author: WINCH, J.

text:
    DAMAGES.
    [Lorain (8th) Circuit Court,
    April 20, 1912.]
    Winch, Marvin and Niman, JJ.
    Henry Buddenburg v. Anthony Wearsch.
    Instruction that Jury May Find Damages Less than Value Given by Witnesses.
    When the question of the value of a horse is before the jury and witnesses have given their opinions as to its value, describing it, it is not error to instruct the jury that if it, from other evidence in the case, was of the opinion that the horse was worth less than the value put upon it by the witnesses, they might so decide upon their own judgment.
    Error.

      Q. A. Gillmore, for plaintiff in error.

      Fauver & Bice, for defendant in error.
   WINCH, J.

Defendant in error was plaintiff below, and recovered a judgment against plaintiff in error for the wrongful death of his mare, which he claimed resulted from the negligent use of a pistol by Buddenburg on the premises of Wearsch.

It appeared from the evidence that on Thanksgiving day, 1908, the parties to this action, who are brothers-in-law, and Joe Wearsch, brother of Anthony, had been out hunting in the forenoon, and came back to the Wearsch farm about noon. There they probably had some hard cider, and fell to discussing the relative merits of a new revolver owned by Henry and an old one belonging to Joe. They decided to try the “guns,” as they called these revolvers, and Joe and Henry went outside the house to shoot at a mark east of the house; some horses, among them the mare which was killed, were north of the house. The old gun didn’t work very well and it went off unexpectedly in the hands of either Joe or Henry, and probably this shot hit the mare, although nobody at the time knew of that fact. The horses ran off down the lane to the woods, and toward evening the mare was found suffering in a fence corner and had to be put out of her misery.

Joe says the revolver went off in Henry’s hands; the hired man was the only other person present at the time; he is uncertain as to whether the gun exploded in the hands of Henry or Joe; at least he contradicts himself upon the question. Anthony and his wife testify that Henry came in to wash the powder marks off of his hand, then went out again, and he and Joe and Anthony, who went out with them, continued to shoot at a mark, the old revolver meanwhile having been fixed up so that it would work properly.

In the evening, after they had killed the mare, Anthony testified that Henry said he had shot the mare and that Anthony should go and buy another horse and he would pay for it, and within a week Henry did give him twenty dollars towards payment for the new horse.

Joe also testifies that he heard Henry say he had shot the mare that he would pay for another horse.

Mrs. Wearsch testifies that Henry said he shot the horse, that Anthony was going to kill him for it and he wanted Mrs. Wearsch to come out and quiet Anthony down; that he would pay for another horse, and he was going to bury the revolver in the same hole with the mare.

Henry testified that the gun went off accidentally twice, first in Joe’s hands, after which they noticed the horses running down the lane and spoke about Roxie, the mare, drooping her head, and afterwards in the hand of Henry, when he was fixing it.

The evidence in this case is conflicting, but it is evident that on the evening of the day the mare was shot, everybody, including Henry, thought that he had shot the mare. Afterwards he evidently changed his mind and didn’t want to pay for the mare, but there was evidence in the ease tending to show that he was responsible for the mare’s death, and we are unable to say that the verdict was not sustained by sufficient evidence. The jury saw all the witnesses, and gave such credit to each one of them as they were entitled to in their judgment.

Doubtless the jury believed that Henry admitted that the death of the mare was due to his carelessness, and so believing, brought in a verdict against him.

Complaint is made that error was committed in permitting the witness C. IT. Johnson and John Stark to testify as to the reasonable market value of the mare at the time in the community, but as they qualified and knew the mare, there was no error committed in this respect.

After the jury had been charged and had retired, it came back into open court for further instruction, and one of the jury men addressed the court as follows:

‘1 The question is, the jury is undecided as to whether in fixing a value for this horse they can go below the value given in the petition?”

And thereupon the court instructed the jury as follows:

"The measure of damages is the market value of the horse at the time, giving credit for $19, which the plaintiff claims he lias had. What that market value is, you are to determine from the evidence in the case, and the evidence in the ease on .that subject was not all alike.”

And thereupon the said juror inquired of the court:

“Can they go, for instance, below the lowest value that is placed upon this animal?”

