text:
    FAILURE TO PROVE RIGHT TO USURIOUS INTEREST.
    Circuit Court of Cuyahoga County.
    The Economy Building & Loan Co. v. J. R. Philen.
    Decided, December 19, 1910.

      Building and Loan Association—Corporate Capacity and Power Denied. —Must Malee Proof Thereof.

    When a building and loan association sues to foreclose a mortgage and for the collection of usurious interest on the debt thereby secured, to which it claims a right under special provisions of the statutes, and its corporate capacity is denied in the answer, it must prove that it is a corporation possessing the powers it claims, and upon its failure to make such proof judgment as to excess interest claimed should be directed against it.

      Foster & Foster, for plaintiff in error.

      W. T. Clark, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This action was brought in the common pleas court by the company to foreclose a chattel mortgage given to it by Philen on which it claimed a balance of $8. ■ The verdict and judgment were for the defendant.

Various errors alleged to have occurred on the trial are set forth in the petition in error as a ground for reversal of the judgment, but we are not called upon to pass upon any assignment of error because the record discloses that in no event was the plaintiff entitled to recover; it failed to prove its corporate capacity.

The record shows that Philen borrowed $40 of the defendant company; his note called for usurious interest, conceded to amount to 18 per cent, per annum.

This rate was1 claimed to be lawful under the building and loan association laws, but plaintiff failed to prove its right to benefit by said laws. ■ The issue of mil tiel corporation was specially raised by the pleadings.

The record shows payment of the $40 with interest at six per cent, even without application of payments to stop interest.

It was said in the case of Smith v. Weed Sewing Machine Co., 26 O. S., 562, approved and followed in Brady v. The National Supply Co., 64 O. S., 267:

“At common law a corporation, when it sues, need not set forth its title in the declaration; but if issue be taken, it must show by evidence upon the trial, that it is a body corporate, having legal authority to make the contract which it seeks to enforce, if the action be upon contract, or to sue in that character and capacity in which it appears in court.”

Not having sustained the burden cast upon it in this respect by the law, a verdict for the defendant might well have been directed, hence no prejudicial error to the plaintiff can be predicated upon the charge. No ruling of "the court prevented plaintiff from offering the measure of proof required of it. It follows that the judgment must be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    “DANBURY” AS A TRADE-NAME.
    Circuit Court of Cuyahoga County.
    The W. F. Mason Hat Company v. M. C. Abbey et al.
    Decided, December 27, 1910.
    Injunction—Trade-Name—“Danbury” Hats.

    In an action to enjoin the use of the word “Danbury” in connection with the hat business, where the evidence shows that there are * some seventy factories in Danbury, Connecticut, which manufacture hats and that hats made at all of them are called Danbury hats and have been sold by dealers generally as Danbury hats from a time antedating the establishment of plaintiff’s business, the relief prayed for will be denied.

      Hidy, Klein & Harris, for plaintiff in error.

      Huggelt & Collins and C. V. Hull, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
    Motion to dissolve restraining order.
   Plaintiff and defendant are both dealers in hats. Plaintiff has several stores in Cleveland, one of which is on East Fourth street. At all of these stores for several years, plaintiff has had signs displayed reading “Mason’s Danbury Hat Store,” and has established a reputation in its business by the use of said trade-name, which is of great value in its business.

Defendants have recently opened a store directly opposite plaintiff’s East Fourth street store and when they started business they displayed a sign reading: 1 ‘ This store when completed, about September 1st, will be the headquarters of the famous $2 Danbury Hats, Union Made. The Danbury Hat Company. M. C. Abbey, H. E. Cranley.” *

This sign they have discontinued using, but are still advertising that they sell “Danbury hats” and have a sign displayed to that effect.

It is conceded, on the motion, that there is a town in Connecticut named “Danbury,” in which there áre at. least thirty factories making hats; that said hats are known to the retail trade in Cleveland and other places as “Danbury” hats and have been sold, as such, by many dealers in Cleveland ever since before the plaintiff was in the hat business.

The prayer of the petition is to restrain the defendants from using the word “Danbury” in its trade-name or in its advertising.

The defendants say that they have discontinued the use of said sign, but assert their right to advertise by signs, and otherwise that they are dealing in “Danbury hats.”

We think the sign first used cáme within the forbidden limits of unfair trade, but as defendants disclaim any intention to use said sign again, no injunction on that ground should now be granted against them.

As to the use of the word “Danbury,” plaintiff claims that it uses said name indiscriminately on all the goods sold by it, without reference to the place of manufacture, in a fictitious sense, merely to indicate ownership and origin, independent of location.

Defendants claim that they use the word “Danbury” to advertise the fact that they sell hats made in Danbury.

From the affidavits on file it appears that hats made in Dan-bury have been sold as “Danbury” hats by dealers generally in Cleveland, from a time antedating the establishment of Mason’s stores.

If such is the case, the plaintiff has not established its right to the use of the word “Danbury” as a trade-name.

The conclusion, therefore, is that the plaintiff has failed to show that it has an exclusive right to use the word “Danbury” as a trade-name in connection with its hat business and that there is no showing made that defendants threaten or intend to engage in any unfair competition in trade.

The authorities sustaining this conclusion are found in the briefs of counsel for defendants and in Chapter IX of Nims on Unfair Business Competition, beginning at page 226 and cases cited therein.

The motion to dissolve the restraining order is granted.


text:
    PARTIES TO CONTEST OF WILL.
    Circuit Court of Wood County.
    Ida May Wallace et al v. Franklin Ludwig et al.
    Decided, December 12, 1912.

      Wills—Power and Duty of Adding Necessary Parties After Petition to Contest is Filed—Grandchildren Born After Bringing of Suit But Before Trial.

    All persons interested in a will are indispensable parties to an action brought to set the instrument aside, and where grandchildren who are beneficiaries under a will are born after the filing of such an action but before trial is had, failure to make them parties by-proper procedure requires that the judgment obtained in such proceeding be reversed.

      N.'B. Harrington, for plaintiff in error.

      E. M. Fries, contra.
    Richards, J.; Wildman, J., and Kinkade, J., concur.
    Error to the Court of Common Pleas of Wood County.
   The action out of which this proceeding in error grows was brought in the common pleas court by Franklin Ludwig and others to contest the will of one Isaac Ludwig, deceased. The will was executed on August 23d, 1905, at which time Isaac Ludwig was more than eighty-six years of age. He died in February, 1906, and the will was probated on April 23d of that year. At the time the will was executed and also at the time of his death he had several living children and many grandchildren. The will provides in substance that his executor shall divide one-half of the proceeds of his estate among such of his grandchildren as shall be living at the expiration of ten years from testator’s death, and that the remaining half of his property shall be distributed by the executor at the expiration of twenty years from testator’s death among such of testator’s great grandchildren as shall then be living.

The petition was filed in the common pleas court on March 6th, 1908, and all the devisees, legatees and other interested persons then living were made parties to the action, the number of defendants being about eighty. The case was not tried in the common pleas court until May of 1912, and the four years elapsing between the commencement of the action and its trial were very fruitful, numerous additional grandchildren being born during that period. The grandchildren born after the commencement of the action were not made parties. The trial in the common pleas resulted in a, verdict finding that the paper writing was not the last will and testament of Isaac Ludwig, deceased, and upon that verdict judgment has been entered.

The vital and controlling question in this case is that made by counsel for plaintiffs in error, that all of the grandchildren, living at the time the ease was tried, were not made parties defendant, and that they are indispensable parties. , We think this claim is in accordance with the law of Ohio. The language of Section 12080, General Code, appears to be broad enough to apply as well to legatees who are born pending the action as to those who were living at the time the action was brought. The code provides in Section 11262, that when an action can not be determined without the presence of other parties, the court may order them to be brought in or dismiss the action without prejudice. The only issue in a case brought to contest a will is whether the paper writing is the last will and testament of the decedent. All the grandchildren and great-grandchildren living at the time of the trial had an interest by the terms of the will contingent on their surviving to the periods named in the will and were indispensable parties to a determination of the issue. In order that there may be an end of litigation, it is requisite that all necessary parties be brought into the case. The right and power and duty to make necessary parties exists after suit brought as well as at the time of filing the petition. An interesting case shedding some light on the question at bar is Holt v. Lamb, 17 O. S., 375. That ease has been often cited with approval and is cited by the Supreme Court in Church v. Nelson, 35 O. S., 630. In announcing the opinion in the latter case, White, judge, speaking for the court says:

“The effect of the decree setting aside the will was drawn in question in a collateral suit. And it was there held that the parties to the suit in which the decree was rendered were bound by the decree, that it was not void as to them; but that as to all other persons in interest the decree was void. No question arose in the ease as to the decree being reversible on error. But as it was held to be void as to some of the persons in interest, and binding as to others,, in respect to the same property, it would seem to be necessarily erroneous as to the parties to the suit.”

Reference may be made also to McAurthur v. Scott, 113 U. S., 340, and to Seldon v. Illinois Trust & Savings Bank, 130 American State Reports 180, 186. An extensive note beginning on the latter page contains an interesting discussion of questions similar to the one now under, consideration.

It was held in Rockwell v. Blaney, 18 Decisions, 436, that only such persons as were interested in a will at the time of its probate are proper parties. The reasoning of the court in this ease was commended to our attention by counsel for defendants in error, but the case appears to have been reversed by the circuit court. See Heimrich v. Dechant, 21 Decisions, 107.

Guardians ad litem were appointed for several of the minor defendants in the trial court, and filed answers- denying the averments of the petition. Some of these minor defendants joined in an answer in which they personally admitted the allegations of the petition filed by the plaintiff. This answer of the minors was called to the attention of the jury by counsel for the plaintiffs during the trial. The trial court declined on motion to strike the answer from the files, but did direct the jury that the defense of an infant must be made by his guardian, and that they should not be influenced by any answer which may have been filed by the minors themselves.

