a qualified elector of a residence district of any municipal corporation wherein a petition shall have been presented and held sufficient by a mayor or judge as provided for in this act may prosecute error from such finding by first filing a motion for leave to file a petition in error with the circuit court of the county in which such residence district is situated.
    “The motion shall not be granted unless for good cause' shown. If such motion is granted, a petition in error shall be filed within fifteen days after the finding or decision of the mayor or judge setting forth the errors complained of.” * * *
    Conceding, as has been held by other circuit courts of this state, that leave to file such petitions in error must be granted by the court and can not be granted by one or more judges thereof in vacation, perhaps it does not follow that if petitions in error are filed within the fifteen days limited by the statute, but during vacation, they must be stricken from the files.
    In each of these cases plaintiffs in error did all that this statute requires of them to be done. Each first filed with the clerk of this court a motion for leave to file a petition in error. Each filed a petition in error with said clerk within the fifteen days. The court was not in session. Quaere, could the court when thereafter dtily convened in session, grant' the motion, and the petition in error being on file within the fifteen days, would the limitations of the statute be complied with ?
    What answer we should give to this question in a case where we felt the leave should be granted, we do not now indicate, for a consideration of the second objection to the jurisdiction of the court shows that such leave should not be granted in these cases, in any event.
    2. The second objection is that no transcript was filed with the petition in error.
    We have carefully examined all the papers filed in all these cases and find that in none of them was there filed with the petition such transcript as is required by Section 6716, before referred to.
    If the proceedings before the mayor or the proceedings before the judge were of a judicial nature, then manifestly the jurisdiction of' this court to review said proceedings must be invoked as prescribed by Chapter 1, Title IV, Part 3 of the Revised Statutes, and as Section 6716, contained in said chapter, was not complied with, the court is without jurisdiction to entertain said petitions in error. Jennings v. Mendenhall, 3 O. S., 490; Steivart v. Williams, 15 O. S., 484; Barton v. Am. Nat. Bk., 14 C. C., 450.
    If the proceedings before the mayor or judge were of a ministerial nature, if said officers exercised non-judicial functions under the Jones law, then Section 12 of said law is in contravention of Section 6, Article IV of the Constitution, for it would be the conferring of original jurisdiction upon the circuit court in excess of that limited by the Constitution. Logan Branch Bank, ex parte, 1 O. S., 432; Musser v. Adair, 55 O. S., 466.
    So it seems that whether the functions performed by the mayor or judge under the Jones law are ministerial or judicial, the result would be the same in these six cases, and the petitions in error must be dismissed for want of jurisdiction in this court to entertain them.

      Geo. JI. Shaw, C. W. ColUsier, Hobday & Quigley, Blandim, Bice tf; Ginm and F. D. Morrow, for petitioners..

      Wayne B, Wheeler, contra,


text:
    PRESUMPTION AS TO VALIDITY OF PRIOR. DELIVERY.
    [Circuit Court of Hamilton County.]
    The Carrara Paint Agency Company v. The American National Bank of Barberton et al.
    Decided, December 29, 1906.

      Drafts and Acceptances — Denial of Execution of — Burden of Proof— Validity of Prior, Conclusively Presumed, When — Banks and Banking — Error—Evidence as to when Signature of Acceptor was Placed on Draft.

    Where the execution of the acceptance sued on is denied, the burden of proving such execution is thrown upon the plaintiff.
    The American National Bank sued the Carrara Paint Agency Co., as acceptor, the Twentieth Century Cash Register Co., as drawer, and O. E. Robinson, as endorser of a bill of exchange for $2,500. At the trial below an instructed verdict was returned for the bank for the full amount of its claim.
    .The citations of the paint company in support of its petition in error were: Chicago- 'Electric Co. v. Hutchinson, 25 111. App., 476; Cray v. Turnstall, Fed. Cases, 5730; Walsenburg Water Co. v. Moore, 5 Colo. App., 140; First National Bank v. Carson, 30 Neb., 104; Monitor Plotv Works v. Born, 33 Neb,, 747; Siefke v. Siefke, 22 N. T. Supp., 546; Wallon v. Wallon, 8 111. App., 69.
    Giffen, J; Jelke, P. J., and Swing, J., concur.
    The defendant, the Carrara Paint Agency. Co., denied by answer that it ever made, executed or delivered, or ever authorized to be made, executed or delivered, the acceptances set forth in the petition. The burden of proving the' execution of the acceptances was thereby placed upon the' plaintiff. Pavey v. Pavey, 30 O. S., 600; Booco v. Mansfield, 66 O. S., 121: Sections 5190 and 6577, Revised Statutes.
    The cashier of the bank testified that the signature of the Carrara Paint Agency Co. was “put upon the drafts before they came into the bank”; but this was in answer to a question which assumed that the signatures were genuine. Counsel for defendant objected to this question, but the court overruled the objection; to which ruling the defendant excepted.
    This was prejudicial error. If the bank is a holder in due course a valid delivery of the drafts by all parties prior to it so as to make them liable to it is conclusively presumed; Section 3171o, Revised Statutes.
    Judgment reversed and cause remanded for a new trial.

      C. 17. Baker, for plaintiff; in error.

      Karch c§ Quasser, for the American National Bank.

      Harmon, Colston, Goldsmith & Hoaclly, for the Twentieth Century Cash Register Co. and O. E. Robinson.


text:
    CRIMINALLY SLANDERING A FEMALE.
    [Circuit Court of Columbiana County.]
    H. Mitchell Lambright v. The State of Ohio.
    Decided, October Term, 1906.

      Criminal Law — Indictment Charging Criminal Slander of a Female— Evidence — As to the Specific Acts of JJnchastity, Admissible in Defense, When — Section 6828, Revised Statutes.

