text:
    WARRANTY IN GOOD FAITH BUT WITHOUT KNOWLEDGE.
    [Circuit Court of Lucas County.]
    Isaac Harter Co. v. Charles H. Pearson et al.
    Decided, June 25, 1904.

      •Warranty — Representation made in Good Faith but without Knowledge — Election of Remedies — By Owner of Goods Fraudulently Talcen from His Possession — Suretyship—Liability Arising Out of Fraud not a Mere Indebtedness, When — Satisfaction of Judgment in Assumpsit — Action for Tort does not Lie Thereafter.

    1. A material representation made in good faith hy one not acquainted with the facts is in the nature of a warranty, and must be made good to one who has rightfully relied upon it to his injury without knowledge of its falsity.
    2. The owner of goods wrongfully taken from his possession may proceed in tort to recover damages, or waive the tort and sue for the value of the goods upon the fiction that the property was sold, or replevin the property in case it can be reached. The right of this election being in the owner, the transaction can not be treated as a sale or indebtedness to his prejudice, by the wrongdoer or one in privity with him.
    3. Where a person who has been defrauded obtains a note of the person defrauding him, for an actual indebtedness, and one signs as surety upon the representation of the payee, made in good faith, that the note covers the whole of the indebtedness of the maker, the fact of an additional liability growing out of a prior fraudulent transaction, not. then known to the payee, affords no ground of defense against the note to .such surety.
    4. After the satisfaction of a judgment in assumpsit, the owner of property fraudulently obtained from him can not maintain an action in tort against the wrongdoer. Whether he could proceed in tort after judgment but before satisfaction in assumpsit— Quaere.

    Parker, P. J.; Hull, J., and Haynes, • J., concur.
    Error to Lucas Common Pleas Court.
   The action in the court b'elow was by the Isaac Harter Co. against Charles H. Pearson and Wilbur C. Brown, upon a promissory note given in New York, upon July 9, 1898, but dated July 1, 1898, for $1,500, payable sis months after date, to the order of C. H. Pearson, signed by C. H. Pearson and W. C. Brown, and endorsed by Pearson to the Isaac Harter Co. In the court below Pearson did not answer, so that the judgment went against him by default. Brown answered that the debt on account of which this note was given, was the debt of Pearson; that he, Brown, was surety for Pearson, and he set forth in his amended answer various grounds of defense, affecting and accruing to him as surety, but all these various defenses excepting one were eliminated before the case came to trial to the jury. The only defense remaining, and that upon which the case was submitted to the jury, was, that at the time this note was given, Mr. Day, a representative of the Isaac Harter Co., on behalf of the company, represented to Mr. Brown, in order to ■ induce him to become surety for Pearson, that the whole indebtedness of Pearson to the company was about $4,500, whereas, it is said the indebtedness of Pearson at the time amounted to more than $10,000. Brown says that he was ignorant of this fact, and that if he had known of this large indebtedness he would not have signed as surety. If what he says is true, of course, by the law of the land, he would be discharged from liability. These averments were denied by the Isaac Harter Co. The cause was submitted to a jury, which found in favor of Brown.

The Isaac Harter Co., as plaintiff in error, insists that this finding and the judgment based upon it is wrong; that the court erred in its charge to the jury upon the law of the case; and that the verdict is contrary to the weight of the evidence.

It appears from the record that the Isaac Harter Co. was a large institution engaged in the milling business in Fostoria, Ohio; that Mr. Pearson, for some time prior to July 9, 1898, and for a short time afterwards, was the selling agent of the Isaac Harter Co. in the city of New York — that is, he was their representative "there; he was their agent and representative in the sense that he was a commission merchant, and was the only merchant or firm authorized by the Isaac Harter Co. to sell their products in that city. He was not in their employ upon a salary, but he sold their goods as a commission merchant. He purchased the product from them, and his compensation arose from his commission. His deposition appears in the record, and in that he testifies upon this subject, agreeing with the testimony on behalf of the plaintiff.

He testified in part as follows:

‘1Q. What, if any, business connection did you have with this company in the year 1898 ? A. I represented them in handling their produce here for the sale of flour for local and export trade.

“Q. What was the nature of the business you were transacting for the company at that time? A. Buying flour from them.

“Q. You were selling flour for that company at that time? A. I was.

“Q. Upon what basis, commission or salary? A. Commission. ’ ’

And further along in his deposition he repeats that he was buying the flour from them. It appears that the transactions between the Isaac Harter Co. and Pearson were carried on by about the following method: Pearson would signify to the Isaac Harter Co. what flour he desired at a given time. They would forward the flour to New York. They would consign it to themselves, and upon the bill of lading it would be stated in this form: “Consigned to the Isaac Harter Co.; notify C. H. Pearson. ’ ’ These bills of lading were attached to drafts upon C. H. Pearson for the amunt of the flour in each instance of shipment; that is to say, for the price of the flour consigned. They would draw upon Pearson through a certain bank in New York, the name of which I do' not now recall, and attach the bill of lading to the draft.

It appears very clear from this record that Pearson was not authorized and had no right to obtain possession of the flour that was shipped to New York until he had paid these drafts, and become possessed of the bill of lading, upon presentation whereof to the railroad company the flour would be delivered to him. But by some arrangement with an officer or employe of the railroad company — the West Shore Co., I believe it was — * Pearson had, prior to July 9, 1898, obtained possession of a large amount of this flour without paying the drafts. I may say, by the way, that subsequently on account of this the Isaac Harter Co. presented its claim to the railroad company, for having delivered the flour to Pearson without authority, and it is said (though I am not sure that it appears in this record, but it is said and it is not contradicted), that they collected from the railroad company without any trouble the amount of the value of the flour, which it had delivered to Pearson without authority.

Upon July 9, 1898, Day appeared in New York on behalf of the Isaac Harter Co., to effect a settlement with Pearson of an unsettled open account, amounting to about $2,500, and the readjustment of some indebtedness of Pearson’s upon notes, amounting to $2,000, the sum of the two being about $4,500. It .appears from the testimony that Day was not aware, and it does not appear from the testimony that any of the company were aware at that time that Pearson had obtained possession of this flour without payment of the drafts. The company knew that the drafts had not been paid, but, as the record shows, they supposed the drafts and the bills of lading were still in the bank, and that consequently the flour was still with the railroad company. Day called upon Mr. Pearson, and asked him to adjust these two claims, one for $2,500 and the other for $2,000. At the instance of Pearson they called upon Brown, Pearson apparently expecting that Brown would give him some assistance about settling these matters. Mr. Day said to Brown that the indebtedness of Pearson to the Isaac Harter Co. at that time amounted to $4,500. It appears that as a matter of fact Pearson had at that time wrongfully obtained possession of flour amounting to something over $8,000. Brown contended in the court below, and contends here, that because of this state of facts with respect to the flour obtained by Pearson, the indebtedness of Pearson to the Isaac Harter Co., instead of being $4,500, was as much more as the value of this flour, to-wit, something over $8,000 more. He claims, in other words, that Pearson was indebted to the Isaac Harter Co. over $12,000 instead of only $4,500, and that because of this false representation he should be discharged.

There was not much controversy over these facts. On behalf of the defendant in error, it is contended that there were some .circumstances in the case tending to show that the Iaac Harter Co. at the time knew of this wrong that had been perpetrated by Pearson, and of this liability of Pearson to them on account of the flour which he had unlawfully obtained.

If the company knew it, it might be inferred from what Mr. Day said that there was some false suggestion in his representation that the whole indebtedness was $4,500; or that there was some suppression of the truth; that the full literal truth was not told, as it should have been, to Brown; but we are called upon to sustain the verdict upon the theory that the Isaac Harter Co. did not know at that time this note was taken that they had been defrauded or wronged by Pearson.

After the note was given, perhaps in the afternoon of the same day, Mr. Day became aware of these facts by investigation; but what he afterwards learned, of course, could not affect the rights of the parties as they became fixed by the transportation at an earlier period upon the ninth of July.

With respect to representations of this character, the court charged the jury as follows:

“The question, therefore, which you must decide from the evidence, is whether the plaintiff through Mr. Day falsely represented to the defendant that the indebtedness of Pearson to the plaintiff was only about $4,500, and if such representation was false, whether it was material, and whether Brown had the right to rely upon it, and was actually induced by it to sign the note. ’ ’

And again:

“If you find that the representation made by Day as to Pearson’s indebtedness was untrue, it is not necessary for the defendant to prove that the plaintiff or Day knew that the representation was untrue. If, in fact, the statement was false, even although honestly made, and if it was material, and Brown had a right to rely upon it, and was induced by it to sign the note, then a good defense to the note is shown, and the plaintiff can not recover upon the note.”

That, we think, under the authorities, correctly states the law. Such a representation, where the party making the representation is not acquainted with the facts, and where it turns out that his representation is untrue, although he made it in good faith, is in the nature of a warranty. It is not deceit, it is not fraud, in the sense that one has falsely deceived another, but it stands upon the doctrine of warranty; he must make good that which he represents to be true.