To which the court replied:

“I think as a proposition of law that they could not, unless the parties might feel willing to agree to give the jury a little latitude; but otherwise than that, you must determine it from the testimony in the case and base it upon that. I say this: that when a witness testifies as to his "judgment as to the value, he also testifies as to his knowledge of the horse, and if there is testimony as to the horse that will enable you to fix a value upon it, you can do so regardless of the judgment of those who testify on that subject. t Do I make myself plain ? Supposing a case where there was testimony that a horse had but three legs and those who saw the horse and placed a value upon it placed it at a certain sum, but they described the horse sufficiently to you so that you are able to say that such a three legged horse as that was not worth so much money, you have a right in that instance to take into consideration your own judgment. In other words, you are not absolutely bound by the amount fixed by them, if there is other testimony in the case that will warrant your disregarding it. I think I will leave that instruction in that shape. ’ ’

It is claimed that these remarks of the court were prejudicial to plaintiff in error, but while the first sentence of the final instructions was not strictly correct, and the illustration used by the trial judge was not a happy one, still taking the whole paragraph, the law was fully and properly charged, and the jury was clearly authorized under it and distinctly given to understand, that though the witness had given their own opinions as to the value of the mare, still, if the jury, from other evidence in the Case, were of the opinion that she was worth less, they might so decide upon their own judgment.

No other errors are alleged to have occurred on the trial, and having disposed of all that has been brought to our attention in favor of defendant in error, the judgment is affrmed.

Marvin and Niman, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    EASEMENTS — LICENSE.
    [Summit (8th) Circuit Court,
    April 20, 1912.]
    Winch, Marvin and Niman, JJ.
    Peterson & Wright Co. v. Akron (City)
    1. License or Easement Determined from Terms of Instrument Though for Public Sewer.
    Whether the right to maintain a sewer across premises of another is a mere license or an easement is to be determined from a consideration of the terms of the instrument creating the right, even though the right is claimed by a municipal corporation and the sewer in question is a public sewer.
    2. Reference as to Reservation of Right of Way in Later Conveyance not Conclusive of Term Granting License to Maintain Sewer.
    Reference to a contract granting a license to maintain a sewer across premises of another as a contract granting a “right-of-way for a sewer” when found in a conveyance from the owner of the premises to another than the licensee, is not conclusive as to the character of the right created by the contract.

      Boylan & Brouse, for plaintiff in error.

      N. M. Greenberger and J. Taylor, for defendant in error.
   WINCH, J.

The prayer of the petition in this case is for rescission of a contract between the plaintiff’s predecessor in title and the city of Akron, by the terms of which the city was granted the right to lay and maintain a sewer across property now owned by plaintiff; the petition also prays that plaintiff’s title to said premises may be quieted as against any claims of the city under said contract.

There is no dispute as to the facts in this case. The whole ease turns upon the proper construction to be put upon said contract. If under it the city obtained a mere license, plaintiff has a right to terminate said license, which it has attempted to do. If the city, by virtue of said contract and its acts thereunder in constructing said sewer, obtained an interest in the land of defendants, plaintiff can not terminate said interest without the city’s consent.

The contract in question was executed in 1894, the Brewster Coal Co., plaintiff’s predecessor in title, being the first party, and the city of Akron the second party. It recites:

“That the party of the first part for and in consideration of the covenants and agreements of the party of the second part, hereafter mentioned, does hereby give to the party of the second part a license and permission to construct, maintain, operate and keep in repair a sewer, and to change the nature and size of the same, upon the following described parcels of land.”

Then follows a description of two parcels of land about twenty-three feet wide, extending diagonally across the plaintiff’s premises from High street, to Main street, in the city of Akron.

Following this description are certain covenants on the part of the city of Akron; that it will do no unnecessary damage to the first party’s land adjoining said premises, or to its structures thereon; that it will indemnify and protect first party, its successors and grantee^, from all damages by the exercise of the right granted; that it will restore the premises and any structure thereon to as good condition as they' were in before excavation, and that subject to the use of the premises described, the first party shall have the right to use said premises.

The first party is specifically released “from any obligation to warrant its right to grant said license,” and it is further agreed that if any of the agreements of the city are held to be beyond its power and authority, “then the license and permission granted by said party of the first part shall thereupon, and for that reason, terminate and become null and void,” and the sewer shall be moved.

Although the instrument is signed by the parties, it is neither witnessed nor acknowledged. However, it was recorded in the office of the recorder of Summit county.

