text:
    WIFE SEEKS DAMAGES FOR. MAKING HUSBAND DRUNK.
    Circuit Court of Cuyahoga County.
    Margaret Trumble v. C. W. Colgan.
    Decided, September 23, 1908.

      Action by Wife for Sale of Liquor to Husband, After Notice.

    The fact that a husband was found drunk in a saloon, after the wife had notified the saloonkeeper to cease selling him liquor, is not sufficient in itself, the husband, as a wjtness for plaintiff testifying that he did not get his liquor there, to show that the defendant saloonkeeper sold him the liquor which made him drunk.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff brought suit against Colgan, a saloon-keeper, for damages sustained by reason of the latter’s selling intoxicating liquor to her husband, George W. Trumble, a person who was in the habit of becoming intoxicated, after she had notified him not to do so, as provided in the statute.

To sustain her case she offered herself and her husband as the only witnesses, and at the conclusion of their testimony a verdict for the defendant was directed.

We have read every word of the bill of exceptions to see if the plaintiff made out such a ease that it should have been submitted to the jury.

She proved her husband an habitual drunkard, and that she had given the notice to Colgan that the law requires.

We think she utterly failed to prove that Colgan sold her husband any liquor after she had told him not to. The only evidence given by the wife on this subject was that she found her husband drunk in Colgan’s saloon, about a month after the notice had beeti given. She also attempted to state that on the latter date she-overheard Colgan say to her husband "We will fix her, George, you bet your life we will get even with her”; but this is weakened by her further testimony found on pages 25, 26, and 27 of the record.

The plaintiff offered her husband as a witness and thereby vouched for his truthfulness; he testified that Colgan never sold him a drink after notice.

Further it was said by the wife several times during her testimony that there were other witnesses who knew that her husband bought liquor in the defendant’s saloon; the "boys,” as she called them, and her own brother, or half-brother. It is significant that none of these witnesses were produced at the trial.

Having failed in a material point to make out a ease, the trial judge very properly directed a verdict for the defendant; indeed, it was his duty so to do, and the judgment is affirmed.


source: Caselaw Access Project

author: Winch, J.; Henry, J., and Marvin, J.,

license: Public Domain

text:
    DEFENDANT’S DAMAGES COUNTER-BALANCE PLAINTIFF’S CLAIM.
    Circuit Court of Cuyahoga County.
    William J. Stanfield v. L. T. Rossow et al.
    Decided, October 19, 1908.

      Building Contracts — Claim by Defendant for Poor Worlc — Form of Verdict, Indicating Balancing of Claims, Upheld.

    In an action on a building contract with cross-petition of defendant for damages resulting from poor work, a verdict in the following form will not be set aside as irregular: “We, the jury, being duly sworn, do find that there is due to the plaintiff on the claim in his petition set forth, the sum of $430, and we find that there is due to the defendants on the counter-claim set forth in their cross-petition, the sum of $430. We, therefore find a balance in favor of the defendants in the sum of $00.00.”

      White, Johnson, McCaslin cb Gannon, for plaintiff in error.

      Bemis ■(& Galfee, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff in error was plaintiff below and brought his action against the defendants to recover the balance he claimed due him on a building contract. The defendants answered alleging that the contract had'not been complied with in all its terms and claiming damages for poor work. The case ivas properly submitted to the jury which brought in a general verdict for the defendants, but in that verdict attempted to state the manner in which it arrived at its conclusions. The verdict reads:

"We, the jury, being duly sworn, do find that there is due to the plaintiff on the claim in his petition set forth the sum of four hundred and thirty dollars, and we find that there is dxie to the defendants on the counter-claim set forth in their cross-petition, the sum of four hundred and thirty dollars. We, therefore, find a balance in favoi- of the defendants in the sum of $00.00.”

The plaintiff claims that since he is suing upon a contract he was entitled to the amount due him thereon, with interest from the day it became due, and that defendant was entitled to a finding of a lump sum as damages, without interest, though interest might be considered in estimating said damages.

In other words, he says that tlie sums found due plaintiff and defendant, respectively, must be presumed to include interest upon their several demands, but that the sum found due plaintiff, being the exact balance claimed by him under his contract, without interest, is manifestly too small by about $75.

Conceding the logic of this argument, we nevertheless affirm the judgment, for it is perfectly apparent that the jury intended to determine that the defendant’s damages exactly counter-balanced the plaintiff’s claim, and this the evidence in the case warranted. They did not give the defendant all he claimed, any more than they did the plaintiff, but they did find, upon sufficient evidence and under a charge which is not challenged, that the defendant was not indebted to the plaintiff. This finding should not be disturbed.

Judgment affirmed.


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    TENDER. NOT EXCUSED BECAUSE VAIN.
    Circuit Court of Cuyahoga County.
    Elita E. Peck v. Elizabeth D. Osborn.
    Decided, October 26, 1908.

      Specific Performance — Tender.
    In an action for specific performance of a contract to convey real estate an allegation, “that on the 6th day of February, 1907, defendant notified plaintiff that she declined and refused to perform the conditions of said agreement on her part to be performed.” do'es not excuse an allegation of tender of the contract price.

      H. E. Pm'sons, for plaintiff in error.

      Solders, Thayer & Mansfield, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

The plaintiff filed her petition in the common pleas court against the defendant praying for damages for breach of a contract to convey certain real estate. After reciting the terms of the contract, the petition proceeds as follows:

“That on the 6th day of February, 1907, defendant notified plaintiff that she declined and refused to perform the conditions of said agreement on. her part to be performed. Plaintiff had theretofore paid to defendant the sum of $100 as part payment on said purchase price, and was at all .times ready and offered to perform the conditions of said agreement on her part to be performed. ”

A demurrer to this petition was sustained, because no tender by plaintiff of the balance of the purchase price of $8,375 was pleaded. That allegation of tender is ordinarily necessary in such cases is held in the case of Randabaugh v. Hart, 61 O. S., 73, where it is said:

“Where two acts are to be done at the same time, as when the vendor has agreed to convey interest in real estate upon the payment of a given sum as purchase money, the deal to be .closed by a certain day named, and the purchaser has agreed to pay the purchase money, a part on that day and the balance in one year, the conditions are what are known in law as mutual conditions, and neither party can maintain an action against the other without averring a performance, or an offer to perform on his part. Mere willingness and readiness to perform uncommunicatecl to the other party, will not avail. And it is not, in such case, sufficient that the plaintiff aver that from the date of the making of the contract to and including the day at which it was to be completed, he was ready and willing to do and perform everything to be done by him in the carrying out of said sale and contract. Nor are the averments sufficient, when, in addition thereto, he avers that the defendant, although often requested so to do, has refused to comply with said contract, and has at all times refused to transfer and deliver said property to plaintiff.
'“A petition declaring upon such contract, which contains neither an allegation of performance nor of tender of performance, will be held bad on general demurrer.”

But it is said by counsel for plaintiff in error that tender is excused, because it is vain, when the defendant absolutely repudiates the contract and refuses to be bound by it.

This exception to the general rule is thus stated in Brewing Co. v. Maxwell, 78 O. S., 54:

The general rule is that a party seeking specific performance of a contract must show performance on his part, yet there are clearly defined exceptions and one of them is that when the other party repudiates and makes it certain that lie does not intend under any circumstances to comply, a showing of readiness and ability on the part of the complaining party to then and there perform his part communicated to the other party and accompanied with a demand of compliance by such other party, is sufficient compliance without an actual formal tender.”

Does the petition square itself by this rule, and show that the defendant repudiated and made it certain that she did not intend, under any circumstances, to comply with the contract?

The allegation is: “on the 6th da3r of February, 1907, defendant notified plaintiff that she declined and refused to perform the conditions of said agreement on her part to be performed.”

Non oonslal, that she might have changed her mind and been willing to perform the next day, At any rate we do not think tlie plaintiff has pleaded defendant's refusal to perform in strong enough terms to exempt him from a tender.

Judgment affirmed.


text:
    FAILURE TO SHOW PREJUDICE.
    Circuit Court of Cuyahoga County.
    The State Banking & Trust Co. v. C. A. Krause, Jr., Trustee, et al.
    Decided, October 26, 1908.

      Bill of Exceptions — Motion to Strike from Files.

    A motion to strike a bill of exceptions from the files on the ground that one of the defendants in error was not notified of its filing and so had no opportunity to file exceptions to it, will be overruled, the mover showing no prejudice to his rights.

      Smith, Taft cO Arter, for plaintiff in error.

      Carpenter, Young ct Stocker, Kline Tolies cfi Goff and Smith, Taft c& Arter, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Motion is made in this case by B. D. Nicola, one of the defendants, to strike the bill of exceptions from the files because the clerk failed to notify him of the filing of said bill, as required by Section 5301, Revised Statutes.

ITe suggests that perhaps he might have corrected the bill if it had been submitted to him, but he fails to point out any particulars in which the bill is wrong, or show any prejudice which might arise to his rights from a use of the bill in the case.

Motion overruled on authority of Davies v. Railway Co., 71 O. S., 325.


text:
    INTENTION OF CONSIGNOR.
    Circuit Court of Cuyahoga County.
    G. C. Sanderson v. The W. A. Banks Company.
    Decided, October 26, 1908.

      Bill of Lading Attached to Draft — Not Conclusive as to Reservation of Jus Disponendi.

    When a shipper under instructions from the buyer attaches a bill of lading to a draft and forwards it to a designated bank for collection, there being no course of dealing between the parties shown, it is for the jury to say, upon loss of the goods during shipment, whether or not the seller had reserved the jus disponendi and that therefore the loss should fall upon him.
    D. B. Carpenlar, for plaintiff in error.

      While, Johnson, McCaslin & Cannon, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was an action for the value of a carload of oranges alleged to have been sold and delivered to the defendant at an agreed price.' The answer was a general denial, but the whole controversy arose over tlu; question of delivery. The oranges never reached the defendant.

