text:
    RESTRICTIONS IN LEASE.
    Circuit Court of Hamilton County.
    The Apollo Cigar Co. v. Robert J. O’Brien et al.
    Decided, February 15, 1908.

      Covenants of Restriction — Construction of, tohere of Doubtful Meaning —Breach Alleged as to Cigar Privilege.

    The rule that, where there is doubt as to the meaning of a covenant of restriction it must be resolved adversely to the restriction, forbids a finding that a breach has occurred in the covenant of the lease involved in this case as to cigar privileges in other parts of the same building. .

      Frank J. Forger and Fenis F. Cash, for the demurrer.

      Karl H.'Cadwell, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   .It appears from the petition that the plaintiff leased from the defendant, O’Brien, “the first floor and basement of the four-story brick building known as No. 11 East Sixth street, and forming a part of the Hotel Savoy building, from Nos. 5 to 15 inclusive, East Sixth street, Cincinnati, Ohio,” and that in the lease he agreed for himself and his assigns—

‘ ‘ That he will not rent any of the store rooms connected with the Plotel Savoy building, numbered 5 to 15 inclusive, East Sixth street, for a cigar and tobacco business, during the occupancy of this plaintiff herein, excepting that the defendant, Robert J. O’Brien, expressly reserved the right to sell cigars, tobacco, smoker’s articles, magazines and periodicals at a stand not. to exceed eight feet in length in the hotel office, at the bar connected with the said hotel, and from a stand in a restaurant, if one should be established and a cigar stand desired, which latter stand was also not to exceed eight feet in length, the said stands to be located at the hotel office desk, and the restaurant cashier’s desk.”

The first part of the above allegation sets up a restriction of the right of the lessor to rent any of -the other store rooms for a cigar and tobacco business. It does not in terms nor by implication refer to or apply to the hotel office or lobby. The rest of the allegation states an apparent exception to or reservation in the restrictive clause, but can have no application as such unless the lessor or his assigns should conclude to establish a restaurant in one of the aforesaid store rooms. In other words, the lessor had conveyed no right pertaining to the hotel office nor restricted the use thereof in any way that would require or permit an'exception or reservation. It may be said, however, that from the designation of a specific location and size of the cigar stand in the hotel office, an intention to so restrict it may be inferred; but it seems well settled in cases of this kind all doubts must be resolved in favor of natural rights and against restrictions thereon. If there is doubt as to the meaning of the covenant, it must be resolved adversely to the restriction, but in determining its meaning, that must be found from the language used, which is not to be extended or enlarged by implication. The Postal Tel. Co. v. Western Union Tel. Co., 155 Ill., 335.

The erection and maintenance in the hotel lobby of a cigar stand sixteen feet .in length by the Hotel Savoy Co., one of the lessor’s assigns, is not therefore a breach of the covenant in the lease, and the demurrer to the petition will be sustained.


source: Caselaw Access Project

license: Public Domain

text:
    EVIDENCE OF CUSTOM WITH REFERENCE TO THE MANNER. OF PERFORMING WORK.
    Circuit Court of Lucas County.
    Philip Schwartz v. The Lake Shore & Michigan Southern Railway Company.
    Decided, March 5, 1907.

      Negligence — Bralceman Injured While Coupling Cars — Failure of Automatic Coupler to Worlc — Custom with Reference to Signals and Going Between Cars — Admissibility of Testimony Having Reference to Such Custom — Error in Directing Verdict for Defendant.

    The local yard custom among brakemen, upon discovering that a car coupler would not would not couple, as to giving the usual stop signal and stepping between the cars to adjust the coupler, is admissible to meet a charge of contributory negligence against a brakeman injured by stepping between a car and locomotive tender to • adjust the coupling device. L. S. & M. S. Ry. v. Botefuhr, 10 C. C. —N. S'., 281, reaffirmed.

      Marshall & Fraser, for plaintiff in error.

      Boyle & Lewis, contra.
    Wildman, J.; Haynes, J., and Parker, J., concur.
   This is a proceeding to reverse the judgment of the court of common pleas rendered in an action brought by Schwartz, for personal injuries, caused as he claims by the negligence of the defendant company. Upon the trial in the court of common pleas, at the close of plaintiff’s evidence, the court directed a verdict for the defendant, upon -two grounds: That the evidence failed to show negligence on the part of the company, and that it disclosed contributory negligence on .the part of the plaintiff. The ease is one of a character not unfamiliar to courts. The plaintiff was a brakeman in the employ of the defendant company and received severe injuries while engaged in coupling cars upon a train. He was between the tender of the locomotive and a car, when in obedience to a signal from the conductor the locomotive was moved, without warning to Schwartz, and his arm was crushed. I will not attempt in more detail a review of the evidence in the case, but will give my attention to one or two points which are claimed in the petition in error as ground for a new trial.

It is alleged as one ground of error that the court erred in the rejection of evidence offered by the plaintiff. On pages 36 and 57 of the bill of exceptions before us we find an offer of evidence as to the custom of the railway company in switching cars under circumstances like these in the case at bar.

The court, however, sustained the objection to the question, and an exception was taken by counsel for the plaintiff, who at .the same time offered to prove by the answer of the witness that "according to the universal custom of the defendant in that railroad yard, the brakeman, after seeing that the coupler would not couple” — it being a mechanical coupling between the tender and the ear, which it appeared by the evidence would not work — "would give the engineer the usual stop signal with his hand, and step in between to adjust the knuckle.” Then counsel informed the court: “and this will be followed up by questions, which, if permitted to be answered, will draw out the statement from the witness, that according to the custom he would not go to the engineer and tell him what he was going to do or what his signal meant, and he would not before stepping in between the cars wait until he had told the conductor what he was going to do in there; and further that in compliance with the custom the brakeman would not, after -the engine stopped, after it was standing still, after he had given the stand signal, he would not before stepping in between look and see whether the engineer was watching.” 'Whereupon the court said: "The objection to the introduction to that testimony will be sustained”; and -the defendant excepted.

In the conversation preliminary to this offer, between counsel and the court, the judge in saying that the objection would be sustained added: "I do not understand it to be competent to show- what was the proper thing to do by showing what they usually do.” The questions by which this evidence was sought to be elicited from tbe witness were not very artistically framed, and possibly the court may have been justified in requiring some clearer statement of the interrogatories to the witness1; but we gather from the language of the court that it was intended to exclude evidence of that character upon the ground suggested by the court — that it was not competent to show what ought to have been done, or what it was proper to do by what was usually done. We think, however, that if -the court intended -to exclude all evidence as to a local custom which had obtained in the operation of defendant’s trains in the yard, that .the court was in error.

It is hardly worth while to cite many authorities, in view of the fact that this question has come before the court on other occasions, and the holding, so far as I know, has been uniformly made that a custom of this character may be shown for its hearing upon the conduct of the parties. A custom of brakemen of going between cars to uncouple and remaining there in supposed security against any danger from moving of the train,' would naturally have some effect upon the conduct of the brakeman. His knowledge that the conductor would not be likely, by reason of the custom, to signal for the moving of the train while he was' in such a place of danger, bears legitimately on an inquiry whether he exercised ordinary care. The custom would naturally have an effect upon the conduct of the conductor also, because he might assume that, the brakeman, having knowledge of such a universal practice, would follow it.

The cases of Carl v. R. R. Co., 10 Circuit Court Reports, 711; Pennsylvania Company v. Mahony, Admr., 12 Circuit Court, 366; Memphis, etc., v. Britton, 1 C. C.—N. S., 33, are all cases which perhaps should be referred to in ¡this connection in support of the position which has just been taken and expressed. The case of Toledo Railway & Light Co. v. Ward, 2 C. C.—N. S., 256, is another case wherein it is held, as disclosed by the syllabus:

"Evidence of a custom of slackening the speed of electric cars in approaching a particular street crossing is admissible in a trial involving a collision at that crossing, as bearing upon the question of contributory negligence on the part of the one injured.”

The ease at bar is very similar in some of its aspects to the case of Pennsylvania Co. v. Mahony, supra; the case of Andrews v. R. R. Co., 8 Circuit Court, 584, decided by this- court and also the case of Lake Erie & Western R. R. Co. v. Mulcahy, 16 Circuit Court, 204, decided by the circuit court of the third circuit. Another case almost precisely in point and remarkably like the present one in most of its details, was decided by this court at the last term, Judges Haynes, Parker and Taggart sitting, I being engaged at the time in the Cuyahoga Circuit. The case to which I refer is that of Lake Shore & M. S. Railway Co. v. Botefuhr, Admr. [10 C. C.—N. S., 281; affirmed by the Supreme Court without report, April 14, 1908.] In this case, as in the others, the principle was announced .that evidence as to a custom in a yard was proper to be received. The language in the syllabus of the case is as follows:

“Evidence that it was the custom of a railway conductor to give warning to the trainmen assisting him in the making up of a train in the yards, is admissible upon the question whether, knowing the custom, the conductor exercised ordinary care, and also upon the question of whether the deceased, being aware of the custom and of the habit of the conductor, was guilty of contributory negligence. ’ ’

In the ease at bar Schwartz had been in the employ of the railway company for many years, and -it may be said, as in the Ward case, supra, that it was a question for the jury whether or not he had such knowledge of a common practice and to what extent his conduct was influenced by it.

Whether we should reverse the judgment because of the rejection of this evidence, it is perhaps unnecessary for us to say. The framing of the question was such that possibly the court may have been justified in refusing to permit it to be answered without some reformation of it so as to make it more clearly express to the witness the meaning of counsel. But I have said this much with regard to this evidence, in-view of the claim made that the court erred,' and by reason of the fact that we have concluded that the judgment should be reversed on another ground, and we desire to indicate to the trial court what should be the rule on another trial as to the admission or rejection of evidence of this character.