We do not find any prejudicial error in regard to this matter, but think it improper for counsel to have called the attention of the jury to the contents of this answer, and on re-trial the incident should not be repeated. Under the statutes, the duty rests on the party to make his case unaided by any admissions contained in an answer filed by minors, as the defense of minors must be made solely through the guardian ad litem, and even an admission in the answer of the guardian ad litem would be ineffective as an aid to the opposite party. See Massie’s Heirs v. Donaldson, 8 O. S., 377, cited with approval, Mills v. Dennis, 3 John’s Ch., 367.

All legatees living at the time of the trial were indispensable parties and because of the failure to make them parties, the judgment will be reversed and the case remanded for further proceedings. ' ;


text:
    LIABILITY FOR. THE DEATH OF A WINDOW CLEANER..
    Court of Appeals for Hamilton County.
    Neave Building Company v. William A. Roudebush, Administrator.
    Decided, January 17, 1914.

      Negligence—Proof Upon Which a Judgment May he Based—Must he Either Direct as to Negligence of the Defendant—Or Must Sho.w Facts From Which Negligence May he Presumed.

    Where the testimony shows that the windows of the building where the accident occurred may he safely cleaned from the inside, hut the decedent refused to clean them in that way, or to use a safety belt or other device to prevent falling, and had been threatened with discharge for his carelessness in that regard, and there is no direct proof of negligence on the part of the owners of the building or of facts from which negligence may reasonably he presumed, a .judgment in favor of the administrator for damages will he reversed and the cause remanded for retrial.

      Robertson ér Buchwalter and Theo. C. Jung, for plaintiff in error.

      Louis B. Sawyer, contra.
    Jones, O. B., J.; Jones,- E. H., J., concurs; Swing, P. J., not sitting.
   The action in the court below was brought by William A. Roudebush as administrator of Clarence Henson, deceased, for damages on account of the alleged wrongful death of said Clarence Henson on the 6th day of January, 1911.

The deceased was in the employ of the Neave Building Company as window washer and helper in the building. The trial below resulted in a verdict and judgment in favor of the plaintiff, from which error is prosecuted to this court by the defendant. Three grounds of negligence were complained of in the petition below: first, that the deceased was ordered to wash windows at a'time when the window sills were covered with snow, which made the cleaning of said windows very difficult and dangerous on said day; second, that the defendant failed to comply with the city ordinance requiring windows above the second floor to be equipped with safety devices, or to provide in any manner for the safety of plaintiff’s intestate while engaged in said dangerous occupation, or to provide any safety device whatever to prevent injuries to said intestate engaged in cleaning said windows on the outside; and third, that defendant failed to employ sufficient help so as to give deceased suffieent time to safety clean its windows on the outside. The court excluded this third ground of negligence entirely from the case.

Section 505 of the Ordinances of Cincinnati was introduced, by which it is provided:

“In every fireproof or semi-fireproof building now in existence or hereafter erected, every window above the second story thereof shall be equipped with a suitable device which will permit the cleaning of the exterior of such windows without endangering life and limb. Provided, however, that such device need not be placed on any window that can be easily cleaned from within.”

Evidence was introduced to show, first, that the windows of said building could be easily cleaned from within by standing on the sill inside and- reaching over to clean the top part of each window sash on the outside and by sitting in the window to clean the bottom part of each of the sashes on the outside. There was evidence on the part of the plaintiff that this could not easily be done, and on the part of the defendant that it might be so cleaned. A device consisting of a platform to be placed on the window sill and fastened by screws, to be moved from one window to another as- the cleaning progressed, was introduced by the defendant, and there is no question but that plaintiff’s intestate had opportunity to use it had he so desired, but the testimony of the superintendent of the building was to the effect that he had declined to use it and had also declined the proffer of a safety belt which said superintendent -had offered to get for his use, stating that he did not desire to be bothered with either. There is also testimony to showr that - there was a rule of the building company providing that no employe should stand on the sills for the purpose of washing windows, which were to be washed from the inside, and that plaintiff was advised of this rule and threatened with discharge if he violated it.

The court is of the opinion, that there is not sufficient evidence to show that the death of the deceased was attributable to any negligence of the defendant. There is no evidence to' show that the decedent fell from the window. - The bucket, rag and chamois were found in Room 203 of the building, and a footprint was seen in the snow on the window sill of a window in that room, but there -is no testimony to show that that window was open or that it had in any way been washed on that day, nor is there any testimony to show that the decedent fell upon the sidewalk. The only evidence is that he was found in the lobby of the building, or was brought in the lobby and placed in a chair. As to how he received his injury is a pure matter of conjecture. "Whether he fell from a window, purposely! jumped from a window, or whether he fell down the stairs or down an elevator shaft is a matter of speculation and not of proof.

There is no evidence to show whether the snow that was on the window sill was hard and slippery or whether it was soft and not dangerous, nor is there any evidence to show whether he had been seated on that sill, or whether the footprint- on there was his footprint or that of someone else.

In this state of the evidence the court must find that the verdict and judgment below is not sustained by the evidence. While it is true that an allegation of fact may be established by circumstantial evidence, the circumstances to have that effect must be such as to make the fact alleged appear more probable than any other. The fact in issue must be the most natural sequence from the facts proved.

To establish negligence there should be either direct proof of facts constituting such negligence, or proof of facts from which the negligence may be reasonably presumed. There should be no guessing by either court or jury. R. R. Co. v. Marsh, 63 O. S., 236; R. R. Co. v. Andrews, 58 O. S., 426; Crawford v. R. R. Co., 3 C.C.(N.S.), 144; Derby v. Fireworks Co., 12 C. C., 420; Hunt v. Caldwell, 22 C. C., 283.

The judgment below will therefore be reversed, and the case remanded for a new trial.


text:
    STOCKHOLDER. MAY SET UP DEFENSE FOR. COMPANY.
    Circuit Court of Cuyahoga County.
    The Buckeye Garage & Sales Company and L. C. Young v. William K. Caldwell.
    Decided, December 27, 1910.

      Corporations—Right of Stockholder to Intervene and Defend Case for Company—Professional Statements of Counsel—Striking Demurrable Pleading From Files.

    1. A stockholder who alleges that his company has a valid defense to a suit brought against it, but which managing officers wilfully and fraudulently refuse to make, will be allowed to intervene in the suit and defend for the company upon his tender of an answer stating valid matters of defense to the action and the making of a showing by evidence of reasonable grounds to believe that such defense can be finally proved upon a trial of the case, and that the officers whose duty it is to make it are wrongfully and fraudulently refusing to do so.
    2. Professional statements by reputable attorneys are sufficient evidence of' good faith and warrant the granting of leave to become a party to a suit and to file or amend pleadings.
    3. Because a pleading is demurrable is no ground for striking it from the files; the proper practice is to consider the motion as a demurrer, grant it and then give leave to amend, if desired and proper.

      Galfee & Fogg, for plaintiffs in error.

      Caldtoell c& Younger, contra.
    Winch, J.: Henry, J., and Marvin, J., concur.
   A petition was filed in tbe common pleas court July 5, 1910, by Caldwell against tbe Buckeye company, setting up a judgment obtained by bim against it in a-justice court, and execution tbereon returned unsatisfied, and praying for a receiver of the company to collect and distribute its .assets to its creditors, including tbe plaintiff.

On the same day an answer to this petition was filed by W. R. Winn, as attorney for tbe company, sworn to by.George E. Sberer as treasurer thereof, admitting the allegations of tbe petition and consenting to the appointment of a receiver as prayed for.

Thereafter, on August 5, 1910, one L. C. Young was given leave to become a party defendant and file an answer and cross-petition by August 9, 1910, which he did file on August 6, 1910.

This answer and cross-petition set forth that Young was the president and a director of the company and owner of approximately one-half of the capital stock thereof; that Caldwell was attorney for certain other directors and stockholders, who, for the purpose of obtaining a receiver to take charge of the business so as to prevent Young and other stockholders from participating in the control of the business, caused the plaintiff to file a suit against the company before a justice of the peace, asking for judgment ip the sum of $100 alleged to be due Caldwell for legal services rendered the company; that no summons was-served upon the company; that an attorney without any authority from it entered the company’s appearance and permitted judgment to be rendered against it; that all this was done without Young’s knowledge; that thereupon plaintiff commenced this action for a receiver and the answer purporting' to be the answer of the company was filed without the knowledge of Young; that, no meeting of the board of directors was held to authorize or approve such action.

The answer then denies that Caldwell ever rendered any services to the company or that it was insolvent, and makes further allegations of a conspiracy between Sherer and other stockholders to freeze Young out of the company.

The prayer of the answer is that the receiver be dismissed and that the answer of the company be stricken from the files.

On August 10, this answer of Young was stricken from the files and he was also refused leave to file an amended answen and cross-petition setting up the further fact that he filed it in behalf of himself and all other stockholders similarly situated and more fully setting forth facts tending to prove a conspiracy between Scherer and two other directors to ruin the company for the purpose of getting rid of Young. It also alleged that no demand had been made upon the board of directors for the relief therein prayed for because three of the five directors of the company were concerned in the fraudulent scheme set forth and were actively assisting in carrjdng it out.

To the order striking Young’s answer and cross-petition from the files and refusing him leave to file his amended answer, exception was taken and a bill of exceptions is filed in this court showing that the only evidence before the court when it made these orders was the amended answer itself, sworn to by Young as being true to the best of his knowledge and belief, and certain statements of his counsel tending to show his confident belief that he could establish the truth of its allegations by competent evidence, and counter statements of the plaintiff, a lawyer, but not under oath.