    Under Section 6828 of the Revised Statutes, under an indictment charging that the accused used, uttered and published, a false and' malicious slander of and concerning a female of good repute with intent to cause it to be believed that such female was unchaste, evidence offered by the accused of specific acts of illicit carnal intercourse on the part of the female which came to his knowledge immediately before the speaking of the words is admissible.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Columbiana Common Pleas Court.
    H. Mitchell Lambright was indicted and convicted under Section 6828 of the Revised Statutes of the crime of using, uttering and publishing a false and malicious slander of and concerning a female of good repute, with intent to cause it to be believed that she was unchaste. The statute reads as follows:
    “Whoever writes, prints or publishes any false or malicious libel of, or concerning another, or verbally uses, utters or publish.es any false or malicious slander of or concerning any female of good repute, with intent to cause it to be believed that such female is unchaste, [shall] be fined not more than five hundred dollars, or imprisoned not more than six months, or both, but nothing written or printed shall be deemed a libel unless there is a publication thereof.”
    During the -trial the defendant offered to prove specific acts of illicit carnal intercourse -on the part of the prosecutrix which came to his knowledge immediately before the speaking of the words. This offer was rejected by the court on the ground that only the general reputation of the female for chastity could be attacked. In this we think the court erred.
    Reliance is placed upon the ease of Bowers v. The Skate, 29 O. S., 542. That decision was made under Section 7022 of the Revised Statutes, which is entirely different from the statute upon which the indictment was based in this case.
    Section 6828 provides that whoever “verbally uses, utters or publishes any false or malicious slander of, or concerning, any female of good repute,” etc.
    In order to make the using,, uttering and publishing of the words criminal, the words must be false or malicious. In this case they are averred to be both false and malicious. These-averments, if necessary in charging the offense, must be proved.
    The falsity of the words spoken raises a presumption of malice, and proof of their truth would tend to rebut the charge of malice. Evidence, therefore, showing that the female was, in fact, unchaste at the time of the speaking of the words, was competent as tending to disprove both charges in the indictment.
    In an action for damages in a civil action for slander, under a plea of justification the defendant may prove that the words spoken were true, and it will be a complete defense. The plea of not. guilty puts in issue every material averment of the indictment; and we, therefore, hold that the evidence rejected was relevant and competent, and its rejection prejudicial error.
    The judgment will be reversed and a new trial ordered.

      J. (J. Moore and George E. Davidson, for plaintiff in error.

      M. J, McGavry, Prosecuting Attorney, for defendant in error.


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    ELECTRIC LIGHT POLE IN STREET.
    [Circuit Court of Huron County.]
    City of Norwalk v. Jessie Jacobs.
    Decided, November 17, 1906.

      Negligence — Questions as to — Where Horse Shied against Electric Light Pole in Street — And Occupants of Vehicle were Injured — Municipal Corporations — Streets—Nuisance-—Runaway and Frightened Horses —Proximate Cause — Charge of Court.

    1. A municipality is bound to keep its streets in repair and free from nuisance both, as to the width of the street and freedom from obstructions in the line of travel; 'but it is only bound to keep them in such condition as to render them safe for ordinary travel, as distinguished from an extraordinary emergency such as riding behind a frightened horse or a horse beyond the control of its driver.
    2. A municipality has the right to determine the width of its streets which shall he devoted to lawful public uses, devoting a part to sidewalks, a part to lawn and shade trees, a part to necessary poles for public lighting, etc., a part to drainage, gutters, etc., and a'part to vehicles and street cars; and it is not an unlawful use if that part of a street which is usually devoted to drainage be occupied in part by poles supporting street lights.
    W. R. Primer, A. Y. Andrews and J. R. McKnight, cited for the plaintiff in error:
    As to obstructions in margin of street — 'Tillage^ of Rankin v. Smith, 63 111. App., 522; Jones on Negligence of Mun. Corp., 146; Williams, Mun. Torts, 134, 142; 2 Dillon, Mun. Corp., Sections 1008, 1024.
    A municipality acts in its delegated governmental capacity in determining what part of a street, shall he improved — Ely v. St. Louis (Mo.), 81 S. W. Rep., 168; House v. Covington (Ky.), 82 S. W. Rep., 347.
    One who travels outside of an improved way of reasonable width does so at his own risk — Orr v. Oldtoivn (Me.), 58 Atl. Rep., 948; Hutchinson v. Clarke (R. I.), 58 Atl, Rep., 948; Lynch v. Boston (Mass.), 71 N. E. Rep., 301; Roberts v. Telephone Co., TJ Wis., 589; Allen v. Telegraph Co., 21 Ilun., 22;
      Sheffield v. Telephone Go., 36 Fed. Rep., 164; Gincinnali v, Fleisher, 63 O. S., 229; Ulster v. Springfield, 49 0. S., 82.
    Accidents from runaway or frightened horses- — Monahan v. Telephone Go., 7 N. P., 95; Hungerman v. Wheeling (City), 46 W. Va., 761; Tiedeman, Mun. Corp., Sec. 342; 3 Abbott, Mun. Corp., 2280; Cole v. Newburgport, 129 Mass., 594; Smith, Mun. Corp., 817, Sec. 810; Titus v. Northbridge, 97 Mass., 258; 2 Dillon, Mun. Corp., 1035; Sehillinger v. Verona, 96 Wis., 456; Higgins v. Boston, 148 Mass., 484; Ehleiter v. Mihvaukee, 121 Mich., 85; Jackson v. Bellevien, 30 Wis., 250; Jim v. Burlington, 60 Iowa, 438; Bell v. Wayne (Vil), 123 Mich., 386; Pittsburg St. Iiy. v. Taylor, 104 Pa. St., 306; Gushing v. Redforcl, 125 Mass., 526; Perkins v. Fayette, 68 Me., 152; Davis v. Dudley, 86 Mass. (4 Allen), 557; Palmer v. Andover, 56 Mass. (2 Cush.), 600; Fogg v. Na-hant, 98 Mass., 578; Winship v. fteld, 42 N. IT., 107; Dubois v. Kingston, 102 N. Y., 219; Bing v. Cohoes, 77 N. Y., 83; Macamber v. Taunton, 100 Mass., 255; Cushing v. Boston, 128 Mass., 330; Smith, Mun. Corp., Sees. 1, 310, p. 1364; Dubois v. Kingston, 102 N. Y., 219; Biiw; v. Cohoes, 73 N. Y., 83; Macomber v. Taunton, 100 Mass., 255; Dougherty v. Horseheads Vil, 159 N. Y., 154; 3 Abbott, Mun. Corp., 2293; Frostburg v. Winelamd, 98 Md., 239. .
    Necessary objects and articles in streets — Williams, Municipal Liability for Tort, 149; 2 Dillon, Man. Corp., 694; 3 Abbott, Mun. 'Corp., Sec. 1004.
    Electric light poles are proper in street — Boberts v. Telephone Go., 77 _ Wis., 589; Palmer v. Electric Go., 158 N. Y., 231; Joyce, Electric Law, 328, 329, and notes.