But the plaintiff in error insists that what Day represented to Brown upon this occasion was in fact true; that the whole indebtedness of Pearson was $4,500; that this liability of Pearson to the Isaac Harter Co. on account of the fraud which he had perpetrated upon them, and perhaps upon the railroad company, was not in the nature of an indebtedness. And the case here seems to turn'upon the question whether the liability of Pearson growing out of his fraudulent transaction was' of the nature of an indebtedness to the Isaac Harter Co. "With respect to that the court charged the jury as follows:

“It is admitted here upon all hands that the statement or representation made by Mr. Day to Mr. Brown on July 9, 1898, before the note was signed, was that the indebtedness of Peaison to the plaintiff was at that time the sum of about $4,500. The first question then, is, was that statement false or untrue 1 In other' words, was Pearson at that time indebted to the plaintiff in an amount largely or materially in excess of $4,500 ? Under the evidence in this case, the answer to that question depends largely upon what you find to be the transactions between Pearson and the plaintiff prior to July 9, which related to the shipment of flour by the plaintiff to New York and the obtaining possession of the flour by Pearson without paying the drafts drawn on him by the plaintiff. And upon that subject I say to you this: If before July 9, 1898, Pearson obtained possession of the flour which had been shipped by the plaintiff to New York without paying the drafts drawn on him by the plaintiff, he then became indebted to the plaintiff for the amount of such drafts, and if this indebtedness existed upon July 9, and if the indebtedness of Pearson to the plaintiff upon that day, including the amount of the indebtedness upon the drafts, exceeded to any material extent the sum of $4,500, then the representation that the debt was only $4,500 was untrue or false.”

That is stated by the court without reference to the question whether Mr. Day or the Isaac Harter Co. was aware of this liability on account of the flour unlawfully obtained. In other words, the court charges that this liability was an indebtedness, at that time, of Pearson to the Isaac Harter Co. This seems to have left very little for the jury to do.

That this representation would be material can not be questioned. The difference between $4,500 and the real indebtedness, as the court construes this claim, was so great as to make it clearly material. Mr. Brown testifies that if he had known of this liability he would not have signed.

Now, was this an indebtedness at this time? Clearly there was a liability of Pearson to the Isaac Harter Co. But the transaction was such as that Pearson was liable to the Isaac Harter Co, for a tort that he had committed in unlawfully obtaining possession of and converting their property. The law gave to the Isaac Harter Co. a choice of remedies. They could proceed on account of the tort to recover damages for the trespass and asportation; or they might, if they could come at the property, recover it by replevin; or they might, if they choose to do so, waive the tort and sue for the value; but this right to waive the tort and sue for the value, proceeding upon the fiction that Pearson had purchased the property from them and had promised to pay for it, was a right of the Isaac Harter Co.; it was not the right of Pearson. So far as Pearson was concerned, the Isaac Harter Co. might insist on proceeding on account of tort. Certain consequences would follow from this election to proceed upon indebitatis assumpsit; for if the Isaac Harter Co. should proceed in that way upon that election, it is probable that under the law it could not thereafter proceed on account of tort.

There is some difference in the authorities on this proposition, some holding that the right to proceed on account of tort is not taken away until the judgment obtained in the action of assumpsit has been satisfied; but certainly after satisfaction of the judgment in assumpsit the right to proceed on-account of tort is- at an end. But this was a right or election lodged in the Isaac Harter Co. Pearson had no right to elect to treat this as an indebtedness as upon a contract. How, then, can the courts at the instance of Brown, treat this as in the nature of an indebtedness? It was tbe right of the Harter Co alone to so elect. Clearly, under this record, they had not elected to treat this as a contractual obligation. They could not so elect until they had become aware of the facts. We are satisfied from this record that they did not become aware of the facts until after the note in this case had been given. According to our view of the results of the transaction at the time this note was given, the Isaac Harter Co. still owned this flour; and owning the flour, it could not have a claim for its value based upon its sale to Pearson. Such claim could not arise until, with knowledge of the facts, the company had elected to waive the tort and regard the transaction as a sale.

Had they proceeded to enforce such claim, they must have proceeded upon the theory and upon the fiction that Pearson had purchased the flour and had promised to pay for it. This is one of the fictions of the law that appears still to obtain, notwithstanding our changes in the law of procedure. It has become a part of the substantive law, founded upon the policy of the law. In an action of assumpsit upon this pretended contract, upon it being shown that he had obtained this flour and converted it, Pearson would not be permitted to dispute the averment that he had promised to pay for it; and it is only by virtue of that fiction, and by virtue of the fact that he wouid not be permitted to dispute that allegation, that the action of assumpsit upon this transaction could be maintained.

Now, as I have said, the representation of Day to Brown was, that the indebtedness of Pearson at that time was $4,500, and no more. As Pearson puts it in his deposition, Day said to Brown that Pearson was then owing the Isaac Harter Co. $4,500. It appears that in connection with that statement Day stated to Brown the items of that indebtedness — the $2,000 on the note and the $2,500 item on the account. That representation, having been made in entire good faith, with no purpose to conceal facts which ought to have been made known to Brown, the language of Mr. Day should not be extended beyond ics natural and legitimate meaning. If he had known the other facts, and it could be fairly found and held that he was guilty of a suppression of some matter that he should have stated, perhaps it would be competent for the jury to enlarge the meaning and significance of the terms that he used; but having used the language in good faith, and its import and effect standing rather upon the doctrine of warranty than misrepresentation or deceit, the language should be given its natural meaning, and should not be enlarged or extended beyond that. And giving it that construction, we hold that the statement was true and correct; that the indebtedness of Pearson at that time was $4,500, and no more; and we hold,- therefore, that the court of common pleas erred in charging the jury to the effect that this liability amounted at the time to an indebtedness; and .on account of this error the judgment of the 'court of common pleas will, be reversed; and, as I have indicated, there being a claim that there is some evidence tending to show that the company knew of this state of facts, so that the verdict may be sustainable on that theory, we go further, and hold' that the verdict is against the weight of the evidence.

E. W. Tolerton, for plaintiff in error.

Swayne, Hayes >& Tyler, for defendant in error.

Reversed and remanded.


source: Caselaw Access Project

license: Public Domain

text:
    PROCEEDINGS BEFORE JUSTICES OF THE PEACE.
    [Circuit Court of Coshocton County.]
    Emma E. Squires v. Joseph Martin, Administrator.

      Justice of the Peace — Liberal Buies Should Control — In Reviewing Proceedings Before — Sufficiehcy of Pleading and Presumption of Regularity — Exceptions as to Evidence not Reviewable, When.

    1. "Where justices of the peace and other inferior tribunals act within their jurisdiction, liberal rules should be adopted in reviewing proceedings before them.
    2. The bill of particulars is sufficient if it 'states the nature of the claim in general terms or substantially states the facts constituting the cause of action.
    ' 3. The sole object of the bill "of exceptions mentioned in Section 6565 is to provide for a review of questions of law.
    4. Where the transcript shows that the proceedings were regular, every presumption is in favor of the judgment.
    - 5. In an action against an administrator, properly summoned as such, who appears and makes a defense, and prosecutes error to the common pleas, there is sufficient evidence by admission of his capacity as administrator without formal proof to that effect.
    Albaugh, J.; Jenner, J., and Follet, J., concur.
    The case of Emma E. Squires, plaintiff in error, against Joseph Martín,. administrator of the estate of Martha Simpson, deceased, defendant in error, is an action brought by the plaintiff against the defendant, Joseph Martin, as such administrator, before William Hickson, justice of the peace of Jackson township, Coshocton county, and was tried to a jury, March 26, 1891, resulting in a verdict and judgment for the plaintiff and judgment for costs.

       Affirmed by the Supreme Court, without report, in Martin v. Squires, 52 Ohio State, 634.

   Upon the trial before the justice, the defendant, Martin, moved to dismiss the action, “on the ground that the plaintiff’s bill of particulars does not set out and allege the appointment of ihe defendant, and his capacity as administrator of Martha Simpson, deceased, and does not allege that the claim on which this action is founded was presented to the defendant as such aiministrator, and rejected by him.”

The justice overruled this motion, to which Martin by his attorneys excepted, and the plaintiff was permitted to amend her bill of particulars, by stating on the margin (although it is not shown on the docket or the transcript, but it appears on the original bill), that Martin was the duly appointed, qualified and acting administrator of the estate of Martha Simpson, and that said claim was presented to him as such administrator, by the justice, at the request of the plaintiff, and he was requested to endorse the claim as allowed, or to pay the same, which he refused to do.

It also appears that before the trial, at the -time the jury was selected, it was agreed between the parties by their attorneys, to avoid a change of venue and removal of the case before another justice for trial, that justice Hickson should state to the the jury certain facts as evidence for the plaintiff, which was claimed to be material on the trial. After the verdict was returned for the plaintiff, Martin filed a motion for a new trial, which was overruled and exception taken, and a bill of exceptions embodying all the evidence given at the trial.

Martin, as such administrator, thereafter prosecuted error in the court of common pleas and reversed the judgment of the justice, and the plaintiff in error now brings this proceeding to reverse the judgment of the court of common pleas.

In the court of common pleas, Martin, as such administrator, alleged that there was error in the record and proceedings of the justice substantially as follows:

1.. In overruling his motion to dismiss the action on the ground that the plaintiff’s bill of particulars did not allege his appointment as administrator, and that the claim was duly presented to him as such administrator, and rejected.
2. In overruing the motion to set aside the verdict of tKe jury, on the ground that it was against the weight of the evidence, afid that there was no evidence offered to show that defendant below was administrator of the estate of Martha Simpson, deceased.
3. That there was no evidence offered that plaintiff’s claim was ever presented to defendant as such administrator, for his allowance or rejection, or that the claim had been rejected bj him.
4. That the justice erred in his charge to the jury on the trial of said cause; that the special request of plaintiff was misleading, and not supported by any evidence in the case.
5. The facts set forth in the bill of particulars of plaintiff below are not sufficient to maintain said action against plaintiff in error.
6. The justice erred in the admission of the evidence of plaintiff below, to which defendant below objected.
7. The justice erred in excluding evidence offered by defendant below.

