author: HENRY, J.

text:
    BENEFICIAL ASSOCIATIONS — INSURANCE—WITNESSES.
    [Cuyahoga (8th) Circuit Court,
    June 11, 1907.]
    Marvin, Winch and Henry, JJ.
    Order of Americus v. Charlotte McDowell.
    1. Attaching Death Benefit Certificate Sued on and Allegation that Insured was in Good Standing Sufficient.
    Where a petition attaches as an exhibit the' certuicatés sued upon, it is not necessary to set forth the charter of the association which issued the certificate, its constitution and bylaws, or the application for membership or medical examination of the insured, and an allegation that the insured was a member in good standing makes unnecessary any averment that he had conformed to all the rules and regulations of the society.
    2. Substance of Inquiry not Exact Language of Questions Asked Sufficient on Impeachment of Witness.
    It is not necessary that the questions asked of an impeaching witness be in the exact words of the questions asked the witness sought to be impeached, if the substance of the inquiry is in each case the same.
    [Syllabus by the court.]
    Error.

      F. C. Scott, for plaintiff in error.

      Simth, Taft & Arter, for defendant in error.
   HENRY, J.

This proceeding in error is prosecuted to reverse a verdict and judgment recovered by Charlotte McDowell, upon a death benefit certificate issued to her husband by the plaintiff in error. So many errors in this voluminous record are here alleged that we can only give our conclusions without discussion. The petition below alleges that the Order of Americus is a fraternal beneficiary association, incorporated under the laws of the state of Pennsylvania, and licensed to do business in Ohio; the answer admits that it is a fraternal beneficial association, and makes no answer to the allegations of its corporate capacity except such as is embraced within the general denial with which it concludes. This statement in the pleadings presents no issue upon the question of corporate capacity.

It is further alleged that the petition states no cause of action, for the reason that although it attaches .as an exhibit the certificate sued cn and makes the same a part of the petition, it fails to set forth the charter, articles of association, constitution and laws, application for membership and medical examination, which are all made a part of death benefit contracts of such organisations by 97 O. L. 421, Sec. A. This provision of law may well be applicable without rendering the petition demur-rable. It states substantially the effect of the contract, to-wit: that the husband of the defendant in error was insured by the plaintiff in error, in her behalf.

It is also claimed that the petition is defective in that it fails to allege that Evergreen Council No. 78, located at Cleveland, Ohio, and of which the decedent was a member, had any connection with the Order of Americus. We think, however, that the certificate attached to and made a part of the petition, supplied this defect.

It is further urged that there is no averment in the petition that the decedent, John H. McDowell, performed his part of the contract; to the allegation that the defendant paid his dues and assessments should have been added, it is urged, that he had conformed with all the rules and regulations of the order. The petition, however, alleges that he was a member in good standing in the order; this, we think, sufficiently meets the objections made thereto.

The same is true of the lack of averment of any consideration rendered by the decedent in the making of the contract.

It is further urged that the evidence was not confined to the averments of the petition in that the book of laws of the Order of Americus was received in evidence. We think it was perfectly proper for the plaintiff to show the laws in order to show that her husband was a member in good standing, and to show the terms of the insurance.

Complaint is further made that the plaintiff’s evidence was insufficient to make a case for the jury, in that the articles of association of the Order of Americus were made a part of the contract of insurance by statute, and though shown to be in existence, were not offered in evidence. We do not think that this was an essential item of evidence in view of the recitals in the certificate on which plaintiff sues.

No evidence, it is contended, was produced of the payment of any dues or assessments by the decedent, nor that the fee of the medical examiner was ever paid, as provided for by Sec. 34 of the book of laws, nor that McDowell became a member of the Order of Americus, in accordance with the rules of said society, nor that he ever accepted the certificate or made any contract whatever.

These were all matters of fact, as to each of which we find the bill of exceptions does disclose evidence. Another error urged is in the admission of large parts of the testimony of Philip J. Mooney, who was called by the plaintiff as a witness, to impeach one of the witnesses produced by defendant below regarding statements in conversation between them. No proper foundation, it is claimed, was laid for such questions as the witness was called upon to answer. Our examination of the record does not sustain this claim. It is true that the questions asked by plaintiff below of her witnesses in rebuttal were not always in the identical words used in cross-examining plaintiff in error’s witness whom she sought to impeach, but the substance of the inquiry in each case was the same.

The letter of Mrs. McDowell to the Order of .Americus dated June 2,1904, was admissible in evidence and ought not to have1 been rejected, but we can not see from a perusal thereof how the plaintiff in error can possibly have been prejudiced by its exclusion. The questions asked Mr. Fouts, in regard to the action of the subordinate lodge as to the payment of Mrs. McDowell’s claim; the testimony in regard to the sending of flowers to the funeral — by members of the lodge and their own attendance thereat were all incompetent and should have been excluded, but in view of the charge of the court with respect to these items of evidence, and especially in view of the jury’s answers to interrogatories, we see no prejudice to the plaintiff in error in the admission of this testimony.

Mr. Fouts’ description of the roll boob and general characterization of its contents did not tend to contradict the document itself, but merely to identify it, and was not erroneously admitted.

The cross-examination by the plaintiff below of her own witness, Frank P. Fouts, is complained of, but it lay entirely within the discretion of the court. It was improper to permit Mrs. McDowell to testify that she learned after paying the $5 that the person to whom she paid it was an officer of the order, but no exception was taken at this point; the preliminary questions to which exception was reserved, not being prejudicial. We pass over, without mention, many other objections to the introduction and exclusion of testimony.

Divers objections are presented to the requests to charge made by plaintiff below and given as requested. We pause only upon the words “clear and satisfactory” in requests No. 11 and to the repetition of the same phaseology in the general charge, as follows:

‘ ‘ If payment were essential under the contract proof of nonpayment must be clear and satisfactory. ’ ’

No question was raised as to the fact of payment by Mrs. McDowell to one Cruse at the time the certificate was by him delivered to her in her husband’s absence. The sole question in this action was whether Cruse was an authorized representative of the Order of Americus. The testimony clearly and satisfactorily shows that he did represent the order in some capacity and that he was held out by the local lodge as having authority to deliver certificates and collect payments, as the jury specially found. Under these circumstances we do not think that the jury could have been misled by the expression ‘ ‘ clear and satisfactory” instead of “preponderating.”

The court’s charge to the jury with respect to defendant’s second defense undertook to detail in substance the facts relied on, to show that McDowell died while in the violation of law, and we think the statement so made was substantially correct. The allegation of error in this behalf, is, we think, not well taken.

In weighing the evidence with regard to this defense, it is altogether possible that our judgment would disagree with that of the jury below, but we do not find that their conclusions are so palpably unsupported by the evidence as to justify us in setting it aside.

The newly-discovered evidence upon which the motion for a new trial was in part founded is not of such a nature, being merely cumulative, as to require that relief. We find no error either in this respect or in granting leave to plaintiff below to file an amended petition after verdict, to conform with the proof, as no such pleading has in fact been filed.

Finding no reversible error in the record, the judgment is affirmed.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    ELEVATORS — MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    June 11, 1907.]
    Marvin,) Winch and Henry, JJ.

      Hollenden Hotel Co. v. Joseph Sandrowitz, Admr.
    1. Failure to Inspect Elevators not Per Se Negligence.
    Failure of an employer to inspect an elevator so as to ascertain its condition and safety is not per se a ground of recovery.
    2. Duty of Servant to Examine Elevator Before Using.
    The duty of a servant to use ordinary care for his own safety, requires of him more than a passing glance to discover whether or not the appliance he is using is defective.
    [Syllabus by the court.]
    Error.

      Kline, Tolies <& Goff and Seaton & Peine, for plaintiff in error.

      E. P. Walther, E. C. Schwan and C. N. Sheldon, for defendant in error.

      Affirmed, no op. Sandrowitz v. Hollenden Hotel Co. 80 O. S. 739.

   HENRY, J.

David Katz, a scullion in the employ of the Hollenden Hotel Company was killed on the morning of May 9,1905, in an elevator used by the hotel company’s employes. The verdict and judgment recovered by the administrator of his estate against tbe hotel company, for wrongfully causing bis death, are here sought to be reversed.

Two employes claim to have witnessed the accident. Charles Houghes, a colored man and Sam Davidovitch, a Hungarian fellow countryman of Katz. Their versions of the accident contradict each other. Hughes says that he and Katz were on the same floor of the hotel in front of the elevator which had been left slowly moving upward by another employe who stepped out of it just before Katz tried to get aboard it. As the platform of the elevator ascended above the level of the floor Katz sought to clamber upon it, but was so slow in his movements that although he had plenty of time, he was caught between the floor of the car and the top of the doorway leading into the shaft. There is no dispute but that when extricated he was firmly wedged in between the platform of the elevator and the wall of the shaft above the said doorway; his body from the hips downward was below the elevator and upward was in the elevator. He was so crushed at the hips that he shortly died.

Davidovitch claims to have been standing upon an upper floor looking down the shaft at the time of the accident. He testifies that he saw Katz get into the elevator and start it up; that while ascending the elevator shook, and although he tried to stop it, the floor tipped to such an extent that Katz was spilled off the edge and caught in the manner before described.

Davidovitch appears to have made no disclosure of what he saw to his fellow-employes, his employer, the coroner or anyone else until this lawsuit brought it out.

As between Hughes and Davidovitch, the former seems to us to be more credible, but, recognizing that the jury is the tribunal established and appointed by law to determine controverted questions of fact, we can not substitute our judgment in place of the jury’s verdict upon this question.