      Notice — Dower v. Sherret, 88 Fed. Rep., 226; Fehrman v. Pime Biver, 118 Wis., 150; Downs v. Smyrna Town, 45 Atl. .Rep., 717; Buckley v. Kansas City, 56 S. W. Rep., 319; Smith, Mun. Corp., Secs. 1210, 1310.
    A city is required to exercise ordinary care and diligence to keep its streets in a reasonably safe condition for the ordinary travel of those who have occasion to use them by day or night— Beattie v. Detroit, 137 Mich., 319; Morelon v. St. Anthony, 75 Pae. Rep., 262; Elliot, Streets, Sees. 615, 621; Moriarty v. Lewiston, 98 Me-., .482; Williams, Municipal Torts, 171, 173, 183.

      Parker, J.; Haynes, J., and Wildman, J., concur.
    Heard on error to the Common Pleas Court of Huron County.
    This case below was an action by Jessie Jacobs against the city of Norwalk to recover damages for injuries she alleges she sustained by reason of the negligence of the city in allowing a certain electric light pole to be erected and maintained upon one of the streets of the city. She recovered a judgment for $2,000. This was the second trial of the case in the court of common pleas. Upon the first trial the judge charged the jury in effect that, if the pole was set beyond the curb line into, the street, that would amount to negligence, per se, upon the part of the city.
    Judgment was obtained by Mrs. Jacobs; error was prosecuted to this court and we reversed that judgment, holding- that the court erred in that charge. The opinion by Judge Haynes will be found in Norwalk v. Jacobs, 7 C. C. — N. S., 229. This last clause of the syllabus states that point:
    “Whether or not such a pole is dangerous to the public or a nuisance is a question for the jury, to be determined under proper instructions from the court and all the. circumstances of the case.”
    I notice that throughout the -case as here reported, the pole is described as a telephone pole; but it turns out, whatever the record may have shown before, that it was in fact a pole erected to support an electric light used in lighting the street; but that perhaps would not alter the legal principles materially.
    In the course of the opinion, Judge Haynes says at the bottom of page 231:
    “I have very serious doubts myself whether that pole was in a position where it could be said to be in a dangerous condition, or to be said to be a nuisance.”
    It is contended here on behalf of the city that the power and discretion of fixing the width of streets and of permitting the erection of poles along in the streets, etc., is vested in' the city council, and that whether the city has been negligent in this respect in any instance, is not a question' to be submitted to the jury; that their action is not to be revised by a jury. We think that is stating” the rights and authority of the city too broadly; that it was fairly stated in the syllabus that I have read. In the first instance, the power and authority is vested in the ci'ty; but since the statute ha,s not fixed definitely the width which shall be maintained for public travel in the streets, and has not fixed definitely locations at which electric light poles, or telephone or telegraph poles, shade trees and other structures along streets, shall be placed, manifestly, in any given instance where it is claimed they have not been properly placed, the question must be submitted to the court — in a jury case, in the first instance to the jury, and if the finding of the jury is not satisfactory to the party, as in this case it is not to the municipality, then the matter may be reviewed by the courts placed above the trial court for that purpose. Here it is urged that even if the jury may pass upon a question of this kind, the verdict is manifestly against the weight of the evidence, and it is also claimed that errors occurred upon the trial which require a reversal of the judgment.
    The case appears to have been very carefully tried, and all the witnesses who could throw any light upon the question, appear to have been called and examined very fully, and all the information that could be laid before the jury, was produced and brought to their attention; and the court appears to have exercised great care in charging the jury and in defining the-rights of the parties; but it is urged, as I have said, that the judgment is fundamentally wrong because against the 'weight of the evidence; that the evidence does not disclose, when fairly weighed and considered, that the city in this ease was guilty of negligence.
    The facts are recited in the ojoinion to which I have referred, but I will in a general way repeat, and perhaps add somewhat to the statement. The plaintiff, while riding in a buggy toward the eastward on the Main street of this city, was thrown from the buggy and suffered a broken limb and other injuries, and it is conceded that if there is liability upon the part of the city, the verdict for $2,000 on account of those injuries is not excessive. She claims that she was not thrown from the buggy and injured through any fault of her own, but solely through the fault of the city in allowing this electric light pole to be placed so far within the roadway as that it was dangerous and a nuisance to those using the street for public travel; and that it was not only placed so far within the street as to make it dangerous, but it leaned toward the center of the street in such a way as to malte it even more dangerous.
    The accident happened about midday. In the buggy with the plaintiff wras her niece, a young lady, her brother, a young man, or boy, about fifteen years old at the time, a child about eight years old, the child of the plaintiff, and another child, a babe of the plaintiff. It we® a covered buggy with a single seat and drawn by one horse. The plaintiff sat upon the left side holding the eight year old child in her lap; her niece sat-upon the right side holding the babe in her lap, and the boy, ber brother, who was driving, sat between them. The buggy was not a new buggy, nor does it appear to have been an old and dilapidated buggy, but one apparently in fairly good condition.
    The part of the street where it is said the accident occurred, is about a mile and a half east from the center of the city and near the-eastern city line — near a point called Ailing’s corners. The street has great width and is well paved about half the distance from the center to the point where the accident occurred, or to point where there is an overhead bridge over the railroad. Beyond this point, it is not and was not paved. The accident happened in 1898, in May. Beyond and to the east of this overhead bridge, the roadway is considerably narrower than it is -west of that point. There -are shade trees on either side of the road, between the place where .the sidewalk would ordinarily be located, and the roadway — a great many shade trees, a continuing row of shade trees upon either side, some of them quite large — and near to the line of the shade trees are numerous poles erected for electric lights and for telephone wires and some electric railroad poles.