I will not stop to read further from any of the eases cited. They may be read with profit and interest in connection with the ease .at bar. We think that even without the evidence which the .plaintiff sought to introduce, the court should have permitted the case to go to the jury; that there w,as at least a scintilla of evidence tending to sustain the claims of plaintiff’s petition, and for the error .of the court in arresting the ease from the jury and directing .a verdict for the defendant, .the judgment based upon the verdict is set aside and the cause will be remanded for a new trial at the costs of the defendant in error.


text:
    INJURY TO A BOY EMPLOYED NEAR. A SAW.
    Circuit Court of Hamilton County.
    The Queen City Box Co. v. George Duffy, an Infant.
    Decided, February 15, 1908.

      Negligence — Pleading—Disclaimer by Defendant as to Claim of Contributory Negligence — Error—Charge of Court — Burden of Proof.

    In an action for damages for personal injuries, where the defendant has disclaimed any defense of contributory negligence, a charge of court as to the burden of proving negligence on the part of the plaintiff is misleading, and taken in connection with a misstatement of the plaintiff’s age as thirteen to fourteen, when he would have been sixteen on his next birthday, constitutes reversible error.
    Gifeen, J.; Swing, P. J., and Smith, J., concur.
   The infant, plaintiff below, was injured by a circular saw while engaged in carrying off short pieces of boards as they were cut by the sawyer. It is charged in the petition that the defendant, well knowing the want of skill and intelligence of said infant to understand the danger necessarily attending his employment about such machinery, failed and neglected to warn him of such danger.

The defendant denied that the injury was in any way caused by its negligence, and averred that it was caused wholly by the plaintiff’s own negligence. '

The jury returned a general verdict in favor of the plaintiff, and in answer to a special interrogatory found that he had not been sufficiently instructed as to the dangers of his employment, and did not appreciate those dangers; but there was no special finding that this omission was1 the direct cause of the injury, although it may be inferred from the general verdict. It seems doubtful, however, from the charge of the court upon the question of the burden of proof, whether the jury arrived at. such conclusion, because after correctly instructing them that 'the burden of proving the defendant’s negligence and that it was the direct cause of the injury rested upon the plaintiff, the following instruction was given:

“The burden of proof is on the defendant to establish the fact which would constitute- plaintiff’s negligence, if any, and that such negligence was the direct cause of the accident; but if the evidence offered by the plaintiff raises in your mind a presumption of negligence on his part as the direct cause of the accident, he must, by evidence offered by him, that is, by the plaintiff, remove such presumption before you can find a verdict in his favor.”

The record also discloses the fact that defendant objected before the charge was given to any instructions upon the subject of contributory negligence of the plaintiff.

If, therefore, the defendant disclaimed any defense of contributory negligence, it is difficult to understand how the burden of proving negligence of the plaintiff and that it was the direct cause of the accident could be on the defendant, except by a strict construction of the allegation, in the answer “that the injuries complained of were caused wholly and entirely by the plaintiff’s own negligence.”

The charge was liable to mislead the jury to believe that although the plaintiff failed to prove that the negligence of the defendant was a direct cause of the accident, the defendant was still bound to prove that the plaintiff’s own negligence wholly caused the injuries, unless the evidence of plaintiff raised a presumption of negligence on his part as the direct cause of the accident.

Robertson Buchwalter, for plaintiff in error.

Gogan & Williams, contra.

The allegation of the answer, considered in connection with the disclaimer made before the charge was given, was equivalent to a general denial that the defendant’s negligence caused the injuries.

The court also charged the jury as follows:

“At the time of the accident he (the plaintiff) was a child thirteen to fourteen years of age, and when we consider the question as to whether or not he was negligent we must measure his conduct by what a child .of that age, and of ordinary prudence, would do or would not do under the circumstances of the ease. ’ ’

The error in this instruction consisted in assuming that the child was thirteen- to fourteen years of age when there was testimony tending to prove that he would be sixteen years of age on his next birthday.

In view of the special finding of the jury we are not disposed to hold that the verdict is not sustained by sufficient evidence, although a careful reading of the evidence does not make it clear that the negligence of the defendant was the direct cause of the injuries.

The judgment will be reversed for errors in the charge of the court, and the cause remanded for a new trial.


author: Donahue, J.

text:
    KNOWLEDGE OF DEFENDANT THAT HIS NAME HAD BEEN FORGED TO A NOTE.
    Circuit Court of Muskingum County.
    John E. Woodruff v. A. D. Montgomery et al.
    Decided, April, 1908.

      Estoppel — When Created by Omission to Spealc — Silence not Culpable, Unless — Pleading with Reference to Intendment — Suspended Rights — Forgery of Signature to Promissory Note.

    1. Before a party can be estopped, by mere silence, to show that his name attached to a note is a forgery, facts must be alleged showing a duty and an opportunity to speak; that the party to be es-topped knew or had reason to believe that the owner of the note would rely on his silence and be injured thereby, and that the owner of the note, relying on said silence, was injured.
    2. No intendments are made in favor of a plea of estoppel; but it is incumbent on the pleader to aver all facts essential to its existence, with particularity and precision.

      Browning & King, for plaintiff.
    J. J. Adams, for defendant.
    Craine, J.; Taggart, J., and Donahue, J.
   John E. Woodruff brought an action in the Court of Common Pleas of Muskingum County against A. D. Montgomery to recover two -thousand dollars, with interest at eight per cent, from January 22, 1905, on a promissory note, of which the following is a copy:

“2,000.00. January 22, 1900.

“One year -after date we or either of us promise to pay to the order of John E. Woodruff Two Thousand Dollars at eight per cent, interest from date. Value received.

“A. D. Montgomery.

“Arthur J. Sheppard.”

Arthur J. Sheppard was not made a party defendant, and A. D. Montgomery filed a separate -answer in which he -alleges that he did not sign said note and that his name attached to said note was a forgery.

The plaintiff filed a second amended reply to this answer, in which he denies each and all of the allegations of -the answer and then as a second defense in his reply says:

“Further replying, says that for more than a year prior to the bringing of this action, the defendant, A. D. Montgomery, had knowledge that plaintiff held the note described in the petition herein and .that his signature appeared as one of the makers thereof, and that said A. D. Montgomery, with full knowledge of the premises as aforesaid and intending to mislead and deceive the plaintiff in that regard, remained silent and failed to notify plaintiff of his claim that said signature was a forgery until after the absconding of the defendant, Arthur J. Sheppard, as hereinafter set forth; that plaintiff, relying upon the conduct of the defendant, Montgomery, in that behalf, as aforesaid and as to the genuineness of said note and believing said signature to be genuine, failed to take the necessary steps to collect said note from the defendant herein until after the said absconding of the said Sheppard, although said Sheppard was all the while, and prior to his said absconding, the owner of certain property not exempt from execution .out of which plaintiff could have satisfied his claim in whole or in part, of all of which facts said Montgomery had full knowledge; that on or .about the--• day of February, 1906, said Arthur J. Sheppard absconded for the purpose of defrauding his creditors and has ever since and is now without the jurisdiction of this court .and in parts unknown and is wholly insolvent.”

A demurrer was filed to the second ground of defense set forth in the reply, which demurrer was sustained by the court of common pleas and, after a trial resulting in a verdict for the defendant, plaintiff prosecuted error to this court, alleging that the court of common pleas erred in sustaining said demurrer. The sole question presented to us in this case is as to the sufficiency of the reply in stating facts sufficient to create an estoppel.

The defendant, Montgomery, never having signed said note and never having received any benefits, it was incumbent upon the plaintiff to allege a state of facts which would estop him from denying his liability on this note, notwithstanding the fact that he had never signed the same.

Paraphrasing the reply, the facts were substantially as follows: Woodruff held a note signed by Arthur J. Sheppard and purporting to have been signed by Montgomery, but as a matter of fact Montgomery’s name to the note was a forgery; that more than a year prior to the bringing of this action Montgomery knew that plaintiff held this note and that he appeared on the face of the note as one of the makers; that with intent to mislead and deceive the plaintiff he remained silent and did not notify Wood-ruff that his.name was a forgery until after Sheppard had absconded; that Woodruff, relying upon the conduct (silence) of Montgomery and believing Montgomery to be one of the makers of said note, failed to take steps to collect the note until after Sheppard had absconded; that Sheppard'before his absconding had certain property out of which Woodruff could have satisfied this note in whole or in part and that Sheppard was now insolvent. The sole question in this ease is, does the reply, alleging this state of facts, create an estoppel?

In 82 N. Y., 32-40, a part of the syllabus reads as follows:

“To sustain an estoppel because of omission to speak, there must be both the specific opportunity and apparent duty to speak; the party maintaining silence must have known that someone was relying thereon and was either .acting or about to act as he would not have done had the truth been told.”

In 189 U. S., 260, a part of the syllabus reads as follows:

“To constitute an estoppel by silence, there must not only be an opportunity 'but an obligation to speak and the purchase must have been in reliance upon the conduct of the party sought to be estopped.”

In 128 N. Y., 270, a part of the syllabus is as follows:

‘ ‘ The mere fact that another may .act to his prejudice, if the state of things is not disclosed, does not render silence culpable, or sufficient to estop the true owner; he owes no duty of active diligence to protect the other party from injury. There must be a standing by and encouragement or acquiesence by the true owner in acts inconsistent with his right, knowing that the other party, .acting under a false impression, is about to do what will result in his injury.”

The above seems to be the settled principles which control the doctrine of estoppel by silence.