The defects relied on appear to have been certain alleged faults in the construction or maintenance of the elevator’s mechanism, which caused the platform to shake and tip, and to prevent the car from being readily stopped on such occasions, ample: that the space between the car and the shaft was too Many defects or faults are alleged in the petition, as for ex-great, and the play between the guides attached to the elevator and the posts up and down which the guides ran was too much. The evidence is far from clear as to just how the tipping of the elevator or the difficulty of stopping it, would result from any of these alleged defects. There is, however, considerable testimony to the effect that these difficulties with the operation of the elevator had in fact been encountered from time to time, and •that Katz’s superior had promised him that it should be repaired, and subsequently assured him, after certain repairs had been made, that the elevator was all right and might be used again.

' We are not prepared to say from an examination of the evidence that the jury were not authorized to infer the actual existence of these difficulties and their recurrence on the occasion of this accident. If they existed, it is manifest that they resulted from some defect or fault in the construction or maintenance of the elevator, embraced within the comprehensive allegations of the petition in that behalf.

It is complained, however, that much of the evidence of similar occurrences, prior to this accident, was rendered irrelevant by reason of the fact that they happened, if at all, when the elevator was in a different location in the building from which it was meanwhile removed, and substantially rebuilt. It is also complained that some of the occurrences testified to were so remote in point of time from the accident under consideration, that they could not properly be proved. It is therefore alleged that the court erred in overruling objections to and motions for excluding, these items of evidence.

In making these rulings the learned judge apparently did not have the means of deciding positively just when and wherc these previous similar occurrences had taken place, and in his rulings and charges upon this subject we fail to find any reversible error.

It is true that the evidence in this case was permitted to have a wide scope and we think it might well have been much simplified by admitting only such of the evidence as affirmatively appeared to be competent when offered under the strict application of the salutary rule of Findlay Brew. Co. v. Bauer, 50 Ohio St. 560 [35 N. E. Rep. 55; 40 Am. St. 686], the syllabus reads:

“In an action by an employe against his employer for damages resulting from an injury received in operating a machine, caused by its defective construction, the defect being charged to the negligence of the employer, it is competent to prove that, on a former occasion, while it was being operated by another, the machine worked in a manner similar to when the plaintiff was injured. But such evidence is only competent to prove the defective character of the machine and the employer’s knowledge of the fact; it is not competent to prove actionable negligence on the part of the employer at the time the plaintiff was injured; and the jury should be so instructed at the time it is received. ’ ’

On the other hand the court might with propriety have so exercised its discretion as to admit, instead of exclude, the similar though not identical section of side post up and down which the elevator guides ran.

We do not, however, find reversible error in respect to any of the matters thus far discussed.

Complaint is made, however, of the admission of evidence that subsequent to the occurrence of the accident to Katz notices were posted on the elevator forbidding its use by employes, and that prior to that no such notices were posted up. This line of testimony, should, of course, have been excluded. We are not clear, however, that any prejudice arose in this case from error in admitting this evidence and we do not reverse upon that ground.

More serious questions are met with regard to the giving of plaintiff’s requests to charge, numbers 10 and 16. Although there is no allegation in the petition of any failure of the hotel company to inspect its elevator, request No. 10 was given as follows:

“It was the duty of the defendant to exercise ordinary care to see that said elevator was reasonably safe, and it was the duty of defendant in the exercise of ordinary care to inspect said elevator so as to ascertain its condition and safety; and its fail ure to do so would be negligence. ’ ’

The rule which counsel evidently had in mind while preferring this request was, that, there being a duty to inspect, want of knowledge of a continuing defective condition of the elevator would not suffice to excuse the hotel company from responsibility for such defects, if any, as in fact existed; but to say that a failure to inspect was negligence might well mislead the jury to infer that such failure would, of itself, afford ground for recovery in this case.

Eequest No. 16 is given as follows:

“David Katz would have the right to assume that the elevator in which he was riding was reasonably safe in the absence of any knowledge of any defects in said elevator on his part. He would be bound in the exercise of ordinary care to look out for his own safety, but he would not be bound to search for defects; and if the defects were such that he could not discover the same by a passing glance — if you find that there were defects, from the evidence — it would not be negligence on his part if he did not discover the same, and he would not be deemed to have assumed the risk of being injured by the same.”

This is clearly not the law; an employe is indeed bound to exercise ordinary care to look out for his own safety, but it can not be said as a matter of law, on the facts here presented, that this duty is discharged when he has sought by a passing glance to discover defects that menace him. For error, therefore, in charging the jury as requested by plaintiff below, in requests Nos. 10 and 16, judgment of the court of common pleas is reversed, and the cause remanded for a new trial.

Marvin and Winch, JJ., concur.


author: MARVIN, J.

text:
    ADMINISTRATORS AND EXECUTORS.
    [Cuyahoga (8th) Circuit Court,
    May 24, 1909.]
    Marvin, Winch and Henry, JJ.
    (Winch, J., not sitting.)

      Frank T. Edgar v. Siegel Schock, Admr.
    Claim Against Administrator for Board and Care of Decedent by Member of Family for Whom Services Rendered not Sustained.
    In an action against an administrator to recover for the board and care of his intestate, brought by a son-in-law in whose family intestate lived, a contract for such board and care is not made out by evidence that a witness saw intestate pay plaintiff $100 with the statement that it was on account, and a statement to another witness that he intended to make his home with plaintiff and had made arrangements for his board and keep while with him.
    [Syllabus by the court.]
    Error.

      John A. Thompson, for plaintiff in error.
    P. D. Metzger and Green & Bennett, for defendant in error.

      Affirmed, no op., Edgar v. Schock, 85 O. S. 448.

   MARVIN, J.

The parties here are as they were in the court below. Suit was brought by the plaintiff for the board and care of the defendant’s intestate for six years next preceding the death of such intestate. Upon the trial the court, at the close of the plaintiff’s evidence, sustained a motion made by the defendant to direct a verdict in the defendant’s favor, and it is this action of the court which is complained of here as a ground of reversal.

The evidence shows that the decedent was the father of the plaintiff’s wife, that he lived in the family of the plaintiff for the time charged in the petition, and that he had a room and his board and such care as he required from the plaintiff and his wife, during all that time, and that he paid to the plaintiff some money during that time, that the amount so paid was much less than the board and care of the decedent was worth. But there is no evidence which shows that a contract was ever entered into between the decedent and the plaintiff by which the plaintiff was to be paid for such support and care.

The plaintiff’s wife testifies that she saw her father transfer to her husband $100 at one time while he was so living with them, and that he said to her that he had paid this to her husband on account. One Charles Beman testifies that while the decedent was living with the plaintiff, he, the decedent, said to the witness, that he intended to make his home with Mr. Edgar’s folks, and as Mr. Edgar had nothing for him to do, he made arrangements to pay him for his board and keep while he was there, and he said it was because he felt more satisfied to live with his daughter May, Mrs. Edgar, than with any of his children.

These two items of evidence come the nearest to showing that there was a contract between the decedent and Edgar for board and support of any which was introduced, and these come far short of showing what is required in order that one who boards and cares for another member of his own family may require compensation therefor. The case of Hinkle v. Sage, 67 Ohio St. 256 [65 N. E. Rep. 999], is so much like the present case that the principle there announced clearly governs this case. In that case suit was brought by a daughter-in-law against the executors of the will of her husband’s father, for care and support and nursing during the latter years of the father’s life, as in this ease the suit was brought by the son-in-law for the care and support of his wife’s father during the latter years of his life.

In the case just referred to the syllabus reads:

“In an action to recover compensation for services, when it appears that the plaintiff was a member of the family of the person for whom the services were rendered, no obligation to pay for the services will be implied; and the plaintiff can not recover in such case unless it be established that there was an express contract up on the one side to perform the services for compensation, and upon the other side to accept the services and pay for them.
“Such contract may be in writing or it may rest entirely in parol, and it may be proved by direct or indirect evidence; but to entitle the plaintiff to recover, the contract must be established by clear and unequivocal proof.”

Counsel for plaintiff in error call our attention to the case of John P. Skelton, In re, 11 Circ. Dec. 372 (20 R. 704). This case was decided at the January term, 1900, of the circuit court of Hamilton county, and to the extent that the circuit court finds that it is in conflict with the ease of Hinkle v. Sage, supra, we must follow the latter case, first, because it is a decision of the Supreme Court of the state, and. secondly because it was decided two years later than the Skelton case.

Applying the principles enunciated in the Hinkle case the court was entirely justified in directing a verdict for the defendant and the judgment is affirmed.

Henry, J., concurs.


text:
    LANDLORD AND TENANT — REMAINDERS.
    [Cuyahoga (8th) Circuit Court,
    September 26, 1907.]
    Marvin, Winch and Henry, JJ.
    Sarah Ann DeLong v. Charles W. Horner et al.
    Property Leased by Life Tenant to Remainderman in Consideration of Support, Payable in Money Rental.
    Where the owner of a life estate leases the property during the term of her life to the remainderman in consideration of his promise to support and maintain her, and such promise has become incapable of literal fulfillment in a manner tolerable to her, the court may decree an annual money rental in lieu of such suppoi't.
    [Syllabus by the court.]
   HENRY, J.