    There is a railroad track for an electric railroad running through the street and located near its center; it is used for city cars and also for interurban ears, and was at that time. The street had been graded at this point, and some time before the laying of the electric railroad, it had been macadamized at the center of the driveway; at this point and for some distance to the east and west of it, the width of the roadway as graded and improved for travel, to a width varying from thirty to thirty-four feet. Along about where this accident occurred, the railroad was laid a little to the northward of the center of the street, so that the width for vehicles was slightly less upon the north side of the railroad track than it was upon the south side. For some distance east and also west of this point, the width appears to have been from eleven feet six inches to fifteen feet between the north rail of the track and the portion that was sodded at the side of the road beyond where it was worked. There was no curb set except in front of a few premises, where tbe proprietors appear to have set curbs on tbeir own account; so that tbe roadway, designed for vehicles as I have said, varied between eleven feet six inches and perhaps fifteen feet.
    This particular pole was set either twelve feet four inches or twelve feet nine inches (witnesses differing about this), from the north line of the railroad; in other words, there was that distance between tbe north edge of the north rail and the south side of the pole; and the pole had some inclination toward the south— just how much, we are unable to determine from the evidence.
    The roadway was in good condition and practically level, though it was somewhat crowning, having an elevation of six inches more at the center than at the north edge of the worked part of the road.
    The evidence shows that while the plaintiff was traveling eastward on this occasion, her brother driving, they met a city car perhaps sixty or seventy feet west of this pole, and, the plaintiff and those with her being upon the north sido of the track, as the car was passing toward the west, the horse shied away from the ear toward tbe left and some part of the buggy came in contact with this pole, so that-the top and seat of the buggy were detached from the box and fell over upon the ground, and all the occupants of the buggy were thrown out, some of them appearing to go against the pole, some falling to the south and east of the pole, and the plaintiff and her oldest child falling to the west and north of the pole.
    They had passed the ears on other occasions on this .same trip and the horse had shown no fright or disposition to shy away from the car; but on this occasion, as the plaintiff testifies, the horse shied to such an extent that when they were a short distance from the pole — perhaps within ten or twelve feet of it — the horse appeared to be going directly toward the pole, so that the plaintiff was fearful that the horse itself would come in contact with the pole; then the horse appears to have taken a turn, whether guided by the lines or by its own motion, toward the center of the road, toward the traveled track, ami then the plaintiff became fearful that the buggy would strike the pole, as it did.
    There is a dispute, and it is not certain from the evidence how it should be settled, whether the buggy top was the part of the buggy which first came in contact with the pole, or whether it was some part of the running gear of the buggy. The evidence tends to show, and we think does show very clearly, that this pole did not have enough of an inclination toward the south so that a buggy going along in the ordinary way, no matter how closely it came to the pole, if the hubs of the buggy should miss, would be obstructed or caught in its top by the overhanging of the pole.
    The testimony on behalf of the plaintiff tends to show that the pole had a lean in a height of thirty feet of about forty inches, and the evidence shows clearly that in order to have enough of a lean so that the pole would miss the hub of the buggy standing upright and striking its top it must have had a lean of about seven feet; nevertheless, it does not appear but that the buggy, swinging somewhat from side to* side, as. buggies will swing in motion, and especially a buggy loaded somewhat heavier upon the north side than upon the south, as this buggy may have been, and one which is being carried along swiftly by a frightened horse, and one which has taken a northwesterly direction and then is suddenly turned in a southeasterly direction, might not so lurch and careen as that the top of the buggy would catch a pole having the lean that this pole had, or even a pole standing perpendicularly; so that we are unable to say from the evidence with certainty that the top of the buggy was not the first part of the buggy that came in contact with the pole. Because of the buggy’s having become detached from the horse at the pole, and the top thereof having been thrown from the buggy toward the north, rather than dragged from the buggy, which would have a tendency to push it toward the west and southward, the testimony tends very strongly to show that the front part of the running gear of the buggy first came in contact with the pole; and that part would not come in contact with the pole before the top had gone far enough to the eastward to pass the pole.
    There is some difference in the testimony of witnesses as to the line between the worked part and the sodded part of the street — the line between the two sometimes described as the curb line, though there wag no curb set at that point. Some of the witnesses testify that this line ivas near the south side of the pole; others; that it came near the center of the pole, and that it was curved around the pole toward the north in order to let the water flow by the pole. Others testify that it was a comparatively straight line, and that it ran anywhere from six to seven inches to the north of the pole. At this point, the difference in 'elevation between the worked part of the street and the sodded part where the trees stood, beyond what has been mentioned as the curb line, was inconsiderable — but a few inches.
    As I have already said, this pole stood, according to the testimony, at least twelve feet four inches from the north rail. The extreme width of the buggy appears to be five feet and eight inches to the end of the hubs. This allowed what may be termed leeway between the railroad and the pole of neai’ly seven feet. This would be reduced somewhat, of course, if a car were passing the pole at 'the same time a buggy were passing. On this occasion, however, the buggy and the car passed at a point some distance to the west of the pole. I think it is fair to say that the great weight of the evidence tends to show that that was true — that the horse shied just as the car was passing and that this was at a point at the west side of the vacant lot at the west of Mr. King’s premises, or at the line between the vacant lot and the Meyers property, which was fifty or sixty feet at least west of the pole.