The plaintiff introduced evidence tending to prove that the contract was for a carload of oranges at $1.60 per box f.o.b. cars, St. Petersburg, Florida; that the oranges were inspected by defendant’s agent, packed and put on board a car, with instructions to the carrier to forward them to the defendant at Cleveland. That a bill of ladüig was made out naming defendant as consignee, and, upon telegraphic instructions from the defendant, this bill of lading was attached to a draft drawn upon the defendant and deposited with a bank to be forwarded to Cleveland for collection. The draft was never paid. What became of the oranges was not shown. Upon this state of the evidence, at the close of plaintiff’s ease, the trial judge directed a verdict for the defendant. This action, we are informed by defendant’s counsel, was based upon the decision in the case of Emery's Sons v. Irving National Bank, 25 O. S., 360, but as we read it, said ease appears to be a clear authority for reversal of this judgment.

It must have been held by the trial judge, as it was argued by counsel for defendant in this court, that the act of plaintiff in attaching the bill of lading to the draft, which he discounted at the bank, was conclusive evidence that the consignor reserved to himself the jus clisponendi of the goods shipped, until the draft should be paid. If such effect is not to be given to this act, the ease cited is authority for a submission to the jury for determination of the intention of the consignor. With this point in mind, let us read the first four and the sixth paragraphs of the syllabus of the case cited:

“1. By the rules of commercial law, a bill of lading is regarded as the symbol of the property therein described; and in the case the shipper reserve to himself the jus clisponendi, he can transfer the title, at any time before the property is delivered by the carrier to the consignee, as effectually by the delivery of the bill of lading as by the delivery of the property itself.
“2. If the consignment be made by a vendor to a vendee, the question whether the consignor -reserved the jus disponencli is one of the intention, to be gathered from all the facts and circumstances of the transaction.
“3, [f the right to control the property be reserved by the shipper, the carrier must be regarded as his agent; and if not, then as the agent of the consignee.
“I. On such question of intention, the terms of the bill of lading are to be taken as admissions of the'consignor, and are entitled to great weight, but are not conclusive.
“6. Where a vendor of goods consigns them to the purchaser, taking a bill of lading from the carrier, and intending to reserve the right of control over them, at the same time draws upon the purchaser for the price, and delivers the bill in exchange, with the bill of lading attached, to an endorsee, for a valuable consideration, the consignee, upon receipt of the goods, takes them subject to the right of the holders of the bill of lading to demand payment of the bill of exchange, and can not retain the price of the goods on account of a debt due to him from the consignor.”

In the case before us it was the defendant who directed that the bill of lading be attached to the draft and for his convenience in making payment that it was done. Títere was no previous course oE dealing between the parties, as there was in the case cited. Indeed, we think a jury might well come to a conclusion contrary to that arrived at by the trial judge. At any rate he should have submitted the case to the jury under proper instructions for it to determine from “all the facts and circumstances of the transaction” whether it was the intention of the plaintiff to reserve the jus dispone-ndi when he attached the bill of lading to the draft.

For error in directing a verdict, the judgment is reversed.


text:
    ELIGIBILITY TO CITIZENSHIP.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel John Gallagher, v. Charles P. Salen, Clerk of the Court of Common Pleas of Cuyahoga County.
    Decided, November 16, 1908.

      Mandamus — Citizens Papers — Member of National Guard.

    A writ of mandamus will not lie to require the clerk of the common pleas court to issue citizenship-papers to "an honorably discharged soldier of the national guard of the state of Ohio,” until the court of which he is clerk has been satisfied that relator is eligible to citizenship and has shown that he has declared his intention to become a citizen and has resided within the. state for one year and is of good moral character.

      Mylar cf Turney, for plaintiff in error.

      William L. Day, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was an application for a writ of mandamus to compel the clerk of the common pleas court to issue citizenship papers to the relator.

A demurrer to the petition being sustained, the case is here on error.

The petition alleges that the relator “is a male alien of over the age of twenty-one years and an honorably discharged soldier of the National Guard of the state of Ohio,”

By this allegation it was sought to bring the relator under the provisions of Section 2166, United States Statutes, which reads as follows:

“Any alien of the age of twenty-one years, and upwards, who has enlisted or may enlist, in the armies of the United States either regular or the volunteer forces, find has been or may be hereafter honorably discharged, shall-be admitted to become a citizen of the United States, upon his petition, without any previous intention to become such; and he shall not be required to prove more than one year’s residence within the United States previous to his application to become such citizen; and the court admitting such alien shall, in addition to such proof of residence and good moral character, as now provided by law, be satisfied by competent proof of such person’s having been honorably discharged from the service of the United States. ’ ’

It is claimed that a member of the Ohio National Guard is enlisted in the volunteer forces of the United States, by virtue of the provisions of the Dick law, .so-called.

The judgment of the common pleas court appears to be sustainable upon any one of three grounds:

First. Under the Dick law, only those aliens who have declared their intention to become citizens of the United States may be members of the militia of the several states subject to call as forces of the United States (see 10 Fed. Stat. Annotated, 227), and Gallagher bases his application for naturalization upon his service in the state guard for the sole purpose of exempting himself from the requirement that he first declare his intention to become a citizen.

Second. The petition fails to show that the relator has resided within the state of Ohio for one year and is of good moral character, “as now provided by law,” in Section 2165, United States Statutes.

Third. The writ is asked to be directed to the clerk of the court, while he has no authority to issue naturalization papers until the court to which application is made is satisfied by competent proof that the alien is eligible to citizenship. There is no allegation that any court has been so satisfied.

Judgment affirmed.


text:
    ACTION AGAINST CORPORATION FOR. MALICIOUS PROSECUTION.
    Circuit Court of Cuyahoga County.
    The C. F. Adams Co. v. Chauncey Robertson.

    Decided, November 16, 1908.

      Malicious Prosecution — Evidence—Probable Cause — Punitive Damages.

    1. In an action for malicious prosecution against a corporation, it is not error to permit the plaintiff to testify as to his connection with the company in other states, notwithstanding the prosecuting witness, the managing agent of the company, had no knowledge of such connection.
    2. Proof that the examining magistrate bound'the accused over to the grand jury, is not conclusive evidence of probable cause. Ash v. Marlow. 20 Ohio, 119, followed, but doubted.
    5. In an action against a corporation for malicious prosecution, punitive damages may be allowed.

      Albert Lawrence, for plaintiff in error.

      O. 17. Noble, contra.

       Affirmed without opinion, C. F. Adams Co. v. Robertson, 82 Ohio State, 400.

   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was an action for malicious prosecution, plaintiff in error being defendant below.

Several errors are alleged to have been committed at the trial, which we shall examine in their order.

The defendant below is a corporation. One IT. W. Lewis was its managing agent and swore to the affidavit upon which'Robertson was arrested upon a warrant issued by a magistrate. The plaintiff being upon the stand was interrogated by his counsel as to his previous connection with the Adams Company in other states. To this objection was made, unless knowledge of this previous employment was brought home to Lewis, the prosecuting witness.

This objection was overruled and properly, we think, because it was the company, not Lewis, which was defendant in the case, and the charge alleged to be false was that Robertson had embezzled from the company, not from Lewis.

The court charged, as requested by the defendant, that the fact that Robertson was bound over to the grand jury by the examining magistrate was prima facie evidence of probable cause for prosecution, but refused to charge that such examination and binding over was conclusive evidence of probable cause.

This ruling was correct according to the holding of the Supreme Court of Ohio, though were the matter one of original impression, we would be much influenced by the argument of counsel upon the subject.

The third paragraph of the syllabus of the case of Ash v. Marlow, 20 Ohio, 119, reads as follows: “Proof that the examining magistrate ‘bound the accused over to court.’ is not conclusive evidence of ‘probable cause.’ ” And this statement is borne out by the opinion in the case, which was delivered by Judge Spalding.

We find no error in refusing defendant’s fifth and sixth requests to charge, and the court’s definition of the meaning of the words prima facie, used in defendant’s fourth request to charge, while not very enlightening, did not prejudice the defendant.

Complaint is made that the trial judge submitted to the jury the question of allowing punitive damages against the defendant. It is claimed that this was wrong, because the defendant was a corporation and could not be guilty of actual malice and that none in fact was shown. The charge upon the subject was correct, and as actual malice as well as imputed malice may be proved from 'circumstances indicating it, we are unable to say that the trial judge erred in submitting the question to the jury. The fact that the defendant was a corporation did not exempt it from liability to punitive damages. The rulings in Ohio are uniform upon this subject. 6 Encylopedia Digest of Olvio Reports, 310.

Finally upon the weight of the evidence, both as to all the evidence on the subject of probable cause and that part of it which referred particularly to the issue of advice of counsel, while the jury might well have found the other way, we can not say that their verdict is so manifestly against the weight of the evidence that the judgment based upon it should be reversed. The trial judge, as well as the jury, saw the witnesses, and we think he did his whole duty when he reduced the verdict from something over $900'to $400. Doubtless he, as-well as the jury, were impressed with the fact that the prosecuting witness did not make a full and candid disclosure of all the facts to his counsel, before the latter advised that Robertson be prosecuted upon a criminal charge.

Finding no error in the record the judgment is affirmed.


author: Winch, J.; ITenry, J., and Marvin, J.,.

text:
    SPECULATION AS TO PROFITS WHICH MIGHT HAVE RESULTED.
    Circuit Court of Cuyahoga County.
    Arthur Cowdrick v. Edward J. Searles et al.
    Decided, November, 1908.

      Damages — Loss of Profits.

    In an action for the balance due on a contract for building greenhouses, the defendants counter-claimed for damages arising from delay in finishing the greenhouses on time, whereby they lost one crop of lettuce and the profits therefrom. Held: That loss of profits in such manner were too speculative to be submitted to the jury.
   Winch, J.; ITenry, J., and Marvin, J.,.

concur.