The law applicable to this case appears to be fairly stated by counsel for defendant in error as follows:

‘ ‘ The rule is that a stockholder, who alleges that his company has a valid defense to a suit.brought against it but which managing officers wilfully and fraudulently refuse to. make, will be allowed to intervene in the suit and defend for the company upon his tender of an answer stating valid matters of defense to the action and the making of a showing by evidence of reasonable grounds to believe that such defense can be finally proved upon a trial of the case and that the officers whose duty it is to make it are wrongfully and fraudulently refusing to do so. Thompson on Cor. (2d Ed.), Vol. 4, Section 4560; Fitzwater v. Barilc, 62 Kan., 167.”

It is presumed that this rule was complied with when leave was granted to.Young on August 5, 1910, to become a party defendant and file an answer and cross-petition. The claim that the record does not show this is not important. The record does not show what evidence induced the court to grant the leave requested, but every reasonable intendment must be made in support of the judgment and so it is presumed that the court acted upon a sufficient showing. „

That the first answer filed by Young was demurrable, may be conceded. It failed to show that he brought the action not only for himself but for all other stockholders similarly situáted and it failed to show that he had called upon the company to defend the action and been refused, or that such demand was useless, because the controlling officers of the company would necessarily be antagonistic to the defense prepared.

But because a pleading is demurrable is no reason for striking it from the files; it would seem that the proper practice would be to consider the motion as a demurrer, grant it and then give leave to amend, if desired and proper.

Of course motions for leave to amend are addressed to the sound discretion of the court, but in this case the applicant for leave presented a perfectly good answer, and his attorney, an officer of the court, represented that he expected to be able to sustain all its allegations by evidence. It would seem, then, to be a clear abuse of discretion to refuse leave to file such an amended pleading.

Should we be wrong in holding that there was error in striking Young’s first answer from the files, still it appears that his application for leave to file an amended answer within the rule claimed entitled him to file the pleading.

He' tendered an answer stating valid matters of defense to the action and made a showing, by evidence, of reasonable grounds to believe that such defense could be finally proved upon- trial of the case and that the officers whose duty it was to make it were wrongfully and fraudulently refusing to do so.

He was only required to make a prima facie showing of these facts, not prove them, as upon trial. His evidence was the answer itself, duly sworn to by Young, not absolutely as an affidavit, but sufficiently for the prima facie purpose required.

His counsel stated professionally his belief that he could sustain the allegations of the answer by evidence.

Such professional statements by reputable attorneys have always been received by the courts as sufficient evidence of good faith and as warranting the granting of leave to become a party to a suit and to file or amend pleadings.

No precedent to the contrary has been cited. No intimation has been made that Young’s counsel is not of the best repute. Indeed we know he is.

For the reasons stated the orders striking Young’s answer from the files and refusing leave to file his amended answer are reversed and the cause is remanded for further proceedings according to law.


text:
    ACTION TO COLLECT UNPAID STOCK SUBSCRIPTIONS.
    Circuit Court of Cuyahoga County.
    H. O. Yoder v. Lewis Hoyt.
    Decided, December 27, 1910.

      Corporations—Stock Subscription—Fraud as a Defense—Bankruptcy of Corporation.

    Fraud may be pleaded as a defense in an action to recover unpaid stock subscriptions, even after bankruptcy of the corporation, if no debts of the corporation were contracted after the subscription.

      H. 0. Yoder, for plaintiff in error.

      G. W. Dille and H. G. Boyd, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was an action brought by IT. 0. Yoder to collect unpaid stock subscriptions. The amended answer sets up fraud and misrepresentation in obtaining the subscription and an excess issue of stock.

A demurrer to this answer' was overruled and judgment entered for the defendant. This ruling is here assigned as error.

The demurrer to the answer ■ of course searches the record and it is therefore proper to first "examine the amended petition to see if it is sufficient.

It alleges that the corporation involved was adjudicated a bankrupt on May 20, 1907, a receiver appointed to take possession of its assets, the appointment of a trustee to whom the receiver turned over the assets; the subscription on March 29,1907, of the defendant for twenty-five shares of preferred stock of the company of the par value of $10 per share; the payment by him of $125 on account of his subscription and that a balance of $125 with six per cent, interest is still due thereon.

It is further alleged that at the time of filing the proceedings in bankruptcy, $48,249.04 of provable debts of the company existed which were proved and allowed; that $18,734.60 dividends had been paid, leaving more than $29,000 of valid liabilities unpaid after, exhausting all the assets of the company, except a balance due on certain stock subscriptions.

It is further alleged that said unpaid subscriptions including that of defendant, were duly sold at auction by the trustee to the plaintiff who paid a valuable consideration therefor, which sale was approved and confirmed by the referee in bankruptcy and the United States District Court and bill of sale therefore ordered and made to the plaintiff. It is also alleged that the amount of said unpaid subscriptions sold to plaintiff are much less than the unpaid liabilities of the company after the application thereto of the sum realized from the sale of said unpaid subscriptions.

There is no allegation in the amended petition that the rights of any creditors of the corporation accrued after the subscription of the defendant, or that any debts were contracted by the corporation upon the faith or credit thereof.

The absence of this allegation from the petition appears to be fatal to it.

The answer of the defendant would certainly be good if made in an action brought by the corporation itself, before insolvency.

The rule that fraud can not be pleaded as a defense in an action to recover unpaid stock subscriptions, after' bankruptcy and after the rights of creditors have intervened is based upon the doctrine of estoppel.

Likewise a stockholder is estopped from setting up a defense that the stock is invalid, if the company is in bankruptcy and valid debts were- contracted after his subscription.

The pleadings in this ease do not show that any debts were contracted by the corporation after defendant’s subscription. The estoppel, therefore, does not arise and the answer is good.

There are some cases which seem to hold that the defendant must plead and prove that the estoppel does not apply because no debts were contracted after he subscribed, but it is thought that the better practice is for the plaintiff to make out a complete case, including the estoppel, before the defendant is required to answer, for the answer is good in the absence of the estoppel.

This ease illustrates the thought.

The petition shows that the defendant subscribed March 29th, and that bankruptcy proceedings were begun May 20. The answer alleges that the corporation was insolvent March 29th. If so, the natural presumption is that no debts were contracted between the two dates.

Judgment affirmed.


text:
    ACTION TO ENJOIN TRIAL OF A SCHOOL TEACHER.
    Circuit Court of Cuyahoga County.
    J. M. H. Frederick v. The Board of Education of Lakewood et al.
    Decided, December 27, 1910.

      Constitutional Law—School Board May Try School Teacher—Court of Equity Will Not Interfere.

    1. The power conferred upon school boards, by General Code, Section 7701, to dismiss any appointee or teacher for cause, after hearing, is administrative and not judicial in its nature, and so not unconstitutional.
    2. A court of equity is without jurisdiction to interfere by injunction to prevent the trial and dismissal of a school teacher by a school board because to do so in advance of its action would be to invade the functions of the executive or administrative department, and after such action the remedy for erroneous proceedings lies with a court of law.

      John J. Sullivan, for plaintiff.

      Edwin G. Guthery, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This action was brought to enjoin the defendants from trying the plaintiff, superintendent of and a teacher in the public schools of Lakewood, on charges involving improper conduct, pursuant to authority for such trial found in Section 7701 of the General Code,

The right to an injunction is based upon two grounds: first, that the board of education, by the preparation, filing and serving of written charges and notices, are attempting to assume judicial functions, and second, that the plaintiff can not have a fair trial for the reason that two of the five members of the board signed the charges, setting forth that they believed the plaintiff guilty of improper conduct and will sit in judgment upon the evidence when it is produced upon the hearing, and that one of the other three members is a necessary and unfriendly witness in the matter. That the first ground is untenable see State, ex rel, v. Hawkins, 44 Ohio St., 98.

The second ground naturally looms large to' the judicial eye for the reasons so forcefully and cogently presented to the court by the learned counsel for the plaintiff. It is a principle of natural justice that no man should sit in as judge in his own cause, nor should any man sit in judgment of a cause which he has prejudged.

By the pleadings in this cause it is conceded that certain of the defendants, perhaps a majority of the board, are about to violate both of these principles.

But it seems that a court of equity is without jurisdiction to interfere by injunction to prevent the trial and dismissal of public officers or appointees because to do so in advance of executive action would be to invade the functions- of the' exeeutivé department, and after such action the remedy for erroneous proceedings lies with the court of law and not with the chancellor. 2 High on Injunctions, 1313, 1312, 1313; Marshall v. State Reformatory, 201 Ill., 1; Cox v. Moores, 55 Neb., 34.; In re Sawyer, 124 U. S., 200; White v. Berry, 171 U. S., 366; Delahanty v. Warner, 75 Ill., 185; Muhler v. Hedikin, 119 Ind., 481; District Township v. Barrett, 47 Iowa, 110.

The restraining, order is dissolved and the petition is dismissed.


text:
    RIGHTS OF PURCHASERS OF AN INSURANCE AGENCY.
    Circuit Court of Franklin County.
    The Bryson-Bedwell-Brubacher Company v. J. J. Archer et al; Three Cases.

    Decided, February 6, 1912.

      Good Will—Gan Not he Augmented Through, Custom, to Build up Bights Inconsistent mth the Principle of Agency—Custom among Fire Insurance Agencies.

    The purchasers of a fire insurance agency, with a covenant that the vendors will not engage in a competitive business for a period of years, can not bind by a custom as to the control of information with reference to expiration of policies, and thereby restrict the rights of others who were not parties to the contract of purchase and sale.

      Huggins, Huggins & Hoover, for plaintiff in error.

      J. W. Mooney, contra.
    Allread, J.; Dustin, J., and Ferneding, J., concur.

      Affirmed by Supreme Court without opinion.

   The plaintiffs in error, who were also plaintiffs below, are a local fire insurance agency, and allege that they purchased of the 0’Kane-Beeson Agency of Columbus, Ohio, for a full and valuable consideration, its policy expirations, business, books and good-will, with a covenant that the vendors would not engage in competitive business for a period of five years.