Another well established principle of law is that a party attempting to estop another by his acts or conduct must allege with certainty all the facts necessary to create an estoppel. In 102 Ind., 396, a part of the syllabus is as follows:

“No intendments are made in favor of a plea of estoppel, but it is incumbent upon the party pleading it to aver all the facts essential to its existence. ’ ’

To the same effect is 21 Circuit Court, 710.

According to our idea, the above .is the law of estoppel and as to the manner in which it must be plead. Now does the reply meet these requirements? The reply alleges that Montgomery knew that Woodruff had this note and that his name was a forgery. How he acquired that knowledge is not disclosed, neither is there any allegation in the reply that Woodruff knew that Montgomery knew any thing about this note. It is true that the reply alleges that Woodruff relied upon the conduct of Montgomery. But the query is, what was the conduct of Montgomery ? His conduct was mere silence. Montgomery did nothing or said nothing which would induce Woodruff to believe this signature was genuine. If Woodruff had shown this note to Montgomery, and Montgomery after having seen the note had walked away without disclosing the forgery and Woodruff were injured by relying upon the genuineness of the signature, a different question would arise than the one before us. The fact that Montgomery remained silent with the intent to deceive Wood-ruff can ibe of little importance from the fact that it nowhere appears that Woodruff even knew that Montgomery had the information that the note was in Woodruff’s possession or that it was a forgery.

As was said in 82 N. Y., 32, and 189 U. S., 260, there must have been an opportunity for Montgomery to notify Woodruff that this note was a forgery and the reply should in some way have alleged -that such opportunity existed. For all that appears in the reply Montgomery may never have had the opportunity of notifying Woodruff of the forgery even if the facts were such as imposed a dirty upon him to do so. For all that appears Woodruff may have been in a foreign land until after the obsconding of Sheppard.

There is no allegation in the reply that Montgomery knew that Woodruff was withholding the collection of this note on the strength of anything that he had done or was doing, nor is there any allegation that Montgomery knew that Woodruff knew that Montgomery knew anything about this note.

A case which the plaintiff places great reliance upon as sustaining his position, is found in 117 U. S., 96, in which the facts are set forth in the syllabus as follows:

“When a bank depositor sends his pass book to the bank to be written up, it is his duty, upon its return, either in person or by a duly authorized agent, to examine the account and vouchers returned, within a reasonable time, and give to the bank timely notice of any objection thereto. If he fails so to do, he may be estopped from questioning the eonclusiveness of the account.”

In this case a certain forged check had been charged to the plaintiff by the bank and the plaintiff brought an action against the bank for the amount due him, claiming in substance that the check was a forgery. The bank, by way of estoppel, claimed that the plaintiff knew of this forged check, or by the exercise of care could have known of it, and remained silent, and that the bank would be damaged if plaintiff were allowed to show the forgery. In that ease the bank being ignorant of the forgery until after it had been disclosed by the plaintiff, the bank’s right to pursue the forger had been suspended. In. such a ease as that the forger might escape and might dispose of ■all of his property before the bank knew of the forgery. In the case at bar, however, there was no suspended right to sue as there was in the 117 U. S., 96. In the case at bar, Sheppard was one of the makers of the note and there was nothing that Montgomery did which for a moment suspended the right of Woodruff to proceed against Sheppard on this note, nor was there any act which tended to induce Woodruff not to proceed against Sheppard. We think the principle involved in the 117 U. S., 96, and the one in this ease are entirely different.

Plaintiff has also cited to us Ewart on Estoppel as supporting his _ contention. There is no doubt but what the text found in Ewart does support the contention of plaintiff, but if Mr. Ewart undertakes to say that mere silence, irrespective of the facts under which the silence was maintained, creates an estoppel, we are unwilling to accept his theory of the law,

We do not think the facts set forth in the reply in this case are sufficient to hold a man liable on .a note which he never signed, and we affirm the judgment of the court of common pleas.

Donahue, J.

I agree with my associates as to the proposition of law announced in the syllabus of -this opinion, but disagree with them as to the construction of the reply filed by plaintiff. I am of the opinion that the allegations of this reply meet the requirements of the law of estoppel as herein announced.


text:
    VACATION OF VERDICT AND NEW TRIAL.
    Circuit Court of Lucas County.
    The State of Ohio, ex rel Orleano G. Barnes v. Ed. L. Kimes, Clerk.
    Decided, January 18, 1908.

      Amendment of Motion for Vacation of Verdict — Jurisdiction—Error— Mandamus — Sections 5301 and 5308.

    1. Mandamus will not lie to compel a clerk of court to enter judgment on a verdict in favor of the plaintiff during the pendency of a motion by the defendant to vacate the verdict.
    2. A motion asking that a verdict “be vacated,” but not in terms asking for a new trial, may, at the same term, although more than three days after the rendition of the verdict, be amended, by leave of court, by the insertion of the words, “and for a new trial.”

      G. A. Thatcher, for plaintiff.

      Marshall é Fraser and King cfe Tracy, contra.
    Wildman, J.; Haynes, J., and Paeker, J., concur.
   The facts involved in this proceeding for a mandamus are, briefly, as follows: An action was brought July 25th, 1906, by Orleano G. Barnes against the Toledo' & Interurban R. R. Co., for damages caused by personal injury, received, as claimed, through the negligence of that company. A verdict for the plaintiff was rendered at the January term, 1907, which was subsequently set aside, upon the ground that the damages were excessive, disclosing prejudice. Subsequently the case was again tried and another verdict obtained by the plaintiff for the sum of $7,200. A motion was filed which asked that this verdict be “vacated,” but not in terms asking for a new •trial.

The statute first to be considered is Section 5305, of the Revised Statutes, providing, after a definition of the term “new trial,” that “the former verdict, report or decision, shall be vacated and a new trial granted, on the application of the party aggrieved, for any of the following causes affecting materially the substantial rights of such party.” It is contended by the relator that this was not a motion for a new trial and could not be considered by the court as such.

At the same term, on the 23d day of December, 1907, the court by order allowed an amendment of this motion, inserting the words “and for a new trial.” It is claimed by Counsellor the relator that the court had no jurisdiction or power to do this; and also that .the time having passed for the filing of a proper motion for ,a new trial, it was the duty of the clerk, under another section of the statute, to enter a judgment upon the verdict.

Now it is to be noted that the court has but one duty to do under the statute, if it vacates a verdict — unless, of course, some further proceedings are taken by the parties prior to the judgment, as a settlement for instance, or dismissal of the action.

Section 5307 of -the code provides that: ‘ ‘ The application for a new trial must be made at the term the verdict, report, or decision is rendered.” And Section 5308: “The application must be made by motion, upon written grounds, filed at the time of making the motion.”

Nothing has been said in discussion, that I recall, placing any emphasis upon the fact that in this section it is not provided that the motion for a new trial must be in writing. The statute does not say that the motion or appli&ation must be in writing, but that the application must be made by motion, upon written grounds; in other words, the grounds or facts upon which the party bases such an application must be presented to the court in writing, to apprise the court and the opposite party of the reasons upon which the application is made; but I am not aware of any provision of the statutes requiring that the application itself shall be in writing. However this may be, there was evidently án attempt here by the .party against whom the verdict was obtained to invoke the jurisdiction of the court to set aside the finding of the jury. There is no prescribed form anywhere in the statutes for a motion for a new trial. It is the substance of things and not the superficial form that should determine such controversies, and if there is any irregularity in the form of a motion, it should under another provision of the code be disregarded, unless it cause some prejudice to the person or party against whom the motion is addressed. Every error and irregularity is to be disregarded unless it be a material and substantial one, and unless it inures to the prejudice of the party who complains of it.

We think, then, that the court had a right to permit an amendment of the motion by insertion of the words “and for a new trial,” although we doubt much whether an amendment was necessary. This brings us to the question whether the court had jurisdiction to pass upon the motion. The plaintiff below filed a motion to direct the clerk to enter judgment on the verdict, and on another motion by the defendant this motion of the plaintiff was stricken from the files. No error proceeding has been brought to this court to reverse that action of the court, although it is claimed by counsel, upon one side at least, that the order of the court striking from the files the motion for a direction to the clerk to enter judgment, was such a final order as might be made the basis of a proceeding in error. It is not necessary for us to determine whether or not this is so.

The court upon vacating the verdict granted a new trial.. It is claimed here again, that the court had no jurisdiction to do this because of the fact that the verdict rendered at the first trial had been set aside by -the court upon the ground, as here insisted, that it was against the evidence, and that the statute does not permit the vacation of a judgment and the granting of a new trial twice for that cause.

On the other side it is claimed that the two orders of the court for new trials were not of the same character; that the first was not the setting aside of a verdict upon the ground that it was against the evidence, but rather, that the verdict for excessive damages was a violation of another clause of the statute as to new trials, ‘1 excessive damages, indicating passion or prejudice. ’ ’ We think as .to this point that it is not necessary in this proceeding to determine the question. We do not think .that the question whether or not the court had power to grant a second new trial upon the cause .assigned, was jurisdictional. The court had jurisdiction to pass upon the motion and either grant it or refuse it. The court having the jurisdictional power to make the order one way or the other, the party had the right to except and protect himself by proceedings in error at the proper time. It is true he might not be able to go to the higher court immediately from the court of common pleas upon the granting of a new trial even if such granting was erroneous, but he could preserve his rights, and it might not be necessaiw for him to go any higher, because upon another trial both verdict and judgment might be in his favor.

The relator is here asking for a writ of mandamus to compel the clerk of the court, Mr. Kimes, to enter judgment upon the verdict as rendered at the September term. We hold that he is not entitled to the writ. It was not the duty of the clerk during the pendency of a motion addressed to the judge asking for a vacation of the verdict, to enter judgment upon it. The statute should not be so narrowly and technically construed as urged by counsel.