Cowdrick brought suit against Searles Brothers on a contract for the erection of certain large greenhouses, about 150 feet wide and 80 feet long, which he erected for the defendants at a cost of about $45,000. lie claimed about $4,500 due him under the terms of the contract, being 10 per cent, upon the cost of the buildings. The defendants counter-claimed for poor and defective work and also for damages arising from delay in finishing the greenhouses on time, whereby they lost one crop of lettuce and the profits therefrom. Their answer alleges that the plaintiff knew the use of the buildings were to be put to and the number and kind of crops that were to he raised therein and made his contract to have the greenhouses completed by October 1, 1906. in contemplation of the use to which the property was to be put.

Evidence was introduced by the defendants tending to establish the allegations of their answer, and as establishing the amount of damages arising from delay in completing the work the court permitted the defendants to introduce evidence as to the value of the crops of lettuce raised in the greenhouses during the season of 1906 and 1907, after "they took possession of the buildings and the profits they would have realized from the crop of lettuce they lost.

The court also charged the jury that the defendants might have damages for delay in completing the work, if the jury should find them entitled to such damages, “which would be the proper allowance for one crop of lettuce.”

We think that in admitting evidence as to the profits from a crop of lettuce and charging with relation thereto, as he did, the trial judge erred.

The general rule that loss of profits should be excluded in estimating damages for breach of a contract, is well known. It is based upon the uncertainty arising from contingencies wholly conjectural which affect all business, and which can hardly be apprehended by both parties when the contract is made.

While it is urged in this case that lettuce growing in hot houses has been reduced to an exact science, so that you can tell just how many pounds of lettuce can be grown in a given time in houses of a given area, the personal equation must not be overlooked. Some men have more knowledge and skill than others; hired help grow careless; capital is sometimes impaired by outside influences. Above all, the market can not be controlled. We see no reason for excepting the lettuce business from this general rule, and find sufficient authority for our conclusion in the adjudicated eases in Ohio.

The ease of City of Cincinnati v. Evans, 5 O. S., 594, involved the business of a merchant tailor. Judge Ranney delivered the opinion of the court, and part of the syllabus of the case reads as follows:

‘ ‘ In an action of trespass for an injury to a building occupied by the plaintiff as a store, resulting in an interruption of his business, he may recover, in addition to the damages done to the building, such further sum as will compensate him for the loss of its enjoyment while such interruption continued.
“For this purpose, it is competent to prove the nature and extent of the business, the necessity of using the building for its prosecution, and the value of such use to him during the period of interruption.
“But in the absence of fraud, or malice, or other circumstances justifying the recovery of exemplary damages, the amount of profits which might have been realized by employing his personal services and capital in the prosecution of his business in the injured building during such interruption can not be recovered.
“In such case, the loss of profits does not furnish a proper rule for estimating the damages; but the loss of the use of the property, and the value of such use to the injured party, is all that can be received. ’ ’

The syllabus of the case of Rhoades v. Baird, 16 O. S., 573, is as follows:

“An action was brought on a contract by which the defendant agreed to make a lease, for the tenn of ten years, to the plaintiff, of certain lands on which to plant and cultivate a peach orchard. The breach consisting in the failure of the defendant to malee the lease, and in his causing the plaintiff within two years from his taking possession, to be evicted from the premises, but plaintiff was permitted to give evidence of the probable profits that might in the future be realized from the orchard, judging by the number of crops and the prices of peaches in the county for the last ten and fifteen years. Held:
“(1) The evidence as to the probable future profits was incompetent to be given in chief by the plaintiff, as furnishing a basis for the assessment of damages by the jury, such evidence being uncertain and speculative in its nature and in 'a, great de-gree conjectural.
“ (2) To tbe extent that damage depended on the loss of the use of the property for the term, its market value at the time o£ the eviction subject to the performance of the contract on the part of the plaintiff, furnished the standard for assessing the damages. If it had no general market value, its value should be ascertained from witnesses whose skill and experience enabled them to testify directly to such value in view of the hazards and chances of the business to which the land was to be devoted.”

The case of The Ice Manufacturing Co. v. Iron Works Co., 68 O. S., 229, involved the loss of profits in the manufacture of ice, -which would seem to be as certain a business as raising lettuce. The syllabus of the case is as follows:

“In an action by the owner of machinery used in a plant in actual operation to recover damages for the breach of a contract to furnish at the time specified an essential part of a disabled machine, the measure of damages is the value of the use of the machine in the business for the time which intervened between the date for delivery and the date of actual delivery, if the circumstances are known to both parties at the time of making the contract. ’ ’

The same rule was followed in this circuit in the case of Johnson v. Slaymaker et al, 18 C. C., 104, which involved damages for failure to complete on time the Oak Ridge Sanitarium, at Green Springs, Ohio. Judge -King, who delivered the opinion ■of the court, thus states the rule, in the ninth paragraph of the syllabus of the ease:

“The proper measure of damages for failure to complete the building within the time stipulated in the contract is the value of the use of the building during the months its completion was delayed, if it had been completed according to and within tile time stipulated in the contract.”

The opinions of the three Supreme Court cases cited,’ fully set forth the kind of evidence admissible in proving the damages resulting from loss of irse of the property and will be a sufficient guide, upon a re-trial of this case, for the trial judge, in ruling upon evidence, so that it is unnecessary to rule upon each exception taken by plaintiff in error to the admission or rejection of evidence.

For • errors in ruling on evidence and in the charge, as indicated, the judgment is reversed.


text:
    EJECTMENT FROM AMUSEMENT RESORT WHERE NO FEE IS CHARGED.
    Circuit Court of Cuyahoga County.
    The Humphrey Company v. Louis H. Cohen.
    Decided, December 7, 1908.
    The proprietor of an amusement resort at which no entrance fee is charged, has a right to eject any person from the ground for violation of any rule, reasonable or unreasonable, which he may see fit to adopt, provided he uses no unnecessary force in so doing.

      Smith, Taft & Aider, for plaintiff in error.

      E. Maloney and Fred Deeberg, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Petition in error is filed in this court to reverse a judgment for $400 recovered by Cohen against the Humphrey Co. for an alleged assault and battery, resulting from excessive force used in ejecting Cohen from the grounds of the Humphrey Company, which operates a. place of amusement for the public known as Euclid Beach Park, near the city of Cleveland, in Cuyahoga county, Ohio. The amended petition alleges that Cohen being on the grounds of the Humphrey Company with his little girl, three years old, and separated from his wife and another child, was compelled to take his little girl into the men’s closet on the grounds in order that she might relieve herself according to the demands of nature. He was ordered out of the closet by an attendant, had some words with him, ivas taken to the office of the company on the grounds where he had further words with the manager of the company, was ordered to leave the premises, went in search of his wife and other child, delayed a few minutes to have coffee with them, was ordered away and thereupon was set upon, beaten and dragged out, being cast into the hands of a police officer of the village of Collinwood, and caused to be locked up. ITe alleges that all these acts were wrongfully and maliciously done by the servants of the Humphrey Company, and that in addition to the physical injuries he suffered he was made an object of public humiliation, ridicule and contempt.

An amended answer admits that Cohen was ordered out of the men’s closet and ordered to leave the grounds; it further alleges that the company had a rule, of which Cohen was notified, that no female children should be permitted in the men’s toilet room; that he persisted in .violating said mile, and in so doing conducted himself in a disorderly manner; that Cohen was thereafter ordered to leave the premises, refused to go and was thereupon ejected, but with no greater force than was necessary.

A reply denies this ple'a of justification.

The case was submitted to a jury with the result stated. Many reasons are assigned why the judgment on the verdict should be reversed, but we shall notice only the one which we think should entitle the plaintiff in error to a new trial. Among other things the court charged the jury as follows:

“The defendant denies, by way of defense, that the assault, it any was made, was malicious, and says that in ejecting plaintiff from its grounds it used no greater force than it was justified in using to enforce its reasonable rules and regulations for the proper conduct of its business. This is a good defense, if established by the proof. The defendant, conducting, as it did, a place of amusement and entertainment for many thousands of people, had a right to provide for such reasonable rules and regulations for the conduct of those who chose to visit its park. It- was its duty to see that its guests did not suffer wrong from its agents or servants, and it had a right also to declare a rule as to whom should not be allowed to enter the apartments especially provided for the private accommodation of men. "Whether the rule the company adopted and undertook to enforce was reasonable or not, is for you to determine. The word ‘reasonable’ in this connection, means fair and sensible, in view of all the circumstances. Those rules are deemed reasonable where they are fit and appropriate to the end in view, to-wit, the protection of the public, and they are adopted in good faith for that purpose; and if you should find from the evidence that it was a reasonable rule and that the plaintiff knew of that rule, or had reasonable ground to know of it and was in the act of violating it by taking and having with him his female child, then the defendant, through its agents and officers, had a right to detain him, admonish him, or expel him from the apartments or from the grounds; but, first before assaulting the body of the plaintiff, it was first the duty of the defendant to request ■him to leave, and then, on his refusal, it could only use such force as was reasonably necessary to remove him.”

We think it was error for the trial judge to charge that whether the rule the company adopted and undertook to enforce was reasonable or not was for the jury to determine.

The pleadings and the evidence show that Cohen was upon the private property of another. That he was there by invitation, as one of the public, whose presence was desired on the grounds to the end that they might patronize the amusements conducted thereon for profit to the owner, makes him a licensee and so distinguishes him from a trespasser, but gives him no right to remain thereon beyond the pleasure of the owner. This license the owner might revoke upon any pretext, reasonable cr unreasonable, or through mere whim or caprice. Upon tire owner’s making known to Cohen his desire that he leave the premises, it was Cohen’s duty to comply without unnecessary delay. This the court should have charged the jury instead of as he did regarding the violation of a rule, the reasonableness of which he left to the jury to determine.

It will be understood that the civil rights of the plaintiff as protected by the statute (Sections 4426-1 and 4426-2, Revised Statutes) are not involved in this case. There is no claim that Cohen was ordered off the grounds or discriminated against cm account of his nativity, race, color or persuasion, religious or political. Nor have we here any right of Cohen arising ex coniraclu by reason- of his having paid an entrance fee; the gate is free at Euclid Beach Park.