    The collision occurred after the horse had traversed ■ a distance of perhaps fifty or sixty feet after it shied; when the horse was swinging back to the south and into the road, as described by the plaintiff and her witnesses, it was not traveling toward the car, but the car had passed that point, and there was open to them over twelve feet between the pole and the north rail of the track. But even with the car at the same point, there would he nearly seven feet of space, or rather, even with the car at the same point, there would be in the neighborhood of five feet of leeway between the car on the one side and the pole on the other, over the width of the buggy.
    The plaintiff testifies that the horse was traveling along the middle of the roadway lying between the railroad track and the ciii'b line when it shied. The traveled track appeared to be in about that location and not very close to the pole.
    ■ It is quite evident that this accident would not have happened — this buggy would not have come in contact with the pole — but for the shying of the horse, and that is so whether the running gears of the buggy or the top of the buggy first struck the pole.
    The case was submitted to the jury by the trial judge in such a way as that they might find liability upon the part of the city, even though the pole stood perpendicular, or with so little lean toward the south that the lean of the pole would not add to the danger of its location at that point; in other words, so that there might be a finding against the city simply upon the ground that the pole was located so far into the street and that it was such an obstruction to travel as to make it a nuisance and make the city liable for an accident like this.
    A majority of this court are of the opinion that this was wrong; we arc of the opinion, as I have already stated, that a verdict can not be sustained upon the theory that it was the lean of the pole that caused the accident; and we are further of the opinion that a finding, and a verdict based thereon, that the location of the pole and permitting its maintenance at that by the evidence; for, while this matter is to be committed in point was negligence upon the part of the city, was not sustained the first instance to the council, and then in case of difference, to a jury and trial court, ultimately, when it is submitted to a reviewing court upon the question of the weight of the evidence, it becomes necessary for that court to consider and decide that question, and, in the light of all the evidence as to the width of the roadway at that point, the location of the pole and the way 'the accident happened, we conclude that the evidence will not support a finding that the city was negligent in placing a pole at this distance from the railroad track; that is to say, upon a street of this character where the widths provided for vehicles range between eleven feet six inches and fifteen feet, and where there was no regular and well defined curb line, where it was away from the center of the city, at a jolace where there was not much travel and many teams passing, and where there is an absence of evidence that there was anything about the curb line or about the situation that misled the parties who were driving, so that they deviated from the track, or took a course which brought then unexpectedly against the pole. It all happened in the daylight; the way was open to their view, and it was not because of their being misled in their course by the situation and surroundings, but because of the shying of the horse that the collision and the accident occurred. .
    Mr. Young: Does the court mean to say that if the matter had been submitted upon the leaning of the pole and the jury had found for the plaintiff, that that would not have been sustained by the evidence?
    Court: Yes, sir, we think the evidence does not show that degree of leaning of the pole that would support a verdict based on that condition.
    On behalf of the city, counsel asked the court to charge the jury before argument as follows:
    “A city has the right to determine the width'of its streets which shall be devoted to lawful public uses; it may devote a part of the width to sidewalks, a part to lawns and shade trees, a part to necessary poles for public lighting, a part to drainage, gutters and ditches, and a part to vehicles and street cars. All these are lawful uses. If the part designed for drainage be partially devoted to poles for lighting, this is not an unlawful use or a negligent act in itself, and unless such poles so overhang the part of the street ordinarily used for travel or so far project into it as to render them dangerous to persons using said streets for ordinary travel, it is not a negligent act to permit such poles to so remain in the ditch or gutter.”
    We .think this should have been given whether the place where this pole wag set was distinctly a ditch or gutter or not, because there was evidence tending to show it was not a part of the road designed for the tracking of vehicles, or of the graded portion which would naturally be devoted to and used for travel, but was designed and used for the carrying away of the water falling upon the street.
    In view of the fact that there was evidence tending to show that (and that was a part of the claim of the city with respect to that part of the road), we think that should have been given, or that the substance of that should have been given in some form to the jury; but we do not find that that was given in substance by the trial judge.
    In the course of its charge to the jury, the court said this, which we think, so far as it goes, is correct, though it is not complete in that it does not cover the point involved in the request just considered:
    “In determining, therefore, from the evidence in this case, whether or not the pole referred to in the petition was so placed or maintained as to be dangerous or a nuisance, you will consider the ordinary width of vehicles in general use at that place, the width of the street, the distance from this pole to the railroad track, the width of the roadway left for use by travelers with vehicles, the condition and grade'of the street,the location, size and condition of the pole; whether it was perpendicular or inclined,’ and if inclined, how much; whether it was or was not inside the traveled part of the street; whether it did or did not interfere with the ordinary use of the street by travelers with ordinary vehicles known to be in common .use at the time, and if so, to what extent; whether there was or was not any curb at that place; whether there was or was not any sidewalk along this street at that place; whether the railroad tracks were at or above grade; whether the said tracks were or were not in such condition as to be reasonably fit for the passage of vehicles drawn by horses across them; what, if any, space existed in the street to the north of the line of poles, and whether the same was or was not reasonably suitable for horses with ordinary vehicles to be driven over; the distance of that place from the business portion of the city, the extent of travel at that place; whether or not there were trees growing on or along the highway in .that locality, their number, if any, and location and character — you will consider all these matters and all other facts and circumstances in evidence throwing light on the question, and say from them all, whether this pole was or was not dangerous, or a nuisance.