The writ sought is refused and the petition dismissed at the costs of the relator.


text:
    INJURIES TO A MINOR. WHILE FEEDING A MACHINE.
    Circuit Court of Cuyahoga County.
    The K. D. Box & Label Co. v. Tommie Caine et al.

    Decided, February 23, 1907.

      Negligence — Master and Servant — Boy Injured while Feeding a Machine —Alleged Failure to Instruct Him as to the Danger Incurred — Chairge of Court as to Ordinary Care — Application of, to the Case of a Minor.

    Where an action on behalf of a minor, brought on account of injuries received in a machine which he was feeding, is tried on the theory that the defendant failed to instruct the plaintiff as to the extra hazard arising from a change in the material which he was feeding into the machine, the charge of court is not erroneous because of the omission in the paragraph defining ordinary care to refer to the age of the plaintiff, if it appear from the charge taken as a whole that the jury were not mislead thereby.

      Ford & Snyder, for plaintiff in error.

      W. G. Ong, oontra.
    Taggart, J. (orally); Marvin, J., and Donahue, J., concur (Judges Taggart and Donahue, sitting in place of Judges Winch and Henry).
    Error to the court of common .pleas.

       Affirmed by the Supreme Court without report, March 31, 1908.

   This case had its origin in the court of common pleas, by the defendant in error, through one Delbert M. Bader, his guardian, filing a petition in said court, in substance alleging that he was a minor, inexperienced in the conduct and control of dangerous machines, and that he entered about the 11th day of May, 1904, into the employment of the defendant to feed a machine which was being operated by said defendant; that the operation of said machine was dangerous and hazardous; that the defendant failed to instruct him as to the dangerous character-of said employment and the use of said machine.

The answer of .the defendant was a general denial and alleged contributory negligence.

The case was tried purely upon the theory that the defendant had failed to instruct the plaintiff upon the extra hazardous situation that came about by reason of the change of the material.

The case was heard only on the testimony in behalf of the plaintiff below.

It .appears from this record that there was an exhibition of some appliances used in the court room on the trial, by which the manner of placing slips or pieces of paper-board was being demonstrated before the jury, and much of this record is taken up by the testimony of witnesses apparently demonstrating to the1 jury the manner in which pieces .of the paper-board was placed in, and taken out.

On the day this boy was injured he completed the work that he had left over from -the day before with the material that was flat; that in feeding this material, the placing of a piece of paper board within the blocks or guides would be indicated to him, not merely by his sense of sight but by his sense of touch, that it had dropped in its place so that it would pass up and be forced upon the knives; that about 7:30 or 8 o ’clock he finished the work with the flat material; that thereupon he was furnished with other material that was oval; that he thereafter attempted to operate his -machine with the new material. In attempting to do this he did not succeed, and á fellow-servant noticing his difficulty came and told him how he should roll it the other way, which would have a tendency to flatten it out. He then proceeded to roll or flatten the oval paper-board, and did flatten all that he had upon the table for his use. He had difficulty in dropping this material so that it would fall within the guides and be forced up upon the knives, and as he was putting this oval material in, it would sometimes require him to place his hand down and force the piece of paper-board tinder the guides in -order to get it. into position. This he says was much more dangerous than when he used the flat paper, as he was not required to use his hands but little in forcing the flat paper or cardboard in position. No instructions were given him in regard to the handling of this oval paper-board. The testimony seems to indicate that in feeding, especially the flat pieces of paper-board, it could be done much more easily, and it only required to be simply dropped within the guides and he would, therefore, have more time to remove his hand; that the oval material required him to reach further down and .also to force the pieces of paper-board under the guides in order that it might be properly cut by the knives, and that in so doing his hand was cut.

All of these facts were before the jury, together with the demonstrations upon the apparatus used in the common pleas court illustrating the machine that was used for cutting this paper-board, and showing the character of the machine and the operation of the same. From an examination of the whole case, it appears that it is a case as to which different minds might arrive at a different conclusion.

The jury passed upon the testimony, and found, taking all the circumstances of the case, that the defendants were negligent in not giving proper instructions to the plaintiff as to the manner of using the oval paper, and the operation of the machine with such paper-board, and with respect to the verdict it is not manifestly against the weight of the evidence.

The court in its instructions to the jury was very favorable to the defendants, instructing them very carefully that if the plaintiff understood the character of the dangers incident to the operation of this machine, and appreciated the dangers or should have appreciated them, that then the plaintiff could not recover. It also instructed the jury fully in respect to the fact that if he was informed as to the dangerous character of this machine, he assumed the risk, and .that there could be no recovery.

The only objection that is made to the instructions given to the jury are the instructions found on page 126 of the record, as follows:

“I think I have failed to give you a full definition of ordinary care. Ordinary care is just such care as men of ordinary care .and prudence are accustomed to exercise under the particular circumstances of the case. Ordinary care, as applied to the plaintiff in .this case, would be just such care as persons of his intelligence, comprehension and ability to know, exercise or ought to exercise under the particular circumstances of the case. ’ ’

Now it is said that the principle, as found in 46 Ohio State, 283, Rolling Mill Co. v. Corrigan, of contributory negligence, as applied to children, is not applied in this case, because the court below omitted to state anything, or instruct the jury in respect .to anything concerning the age of .the plaintiff, and therefore the charge, was misleading and erroneous. Taking this whole charge together, we do not believe that this was so misleading that -the jury were drawn away from the main questions in .this case; we think that it follows that the rule as laid down in 61 Ohio State, page 608, should be applied in this case, which is as follows:

“A charge to a jury is to be considered as a whole, and if, considering the whole charge, the law of the case appears to have been correctly given to the jury and in a way that will reasonably enable them to understand the rules of law which they are to apply to the evidence before them, the charge will not be held to be erroneous simply because every condition to a recovery or a defense is not embraced in each paragraph, and the paragraph excepted to is not in itself calculated to mislead. ’ ’

We do not believe that after the court had fully instructed the jury, and with great carefulness, and then had given this definition of ordinary oare, that this instruction was misleading, and that the verdict ought to be set aside for this reason.

Therefore finding no error in this record to the prejudice of the plaintiff in error, the judgment will be affirmed.


text:
    ASSESSMENTS FOR. SANITARY SEWERS.
    Circuit Court of Lucas County.
    Joseph W. Close v. Peter Parker, Treasurer, et al.
    Decided, January 18, 1908.

      Sewers — Improvement Change in Depth of, During Construction — Foot Frontage Assessment for Sanitary Sewer — Not Affected by Proximity of Public Parh, — Intersections—Buie Placing Cost of, on Municipality — Does not Apply to the Crossing of a Street by a Sanitary Seioer — Burden of Proof as to Negative Fact.

    1. Where in the construction hy a municipality of a local sewer for sanitary purposes, by the inadvertence of an assistant engineer employed to fix the grade thereof the contract or specifications is departed from as to the depth of the sewer but without affecting its cost or efficiency, and the error is not discovered until after the work of construction is completed, and no substantial injury to the rights of the lot owners is apparent, the assessment against such lot owners will not be enjoined. ; . i
    2. In an assessment upon lots to - defray the cost of a local sanitary sewer, the municipality is not required to make a deduction because of the proximity of a public park which does not directly abut thereon.
    3. The provisions of the municipal code as to improvements for which special assessments are made, that “the corporation shall pay the cost of intersections” has reference to the parts of street improvements at the intersection of streets one with another, and has no application to the crossing of a street by a sewer for purposes of local sanitary drainage.
    4. One seeking to enjoin an assessment levied by a city council on the ground that a statutory requirement has been omitted, has the burden of establishing such fact by evidence; and it is not incumbent on the city to show affirmatively its compliance with the statute.

      B. A. Hayes and Ralph Emery, for plaintiff.

      G. S. Northup, City Solicitor, and O. W. Nelson, for defendants.
    Wildman, J.; Parker, J., and Haynes, J., concur.
    Appeal from Lucas Common Pleas Court.
   The ease below was brought by Joseph W. Close, who sought by injunction to restrain the county officers from proceeding to collect a sewer assessment upon a large number of lots owned by him. These lots are situated in what is known as “Harvard Terrace,” near Walbridge Park in this city. The case was tried in the court below ,and brought here by appeal. • Assessments for the construction of two sewers are involved: one, known as sewer 930, designed for the local sanitary drainage of the lots of Harvard Terrace, and the other, No. 898, a main sewer and also a sanitary sewer.

The first substantial claim of the plaintiff to the equitable protection of the court is, that sewer 930 was not constructed according to contract, or according to the bids or advertisements for bids, and consequently that the assessments upon the lots are invalid.

It seems that "during the construction of the work and after all that part of the sewer in the southern half of Harvard Terrace had been completed, and.while the work was in progress upon that part of the sewer lying northerly of University Boulevard, by mistake of an assistant engineer the sewer was not laid at the depth contemplated by the contract and specifications, but was made several feet shallower. This mistake was not discovered until some time after the sewer was completed, as stated in paragraph 13 of the agreed statement of facts submitted to us. The evidence of witnesses has been taken on the trial before us to the effect that as complete drainage was effected for the benefit of the lots by the sewer as constructed as would have been by a sewer as contemplated and provided for under the contract; and witnesses have testified that in their judgment it was no more costly to construct, so that no more expense has been included in the- assessment. It nowhere appears that any injury has been done to the petitioner by reason of this deviation from the contract in the construction of the improvement.