The. conclusions here reached are sustained by the opinion of Judge Swetlaud of the S--Court of Rhode Island, in the celebrated case of Fred J. Bueiizle, a yeoman in the United States navy; wlio was refused admission to a place of resort operated by the Newport Amusement Association because .he was dressed as a sailor. We have no reference to a published report of the case, but a list of the authorities cited in the opinion of -Judge Swetland is subjoined.

For error in the charge, the judgment is reversed.

Wood v. Leadbitler, 13 Mees & Wells, 838; Purcell v. Daly, 19 Abb. New Cases, 301 ; Benton v. Schoeff, 1 Allen, 133; McCrea v. March, 12 Gray, 211; Pearce v. Spalding, 12 Mo. App., 141; Greenbury v. Western Turf Assn., 146 Cal., 359; Smith v. Leo, 92 Hun, 242; Drew v. Poor, 93 Pa. St., 234; Horney v. Nixon, 213 Pa. St., 20; Younger v. Judah, 111 Mo., 303; Collister v. Hayman, 183 N. Y., 250.


author: Wincijc, J.; Henry, J., and Marvin, J.,

text:
    PROSECUTION FOR SELLING MILK BELOW STANDARD.
    Circuit Court of Cuyahoga County.
    Phillip Unkrich v. State of Ohio.
    Decided, December 14, 1908.
    it is sufficient to sustain a conviction in a prosecution for violation of the statutes regulating the sale of milk, if the state prove that the milk sold contained less than the required amount of fats or solids, without showing any adulteration of it, or addition to it of water or other substance, or that the cows from which the milk came were diseased or sick.

      G. L. Sclzer, Klein K Harris and Willis Vichery, for plaintiff in error.

      Dan G. Gull, contra.
   Wincijc, J.; Henry, J., and Marvin, J.,

concur.

Phillip Unkrich was' convicted in the police court of violating those sections of the pure food laws which regulate the sale of milk. The state proved that the milk Unkrich had in his possession, with intent to sell, contained two and seven-tenths per cent, fats and eleven and fifty-eight one-hnndretlis solids. It is said by counsel for plaintiff in error that the state should have proved more than this, to-wit: either that the milk was adulterated, or that water or some other foreign substance had been added to it, or that it was from diseased or sick cows. It is further claimed that milk comes from certain healthy cows, particularly at certain seasons of the year, containing less fats and solids than the standard prescribed by law, and that to forbid the sale of such milk would lie unconstitutional. Both of these claims, we think, are untenable.

The law provides:

“4200-4. Whoever, by himself or. his servant, or agent, or as servant or agent of any other person, sells, or exchanges or delivers or has in his custody or possession with intent to sell or exchange, or exposes or offers for sale or exchange, adulterated milk or milk to which water has been added, or any foreign substance, or milk from diseased or sick cows, shall, for a first offense, be punished,” etc.
“4200-12. In all prosecutions under this chapter, if the milk is shown upon analysis to contain more than eighty-eight per cent, of watery fluid, or to contain less than twelve per cent, of solids or to contain less than three per cent, of fats, it shall be deemed for the purpose of this chapter to be adulterated.”

1. In the case of State v. Capital City Dairy Co., 62 O. S., 850, it was held:

“The police power of the state is properly exercised in the prevention of deception in the sale of dairy products, and in the protection of the health of the people, and it is within the scope of this power to regulate the manufacture and sale of articles of food, even though the right to manufacture and sell such articles is a natural right guaranteed by the Constitution.”

So, we see, the law under consideration is designed not only as a protection against fraud, but also as a protection of the health of the people.

For the protection of the public health, evidently, it is declared that milk from diseased or sick cows shall not be sold. Manifestly it may be detrimental to the public health, particularly the health of infants, that thin or watery milk should not be sold, even if it is the cow’s fault alone, that the milk is not up to a certain standard.

2. In the case of State v. Smith, 69 O. S., 196, the first paragraph of the syllabus reads:

“The sale of inilk containing ten and sixty-one hundreths per cent, of solids, and no more, is punishable under the act of April 10. 1889, to regulate the sale of milk, and the affidavit need nor. allege that milk is an article of human food.”

Applying the reasoning of that case to the claims here made, we may go further and say that the affidavit need not allege more than the mere fact that the milk did not contain the required amount of fats or solids.

We think that this was intended to be stated on page 200 of the opinion in the case where Judge Shauck says:

“Counsel for the defendant do not demonstrate, nor docs it appear to be demonstrable, that the act charged, to-wit: selling milk which contained ten and sixty-one hundredths per cent, of solids, and no more, is not a violation of the statute.”

Judgment affirmed.


text:
    MOTIVE IN CAUSING ARREST.
    Circuit Court of Cuyahoga County.
    Solomon I. Schwartz et al v. Max Fridrick.
    Decided, December 14, 1908.

      Malicious Prosecution — -Evidence as to Malice — Defendant Permitted to Testify as to Ms Malice.

    In an action for malicious prosecution it is proper to permit the defendant to testify that he had no malice or hard feeling toward the plaintiff when he caused his arrest, but acted in good faith.
    Smith, Taft t§ Arter, for plaintiffs in error.

      C. W. Noble, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This' ivas an action for malicious prosecution with judgment for the plaintiff below.

The burden of showing malice and want of probable cause was upon the plaintiff. The defendant to disprove malice and want of probable cause offered himself as a witness and was permitted to testify that he believed the plaintiff was guilty of larceny at the time he swore to the affidavit which the assistant prosecutor of the police court of the city of Cleveland prepared and directed him to sign.

He was not permitted, however, to answer the following question:

“Hid you sign this affidavit with any malice or any hard feeling against Mr. Fridrick?”

To which question the plaintiff objected; which objection was sustained by the court; to which ruling of the court the defendants then and there excepted and stated that they expected the witness to answer, if permitted, that he signed it without malice.

“Was the signing of that affidavit by you done in good faith?”

To which question the plaintiff objected; which objection was sustained by the court; to which ruling of the court the defendants tlien and there excepted and state that they expected the witness to testify that the affidavit was signed in good faith.

A majority of the court is of the opinion that these rulings were erroneous. Support for this view is found in 19 Am. & Eng. Encyc. of Law, 695, and cases cited. It is claimed that the state of the witness’ mind is a fact as to which he may testify. The Supreme Court has so held in the case of White v. Tucker, 16 O. S., 468, where it is stated that the defendant may testify as to his belief in the guilt of the plaintiff.

But is the analogy perfect, except in the case of actual malice ? Quoting again from the Encyclopedia referred to, at page 676:

“Where a criminal prosecution is begun under circumstances making it apparent that the person instituting it had some collateral private purpose in view, rather than the vindication of the law, legal malice is shown. Thus, if a criminal prosecution is instituted to compel the delivery of property, or to coerce me payment of a debt, the proceedings will be deemed malicious in law.”

We know that a belief is a fact, which any truthful witness can truthfully state, but his motives are to be judged by the public conscience and not his own. This witness might truthfully have said: ‘ ‘ The plaintiff had taken some goods from me and wouldn’t tell where there were. I hoped to recover the goods, by having him arrested, but I entertained no malice in so doing.” His opinion in this respect would have been erroneous, for the law implies malice from such conduct. And here lies the danger. The question asked would have permitted the witness to characterize his own conduct and thus substitute his opinion for that of the jury. This view is indicated in the case of John v. Bridgman, 27 O. S., 22, 43.

It is unfortunate that it has fallen to me to prepare the opinion in this case, but, as I concur in the reversal of the case on other grounds, it is a matter of little consequence.

I think the verdict was against the weight of the evidence. To me it seems clear that it was not the employe or agent of plaintiffs in error, but the assistant prosecutor of the police court, who, acting upon his own examination and judgment, caused the arrest complained of.

My brethren do not agree with me as to our duty to reverse the judgment for this reason.

Judgment reversed for error in ruling on evidence.


text:
    COVENANT RESTRICTING SALES TO GOODS OF PLAINTIFF UPHELD.
    Circuit Court of Cuyahoga County.
    The Cleveland & Sandusky Brewing Co. v. Joseph Kraval.

    Decided, December 14, 1908.

      Mortgages — Covenant to Bell Only Mortgagor’s Brew of Beer — Enforceable in Equity.

    A covenant in a mortgage securing a credit to a saloon-keeper in his business, that he will sell no ale, beer or porter on the mortgaged premises for five years, except the brew of plaintiff, is enforceable in equity.

      ITigley & Maurer, for plaintiff in error.

      Solders, Thayer & Mansfield,, contra.

       Affirmed without opinion, Kraval v. Cleveland & Sandusky Brewing Co., 82 Ohio State, 395,

   Winch, J.; Henry, J., and Marvin, J.,

concur.

We are unable to distinguish this case from Demko’s case, reported in 29 C. C., 102. ;

In that case the consideration for the mortgage, whose covenants were identical with the mortgage involved in this case, was an advance oE $2,700 in money; in this case it is a credit of $700 to the defendant in his business, $500 of which was evidenced by his promissory note. If the consideration was good to begin with the execution and delivery of the mortgage deed to the plaintiff vested it with the title to the premises therein described, subject to-the conditions of the mortgage. Among other conditions was the covenant that no beer, ale or porter of any other brew than that of plaintiff should be sold upon the premises for five years. The Demko case holds that this covenant survives the. payment of the mortgage debt.

Plaintiff is not seeking possession of the' premises under its mortgage deed, by ejectment, but enforcement of a covenant as to the use of the premises by the defendant.

This covenant is enforceable in equity (Stines v. Dorman, 25 O. S., 580). We do not think that defendant has proved that plaintiff failed to furnish “good, wholesome and merchantable beer, ’ ’ by reason whereof he is entitled to a cancellation of the mortgage deed.

In the Demko case, as in this case, we follow the authorities which deal with covenants as to the use of land, contained in executed conveyances, whether by deed or lease, and so distinguish this class of cases from those brought for the enforcement of executory agreements concerning personal services, or personal property, some of which have the added debatable infirmity of being unenforeible against the plaintiff, thus lacking mutuality, as was argued, but not decided in the case of Steinau v. Gas Co., 48 O. S., 332.