We find iu the evidence no ground for recission of this contract because of the alleged incapacity of the plaintiff to understand that she was conveying a fee simple remainder in her homestead to her newly married son-in-law and daughter and reserving to herself a life estate. The concurrent arrangement, however, by which the young folks were to live with and support her and run the farm during her lifetime, has proved to be incapable of literal fulfillment in a manner tolerable to the plaintiff. The ample powers of courts of equity in such cases are herein fortified by the defendants’ consent that the decree may take the form of a money allowance to the plaintiff, in lieu of the mode of support provided in the contract. Since she has a life estate in the farm she is in equity entitled to the net annual rental value of the farm without the improvements made by the defendants. In view of the run down condition of the farm at the time she relinquished it, we find from the evidence that its net annual rental value, without the subsequent improvements, would be $1.50 per acre and the plaintiff is awarded judgment at that rate, per acre, for the full period since she has resided elsewhere, and at a like rate henceforth, so long as and from time to time when plaintiff shall so reside elsewhere, payable quarterly on October 1, 1907, and at equal quarterly intervals thereafter. The degree will also carry compensation to her in the amount decreed in the court below for the live stock appropriated by but not assigned to the defendants. The payments now accrued shall be payable within thirty days from this date, without interest, and they, together with such as shall hereafter accrue, are made a lien upon the entire interest of defendants and each of them, save that the defendants may as far as their remainder interest is concerned, be granted a right of way for railroad purposes through their property, free of said lien; and the respective rights of the parties for the purpose of a division of any entire compensation that may be jointly received by said parties for such grant, whenever joined in by the plaintiff, are hereby found to be as follows, viz: value of the plaintiff’s interest is one-third, and the value of the defendant’s interest is two-thirds.

This court retains jurisdiction of this cause for the purpose and to the extent only of enforcing its decree.

Marvin and Winch, JJ., concur.


text:
    PURE POOD LAWS.
    [Cuyahoga (8th) Circuit Court,
    May, 1909.]
    H. Y. Scanlon v. State of Ohio.
    1. Averment that Accused Sold “Half Pint, More or Less” of Adulter, ated Maple Syrup Sufficient.
    In a prosecution for selling adulterated maple syrup, a charge that the accused sold a package containing "a half pint, more or less,” is sufficient, as the offense consists in selling a package, whether great or small.
    2. Copy of Label not Necessary In Affidavit In Prosecution for Sale of Adulterated Maple Syrup.
    It is not necessary in the affidavit charging such offense to set out in full a copy of the label on the package, hut it is sufficient to state that it had on it the word "maple.”
    3. Proof that Maple Syrup Sold Contains Anything not Obtained by Evaporation of Maple Sap Sustains Conviction.
    The evidence is sufficient to warrant a conviction for selling adulterated maple syrup if it shows that the substance sold contained anything not produced fay the evaporation of pure sap from the maple tree.
    [Syllabus fay the court.]
    ERROR.

      T. J. Boss and T. Quigley, for plaintiff in error.

      John A. Cline, for defendant in error.
   MARVIN, J.

Scanlon was prosecuted before a justice of the peace upon an affidavit charging that he sold to one C. II. Waid one half pint, more or less, of an adulteration of maple syrup that was not then and there the unadulterated product produced by the evaporation of pure sap from the maple tree, and that the said package containing said adulterated maple syrup sold as aforesaid, had on it the word “maple” as a part of the name of said syrup, contrary to the statute in such case made and provided, and against the peace and dignity of the state of Ohio.

The result of the prosecution was that Scanlon was found guilty.

Upon proceedings in error taken to the court of common pleas by Scanlon this judgment was affirmed, and the present proceeding is prosecuted for the purpose of reversing the judgment of the two lower courts.

It is claimed, first, that the affidavit upon which the prosecution was based was insufficient. The sufficiency of this affidavit was challenged before the justice of the peace both by motion to quash and by demurrer, both of which were overruled. It is said that the quantity charged to have been sold, which in the affidavit is averred as “one half pint, more or less,” is insufficient. The claim is not well taken. It was not necessary that the quantity should have been specified at all. The language of the statute, which is See. 4200-66 E. S. (See. 12765 G. C.), reads:

“Any person who shall offer for sale or sell or deliver any adulterated syrup * * * maple syrup in any package having the word ‘maple’ or any compounding of this word, as the name or part of the name of the syrup, shall, upon conviction, be punished,” etc.

The offense, then, consists in the selling of a package, whether great or small, of the adulterated product, labeled in violation of the law.

To say that the words “a certain quantity to-wit, one half pint, more or less, ’ ’ do not charge that anything is in the package is denying the plain import of the words. If one say3, “I own land, an acre, more or less,” when he owns no land, states what is not true, and if one being examined as a witness, under oath, where the fact of his ownership of land was material to the issue on trial should say, in answer to the question, “Do you own any land, and if so, how much?” “I do own land, an acre, more or less,” when he owned no land at all, would be guilty of perjury. This is a sufficient answer to the objection made as to the quantity.

It is said, however, that the label should have been set out in full instead of simply averring that package sold had on it the word “maple” as a part of the name of the said syrup. This objection is not well taken. The accused was sufficiently advised by this language of what claim was made against him, and the affidavit was sufficient, under Sec. 7215 E. S. (Sec. 13581 G. C.), providing what defects in an indictment are not fatal, the last clause of which section (speaking of what shall not be fatal to an indictment), reads: “Nor for any other defect or imperfection which does not tend to the prejudice or substantial rights of the defendant upon the merits. ’ ’

There was no error in overruling the demurrer to this affidavit, nor in overruling the motion to quash.

It is urged, however, that the facts as shown by the bill of exceptions did not warrant the conviction. It was shown that the package sold had upon it the words, “Ohio Maple Syrup” or had the words “Western Reserve Ohio Maple Syrup.” As to which of these labels was upon the package we are unable to say because the package is not before us. We have, however, assumed, that it was once attached to the bill of exceptions, as we find a string upon the bill which would indicate that something had been attached, and we are not disposed to refuse to consider the bill because it seems by some accident to have been, probably inadvertently, and perhaps by the judge of the common pleas court, taken from the bill. We find from the evidence that the plaintiff in error had upon some of his packages the words “Ohio Maple Syrup,” and upon others “Western Reserve Ohio Maple Syrup.” Either of these labels would be a violation of the statute, provided the article sold was not pure maple syrup or pure maple sugar.

The statute defining what shall constitute maple sugar and maple syrup is Sec. 4200-66 R. S. and reads:

1 ‘ That maple sugar, or pure maple sugar, and maple syrup, or pure maple syrup, shall be the unadulterated product produced by the evaporation of pure sap from the maple tree. ’ ’

Section 4200-62 R. S. shows and provides that “any substance purporting to be maple syrup or maple sugar, not made in compliance with See. 1 of this act 4200-62 shall be deemed an adulterated substance of maple syrup and maple sugar.

We have given no consideration to the weight of this product nor to the analysis of it further than to ascertain from tire evidence of the plaintiff in error himself that it was not produced by the evaporation of pure sap from the maple tree. He says that by his process he obtained pure syrup from the maple tree, but he says that there was combined with it a product of the sugar cane which he calls “Sucrose.” 'Whether it is as good as pure syrup or pure maple sugar, or is better or worse, is a matter of indifference so far as this case is concerned. It was not made up by the evaporation of the pure sap of the maple tree. That being so, the sale of it labeled as this was shown to be, was a violation of the statute, and the court was justified in finding the accused guilty, and the action of the court of common pleas in affirming the judgment of guilty was correct, and that judgment is affirmed.

Winch and Henry, 33., concur.

Marvin, Winch and Henry, JJ.

      Marvin, Winch and Henry, JJ.


text:
    EXEMPTIONS — JUDGMENTS—REVIVOR.
    [Summit (8th) Circuit Court,
    April 30, 1907.)
    Winch, Henry and Giffen, JJ.
    H. W. Thompson v. Clement Schnader et al.
    1. Revivor Dates from Final not Conditional Order.
    Where a conditional order of revivor is made, but the language of the court in making it is clearly prospective as regards the establishment and effectiveness of the revivor, the revivor will date from the final order and not from the conditional order.
    2. Lien of Revived Judgment Dates from First Day of Term at Which Made not Term When Asked.
    Where a motion for revivor is filed during one term of court and the final order granting revivor is made during the succeeding term, the lien of the revived judgment will date from the first day of the second term.
    3. Judgments not Dormant Until Five Years from Date Judgment Rendered.
    Judgments do not become dormant until five years from the date they are rendered.
    4. Homestead Exemption Personal to Cotenant not Available to Purchaser at Partition Sale.
    The right to claim homestead exemption is a personal matter and where a judgment lien has attached to a cotenant’s interest in a piece of property which is afterward sold upon partition proceedings, the purchaser can not, as against the judgment lien holder, claim the exemption which the cotenant might have asserted.
    [Syllabus by the court.]

      L. S. Pardee, for plaintiff.

      Felmly & Castle, C. T. Grant and J. M. Paulsen, for defendants.
   HENRY, J.

This is an action to enforce the collection of a cognovit judgment recovered by plaintiff against defendant, October 8, 1903, for $202.90, and $7.81 costs. Execution was immediately issued and a levy made on the real estate described in the petition, but the sheriff’s return shows that the property remained unsold because of prior liens. The real estate in question consisted of defendant’s undivided interest which he had inherited in his father’s farm, and the prior liens aforesaid consisted of his widowed mother’s dower interest and such claims against the unsettled estate of his father as might require the sale of the realty to satisfy them. The defendant did not at the time know of the rendition of the cognovit judgment, nor of the issuance and levy of execution thereon, and of course he made no demand for his exemptions.

The judgment at length became dormant, and thereafter, by motion filed in the original ease, the plaintiff sought a revivor thereof. A conditional order was allowed April 6, 1900, but notice thereof was not served on the defendant, and an alias order was therefore issued May 11, 1900, notice of which was duly served. The final order of revivor was made July 23, 1900. No execution was thereafter issued on this revived judgment until July 10, 1905, more than five years after the conditional order of revivor was entered, but less than five years after the final order was made. The execution then issued was returned ■ unsatisfied. Meanwhile a partition suit commenced by another joint heir of the real estate in question had gone to judgment and said property was sold July 1,1905, to one Ripley, one of the defendants herein. The proceeds were paid and divided, the defendant, Sehnader, receiving his full share, amounting to about $500. The receipt of this payment was the first actual knowledge that he had of the judgment and sale in partition. The plaintiff had not been made . a party to this partition suit, and he now claims that the partition sale did not affect his rights, which of course is true.