A reading of this instrument convinces one that it was intended as a license .and not as a conveyance. In the first place, the instrument itself purports to be only a license; as recited, it gives a license and permission to construct, maintain, operate and keep in repair a s&iuer. No other operative terms are contained in the instrument. It is three times recited in the agreement that it is a “license and permission,” and four more times it is recited that it is a “license.”

■ The parties themselves having thus characterized it, it is hard to construe it as anything else. If it is a mere license, witnesses to it and an acknowledgment would make it nothing more, and the fact that it lacks witnesses and an acknowledgment is further evidence that parties themselves considered it merely a license.

It is significant that no estate in the land is mentioned and no interest therein is described. It is true that in the conveyance from the Brewster Coal Co. to the plaintiff, occurs the following clause:

“Also excepting and reserving the right of way for a sewer as shown by a contract by and between the Brewster Coal Co. and the city of Akron, Ohio, said contract being dated March 5th, 1894, and recorded in Book 78, page 578, Summit county records.”

While this clause brings home to plaintiff notice of the city’s rights, if any, as shown by the contract, it can not enlarge them, for the city was not a party to this deed, and calling the city’s rights under the contract a “right of way for a sewer,” does not make it an easement, if the original instrument creates a mere license, as we have seen it does.

There is no duration fixed for the life of this license; on its face it appears to be personal and probably terminated when the Brewster Coal Co. parted with its title to the land. At any rate, like all mere licenses, it is revokable and the plaintiff having revoked it, and there appearing to be no equitable consideration favoring the defendant, except that it should have ample time to make other arrangements for the sewer, plaintiff appears to be entitled to the relief it prays.

In our conclusions we are sustained by the following authorities: Wilkins v. Irvine, 33 Ohio St. 138; Yeager v. Tuning, 79 Ohio St. 121 [86 N. E. 657; 19 L. R. A. (N. S.) 700; 128 Am. St. 679] ; Fowler v. Delaplain, 79 Ohio St. 279 [87 N. E. 260; 21 L. R. A. (N. S.) 100] Rodefer v. Pittsburg O. V. & C., 72 Ohio St. 272 [74 N. E. 183; 70 L. R. A. 844] ; Hamilton v. Ashbrook, 62 Ohio St. 511 [57 N. E. 239],

In the last mentioned case, the contract between the city and the proprietors of the lands is set forth, and will be found to be very similar to the contract in this case, yet Judge Shauek, on page 517 of his opinion says: ‘ ‘ That instrument was a license. ’ ’

Decree may be entered for plaintiff, as prayed for, but not to go into effect until the city has had reasonable time in which to make other arrangements for taking care- of the sewage now flowing through the sewer in question.


text:
    DEEDS.
    [Summit Circuit Court,
    April 20, 1912.]
    Winch, Marvin and Niman, JJ.
    Portage Park Land Co. v. Rose B. Burch et al.
    Construction of Building Restriction with Reference to Porch Roof.
    A restriction in a deed which requires that no building, except an open porch, be erected nearer the^ street line than twenty-five feet, is not violated by the erection of an open porch upon the restricted territory, although the roof of said porch is but a continuation of the roof of the main building.
    Error.

      Stua/rt & Stuart, for plaintiff in error.

      Wilcox, Parsons, Burch & Adams, for defendant in error.
   WINCH, J.

The land company in this appealed action asks for the enforcement of a building restriction contained in defendants’ deed, which requires that no building, except an open porch, be erected upon defendants’ lot nearer the street line than twenty-five feet.

The main part of defendants’ home, recently erected, is about two feet farther back from the street line than the restriction requires, but the roof of the front porch is a continuation of the main roof of the house as it slopes toward the street. Exhibition of this kind of roof is common in the architecture of the day, but it is said that by reason of the siding on the main part of the house being carried out to the front into the triangular space included between the roof and ceiling of the porch and the front of the house, the view from a second-story porch on any house which might be built to the east of defendants’ house, would be obstructed.

The porch, outside of this roof, is a remarkably open one. The few posts supporting the roof are not large; the railings are slight and graceful.

In order to make light and view for two chamber windows upstairs in the front of the house, the porch roof is cut down and a deck roof constructed, leaving at each side thereof the sloping roof complained of, perhaps six feet wide on each side of this deck roof.