Judgment for plaintiff.


text:
    INJURED ON LEASED PREMISES WHILE LANDLORD WAS MAKING REPAIRS
    Circuit Court of Summit County.
    Frank Gruber v. Michael Austgen et al.
    Decided, October 8, 1908.

      Landlord and Tenant — Personal Injury Through Defect in Premises— —Landlord Not Liable, When.

    In an action for damages for personal injuries received by falling into an opening in a floor which was being repaired by a landlord with the consent of his tenant, it is not sufficient to charge the landlord to allege that he was in possession of the premises in common with the tenant, such allegation implying the tenant’s consent to the landlord’s entry. It is only where the landlordoreserves the right to enter for the purpose of making repairs without the tenant’s consent, that he can be held liable in such case.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This was an action for damages for personal injuries sustained by plaintiff by reason of falling into an opening in the floor of a rear room adjoining the saloon of defendants, Austgen & Pfeiffer, tenants of defendant Ley. Both rooms were leased to the tenants. The third amended petition seeks to hold both the landlord and his tenants, but a demurrer by the landlord to this petition was sustained, and plaintiff not desiring to plead further, the landlord was dismissed from the action and the case is properly here for review on error.

Plaintiff was a customer of the saloon-keeper and lawfully upon these premises.' Having occasion to go to the water closet in the rear of the building he passed through the rear room in safety, but upon returning, fell into the hole complained of. This happened about nine o ’clock in the evening.

The allegation in the petition relied upon by plaintiff to save his ease against the landlord, is as follows:

“Plaintiff further says that just prior to the time of the receipt of the injuries complained of, the said Adolph A. Ley, the owner of said premises, with the knowledge, accfuiescence and consent of the said defendants Austgen & Pfeiffer, took possession of the said rear room in common with them for the purpose. of making certain alterations, changes and repairs therein; and in making said alterations, changes and repairs, said Adolph Ley carelessly and negligently caused a portion of the flooring in said rear room to be removed and left in a dangerous' and unsafe condition, said Adolph A. Ley still having possession of said room in common with the said defendants, Austgen & Pfeiffer; that the fact that said flooring had been carelessly and negligently removed and left in a dangerous and unsafe condition was well known to the defendants, Austgen & Pfeiffer.”

The description of Ley “as owner of said premises,” is not sufficient, for that is no allegation that the landlord had a right to enter for the purpose of making repairs without his tenants’ consent. Indeed such consent is specifically pleaded. Nor is the allegation that the landlord was in “possession of said room in common with the said defendants, ’ ’ the tenants, of controlling force.

Such is the possession of a contractor in cases like this, but here the petition shows that the contractor had left for the day and the tenants were in sole possession, for the accident happened at nine o’clock in the evening.

Both of these propositions are covered in the opinion in the case of Shindlebeck v. Moon, 32 O. S., 264, 274, and in following’ that authority, the trial judge properly sustained the demurrer.

Judgment affirmed.


text:
    INCOMPETENT EVIDENCE AS TO INJURY.
    Circuit Court of Summit County.
    The Northern Ohio Traction & Light Company v. Rose Hanson.
    Decided, October 8, 1908.

      Personal Injuries — Kvidence as lo Nature of Injury.

    In a personal injury damage case, it is not proper to permit a daughter of the plaintiff to testify that her mother was unable to work after she was injured because she was nervous and her back hurt her.

      Rogers, Rowley cfc Rockwell, for plaintiff in error.

      A. E. KUng, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Defendant in error recovered a judgment against plaintiff in error, by the consideration of the common pleas court, assessing her damages at $2,000 by reason of injuries which she claimed to have received when a car of the traction company in which she was riding as a passenger, jumped the track when going up a hill on a curve.

In this court the right of the plaintiff below to recover is not seriously contested, but it is said that the verdict is excessive; that Mrs. Hanson was not hurt seriously enough to warrant the payment to her of any such sum as the jury awarded her and that the excessive verdict was largely due to the admission of improper evidence.

The evidence with regard to Mrs. Hanson’s injuries is conflicting. She had no bones broken, but was somewhat bruised in the accident. She claims, however, and in this she is sustained by her family physician, that she has suffered prostration as a result of the shock she received and is now unable to do her housework because of it. Two reputable physicians testified on the other side that she is not suffering from nervous prostration, but has rheumatism and other ailments due to her advancing years. She is sixty-one years old.

With this conflict in the evidence we would not disturb the jury’s verdict, though we might ourselves be of the opinion that the sum-allowed is too much. A more serious question is presented, however, by rulings of the trial judge on questions asked of Mrs. ITanson’s daughter, who testified over the objection of the defendant below, as shown on pages 12, 13 and 14 of the record, as follows:

“You may state whether or not your mother does any ironing since she was hurt? A. She don’t do any ironing at all.
“Q. Why?
“Objected to.
“Q. If you know?
“Objected to; objection overruled; defendant excepts.
"A. Because she’s nervous.
“Mr. Rodgers : We ask that the answer be excluded.
“The Court: The answer may stand. Defendant excepts.
"Mr. Kling: Q. Is there any other reason why? A. She is unable.
"Q. Is there some other reason why she doesn’t do any ironing?
"Objected to; objection overruled; defendant excepts.
“A. Because she’s not able to do it.
“Mr. Rodgers: We ask the answer be stricken out.
"The Court: Overruled. Defendant excepts.
“Mr. Ruing: Since your mother’s injuries does she do any washing1 ?
“Objected to; objection overruled; defendant excepts.
“A. No, sir.
“Q. For what reason doesn’t she do any washing?
“Objected to; objection overruled; defendant excepts.
“A. Account of her back; she can’t lean over.
“Mr. Rodgers: I ask that the answer be excluded.
“The Court: Overruled. Defendant excepts.
"Mr. Kling: Ts there any other reason why she doesn’t do any washing?
“Objected to; objection overruled; defendant excepts.
“A. Because she’s nervous.
“Mr. Rodgers: We ask that the answer be stricken out.
“The Court: Overruled. Defendant excepts.
“Mr. Kling: Q. Is there, any other reason why she doesn’t do any washing?
“Objected to; objection overruled; defendant excepts.
“A. Because she’s not able to do it; she’s too nervous.
“Q. What do you mean by not able to do it?
“Objected to; objection overruled; defendant excepts.’
“A. She’s nervous and her back hurts her.
“Mr. Rodgers: We ask that the answer be excluded.
‘' The Court : It may remain.
“Defendants excepts.
“Q. Since this accident does your mother do any sweeping of the floors?
“Objected to; objection overruled; defendant excepts.
“A. Yes, sir.
“Q. What part? A. Kitchen.
“Q. Any other part of the house? A. No.
“ Q. Why doesn’t she ?
“Objected to; question withdrawn.
Does your mother do any sweeping since this accident?
“Objected to; objection overruled; defendant excepts.
“A. The kitchen.
“Q. What’s the reason your mother doesn’t sweep the other rooms ?
“Objected to; objection overruled; defendant excepts.
“’A. She’s so nervous she can’t hold the broom in her hands.
“Q. Any other reason? A. She can’t stoop. -
“Q. Any other reason? A. Her back hurts her.
“Q. You may state whether or not your mother made any complaint of pains at the time she came home and while in bed after this accident?
“Objected to; objection overruled; defendant excepts.
“A. Yes, sir.
“Mr. Rodgers: We ask that the answer be excluded.
“The Court: It may stand. Defendant excepts.”

It was perfectly competent for this witness to say that since the accident her mother had done no ironing, washing or sweeping, but she should not have been permitted to give her opinion as to why her mother didn’t do this work. It was also competent for the daughter to testify as to her mother’s apparent physical condition and ability to work, but to permit her to give her opinion that her mother couldn’t work because she was too nervous, ivas clearly error. Medical experts might possibly be called upon to express an opinion of this kind but only after full statement of the facts upon which they based it.

In this case the rules laid down by the Supreme Court in the case of Railroad Company v. Schultz, 43 O. S., 270, 282, regarding tlie admissibility of the opinions of witnesses, were clearly violated.

The evidence thus admitted was extremely prejudicial to the rights of the defendant below. Por error in ruling on evidence the judgment is reversed and the cause remanded for a new trial.


text:
    ASSIGNMENT OF DEBTOR’S INTEREST IN ESTATE.
    Circuit Court of Summit County.
    The Akron Building & Loan Association v. Kent O. Foltz et al.
    Decided, October 8, 1908.

      Creditors Bill — Third Party Intervening and Claiming the Fund — Issue Thus liaise,d Triable Without Presence of Debtor — Agreement for Support in Fraud of Creditors.

    1. In an action in the nature of a creditor’s bill to subject a debtor’s interest in an estate to the payment of a dormant judgment, where a third person intervenes and by cross-petition claims an assignment to himself of all the debtor’s interest in the estate, and the plaintiff answers this cross-petition, alleging fraud in such assignment, the issue thus raised between the plaintiff and the debtor’s assignee can be litigated, even without proper service upon the debtor, assignee.
    2. Where the only consideration for the assignment of a debtor’s interest in an estate is the agreement of the assignee to support the assignor for the remainder of her life, the transaction can not stand at the expense of the assignor’s creditors; she must pay her creditors before she provides for her own future.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

On February 4th, 1907, the plaintiff brought its action in the nature of a creditor’s bill against the defendants, Kent O. Foltz, Birdie A. Foltz and the executors of the estate of Joy H. Pendleton, deceased, to subject the interest of said Birdie A. Foltz in said estate to the payment of a dormant judgment which it held against her and her husband. Service on said petition was had on the defendant executors and the husband, Kent, but Birdie was not found. Service on her by publication was attempted by notice published once a week for six weeks in the Akron Times, beginning August 2, 1907. This notice contained a short statement of the allegations and prayer of the petition.