Defendant in error, Emma Squires, in the court of common pleas, filed a motion, supported by affidavit, for diminution of the record, suggesting that the transcript and record of the justice were imperfect and incomplete, in this, that they do not show the allowance by said justice of an amendment by plaintiff below to her bill of particulars, made and endorsed on the margin of- the original bill of particulars March 25, 1891, at the time and before commencement of the trial, in the presence of the court and jury, and requested that an order issue to the justice to correct his record and transcript so that they show the facts as to the amendment, which motion the court overruled, to Which defendant in error excepted. Afterwards at the April term, to-wit, April 20, 1891, of the court of common pleas, the case was heard on the petition in error, and the following entry made:

“On consideration whereof the court find that there is error in said proceedings and judgment, and said judgment is therefore reversed at the costs of the defendant in error, and it is further ordered that the case be retained in the court of common pleas for trial and judgment as in case of appeal, to which ruling and decision defendant, Emma E. Squires, by her counsel, excepts. ’ ’

This proceeding is now brought in this court to reverse the judgment of the court of common pleas, alleging that the court erred in reversing the judgment of the justice of the peace, and in taxing the costs against her, and in ordering that the ease be retained in that court for trial.

It is the duty of a reviewing court to adopt liberal rules in reviewing proceedings before justices of the peace and other inferior tribunals, so far as respects regularity and form, provided they act within the limits of their jurisdiction. No particular form of bill of particulars or pleading is required before a justice of the peace. It is sufficient if it simply states the nature of the claim in general terms, or substantially states the facts constituting the cause of action; it is not required to state a cause of action with accuracy of a petition in the court of common pleas. Swan’s Treatise (16 Ed.), 16, 35; Bruder v. Biehl, 1 C. C., 85.

There was no error in the justice overruling the motion of defendant below to dismiss the action, on the grounds that the plaintiff’s bill of particulars did not allege his appointment as administrator, and that the claim was duly presented to him and rejected, or in overruling his motion for a new trial.

As to the claim that the verdict was against the weight of the evidence, we hold this does not come within the provisions of the statute authorizing exceptions in cases before justices of the peace. Section 6565, Revised Statutes, provides, “In all cases before a justice of the peace, whether tried by jury or by the justice, either party shall have the right to except to the decisions of the justice upon any matters arising in the case”; and the bill of exceptions containing the evidence can not be considered by the reviewing court with a view of reviewing the finding or verdict. The sole object of the bill of exceptions provided for in this section is for the review of questions of law.

The Supreme Court have substantially held to this effect in Leonard v. Cincinnati, 26 Ohio St., 447 (second syllabus) ; also in Baer v. Otto, 34 Ohio St. (second syllabus), 11, opinion 15; and see Bancroft v. Talbot, 29 Ohio St., 538; also Barto v. Abbe, 16 Ohio, 408, and State v. Wood, 22 Ohio St., 537. See 90 O. L., 358, 359 (1893); Section 6565, Revised Statutes, amended.

It is further claimed by the defendant in error, that there is not sufficient evidence to show that he is the administrator of the estate of Martha Simpson, deceased, and no evidence to support the verdict, and that there was no evidence offered to show that the plaintiff’s claim was presented for his allowance or rejection as such administrator. The record shows that the defendant appeared before the justice of the peace and contested the case as administrator; also in the error proceedings in the court of common pleas and again in this court. The appearance of the defendant in error as sneh administrator in the courts below and in this court, and contesting plaintiff’s claim in all the courts, is evidence by admission sufficient of his capacity as *such administrator, and the claim, under such circumstances, that there was no-evidence upon the trial that he is the administrator, is too technical for consideration, in view of the liberality allowed under the statute in actions before justices of the peace.

W. (& A. E. Stillwell, for plaintiff in error.

Eimehaugh & Nicholas, for defendant in error.

The transcript on its face shows that the proceedings of the justice of the peace were regular. Every presumption is therefore in favor of the judgment. It will therefore be presumed that every fact necessary to establish the liability of the defendant was properly proven upon the trial before the justice and the jury. We find in this record evidence sufficient, in our opinion, to support the verdict, that the claim was presented to the defendant as such administrator and its allowance refused. Then again the presenting of the claim to the defendant as administrator and his refusal to allow it as a valid claim, are shown by the testimony of the justice before whom the. case was tried, whose testimony was admitted by consent of the parties. There are other assignments of error which we have examined, but which are not of sufficient importance to notice further than to say that we find no error in the proceedings before the justice of the peace.

Upon an examination of the whole record of the justice of the peace and the proceedings in the court of common pleas on error, we are of the opinion that there are no substantial errors disclosed in the proceedings before the justice prejudicial to Martin as administrator, and that the common pleas court erred in reversing the judgment and proceedings of the justice of the peace, and in taxing the costs against defendant in error, and it is thereupon ordered and adjudged that the judgment of the court of common pleas be reversed, at the costs of defendant in error, Joseph Martin as administrator, and that of the justice be affirmed and that the case be remanded for further proceedings.


text:
    APPORTIONMENT OF STREET ASSESSMENT.
    [Circuit Court of Lucas County.]
    Moses G. Bloch v. Wm. M. Godfrey, Auditor, et al.
    Decided, June 25, 1904.

      Street — Apportionment of Assessment for — Unauthorized Certification of Assessment.

    1. An assessment for a street improvement is not rendered invalid by reason of the fact that the amount apportioned to an entire tract was afterwards, with the consent of the owner and no injustice being done thereby, placed upon certain lots forming a part of the tract.
    2. But where there has been an unauthorized certification of an assessment, a court can not upon the complaint of a lot owner, and without all the lot owners before it who are affected thereby, attempt to properly apportion the assessment over all the lots liable therefor, but will simply decree that the plaintiff pay that proportion of the entire amount of the assessment which the area of his lot or lots bears to the area of the entire tract to be assessed.
    Parker, P. J.; Haynes, J., and1 Hull, J., concur.
    This action is brought by Mr. Bloch to enjoin the assessments on lots 1 to 29 in Industrial Heights Addition, on account of the improvement of Woodville street.
   It appears that when Woodville street was improved these lots were a part of a tract of about eleven or twelve acres of land, and that the assessors appointed under the statute to determine the amount to be assessed, determined that a certain amount would be assessed against this whole tract, and an assessment was made accordingly by ordinance. Subsequently, upon Mr. Hayes, who was- the owner of the tract, presenting to the council a plat subdividing this tract into lots which he desired to have adopted, the city civil engineer, in pursuance of the statute, Section 2601-1, apportioned this whole assessment to these lots now owned by Mr. Bloch. Mr. Hayes, then the owner of all this property, at that time acquiesced in and consented to this reapportionment. Subsequently he conveyed these lots to Mr. Bloch. It is insisted by Mr. Bloch, however, that the action of the city officers was not authorized by law, is irregular and void, and that this assessment npon these lots should not stand, notwithstanding the consent thereto of his grantor, and notwithstanding the fact that he afterwards received a conveyance of this property, in which there is a warranty except as to assessments upon the lots.

The statute (Section 2601-1), reads:

“In cities of the third grade of the first class, before the common council shall accept the plat of any "property upon which, or any portion of which, there is any special assessment either due or to become due, the city civil engineer shall make an apportionment of such special assessment among the different lots of such plat affected by such assessment,” etc.

It is contended that this action was irregular and void because all this twelve acres was affected by the assessment theretofore levied, and therefore each and every part of it was thereby affected, and therefore each lot of the subdivision was affected, and that under this statute the engineer was not authorized to place it upon certain lots and relieve others altogether, but that he must so apportion it that each and every lot must bear some part of the burden of the assessment. That is the contention on the part of the plaintiff. We are of opinion that this is giving rather too narrow a construction to this statute; that it is adhering rather t.oo closely to the exact letter of the words “among the different lots of the plat affected.” The letter of this statute as construed by plaintiff could be observed by levying one penny against each of the other lots than these twenty-nine lots, and levying all the remainder upon these twenty-nine lots. That, of course, would be absurd. The statute does not require that, and it should not receive such a construction.

There is nothing in this statute requiring that the assessment should be spread out on all the lots according to the benefits that the engineer shall conceive each lot has received; and if that were required, it does not appear but what all the benefits accrued, as a matter of fact, to this front 120 feet, of which is made up lots 1 to 29 inclusive.

We are of the opinion, therefore, that there having been no objection made by Mr. Hayes at the time this apportionment was made, but he having acquiesced in it, that he is bound by it, and that the fact that some part of the assessment was not levied upon these other lots, in the absence of any evidence that there was any injustice therein, this apportionment of the whole cost of the improvement to lots 1 to 29, does not present any legal ground for invalidating the assessment or enjoining the levy. Therefore all the assessments which have been certified over in pursuance of this apportionment by the city engineer shall stand and be collectible.