The pitch of the main roof, which is the pitch of that part of the porch roof that is complained of, is nearly forty-five degrees.

It is conceded that defendants are entitled to a substantial roof over their porch, so that in the last analysis, the only objection plaintiff can have to defendants’ porch roof is that it is too steep on the side part. In view of the fact that this roof begins two feet back of the restricted area, it is apparent that it is about two feet lower at the twenty-five-foot line than it would have been if the front of the house had been on that line. This undoubtedly explains the fact that a photograph of the premises taken from the west with another house and porch between the camera and defendant’s porch hardly shows the latter, while a photograph taken from the east, with no intervening house, rather magnifies plaintiff’s contention.

The court viewed the premises, however, and finds the construction of defendants’ porch and roof thereof to be within the language of the restriction; it is an open porch and requires no alteration to make it conform to the requirements of the deed.

Upon the argument of the ease, counsel for plaintiff suggested that to permit the construction here complained of, might encourage some other lot owner in the restricted territory to extend the main part of the second-story of his house out over the porch in the manner sometimes seen.

So far as this case is concerned, the suggestion has no influence, for defendants have not done such a thing and disclaim all intention of so doing. It will be time enough to complain of what somebody else may do, when he does it.

The petition is dismissed.

Marvin and Niman, JJ., concur.


text:
    EXECUTORS AND ADMINISTRATORS.
    [Cuyahoga Circuit Court,
    April 20, 1912.]
    Winch, Marvin and Niman, JJ.
    Carrie G. Prentiss v. Ezra Woods.
    Allowance to Administrator for Extraordinary Services to Estate not Disturbed on Error.
    The mere fact that an allowance to an administrator for extraordinary services rendered his estate seems somewhat large will not warrant the circuit court, on error, in reversing the judgment, the probate judge, with his expert knowledge of the value of such services having first fixed the amount, and the common pleas court, on appeal, having fixed the same amount.
    Error.

      Otis, Beery <& Otis, for plaintiff in error.

      Grant, Seiber <& Mather, for defendant in error.
   WINCH, J.

This ease originated in the probate court of Summit county, by plaintiff filing exceptions to the account of defendant as administrator of the estate of Prof. Bates, deceased, in which he claimed $500 extra compensation for extraordinary services rendered the estate. The probate judge heard the parties and their evidence on these exceptions and allowed the claim of the administrator.

On appeal to the common pleas court, it did the same thing.

The case is here on error, with a bill of exceptions showing all the evidence taken on the hearing in the common pleas court, and we are asked to reverse its judgment solely on the weight of the evidence.

It appears that Prof. Bates died in California, leaving some personal and real property there. He left some personal property located here at the time of his death, and some located in Massachusetts.

Defendants applied for and was granted letters of administration in Summit county, Ohio, and at once set about obtaining possession of the assets in the other two states. He was met with the claim that Prof. Bates was a resident of California at the time of his death. This claim was important, for if true, it altered the distribution of the estate.

Prof. Bates left a widow and no children. Under the laws of Ohio, his widow would inherit his entire estate; under the laws of California, she would inherit but half of it, and his sister, plaintiff herein, would inherit the other half.

In the settlement of this question, depositions had to be taken in Oregon and in California; services of counsel were required, with many consultations and directions; the hearing on this question was long and it was hotly contested; defendant lost the point, but still continued, under advice of counsel; in his effort to bring all the assets of the estate under one administration here, so as to save expense and loss.

He succeeded, with some considerable labor, in securing possession of the Massachusetts assets; meanwhile the public administrator in California made claim to the assets there, but the administrator here, after much delay, considerable trouble and by good management, secured control of the personal assets in California. The real estate there remains for administration by the California public administrator under the laws of that state.

In all, defendant has administered upon about $25,000 of assets.

The foregoing is a summarized statement of defendant’s imusual service in this estate; it does not set forth the many little things he did in connection with the collection of the Massachusetts and California assets, and some unusual trouble he had in the collection of part of the Ohio assets.

It is apparent that defendant perforated some services for the estate in his charge which on administrator in this state is not ordinarily called upon to perform.

Ordinarily the estate of a deceased resident of Ohio is located at his residence, and the administrator has little trouble in reducing it to his possession, converting it into money and distributing it. For these services he is compensated by a percentage, not large, as any other agent is compensated. But where, as here, he renders unusual services, they are by statute denominated -extraordinary services, and for them he is entitled-, to additional compensation.