It is urged upon us that bidders should have had an opportunity to bid for the construction of -the sewer in the manner and form in which it was constructed, and this may be true; but we have concluded that the irregularity is not such a one as justifies the setting aside of the assessments. The assessments are made for the actual expense only, .and to disturb them upon this ground would result in a reassessment with the same result —unless the court went further and held all assessments invalid and took the position that no further power exists in the municipality to assess at all. We think that this would be inequitable; it would leave the lot owner in possession of all the advantages derived from the construction of the sewer, and throw the entire burden of cost upon the city, upon no better ground than that there has been an inadvertance in the carrying out of a contract, which inadvertance has resulted in no substantial injury to any one. The conclusion at which we arrive is in harmony with our holding in Kohler Brick Co. v. Toledo, 10 C. C. —N. S., 137.

In the first cause of action in plaintiff’s petition and what is styled -paragraph 2, it is alleged that the assessment was made according to benefits instead of being by foot frontage, and that by the terms of the assessment it was limited to abutting.-lots, thereby letting all .the property included in Walbridge Park— which is on the other side of Broadway — escape assessment entirely, although it is said that it derives benefit from sewer 930, which is the sewer under consideration in, this part of the first cause of aetion. It does not appear, however, thaf’-'the property in Walbridge Park is to be considered in any sense as .“abutting property.” It is true -that two connections have been made from structures in Walbridge Park by piping across Broadway to this sewer 930, but the sewer is constructed upon private right-of-way — it is not in the street known as Broadway, but lies in the interior of Harvard Terrace, running along the lot lines mainly, if not entirely, except where it crosses University Boulevard. Now, if in seeking -to assess all property benefited we go beyond .the abutting property, it is a little difficult to tell where to stop; that is, if the court assumes that other property is so benefited that it was the duty of the assessing authorities to assess such other property, there would seem to be hardly a limit to the jurisdiction of the court as to the boundaries of territory which might be assessed to take care of a sanitary sewer like this. But whatever- might be the rule if Walbridge Park were private property, it does not necessarily apply to a public park such as this.

There is a provision in the statute for payment of a part of the expenses of such improvement by the public, based upon the principle that the public does derive some benefit. Section 63 of the municipal code of 1902 (96 O. L., 43; Rev. Stat., 2276; 1536-223), may properly be considered as throwing some light upon the intention of the Legislature as to property of the character which we have here. “When the whole or any portion of an improvement authorized by this title passes by or through a public * * park * * * or any other public * * * grounds within and belonging to the corporation, the council may authorize the proper proportion of the estimated costs and expenses of the improvement to be certified by the clerk of the corporation to the county auditor and entered upon the tax list of all taxable ’real and 'personal property in the corporation, and the same shall be"’collected as' other taxes. ’ ’

Now, if we apply the rule -that the expression of 'one thing, is the exclusion of all others "of the same general class, we must by implication hold that the municipality may not assess the proportion of such estimated costs- and expenses upon a public park, unless the improvement “passes by or through” the park. Now, what-is meant by the expression “.by”? The expression “through” will not apply-^as this improvement nowhere passes through the park. That the park is in the neighborhood of the improvement, - is true; but, according to the testimony of Mr. Consaul, the city engineer, at its nearest point to the sewer under consideration there is a distance of 150 feet, and the sewer can not be said to run “by” a park Unless close proximity is to be so understood. We think, however, that what was contemplated by the. legislators is that when an improvement either passes'through--a. public park or the park abuts upon the improvement — when it' runs .alongside of if or through it — that then the park' may be .assessed.

Whether the -p'ark; if it were a private park, would have any access to this-sewerso-as to avail itself of the benefits of the sewer without joining in the expense of construction, might be a very serious question, but one which we think we are not called upon to meet.

Our judgment is that the assessment can not he set aside upon the ground that the park should have been included in the property to be assessed.

It is claimed also in the petition that the assessment is invalid in that there is no deduction for intersections. In order that I may state the position of counsel for the plaintiff fairly, I read from his brief:

“Plaintiff claims that an intersection is formed by an improvement, whether paving, sewer or sidewalk, crossing a street. Counsel for the city claims that an intersection is formed by one street crossing another street, and relies upon the language of this provision as expressed in the Revised Statutes as they existed prior to the passage of the municipal code. That section was 2274, and reads, in part:”'
“ ‘That when .the council of a city,' * * * determinés to grade, paver sewer or otherwise improve -a street, alley or other public highway, * * * the council shall, levy and assess a tax, * * * for the estimated cost and expense of so much of the improvement as may be included in the crossing or intersection of such street, alley, or highway.’
“This language seems to imply that the improvemeht intersects the street. If under the Revised Statutes the city paid for intersections only when the improvement was in a street, then we claim that the municipal code enlarges the number of intersections to be paid for by the city.
“From paragraph 8 of the agreed statement it appear that the city was not charged with the cost of any intersection.
“If the crossing of the streets by sewer 930 forms intersections under -the terms of the statute, it is conceded in paragraph 7 of the agreed statement that the assessment is excessive by 9.93 per cent. ’ ’

The provisions of the municipal code of 1902, relied upon by counsel as changing the character of an intersection the construction of which is to be paid for by the city, is Section 53 (Rev. Stat., 2373; 1536-213), which reads, in part:

“In all municipalities the corporation shall pay such part of the cost and expense of improvements for which special assessments are levied as council may deem just, which, part shall not be less than one-fiftieth of all such costs and expenses; and in addition thereto, the corporation shall pay the cost of intersections. ’ ’

It will be noted that the word “intersections” is here ilsed without definition, but by the former statute were clearly contemplated, as counsel agree, improvements extending along or in streets, and the provision was that the city should pay the costs of such improvements in the squares made by the intersections of two streets. The examination that I have given to this matter leads my mind to the conclusion that the word- had -acquired at the time of the passage of the municipal code of 1902 a familiar meaning, and that it had reference to intersections of the character described in the statute in force up to and at the time of the passage of the municipal code;, and although the definition of “intersections” is dropped out, I think that the new section — 53 of the code — still had reference, to the same class of intersections that had been before known.

In the case1 of Northern Ind. Ry. v. Connelly, 10 Ohio St., 159, decided long before the passage of the law providing that •the city should stand the cost of such intersections, the courts had under consideration the question as to how their cost should be assessed. A contention arose as to whether the cost should be paid by a.n assessment upon the property abutting -on a street being improved, and it was indicated (p. 165) and in the later case of Creighton v. Scott, 14 Ohio St., 438, it was held:

“When in making such improvement, squares formed by the intersection of other streets, are crossed and improved, the city council may, if the object of improving the squares is the improvement of such street, assess the whole expense upon the same property on which the other expenses of such improvement are assessed.”

This entire legislation and adjudication as to intersections is based upon the idea that the part of the improvement at such intersections is connected with a street improvement -to be paid for by assessment. If the property owners are benefited by the general street improvement, assessment is -to be made upon such property owners along the street where the other expenses .are being assessed. Upon the same principle, if a sanitary sewer is, at the intersection, still for the benefit of the people whose land it drains, although it crosses the street, the owners of the property drained should equitably pay the expenses. The city derives no benefit from a sanitary sewer .at the point of crossing a street. The city does not need it. It is not there to take off the surface water; it is not for the purpose of draining the street, but it is for (the purpose of caring for .the sanitary drainage of the lots which are assessed. Both upon authorities, so far as we are able to find them, and upon principle, as it seems to us, the cost of the improvement at the kind of intersection we have here should not be paid by the city. To the extent that the city is in any way benefited by this sanitary drainage, as I have already suggested, the city does pay one-fiftieth of the cost.

The assessment for the sewer 898 does include some .amount which should be deducted, as is conceded by counsel, it being the amount claimed by plaintiff in his .petition.

This would seem to dispose of the substantial questions which are involved in the inquiry. It was claimed in oral argu-; ment, as asserted in the petition, that the proceedings were irregular in one respect, to-wit, that the council omitted in the proceedings for the construction of main sewer 898 to assess the sum required to construct an ordinary sewer sufficient to drain the property. It was argued that .this omission on the part of the council would necessitate the setting aside of the assessment and the ordering of a reassessment, but .as this would not be especially beneficial to the plaintiff, by a paragraph in the brief before me the application to enjoin the assessment, or set it aside upon that ground, is withdrawn.

There is another reason why the relief would be refused — as has been indicated to counsel — and that is, that there is no evidence before us that the council did omit to determine such required sum. It was argued it being a sort of a negative, that plaintiff was not called upon to prove it; that it was sufficient for him to assert a negative in his pleading, making the claim, and then the duty would be devolved upon the defendant to show the proper action of council in this regard. We, however, in a ease in Wood county, Westenhaver v. Hoytsville, 8 C. C.—N. S., 284, took the opposite view and held that all claims of defects of proceedings of a municipality must be averred and proven; that the burden is still upon .the plaintiff; that the court would not presume that the officers had omitted any duty. And in the case of Bolton v. Cleveland, 35 Ohio St., 319, the same principle was expressly and clearly enunciated:

“Where a party seeks, in equity, to enjoin the collection of an assessment by the city council, on the ground that the improvement was not recommended by the board of city improvements, he must show such fact by averment and proof.”

There the question involved a negative, as here. It was just as true there as it can be here, that the knowledge of the facts was in possession of the counsel or of the defendants, and that if a particular action had been taken by the council, it was easy to show it by the records;' yet the Supreme Court held that it was not incumbent upon the council to show that it had acted, but that it was incumbent upon .the party attacking their proceedings to show the failure to act. On page 322, Judge Boynton, in announcing the opinion, says:

“Where a party seeks, in' equity, to enjoin the collection of an assessment standing against him’, or his property, on the duplicate of the county treasurer on the ground that it was illegally made, but which it was within the power of the board or tribunal causing it to be placed there to levy, he must show its invalidity by proper averment and proof. The assessment will be held valid until .the contrary is made to appear. It, therefore, was not the duty of the defendants to show that the improvement was, in fact, recommended by the board of city improvements. ’ ’

We think that there are no contentions in the petition that should prevail, and .the judgment will be entered accordingly. The petition will be dismissed.


text:
    AGREEMENT FOR. PROTECTION OF SURETIES.
    Circuit Court of Ashtabula County.
    George W. Martin et al v. First National Bank of Geneva.
    Decided, September, 1907.