B. A. Hayes, for plaintiff.

W. G. Ulery, TJ. G. Denmm and Frank Crane, for defendants.

But it appears that a part of this assessment has been certified over by the city clerk, some upon the whole tract, and some against the 120 feet abutting on Woodville street, before the engineer had thus proceeded in pursuance of this statute. By what authority or for what reason, we can not tell; we do not know, we are not enlightened. We find no authority for it. There must have been some reason for it, but we do not know what it was. So far as we are informed, it appears to have been dione upon the mere ipse dixit of the clerk and auditor, without any suggestion from anybody else, or any good or valid reason for it. We do not see how that proceeding and condition of things can be upheld. Justice and equity require that this assessment shall be so spread out on all the tract that each part or lot must bear its just share and proportion. What that would be we can not tell, and we do not know that anybody can tell. We are not sure that there is any statute or any authority for such adjustments. We can think of no rule by which to apportion it, except to apportion to each lot its share, according to the square feet, after excluding the streets and alleys. But the parties owning the property other than lots 1 to 29 do not appear to be in court. They would certainly not be bound1 by any decree that the court should enter with respect to their property.

We will allow to stand against this particular property its proportion according to area, which can not be more than its share, since they both abut upon the improvement, and the remainder will be enjoined as against these particular lots.


text:
    CHILD INJURED BY ELECTRIC LIGHT WIRE IN STREET.
    [Circuit Court of Richland County.]
    The Citizens Electric Railway, Light & Power Co. v. Emmett Bell, by His Next Friend.

    Decided, January Term, 1903.

      Negligence — Electric Wires in Street — Duty of Company toward Persons Using Street — Degree of Care Required as to Wires — Degree of Care Expected of Children, a Question for the Jury — Expert Evidence — Opinion of Physician.

    1. A corporation, permitted to construct and maintain, an electric street railway, with all the electric appliances incident thereto, in the public streets of a city, for the purpose of private gain, owes the duty to persons upon such streets of so conducting its business as not to injure them. It must, therefore, keep its wires out of the way of persons using the streets, so that they will not, by eoming in contact with such wires, receive personal injuries, and the fact that it has not done' so raises a presumption of negligence against it. ,
    2. An 'electric company, permitted to use the public streets for its own purposes, is required to exercise a high, if not the highest, degree of care in the operation, construction, inspection and repair of its wires and poles, to the end that travelers along the highway may not be injured by its appliances; and, if a wire, charged with a deadly current of electricity, falls from its proper . place of elevation above the street to the surface of the street, and there, by contact with a boy lawfully passing along the highway, injures him with its current, the law raises a prima facie case of negligence. The burden of proving that there was no negligence, in such case, is on the company. The maxim, res ipsa loquitur, applies.
    3. A child is held to such care and prudence only as are usual among children of his age and capacity. A child of seven years of age is not guilty of negligence if he exercise that degree of care which under like circumstances would reasonably be expected from one of bis years and intelligence. Whether he used such care in a particular case is a question for the jury.
    4. A practicing physician, familiar with the nature, extent and condition of the injury in question, in its early stage or history, being asked as to tke extent of the injury, or if he could, at the time of trial, determine as to whether or not the injury would he permanent, answers that he could form an opinion, may give it is his opinion that such injury is, or is not, permanent.
    Error to the Court of- Common Pleas of Richland County.
    ' The plaintiff below, Emmett Bell, an infant of the age of seven years, by his next friend, Andrew W. Bell, commenced this action in the Court of Common Pleas of Richland County against the Citizens Electric Railway, Light & Power Company, to recover damages for a personal injury which he alleged to have suffered by reason of the negligence of the defendant company.
    The plaintiff, after stating that defendant is a corporation organized under the laws of the state of Ohio, alleges that as such corporation, it conducts what is known as an electric street railway, the motive power of which is electricity, said electricity being conducted along and through wires that are suspended upon poles throughout certain streets in the city of Mansfield, Ohio; that as an incident to said wires at certain intervals along what is known as the main wires through and over which said current is carried, there is what is known as feed wires, which, when properly handled, are placed in such positions as to be harmless to any one coming in contact with the same. Plaintiff further says that on or about the 19th day of August, 1901, at or near what is known as the northwest corner of the East Fourth Street sehoolhouse, in said city, one of said feed wires extended from the main wire over which said electric current passed to a certain pole and then to the ground below. ' That said feed wire was what is known as a live wire, that is to. say ■charged or filled with electric current, and that said wire was carelessly, recklessly and negligently left lying upon the ground exposed and in such condition as to be of great danger to any person not acquainted with its dangerous character. That said wire was so left by defendant company, and on said 19th day of August, 1901, the said Emmett Bell, a youth of tender years, to-wit, of the age of seven years, being unacquainted with the use or nature of the dangerous character of said wire, came in contact with the same, and by reason of the electric current contained therein, was dangerously burned and mutilated in and upon the index finger of his left hand; that his nervous system was greatly shocked, and he was thereby rendered sick, nervous and prostrated on account thereof; that his said finger to the present time is stiffened and in bad condition, and in all probability will never be of proper use to him. That, on account, of the wound made by the burning wire, the said Emmett Bell was subject to great and excessive loss of blood, and otherwise shocked and rendered weak on account thereof. That said injuries were occasioned wholly on account of the negligence of the defendant company without any fault of the said Emmett Bell. Plaintiff says that on account of said injuries he has suffered great pain and distress of body and has been damaged in the sum of $3,000, for which he asks judgment.
    The answer, for a first defense, admits that defendant is a corporation organized under the laws of the state of Ohio; that as such corporation it conducts what is known as the Electric Street Railway, the motive power of which is electricity. It admits that said electricity is conducted along and through wires that are suspended upon poles throughout certain streets of the city of Mansfield, and denies the other allegations of the petition. For a second defense the defendant avers that whatever injury the said Emmett Bell sustained, if any, was caused by his own negligence and fault, and not by reason of any fault of defendant.
    Plaintiff’s reply to this second defense was a general denial.
    The cause was tried to a jury, resulting in a verdict for plaintiff, and the jury assessed his damages at $755. Motion for a new trial, filed by defendant, was overruled. Judgment was entered for the amount of the verdict and costs. The bill of exceptions containing all the evidence was taken and made a part of the record. Error is prosecuted to this court to reverse the judgment of the court below.
    Voorhees, J.; Douglass, J., and Donahue, J., concur.

       Affirmed by Supreme Court, without report, May 3, 1904 (70 O. St., 482).

   The only questions presented and urged as reasons for a reversal of the judgment of the court below are:

1. In the admission of evidence offered by plaintiff below against the objections of defendant.
2. In the charge of the court.
3. In the court refusing to charge as requested by defendant below.

It is claimed that the court erred in permitting Doctor RJ F. Boles to answer the following questions in his direct examination, to all of which questions and answers defendant objected; the court overruled the objection and defendant excepted :

“Q. From the extent of that injury could you determine whether or not it would be permanent?

"A. Well, that would be an absolute impossibility for me to tell. Perhaps I could form an opinion.

“Q. What do you say now as to whether or not, in your opinion, that injury will be permanent ?

“A. My opinion was that the injury would be permanent.

“Q. What is your opinion now?

“A. I haven’t seen it lately.

“Q. What is your opinion now, from what you saw at the time, as to whether or not the injury will be permanent?

‘ ‘ Court : He has answered that question.

“Q. What is your opinion now, based on what you then-saw, as to whether it is a permanent injury or not?

“A. That is a difficult question for me to answér. I can not tell now what the condition is.

“Q. Judging from his condition at the time, what is your opinion as to whether that will be a permanent injury, from what you saw at that time, are you still of the same opinion?

“A. My opinion is the same.

“Q. Suppose that this finger at this time is shrunken, and suppose that the boy, in the use of his hand, holds his finger out like that (illustrating), and suppose that when his mother would wash his hand he would cry, when she would wash that finger he would cry, and suppose that finger is now smaller than the other index finger, sweenied away somewhat, and when he touches anything there is evidence of his having pain in that finger, what would you say that would indicate as to whether the injury would be permanent?

“A. It would indicate permanent impairment.”

It is contended that the evidence is incompetent on two grounds:

First, that the petition does not allege permanent injury; second, the witness, Dr. Boles, does not qualify to give an; ■opinion.

- There was no motion filed to the petition to correct it in form. The allegations as to the injury are, that/‘his (plaintiff’s) index finger of his left hand was dangerously burned and-mutilated ; that his nervous system was greatly shocked, he was rendered sick, nervous and became prostrated on account of said accident; that his said finger, even to the present time, is stiffened and in bad condition, and in all probability will never be of proper use to him.”

If the petition will admit of proof as to the extent of permanency of the injury, it is by reason of this clause, “that his said finger, even to the present time, is stiffened and in bad condition, and in all probability will never be of proper use to him.”

The allegations are indefinite and loosely drawn, but this is a defect in form and should have been corrected by motion. No objection having been taken to the pleading on this ground, a liberal construction is to be given to it, in the introduction of evidence, and it was not error to admit competent evidence as to the extent and permanency of the injury.

Did the court err in admitting the testimony of Dr. Boles as to the extent or permanency of the injury?

This depends upon whether the witness qualified himself to give an opinion. From the examination of the witness it appears he was somewhat familiar with the nature, extent and condition of the injury in its early stages or history. Knowing its early condition, and being a practicing physician, he is asked as to the extent of the injury, or if he could then, at the time of the trial, detremine as to whether or not the injury would be permanent. He answers he could form an opinion, and he gives his opinion that it would be permanent.

The rule in such case is, that before such opinion is called for, it must appear that the witness has an opinion, or is then able to form one upon the matter in question. Such qualification of the witness, Dr. Boles, is shown in the record, and, therefore, it was not error to permit this evidence to go to the jury. Railway Co. v. Bailey, 11 O. St., 333, 337 and Koons v. State, 36 O. St., 195, 200, are authority in support of our conclusion.

The principal questions in this case arise upon the charge of the court and in refusing to charge as requested by defendant below.