The plaintiffs allege that the defendant, Archer, in the first two eases, and Lewis in the third, have been appointed agents by the respective insurance companies, and are, by use of knowledge of existence and expiration of policies obtained from the books of the respective insurance companies, interfering with and attempting to secure renewals of policies in violation of the agreement in the transfer of the business of the 0 ’Kane-Beeson Agency. Neither the insurance companies, nor Archer and Lewis, are parties to any contract with the plaintiff. They are, however, sought to be bound by a custom by which local agencies in Columbus and elsewhere are permitted to own and control the information as to the expiration of policies and to hold the exclusive right to use such information and solicit renewals. It is also asserted that the plaintiff in making the purchase relied upon this custom.

The court of common pleas sustained a demurrer to the amended petition stating the above facts and rendered final judgment for the defendants.

The questions presented by the petition in error are interesting and important. Counsel for the respective parties have very fully argued the questions involved and have cited and discussed many authorities.

We are clearly of opinion that exclusive of the averments as to custom and usage the amended petition does not state a good cause of action. We concur fully in the opinion of the trial judge upon the demurrer to the original petition.

The most difficult question presented arises upon consideration of the effect of the added averments as to custom. Contracts as to good-will incident to a sale of business, while subject to certain rigid tests, are, if those tests are fully met, sustainable under repeated decisions of the Supreme Court. The tests of legality of such contracts is defined by Judge Ranney in the opinion in Lange v. Werk, 2 O. S., 520. There is no doubt, therefore, of the validity of the transfer of the good-will of the local agency.

The question is whether the good-will of the local agency can be augmented through custom so as to include a restriction against the principal from the use of books and information in the principal’s custody relating to the business of the principal. It has been repeatedly held that .usage and custom can not -be employed to take the place of contract nor to create property rights. This principle is laid down by Caldwell, J., in the opinion in Inglebright v. Hammond, 19 Ohio, 344, as follows:

“Evidence of custom may properly be given to explain and give the proper effect to the contracts and acts of parties; but it would be carrying the doctrine too far to permit a custom to change the title to property contrary to an established rule of law.”

The same principle is fully established in the cases of C. & H. C. & I. Co. v. Tucker, 48 O. S., 41, and Thomas v. Trust Co., 81 O. S., 432. In the syllabus in the last ease the rule is stated as'follows:

“Usage or custom can not create a contract or liability where none otherwise exists. A usage or custom can only be used to explain or aid in the interpretation of a contract or liability existing independently of it.”

The plaintiffs, having no contract relation with the insurance companies, can not by force of custom and usage assert a right to enforce a restriction upon the insurance companies in the carrying on of their business and the use of information founded upon boobs and records in their possession.

It is urged that the usage and custom can be applied to enlarge the agency contract between the insurance companies and the O’Kane-Beeson Agency, thereby enabling the latter to transfer the enlarged good-will.

It must be kept in mind, however, that- the 0 ’Kane-Beeson Agency were agents, and that they can not, therefore, by usage and custom build up rights inconsistent with the principle of agency. The doctrine of agency and the respective rights of the parties are established by the general principles of the common law and made more effective as applied to insurance companies by statutory provision.

The custom and usage set forth in the amended petition is in our opinion inconsistent with-the common law and statutory principles of agency and unduly restrictive of the rights and franchise of the principals. Merchants Ins. Co. v. Prince, 50 Minn., 53; Dempsey v. Dobson, 184 Pa. St., 583; Castleman v. Southern Mut. Life Ins. Co., 14 Bush (Ky.), 197.

The learned counsel for plaintiffs in error do not deny the right of the principals to revoke the authority of the agent, but their contention would have the effect after revocation of retaining substantial rights as against the principal, which, we think, is equally inconsistent with the common law and statutory principles of agency.

The alleged custom not being valid to restrict the principals in the use of their own books in obtaining business and being contrary to established principles of the law, the plaintiffs had no right to rely thereon and can claim nothing by way of estoppel. •

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


text:
    WRONG INTERPRETATION AS TO LIABILITY CAN NOT BE PLEADED.
    Circuit Court of Cuyahoga County.
    J. S. Fisher v. Dan Stanisic.
    Decided, February 27, 1911.

      Replevin Bond—Liability Extends to Final Determination of Case in Court of Review—Estoppel.

    1. A surety on a redelivery bond in replevin is bound until “the final determination of the action,” and this means until the action and all reviews of it authorized by law, have been finally determined.
    2. A wrong interpretation of the legal liability of a surety on a bond given by a justice of the peace to the surety, before he signs the bond, in the presence of the person for whose benefit the bond is given, and to which interpretation said person assents, can not be^ pleaded in an action on the bond as an estoppel or bar to said action.

      Bentley, McCrystal A Arnos, for plaintiff in error.

      F. G. Friend, contra.
    Winch, J. • Henry, J., and Marvin, J., concur.
   Plaintiff in error was surety on the re-delivery bond of one George Skelley, defendant in replevin before a justice of the peace. Stanisic was plaintiff in the ease.

The bond was conditioned, in accordance with General Code, 10469 "that he (the defendant) will safely keep the property and in case the judgment be against him, then return it, or pay the value so assessed, at the election of the plaintiff, and also pay the damages assessed for the taking, detention and injury of the property, and costs of suit.”

The judgment before the justice was for the defendant, whereupon the plaintiff appealed the ease to common pleas court, where judgment was rendered for the plaintiff.

Thereupon Fisher, the surety, pursuant to General Code, 12060, was notified to appear and show cause why judgment should not be entered against him for breach of the' bond.

He filed answer, or response to the notice, which, on demurrer, was held insufficient; thereafter judgment was duly entered against him, and he now asks this court to review the sufficiency of his said answer.

There are two parts to this answer:

1. The first paragraph alleges that the bond became void by its own terms and in law, when the justice determined the case in favor of the defendant.

This point is not well taken. The statute itself provides that upon the defendant giving bond the property shall be returned by the officer to the defendant, to be retained by him until the determination of the action. ’ ’ That means final determination' and an action is not finally determined until all reviews authorized by law have been exhausted. As said by Judge Minshall in the case of Richardson v. Bank, 57 O. S., 299, at page 309: “By signing the undertaking he became a qmsi party to the suit, and is held to have notice of all the proceedings thereafter in the suit that may affect his liability on the undertaking.”

The bond was executed in reference to all the statutes in force at the time, including the statute authorizing appeals to the common pleas court, and that statute is to be read into the bond.

2. The second paragraph of the answer is as follows:

“He further says that before he signed said undertaking he applied to said justice in the presence of said plaintiff to inform him what said undertaking would mean and what liabilities he would incur by signing same and said justice then told him in the presence of the plaintiff that said undertaking provides that -he would be responsible that said property should be on hand at said trial, and that if said case should be decided by said justice in favor of the plaintiff said property must be there to respond to said judgment and that that was all the liability which said Fisher would assume and thereupon said justice then and there asked plaintiff if that would be satisfactory to him and said plaintiff thereupon responded in the presence of said Fisher that that would be satisfactory to him and that that was all be wanted, and thereupon said Fisher relying on said assurance and agreement, signed said undertaking and otherwise he would not have done as the plaintiff then and there well knew; and said Fisher further says that said property was on hand at said place of trial to respond to said judgment. He further says that said plaintiff is estopped from prosecuting this motion against Fisher.”

The facts here pleaded do not amount to an estoppel. As said in the case of Henshaw v. Bissell, 18 Wall., 255, 271:

1 ‘ An estoppel in pais is sometimes said to be a moral question. Certain it is that to the enforcement of an estoppel of this character, such as will prevent a party from asserting his legal rights to property, there must generally be some degree of turpitude in his character which has misled others to their injury.
“Conduct or declarations founded upon ignorance of one’s rights have no such ingredient and seldom work any such result. There must be some intended deception in the conduct or declarations in the party to be estoppéd, or such gross' negligence on his part as to amount to constructive fraud.”

No intended deception is pleaded here; at most, the justice is said to have given poor advice as to the law, which the plaintiff and defendant accepted; it is not said that the plaintiff knew the law to be otherwise. Indeed, it is likely the subject of the liability on the bond in case of an appeal was not discussed, and the plaintiff’s attention not being challenged to that contingency, it follows that he was guilty of no deception regarding it.

Nor have we a case of contract here; the contract was in writing and is not to be varied by the equivocal language said to have been used.

Bigelow on Estoppel (5th Ed.), 773, says:

“The rule we apprehend to be this: ’’That when the statement or conduct is not resolved into a statement of fact, as distinguished from a statement of opinion or of law, and does not amount to a contract, the party making it is not bound, unless he stood in a relation of confidence toward him to whom it was made. If the statement, not being contracted to be true, ig understood to be opinion, or a conclusion of law from a comparison of the facts, propositions or the like, and a fortiori if it is the deduction ,of a supposed rule of law, the party may, with the qualification stated in the last sentence, allege its incorrectness.1 ”

Judgment affirmed.


text:
    PROMISSORY NOTE SIGNED BY INDIVIDUALS BUT FOR. CORPORATION.
    Circuit Court of Cuyahoga County.
    Robert E. McKisson v. R. S. Thomas.
    Decided, March 20, 1911.

      Promissory Notes—'Individuals Signing as Syndicate Managers, Liable —Collateral Security Must First be Applied.

    1. A promissory note reading: “we promise to pay,” etc., and signed, "H. E. Everett, David Morrison, R. E. McKisson, as syndicate managers of the Cleveland Hippodrome Company,” is the joint note of the individuals named.
    2. A note with collateral security which provides, “In default of payment of this note, said collateral shall be applied on the payment of said note, or any part thereof, by the then owner of this note,” requires the holder of the note to sell the'stock, or apply it in reduction of the debt, if the debt is not paid at maturity, before bringing suit against the makers of the note.