The two courts below undertook to fix the value of, the extraordinary services, which were without doubt rendered by this administrator. That he was -entitled to some extra compensation is equally without doubt. The amount fixed, $500, seems large, but it is not so large that this court, without recent experience in such matters, can say that the probate judge, with his intimate knowledge of the value of such services, got it too large. The probate judge is an expert in such cases. We bow to his judgment.

Judgment affirmed.

Marvin and Niman, JJ., concur.


author: MARVIN, J.

text:
    HEALTH.
    [Lorain (8th) Circuit Court,
    April, 1912.]
    Winch, Marvin and Niman, JJ.
    R. H. Shute v. Elyria (City).
    1. Reasonable Construction Given Health Rules of Board of Health.
    A reasonable construction should be given to a rule of the board of health of a city, intended for the protection of the health of its inhabitants, to the end that it may be enforced.
    2. Reasonableness of Health Rule Governing the Slaughter of Chickens.
    One who dresses chickens in a room in the same building with his meat market and connected with it on the same floor, can be punished for the violation of a rule of the board of health providing: “No fowls or animals shall be kept confined, nor shall same be slaughtered or dressed in any basement or any building, a part of which is used and occupied as a market where meats are sold for food.”
    Error.

      Q. A. Gillmore, for plaintiff in error.

      G. B. Fmdlay, for defendant in error.
   MARVIN, J.

The plaintiff in error was prosecuted before the mayor of the city of Elyria, and found guilty of violating Sec. 46, paragraph 29, of the rules and regulations of the board of health of said city.' This regulation reads:

“No fowls or animals shall be kept, confined, nor shall same be slaughtered or dressed in any basement or any building, a part of which is used and occupied as a market where meats are sold for food.”

It was shown upon the trial that Shute conducted a meat market in the City of Elyria, and that on April 28, 1911, he slaughtered and dressed chickens in a room in the same building with his meat market and connected with such market and on the same floor with the room in which his meats were sold, the slaughtering, however, being done in a boom back of the one in which meats were sold. The slaughtering and dressing would appear to have been done with care, and the work conducted as cleanly as that kind of work can be done.

By proper proceedings, the ease was brought into the court of common pleas on error, where this judgment of conviction was affirmed, and the case is now here upon proper proceedings seeking a reversal of the judgment of affirmance and the judgment in the mayor’s court.

It is manifest that the accused violated this rule of the board of health, if the same is to be construed literally, and this question is presented in the case: ‘ ‘ Had the board of health authority to establish this rule?” The statute which authorizes the establishment of the rule, if the board had the authority to establish it, is Sec. 4413 G. C. which reads in part:

“The board of health of a municipality may make such orders and regulations as it deems necessary for its own government, for the public health, the prevention or restriction of disease, and the prevention, abatement or suppression of nuisances.”

This, of course, does not authorize the board of health, arbitrarily, to establish a rule that is without reason, but it leaves in the board a very broad latitude in determining what is reasonable.

As said in Walton v. Toledo, 23 O. C. C. 547 (3 N. S. 295) quoting from the opinion of Judge Haynes at page 551:

‘ ‘ The powers that are given to the various boards of health, and the laws enacted for the purpose of protecting the people of the state from contagious diseases and from the sale of diseased or impure articles, are about as broad as language can make them. They extend into every relation of life, and the protection of health is one of the most important departments that the Legislature has to deal with. ’ ’

We think that a rule which would make it an offense to do things done by the accused in this ease, would be a reasonable rule to be adopted by the board of health.

Rules may be reasonable in one municipality which would not be reasonable in another, and in the absence of evidence showing the particular surroundings or the population of the character of business buildings in a particular municipality, we must presume that if the regulation adopted by the board of health in any municipality could be reasonable in any municipality, then it is reasonable in the municipality in which it is adopted, for the presumption, in the absence of evidence, is that the rule of a board of health or an ordinance of a particular municipality is proper for such municipality, unless facts are shown to the contrary by proper evidence; so that, if the rule under consideration adopted by the board of health of Elyria would be suitable and proper, in short, would be reasonable in any municipality, we must treat it as reasonable in the city of Elyria, because we have no evidence in the record as to the character of the city of Elyria, its population or kind of buildings in the city, and of these facts we can not take judicial notice.