The court, after stating the nature of the action, proceeded to charge the jury as follows:

“The principal question that really arises in this ease is the degree of care that a person introducing modern electric machinery is required to exercise in order that the parties having a right to occupy the street the same as they have, in order that by the appliances they have, which are conceded to be deadly if one comes in contact with them; the question is, what degree of care must the party so occupying a public street in the city exercise in order to be regarded as free from negligence where a party is injured by a live wire.
“That degree of care depends upon the nature of the appliances that the party is using on the public highway. All I can say to you is that it is only ordinary care under the circumstances, but that ordinary care may reach a very high degree. Ordinary care on some occasions may be an extremely high degree of care, because of the deadly nature of the machinery that it sets to work.
“It probably will not be necessary for me to say anythingjto you in .substance on the subject of the negligence of the child. He was only required to exercise that care and judgment and skill that you would expect a child of that age to exercise. Contributory negligence is not to be attributed to an infant, who, by reason of his infancy, has not acquired the capacity and ability to take care of himself under situations of danger.
“It was the duty of the defendant to exercise a high degree of care, and a high degree of care would be only ordinary care, to protect the public against live wires falling upon the streets of the city. It was the duty of the defendant to exercise a high degree of care, and a high degree of care under those circumstances would be only ordinary care, to protect the public against the consequences .that might reasonably be foreseen by it, that a live wire of that kind might inflict upon the citizen. It must use proper material; it must use a high degree of care in making its system safe, and if it does not do that, and by reason of any want of care of that kind, child, not having reached the age of discretion, is injured on the public streets of the city by its defective system, it is liable. That is all I need to say to you on the subject of the liability of the defendant and the conduct of the plaintiff.”

Exceptions to the charge as given and to the refusal of the court to charge as requested raise the questions of law of the case, and it must be conceded at the very threshold, that the questions are new and important in the law of negligence, especially so far as decisions in our own state are concerned.

. It is either admitted in the pleadings or disclosed in the record in the case, that the Electric Railway Company, defendant below, at the time of the injuries complained of, operated an electric street railway in the city of Mansfield, Ohio, the motive power of which was electricity, conducted along and through wires suspended upon poles throughout certain streets in said city; that the wire in question was owned by said company and was attached to its main wire on East Fourth street -m said city and used for the purpose of furnishing power to drive a motor in a small manufacturing plant, and that the electric current was communicated to this wire from said main wire. That at the time of the accident and the injury to the plaintiff complained of this wire in question was broken, and the end which was attached to the main wire was charged and was hanging down one of the poles upon which it had been suspended, and the broken end was lying on a grass plot between the sidewalk and the street proper on said East Fourth street, at the corner of an alley running at right angles with said street. That the insulation on this broken wire was defective and the wire itself exposed. And further, that it had been so broken and lying on the ground for at least twenty-four hours before the accident complained of occurred. It also appears from the record that the plaintiff below was a boy seven or eight years of age and was living with his parents on said East Fourth street almost directly opposite the place where this broken wire was lying on the ground. That while playing on the sidewalk this boy came in contact with this charged wire so lying upon the grass plot and received the injuries complained of.

At the conclusion of the testimony offered by the plaintiff the defendant company submitted a motion asking the court to take the case from the jury and direct a verdict in favor of defendant. The court overruled said motion and the defendant at the time excepted. Thereupon the defendant rested its case.

Is it to be presumed from these facts alone that there was such negligence on the part of the electric company as to require it to show that the dangerous condition of its property was not attributable to its negligence, but from some defect, which in the exercise of that reasonable care and prudence proper in the case of electric wires, it was unable to discover, or some accident beyond its control? In other words, was it from unavoidable accident ?

In the case of an electric wire, in the position and condition that this one is assumed to be, the law raises a prima facie ease of negligence against the owner. As a rule negligence is not presumed, but there are cases were the maxim res ipsa loquitur is directly applicable, and from the thing done or omitted negligence or care is presumed. In our judgment this is a ease wherein that maxim applies. The rule can not be more concisely stated, in its generality, than as given in Scott v. London & St. R. R. Docks Co., 3 Hurl & Colt, 596, where the court held:

“There must be some reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation, that the accident arose from want of care. ’ ’

This doctrine has been applied to those using electricity in streets. Public policy, from sheer necessity, must require of a person or corporation using the current of electricity in high tension along highways a very high if not the highest degree of care, and this high degree would seem all the more reasonable to justify this rule of presumtive negligence in such cases. The degree of care in the nature of the case being high, and there being little danger if such care be exercised, if an accident happens there is offered a probability of the absence of that care.

In the case of Newark Electric Light & Power Co. v. Ruddy (1898), 62 N. J. Law Rep., 505, the court held:

“Proof that an electric light wire, controlled by a private corporation, and normally suspended upon poles along a public street, was trailing broken on the sidewalk, affords a presumption of negligence íd a suit against such corporation by a person injured through electric shock by contact with such wire. ‘Bes ipsa loquitur”

In that case the plaintiff, a child of eight years, picked up from the sidewalk of a public street the end of a broken wire that trailed from one of the poles on which it should have hung suspended, and sustained severe injury through electric shock. The wire was an electric light wire, under the control of the defendant. No explanation or exculpatory evidence was offered in defense.

Collins, J., on page 506, says:

“The defendant was, by law, permitted to suspend along a public street a wire charged with electricity as to be dangerous to the public if it should break and fall upon the street. This privilege entailed upon it a very high degree of care to maintain the wire intact. It was permissible to presume a lack of exercise of such care when the proof showed the wire broken and trailing on the sidewalk under conditions that rendered possible serious injury to persons lawfully there. Unexplained the presence on the highway of the charged and broken wire and the fact of injury received therefrom justified an inference of negligence in the defendant in whose -control and management it was. Such an inference has been judicially permitted even when the wire that broke received the electricity from a wire on which it fell. Haynes v. Gas Co., 114 N. Car., 203” (41 Am. St. Rep., 786; 26 L. R. A., 810).

. In the case of Haynes v Gas Co., supra, the court held:

“If a corporation is permitted to maintain electric wires in the public streets, and one of such wires is detached from a tree to which it has been fastened, and is hanging to the ground charged with a deadly current of electricity, which it received in coming in contact with the feed wire of another corporation, and a boy taking hold of the wire is killed, the corporation to which the detached wire belongs is presumed to have been negligent, and must assume, in action for damages resulting from such killing, the burden of proving that there was no negligence on its part.
“Proof that there was a live wire carrying a ’deadly current of electricity down in the public streets raises the presumption that some one failed in his duty to the public.
“Electric corporations permitted to use the public streets for their own purposes must be required to exercise the utmost degree of care in the construction, inspection, and repair of their wires and poles, to the end that travellers along the highway may not be injured by their appliances.”

In the case of Snyder v. Wheeling Electric Co., 43 W. Va., 661 (64 Am. St. Rep., 922; 39 L. R. A., 499), the court in the syllabus uses this language:

‘ ‘ There must be reasonable evidence of negligence; but where the thing is shown under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen, if those who have the management use proper care, it afford reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.
“A high, if not the highest, degree of care is exacted of operators of eleetriety, and, if a wire, charged with a deadly current of electricity, falls from its proper place of elevation above the street to the surface of the street, and there, by contact with a man lawfully passing along the highway, kills him with its current, the law raises a prima facie case of negligence. This presumption, however, is by no means final or conclusive, but may, in the absence of specific neglect connected with the incident, be repelled by evidence of a uniformly careful, prudent management, commensurate with the dangerous character of the wire, and adequate to the safety of the public. ’ ’

Brannon, J., on page 664, says:

“Suppose there is no evidence of negligence on the part of the defendant, does the mere fact that the wire fell create a prima facie presumption of negligence, sufficient, in the absence of something appearing in the ease to repeal that presumption, to supoprt the action? This involves the rule of principle of res ipsa loquitor — the thing itself speaks. A wire charged with a deadly current of electricity falls from its proper place of elevation above the street to the surface of the street, and there, by contact with a man lawfully passing along the highway, kills him with its current. Are we to presume that its fall came from some negligence of the owner, unless the circumstances of the ease or facts shown by him shall show that its fall is not attributable to his negligence, but from some defect which that reasonable care and prudence proper in the ease of such deadly wire was unable to discover, or some accident beyond his eontrol; in other words, from inevitable accident? l answer that the law raises a prima facie ease of negligence.”

In 2 Jaggard on Torts, page 864, the author says:

“A live wire is exceedingly dangerous, so that proof of contact therewith, and consequent damages makes it a complete case of prima facie negligence and throws the burden on the defendant to show that such wire was in the street- without fault on his part. Generally companies using electricity on lines along a street are charged with the highest degree of care, having due reference to the existing knowledge in the construction, inspection and repair of their wires and poles, and in the use of devices to guard against harm.”

Other authorities in harmony with the above are Ry. Co. v. Webb, 12 O. St., 475, 496; Ry. Co. v. Shields, 47 O. St., 387; The Western Union Tel. Co. v. State (Nelson), 82 Md., 293; 31 L. R. A., 572; Denver Consol. Electric Co. v. Simpson, 21 Col., 371; 31 L. R. A., 566; Western Union Tel. Co. v. Thorn, 64 Fed. Rep., 287; 12 C. C. A., 104; Leavenworth Coal Co. v. Ratchford, 5 Kan. App., 150; 48 Pac. Rep., 927.