      Promissory Note — Agreement Making Obligation' of Securities Sec- , ondary — Parol Testimony as to, Inadmissible — Limitations on Authority of Cashier — Agreements Varying Contracts in Writing.

    Parol evidence is not admissible to show that, at the time of taking a promissory note hy a bank for the payment of a loan secured by securities, the cashier agreed that he woulcl secure certain bonds as collateral for the payment of the note and that the liability of the sureties should be subordinate to such collateral; neither has a cashier, in the ordinary performance of his duties, authority to make such an agreement.

      E. J. Pinney, Hoyt, Munsell <& Hall, for plaintiff in error.

      Henry Means and A. J. Turnkey, oontra.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Ashtabula Common Pleas Court.
   George W. Martin and others made their negotiable promissory note to the First National Bank of Geneva, Ohio, for the sum of two thousand, one hundred and forty-five dollars for money loaned. The note was in the ordinary form. Two of the parties, Clark Martin and George Martin, were sureties and they contested the payment of the note, but at the close of the evidence the court directed a verdict against all the makers, including the sureties, for the full amount due on the note.

It was claimed by the sureties that at the time of the delivery of the note to the bank there was a parol agreement with the cashier that the bank was to obtain from the Ottumwa Telephone Company, of the state of Iowa, in which company, the principals upon the note, as well as the bank were interested, the bonds of that company of sufficient amount to pay the note and that such bonds were to be held by the bank as collateral for the payment of .the note and were -to be exhausted before any liability of the sureties would attach.

It was further claimed .that the bank did n,ot procure the bonds or, if it did, it appropriated them to its own use in payment of other claims that it had against the telephone company.

There was some evidence tending to show that such an agreement was made with the cashier, but there was no evidence that the board of directors of the bank knew anything of such agreement, either before or after the execution of the note, if it was made.

The effect of the agreement as claimed was that the obligation of the sureties was to be secondary; that the bank was to secure these bonds of the telephone company which were to be primarily liable and, if the proceeds of the bonds were not sufficient to pay the note, the sureties were to be responsible for the payment of the residue.

The first question that confronts us is: Gan parol evidence be admitted to show such an agreement? A promissory note is a contract in writing and both parties, the maker and payee, are bound by its terms. A want or failure of consideration in whole or in part might be shown the same as in a deed or other written contract, but certainly the time or maimer of payment differing from that stated, in the note could not be varied by such evidence. As said in the case of Holsworth and Sebastian v. Koch, Mayer & Goldsmith and Doering, 26 O. S., 33:

“The note contains an absolute .and unconditional promise to pay its full amount at the end of six months and the defendants sought by parol proof to change this into a promise to pay on condition the plaintiffs would furnish goods to Doering and to pay at such time or times as he might be able to pay.- This they could not be allowed to do, without the violation of one of the first and plainest principles of evidence.”

We are of opinion that this parol evidence was not admissible.

But, if this evidence was admissible, what authority had the cashier of the banl[: to make such an agreement? It is true the cashier is the agent of the bank, but the board of directors has control of the affairs of the bank and, without specific authority from the board, the cashier can not enter into any agreement that does not usually pertain to the duties of a cashier,-or such other acts as the board has by such a uniform custom permitted the cashier to perform. Sturgis & Co. v. Bank of Circleville, 11 O. S., 153; First National Bank of Wellington v. Mansfield Savings Bank, 10 C. C. R., 233.

If after making a loan, receiving a note and taking security for the payment of the same he could by an outside agreement provide that the bank was-to obtain certain stock .and hold it as collateral to the obligation of the sureties, and if the stock was not obtained the sureties would not be liable, then he might by such agreement provide that the sureties were not to be liable at all, which .certainly would not be within his power.

We think the court of common pleas did right in instructing a verdict for the plaintiff and the judgment will be affirmed.


text:
    RECOVERY FROM HUSBAND’S ESTATE FOR BENEFIT OF WIFE’S ESTATE.
    Circuit Court of Hamilton County.
    Mary Florence Glenn et al v. Frank Eicher, Administrator.

    Decided, February 15, 1908.

      Husband and Wife — Recovery as between the Estates of — Subrogation —-Administrator—Limitation of Actions — Rights of Heirs — Section 6118.

    Where under the doctrine of subrogation an indebtedness exists in favor of a wife against the estate of her husband, the limitation under Section 6113 of actions by creditors does not operate as a bar against recovery by her administrator of the amount so due.

      John J. Gasser, for plaintiff in error.

      Closs (& Luebberi, contra.
    Smith, J.; Swing, P.- J., and Giffbn, J., concur.

       Affirmed Eicher, Admr., v. Darby, Admr., 5 O. L. R., 102.

   We are of the opinion that the judgment of the court below should be affirmed.

In addition to the stock and fixtures set off by the appraisers of the estate of Martin S. G-lenn to Bridget Glenn, there was the sum of $500. She also paid debts of Martin S. Glenn out of her own separate estate. The evidence shows that she received no part of this $500, nor was she ever reimbursed for the debts of Martin S. G-lenn’s estate that she paid.

We see no reason why her administrator should not recover for the benefit of her estate the $500, which was not paid to her, and the amount paid by her to liquidate her husband’s indebtedness, to which she is entitled under the doctrine of subrogation. We do not think that Section 6113, relating to limitation of actions by creditors, will bar her administrator from recovering for the benefit of her estate -what was due her from the estate of her husband. This might be said to be her separate estate; they are debts due from her husband’s estate, and having her administrator receive these amounts is not taking away from the children of Martin S. Glenn any part of their father’s estate, for the debts of his estate should be paid.

The other grounds of error complained of by the plaintiffs in error we do not think are tenable.

Judgment affirmed.


text:
    INTERFERENCE WITH ACCESS BY THE LAYING OF RAILWAY TRACKS IN THE STREET.
    Circuit Court of Hamilton County.
    Thomas J. Hall v. P., C., C. & St. L. Ry. Co.
    Decided, February 29, 1908.

      Obstruction in Street — Caused by Laying Railway Tracks — Ingress and Egress — Inconvenience which is Common to the General Public— Nuisance — Injunction.
    1. Where railway tracks are laid across a street and at a grade which raises the grade of the street at that point, the inconvenience to a dealer in coal and sand located in the,same square, who is obliged to haul heavy loads over the ohstruction thus created, is of the same kind though different in degree from that suffered by the general public, and does not entitle him to an injunction.
    2. But where the mode of construction has been such as to cause the drains, and gutters to fill up and turn the surface water into the middle of the street, where gullies have formed in front of plaintiff’s property materially 'interfering with access thereto, a continuing nuisance is created for which there is no adequate remedy at law, and as to which an injunction will lie.

      Stephens, Lincoln & Stephens, for plaintiff.

      Maxwell & Ramsey, contra.
    Giffen, J.; Swing, P. J., and Smith, J., concur.
   The plaintiff, who is lessee with the privilege of purchase of a certain lot of land abutting on Ludlow street in the city of Cincinnati, seeks to enjoin the defendant from constructing and maintaining certain railroad switches across Ludlow street at the intersection of Front street, and avers in substance that Ludlow street has a descending grade from Front street to the Ohio river and that the tracks already laid, and others to be laid, being considerably above the grade of the street, will cut off his ingress and egress to and from his lot with teams and wagons loaded with coal, sand and gravel in which he deals.

It is manifest that the damages he would sustain are not personal in character, but result from a taking or impairment of his easement in the street; henee he could not, as claimed by counsel for defendant, bring an action under Section 3283, Revised Statutes, but the remedy would, if damages were asked, be under Section 6448, Revised Statutes, to compel condemnation. Railway v. O’Hara, 50 O. S., 667; Railroad Co. v. Campbell, 51 O. S., 328.

Until private property thus threatened with injury is appropriated according to law the remedy may be by injunction. Railway Co. v. Lawrence, 38 O. S., 41.

The difficulty arises in determining whether the inconvenience the plaintiff will suffer differs in kind from that of the general public, and not only in degree.

The proposed construction is not adjacent to his lot, but about 150 feet north of it, and he also has access to his lot through .Lawrence street. The evidence shows that the tracks will inconvenience him, not by impairing immediate access to his lot, but in hauling heavy loads -up the grade of Ludlow street and over the obstruction; but the same inconvenience, 'though less in degree, will be suffered by the public using the street for a like purpose. So far therefore as the tracks themselves as located will constitute an interference with his hauling on Ludlow street, the plaintiff would not be entitled to an injunction. The Kinnear Mfg. Co. et al v. Beatty, 65 O. S., 264.

But it appears also from the testimony that, by the mode of construction, the mouth of the sewer has been closed up, the gutters filled in, whereby the water is allowed to flow in the middle of the street, causing gullies therein in front of plaintiff’s lot. That the west side of the street adjacent to such lot.has been filled in about two feet, by all of .which the access to the plaintiff’s lot is materially impaired. These .acts of the defendant are not wholly unnecessary to a proper laying of the tracks,-but are specifically forbidden by the city ordinance under which it is acting, and constitute a continuing nuisance to plaintiff for which he has no adequate remedy at law. The defendant will therefore be enjoined from so constructing and maintaining the tracks as to divert the flow of surface water from the gutters into the middle of the street, and from maintaining the fill and change of grade of the street in front of plaintiff’s lot. Permission is granted to the plaintiff to -file the .amendment to the petition heretofore submitted.


text:
    INDEFINITE CONTINUANCE OF CAUSE BY JUSTICE OF THE PEACE.
    Circuit Court of Crawford County.
    E. and M. J. McGinniss v. Frank Dickson.
    Decided, January 28, 1908.