The defendants, however, claim, first, that plaintiff’s judgment had again beeome dormant by the lapse of five years between the revivor in 1900 and the execution in 1905; second that the judgment defendant, having been, ever since 1893 at least, a married man, living with his wife in premises not the property of either of them, was, during all the time between 1902 and the said partition sale in 1905, entitled in lieu of homestead to his entire interest in said real estate, the same being worth not more than $500.

It is contended on behalf of the plaintiff, first, that the revivor became effective when the final order was made, and not when the conditional orders, or either of them, were entered, nor yet on the first day of either of the terms of court at which said revivor proceedings were had, and that the execution in 1905 was therefore issued before the five years had elapsed. Second, that the defendant, Sehnader, having made no demand or selection of his alleged exemption acquired no right to hold this particular property exempt; that in any event he voluntarily relinquished his right when he permitted the property to be sold, and received his share of the proceeds; that his right to exemption in lieu of homestead is in any case fully satisfied by the fact that he then had and still has an equitable interest of at least $500 in real estate in Cleveland to which his wife holds the legal title; and finally that Ripley, the purchaser at partition sale, having bought subject to the lien of plaintiff’s judgment, can not be subrogated to or to otherwise assert Sehnader’s mere personal right to claim exemption therefrom in lieu of homestead.

As to the time when the revivor became effective, Sec. 5367, R. S. (See. 11646 G. C.), authorizes a procedure in the same manner as provided for reviving actions before judgment, i. e., by See. 5150 (See. 11403 G. C.). Where the revivor is on motion it would seem that, at least where personal service of the conditional order is had as in this case, the revivor may be construed to date from the time of making that order, subject, however, to its being abrogated if cause is shown why the judgment shall not stand revived. The conditional orders and writs were, however, in this instance modeled more nearly upon the phraseology of Sec. 5153 R. S. (Sec. 11406 G. C.), providing for service by publication, and the language of the court therein is so clearly prospective as regards the establishment and effectiveness of the, revivor, that we are constrained to hold that no revivor was adjudged by the court, in this case, prior to the final order therefor.

It is said, therefore, that as the lien of a judgment not rendered by confession, nor in an action commenced at the same term, dates from the first day of the term under See. 5375 R. S. (Sec. 11656 G. 0.), so here, the motion for revivor having been filed in one term and the final order reviving the judgment being rendered at the ensuing term, the lien, as thus renewed, should date from the beginning of the latter term and not from the day in term when the order was made. It is doubtful whether the analogy thus invoked could in any event be reconciled with the language of Sec. 5375 R. S. However that may be, Sec. 5380 R. S. (Sec. 11663 G. 0.) distinctly provides that a judgment does not become dormant through failure to sue out execution until “five years from the date of judgment.” This means five years from the day in term when it is rendered. We conclude therefore that this judgment was not dormant at the time of the partition sale.

As to the claim of exemption, it should be noted, first, that pending the proceedings for revivor the attorney for the judgment debtor told the opposing attorney that his client, Schnader, claimed his exemption in the land in question, and that a re-vivor would be useless, and plaintiff apparently acquiesced in this view until after the partition sale. As a matter of fact, however, Schnader, when that representation was made, was not entitled to any exemption in lieu of homestead, for he and his wife were then, and for two years thereafter, living in a homestead owned by her in Cleveland. But at the time of the partition sale, neither had a homestead, and Schnader owned no property except what is now claimed to have been exempt. He made no demand of exemption at the time of the partition sale, nor was any necessary, for the sale was not being made to satisfy any judgment debt of his. Nor did he waive his exemption. The sale was made neither by him nor at his instance, but by law, nor was he called upon to protest against the taking of his exempt property, for he received its lawful equivalent without diminution. He, however, is not now asserting and has no longer any interest to assert his exemption in this property. But since it was a personal privilege of his which he might have asserted, or not, as he saw fit, which he never did assert, after it accrued or when it was competent for him to assert it, and which he certainly could not alienate or delegate, it is impossible to hold that the inchoate personal right of exemption, when it accrued, not only superseded the judgment lien that had already attached, but survived the alienation of the property to which that right pertained.

The facts in this case are thus to be distinguished from those of Genell v. Hirons, 70 Ohio St. 309, 324 [71 N. E. Rep. 709], and plaintiff may take a decree.

Winch and Giffen, JJ., concur.


text:
    PARTITION — PARTNERSHIP.
    [Lake (7th) Circuit Court,
    September 30, 1907.]
    Laubie, Cook and Henry, JJ.
    (Judge Henry, of the 8th circuit sitting in place of Judge Burrows.)
    Frank C. Moody v. Albert E. Powers, Trustee.
    Partition of Lands Held in Cotenancy by Dissolved Partnership Decreed.
    Where all the partners ask for the termination of a partnership and a winding up of its business, the court will treat the residuum of real estate, after paying all partnership debts, as held by the partners in cotenancy and decree a partition.
    [Syllabus by the court.]
   HENRY, J.

In 1887 D. Powers & Sons, Henry L. Lamb and Everett Case, of Lansingburg, N. Y., and Ralph K. Paige, of this county, entered into a partnership agreement “to buy, develop and sell certain lands,” near the mouth of the. Grand river, to which said Paige and one Elbert E. Powers, of said firm of D. Powers & Sons, were to take title as trustees. As such, Paige undertook to attend to the purchase, care and sale of such lands as might be agreed upon by the parties from time to time; and Powers, with the other parties, were to give such assistance as might be required.

D. Powers & Sons agreed to finance the undertaking. They had a half interest; Paige a third interest, and Lamb and Case each a twelfth.

In 1894 Paige having failed, the plaintiff herein, with the consent of the other partners, took his plaee in the copartnership, “in all respects” and assumed all obligations to D. Powers & Sons that had accrued against Paige’s interest in the enterprise, amounting, as agreed among the parties, to $16,965.23, payable in installments beginning April 1, 1895, and ending April 1, 1900, with interest.

The new agreement incorporated all the provisions of the old one, except as expressly modified, and provided, “that said lands, as well as any other lands purchased by said parties under said original memorandum of agreement, shall be held, managed and controlled by Albert E. Powers, sole trustee for all the parties interested.” It further provided for the application of proceeds, “upon the sale of any of said lands by said trustee.”

In 1903, Powers, as such trustee, sold a large part of the partnership lands to the Lake Erie, Alliance & Wheeling Coal Company, controlled and owned by the defendant, the Lake Shore & Michigan Southern Railway Company, and it is this sale which the plaintiff here seeks to impeach for want of power to make the same without his concurrence and for gross inadequacy of the price paid. An accounting is also sought and various charges sought to be imposed by the trustee upon the trust are resisted and complained of. The case comes into this court on appeal from the judgment of the court of common pleas.

The power to hold, manage and control expressly conferred upon the trustee, is of itself, under the strict construction which must be given in such eases, insufficient under the authorities, to authorize a trustee to make sales. Blandin v. Mayer, 58 Texas 422; Watson v. Cleveland, 21 Conn. 542; Ure v. Ure, 185 Ill. 216 [56 N. E. Rep. 1087]; Gray v. Parke, 162 Mass. 584 [39 N. E. Rep. 191].

Construing, however, the whole agreement and the refer-enees therein contained to sales of lands by the trustee, we think the intent and purpose of the parties, as expressed therein, was to commit to the trustee full authority to consummate the express object of the agreement in this behalf, and we can not say from the evidence in this case that the land in question was sold at so inadequate a price as to give rise to any presumption of fraud in the exercise of the power granted. On the contrary, taking all the evidence together, it is far from clear that the trustee’s action was not an entirely reasonable exercise of his discretion.

The discrepancy of 100 feet between the nominal frontage of the property measured at right angles to its side lines, and the actual frontage following the meandering of the Grand river, is, in our opinion, immaterial. There was no mistake upon this subject, and both parties to the sale knew exactly what they were doing, the description of the frontage being the same that had been used in the copartnership agreement, to which plaintiff was a party.

The main transaction being thus, in our opinion unimpeachable, nothing remains but the matter of accounting between the parties. Under the agreement with them, we think that the trustee is not authorized to make any charges for personal services rendered and such charge as he has made, must be stricken from his account. The commission paid to F. J. Jerome for negotiating the sale is attacked upon the ground that he was, a,t the time, general counsel for the grantee, a fact of which the trustee was kept in ignorance. If the evidence sustained this claim, we should agree with plaintiff’s contention, but examination of the evidence leads us to the conclusion that Mr. Jerome’s relations to each party were well known to the other. Having earned his commission by consummating the sale, there is no reason in law or morals why it should not be paid to him as agreed.

"With regard to the mortgage which was an encumbrance upon land that Paige had agreed to contribute to the enterprise, the plaintiff claims that he is entitled to credit for having paid it. Without going into the intricacies in this question it is sufficient to say that it was Paige’s duty to have relieved the property of this encumbrance, a duty which he had partially discharged when his place in the copartnership was taken by-plaintiff. In the language of the new agreement plaintiff has taken “the place of Ralph K. Paige in said copartnership in all respects, and accounts due from Frank C. Moody to D. Powers & Sons on account of moneys advanced for the benefit of his interest have been adjusted and agreed upon, and the sum was on the first day of April, 1894, $16,965.23.”

The plaintiff is thus in no position to claim that he has succeeded to the benefits but not to the burdens of his predecessor in the copartnership; he can not shift this burden from his own shoulders to those of the copartnership.