Such being the law applicable to the case at bar, we think the court charged it correctly, and it follows as a necessary sequence, that the court did not err in refusing defendant’s request, wherein the court was requested to charge, first, “You are instructed to bring a verdict- for defendant,” and second, “If the court refuses to charge the foregoing, then the defendant requests the court to instruct the jury that the burden is on the plaintiff to prove that said wire was broken through which the current of electricity was carried from defendant’s wire through and to the hand of said child, but moreover it must appear from the evidence that defendant company had knowledge of said broken wire and defective condition, and reasonable time had elapsed within which to repair the same.”

It is contended that this child was guilty of contributory negligence. It will not be necessary to spend time on this question. It is conceded that the age of the child was seven years, which brings the case clearly within the rule laid down by our Supreme Court in the case of L. E. & W. R. Co. v. McKey, 53 O. St., 370, wherein the court held that “a child of nine years of age is not guilty of negligence if he exercises that degree of care which under like circumstances would reasonably be expected from, one of his years and intelligence,” and that “whether he used such care in a particular case is a question for the jury.”

Cummings, McBride é Wolfe, for plaintiff in error.

Douglass & Mengert, for defendant in error.

We find no error in the record and the judgment is affirmed.

Judgment affirmed.


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    JURISDICTION OF PROBATE COURT IN APPROPRIATION PROCEEDINGS.
    [Circuit Court of Mahoning County.]
    The Erie Railroad Company et al v. The City of Youngstown.
    Decided, October Term, 1904.

      Eminent Domain — Appropriation of Property by a Municipality— Necessity of Passing Resolution — Required by Section 1636-105— Jurisdiction of Probate Court.

    In a proceeding by the council of a municipal corporation to appropriate property against the will of the owner, for the purpose of extending a street, it is necessary for the council to pass the preliminary resolution, and give notice to the owners of the land as required by Section 1536-105; but the probate court before which application is made 'to assess compensation has no jurisdiction to determine whether or not the preliminary resolution so required was passed, and the notice given; the only remedy of the land owners in such case is an action to restrain the municipality from proceeding to assess compensation, and from taking possession of the property.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    The council of the city of Youngstown passed an ordinance to appropriate property of plaintiffs in error for the purpose of extending Reserve street over the railroad company’s tracks. No resolution was enacted before the passage of the ordinance, as called for in Section 1536-105 .(Original Section 2235).
   The city filed an application in the Probate Court of Ma-honing County to assess the compensation of the defendants for the appropriation of their property. The railroad company filed an answer denying the right of the city to cross the tracks, setting forth that the appropriation will unnecessarily interfere with the reasonable use of their property. This was denied by the city. *

The probate .court, after hearing the evidence, dismissed the application of the city. Error was prosecuted in the court' of common pleas, the judgment of the probate court reversed and the cause remanded for further proceedings. To the judgment ■of the common pleas court, error is prosecuted in this court.

The evidence in the probate court shows that no preliminary resolution was enacted by council and notice served upon the railway company, and also tended to show that the appropriation will unnecessarily interfere with the reasonable use of the company’s property.

The first question made is: Was it necessary for council to pass the resolution required in Section 1536-105 and give the notice as therein set forth? We think it was.

It is claimed on the part of the city that the ordinance of the city council was the appropriation of the property, and that the action of council is governed by Section 1536-132 (Original Section 2642), and no resolution is required.

Granting that the passage of the ordinance was the appropriation of the property, yet that no resolution was required, does not necessarily follow. It will be observed that Section 1536-132 is found in Chapter 4 of Division 2 .of the Municipal Code, which applies to the care, supervision and control of public streets, and the dedication, opening and vacation of the same, while Section 1536-105 is found in Chapter 2 of Division 2, which provides for the appropriation of property and specifies the manner in which compensation may be made when it is necessary to go into court for that purpose. That is, Chapter 2 provides for what shall be done by council when it is necessary to take the property of the owner against his consent, and to assess the compensation, and damages due him, by a proceeding in court. Indeed Section 1536-132 (Old Section 2642), specially provides that the proceeding for such appropriation shall be as provided in Chapter 3, Division 7 of this title. Chapter 3, Division 7, was the chapter respecting appropriation of property before the codification, and is now Chapter 2 of Division 2, the language of Old Section 2642, being no doubt by inadvertence permitted to remain.

The reason for the necessity of the passage of the preliminary resolution, and the giving of notice to the owner of the property is apparent. Council appropriates the property. It is entirely different from the action of railroad companies and other public service corporations in the appropriation of property. They are required to go into court and show, after notice to the owner and full hearing, the necessity of the appropriation. But with municipal corporations it is not so. If the owner desires to object to the taking of his property by a direct proceeding, he must do so before the council, as the council determines the matter of appropriation. Hence the necessity of the resolution and the notice that the owper may be heard before the council.

It is said the case of Tyler v. The City of Columbus, 6 C. C. R., 224, is authority for the claim that it is not necessary to pass a preliminary resolution. It is held in that case in the third paragraph of the syllabus:

“When a city council deems it necessary to condemn private property for street purposes, it must proceed under Revised Statutes, Section 2642, and no preliminary resolution such as is provided in Section 2235 or 2304 is necessary.”

There is some indication in the opinion on pages 229 and 230 that it was intended to apply to a case like the one under consideration, but it will be seen by an examination of the facts of that case, that the question under consideration was between the city and persons who had been assessed to pay the costs and expenses of opening a street, which would come under Chapters 4 and 6 of Division 2.

If the ease of Tyler v. The City of Columbus could be considered as an authority for the claim, that it is not necessary to pass a preliminary resolution when it is proposed to take property against the will of the owner, although we have the highest respect for the court making the decision, we would not1 be inclined to follow it.

We have examined the case of Krumburg v. Cincinnati, 29 O. S., 69, referred to in the ease, and we do not think it sustains the claim that no preliminary resolution is necessary under the statutes as they now are.

The next question presented is as to the jurisdiction of the probate court in the matter.

The court proceeded to enter into the inquiry as to whether or not the preliminary resolution had been enacted, and also as to the question whether or not the appropriation would unnecessarily interfere with the reasonable use of the railway property. Could it do so ? It would seem that under Sections 1536-106, 107- and 108 that all the court could inquire into was: Had the necessary notice been served in a legal manner and had five days elapsed from the date of service? If so, it was the duty of the court to set a time for the calling of a jury and the assessment of compensation.

This was the holding by the Supreme Court in the case of Railway Company v. City of Greenville, 69 O. S., 487, respecting the question as to the unnecessary interference with the reasonable use of the company’s property, and we see no reason why a different rule- should apply as to the question whether or not the preliminary resolution required under Section 1536-105 had been passed or not.

In this ease it is held that the only remedy is by a suit in equity for an injunction, and on pages 496 and 497 of the opinion it is said:

“We have said that in proceedings to appropriate for streets and alleys, etc., by municipal corporations, the council makes the appropriation by resolution, and when that is properly done, ■the next step is the filing of an application in one of the courts, in order to have compensation to the owner made by a jury in a constitutional manner. The application may be filed in the probate court, which, on such subjects, has merely statutory jurisdiction. And if it be filed in the court of common pleas, it still is a -special proceeding and strictly regulated by statute.
“There is no provision by which the railway company has a right to file an answer to the application in either of the courts. Answer to what? The application would contain the proceedings before the council, including the resolution to appropriate and the giving of the preliminary notices, and a pertinent 'description of each parcel of property appropriated, and ask for the impanneling of a jury to assess compensation. ■ An ‘answer’ to such application would present no issue on the right to appropriate. The court, on such an application, makes no order of appropriation, if the statute is followed, because Section 2238 provides that, ‘If it appear to the court or judge that such notice has been served five days before the time of the application, or has been published as provided in the proceeding section, and that such' notice is reasonably specific and certain, the court or judge may set a time for the inquiry into and assessment of compensation by a jury,’ etc. Nor is there any authority for filing a cross-petition by the railway company setting up the unnecessary interference with its property. No provision is made for the making or trial of such an issue, and the court is without authority to render a judgment upon such issue if made. In practice, counsel may instance a case or cases, where some such pleadings were allowed to be filed against the application, and an inquiry made under it. We can not find any authority for it even by implication from the statutory provisions on the subject. Even if, in the exercise of the discretion of the court, such an answer or cross-pleading can be filed, it can not be respected as a remedy, much less an adequate remedy at law. A party has no adequate legal remedy if it exists wholly within the discretion of a court. To be adequate and legal it should be one that he can invoke without let or hindrance, as the assertion of his rights.”

Sine & Kennedy, for plaintiffs in error.

8. S. Conroy, for defendant in error.

This ease, which is a very late one, would also seem to be conclusive on the question as to whether or not the preliminary resolution should be enacted by the council and notice given as required in Section 1536-105. The learned judge in the opinion distinctly points out the necessary steps to be followed where it is proposed to appropriate property against the will of the owner, and lays special emphasis on the passing of the resolution, and giving of notice, so that the owner may be heard in council, although such hearing may not be final.

The common pleas court did not err in reversing the judgment of the probate court for the reason that it had no jurisdiction over the matters in controversy, its only jurisdiction being the assessment of compensation, and the judgment of the common pleas will therefore be affirmed.


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    TRUST ESTATES AND THE DIRECT INHERITANCE LAW.
    [Circuit Court of Darke County.]
    S. A. Hostetter and David W. Smith, Executors of David Eury, v. The State of Ohio.
    Decided, December, 1904.

      Direct Inheritance Tax Law — Not Unconstitutional — By Reason of the Provision as to Appraisement without Notice — Application of this Law — To Estates Held in Trust at the Time of its Enactment— “Heirs at Law” in a Will — Mean Heirs at Law at the Time of Distribution.