      B. E. McKisson, for plaintiff in error.

      Smith, Taft c6 Arter, contra.
    Winch, J.Henry, J., and Marvin, J., concur.
   This was an action on a promissory note signed as follows: “IT. A. Everett, David Morrison, R. E. McKisson, as syndicate managers of the Cleveland Hippodrome Company”; the body of the note reads: “we promise to pay,” etc.

Judgment was against the makers of the note as individuals; plaintiff claims that the judgment should have been against the Cleveland Hippodrome Company, which he says, was intended to be bound by the signatures:

We find no error in. the judgment on this score. General Code of Ohio, Section 8125; Titus v. Kyle, 10 Ohio St., 444; Collins v. Ins. Co., 17 Ohio St., 215; Anderson v. Shoup, Trustee, 17 Ohio St., 125; Bank v. Cook, 38 Ohio St., 442; Robinson v. Bank, 44 Ohio St., 441; Reiff v. Mulholland, 65 Ohio St., 178.

A certificate for one hundred shares of the preferred stock of the Cleveland Hippodrome Company was pledged as collateral security to the note, which also contained the following words: "In default of payment of this note, said certificate of preferred stock shall be applied, on the payment of said note, or^any part thereof, by the then owner of this note.”

The petition alleged that said stock was worthless, but the -answer denied it. No evidence on this issue was introduced.

' We think the holder of the note, by the clause quoted, was under obligation to sell the stock, or apply it in reduction of the debt, if the debt was not paid at the maturity of the note, before suit could be brought against, the makers thereof. The language here used is mandatory, and thus distinguishes this case from the case of Lake v. Trust Co., 3 L. R. A. (N. S.), 1199, cited by counsel for defendant in error.

For this error the judgment will be reversed and the cause remanded for new trial, but not until the petition in error is amended by bringing in all parties to the judgment below as defendants in error in this court. The judgment below was a joint judgment and can not be reversed as to one of the defendants below without being reversed as to all of them.


text:
    UNSUCCESSFUL EFFORT OF MINOR. TO RECOVER. MONEY PAID FOR. STOCK.
    Circuit Court of Cuyahoga County.
    Walter Stone, by J. N. Stone, His Next Friend, v. S. B. Sanders, et al.
    Decided, March 20, 1911.

      Variance.

    An action to recover money paid by a minor to defendants for stock sold him by them is not sustained by evidence that the defendants, as brokers, purchased the stock for him, on commission, from others.

      'Hart-, Canfield é Croke, for plaintiff.

      Squire, Sanders <& Dempsey, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was an action brought on behalf of a minor to recover for him some $600 which he had paid for certain shares of stock which he claimed the defendants had sold him. On the trial it was shown that defendants were brokers and had not themselves sold the stock to- the minor, .but had purchased it for him, on commission, from others. Verdict was directed for defendants. This was right; the variance between the allegations and proof was material and fatal.

Judgment affirmed.


text:
    APPROPRIATION OF LAND UNDER. LEASE.
    Circuit Court of Cuyahoga County.
    George Batterman et al v. City of Cleveland.
    Decided, March 20, 1911.

      Appropriation of Leasehold Interest—Separate Finding for Landlord and Tenant—Map Evidence of Possible Special Benefits—Value of Buildings.

    1. In an appropriation proceeding brought by a municipal corporation against a landlord and his tenant, each is entitled to a separate finding and a separate review of that finding.
    2. A map which shows that by reason of the contemplated improvement new lines of travel past a store will be opened up, which may offset some loss of trade from the old travel, is sufficient evidence to warrant a charge that the measure of damages to property not taken may be reduced by special benefits, if any, which may be found to accrue from the improvement.
    3. In an appropriation of a tenant’s interest in lands, value of the-buildings on the part not taken may be given in evidence, though the tenant has a right to remove them at the termination of the lease.
    ' Patterson & Neiding, for plaintiff in error.

      Newton D. Baker, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   The city of Cleveland .began proceedings 'in. the Insolvency Court of Cuyahoga County to appropriate certain lands for approaches to a new bridge over the Nickel Plate tracks on West 25th street in the city of Cleveland and for the assessment of damages to those injured by the improvement. The Batter-mans had a lease of two buildings on land owned by-David Morison, abutting the improvement, and both landlord and tenant were made defendants in the action.

The jury was instructed to find separately for the landlord and his tenants, which they did, and the latter are here with a separate petition in error complaining of the award to them.

We think they were entitled to a separate finding and are properly before this court without bringing with them their landlord. Gluck v. City of Baltimore, 81 Md., 315; Trustees, etc., v. Wm. Irving Clark, 137 N. Y., 95; Stuffins v. Village of Cranston, 11 L. R. A., 839.

The verdict in favor of the Battermans was in the sum of $800; it is claimed that the nncontradicted evidence presented to the jury required a verdict of at least $1,800.

It is .true that the Battermans’ witnesses testified that the damage was that much or more, but the city, while it offered no witness who gave different figures, did place in evidence a map which showed that new lines of travel past the Battermans’ store would be opened^ up, which might offset some loss of trade from the old travel. This was sufficient evidence to warrant a charge that the measure of plaintiffs in error’s damages to property not taken might be reduced by special benefits, if any were found to accrue to them from the improvement, as provided by law.

We are unable to say that the verdict was inadequate, or unsupported by the evidence. The good sense of twelve men upon this subject is not lightly to.be set aside, in the absence of any showing of passion or prejudice.

There was no error in admitting evidence as to the value of the buildings, although the tenants had a right to remove them at the end of their five years’ lease. Of course the measure of damages, as charged by the court, was the difference between the rental value of the premises before and after the improvement; that is, the diminution in the value of the leasehold. Value of the buildings might throw some light upon their rental value, although it would not be conclusive. We see no prejudicial error in admitting this evidence.

We are unable to say that any error intervened by the exclusion of an answer to a question asked of a witness for the Batter-mans, for there was no offer to prove what the witness would testify to.

Judgment affirmed.


text:
    INJURY TO EYE BY A PIECE OF GRAVEL THROWN BY A FAST TRAIN.
    Circuit Court of Cuyahoga County.
    Erie Railroad Company v. Sam Ciofalo.

    Decided, March 20, 1911.

      Employee of Railroad Injured by Stone Thrown by Passing Train—Inconsistencies in Testimony■—Bill of Exceptions.

    1. A laborer on a railroad may recover damages for injuries to his eye caused by a stone or cinder thrown or shot into it by a fast passenger train, from a pile negligently left between the rails where he was working.
    2. Inconsistencies may occur in the testimony of truthful witnesses; it is for the jury to reconcile them.
    3. A trial judge may make such annotations and corrections on a bill of exceptions as, in his judgment, it requires.

      Cushing, Siddall & Palmer, for plaintiff in error.

      Harry P. Payer, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.

       Affirmed without opinion, Erie Railroad Co. v. Ciofalo, 86 Ohio State, 322.

   This was a personal injury damage cáse in which Ciofalo, a laborer on the road, recovered damages for injuries to his eye which he claimed were occasioned by a stone or cinder thrown or shot' into it by a fast passenger train from a pile negligently left between the rails where he was working.

. Counsel for plaintiff in error has given us- a very full brief on the evidence introduced at the.trial which has been carefully examined, as well as the record. There are some contradictions in the testimony of different witnesses, but the.plaintiff himself sustained his claim by his own testimony, and we see no reason for upsetting the verdict on the weight of the evidence.

. The railroad company claimed that Ciofalo had a bad eye and had been seen with a bandage over it sometime before 'the day on which he claimed that he was injured. What of that? It is shown by his doctor that at this time he had a laceration of the eye and Dr. Burke testified to a recent scar. It is fate that one always gets hurt in his tender spot. A good eye might have closed in time to avert the damage. The verdict was not large.

It is claimed that one witness for plaintiff, Joe Granato, who testified that he was present when Ciofalo was hurt, could not have been present on that day. Perhaps Ciofalo was mistaken as to the date of the accident. His doctor could not give the exact date and the plaintiff was an ignorant foreigner.

Ciofalo says Granato was with him on the same side of the track, when the passenger train went by. He says he was on the south side of the track; Granato says he was on the north side of the track. One or the other is mistaken. What of it? They both claim they were together.

Other inconsistencies in the testimony are pointed out, but they have not impressed us as graver than those usually found in the testimony of truthful witnesses.

Complaints made regarding a want of certain allegations in the petition, are not verified upon an examination of it, and criticisms of the charge, though numerous, are not grave. We find no prejudicial error in it.

We also think the trial judge had a right to make such annotations on the bill of exceptions as in his judgment it required. We find none, however, that prejudice the rights oE the plaintiff in error.

It is claimed that the plaintiff’s counsel was guilty of mis1conduct both in the examination of witnesses and in his argument to the jury.

As to the examination of witnesses, the claim agent of the company was not submitted to any more embarrassing examination than is usually and lawfully indulged in, when such agents are introduced as witnesses. The same is true of other employees of the company, who were witnesses. Said counsel’s claims as to what the evidence showed were' always corrected by him or the'court, when he was mistaken.

The trial judge certifies that some unfortunate wrangling between counsel during the argument was provoked by counsel for plaintiff in error.

It may be assumed that this was 'true, but, while showing some unnecessary heat and irrelevant allusions, we are unable to conclude that the verdict was influenced thereby.

We have examined all the rulings on evidence called to our attention on the argument, and. in the brief of counsel' and find no error.

Judgment affirmed.


text:
    RECOVERY FOR. UNNECESSARY DAMAGES IN REMOVING FIXTURES.
    Circuit Court of Cuyahoga County.
    Louis M. Greif v. Joseph Kiewell.
    Decided, March 20, 1911.

      Damages to Real Property—Exemplary Damages—Measure of Damages .—Charge Misleading.