      “I have said to you in substance that it was the duty of the city to use ordinary care to see that the company erecting and maintaining this pole did not by its negligence make this street unsafe for travelers thereon who were themselves using ordinary care and prudence. The city is held to the use of ordinary care in exercising a general supervisory duty. The city is not an insurer of the safe condition of its streets, but it is only held to the exercise of ordinary care over them. If the pole was in the street and dangerous, or a nuisance, in the manner alleged in the petition, and under the rules I give you, and if the horse was of ordinary gentleness and became frightened at an electric car and shied and got beyond the control of the driver and ran away and the buggy came in contact with the pole whereby the plaintiff was injured as alleged, and if the defendant through its officers charged with the care of its streets had actual knowledge of such condition for a reasonably sufficient time to have the condition remedied; or, if in the exercise of ordinary care, the city should have had such knowledge for such time and failed to have the condition remedied, the defendant was negligent and became liable for any injuries to the plaintiff, directly resulting therefrom, provided the injury would not have been sustained but for such pole so erected. If, however, the pole wTas not dangerous nor a nuisance, then under the circumstances stated, the defendant would not be liable.”
    We think that should be qualified to this extent:
    . The city is bound to keep its streets in repair and free from nuisance; but, as we understand the law, it is only bound .to keep them in such condition as to make them safe for ordinary travel; not safe for extraordinary emergencies; it is not bound to keep the streets so smooth and so level and so well paved as that one may speed his horses upon them; may run races with their horses upon the streets with entire safety; it need not have the streets smooth and level and wide as to make such a course safe; nor need they be made 'so wide and so smooth and level and free from ruts or obstructions or hindrances that they would be safe for one riding behind a runaway horse or a horse beyond control. It is only for ordinary travel. Neither is the city required to make the streets so wide, so smooth and level and free from nuisance or obstructions that an unmanageable horse or a horse shying and leaving the roadway or the track, refusing to be guided by its master, could be driven thereon with safety, so that, if the horse should shy and leave its proper course the road would be safe for such an emergency. We think it should be made safe for ordinary travel, and for horses that are broken for ordinary travel, and that leaving-such a space as was left here between the pole and the track, or between the pole and a ear, was as much as could be required of the city under the law.
    A municipality may allow street ears to be run upon its streets, and people who drive horses that will shy at street cars, where they are left ampie room for safe and well-broken horses to travel, must take the risk themselves, and they can not hold the city responsible for an accident occurring through the shying of their horses at street cars, where they voluntarily drive along past them and where they are in operation.
    Mr. Young: Supposing it is shown that a horse is ordinarily gentle and not accustomed to shy, but for some reason on some special occasion, should shy — a horse that perhaps was never known to shy before!
    Court: That goes to the .question of contributory negligence. If a horse was never known to shy before. and shied on this occasion, it could not be said that the party riding behind the horse was guilty of contributory negligence; but we do not place this decision upon the ground of contributory negligence, but upon the theory that they city itself was not guilty of negligence; that the city itself was not bound in the first instance to make provision for shying horses; otherwise there would be no limit — no reasonable limit — to the width that might be required of the city; for -while some horses might shy a little, going out a few feet, others might shv and go out a great deal further; and for horses that shy or act otherwise so as to become unmanageable and not keep the road-way, there is no reasonable limit of width that could be fixed for the street. For the reasons expressed, the judgment! of the court below ■must be reversed.
    If it were in our power to make a special finding of fact we would gladly do it so that a retrial might be avoided; but we think the precise question involved can not be presented to the Supreme Court without a special finding of fact by a jury, and the case will be remanded in order that that may be done,