The computation of interest upon the advances made by D. Powers & Sons for plaintiff and the credits to be made for previous sales made by the trustee, seem to have been erroneously made by the trustee. The provisions of the contract in this behalf are not very clear, but they seem to mean and to have been interpreted by the parties themselves to mean that both principal and interest thereon when in default shall bear interest at the rate of 8 per cent per annum, payable semiannually. "When, however, an installment of interest accruing at 8 per cent falls into arrears, simple interest at the legal rate of 6 per cent may be computed thereon. Credits in this account should be made to the plaintiff for his part of the undivided and unexpended proceeds of all sales made by the trustee. The application of these credits should be first to the satisfaction of the interest accrued upon interest; secondly, the interest upon the principal, and thirdly, to overdue installments of principal, if any, and fourthly, to installments of principal not yet due, together with accrued interest. Upon the subject of counsel fees charged by the trustee and expenses of Mr. Lamb, one of the copartners representing him at the trial, and the costs in this case, we think that they are entirely proper, and that they should be paid out of the trust fund and thus be borne by the parties in the ratio of their respective interests therein.

In employing an attorney to defend the trust from the attack Upon his administration thereof in the matter of this sale, the trustee was acting nú thin Ms lawful powers, unless such attack were well founded. That the controversy has extended to matters of accounting, not strictly in defense of the trust, is not a matter which we can weigh with nice balance in apportioning the expense of the whole litigation when it does not appear that the trustee has been wilfully unjust or dilatory in the matter.

Upon the question of the partition desired by the plaintiff as to the remaining lands, it is claimed by the defendant that under the rule in Ohio, lands are to be deemed as having been equitably converted into personalty, and therefore, not the subject of partition. Whatever may be the doctrine with regard to partnership property under other circumstances, we are perfectly clear that in this case, where all the parties asked for a termination of the partnership and a winding up of its business, the court is authorized to treat the residuum of real estate, after paying all partnership debts, as held by the partners in cotenancy. We can see no reason whatever for holding that because a partnership has in fact existed, the rule as to partnership property should still be applied when it ceases to exist. The partition will, therefore be decreed.

Laubie and Cook, JJ., concur.


text:
    PLEADING — TRIAL.
    [Cuyahoga (8th) Circuit Court,
    November 18, 1907.]
    Marvin, Winch and Henry, JJ.
    Mrs. Albert Bray v. T. D. Brown et al.
    1. Default not Set Aside for Amendment of Petition by Erasure of Words Ordered Stricken Out.
    The amendment of a petition, without notice to defendant, by the erasure of certain words, after the court has ordered them stricken out, is not such an irregularity as to furnish grounds for setting aside a judgment rendered upon such petition after the defendant became in default.
    2. Default Judgment Set Aside at Subsequent Term by Petition Only.
    A default judgment alleged to have been fraudulently secured, can not be set aside at a subsequent term by motion; the application must be by petition.
    3. Jury Unnecessary to Assess Damages by Default in Actions Ex Delicto.
    Where an action is ex delicto and the defendant is in default of an answer or pleading and the plaintiff appears and submits his case to the court upon the petition and evidence, the court has power to fix the amount of damages without the intervention of a jury.
    [Syllabus by the, court.]

      J. A. Fenner, for plaintiff in error.

      J. J. McCormick,-for defendants in error.
   HENRY, J.

The original action was begun in the court of a justice of the peace whence it was appealed to the court of common pleas. There Mrs. Bray filed her petition, November 19, 1906, to re-csover damages for injury to household goods, caused by the negligence of the defendants in whose custody, as warehousemen, the same had been placed. A motion to strike from her petition words indicating that she had prevailed in the justice’s court was granted February 8, 1907, and on February 13, 1907, she was permitted to and did amend her petition by erasing therefrom the words previously ordered to be stricken out. This was done without any notice of the application having been given to the defendants, and without refiling the petition. The defendants then had no pleading on file, nor had they filed any answer or demurrer when, on March 25,1907, a day in the January term, the following order was entered upon the journal:

“This cause'came on to be heard on the petition and evidence, the defendant being in default of answer or demurrer, and was submitted to the court; on consideration thereof, the court find for the plaintiff and assess her damages in the sum of one hundred and fifty dollars ($150). It is therefore considered that said plaintiff recover of said defendants her said damages and also her costs herein. Judgment is rendered against the defendants for their-costs herein.”

Nothing further was done in the ease until the April term, when a motion to vacate said judgment was filed on April 11, 1907. Said motion came on for hearing in the July term of said court, and was granted July 26, 1907. The grounds alleged for said motion were:

“Said judgment was secured here erroneously on the part of the plaintiff unknown to defendants, in that, without consent of or notice to defendants, she procured an order to, and did amend ber petition upon which said judgment was based; that said judgment was obtained in a material part by false testimony on the part of plaintiff, which ordinary prudence on the part of defendants could not have guarded against or anticipated; that the amount of unliquidated damages were ascertained and fixed without the intervention of a jury. ’ ’

This proceeding in error was begun to reverse the order of the court of common pleas granting said motion and vacating said judgment.

As to the first of said grounds, it is suggested that the rules of the common ple'as court required notice to the opposite party of plaintiff’s application to amend her petition, but no such rule of the common pleas court is brought into the record by the bill of exceptions; we are, therefore left entirely to conjecture as to its existence. If we could presume in support of the action of the court below in ‘vacating its own judgment that if it found irregularity in a violation in this respect of its own rules, of which it would of course take judicial notice, still we fail to see how such an irregularity in respect in obtaining the judgment which was subsequently vacated. The judgment can not be deemed to be in any sense the effect or consequence of such irregularity. It is true that the defendants were not in default after the granting of the motion to the petition until the objectionable matter was stricken therefrom, as required by the court. This requirement could, however, be complied with by the plaintiff at any time without leave of court or notice to the defendant, by the filing of an amended petition. The plaintiff preferred to and did accomplish the same object in another and perhaps irregular manner, but of the action taken, whether regular or irregular, the defendants were bound to take notice precisely as of the filing of an amended petition.

For a month and twelve days after the petition was thus amended, no further action was taken. The defendants became in default for answer, and the cause being thereafter taken up for trial and disposed of, such disposition was in no wise affected by the prior irregularity, if any there was.

As to the second ground assigned in the motion to vacate, towit: that the judgment “was obtained in a material part by false testimony on tbe part of the plaintiff,” it is sufficient to say that that averment, if true, would amount to neither more nor less than an allegation of fraud practiced by the successful party in obtaining the judgment. This is a ground for vacating a judgment as provided by paragraph 4, See. 5354 R. S. (Sec. 11631 G. C.). It can not, however, be asserted after term by motion, but only as provided by Sec. 5358 R. S. (Sec. 11635 G. C.), by petition (Ralston v. Wells, 49 Ohio St. 298 [30 N. E. Rep. 784]). The application in this case was not by petition but by motion, and hence this ground could not properly be asserted or considered.

The third ground of the motion to vacate, towit: “that the amount of unliquidated damages were ascertained and fixed without the intervention of a jury,” is founded upon Sec. 5130 R. S. (See. 11379 G. C.), which provides that:

“Issues of fact arising in actions for the recovery of money only, or specific real or personal property, shall be tried by a jury, unless a jury trial be waived, ’ ’ etc.

Section 5081 R. S. (Sec. 11329 G. C.), provides that “allegations of value, or of amount of damages, shall not be considered as true by failure to controvert them. ’ ’

By Sec. 5204 R. S. (See. 11469 G. C.), it is provided that:

“In actions arising on a contract the trial by jury may be waived by the parties, and in other actions with the assent of the court, in the following manner:
“1. By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney. ’ ’

The action below was not an action ex contractu but an action ex delicto founded upon a breach of the common law duty of a bailee for hire. It falls, therefore, within the class of ‘ ‘ other actions” where a jury may be waived by the parties ‘‘with the assent of the court.” This distinction, it may be said parenthetically, appears to have been made by the legislature to the end that the court may not, without its assent, be compelled to undertake the assessment of damages in actions of tort, where the elements of damages are incapable of mathematical calculation in terms of money.

The question of irregularity hinges upon whether a waiver of jury trial in the manner provided by Sec. 5204 E. S., is to be inferred from the journal entry of judgment in this ease, as already quoted. We do not think that Sec. 5320 E. S., (Sec. 11593 G. C.), providing how damages may be assessed upon default can have any application to authorize the assessment of damages by the court in a case where the constitution guarantees a jury trial, and such jury trial has not been waived.

In Bonewitz v. Bonewitz, 50 Ohio St. 373 [34 N. E. Rep. 332; 40 Am. St. Rep. 671], the first two paragraphs of the syllabus are as follows:

“1. A party may waive his right to a jury trial by acts, as well as by words.
“2. And where, in a case of which the court of common pleas, having jurisdiction of the parties, may also, by consent, acquire jurisdiction to try the cause without a jury, the record shows that the parties appeared, and neither demanded nor waived a jury, but without objection submitted the cause to the court upon the pleadings, evidence, and argument of counsel, it is not error for the court to proceed to final judgment in the case. ’ ’

The journal entry of judgment in this ease, expressly discloses that “the cause came on to be heard on the petition and evidence, the defendant being in default of answer or demurrer, and was submitted to the court. ” This was an affirmative act by the party or parties before the court amounting to a waiver of a jury and the choice, instead, of the trial judge as the tribunal for the assessment of damages. The journal does not disclose whether both parties were present, or only the plaintiff; but in either case the submission by all present was complete, when made effectual by the assent of the court. Such assent is implied in the very fact of the court’s finding for the plaintiff, assessing her damages and rendering judgment. There was thus, no irregularity in ascertaining the amount which plaintiff was entitled to recover without the intervention of a jury.

Inasmuch therefore as the record affirmatively shows that the judgment complained of was not secured by either of the alleged irregularities relied on, the court of common pleas was without authority to vacate its own judgment after the term at which it was rendered, and for its error in so doing, its order of vacation will be reversed, and this court proceeding to render the judgment which the court below should have rendered, overruled the motion to vacate, thereby restoring the original judgment.