    1. The provision of the Ohio Direct Inheritance Tax Law (97 O. L., 398) giving to the probate court power to order an appraisement for the purpose of fixing the tax, without giving notice to the ■executors or next of kin, is not a taking of property without due process of law, and the act is not unconstitutional on that ground.
    2. Where a will provides that “on final settlement of my estate [which was to be deferred until after the death of the testator’s widow] ■all the rest and residue thereof to he divided and distributed and paid to my heirs at law in the same proportion that the same would have been paid to them if I had died without a will,” the words “heirs at law” mean the heirs at law at the time of the distribution; and where the distribution is thereby delayed for many years, and an inheritance tax law is enacted and becomes a law in the meantime, the shares of the heirs at law are subject to said tax.
    Dustin, J.; Sullivan, J., and Wilson, J., concur.
    This case was submitted to the common pleas court upon an agreed statement of facts, to determine whether or not plaintiffs in error were liable to pay an inheritance tax on certain property devised and bequeathed by the will of David Eury, who died some twenty years ago, but whose estate was, for the most part, undistributed and in the hands of his executors at the time of the passage of the inheritance tax law, April 25, 1904 (97 O. L., 398).
   The following is said:

“Agreed Statement of Facts.
“Under the above and foregoing agreement of submission, the following facts are agreed to:
“1. That on the — day of April, 1884, one David Eury, resident of Darke county, Ohio, died, leaving a will whereby he appointed S. A. Hostetter and David "W. Smith his executors thereof; which will was, on the 12th day of May, 1884, duly admitted to probate and record in the Probate Court of said Darke County, Ohio, and letters testamentary were, on the 14th day of May, 1884, by said court duly issued to said S. A. Hostetter and David W. Smith, who thereupon duly qualified and are now, and have been ever since their said appointment and qualification, engaged in the discharge of their duties as such executors under said last will and testament of said deceased.
“2. That said will and testament of said David Eury, deceased, so admitted to probate and record, is in the words and figures following, to-wit:
“ ‘I, David Eury, of the township of York, in the county of Darke, and state of Ohio, do hereby make, ordain and publish this my last will and testament in manner and form following, that is to say:
“ ‘First. I give and devise to my executors hereinafter named, in trust, all and singular the lands and real estate of which I may be the owner at the time of my decease, and is not herein specifically otherwise devised; and also in their care all my personal estate not herein otherwise disposed of, to be by them, and the survivors of them, held to and for the uses, purposes and trusts hereinafter set forth, viz.: Out of my personal estate which may come to their hands, to pay my just debts, funeral expenses and the costs and expenses of the settlement of my said estate, I authorize them to allow my wife, Sarah Eury, during her natural life, to have, hold, possess and enjoy the following described real estate, viz.: The southwest quarter of section eight (8), the northwest quarter of section seventeen (17), of township eleven (11), range three (3) east; also, the east half of the southeast quarter of section seventeen (17) as aforesaid, township eleven (11), range three (3) east; she to enjoy during her life the issues, rents and profits of said lands, to be chargeable with all state, county, township and other taxes and assessments thereon, except extraordinary assessments for ditch and road improvements; she is not to waste or destroy timber or anything off of the lands, but to keep it in ordinary repair.
“ ‘At decease of my said wife, my executors to convey to the then surviving children of Andrew Kershner, deceased, and to the issue of such of his children as may then be dead, as the parent would have if living, the undivided one-half of the southwest quarter of section eight (8), township eleven (11), range three (3) east in York township, Darke county, Ohio, in fee simple in equal rights and in like manner and time to convey to Sarah Elizabeth Richards for life, and after her death to her children in fee simple, the undivided half of the southwest quarter of section eight (8), township eleven (11), range three (3) east in York township, Darke county, Ohio; if any of her children then be dead and left issue then living they have the share their parent would be entitled if living.
“ ‘All other lands which I may own at the time of my death, and not herein specified otherwise, I authorize my executors to sell and make deeds of conveyance to purchasers, and after the death of my wife to sell all lands which then belong to my estate, except the southwest quarter of section eight (8), township eleven (11), range three (3) east, which is otherwise specified.
“ ‘My executors shall put all monies that come to their hands in safe loans, secured by real estate, my wife to have all such interest she needs after the taxes be paid.
“ ‘My wife to have all household and kitchen furniture, stock and utensils without appraisement.
“ ‘After the death of my wife, out of the monies in my executors’ hands arising from my estate, I direct to said executors to pay the following specific legacies, viz.: To each of the chilsix hundred dollars ($600). If any of her five children should have died before this and left children, they to have the share their parent would have been entitled to if living. To Lidia Margaret Miller, daughter of Sarah E. Bertram, three hundred dollars ($300). And to Sarah E. Bertram twelve hundred dollars ($1,200). And to David W. Smith fifteen hundred dollars ($1,500). And to each of the living children and to the issue of any that may be dead of my brothers, Jesse Eury and Noah Eury, fifteen hundred dollars ($1,500). And on final settlement of my estate all the rest and residue thereof to be divided and distributed and paid to my heirs-at-law in the same proportion that the same would have been paid to them if I had died without a will. All' of the former legacies both specific and residuary to be paid after the death of my wife.
“ ‘I hereby nominate and appoint David W. Smith and S. A. Hostetter executors of this will, and hereby fully empower them and the survivors of them, to adjust and settle all and any of my business controversies that may arise affecting my estate, all claims due to or from the same as fully as I might do if I was living; and also to execute any and all deeds and conveyances requisite and proper and all other instruments whatever which may be required to fully execute and carry into effect the foregoing will, and I hereby revoke and annul all former wills by me made.
“ ‘In faith whereof, I have hereunto set my hand and seal on this the 15th day of June, 1883.
“ ‘David Eury [seal]
“ ‘Executed by the testator as for his last will and testament in our presence, and by us subscribed as attesting witnesses in his presence.
“ ‘S. S. Collins,
“ ‘John Coppess.
“ ‘Record of Wills, “D,” page 471.’
“3. That said Sarah Eury, widow of said David Eury, deceased, died on the 16th day of July, A. D., 1904.
“4. That after the payment of all debts of said deceased, funeral expenses, those of last sickness, expenses of administration and the cost of a family monument, the net personal estate left by said deceased amounted at the time of his death, to about thirty-three thousand dollars ($33,000).
“5. That pursuant to said last will and testament of said deceased, said executors thereof have held, invested, managed and controlled said personal estate so left by said deceased, and the same has increased under their management, and amounted on the 16th of July, A. D. 1904, the date of the death of said widow of said deceased, to about eighty thousand dollars ($80,-000) ; and which sum is now held by said executors for distribution under said last will and testament of said deceased. .
“6. That the real estate of said deceased, which said executors are required to sell, and to distribute the proceeds thereof under said last will and testament, is of the value of about eighteen thousand dollars ($18,000).
“7. That one of the legatees and devisees, under said last will and testament, is entitled to receive about fifteen thousand dollars ($15,000) of said monies of said estate so to be distributed by said executors, and that several more of said legatees and devisees under said last will and testament will each receive considerable more than three thousand dollars ($3,000) on such distribution.
“8. That said southeast quarter of section eight (8), township eleven (11), of range three (3) east in York township, Darke county, Ohio, specifically devised in said last will and testament is of the value of about seventy-five hundred dollars ($7,500).
“9. That said David Eury died leaving no children or their descendants him surviving; that said legatees and beneficiaries under said will are collateral kindred of said decedent.
“Upon said foregoing facts, the parties above named pray the judgment of the court whether said estate for distribution in the hands of said executors, so derived as aforesaid, is subject to the direct inheritance tax under the act of the General Assembly of the state of Ohio, passed and approved April 25th, 1904, and entitled ‘An act to impose a tax upon the right to succeed to, or inherit, property’ (97 O. L., 398-400).
“H. L. Yount,
“Prosecuting Attorney of Darke County, Ohio, for the State of Ohio.
“Anderson, Bowman & Anderson,
“Attorneys for said S. A. Hostetter and David W. Smith, Executors as aforesaid

The common pleas court found that the act applies to the personal estate in the hands of the executors for distribution, and to the proceeds of real estate to be sold by them under the provisions of the will, but that it does not apply to the real estate specifically devised by said will.

The executors excepted and prosecuted error to so much of the decree as applies to the undistributed personalty and unsold realty; and the state files a cross-petition in error as to so much of the decree as applies to the specifically devised realty.

It is claimed on behalf of the executors:

1st. That the law in force at the time of the death of Eury applies.
2d. That the act in question contains nothing to indicate that a retrospective operation was intended.
3d. That, if so intended, it would violate Section 28 of Article II of the Constitution of Ohio, which provides that:
“The General Assembly shall have no power to pass retroactive. laws, or laws impairing the obligation of contracts. ’ ’
4th. That the beneficiaries named in the' will had a vested interest in the estate at the time of the passage of the act in question, and can not be affected thereby.

Finally, it is claimed that the act is unconstitutional because it gives the probate court authority to cause an appraisement of the property at its actual value without providing for notice to the executors or next of kin.

It is first necessary to construe the will to determine when the estate vested in the beneficiaries.

The intention of the testator was, we think, manifestly, to keep the estate intact until his widow’s death; and he,"therefore, devised and bequeathed everything to his executors, excepting household goods and furniture, etc., thereby creating in them a trust to continue during the life of his widow and until final distribution.

The executors proceeded upon that view and have rendered a good account of their stewardship, the personal estate increasing from $33,000 to $80,000.