And this brings us to the consideration, therefore, of whether the particular rule under which the plaintiff in error was prosecuted is a reasonable rule.

It will be noticed that the language of the rule is very broad. It is made an offense to “beep confined any fowl or animal, ’ ’ and it is also made an offense that ‘ ‘ any fowl or animal be slaughtered or dressed in any basement or building, any part of which is used and occupied as a market where meats are sold for food. ’ ’ If these words are to be construed in their broadest sense, it is manifest, we think, that the rule would be unreasonable. A building might and often is, in a municipality, used in part as a grocery store, and in the upper stories and at a distance from the room used as a grocery store, are rooms occupied as a dwelling place by a family. In such grocery store salt meats, such as bacon, hams, pork and dried beef are sold for food.

The word “animal” is very comprehensive. Anderson’s Law Dictionary gives as a first definition, “Any irrational being as distinguished from man”; “in a common sense, a quadruped, not a bird nor a fowl.” Again: “While the use in any particular context or statute may be limited by the general meaning and purpose, the term, in jurisprudence may include any living creature not human or rational.”

The word “fowl” is also very comprehensive, and the definition both in’ Webster’s Dictionary and in the Century Dictionary, makes it include birds of all binds, both domestic and wild, as the-word “fowler” is used to mean the man who hunts birds.

If these broad definitions were to be applied to the construction of this rule, the family which should beep a canary bird in the living rooms hereinbefore spoken of as being in the same building with a grocery store where salt meats are sold, would be a violator of the rule; so, also, would the family keeping a parrot in such manner, or, indeed giving the word “animal” its broadest meaning, the keeping of a gold-fish in a glass globe by any such family would be a violation of the rule, and surely, the keeping of a pet squirrel in a cage would be a violation of the rule. But from the fact that both the words “fowls” and “animals” are used in the regulation under consideration, it is clear that the word “animal” was not used in its broadest sense. If it had been, there would have been no occasion to use the word “fowl” and the words following the prohibition as to the keeping of fowls or animals confined, to-wit, “nor shall the same be slaughtered or dressed in any basement or building,” etc.; it would seem that a fair construction of the rule would be that the offense is committed when animals or fowls intended to be slaughtered are kept, as well as when such animals are slaughtered or dressed in such building, the offense is committed.

We think this is a reasonable construction of the rule, and if, upon any reasonable construction the rule can be upheld, it must be for the same reason that a'statute must be upheld as constitutional, if by any reasonable construction of the statute it can be so held. We do not say that'the construction suggested is the only one under which the rule could be upheld, but certainly with such construction it can be, and as such construction seems to be reasonable the result is that we hold the rule to be valid, and this necessarily results in our finding that the judgment should be and is affirmed.

It is suggested that if the attention of the board of health is called to the matter, the rule under consideration, may be so amended as to relieve it from any possible misconstruction.

Winch and Miman, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — OFFICERS.
    [Summit (8th) Circuit Court,
    May, 1912.]
    Winch, Marvin and Nimán, JJ.
    Peter O. Wise, Tax Payer v. Barberton (City) et al.
    1. Officers of Village Advanced to City Become Officers of City.
    Upon advancement of a village to a city as provided by law, village officers become city officers and the mayor, in such case, has the power of veto.
    2. Compensation of Officers on Advancement to City.
    Where there is no valid ordinance fixing the compensation of councilmen, upon the induction into office of the first council elected after the advancement of a village to a city, such council can fix the compensation of its own members.

      0. D. Everhard and S. D. Kanfield, for plaintiff.

      Rogers, Rowley & Mathers and N. E. Boden, City Solicitor, for defendant.
   WINCH, J.

In this case an order is prayed for to restrain the city of Barberton from paying, and its several officials from receiving, certain salaries attempted to be provided for them by an ordinance passed by the council of the city of Barberton on the third day of January, 1912, said officers having been elected and their terms having begun previous to the passage of said ordinance.

The case grows out of a situation developed by Barberton’s increase in population.