Marvin and Winch, JJ., concur.


author: WINCH, J.

text:
    DRUGS AND DRUGGISTS — WARRANTY.
    [Cuyahoga (8th) Circuit Court,
    January 20, 1908.]
    Marvin, Winch and Henry, JJ.
    E. H. Hechler v. Make-Man Tablet Co.
    Implied Warranty by Manufacturer in Sale of Tablets to Druggist that They are not Deleterious to Health.
    In a sale by the manufacturer to a druggist of tablets represented to be valuable as a specific for nerve troubles and a first-class nerve tonic, there can be no issue made as to whether the tablets were in fact a specific for nerve troubles, but there is an implied warranty that they are not worthless or deleterious to health.
    [Syllabus by the court.]
    Error.

      George A. Grost, for plaintiff in error.

      Carr, Stearns & Chamberlain, for defendant in error.
   WINCH, J.

These proceedings in error were brought by the plaintiff in error for the reversal of a judgment against him recovered in the common pleas court by the Make-Man Tablet Co., in an action where said company sued on a contract for the sale to Hechler of three gross Make-Man tablets at the rate of $48 per gross, f. o. b. Cleveland. Delivery of the tablets as agreed and performance of all the terms of the'contract by the company were alleged and failure of Hechler to pay as he had agreed.

Hechler admitted making the contract and receiving the tablets, and among other defenses alleged that the tablets were represented to him to be valuable as a specific for nerve troubles and a first-class nerve tonic, whereas in truth and in fact they were not, but on the contrary were worthless and deleterious to health. He alleged that he shipped the goods back to the company. This return of the goods was so delayed, as shown by the evidence, that it is doubtful if it worked a rescission of the contract, but is mentioned because of the offer of Hechler to prove that the tablets were worthless.

On the trial, Hechler offered to show that the tablets were worthless and actually deleterious to health, but the trial judge ruled out all such evidence, holding him to the rule of caveat emptor.

In this we think the trial judge erred.

Not only was it competent to show that the goods were worthless, as excusing his failure to tender them back within a reasonable time, but we think that the peculiarities of the druggist’s business made this and other evidence offered relevant as establishing a valid defense.

In the course of the opinion in the case of Davis v. Guarnieri, 45 Ohio St. 470, 492 [15 N. E. Rep. 350; 4 Am. St. Rep. 548], Judge Owen uses the following language:

“The public safety and security against the fatal consequences of negligence in keeping, handling and disposing of dangerous drugs, is a consideration to which no dealer can safely close his eyes. An imperative social duty requires of him that he use such precautions as are liable to prevent death or serious injury to those who may, in the ordinary course of events, be exposed to the dangers incident to the traffic in poisonous drugs. ’ ’

In the case of Thomas v. Winchester, 6 N. Y. 397 (57 Am. Dec. 455), it was held:

“A manufacturing druggist selling poisonous drugs labeled as harmless, by himself or his agent, is liable in damages to a person who, without carelessness on his part, and relying on the erroneous label, takes such drug, as a medicine, on the ground of breach of public duty, and whether the injured person is an immediate customer of the defendant or not.”

In the course of the opinion in this case Ruggles, C. J., said:

“The defendant’s duty arose out of the nature of his business and the dangers to others incident, to its mismanagement.”

In the case of Willington v. Oil Co. 104 Mass. 64, it was held that where a manufacturer of oils for illumination, knowing that naptha is explosive and dangerous, sells it to a retailer of illuminating oils, who, in ignorance of its dangerous character, sells it to a customer equally ignorant, who uses it in his lamp, causing an explosion, the manufacturer is liable for the damage resulting therefrom.

The same rule applies to the manufacture of a hair wash by a chemist or druggist. George v. Skivington, L. R. 5 Ex. 1.

Many similar cases are collected in the note to Howes v. Rose, 55 Am. St. Rep. 251.

In the case of Jones v. George, 42 Am. Rep. 689, it was held that the business of a druggist is such that in the very nature of things the druggist must be held to warrant that he will deliver the drug called for and purchased by the customer.

The Supreme Court of Michigan carried the doctrine of implied warranty even further, and applied it to so common an article of food as bread, in the case of Sinclair v. Hathaway, 57 Mich. 60 [23 N. W. Rep. 459; 58 Am. Rep. 327], where it was held:

“A baker impliedly warrants the wholesomeness of bread which he sells at a discount to the peddler who distributes it. ’ ’

From the eases cited and others like them we draw the conclusion that in the case of the sale of the tablets here involved there can be no issue made as to whether the tablets were in fact a specific for nerve troubles; doctors would doubtless disagree with regard to well known remedies on that point; but we think there was an implied warranty that they were not worthless, bread pills, for instance, or deleterious to health. The offer to prove in this case was that the tablets being heavily coated with plaster of paris, were insoluble and produced inflammation in the alimentary tract and might lead to death. We think the druggist should have been permitted to make this defense, if he could substantiate it.

For error in ruling on evidence the judgment is reversed.

Marvin and Henry, JJ., concur.


text:
    CONTRACTS — FRAUDS, STATUTE OF.
    [Cuyahoga (8th) Circuit Court,
    November 6, 1907.]
    Marvin, Winch and Henry, JJ.
    Elita E. Peck v. Elizabeth D. Osborn.
    Receipt for Portion of Purchase Money Sufficient Writing to Relieve from Operation of Statute of Frauds.
    A receipt for a sum of money, which recites that it is to apply upon the purchase price of property at a certain street and number is sufficient to take the contract out of the operation of the statute of frauds.
    [Syllabus by the court.]
   HENRY, J.

In tbis appeal a motion for judgment was made by tbe defendant at tbe close of the plaintiff’s evidence upon tbe ground that tbe writing by which tbe plaintiff endeavors to prove tbe contract for tbe sale of real estate herein sought to be specifically enforced is insufficient under the statute of frauds. We took tbis motion under advisement to see if tbe case is not substantially ruled by a former decision of tbis court rendered in February or March of tbe January term, 1902, in tbe case of Power v. Heinze, No. 3332, affirmed, no opinion, 74 Ohio St. 502. Upon examination of that case we find that writing then held sufficient presented practically tbe same difficulties as that in tbe case now before us, save that tbe mutual promises to purchase and sell were there more explicit. Tbe location of tbe property and tbe amount to be paid therefor were very meagerly expressed in tbe receipt for tbe down payment, which was tbe writing relied on. In holding a similar receipt sufficient now we do not go beyond that case except in inferring mutual promises to buy and sell from the express mention of a “consideration” or “purchase price,” upon which tbe down payment is to apply and inferring that Mrs. Osborn who receipted for tbe money is the seller and Mrs. Peck from whom the money is expressed to have been received is the purchaser. In making these inferences we but follow the same rule of reasonable presumption that was applied in Power v. Heinze, supra. The same rule of construction was thus applied in the case of Eppick v. Clifford, 6 Colo. 493, which is on all fours with the case before us. Although there is some contrariety of authority on this question, we conceive that our Supreme Court has settled the rule in this state. We will exclude all evidence offered by the plaintiff except that adduced to identify the parties and prove the execution of the following document, and such further evidence as the plaintiff may care to introduce to identify the property mentioned therein with that described in the petition. Upon production of this evidence the motion for judgment will be overruled.

The writing referred to is as follows:

‘ ‘ CLEVELAND, Ohio, Feb. 4,1907.
“$50.00
“Received of T. T. Lewis, account E. Peek,
Fifty.. Dollars to apply on purchase price of 1840 E. 82d St.
“ Consideration $8375.00.
“Elizabeth D. Osbobn.”

Marvin and Winch, JJ., concur.


text:
    EVIDENCE — PHYSICIANS AND SURGEONS.
    [Cuyahoga (8th) Circuit Court,
    November 18, 1903.]
    Marvin, Winch and Henry, JJ.
    Clifford Ward v. Cleveland Elec. Ry.
    Physician Cannot Testify as to His Directions Being Carried Out.
    A doctor can not testify that a hypodermic injection was given from the fact that he directed a nurse to give it and was told that it had been given.
    [Syllabus by the court.]
    Error.

      Hart, Canfield & Crohe, for plaintiff in error.

      Sqiiire, Sanders & Dempsey, for defendant in error.
   HENRY, J.

In this proceeding in error a reversal is sought of the judgment rendered upon a verdict for the defendant in an action for damages for personal injuries alleged to have been sustained by the plaintiff in error while a passenger on one of the cars of the defendant in error, and through the latter’s negligence. The sole defense relied upon was malingering, and the logic of the verdict is that the plaintiff sustained no injury whatever.

Among other errors complained of is the refusal of the court to exclude a part of the testimony of Dr. Carl Y. Schneider, a witness on behalf of the defendant, who testified as follows, at pages 180 and 181 of the bill of exceptions:

“Re-Direct Examination by Mr. Boyle.

“Q. Tell us something about this sterile hypo, what is that ? A. Simply a sterile hot water.
‘1Q. And medical property about sterilized hot water more than any other? A. No, sir.
“Q. What object did you have in prescribing sterilized water for him? A. I prescribe sterilized water when a patient is apparently in pain without any cause.
“Q. That was given by hypodermic syringe? A. Yes, sir.
“Q. What part of the body? A. The nurse probably gave it in the arms.
“Q. What effect did the sterilized or distilled water have on the patient ? A. Quieted the patient.
“Q. What conclusion did you arrive at when he had been uneasy before, and after that went to sleep? A. I naturally came to the conclusion that the pain was imaginary.

“Re-Cross Examination by Mr. Hart.

“Q. Doctor, did you give this hypodermic injection? A. No, sir.
“Q. Did you see it given? A. No, sir.
‘ ‘ Q. Then you don’t know whether it was given ? A. Yes, sir, I do.
“Q. Then you don’t know only what somebody told you? A. Yes, sir.”