Meanwhile, on June 3, 1907, Birdie had assigned all her interest in said estate to her brother, Frank W. Rockwell, in consideration of the payment to her by him of $2,000 in cash and the further consideration of the promise and agreement of the said Frank W. Rockwell to provide her with a home and reasonable maintenance and wearing apparel for the rest of her life.

On October 29th, 1907, on his own motion, said Frank W. Rockwell was made a party defendant to the cause with leave to file an answer and cross-petition, which he did on November 4th, 1907, and in it, by denial, raised an issue as to plaintiff’s rights under its alleged judgment. In his cross-petition he set up said assignment to him of Birdie’s interest in the Pendleton estate, and alleged that he took and received the same in absolute good faith, and that the executors of said estate had paid over to him all of Birdie’s interest therein except $1,500. The prayer of this cross-petition is that the petition be dismissed, that the executors be' ordered to pay over said $1,500 to him, and that he be confirmed in his ownership of Birdie’s interest in said estate, free of any claim of plaintiff’s. •

On March 30th, 1908, the plaintiff filed its amended answer to this cross-petition of Rockwell, alleging that the assignment to him by Birdie Foltz of her interest in the Pendleton estate was in fraud of her creditors, and asking that the same be set aside and that said funds so assigned to Rockwell be applied in satisfaction of its claim. June 20th, 1908, Rockwell replied to this amended answer of plaintiff’s putting in issue the good faith of the transaction between him and his sister Birdie. Other pleadings were filed by and against the defendant executors and certain motions and demurrers were filed in the cause, which, in the view we take of it, it is unnecessary to mention.

The case was finally tried in the common pleas court and judgment being rendered there against the plaintiff, the case is properly here on appeal.

We think that the issue now presented for the determination of this court is the one raised by the cross-petition of defendant, Frank W. Rockwell, the amended answer thereto of the plaintiff, and the reply of defendant, Rockwell. This issue is as to the good faith of the transaction between Rockwell and his sister Birdie. The action thus presented is one of a creditor to set aside a fraudulent transfer of his debtor’s property. We deem it immaterial and unnecessary to determine whether or not the original issue tendered by the petition could be prosecuted without service upon Birdie Foltz other than that shown by the publication of notice referred to and whether that petition is insufficient in that it fails to allege an unsatisfied execution upon a living judgment against said Birdie Foltz.

A more serious question, and one which we resolve in favor of the plaintiff with considerable doubt, is whether Birdie Foltz is a necessary party to the issues now pending between the defendant Rockwell and plaintiff. We hold that the published notice is insufficient to charge her with notice of this issue. But we have concluded that the case as it now stands can be tried, though she may not be bound by its results. Whether or not the grantee in an alleged fraudulent conveyance is a necessary party to proceedings by a creditor to set it aside is a question as to which the adjudications do not agree (20 Gyc. of Lem <C Proc., 711); but we hold that where the grantee of such conveyance is a party and alleges that the entire interest of his grantor in the property transferred has been conveyed to him, a full determination of his rights may be had without the presence of his grantor in the suit (1 Vedi on Fraudulent Conveyances, Section 129). If the grantee under the alleged fraudulent conveyance wants an adjudication as between himself and his grantor, let him bring his grantor into the case. It is also immaterial whether plaintiff’s claim is reduced to judgment or not. Combs v. Watson, 32 O. S., 228.

Having1 resolved these questions in favor of the plaintiff the only matter left for consideration is whether this transfer by Birdie to her brother Frank of all hgr interest in the Pendleton estate should stand as against the claims of her creditors. It appears from tlie evidence that for tlie consideration of $2,000 and an agreement to support liis sister for tlie remainder of her life, Frank W. Rockwell has received from the Pendleton executors, or is entitled to receive, over $18,000. However laudable it may be for him to provide for his sister, and however nearly commensurate with his undertaking this compensation may be, tlie transaction can not stand at the expense of Birdie’s creditors. She must pay her creditors before she provides for her own future. Rockwell knew all about the claims of plaintiff when he took the assignment from her and that by it she divested herself of all her property, which otherwise might go to pay her creditors. The authorities are agreed upon this proposition. It is well stated in the case of Egery v. Johnson, 70 Me., 258.

The prayer of plaintiff’s amended answer to defendant Rockwell’s cross-petition is, therefore, granted. Decree may be drawn accordingly.

Plaintiff having predicated error to the same judgment of the court of common pleas herein appealed from, as appears by case No. 856 in this court, the appeal being sustained, it follows that the error case must be dismissed for want of jurisdiction.


text:
    AGREEMENT NOT TO ENGAGE IN A CERTAIN LINE OF BUSINESS.
    Circuit Court of Cuyahoga County.
    Lewis T. Schroeder et al v. Harry Schultz et al.
    Decided, December 28, 1908.

      Contracts in Partial Restraint of Trade — Enforced Only when Plain violation Appears.

    1. Contracts in restraint of trade, though the restraint is partial only, are not looked upon with favor, are strictly - construed and are enforced only in clear cases, where material damage to the plaintiff is apparent and no irrevocable hardship will result to the defendant and others.
    2. One who has agreed not to start in the express and moving business within a certain territory for five years, will not be enjoined from taking care of horses and driving them for his father, who is engaged in said business within the forbidden territory, even though the evidence shows he has solicited one order for business for his father within said territory.

      TS. G. Schwan, for plaintiff.

      Willis Vickery, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

The prayer of the petition in this case is for an injunction to prevent the defendants from carrying on the moving, expressing and cartage business within a radius of two miles of the corner of Superior avenue and Addison road, N. E., in the city of Cleveland, Cuyahoga county, Ohio. The covenant upon which this action is based is contained in a bill of sale of certain vans, wagons and teams from the defendants to plaintiffs, expressed in the following language:

“It is also agreed that for a consideration of said seven hundred dollars, I, Harry Schultz, agree not to start in the express and moving business for a term of five years, within two miles of the corner of Superior avenue and Addison road, N. E.”

Upon the hearing we found the fact tp be, and so announced, that the business complained of within the forbidden tei’ritory is owned and carried on by the father of the defendant, Harry Schulte. Harry is working for his father, taking care of his teams and wagons, driving, and, in one instance, has solicited an order within the forbidden territory.

Contracts even in partial restraint of trade are not'looked upon with favor, are strictly construed and enforced only in clear cases, where material damage to the plaintiff is apparent and no irrevocable hardship will result to the defendant and others. Harkinson’s Appeal, 78 Pa. St., 196 (21 Am. Rep., 9).

Under a strict construction of the clause of the contract quoted, defendants have not started in the express or moving business. The only feature of what Harry has done which might be so construed is his soliciting one order within the forbidden territory. There is nothing in the contract to forbid his taking care of horses and driving them, even though they be used in said business. Soliciting orders has been held to he no violation of an agreement not to carry on a certain business within certain limits, the question of whether this constitutes a breach of the contract being regarded as too doubtful. Turner v. Evans, 2 De Gex, M. & G., 740.

No 'material damage to plaintiff was shown in this case, but the situation of defendant’s father is such, at this time, that we think he would be put°to great inconvenience if deprived of his son’s services. The son, too, should be permitted to earn an honest livelihood. We think there was no desire on his part to violate his agreement; if he was morally wrong in soliciting said order, it was a mistake or misconception of his duty, and not an intentional violation of his contract.

The current of authorities in this country and England seems to be against enforcing a contract such as wo have here, to the extent of preventing the defendant from working for others in a similar business, unless the contract so specifies.

Because plaintiff’s right is doubtful.and little harm to him is shown, we decline to grant him the extraordinary relief of an injunction.

Petition is dismissed.


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    NEGLECT OF DUTY BY ONE UNDER CONTRACT OF EMPLOYMENT.
    Circuit Court of Cuyahoga County.
    The Beth Hamibrash Hagadol Beth Israel Congregation v. Jacob Ettinger.
    Decided, December 28, 1908.

      Breach of Contract of Employment — Plaintiff’s Neglect of Duty as a Defense — Condonation of Neglect — Measure of Damages.

    1. In an action of damages for breach of contract of employment where defendant pleads that plaintiff neglected his duty, it is error to charge the jury that plaintiff’s neglect of duty, to warrant a discharge, must be willful. 'Any neglect of duty, willful or otherwise, is sufficient, if it tends to prejudice the employer’s interests.
    2.. Whether failure to discharge plaintiff after he has been guilty of neglect of duty, amounts to a condonation of his failure, is for the jury to say, under all the circumstances of the case.
    3. The measure of damages for wrongful discharge is the balance due under the contract less the amount the plaintiff earned, or might have earned, upon reasonable efforts to secure other employment, during the remainder of the term. The plaintiff can not remain idle without making any effort to reduce the damages. It is for the jury to say whether, in fact, the plaintiff did make reasonable efforts to obtain other employment.

      F. P. Strong and Wm. E. Gunn, for plaintiff in error.

      Nathan Looser, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

This dispute between a religious congregation and its cantor was aired at too great length in the courts. It is to be hoped that the parties have now worn themselves out and that bitterness and feeling have expended themselves, so that peace and harmony-may again prevail. The trial judge is not entirely to blame for the protracted contest which involved the introduction of much irrelevant testimony and too profuse a charge; counsel for both parties are to blame for this result, not only in permitting evidence of collateral matters to be introduced which had no bearing upon the real issue in the case, but also in the requests to charge, which were not sufficiently condemned to meet the simple requirements of the case.

The canto)* was discharged before his term of employment was ended. Was there good cause for his discharge, and if not. what was the measure of his damages'?

These were the only matters for consideration, supplemented by the rebuttal claim of the plaintiff that the congregation had condoned some of the failures to completely perform his contract.

The bias or prejudice of Bialowski or others of the congregation, or improper motive in the discharge, if any, had no place in the case. We can not reverse the judgment, however, because of the introduction of such evidence, because the record shows that plaintiff in error not only permitted that kind of evidence to be introduced without objection, but went into the matter itself.

We find prejudicial emu* in the charge, however, in several respects.