      Justice of the Peace — Authority of, to Grant an Indefinite Continuance — Judgment—Jurisdiction—Execution.
    The continuance of a cause by a justice of the pence for an indefinite period does not work a discontinuance of the cause, where it is done with the consent and at the request of both parties thereto, but the justice retains jurisdiction and is vested with authority at some future time to call the case up and fix a day certain for its trial, although a longer period has elapsed than that fixed by statute.

      8. L. Americas, for plaintiffs in error.

      B. F. Long, for defendant in error.
    Norris, J.; ITurin, J., and Donnelly, J., concur.
   This action w.as commenced 'on the 16th day of February, 1905, before ,a justice of the peace of this county, by E. and M. J. McGinniss against one .David Yockey.- The trial was' set for the 25th day of February, 1905. David Yockey filed a counter-claim on the day preceding the trial day. The counsel for the plaintiffs and the counsel for the defendant mat at the office of the justice of the peace on the 24sth day. of February, 1905, and by the agreement of both parties the case was adjourned “indefinitely,” says the record of the justice of the peace. Up to about the 1st day of October, 1905, nothing had been done in the case. On this date, on application of counsel for the defendant, the case was by the justice of the peace set for trial on the 16th day of October, 1905. The justice of the peace, on the 1st day of October, 1905, notified the plaintiffs by letter that he had set the case for trial on the 16th day of October, 1905, at 10 o’clock a. m. It is conceded in the record that the plaintiffs received this letter and were therefore informed. On the 16th day of October, 1905, and at 10 o’clock A. M, of that day, the time fixed by the justice of the peace for trial, the defendant came, but the plaintiffs failed to appear, either in person, or by counsel, at the time set for the trial, or within one hour /thereafter. Whereupon the justice of the peace dismissed the plaintiffs’ bill of particulars, and, on motion of the defendant, proceeded with the .case .on defendant’s counterclaim, and upon the evidence, and entered judgment for the defendant against .the plaintiffs. On. the 23d day of October, 1905, -the plaintiffs’ counsel appeared and ordered a transcript of the findings to be carried up on error, says the record. I make these statements in preface and by way of introduction to the action in error, so that the facts recited hereafter may be more fully understood.

It appears that execution was issued in the aforesaid action from the justice of the peace’s court, on defendant’s default judgment against the plaintiffs, being obtained on defendant’s counter-claim. The constable, Frank Dickson, the defendant in error in this action, levied the execution. Thereupon, the plaintiffs in error commenced this action in replevin before a justice of the peace against Frank Dickson as constable, to recover possession of the property thus taken by Dickson. The ease reached the common pleas court on appeal. The petition in the common pleas court does not seem to be an 'action against Dickson as constable, but against him personally. The petition claims that Frank Dickson wrongfully attached, etc., the property described in the petition to which the plaintiffs have the right of immediate possession, etc. The answer avers that Frank Dickson is constable, etc., and denies. The reply admits that Frank Dickson claims the .property .as constable and avers that the execution upon which the property was taken is null and void — .that the judgment of David Yockey against E. and M. J. McGinniss upon which execution issued is void. These issues in the action in replevin came on for trial in the common pleas court of this county on its merits and, at the close of plaintiffs’ evidence, on motion of defendant’s counsel, the court directed the jury to return its verdict for the defendant, and that at the commencement of this action the .defendant had the right of possession of the property described in the petition. The plaintiffs’ motion for a new trial was overruled and judgment was entered on the verdict for the defendant.

The errors assigned in the petition in error for the reversal of the judgment and findings of the common pleas court, are:

(1) Error in directing the verdict for the defendant; (2) that the verdict is .against the weight of the evidence, and contrary to law; (3) error .in admitting evidence offered by defendant; (4) in rejecting evidence offered by plaintiffs; (5) in the charge; (6) that .the verdict is for defendant when it should have been for plaintiffs; (7) in overruling the motion-far new trial; (8) in entering.judgment fqr defendant; (9) other errors apparent on an inspection of the record.

It is conceded that execution issued on a “purported judgment” in favor of David Yoekey and against E. and M. J. Mc-Ginniss in the justice’s court. It is not disputed that defendant took possession of the property in dispute under this execution. It is not disputed that the property levied on as the property of the plaintiffs, and the right of possession of defendant rests on the validity of the judgment .and the execution under it. If the judgment is an invalid judgment, the execution and the possession of Dickson under it is improper and his detention of. the property is wrongful detention. And this is the ease, and the only question in i.t, as we view the case.

It is not contended hut what the action of E. and M. J. Mc-Ginniss against David Yoekey -was properly commenced, and that the justice of the peace had jurisdiction, in .the beginning, of the person of the parties and of the subject-matter of the suit. It is however contended 'that the adjournment of the trial of the case “indefinitely” worked a discontinuance of the action and that the justice of the peace thereby lost jurisdiction.

While a justice of the peace would not have the right to adjourn ,a case on his own motion for a longer period than that named in the statute, and would not have the right to adjourn the trial at the request of one of the parties for a longer period than that fixed by statute, and to do so in either instance would deprive him of jurisdiction, and while a continuance for an "indefinite time” and not to a day certain on his own motion, or at the request of one of the parties only, would mark a determination of the suit, we think that we are warranted in saying that at the request of both parties, an adjournment of the trial, or a continuance for an "indefinite period” does not work a diseontinuanee of the ease, but vests the court with such authority that at a later period than that of the day of the original assignment, the court may fix a day certain for the trial. He still has the power to call the ease up for the purpose of fixing' a definite day for trial. We do not see anything unreasonable in this conclusion. The adjournment is the act of the justice of the peace afc-'the request of both parties. The agreement of the parties that a day certain should not be then fixed did not take from the justice of the peace the power to fix a day at a later period,' but . was an affirmance of the authority which the justice of the peace then' hád, to fix a day, .and an agreement that he might at some future day name a date certain for the trial of the case.

This being our view, we find no error and so affirm .the judgment at the cost of plaintiffs in error. Execution is awarded and the case is remanded for execution.


text:
    PAY FOR PUBLIC SCHOOL TEACHERS WHILE ATTENDING TEACHERS’ INSTITUTES.
    Circuit Court of Lawrence County.
    The Board of Education of Elizabeth Township, Lawrence County, Ohio, v. Cora D. Burton.

    Decided, March 12, 1908.

      Stipulation not to Demand Pay While Attending Teachers’ Institute not Enforcible — Purpose of the Legislature in Providing for such Payment — When Benefit of a Statutory Provision may be Waived— Boards Without Authority to Reduce Compensation Fixed by Law Contracts against Public Policy — Section Jj091.

    In a contract between the B. of E. and C. D. B., under which C. D. B., was to teach an eight months term of school at $45 per month, was included a stipulation that such teacher would not exact, demand or accept pay for attending the teachers institute. Held: Such stipulation is against public policy and void, and in an action for the purpose the teacher can recover the sum fixed by statute for such attendance.

      L. B. Andrews, for plaintiff in error.

      A. B. Johnson and A. J. Layne, contra.
    Cherrington, J.; Walters, J., and Jones, J., concur.
    Error to the court of common pleas.

       Affirming Burton v. Board of Education, 5 N. P.—N. S., 294.

   Cora D. Burton brought suit before a justice of the peace in this county to recover $11.25, to which she, as a school teacher, was entitled under Section 4091 of the Revised Statutes, for one week’s attendance at the teachers’ institute held in Lawrence county, the first week in September, 1906. The trial before a jury resulting in a verdict for the defendant, the board of education, on which judgment was entered against the objection of plaintiff. The case was taken to the common pleas court on error, where the judgment was reversed and cause set down for trial. The only issue in the ease was made by the bill of particulars before the justice of the peace, -and the evidence introduced on the trial before common pleas and a jury. At the close of .plaintiff’s testimony, the defendant declining to offer any evidence, the court instructed the jury to return a verdict for the plaintiff for the amount claimed. This proceeding in error is to reverse the judgment entered on the verdict.

There is really no dispute as to the facts in the ease. The evidence shows substantially that on the 18th of April, 1906, the plaintiff was hired by the defendant to teach a district school for a term of eight months, at $45 per month, beginning the second Monday in September following, and contemporaneously with the contract to teach she agreedinot to exact or accept pay for attending the teachers ’ institute in the following words:

“Elizabeth Township, 4 — 18—1906.
“I hereby agree to teach the school assigned me and will not exact or demand in any way or accept pay for attending the teachers’ institute.
“Cora D. Burton.”

She taught the full term, receiving pay therefor monthly at the stipulated price. Near the expiration of the term, viz., April 20th, 1907, she presented to the defendant a certificate in due form showing one week’s attendance at the teachers’ institute, signed by the president and secretary, of the institute, requesting pay for the attendance, which was refused.

A number of errors are assigned on the record, which we regard as secondary in importance, and will not .touch upon them, but will briefly direct attention to the real question in the case, namely, the character of the stipulation not to accept pay for attendance at the institute, the claim of counsel for defendant in error being that it is against public policy and void. Counsel for plaintiff in error .insists that if the contract of employment is contrary to public policy and void, it is unlawful and illegal, and the court should give 'no relief. It is sufficient answer to that suggestion to say that if the argument could be made available in any possible event it would be in answer to a suit to recover wages for teaching, whereas this is an action to recover a • sum fixed by the statute as due her, and in no possible way dependent upon the will or agreement of the board of education.