    1. In an action for removing fixtures from a house, whereby the house itself was damaged, the evidence showing, malice, lawlessness and unnecessary damage and a malevolent spirit, exemplary or punitive damages may be awarded.
    2. Where damage has been done to real property, the measure of damages is the difference in the value of the property before and im- ■ mediately after the injury occurred.
    3. The consent of the parties in one instance to aii erroneous statement of'the law, by the court, to the jury, does not bar one of them from . complaining of other parts of the charge where the same incorrect statement was made, if the context shows that the charge as a whole was misleading.
    . H. W. Ewing and W. H. Boyd, for plaintiff in error.

      Alexander <& Hawley and William Howell, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   Greif was the owner of certain premises on Carroll avenue in the city of Cleveland which he sold, through an agent, to Kiewell.

On the premises was a twelve room residence, fitted up with electric lights, hot water furnace, hot water boiler, wine room, cupboards, bath tubs, marble slab, booh case, cabinets, a sideboard, and other ornamental and useful fixtures, attached to the building. When Greif delivered possession of the premises and moved out, he tore out and carried away with him many of the fixtures,- claiming the right to do so, partly on the ground that some of them were not permanently affixed to the building, and partly on the ground that he had expressly reserved the right to do so in the contract of sale.

Thereupon Kiewell brought suit, alleging that Greif out of malice and ill-will and for the purpose of harassing him and injuring the premises had wrongfully, wilfully and maliciously torn out and removed said fixtures, and that in tearing out and removing them he had broken and injured the walls, decorations, finish, stairs, cement floor in basement and other parts of the house and had purposely and maliciously driven nails into the wood work and finish of the house and nailed rough boards over the places from which said shelves, cabinets', etc., had been torn and removed, for all of which he asks damages.

The issues were made up and tried to a jury which brought in a verdict in the sum of $1,300 for the plaintiff, upon which judgment was entered.

Greif now complains of said 'judgment in this court, alleging that it is excessive, unwarranted by the evidence and that the trial judge erred in his charge to the jury.

An examination of the record shows that .the jury might well have found as it did, if the charge was correct; but two complaints are made with respect to the charge; first, that the jury was instructed that it might assess exemplary damages, and second, the rule as to measure of damages was incorrectly stated.

There was evidence in this case tending to show that Greif acted in a malicious and lawless manner in removing fixtures from the premises; he did unnecessary damage, one instance of which shows clearly his malevolent spirit. Not only did he remove all the push buttons and switches on the electric wiring in the house, but he pulled out some of the wires and shoved others back between the partitions, so that they could not be used again.

It was said in the case of Railroad Co. v. Hutchins, 37 Ohio St., 282, 294:

“For every wrong done, if it can be redressed in damages the rule is that the injured party shall have compensatory damages, and if the wrongful act was willful, wanton or malicious, punitive damages may also be awarded.”

This was an action for cutting down and removing timber from, a freehold. The timber had passed into the hands of an innocent holder and the court held that punitive damages could not be assessed against such holder. To the same effect is the case of Iron Co. v. Harper, 41 Ohio St., 100, where an agent, by a false and fraudulent representation to his principal, obtained possession of his jjrincipal’s goods and converted them to his own use.

On the measure of damages the trial judge charged as follows:

“If you find that the plaintiff owned these fixtures and that the defendant took them away from there, you should give him a verdict for the fair and reasonable cost of restoring them in as good a condition as they were. ’ ’

Again:

‘ ‘ The rule of damage in such cases is that the plaintiff would be entitled to recover any damage done by the removal of property, and the cost of restoring the property to as good a condition as it was before.”

Opposite this phrase on the margin of the bill of exceptions is a statement signed by the trial judge that:

“The language used by the court as follows, ‘and the cost of restoring the property to as good a condition as it was before, ’ was used by the court by consent of the parties. ’ ’

This annotation by the trial judge shows that he was doubtful of the rule he enunciated. Of course it was wrong. It permitted the plaintiff to obtain new fixtures for old and secondhand ones. The rule laid down repeatedly in this state is that where damage has been done to real property, the measure of damages is the difference in the value of the property before and immediately after the injury occurred. 12 C. C., 426; 12 C. C., 520; 12 C. C., 650.

The consent of the parties in the one instance to an erroneous statement of the law, should not now bar the plaintiff in error from complaining of other parts of the charge where the same incorrect statement was made, if the context shows that the charge as a whole was misleading. Such we find to be the case for several times the court speaks of the cost of restoring the property to as good a condition as it was before, as referring to a repair of the damage done to what was left, by the tearing out of fixtures and several times as including not only that, but also the cost of purchasing new fixtures, and installing them.

On the whole, it seems that justice will be done by granting a new trial, in order that a jury may be properly directed to a correct conclusion by a correct statement of the measure of damages to be applied in a case like this.

Judgment reversed for error in the charge.


text:
    INJURY FROM PARTICLES THROWN OFF BY MACHINERY.
    Circuit Court of Cuyahoga County,
    John Kump v. The Kilby Manufacturing Co.
    Decided, March 24, 1911.

      Negligence—Qonstruction of Statute for Protection of Workingmen.

    While Section 4364-89e, Revised Statutes, requires owners and operators of factories and workshops to make suitable provisions for guarding all saws and wood-cutting and wood-shaping machinery so as to prevent injury to. persons who may come in contact with them, it does not require that such machinery be so guarded as to prevent material or particles being thrown off from such machinery, to the injury of workmen using it.

      H. C. Boyd and C. W. Dille, for plaintiff in error.

      Hoyt, Dustin, Kelley, McKeeham- & Andreivs, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was an action for damages for personal injuries sustained by the plaintiff December 15, 1909, by reason of the alleged negligence of the defendant company in failing to properly guard a .circular power saw, as required by the statutes.

Plaintiff alleges in his amended petition that he was a pattern maker and while cutting some prints for patterns ! ‘ and attempting to push a sawed-off piece of wood away from said unguarded saw, suddenly, by reason of the defendant’s negligence in not guarding said saw, said wood was caught in the teeth of said saw and was hurled violently against said plaintiff’s right eye, rupturing the eye-ball and permanently destroying the sight of the same.”

A verdict was directed for the defendant a,t the close of the plaintiff’s evidence, the trial judge holding that the plaintiff had shown no violation of the statute relied upon, which is Section 4364-89c, Revised Statutes, the cause of the action having arisen before' the adoption of the General Code.

The sole question here is whether the court below properly interpreted and applied said statute.

The original act was passed March 20, 1900, and is found in Yolume 94 of Ohio Laws, at page 42, and is entitled: “An act to provide for the guarding of machinery. ’ ’

The first section of the act provides:

‘ ‘ That owners and operators of factories and workshops, which terms shall mean all manufacturing, mechanical, electrical and mercantile establishments, and all places where machinery of any kind is used or operated, shall take ordinary care, and make such suitable provisions as to prevent injury to persons who may come in contact with such machinery, or any part thereof; and such ordinary care and such suitable provisions shall include casing or boxing of all shafting when operating horizontally near floors, or when in perpendicular or other position operating between, from, or through floors, or traversing near floors, or when operating near passageway, or directly over the heads of employees1; the enclosure of all exposed cog-wheels, fly-wheels, band-wheels, all main belts transmitting power from' engine to dynamo, or other bind of machinery, and all openings through floors, through, or in which such wheels or belts may operate, with substantial railing; the covering, cutting off, or countersinbing of begs, bolts, set-screws and all parts of wheels, shafting, or other revolving machinery, projecting unevenly from and beyond the surface of such revolving parts of such machinery; the railing in all of unused elevator openings, the placing of automatie gates or floor doors, and the keeping of same in good condition, on each floor from which and whereon each side or sides, of elevator openings entrance to the elevator carriage is obtained, the frequent examination and keeping in sound condition of ropes, gearing, and other parts of elevators, the closing of stair openings on all floors, except where access to stairs is obtained, and the railing of stairs between floors, the lighting of hallways, rooms, approaches to rooms, basements and other places wherein sufficient daylight is not obtainable; the guarding of all saws and other wood cutting and wood shaping machinery, providing shifters for shifting belts, and poles or other appliances for removing and replacing belts on single pulleys, and adjusting runways, and staging used for oiling and other purposes, more than five feet from floors with hand railing, and providing counter shafting with tight and loose pulleys or such other suitable appliances, in each room, separate from the engine room, for disconnecting machinery from other machinery when in operation.”

The second section provides that any owner or operator of a factory or workshop who violates any provision of the first section shall be fined.

The third and fourth sections provide for inspection of shops and factories, to the end that the act may be enforced.

Section 4238c-l, Revised Statutes, abolishes the defense of assumed risk, where an employee has been injured by the negligent omission of his employer to guard or protect his machinery in the manner required by any penal statute of the state or United States, but limits the recovery to $3,000 where injury does not result in death.

The operative words of 4364-89c applicable to this ease, which require construction, are as follows:

‘ ‘ The owners and operators of factories and workshops, which terms shall mean all plaees where machinery of any kind is used or operated, shall take ordinary care, and make suitable provisions so as to prevent injury to a person who may come in contact with any such machinery, or any part thereof, and such ordinary care and such suitable provisions shall include the guarding of all saws and wood cutting and wood shaping machinery. ’ ’

The trial judge held that the plaintiff could not recover in this case, because, in his judgment, the statute provided only for the guarding of saws in such manner as to prevent any person being injured by coining in contact with tbe saw and did not require a guard which would prevent an injury by pieces of material thrown off by the saw and striking some person not in contact with the machinery.