      W. B. Primer, A. V. Andrews and J. B. McKnighi, for plaintiff in error.

      S. M. Young, for defendant in error.


author: By Ti-ie Court.

text:
    CONTRACTS FOR. SALE OF REAL ESTATE.
    [Circuit Court of Knox County.]
    A. Schippicasse v. Pauline Church et al.
    Decided, October 12, 1906.

      Specific Performance — Delivery to Ms Agent lvy Seller of 'Written Agreement to Sell Realty — Implied Power of Agent to Accept Purchase Price — Tender—Remedy at Law for Damages — Not a Bair to Enforcement of Specific Performance.

      1. Where an owner of real estate gives to his agent a written agreement to sell to be delivered by him to a proposed purchaser, the law will imply that the agent was empowered to accept the pur: chase money from the purchaser.
    2. A decree for specific performance will not be denied to a purchaser because the seller is possessed of sufficient property to respond in the event that a judgment for damages should be . recovered against him.
   By Ti-ie Court.

This is a suit to enforce the specific performance of a written contract entered' into by and between.the plaintiff herein and the defendants herein. The facts in brief are that the defendants herein signed a written contract agreeing to convey to the plaintiff a certain lot situated in the city of Mt. "Vernon, for a consideration price of $3,500. A check was executed by the plaintiff, which was delivered to the agent of the defendants. The testimony is somewhat conflicting whether this cheek was executed and delivered to this agent before the signing of the agreement, or after the same was signed, but as we view this ease it is somewhat immaterial. At the time for the payment of the $3,000 mentioned in the contract, the plaintiff produced that sum of money and tendered the same to the defendants, but, taking the testimony of the attorney for the defendants as being the correct statement of what transpired, it appears that he, as such attorney, informed the plaintiff that no deed would be executed for the property, and that he had directed the defendants not to talk about the transaction. Thereupon the plaintiff, through his attorney, tendered the remaining consideration in money, $3,000.

We think that the plaintiff herein is entitled to a decree.

First. If the defendants give to their agents this written contract to be delivered to.the plaintiff, we think that they thereby impliedly empowered him to accept .the cash payment specified therein, and he could accept the check, which the proof shows was by him presented and the cash obtained thereon; and we think that the rule of the case is laid down clearly, in the 41st Ohio State, page 535, as follows:

“An attorney who receives a promissory note from the agent of the owner for collection, may, in good faith, deliver the proceeds of the collection to sueh agent in pursuance to his direction.”

If, on the other hand, the check was, as claimed by the agent, exhibited to them before signing the contract, and they thereupon signed the contract with ifie knowledge that their agent had the check for $500, and they then delivered the contract so signed to him to be delivered to the plaintiff herein, they are concluded by this contract and their conduct, and can not now be heard to say that he had no authority to accept said check.

Second. We think there is some corroborative testimony also in their statement to other parties at or abour this time, that they had sold their property, and it does appear to us that their refusal to complete the contract was occasioned by some difficulty which must have arisen subsequently to the signing and delivery of this contract, and not because of any failure of the plaintiff to make the cash payment. But it is contended that the tender was not sufficient on the first of November of the three thousand dollars. As we find in this case, the plaintiff and his counsel were informed that the defendants would not make a deed, and that the plaintiff would not get a deed for the. property. But, notwithstanding this, we think that the plaintiff fairly and in the performance of his contract did exhibit, offer and tender to the defendant the full sum of three thousand dollars, in payment of the said three thousand dollars, and that the defendants and their counsel refused to assist in counting the same.

W. H...Thompson and F. V. Owen, for plaintiff in error.

J, D, é D, F, Ewing, for defendant in error.

But it is urged that the defendants are possessed of sufficient property that a judgment for any damages that may have arisen by reason of the breach of this contract is recoverable against them at law, and our attention is called to some authorities in which it is claimed that specific performance of a contract will not be granted in case there is a plain, .adequate and complete remedy at law. We call attention, however, of counsel to 3 Page on Contracts; at Section 627, which we think states the correct rule:

[Contracts for Conveyance of Realty.] Every contract of realty is in a way unique. No amount of money will enable one to acquire a given tract for a private purpose without the consent of the owner thereof. It follows that a contract to convey realty is one, the breach of which can not be compensated for adequately by money damages, and specific performance of such contracts is, therefore, regularly given by equity, if the other elements of the contract are such as to make this remedy proper,1 ’

This rule is so generally recognized by courts of equity that they uniformly grant specific performance to the seller of real property against the vendee on the theory that where the vendee has the right to compel specific performance the same right should be accorded to the vendor, notwithstanding his relief is only for so many dollars and cents, and unless it was for the reason that courts of equity always place parties to’ a contract upon the same footing, there could possibly be no theory or reason advanced wdiy the vendor of property should be entitled to specific release in any ease.

Therefore, it is the judgment of this court that a decree may be entered herein in favor of the plaintiff decreeing specific performance, and in the event of the defendants failing to execute a deed within ten days, that the decree of this court may stand as and for a conveyance of said property, and a writ of possession is awarded. Judgment is also entered for costs of suit in favor of the plaintiff and against the defendants. Motion for new trial, is overruled and exceptions. Ten days for finding of fact, statutory time for bill of exceptions and cause remapded for execution.


text:
    INJUNCTION AGAINST ONE PARTY TO A CONTRACT.
    [Circuit Court of Clermont County.]
    Howard Ferris v. Board of Commissioners of Clermont County.
    Decided, February 2, 1907.

      Roads — Purchase of Toll Road — By County Commissioners under .97 O. L., J¡l/t — Injunction against Execution of Contract — Description of Road — Termini—Toll-Houses are Appurtenances — Right-of-Way for Traction Company — Presumption as to Parties.