Section 4091, Revised Statutes, provides:

“All .teachers of the public schools within any county in which a county institute is held may dismiss their schools for one week for the purpose of attending such institute, and when such institute is held while the schools are in session the boards of education of all school districts are required to pay the teachers of their respective districts their regular salary for the week they attend the institute upon the teachers presenting a certificate of full regular daily attendance at said institute signed by the president and secretary thereof; the same to be paid as an addition to the first month’s salary after said institute by the board of education by which said teacher is then employed, or in case he is unemployed at the time of the institute, then by the board next employing said teacher, provided the term of said employment begins within three months after said institute closes. ”

It was doubtless the policy of the Legislature to encourage teachers to avail themselves of the opportunities afforded by the institutes and to better fit themselves to instruct the youths committed to their charge. This is a policy commendable in itself, and likely to be a public benefit, and any act or agreement in contravention of it should receive little favor at the hands of courts.

In Cyc., Vol. 9, 480, it is said:

“A person may lawfully waive by agreement the benefit of a statutory provision, but there is an imputed exception to this general rule in the case of a statutory provision where waiver would violate public policy expressed therein, or where rights of third parties, which the statute was intended to protect, are involved.”

Id. 481, speaking of contracts as against public policy:

“When a contract belongs to this- class, it must be declared void, although in the particular instance'no injury to the public may have resulted. In other words, its validity is determined by its general tendency at the time it is made, and if this is opposed to the interests of the public it will be invalid, even though the intent of the parties w.as good, and no injury to the public would result in -the particular case. The test is the evil tendency of the contract, and not its actual .injury to the public in a particular instance.”

In Salt Co. v. Guthrie, 35 O. S., 672, McIlvaine, C. J., said:

"Courts will not stop to inquire as to the degree of injury inflicted upon the public; it is enough to know that the inevitable tendency of such contracts is injurious to the public.”

In People, ex rel F. Leroy Satterlee, v. Board of Police, 75 N. Y., 38, is the following syllabus:

"The provisions of the act of 1866, fixing the salaries of certain members of the Metropolitan Police Department (Chap. 861, Laws of 1866), continued in force and governed as to appointees under the said Charter of 1873. In September, 1873, the relator was appointed police surgeon by resolution of the board, which fixed the salary at $1,500. He accepted' the appointment, discharged the duties of 'the office and drew the amount of the salary as so,fixed. In proceedings to compel, by mandamus, the board of police to draw a requisition upon the comptroller for an amount sufficient to pay the difference' between the salary so fixed .and that fix-ed-' by said act of 1866 — • Held: That -the board had no power by resolution to fix the salary .at a less amount that that prescribed by the statute; that the acceptance, and discharge of the duties of the office, under the appointment, was not a waiver of the statutory provision, .and did not constitute ,a binding contract to perform the duties of the office for the sum named in the resolution. A board of officers having the power of appointment to an office can not reduce the amount fixed by law as the salary of said office, or make a binding contract with their appointee to perform the duties of the office at a less sum.”

From these authorities and on principle we hold that the common pleas did not err in directing a verdict for the plaintiff.

Judgment affirmed.


text:
    ELECTION OF JUSTICES OF THE PEACE UNDER. THE BIENNIAL ELECTION AMENDMENT.
    Circuit Court of Cuyahoga County.
    The State of Ohio, ex rel James E. Votava, v. John Brown; and The State of Ohio, ex rel William Davio, v. Robert T. Morrow.
    Decided, May 5, 1908.

      Elections of Justices of the Peace — Constitutional Amendment Relating to Biennial Elections — Effect of, on Terms of Office of Justices — Section 9 of Article TV, Amended Section 8 of Article XVII, and Sections 561 and lJp$, Revised Statutes.

    An election of justices of the peace, held in November, 1907, to take effect January 1, 1908, to succeed incumbents who were elected in November, 1904, for terms of three years and took office in April, 1905, was premature and .void, and petitions in quo warranto directed against such incumbents will be dismissed.

      Harry F. Payer, for relators.

      Blandin, Bice & Ginn, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   By virtue of their alleged election in November, 1907, the relators in these two cases, respectively, claim the offices, as justices of the peace, hitherto held by the defendants,-John Brown and Robert T. Morrow, who were elected in November, 1904, for ,the term of three years, and took office in April, 1905. At that time Section 9 of Article IV of the Constitution provided, with respect to justices of the peace, that “Their term of office shall be three years.” On November 7, 1905, while the defendants were in possession of their offices and actually serving, an amendment .to the Constitution was .adopted, providing, in Section 1 of Article XVII, that, “Elections for state and county officers shall be held on the first Tuesday after the first Monday in November, in the even numbered years; and all elections for all other elective officers shall be held on the first Tuesday after the first Monday in November in the odd numbered years.” The same amendment further provides in Section 2 of Article XYII, that, ‘ ‘ The term of office of justices of the peace shall be such an even number of years, not exceeding four years, as may be prescribed by the General Assembly.” The amendment further provides in Section 3 of Article XYII, that, “Every elective officer holding office when this amendment is adopted, shall continue to hold such office for the full term for which he was elected, and until his successor shall be elected and qualified, as provided by law.”

On March 31, 1906, the General Assembly passed “An act to amend Sections 567, 1442,” etc., and thereby provided that justices of the peace shall be chosen “for .a term of four years by the electors of each township on the first Tuesday after the first Monday in November in the odd numbered years, and their terms of office shall commence on the first day of January next after their election.”

The defendants claim that the term of three years for which they were elected did not expire until April, 1908, so that the choice of their successors at the election held in November, 1907, to take office on the first day of January, 1908, was premature; their contention being, that no regular and valid choice of their successors can be made until the general election in an odd numbered year shall be succeeded in the following year by a first day of January subsequent to the regular expiration of their constitutional terms of three years. No such conjunction, they insist, has yet occurred, nor can it occur until November-January, 1909-10.

The contention of the relators on the other hand is three-fold. First: That the term of office of the defendants must be held to have begun not in April, 1905, when they actually took possession of the office, but rather in November, 1904, immediately following their election, since the statutes at that time prescribed no date for' their taking the office to which they had been elected, and in the absence of such provision the term commenced at once. State v. Constable, 7 Ohio, part 1, page 7; Bushnell v. Koon, 8 C. C.—N. S., 163. An obvious difficulty, however, in the application of this rule arises from the fact that the predecessors of these defendants were elected for a constitutional term of three years, at a spring election in April, 1902, and their term could not be curtailed' by reason of the change in the time of election of justices of the peace from spuing to fall. We hold, therefor, that the defendants’ terms of office began not in November, 1904, but in April, 1905, and continued thereafter, under the provisions of Section 9, Article IV of the Constitution, as it then existed, and under Section 3 of Article XVII of the Constitution, as since amended, for the full term of three years for -which they were elected, to-wit, until April, 1908, and until their successors are elected and qualified, as provided by law.

The relators second contention is that the defendants by submitting their candidacy to succeed themselves at the general election in November, 1907, for the term of four years, beginning in 1908, and having been defeated at said election by the relators, are now estopped to assert that their terms do not expire as contemplated by said election (Th-roop on Public Officers, Section 394, and cases there cited)., But our own Supreme Court has approved the contrary rule in State v. Brady, 42 O. S., 504, wherein the third paragraph of the syllabus is as follows:

“A’s accepting the office in 1883 xvith. .the knowledge that the council each year elected a city clerk, and his soliciting a re-election in 1884, do. not estop him from claiming the full term; and in April, 1884, while A rightfully insisted on holding the office, for the full term, another person could not be duly elected to such office.”

The relators contend in the third place that the constitutional amendment already referred to, having for its object the separation of state and county elections from those at xvhich municipal and township officers -are elected, so that the former shall occur in the even numbered years and the latter in the odd numbered yeai’S, no necessity would arise for the readjustive extension of -the terms of any offices provided for in the amendment, where such terms were to expire during the year succeeding the general election at which such offices might be filled; hence, the terms of these defendants expiring in an even numbered year, to-wit, 1908, and '¿he election of justices of the peace being fixed for odd numbered years, the amendment as applied to these conditions is self-executing and the time for electing successors to the defendants would regularly occur in November, 1907. State v. Pattison, 73 O. S., 305.

This contention, however, overlooks the fact that the consth tutional term of justices of the peace had been three years, and, under the amendment, the Legislature must provide that it be made thenceforward either two or four years. The amendment was therefore not self-executing with respect to the terms of justices of the peace. Legislation was required to make it effective. Until such legislation was provided, the incumbents of that office at the time the constitutional amendment was adopted, would continue for the full term for which they were elected, and until their successors should be elected and qualified, as provided by law. The terms of the defendants could not lawfully be abridged bjr statute so as to expire January 1, 1908, instead of April, 1908. The General Assembly by amendment to Section 1442, already quoted, fixed the terms of justices of the peace, pursuant to the constitutional amendment, at four years. It was without power, except in cases of vacancies, to provide that any such term of four years should begin before the expiration of the three year term of the previous incumbents of the office. The election of justices of the peace in November, 1907, purported to be for a term of four years, beginning in 1908. No such term could begin in January, 1908. because the defendants were entitled to the possession of their office until April, 1908; neither could such a term of four, years begin in April, 1908, because no statute provides for such a term beginning at such a time in the year.

Prior to November, 1909, no election for justices of the peace in an odd numbered year, as required by the Constitution, for a term beginning January first next succeeding such election can be held for the choice of successors to these defendants, whose constitutional terms of three years did not expire until April, 1908, and who should, under the amendment -to the Constitution, continue in office until their successors are elected and qualified.

We hold, therefore, that the election for justices of the peace to succeed the defendants, held in November, 1907, was premature and void, and the petitions are dismissed.