The whole of this statute has been quoted so as to show how carelessly it was drawn. Other parts of the statute, not applicable to this ease, have been before the' courts. The Circuit Court of Lucas County, speaking by Kinkade, J., in the case of Marine Boiler Works v. Shuck, 13 C.C.(N.S.), 118, calls attention to the defect in the statute as to the protection of cog-wheels. On page 121 he says:

“It will be observed, as I have said, on a careful reading of this statute, that there is nothing in the section which provides that exposed cog-wheels shall be boxed or covered. . The statute distinctly and plainly states that exposed cog-wheels shall be enclosed with a substantial railing. It is perfectly apparent to anybody that a railing in front of cog-wheels, if a man is obliged to have his hand near the cog-wheels, might be sufficient to protect his body from getting into contact with the cog-wheels, and at the same time have no effect in preventing his hand from coming in contact with the cog-wheels and being ground off. Of course it is not the business of the court to legislate; it is our business to find out what the statute says and declare it, and after the fullest consideration we have unanimously arrived at the conclusion that this statute, insufficient though it may appear in that form, provides only for a substantial railing to protect the one operating near exposed cog-wheels.”

While this legislation has penal features, yet, on the other hand, it is humanitarian in its purposes, so that a middle course should be taken in its construction. A. reasonable meaning should be given to the words used; not too narrow, because of its penal features, nor too liberal, on account of its remedial nature.

The attention of the court has been called to the wording of this statute, as now found in the General Code, Section 1027.

There it is made the duty of manufacturers to prevent injury to persons who use or come in contact with machinery. The question would be more difficult if the accident had happened since the adoption of the General Code; but, if the Legislature intended to extend the scope of the statute by inserting the word “use,” we are not helped by it. If, on the other hand, as claimed by counsel, the word “use” was inserted only as showing the interpretation put by the Legislature upon the meaning of the words “come in contact with,” we can only say that this Legislature conceived the words to have a different meaning from that understood by the Legislature which adopted the act, and so we are left to pass our own judgment upon it, guided by the rules of construction referred to.

Without referring to the lexicographers’ definitions, the ordinary persons would understand that the law here involved plainly means that employers of labor are required to guard saws so that employees may not be injured by coming in contact with them.

Had the Legislature intended that they should guard saws so that material or particles should not be thrown off from them .to to the injury of workmen requiring other and different devices from those which prevent contact with the saws, such intention might have been clearly expressed in simple language, leaving no doubt as'to the intention of the Legislature.

Two years before the act in question was adopted, the Legislature had before it the. prevention of accidents from just such causes, where dust creating machinery is used, and we find that it required that blowers or similar apparatus be placed over, beside or under emery wheels, etc., in such manner as “to protect persons using the same from the particles of dust produced and caused thereby and to carry away the dust arising from or thrown off by such wheels or belts while in operation.” R. S. 4364-86; 93 O. L., 155.

The danger in such cases apprehended is from objects thrown off from the machine; in the ease of a saw the danger apprehended is from coming in contact with the saw. In other words, the Legislature had in mind the well known danger one runs of having his fingers cut off by coming in contact with a circular saw, if he uses it without a proper guard.

The record shows that a guard to prevent the cutting off of fingers does not prevent accidents such as befell the plaintiff.

The question here involved is not free from difficulty and doubt, and we are therefore unable to say that the trial judge was clearly wrong in directing a verdict for the defendant.

Judgment affirmed.


text:
    JURISDICTION OF THE COMMON PLEAS COURT ON A CLAIM FOR LESS THAN $100.
    Circuit Court of Cuyahoga County.
    Samuel Clarke et al v. Theodore Cannon.
    Decided, March 24, 1911.

      Mechanic’s Lien—Amount Less than $100—Jurisdiction of Common Pleas Court—Husband and Wife Jointly Indebted, When.

    1. Where an action is brought in the common pleas court to foreclose a mechanic’s lien for less than $100, .said court may retain the ease and enter judgment for the amount claimed, although it adjudicates that the lien is invalid.
    2. One who upon the order of a husband furnishes material for the construction of a house upon land the title to which stands in the wife, may have judgment therefor against both, if it appears that the whole' project was a joint and family undertaking, to which both contributed of their means as far as they could, and in the benefits of which both parties were to share.

      W. T. Black and O. J. Campbell, for plaintiffs in error. Seidman •& Seidman, contra.
    Winch, J.; ITenry, J., and Marvin, J., concur.
   Defendant in error was plaintiff below, where he filed a petition containing two causes of action, one setting up a mechanic’s lien and the other asking for judgment on the account claimed to be secured by said mechanic’s lien; this account was for less than $100.

He failed as to his mechanic’s lien, because notice to the owner was not given as provided in the amendment to Section 3185, Revised Statutes, found in 97 Ohio Laws, 499, which provides:

“Such persons so filing the affidavit herein provided, shall within thirty days thereafter notify the owner of the property, his agent or attorney, that he claims such lien, and if he fail to do so, the lien so secured shall be null and void. ’ ’

This clause appears as Section 8315, in the General' Code. On his other cause of action, on the account, he recovered judgment against both plaintiffs in error, who are husband and wife, the wife owning the property and claiming that her husband was not her agent in ordering the work done for which the plaintiff sued, but that she had made a written contract with her husband for the erection of a house on her own lot, and that he had made a personal contract with the plaintiff as a sub-contractor, upon which the husband alone, as principal contractor, was liable.

The case here requires an answer to two questions:

First, had the common pleas jurisdiction to render any judgment on the account, the amount thereof being less than $100, the limit of said court’s original jurisdiction?

The action involving a lien upon real estate, it was properly brought in the common pleas court, although the amount claimed was less than $100; the proof showed that the plaintiff had complied with the law and secured a lien, but that it afterwards became null and void by the plaintiff’s failure to notify the owner of his claim within thirty days after filing his affidavit.

The analogy between the situation here and in a ease where the plaintiff sues for more than $100 but recovers less, is apparent. It is said in the case of Draper v. Clark, 59 Ohio St., 336, at page 340 :

‘ ‘ It has been uniformly held that the amount claimed and not the amount recovered, determines the jurisdiction of the common pleas. If it were otherwise, the absurd result would follow that the court would be compelled to hear and determine a case on its merits in order to determine its jurisdiction.”

See also Jenney v. Gray, 5 Ohio St., 46; Brunaugh v. Worley, 6 Ohio St., 597, and Linduff v. Plank Road Co., 14 Ohio St, 336.

It would seem that the reasoning of these cases requires us to hold that where an action is brought in the common pleas court to foreclose a mechanic’s lien for- less than $100 said court may retain the ease and enter judgment for the amount claimed, although it adjudicates that the lien is invalid.

Second, was the wife liable on this debt ?

An answer to this question requires an examination of the weight of the evidence. We have read the record and think that it shows clearly that although the wife held title to the lot on which the house was built, and although she pretended to make a written contract with her husband for the erection of a house thereon, still the whole project was a joint and family undertaking, to which both parties contributed of their means so far as they could, and in the benefits of which both parties were to share.'

The pretended contract was in the sum'of $2,400; by a mortgage on the property $1,800 was raised; both parties signed the note secured by this mortgage. The wife wholly fails to explain where the other $600 was' to come from. She says she left that to her husband.

The judgment being against both husband and wife, we are unable to say that it was not supported by the evidence.

Judgment affirmed.


text:
    AS TO PREPARATION OF BILLS OF EXCEPTIONS.
    Court of Appeals for Hamilton County.
    State of Ohio, ex rel William C. Dory, v. William L. Dickson.

    Decided, December 20, 1913.

      Transcript of Evidence in Narrative Form—Duty of Trial Judge in Connection with Preparation of a Bill of Exceptions—Construction of the Rule of the Court of Appeals.

    1. That part of Rule I of the Courts of Appeals of Ohio, providing for a reproduction of a verbatim transcript of the evidence, when desired by either party or directed by the court, is not intended to furnish opportunity to a party to harass his opponent by putting him to the trouble and expense of reproducing it. Where a party desires a complete transcript, it is his duty to furnish it.
    2. When a proper bill of exceptions has been prepared in narrative • • form under the rule, the trial judge should not as a matter of convenience order a verbatim copy of the evidence, but if he can not sign it as presented it is his duty to suggest to counsel what corrections should be made and to render him reasonable assistance and give necessary time for the making of such corrections, not however to the extent of placing the burden of the preparation of such bill of exceptions upon the judge.

      Marston Allen, for plaintiff in error.

      Geoffrey Goldsmith, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.

      |For opinion below, see 15 N. P. (N.S.), 302.

   The purpose of Rule I of the court of appeals in providing for what has been called a short form of a bill of exceptions, is -to furnish a method of bringing into the record only so much of the evidence as may be necessary to present clearly the questions of law and fact to be considered by a court of error in determining the correctness of the ruling of the trial court, without at the same time encumbering the record with the needless, immaterial and obscuring matter that will always be found in a record made up of a complete transcript of the modern stenographic report of all the evidence and proceedings at the trial.

The rule is in the following words:

‘ ‘ Only so much of the evidence shall be embraced in a bill of exceptions as maybe necessary to present clearly the questions of law and fact involved in the rulings to which exceptions are reserved, and such evidence as is embraced therein shall be set forth in condensed and narrative form, save that if either party desires it or the court or judge so directs, any part or all of the evidence shall be reproduced verbatim.”

It is authorized by and is in accord with the General Code, Section 11562:

"No particular form of exception is required.' The exception must be stated with the facts, or so much of the evidence as is necessary to explain it, and no more, and the whole as briefly as possible.”

That part of the rule providing for the reproduction of a verbatim transcript of the evidence, when desired by either party or directed by the court, is not intended to furnish opportunity to a party to harass his opponent by putting him to the trouble and expense of producing it. "Where a party desires such complete transcript it would seem to be his duty to furnish it. Nor should the judge impose a hardship upon the party by requiring such transcript without necessary and sufficient 'cause.

It is the duty of the litigant, or his counsel, and not that of the trial judge to prepare the bill of exceptions, but if the judge can not allow and sign it as filed it becomes his duty to suggest to counsel what corrections should be made and to render him reasonable assistance and necessary time for such corrections.

When a proper bill of exceptions in narrative form under the rule has been prepared and filed, it is not proper for a trial judge, as a matter of convenience to himself and to avoid the labor of correcting it, to order a verbatim copy of -all the evidence and proceedings to be supplied and substituted for. the narrative form ef evidence: Nor would it be proper for the judge to order a full stenographic eopy of the evidence merely for the purpose of examination, comparison and preparation of the narrative form .to be used in the bill of exceptions.