Throughout the charge the court reiterated the statement that the plaintiff’s neglect of duty, to warrant a discharge, must be wilful. We do not so understand the law. Any neglect of duty, wilful o).* otherwise, is sufficient, if it tends to prejudice the employer’s interests. Birkman, Jr., v. Garrett, 66 O. S., 136.

Again the charge as to condonation is unfortunate, because obscure. Having* properly charged on the subject the trial judge undertook to explain his meaning and seems to say that the mere continuance of the employment, after knowledge of the plaintiff’s neglect, would amount to a waiver, and that the defendant would then have to prove that it did not intend condonation. Of course it was for the jury to say what the facts amounted to, and no greater burden was upon the defendant than to explain the delay, if it could.

The charge, as to measure of damages was erroneous. The, court charged that if the jury found for the plaintiff it should award him .the balance due under the contract less such sum as it might find he had earned during the term. This should have been qualified so as to authorize the jury to deduct not only that which the plaintiff had earned, but what he might have earned upon reasonable efforts to secure other employment. The plaintiff can not remain idle without making any effort to reduce the damages to the defendant.

Whether or not he did use reasonable diligence to secure other work should have been left to the jury, under proper instructions.

For error in the charge in the respects stated, the judgment is reversed.


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    WORKING DAY FOR. A GIRL UNDER EIGHTEEN.
    Circuit Court of Cuyahoga County.
    J. W. Bolton v. State of Ohio.
    Decided, January 11, 1909.

      Constitutional Law — Aci Regulating Mows of Labor of Girls Constitutional.

    The act of February 28, 1908 (99 O. L., 30), making it unlawful to permit a girl under eighteen years of age to work in a factory more than eight hours in one day, is constitutional.

      7Joyl, Dustin cb Kelley, for plaintiff in error.

      Charles P. Iline, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

Plaintiff in error was convicted of employing a girl under eighteen years of age and permitting her to work more than eight hours in one day, in the factory of which he was superintendent, contrary to the provisions of the act of February 28, 1908 (99 O. L.; 30).

Tn this court it is claimed that the provision of the law referred to, under which plaintiff in error was convicted, is unconstitutional.

AVe find nothing upon which to base this claim. The state has plenary power to legislate regarding minors, as wards of the -state; they have only such right to contract as the state awards them.

That the provision of the law referred to is a reasonable exercise of the police power of the state is apparent, if it be viewed in its bearing upon the health of immature girls who are to be the future mothers of our citizens. The judgment of the Legislature in this matter is not to be set aside by the courts.

Judgment affirmed.


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    PLEADING IN ACTION FOR. LIBEL.
    Circuit Court of Cuyahoga County.
    Herman Preusser v. F. V. Faulhaber.
    Decided, January 11, 1909.

      Libel■ — Gourt Proceedings — Sufficiency of Petition.

    In an action for libel based on words used in papers filed in disbarment proceedings, the petition is demurrable if it fails to allege that the defendant was guilty of intentional falsehood, or that he took ■advantage of legal proceedings to utter false, malicious and slander-our words.

      Herman Preusser, for plaintiff in error.

      Mooney ¡t& Mahon, contra.
   Winch, J.; Henry, J., and Marvin, J.,

concur.

It can not be denied that the libelous articles complained of bear internal evidence that they were filed in court by the defendant in disbarment proceedings as charges of unprofessional conduct against the plaintiff.

Whether all statements made by parties and witnesses in court are absolutely privileged, is a question that does not appear to have been squarely decided by the Supreme Court of this state. It was found unnecessary to decide this question in the cases of Lanning v. Christy, 30 O. S., 115, and Liles v. Gasler, 42 O. S., 631; There is an obiler in the case of The Post Publishing Co. v. Maloney, 50 O. S., 71, 84, to the effect that: “In such cases the privilege constitutes an absolute bar to the action. ’ ’

In this ease the petition, to which, a demurrer was sustained, contains no allegation that the defendant was guilty of intentional falsehood, or that he took advantage -of legal proceedings to utter false, malicious and slanderous words. Such being the case, the inference or presumption of malice that would arise, if the words were not used in a judicial proceeding, is rebutted by that fact. Liles v. Gaster, sttpra.

Judgment affirmed.


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    INSTRUCTED VERDICT ERRONEOUS WHEN.
    Circuit Court of Cuyahoga County.
    Frank Forschner v. W. C. Mellick.
    Decided, January 26, 1909.

      Directing Verdict.

    It is improper to direct a verdict in favor of a party having the burden of proof.

      J. H. Saltman, for plaintiff in error.

      11. G. Schaibley, contra.
   Winch, J. (orally) ; Henry, J., and Marvin, J.,

concur.

We think that the plaintiff in error is properly here complaining of the error which was committed by the trial judge. That error consisted in the trial judge directing a verdict in favor of the plaintiff below. There were at least some issues on which the plaintiff below had the burden of proof. If I recollect correctly, there have been former decisions of this court, the titles of which I do not now remember, wherein has- been adjudicated the question here presented, and we are inclined to hold to our former decisions, to the effect that it is improper to direct a verdict in favor of anybody having the burden of proof.

Now one of the issues of the ease raised by the inquiry of the defendant below was whether the plaintiff was a sub-contractor; whether W. C. Mellick had a contract with - the city. In that event the burden was upon Mellick to prove that the contract was with him rather than with this partnership, and when the trial court was asked to direct a verdict in his favor without any attempt on his part to prove whether or not he had a contract with the city, it committed error. Evidence should have been admitted on that point and the trial judge should have left that question to the jury to determine. It may be true that the burden was upon the defendant below to file his claim and file notice with the city, and he may not have introduced any evidence on the subject. You may be correct on that issue; but the trial judge could not direct a verdict for the plaintiff when the burden was upon you to prove that you were the contractor, and for this error the judgment must be reversed.


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    PROSECUTION FOR. MURDER IN THE FIRST DEGREE.
    Circuit Court of Jefferson County.
    Milovan Dodig v. State of Ohio.

    Decided, 1908.

      Criminal Laxo — i'xrst Degx'ee Murder — Inference of Premeditation ancl Deliberation — Qxialifications of Juror.

    1. While in a first degree murder case deliberation and premeditotion may be shown by circumstantial evidence, still the inference of deliberation and premeditation from the circumstances shown in evidence must bé more reasonable than any other inference.
    2. In a trial for first degree murder, a proposed juror who states that he would look upon the crime as greater because it was a police officer who was killed, is properly challenged for cause.

       Case retried, and Common Pleas Court again reversed by the Cirouit Court, which was in turn reversed by the Supreme Court and the judgment of the Court of Common Pleas affirmed without opinion, 83 Ohio State, 455,

   Winch, J. (sitting in place of Cook, J.); Burrows, J., ancl Laubie, J.,

concur.

This judgment must be reversed because there is no evidence in the record showing that Milovan Dodig, at or prior to the time the fatal shot was fired which caused the death of John McDonald, had deliberated and premeditated upon his act. This is a serious statement to make, but the record has been considered by every member of the court with ecpial thought for the vindication of the law and the solemnity of the condition of one who is condemned to die. It is put to our consciences to weigh the evidence, with duty equal to that of the jury, and we find but two explanations for this verdict of murder in the first degree, to-wit: the skill of the prosecuting attorney and passion and prejudice aroused in the minds of the jury by deliberation over the wrongful death. of an officer of the law, a courageous .and much respected man, at the hands of an ignorant foreigner, in a lawless part of the city.

But the majesty of the law is not thus established. Upon justice alone are raised its foundations.

The trial was had promptly after the crime was committed. The record shows public feeling was running high. Time has since elapsed. The testimony of the witnesses has been reduced to writing and is susceptible of careful examination and comparison.

That Dodig killed the. officer is established by circumstantial evidence; that kind of evidence is satisfactory. So deliberation and premeditation may be, and usually must be proved by circumstantial evidence.

To deliberate and premediate is to weigh and consider beforehand — mental acts — always to be inferred from other facts unless the accused has told the state of his mind, which is rare.

But there must be facts shown from which deliberation and premeditation may be inferred, and, in a criminal case, adopting the language of a negligence case, the inference of deliberation and premeditation must be more reasonable than any other inference; the jury can not be allowed to guess.

From what fact is it claimed that the jury must necessarily infer that Dodig of deliberate and premeditated malice killed McDonald? Not because he used a deadly weapon, for the malice alone may be inferred from that. But from this one fact, that Dodig after his arrest, during a scene to which attention will be called later, said: “Man shot George (or judge, meaning McDonald) shot me,” or words to that effect, as one witness testified. What of it? It is said from this statement it is evident that Dodig knew McDonald by his familiar name. What of that ? Can another inference be deduced, that he lay in wait to kill the officer from the mere fact that he knew him? We think not. Men are not condemned to death upon such evidence.

Again, is that what Dodig said? Another witness says he said: “Gun shoot George, shoot me.” May he not have said, “I’m man shot George, and he shot me,” which was the fact, for Dodig was scratched by a bullet on his hand. The officer was- shot in the abdomen and over the left eye; both wounds were fatal. There is absolutely nothing in the evidence from which it may be determined who fired the first shot, or which shot first took effect upon the officer.' Counsel of the state, upon argument, each had a different theory of the matter. Personally, I have a theory which my associates seem to think is as reasonable as any other. It is certain that both shots that hit the officer were fired at close range, the one over the eye, because there were powder marks there, and the one in the abdomen, for it first went through the left sleeve of the officer’s coat and set it afire. Dodig’s clothes were also afire. The probabilities seem to me to be that the officer being sent into this district to quiet the holiday disturbances there, may have seen Dodig on the street near his boarding house and ordered him to move on; not being obeyed promptly he (the officer) closed in on him, a scuffle ensued and both shot. That there was a tussle is shown by an abrasion on the second finger of McDonald’s left hand and a bruise on his forearm. If the shooting occurred in this manner, of course there was no premeditation or deliberation.

But why multiply guesses? The fact that at the best it is all a guess, while the law requires that these things must be proved beyond a reasonable doubt, requires that this judgment be reversed.

Having come to this conclusion it is unnecessary to mention at length the other errors alleged to have occurred at the trial.