Plaintiff moves that the testimony of the witness as to the administration of the hypodermic injection be excluded and withdrawn from the record. Motion overruled; to which plaintiff then and there excepted.

This motion should have been granted. The evidence objected to was clearly shown to be mere hearsay, and was, therefore, incompetent; inasmuch as it bore directly upon the main issue of the case, it could not fail to influence the jury in a manner highly prejudicial to the plaintiff.

For this error, and this alone, judgment of the court of common pleas is reversed, and the cause remanded for a new trial.

Marvin and Winch, JJ., concur.


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    AIDERS AND ABETTORS — CRIMINAL LAW.
    [Cuyahoga (8th) Circuit Court,
    November 18, 1907.]
    Marvin, Winch and Henry, JJ.
    State of Ohio v. Frank Nowak.
    Aider Cannot be Convicted in Same Trial Acquitting Principal.
    An aider and abettor can not be convicted in the same proceeding and by the same jury which acquits his principal.
    [Syllabus by the court.]

      N. D. Baker, city solicitor, for plaintiff.

      J. A. Thompson, for defendant.
   HENRY, J.

This proceeding in error is brought to reverse the judgment of the court of common pleas, setting aside the judgment of the police court of the city of Cleveland, whereby Frank Nowak was convicted of aiding and abetting extortion by a special constable, one Anton Novak. The affidavit under which both men were arrested and tried charges the offenses defined by Secs. 0909 and 6804 ft. S. (Sees. 12380 G. C.). The accused were jointly tried, the principal being acquitted and the aider and abettor convicted.

The manifest anomaly of this situation is here sought to be justified by the city solicitor, who contends that there is no necessary contradiction therein. It is suggested that the jury’s verdict may well have proceeded upon some assumption not affecting the merits of the transaction, as, for example, that Anton Novak’s appointment as special constable was defective, or that he asked unwittingly the excessive fees which he exacted. If the jury believed either of these things to be true, their acquittal is explained by their inability to find that he was ‘ ‘ An officer * # * who knowingly asks,” etc., within the meaning of the extortion statute. This, they could do, it is urged, concurrently with finding that the defendant in error here aided and abetted the perpetration of the extortion which was actually committed.

It is undoubtedly true that an aider and abettor may be convicted without previous trial of the principal, but we do not think it is true that an aider and abettor can be convicted in the same proceeding and by the same jury that acquits his principal.

Section 6804 R. S. (Sec. 12380 G. C.), provides that “whoever aids, abets, or procures another to commit any offense may be prosecuted and punished as if he were the principal offender.”

This defines a substantive offense, but it is not utterly independent of the principal’s offense, whatever that may be. No one can aid another to commit an offense, if that other does not commit the offense. An act may be ever so reprehensible morally without being criminal, unless a statute defines it as such. The statute defining the offense of aiding and abetting makes the existence of that offense depend upon the actual perpetration of some other offense by the person who is aided and abetted. If the principal is the person who is not guilty of any offense, or if, in other words no offense has been committed, then there can have been no aiding or abetting thereof.

We find no error in the judgment of the court of common pleas and the same is affirmed.

Marvin and Winch, JJ., concur.


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    BANKRUPTCY — INSOLVENT DEBTORS.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Marvin, Winch and Henry, JJ.
    Anna Clark Murphy v. Cleveland & Sandusky Brew. Co.
    Collection of Claim Abandoned by Trustee in Bankruptcy.
    A trustee in bankruptcy may abandon a claim due the bankrupt, but there must be some evidence of such abandonment beyond a possible motive for it, before a creditor of the bankrupt, not mentioned in the schedule, can collect such claim for his own benefit.
    [Syllabus by the court.]
    Error.

      Herman. Preusser, for plaintiff in error.

      Squire, Sanders <& Dempsey, for defendant in error.
   WINCH, J.

Botb parties having submitted the cause to the court by the motions made at the close of the evidence, the court was thereby clothed with the functions of a jury, and the verdict directed for defendant should not be set aside, unless clearly against the weight of the evidence. First Nat. Bank v. Hayes, 64 Ohio St. 100 [59 N. E. Rep. 893].

The only issue of fact raised by the pleadings was whether the trustee in bankruptcy had abandoned the dividend on the shares of stock in the defendant company which had been transferred to it. This dividend was declared August 1,1903. When it was payable does not appear. Plaintiff brought her suit against Barrett and garnisheed the brewing company August 13, 1903, twelve days after the dividend was declared, but whether before or after it was payable, does not appear. This twelve days interval, therefore, is of no weight in determining whether the trustee had abandoned the dividend.

The fact that all of Barrett’s personal debts had been paid and a surplus turned over for the payment of his partnership debts would furnish a motive for the trustee, were he to abandon this dividend in the face of a claim against it by one of Barrett’s personal creditors, such as plaintiff is, but we can not reason from motive to act in the absence of proof of acts tending to show abandonment. Motive explains action, but it does not prove it.

The objection to evidence offered that plaintiff had no knowledge of the bankruptcy proceedings when she brought this suit was properly sustained. Upon the issue that the trustee had abandoned the dividend, the trustee's knowledge of plaintiff's claim and of the dividend was important, but the plaintiff’s knowledge was immaterial.

The fact that the schedule did not show plaintiff’s claim is of no weight. Had it shown said claim this might have been more reason for the trustee’s abandoning the dividend to the claimant.

The evidence of the refusal of the trustee to become a party to this ease and of its motive to quash service upon it is of some weight upon the issue of abandonment. It was the only evidence thereof offered in the case. The trial judge held this evidence insufficient to show abandonment and we are unable to say that he was clearly wrong in this. The pleadings show that plaintiff had knowledge of the bankruptcy proceedings within one year of the adjudication therein, and it may bé that the trustee preferred, and had a right to prefer that the plaintiff make proof of her claim before him and, upon her failure so to do, that he might use the dividend for the benefit of the partnership creditors.

Our sympathy is with the plaintiff, but the law seems to be against hex*.

Judgment affirmed.

Marvin and Henry, JJ., concur.


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    COURTS — ERROR.
    [Cuyahoga (8th) Circuit Court,
    December 9, 1907.]
    Marvin, Winch and Henry, JJ.
    Alois Zupanic v. Collinwood (Vil.).
    Transcript and Bill of Exceptions from Mayor's Court Authenticated by Official Seal.
    A transcript and hill of exceptions prepared for the purpose of reviewing a judgment of conviction in a mayor’s court must be authenticated by the official seal of the mayor.
    [Syllabus by the court.]

      Error.

      F. C. Friend, for plaintiff in error.

      E. H. Tracy, for defendant in error.
   WINCH, J.

Plaintiff in error was convicted before the mayor of Collin-wood of violating an ordinance of said village making it unlawful to keep open on Sunday a room in which on other days of the week intoxicating liquors were sold, furnished and given away as a beverage.

He filed a petition in error in the common pleas court to reverse said judgment of conviction, but said court affirmed the judgment, whereupon petition in error was filed in this court to reverse both of said judgments.

The error alleged to have occurred upon the trial of plaintiff in error can not be reviewed in this court, and were not properly reviewable in the common pleas court, because, the petition in error is not accompanied by sufficient transcript and bill of exceptions. The reason the transcript and bill filed are not sufficient is because they are not authenticated by the seal of the mayor before whom the trial was had.

Section 1536-775 E. S. (Sec. 4551 G. C.), provides that a conviction under an ordinance of any municipal corporation may be reviewed by petition in error. And for this purpose a bill of exceptions may be taken, or a statement of facts embodied in the record on the application of any party.

Section 1536-774 E. S. (Sec. 4550 G. C.), provides that the mayor shall be furnished with a corporate seal of the corporation.

Section 1536-773E. S. (Sec. 4549 G. C.), provides that the. mayor “shall subscribe his name and affix his official seal to all writs, process, transcripts and other official papers. ’ ’

A bill of exceptions is an official paper and transcripts are specifically mentioned in the section. In order that such documents may be considered by a reviewing court they must be authenticated in the manner provided by law, and when not so authenticated, should be stricken from the files.

Under the act of April 12, 1858, “to relieve district courts” (S. & C. 1155), bills of exceptions from the common pleas court were required to be signed and sealed. The authority for taking bills of exceptions being statutory, it was held in the case of Rankin v. Sanderson, 35 Ohio St. 482, that the absence of a seal prevented a consideration of the bill of exceptions by a reviewing court.

Following that authority in this ease, the transcript and bill of exceptions are stricken from the files and the petition in error is dismissed.

Marvin and Henry, JJ., concur.


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    NEGLIGENCE — PLEADING.
    [Cuyahoga (8th) Circuit Court,
    November 10, 1905.]
    Marvin, Winch and Henry, JJ.
    Isadore Goodman v. Cleveland Elec. Ry.
    Doctrine of Last Chance Required to be Pleaded.
    To authorize the application of the doctrine of last clear chance, an issue involving it must be made by the pleadings.
    [Syllabus by the court.]
    ERROR.

      Maloney & Rywn, for plaintiff in error.

      Squire, Sanders & Dempsey, for defendant in error.
   HENRY, J.

This was a personal injury damage case which the court below took from the jury. Goodman was a huckster, driving a one horse wagon eastward on the south side of St. Clair street. He was struck by a car going in the same direction. The accident occurred in the middle of an unusually long block, or interval between street intersections. Goodman had looked behind him when at or near the last street and had perhaps seen a car coming far down the street. He started to cross the street to see a customer; but, seeing that the ear was too close, he reined his horse around to the right to get off the track again. Before he had done so, however, the car struck the left hind wheel of his wagon and threw him out, inflicting injuries.

It is conceded on the argument that he was negligent in attempting to cross the track, but it was urged that the motorman’s subsequent conduct in failing to slow up his ear, was a new cause such as should have been submitted to the jury to determine whether or not it was the negligent and sole proximate cause of the injury.