• It is the right of a litigant, if he so desires, to have his case reviewed by an upper court, and it is the duty of the trial judge to assist the litigant in the enjoyment of that right as much as it is his duty to protect him in any other right than he might be properly asserting, in such court.

Either party in a case is entitled to have any exceptions that he may take to the rulings of a judge preserved for trial in a higher court. This he can do by taking a single bill of exceptions embodying only so much of the record as may be necessary to have that ruling reviewed, and he may if he sees fit take separate bills of exceptions to separate rulings, or he may embody all of his exceptions together with all of the evidence in one bill of exceptions. To choose between these methods is the prerogative of the litigant.

The court’s duty, however, is to determine as to the correctness of the bill or bills of exceptions, and his determination of what is a true bill is final.- A party can not by submitting a mere skeleton of a bill of exceptions demand that a trial judge should practically prepare it by furnishing all omitted parts or necessary matters that should have been embodied in it.' The heavy labors of 'the judge should not be increased by requiring from him any considerable part of the labor of’ its preparation, but he should be ready and willing to render reasonable a'ssisti anee to counsel in pointing out and advising him as to' what should be included, not however to the extent of controlling’his determination as ’to how much or how' little he sees fit to place into the’ record for the purpose of seeking review. If the bill of exceptions prove not sufficient to properly present’ the question desired in the court above, that will be the misfortune of the party, or his counsel, who prepares it.

The bill of exceptions as filed with this petition in mandamus seems to show that as originally filed in the common pleas court, it consisted of pages 1, 2, 3, 4, 5, 6 and 7, and subsequently it was sought by plaintiff’s counsel to correct the same by offering pages x, y and z in place of pages 1 and 2, except the last two paragraphs on page 2 which were to be retained and follow page z, and z is followed in turn by page 3 and the remaining pages of the bill of exceptions.

With either form taken as the bill of exceptions, had the certificate been signed without modification as originally presented, it would hardly be claimed that it showed that it included all of the evidence. The words found in the last paragraph on page 2 “With this as a brief statement of all the evidence, the court charged the jury as follows:” might be claimed to effect the purpose of such a certificate, but in either form as prepared, of what would precede them, it would hardly authorize a court of error to review the judgment as to the weight of the evidence.

If the trial court feared that the language above quoted might be misconstrued into a certificate that the bill of exceptions contained all of the evidence, they might have been stricken out or modified by the judge in correcting the bill.

We take it, however that the purpose of counsel for plaintiff below was only to prepare a record that would afford an opportunity to review the ruling of the court in refusing to admit testimony offered by him in rebuttal, as shown on page 2, and to review the general charge as given by the court. This bill of exceptions -is signed by the trial judge at the bottom of page 7, after all of the formal language of the certificate of allowance though not in the blank space originally left for that signature, adding certain language to the effect that the court does not know whether the above pages of the evidence embrace all of the evidence or not, and that the charge of the court is correct.

For the purpose of reviewing the correctness of the charge and the ruling above referred to as to the admission of evidence this court is of the opinion that the bill of exceptions as signed by the trial judge becomes a bill of exceptions which, may be considered by the court of error, and for that reason the writ prayed for will be refused.


text:
    PROCEDURE WHERE SUBORDINATE IS SUSPENDED BY CHIEF OF POLICE.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel Joseph Finding, v. Fred Kohler, Hy. D. Wright, H. L. Davis and John Vanek.
    Decided, March 20, 1911.

      Municipal Corporations—Chief of Police—Suspension of Subordinate— Trial by Director of Public Safety. . •
    When suspension is any part of the punishment inflicted upon one of his subordinates by the chief of police, he must forthwith certify that fact in writing to the director of public safety, for trial and judgment.

      F. F. Gentsch, for plaintiff.

      Newton D. Baker, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   While the chief .of police of the city of Cleveland is invested by'the statutes and police regulations with ample discretionary powers for disciplining his subordinates, the plain provisions of Section 4380, General Code, require that when suspension is any part of the punishment denounced by him, he shall forthwith in writing certify such fact together with the cause therefor to the director of public safety, who, within five days from the receipt thereof, shall proceed to inquire into the cause of such suspension and render judgment thereon. A peremptory writ to that end will issue in this ease. The injunction prayed for is denied.


text:
    LIABILITY FOR. BITE BY DOG ON OWNER’S PREMISES.
    Circuit Court of Cuyahoga County.
    Raymond Frerich, an Infant Under Fourteen Years of Age, v. Mathew C. Blake.
    Decided, March 24, 1911.

      Vicious Dog on Owner’s Premises—Pleading—Sufficient Averments.

    A petition which states that the plaintiff was lawfully on the defendant’s premises and while there was bitten, without his fault, by defendant’s dog while it was running at large thereon in the day time, unmuzzled, shows a cause of action.

      Webber & Metcalfe, for plaintiff in error.
    P. II. Kaiser, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
    A demurrer to the petition was sustained in this case.
   It avers that the plaintiff, an infant nine years old', was lawfully on the defendant’s premises and while there was bitten without his fault by defendant’s dog while it was running at large thereon, in the daytime, unmuzzled.

It will be noticed that the dog was upon its owner’s premises and there is no allegation that he had knowledge of its vicious propensities.

Under the Hayes case, 62 Ohio St., 161, such knowledge ana negligent keeping of the dog thereafter, is the gist of the action.

About a month after that case was decided, the Legislature passed an act, now known as Section 5838, General Code, which reads as follows:

“A dog that chases, worries, injures or kills, a sheep, lamb, goat, kid, .domestic fowl, domestic animal or person, can be killed at any time or place; and, if in attempting to kill such dog running at large, a person wounds it, he shall not be liable to prosecution under the penal laws which punish cruelty to animals. The owner or harborer of such dog shall be liable to a person damaged for the injury done.”

It is conceded that this statute does away with the necessity of alleging that the owner knew the dog to be vicious. Guis v. Zech, 24 Ohio St., 329.

But it is said that the statute gives a right of action to a person bitten by a dog running at large and not by a dog upon its owner’s premises.

This is said to follow from the provision that only when you wound such dog running at large, are you not liable to prosecution for cruelty to animals.

We do not so read the.statutes, “such dog” in the last sentence, the same as “such dog” as previously used, refers to “a dog that chases, worries, injures or kills a sheep, lamb, kid, goat or domestic fowl or domestic animal or person. ’ ’

The policy of the statute seems to be to permit a man to keep a dog at his peril and to make him responsible for any damage or injury the dog may do, whether the owner has a reason to apprehend it or not. Those who do not like dogs will approve of this law, and the people are about equally divided between those who like dogs and those who do not.

There seems to be no good reason for exempting a dog owner from liability to one bitten while lawfully upon the owner’s premises. That is where dogs get bold and do the most-damage to innocent visitors. The wording of the statute requires no such restrictive interpretation as plaintiff in error urges, and the petition is held to make a case under the statute.

Judgment reversed.


text:
    SUFFICIENT REASON FOR TERMINATING CONTRACT FOR SALE OF GOODS.
    Circuit Court of Cuyahoga County.
    The Bell Garment Company v. The Unity Silk Company.
    Decided, March 24, 1911.

      Contract—Breach by Purchaser Relieves Seller from Contract.

    A garment company being indebted to a silk company for silk furnished it, agreed to pay its bills when due, if the silk company would furnish it further silk, “up to twenty-five pieces, as many as you can at once.” Accordingly the silk company shipped two more pieces of silk but the garment company, instead .of paying its bills then due, sent on a check for only part of the amount keeping out a certain sum, as it claimed, “for the purpose of protecting it and guaranteeing that the silk company would perform its contract in the future.” Held: By so doing the garment company gave good excuse to the silk company to terminate the contract.

      Fred Desberg, for plaintiff in error.

      Weed, Miller & Bofhenberg, contra.
    Winch, J.; Henry, J., and Marvin, J., concur. '
   The silk company sued the garment company on an account for goods sold and delivered. The-garment company counter-claimed for damages arising out of the silk company’s failure to deliver all the goods ordered. Judgment was for the silk company.

It appears that in November, 1906, by correspondence, an agreement was entered into between the parties for the sale of sixty-six pieces'of black taffeta silk to be according to sample. Certain pieces were shipped in November and December, which were not according to sample, but the garment company kept them and an allowance in price was made. Terms of payment were seventy days, and the bills for these shipments came due in February, 1907. Meanwhile, the silk company appears to have -tried to get out of delivering the balance of the order, the price of such silk having gone up. However, in February, the garment company wrote the silk company that if the latter would ship it “up to twenty-five pieces, as many as you .can, at once,” it would pay its bills when due. And a few days later, after another bill had come due, it wrote: “We would ask you to hurry some of this forward as we are only wanting to see how this comes up as compared to the material originally purchased of you, before remitting on account.”

Accordingly, the silk company on March 7 shipped two more pieces of silk of the required quality to the garment company, but the latter, instead of paying its bills then due, as it had agreed to, sent on a cheek for only part of the amount, keeping out a certain sum, as it claimed, for the purpose of protecting it and guaranteeing that the silk company would perform its contract in the future.

We think that by so doing the garment company gave good excuse to the silk company for terminating the contract.

No matter what the conduct of the silk company had been before that time, the garment company had waived all breaches of the contract by urging that twenty-five more pieces be sent on, and agreeing to pay its pending bills upon receipt of part of said order. The earnest of the silk company that it would continue to ship, was very 'small, only two pieces, but it complied with the agreement and the garment company was obliged to pay its bills. This it refused to do and thereby authorized the silk company to terminate the contract. The judgment was properly for the silk company.

We find'no error in the ruling on evidence complained of, and the judgment is affirmed.