This large sum is to be distributed among certain beneficiaries, who could not with definiteness be ascertained or named prior to the death of the testator’s widow.

Under such circumstances could the several interests of the legatees be said to have vested prior to that time ? A person is said to be vested with an estate when he has ah immediate fixed right therein of present or future enjoyment.

The language of the will is:

“After the death of my wife, out of the monies in my executors’ hands arising from my estate, I direct my said executors to pay the following specific legacies (then follow certain legacies too small to be considered in applying the inheritance tax).
“And on final settlement of my estate all the rest and residue thereof to be divided and distributed and paid to my heirs at law in the same proportion that the same would have been paid to them if I had died without a will. All of the former legacies, both specific and residuary, to be paid after the death of my wife.”

We think the “heirs at law” meant by the above are the then heirs at law, viz., at the time of the authorized distribution.

This view is not" in conflict with Linton v. Laycock, 33 O. S., 128, where, in the fifth syllabus, the court recognizes -the “rule vesting legacies, bequeathed only by a direction to pay or divide, at the time fixed for the payment or division

The ease of Richey v. Johnson, 30 O. S., 288, seems to be in point. It was there held that:

Anderson, Bowman & Anderson, for plaintiff in error.

H. L. Yount and A. C. Robison, for the state.

“Tbe gift implied in the direction to divide the proceeds between the designated parties, is a gift of personalty; but as the fund could not be raised till the death of the widow, and was to be divided between persons then living, the interest of the legatees therein remained contingent till that time.”

See also Williams on Executors, 1232, and eases there noted.

The authorities cited in behalf of the executors are either cases where the interest to vest at the death of the testator is clear, or where the property devised was real estate, to which it is conceded in Linton v. Laycock that the rule above announced does not apply.

For the last mentioned reason, we affirm the holding of the common pleas court to the specifically devised real estate.

As to the point that the law is unconstitutional, because Section 9 hereof gives the probate court power to order- an appraisement (for the purpose of fixing the tax) without giving notice to executors or next of kin, we think this is not taking property without due process of law, because Sections 8 and 10 provide for a review of all matters before the probate court and for appeal. These, together with Section 5848, Revised Statutes, give ample remedy, and provide “a day in court” for all who may consider themselves aggrieved.

With these views as to the time of the vesting of the legacies, and the provision of the act in question as to appraisement, it is not necessary to consider the other questions raised in the case.

The decree of the common pleas court will, therefore, be affirmed.


text:
    PAROL AGREEMENT AS TO LEASE.
    [Circuit Court of Columbiana County.]
    Paul Metzger v. Ellis Roberts.
    Decided, October Term, 1904.

      Lease — Evidence as to Contemporaneous Parol Agreement as to— When Admissible.

    Upon an action to collect rent, evidence is admissible for the purpose of showing that a contemporaneus parol agreement was made at the time the written lease was executed by which the lease was only to be used in organizing a corporation, and transferring the same to it, and under no circumstances to be a valid lease between the original parties.
    Cook, J.; Laubie, J., and Burrows, J., concur.
    The action below was to recover an installment of rent due upon a lease of real estate from plaintiff, Paul Metzger, to defendant, Ellis Roberts, in Salem, this county.
   ■' The lease is in the ordinary form and demised a vacant factory, known as Salem Lock Works.

To the petition of plaintiff defendant set up two defenses: First, a general denial; and second, that at the time of the signing and delivery of the lease, a parol contemporaneous agreement was entered into by and between plaintiff and defendant, by which the lease was not to be a binding contract between plaintiff and defendant, but was to be used by defendant in organizing a corporation for the manufacture of automobiles in the premises of plaintiff, Metzger, and in securing subscriptions of stock to such corporation, and if the necessary amount of stock was procured and the corporation organized, then said defendant, Roberts, was to assign and transfer the lease to the ■corporation so organized; but, if defendant, Roberts, failed to procure the stock and organize the corporation, then such lease was to be of no effect whatever, and furthermore never was to be effective between Metzger and Roberts personally at any time; and the defendant asked that the lease be canceled and held for naught.

Upon trial before the common pleas court this contemporaneous parol agreement was permitted to be proven over the objection and exception of the plaintiff, Metzger. The cause was tried to the court, a jury being waived, and the court dismissed the petition of plaintiff, as it was fully justified in doing, if the evidence of the.parol contemporaneous agreement was admissible.

The term by the provisions of the lease was to commence on the first day of December, 1902, and end on the 30th day of November, 1907, and it is said this evidence directly contradicted the terms and conditions of the written lease. Did it do so?

Evidently the object of the pleader in pleading the contemporaneous parol agreement was not to contradict the written lease, but was for the purpose of showing that no contract or agreement had ever been entered into that was binding between these parties.

In the 21 American and English Encyclopedia of Law, page 1097, it is said :

‘ ‘ One class of apparent exceptions to the general rule includes those cases in wheh parol evidence is received to show that an instrument, which purports to be a written contract, is in fact no contract at all. In these cases, the extrinsic evidence is not received to vary of contradict the instrument, but to show that no binding obligation ever existed.”

The text is supported by numerous decisions from a large number of states as well as from federal courts, and they all seem to justify the statement of the author.

In the case of Ware v. Allen, 128 U. S., 590, it is held:

“Parol evidence is admissible in an action between the parties, to show that a written instrument executed and delivered by the party obligor to the party obligee, absolute on its face, was conditional and was not 'indeed to take effect until another event should take place.”

It is said by counsel for plaintiff that, conceding this is the general doctrine in the states, and in the federal courts, yet it is not the rule in Ohio. It is true that all the text-writers, in their announcement of this rule, do not include the state of Ohio as supporting it, and some of them distinctly state that this is not the doctrine held by the Supreme Court of our state. An examination of the authorities in Ohio will show that in nearly all the cases, if not all of them, in which the question has been discussed, arose on promissory notes, it is true some of them between the original parties, and there is no doubt but what the lines are clearly drawn upon the admission of parol evidence in such cases, but we do not think they ¡have gone to the extent claimed by counsel in argument.

In Beecher v. Dunlap, 52 O. S., 64, which is the strongest case upon the subject, it is held:

“Evidence of a parol agreement, made at the execution and delivery of a note, by which it is not to be operative, unless, within a given time, the makers are able to realize a given sum of money from property purchased, and for which the note was given, is not competent.”

By reference to the opinion on page 65, which was by the court, it is said:

“On the trial an exception was reserved to the admission of evidence offered by the defendants, to the effect that, by an oral agreement, the notes were not to be transferred, ‘and were to-be null and void,’ unless within a year the makers should be able to make $1,750 net from the manufacture and sale of the patent right.”

From the whole case it would seem to decide that, in a case of a valid note given as such, parol evidence should not be admitted to show that it should 'become invalid upon the happening of certain conditions; which is not the case under consideration.

In the case of Morris v. Faurot et al, 21 O. S., 155, it was held:

“A brings an action, as indorsee, against B and others, as indorsers upon, a blank indorsement of a non-negotiable promissory note, made after maturity. The defense is that the plaintiff, who was a stranger to the note, at the request of the makers, and for the makers, paid the amount of the note in full to the defendants as holders, and thereby discharged the same; that after such, payment, the defendants, without indorsement, delivered the note to the plaintiff, for the use of the makers; that after such delivery the defendants, at the request of the plaintiff, wrote their names on the back of the note (the indorsement sued on) with an express understanding between the parties, that such indorsement was to be used by the plaintiff as evidence to the makers that he had paid the note for them, and for no other purpose. Held, that the admission of parol proof of such defense is not a violation of the rule of evidence, that parol testimony is inadmissible to explain, contradict, or vary the terms of written instruments.”

Judge Mcllvaine, in the opinion, says:

“That parol testimony is inadmissible to contradict or vary the terms of written instruments, and that the contract of an indorser of a promissory note, whether the indorsement be in blank or otherwise, is within the meaning of that rule, as general propositions of law are true, may be admitted for the purposes of this ease. But the question in that case, as we understand it, was not as to the terms of the contract, or the nature or extent of the indorser’s liability, but whether there was any contract at all out of which any liability could arise.
“A blank indorsement which evidences a contract, the terms of which can not be contradicted or varied by parol testimony, is one made in the usual course of business, for the purpose of transferring the title of or giving credit to the paper. The' defense in this case was that no transfer of title was intended, nor was credit intended to be given this note by the transaction, but that it was paid and discharged by the makers through and by the plaintiff, who was acting for them and at their request.
“The object and tendency of the testimony objected to were to prove this defense — to show that the note itself, as well as the indorsement thereon, at the time of delivery to the plaintiff were nullities, and not evidence of subsisting obligations. We can see no reason why such proof upon such an issue between the parties to the transaction should not be allowed.”

Prom these considerations we are of opinion that the court did right in admitting the evidence.

There is another view of the ease that leads to the same result.

The second defense was in fact a cross-petition, seeking to cancel the pretended agreement on the ground that it was fraudulent as against the defendant, and to permit its enforcement would be a fraud upon bim. There can hardly be any question but what the evidence would be admissible upon that issue. Possibly that issue, being an equitable one that went to the merits of the case,.should have been tried first, .but the parties without objection-tried the whole case together to the court, a jury being waived, and they having so done, if the action of the court was right in admitting the evidence upon the equitable branch of the case, no error was committed.

A. W. Taylor and W. II. Spence, for plaintiff in error.

L. F. Farr, for defendant in error.

The judgment of the court of common pleas will be affirmed.