The petition does not make this kind of a cause; for it does not allege that the motorman, after discovering plaintiff’s danger, failed to exercise ordinary care to prevent the threatened collision. Nor does the evidence tend to show that any such fact existed. True, such a state of facts may conceivably have existed, consistently with the circumstances as shown by the testimony, but there is no affirmative evidence thereof, and we can not see how the trial judge could do otherwise than direct a verdict.

Judgment affirmed.

Marvin and Winch, JJ., concur.


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    MUNICIPAL CORPORATIONS.
    [Cuyahoga (8th) Circuit Court,
    January 20, 1908.]

      Nottingham (Vil.) v. Elizabeth Hoffman.
    Municipality Not Liable for Natural Accumulation of Snow and Ice on Steps and Street.
    A municipal corporation is not liable for injuries received by slipping upon steps maintained by. it, leading down from a street to a subway under railroad tracks, by reason of the natural accumulation of snow and ice upon the steps in the winter time.
    [Syllabus by the court.]
    ERROR.

      Smith, Taft & Arter, for plaintiff in error.

      J. F. Herrick and Herrick & Hopkins, for defendant in error.

      Affirmed, no op., Hoffman v. Nottingham, 85 O. S. 447.

   WINCH, J.

The judgment in this case should not be reversed unless it is contrary to law, for no prejudicial error intervened at the trial.

Elizabeth Hoffman, on the morning of February 1, 190 — . having been to a grocery store on Dille street in the village of Nottingham, just south of the Lake Shore Railroad Company’s tracks, started for her home on the north side of the tracks. When she came to the tracks, on account of trains which she saw, she decided to take the subway under the track. Indeed a sign erected at the place read: “This grade crossing is dangerous. Use the under crossing.”

At that place was a stairway built of cement, extending into Dille street and leading down into the subway. She noticed a light covering of snow on the stairway, but entered upon it and proceeded as far as the fourth step, when her feet slipped from under her and she fell to the bottom of the stairway, receiving serious injuries.

It seems that the snow hid from her sight an accumulation of ice on the lower steps which filled them up so completely that the children of the village had been using the place for coasting.

She brought her action against the village, predicating its negligence upon a faulty construction of the steps, in that the stairway was not covered so as to prevent snow and rain from falling into it, and alleging that the stairway was so constructed as to create therein a constant accumulation of snow and ice, by the seepage of water through the sides of the stairway and without proper drainage to carry it off; without wooden steps to make their use safe; without any attempt to remove said ice and snow, or to spread ashes thereon, or to warn pedestrians of the danger. She alleged that the village well knew of this dangerous condition of the stairway but that she was ignorant of it.

The argument of her counsel to sustain the judgment she recovered is as follows:

“Whether this be called a structural defect or nuisance or purely a ease of negligence it seems to us immaterial. In neither case are the slippery sidewalk cases applicable, as the decisions in these eases themselves distinctly state. A nuisance necessarily includes the element of negligence, and it may rest either upon an unsafe construction or upon a perfectly proper construction when there is coupled therewith the omission of some obvious duty. Whether the construction of these steps was defective by reason of lack of drainage, as the result shows, or lack of protection against the elements by cover, or whether they be deemed to have been properly constructed, is immaterial, if in the latter event it is apparent, as we think it is, that the permission of their use so constructed, placed upon the village the obvious duty to keep them free from the element of danger, namely, the accumulation of ice and snow.”

Thus it is conceded that the only danger incident to the use of these steps was created by the accumulation of ice and snow upon them. Such being the case, how are we to distinguish this ease from the sidewalk cases? Indeed the facts in this ease are almost identical with the facts in the case of Barry v. Akron, 28 O. C. C. 728 (7 N. S.) 575, although the facts are not fully stated in the report of that case.

Here there was no covering over the stairs; there was seepage of water, a natural seepage coming from the rainfalls and snow, and a place shaded from the sun by the walls of the stairway. In the Akron case the sidewalk was shaded in the same manner by a high billboard and ice gathered in the spot where Barry slipped, while it was not general throughout the city. The law of the Barry case, however, is to be gathered from its reversal in the Supreme Court, 76 Ohio St. 625, on authority of Norwalk v. Tuttle, 73 Ohio St. 242 [76 N. E. Rep. 617], a case which had not been commenced at the time the Barry case was considered by this court.

The kernel of the Tuttle case is found in the opinion where Judge Shauck says, page 245:

“No default of the municipality appears in cases of this character when the peril is not due to defective construction or to any other act of the city contributing to or causing the dangerous condition of the street, but where that condition is due solely to the action of the elements.”

Here the dangerous condition was due entirely to the action of the elements. The stairs were perfectly safe stairs if the elements did not cover them with snow and ice.

Had the village permitted rubbish to accumulate upon the steps it would have been negligent, but it is not charged with the duty of removing accumulations of snow and ice which gather naturally.

We are constrained by the rule laid down in the Tuttle ease by the' Supreme Court, to hold that the judgment in this case is contrary to law and for that reason it is reversed.


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    BENEFICIAL ASSOCIATIONS — EVIDENCE.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905].
    Marvin, Winch and Henry, JJ.
    Supreme Conclave of the Improved Order of Heptasophs v. Helen Fife.

      1. Remittance' Blank, Subordinate Lodge Report, Etc., Evidence of Standing of Member of Beneficial Association.
    In an action on a benefit certificate where the defense is that the member, was not in good standing at the time of his death, a remittance blank and report sent by the subordinate lodge to the supreme body, reporting such fact, and a card used as part Of the bookkeeping system of the supreme body, also showing the same fact, are competent evidence.
    2. Refusal to Admit Further Evidence After Both Sides Rest With Assurance of no More Evidence to be Introduced, Discretionary With Court.
    When both sides have rested and one of the parties has left with the assurance that no more evidence would be introduced by the other side, it is not an abuse of discretion to refuse to receive additional and material evidence thereafter offered by the party giving such assurance.
    3. Burden on Beneficial Association to Show Failure of Good Standing of Member.
    A member of a beneficial association being shown to have been in good standing at one time, the presumption is that he continued in good standing until his death, and the burden is upon the association to rebut this presumption by evidence of equal weight or countervailing force.
    [Syllabus by the court.]
    Error.
   WINCH, J.

This was an action brought by the defendant in error against the plaintiff in error as beneficiary of one Isaac N. Fife, to recover on a benefit certificate issued by plaintiff in error, a fraternal benefit association of which said Isaac N. Fife was a member, wherein said association agreed to pay said beneficiary the sum of $1,000 upon the receipt of satisfactory proof of death of said member, provided said member was in good standing in said order at the time of his death. The petition alleges the death of said Isaac N. Fife, and that at his death he was a member in good standing, and had performed all things by him to be performed, nnder the terms of said certificate.

The answer sets np as a defense that the member was not in good standing at his death, bnt had been suspended for failure to pay dues some months previous to his death.

The following errors are alleged to have occurred on the trial of the case in the common pleas court:

1. A paper writing was rejected which it is said the evidence disclosed was a remittance blank and report sent by the local conclave of which Fife was a member to the Supreme Conclave, showing that he had not paid assessment No. 244, and was suspended for nonpayment thereof.

We are inclined to think that the evidence shows that said paper writing was part of the records of the association made by its officers in the course of their duty under the rules of the order and that it was therefore admissible in evidence. But we are unable to say that the evidence shows the facts claimed as to its contents, because no copy of said paper is set forth in an offer to prove its contents, hence we are unable to say that any error in ruling it out was prejudicial, and this assignment of error is therefore overruled.

2. A card was excluded, which it is said was a part of the bookkeeping system of the supreme office and showed nonpayment by Fife and his suspension.

We are inclined to think the evidence does show that said card was part of said bookkeeping system and that it was admissible in evidence for the reason before stated, but for the reason before given, because no copy of the card is found in the bill of exceptions, this assignment of error is overruled.

3. It is contended that there was error in rejecting the testimony of the witness Millinger as to the actual suspension of Fife by his local conclave.

It appears from the bill of exceptions that before this evidence was offered the case had been closed and both parties had rested on the previous day. The plaintiff had left the night before and gone to Leetonia, on the express assurance by defendant’s counsel that no more evidence would be introduced.

Upon tbe application by defendant to open np the case for presentation of testimony by Millinger as to a specific matter, leave was so granted. That permission did not include' the right to introduce evidence on the subject included within this assignment of error; when it was offered the court refused to permit its introduction for that reason.

Under the circumstances of the case we think there was no abuse of discretion on the part of the trial judge in so ruling, and this assignment of error is overruled.

4. It is said that the court erred as to the burden of proof in holding that plaintiff having shown that her husband was at one time in good standing as a member, he should be presumed to have so continued until the contrary was show, and that the burden was upon the defendant to show that he had lost his good standing.

The law announced by the trial judge is in accordance with the views of this court as expressed by Judge Baldwin in case of Hall v. Scottish Rite, 3 Circ. Dec. 384 (6 R. 137).

But it is claimed by counsel for plaintiff in error that this presumption was overcome and rebutted by the introduction by the plaintiff herself of certain letters (Exhibits D, E, F, and G, in the bill of exceptions).

We think this point well taken. In so holding we follow the case of Oeters v. Supreme Lodge Knights of Honor, 98 Va. 201 [35 S. E. Rep. 356].

With the presumption of good standing rebutted, and no proof that the member had paid all assessments due up to his death, the plaintiff failed to make out a case; the motion for a new trial on the ground that the judgment was not sustained by sufficient evidence, should therefore have been granted.

For error in overruling said motion the judgment is reversed and the cause remanded for a new trial.

The motion to direct the clerk of this court to correct the file mark on the bill of exceptions so as to show that it was filed on April 11, 1905, the day on which it was actually filed, is also granted.

Henry, J., concurs.

Marvin, J., dissents.