    1. For tbe' reason that one having an interest in a contract is a necessary party to an action to enjoin execution of the contract, a general demurrer will not lie to a petition averring that a contract to which plaintiff is a party has been enjoined in an action to which he was not a party, and praying for a vacation of the decree of injunction and for specific performance.
    2. The act of April 26, 1904 (97 O. L., 414), authorizing county commissioners to purchase toll roads upon and along which suburban and interurban railroads are constructed and to maintain the same as free turnpikes, is not unconstitutional for lack of uniformity of operation.
    3. The authority granted by this act is not limited to the purchase of toll roads having both termini within the county; it does not, by authorizing the purchase of roads upon which traction companies have secured rights of way, make possible such a joint ownership as is forbidden by the Constitution; but it does authorize the purchase of appurtenances of the road such as toll-houses.
    Giffen, J.; Jelke, J., and Swing, J., concur.
    The plaintiff sets forth in his petition a contract with the commissioners of Clermont county for the sale of that portion of the Ohio turnpike within Clermont county, pursuant to an act of the Legislature passed April 25, 1904, (97 O.L., 414), and the approval of a bond securing the payment of twenty per cent, of the purchase price of $28,750; that thereafter the court of common pleas, upon application of the prosecuting attorney, enjoined the county commissioners from “taking any further action whatsoever with a view of executing the contract, ’ ’ upon the ground that the same was in contravention of the laws of Ohio, The prayer of the petition is for a vacation of the decree of injunction and for affirmative relief in the nature of specific performance.
    This action is not brought under favor of Section 5354, R. S., to ■ vacate a judgment, but is an original action for equitable relief and therefore appealable.
    The real controversy arises upon a general demurrer to the petition. The first contention is that the plaintiff was not a necessary party to the injunction suit, and therefore can not attack the decree in this action. It must be conceded that he is not concluded or bound by the decree, and yet if it remains in full force against the eommisioners, he is powerless to obtain any relief under the contract which the court has held to be in contravention of the laws of the state. The contract, although executory, was nevertheless complete and binding upon both parties until rescinded or lawfully set aside. With such existing’ mutual rights, it would be inequitable to determine the rights of both by an action against one only. It would not only deprive him of his day in court, but would open wide the door to fraud and collusion. We are of the opinion that the present plaintiff was a necessary party to the injunction suit, and not being made such can, in this action, attack the decree so far as it affects his interest in itihe contract; and besides it is hi® only remedy, as lie could not maintain an action for damages for breach of a contract which the same court has declared illegal. It was unnecessary for the plaintiff to aver that he himself was not a party to the injunction suit. He does aver that the action was commenced by the prosecuting attorney against the board of county commissioners, and that a decree was entered restraining it from doing the act complained of; whence the presumption that no other person was a party to the suit. The provisions of Section 28345 and Section 851, Revised Statutes, do not apply to the act under which the contract was made (Cincinnati v. Holmes, Acbnim isirwtor, 56 O. S., 104).
    The construction of the act which limits any purchase thereunder to such roads only as have both termini within the county is strained and unsound.
    .The description of the turnpike sold, although not by metes and bounds,-- is sufficient, to.identify the property,-and, will therefore support an action.for specific performance,

      The objection that the act does not authorize the purchase of toll-houses is not sound, as they are appurtenances of all such roads, and as much a part of the roads as the bridges and other appurtenances.
    It is contended that the county commissioners can not lawfully purchase a turnpike subject to a right of way theretofore granted to a traction company, and reliance is had upon the ease of Alter v. Cincinnati, 56 O. S., 47, but in that ease the act of April 24, 1896 (92 0. L., 606), was, except Section 8 thereof, held to be a valid statute, and yet under Section 6 the commissioners of water works were authorized to “appropriate any land, turnpike, highway or franchise of any description, or any easement or interest in any of the same. ’>
    In this case the county commissioners purchased the entire turnpike, subject to the right, of ivay of the traction company: This is not a part ownership, such as would bring it within the inhibition of Section 6 of Article VIII of the Constitution.
    Nor do we think that the act under consideration contravenes Section 26 of Article II of the Constitution. {State, ex ral, v. Turnpike Co., 37 0. S., 481; Railway v. Horstmam, 72 0. S., 93).
    We have examined the other objections to the petition, and finding none of sufficient force to warrant us in sustaining a general demurrer, the same will be overruled.

      Rufus B. Smith, Ellis G. KinkeoÁ and Frazier cfe Hicks, for the plaintiff.

      Davidson, Hulick c& Nichols, for Clermont County.


text:
    CONTRACT FOR. SALE OF REAL ESTATE EXECUTED BY BROKER.
    [Circuit Court of Cuyahoga County.]
    Charles Ettinger v. Albert J. Weatherhead.
    Decided, November 12, 1906.

      Real Estate — Bale of, Through Broker — Implied Ratification of Contract by Principal — Agency.
    1. A real estate broker, authorized to sell, has no implied authority to execute a contract of sale binding upon his principal.
    2. Whether such unauthorized contract was ratified by the conduct of the principal under the circumstances of this case was a question for the jury.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to the Court of Common Pleas.
    This was an action to recover damages for breach of a contract to convey lands.
    It appears that the defendant directed a real estate broker to sell said lands, and the broker, having found the plaintiff as a purchaser, entered into a written contract with the plaintiff for the conveyance of said lands to him, specifying the terms and agreeing that deed should be delivered within eight days. This contract the broker signed in behalf of the defendant and at once delivered a copy thereof to the defendant, retaining fifty dollars which the purchaser paid when the contract was executed.
    At the close of plaintiff’s evidence the trial judge directed a verdict for the defendant, holding that a real estate agent authorized to sell has no authority to execute a contract of sale binding upon his principal. That such is the law is abundantly established, both upon principle and authority. 18 Barb., 60; 21 Barb., 145; 40 Cal., 240; 25 Pac. Rep., 471; 92 N. W. Rep., 453; 24 S. E. Rep., 258.
    In this cáse, however, the plaintiff introduced evidence tending to prove that the defendant ratified the contract the broker had tímele for him. He took no prompt steps to repudiate the contract; he failed to disavow the agent’s authority and never directed the agent to pay back the purchaser’s fifty dollars which had been paid down to bind the bargain, nor did he ever himself offer to refund said fifty dollars to the purchaser.
    Whether, under all the circumstances, this unauthorized act of the agent was ratified by his principal, should have been submitted to the jury.
    It was also error to exclude from evidence the written contract signed by the agent.
    For the two errors mentioned the judgment is reversed and the cause remanded for a new trial.

      Form, McTighe, Pearson & M., for plaintiff in error.

      Kline, Tolies & Goff, for defendant in error.