That an impartial jury was not impanneled appears from the record. At least three jurors stated in effect, that they would look upon the crime as greater because it was an officer who was killed. These three jurors were challenged for cause, the challenges were overruled and thereafter they were peremptorily challenged and excused, but counsel for the accused saved his rights by making a sevententh peremptory challenge. After this the jury was sworn. This was error. Hooker v. State, 4th Ohio, 348; Schufflin v. State, 20 O. S., 233.

It is doubtful if the so-called confessions or admissions at the mayor’s office should have been admitted in evidence. Consider the scene. This ignorant foreigner having been beaten over the head with a revolver by one officer, struck with the fist by another, knocked to the ground and in such fear that he befouled himself and cried out “Kill me, me no care,” was dragged to the city hall; a great crowd collected; he was led into the mayor’s office and thence into the office of the chief of police. He saw officers of the law in uniform about him and the chief citizens of the town there. It was a place where trials are held and had the appearance of such a place. He was questioned and gave incriminating answers.

While the officers of the law must be diligent in detecting crime and in bringing the guilty to justice and for this purpose the “third degree” may sometimes be administered in the sweat box, so that clews may be obtained from which conviction may follow,- should, confessions or admissions obtained under such circumstances be considered voluntary and be used against the accused at his subsequent tidal ?

Speaking of a similar scene enacted in the office of the chief of police of Cincinnati, Judge Price remarks, in the casje of Geiger v. State, 70 O. S., 400, 416; “No one who reads this record can conclude it with entire complacency and approval of all that led up to the scene of that morning. ’ ’

As' stated, we are in doubt upon this matter and a- majority of the court is unable to say that reversible error was committed by admitting this evidence.

There are several minor errors alleged to have occurred in rulings upon the admissions of evidence, but it is not necessary to mention them, for we find no prejudicial and reversible error in them.

Because the judgment is not supported by sufficient evidence, it is reversed and the cause is remanded for a new trial.


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    FAILURE TO SEE CONSIDERATION PASS.
    Circuit Court of Jefferson County.
    Charles B. Gilmore v. George W. Cochran, Executor, et al.
    Decided, December, 1908.

      Deed — Witness Contradicting LtecAtal of Payment of Consideration— Insufficient to Set Aside Deed.

    The testimony of a witness to a deed that he saw no money pass between the parties to it, has no great weight in contradicting the re- ■ cital in the deed acknowledging receipt of the consideration money.
   Winci-i, J. (sitting in place of Cook, J.) ; Burrows, J., and Laubie, J.,

concur.

This is a suit to enforce a vendor’s lien, and Was heard upon the evidence. The recital in the deed between the parties to the receipt of the consideration money is sought to be rebutted by the testimony of only one witness who was a witness to the dieed. ITis testimony has no positive force. He simply states that he did not see any money pass between the parties. Every person in the court room at the trial could have truthfully testified to the same effect.

This witness’s opportunity for knowing whether the grantee paid the consideration money was not very great, if limited to the one time when the deed was executed before him. It is a matter of common knowledge that the money does not often pass at the time when the notary takes the acknowledgment and the witnesses witness the signature. They are called in for that purpose and not to witness the payment of the consideration.

Such solemn admissions in written instruments are not lightly to be put aside. There was no suggesting circumstances shown.

The plaintiff has failed to produce that preponderating evi■clence which the burden upon him requires.

The petition is dismissed.


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    IMPEACHMENT OF WITNESS BY TESTIMONY GIVEN BEFORE GRAND JURY.
    Circuit Court of Jefferson County.
    David T. John v. State of Ohio.
    Decided, December, 1908.

      Criminal Law — Stenographer before Grand Jury as Impeaching Witness — Previous Quarrel — Mere Lapse of Time Does Not Destroy Importance of.

    1. When the ground has been properly laid for impeaching a witness, it is not error to permit a stenographer who took his testimony before the grand jury to state that certain questions were there asked the witness and answers given by him and the stenographer may refresh his memory from his written notes of such testimony.
    2. A charge to the effect, “If you believe beyond a reasonable doubt that time elapsed between the fight on the hill and the killing, what was done in the previous quarrel will have little weight in this case. When a quarrel is over and the parties have separated, no one has a right to attack another to avenge himself or for any reason arising out of a quarrel that has passed and gone. In so far as the law is concerned, it is entirely a separate occurrence, separate and apart, if time has elapsed,” is erroneous because it cuts off all weight to be given to the previous quarrel, upon the mere lapse of time.
   Winch, J. (sitting in place of Oook, J.); Burrows, J., and Laubie, J.,

concur.

Plaintiff in error was tried in the common pleas court on a charge of murder, in the second degree, convicted and sentenced to the Ohio State Penitentiary for life. lie asks that the judgment of the common pleas court be reversed for certain errors alleged to have occurred on'the trial and because he thinks the evidence adduced at the trial did not warrant a conviction on the charge stated.

Considering first the errors said to have intervened at the trial: AYe find no error in the rulings on the admissibility of the testimony of E. Stanton Pearce, official stenographer, who was introduced for the purpose of impeaching the testimony of one of the defendant’s witnesses by showing that said witness had formerly made different statements before the grand jury.

The ground was properly laid for this examination and, while the stenographer had a transcript of the evidence taken by him before the grand jury in his hands and the prosecuting attorney used it in asking him questions, the record shows that the witness testified from independent memory, refreshed it is true by said transcript, that certain questions had been asked and were answered in a certain manner before the grand jury.

Any other witness could have testified to the same facts, had he knowledge of them and memory sufficient to give substantially what the witness had said.

The state did not offer the transcript of all the witness’s testimony before the grand jury; the accused did not insist that it all go in, and there was no error in permitting the stenographer to testify regarding the particular questions and answers, as to which the witness had been interrogated by the state when laying the ground to contradict him.

Attention is called to the following part of the charge:

“But the intentional killing, to be manslaughter, must be actually caused by passion arising out of provocation given at the time of the commission of the offense or so short a time before that there was not time for the blood to cool and reason to resume its sway over the mind; and the provocation may be whatever will commonly produce the degree of anger, rage or resentment in a person of ordinary temper, sufficient to render the mind incapable of reflecting. And, as I have already stated, if a person is engaged in the commission of something in violation of law — doing that which he had no right to do — and while in the commission of such an act, although not intentionally, he takes the life of another, he is guilty of manslaughter.
“Now, you will look to the evidence in this case, and, if you find from the evidence that the defendant killed William Webster and that he killed him purposely and unlawfully, but not maliciously, if it was done under such circumstances as would bring the offense within the crime of manslaughter, as I have defined it to you, then such should be your vierdict.
“Now, in this regard there is some evidence in this case tending to show that at some time before William Webster was killed, the defendant here in this ease and others including tlie deceased; William Webster, had some difficulty — had a quarrel. A great deal of evidence has been adduced in the course of this trial with reference to what took place at that time and there has been come contradiction in the evidence as to where the fault lay and as to what was done, at that time, but you are instructed, gentlemen of the jury, that whatever may have been done at that time, if you believe beyond a reasonable doubt from the ^evidence that time elapsed between that occurrence and the killing of AVilliam AVebster, that will have but little weight in this case, as to what was done in the previous quarrel, for the reason, and you are so instructed as a matter of law, that when a quarrel is over and the parties have separated, that no one has a right to attack another, assail another, to avenge himself, or for any reason arising out of a quarrel that has passed and gone. In so far as the law is concerned, it is entirely a separate occurrence, separate and apart, if time has elapsed. It is only admitted in evidence to show the condition of the mind of the parties, as bearing upon the condition of their minds at the time of the occurrence when the crime charged is committed, if you find it was committed.”

AAUth this proper definition of manslaughter as a killing through passion arising out of provocation given at the time of the commission of the offense or so short a time before that there was not time for the blood to cool, was the last part quoted correct, which, for better understanding, may be paraphrased as follows:

"If you believe beyond a reasonable doubt that time elapsed between the occurrence on the hill and the killing, what was done in the previous quarrel will have little weight in this case. When a quarrel is over and the parties have separated, no one has a right to attack another to avenge himself or for any reason arising out of a quarrel that has passed and gone. In so far as the law is concerned it is entirely a separate occurrence, separate and apart, if time has elapsed.”

The mere lapse of time, without qualification, here cuts off weight to he given to the previous altercation. How much time, three seconds or thirty minutes or longer?

The evidence in this (¡ase shows a fight on the hill a mile and a half from the village; there was a general battle between the accused’s party and the party of the deceased; it was no mere skirmish; all had been drinking. There is evidence tending to show that the deceased told one of his paidy to go ahead and get his revolver, that he would kill the accused; this man did start ahead of the crowd; the accused made similar threats and started ahead to get his gun; he passed the first man, got a gun and came back to imeet the deceased and the main' party. There is evidence tending to show that deceased then made further threats, said he would kill the little Welsh bastard (meaning the accused), and advanced upon him.

Then the accused’s gun was discharged, whether before the deceased grappled with him or not need not be determined.

That some time elapsed after the party separated on the hill before the shooting occurred, is certain; how long is really immaterial, for the genera] effect of the evidence is to leave the impression that the fight on the hill had not been abandoned, but was continued by mutual consent, being only postponed until the parties could get weapons to fight with. If such is the ease, it was all one transaction, but the jury must necessarily have been prevented from adopting this theory by that part of the charge which has been opLoted. Hence it appears that the jury was prevented from giving the proper consideration to that view of the evidence which would warrant a verdict for manslaughter instead of murder in the second degree.

We find no other error in the charge. It is otherwise clear and complete and the accused’s rights were further completely protected by the requests of his counsel to charge before argument, which were given.

As to the weight of the evidence: While a defense of accidental shooting was attempted and also self-defense was suggested, we can not say that the jury was clearly wrong in discarding these views, but we do think that it is doubtful whether more than killing during a mutual affray is shown by the evidence. We do not reverse the judgment on this ground, however. but solely for error in the charge, and the case is remanded for a new trial.