Barberton was a village until the census was taken in 1910; by that census it was developed that Barberton had a population of more than five thousand; that fact was later officially made known to the secretary of state of the state of Ohio, and, on January 18, 1911, the secretary of state issued a proclamation stating that fact. Thirty days later, to-wit, on February 17, 1911, Barberton became a city, by virtue of the last paragraph or sentence of Sec. 3498 G. C., which reads as follows:

"From and after thirty days after the issuance of such proclamation, each municipal corporation shall be a city or village, in accordance with the provisions of this title. ’ ’

The "title” thus referred to is Title 12, "Municipal Corporations,” which embodies the whole law upon the subject of municipal corporations, and is commonly called the municipal code. The only section of said code having reference to the transition of a village to a city is Sec. 3499. It reads as follows:

"Sec. 3499. Officers of a.village advanced to a city, or of a city reduced to a village, shall continue in office until succeeded by the proper officers of the new corporation at the next regular election, and the ordinances thereof not inconsistent with the laws relating to the new corporation, shall continue in force until changed or repealed. ’ ’

This meager legislation on the subject produces difficulties and inconsistencies which can not be escaped.

Barberton became a city in February, 1911; its officers, originally elected as village officers, continued in office until January, 1912; from February, 1911, to January, 1912, were they village officers or city officers, and were their powers and duties prescribed by the statutes governing village officers or by the statutes governing city officers? The powers and duties of village and city officers are quite different.

Since the statutes themselves do not answer the question the court is required to answer it in a manner which will produce the least confusion, and as seems most conducive to good government.

In examining the question- here involved, the facts of this case alone have been considered, and it has not been deemed necessary to lay down any general rules governing all questions which might arise under the sections quoted.

The only things that are made absolutely certain by these two sections are that Barberton was a city, from and after February 17, 1911, and the only officers it had until January, 1912, were the individuals who originally had been elected as village officers. December 11, 1911, the council of the city of Barber-ton, composed of the individuals who had been elected as members of the council of the village of Barberton, passed an ordinance fixing the salaries of the city officials recently elected, who would come into office the following January.

This they had a right to do, but the mayor vetoed it, and said ordinance was never passed over his veto.

Did he have a right to veto this ordinance ? If he did not it is still in force and the prayer of the petition should be granted. If the mayor had a right to veto the ordinance of December 11, 1911, a second question arises: Did the new council on January 3, 1912, have a right to fix the salaries of city officials whose terms began before said date ?

The mayor of a city can veto an ordinance; the mayor of a village can not.

Though the learned attorney-general of the state has given it as his opinion that in a situation like this the mayor would not be vested with the veto power, he does not sustain his opinion with argument, and we see no good reasons why the mayor should not have and exercise the powers of a mayor of a city. Was Barberton a city in name only, until January, 1912, or was it a city in fact? That it was a city in fact is to be deduced from language used in Section 3499 — “the ordinances thereof (of the village) not inconsistent with the laws relating to the new corporation, shall continue in force until changed or repealed.”

What is meant by the expression “laws relating to the new corporation ” ? It means that part of the municipal code which lays down the rules governing cities, if the new corporation is a city, as in' this case.

The laws governing cities, then, apply here, and we hold that the law vesting the veto power in the mayor of a city applies and the mayor had a right to veto the ordinance of December 11, 1911, and it never went into effect, because it was not passed over his veto.

The argument ab inconvenienii of counsel for plaintiff, has not impressed us. We see no difficulty in the village mayor giving up his place as president of the council and turning it over to the president pro tempore, the latter being a village officer capable of acting as president of the city council, thus relieving the mayor of any equivocal situation, growing out of his former power of deciding tie votes in the council, and also exercising his new veto power.

Now what was the situation which confronted the new officers after their terms began ?

There were several new officers; a city solicitor, directors of public safety and public service, and a city auditor; the village had never had such officers.

The mayor of a village receives a small salary and fees in state and municipal cases and certain license fees; the mayor of a city can not receive fees in state cases. The old salary ordinance of the village of Barberton provided for the mayor’s compensation in accordance with the law regulating villages; the mayor of a city can not receive such compensation as was provided by said ordinance; said ordinance also failed to provide for the new city officers, hence said old village ordinance is “inconsistent with the laws relating to the new corporation,” and therefore it did not continue in force. (Section 3499.) '

We now have the new city officers entering their terms with no salaries fixed for their compensation.

The new city council proceeded to fix their salaries on January 3, 1912, and it is the salaries thus fixed that plaintiff claims should not be paid.

He says that said ordinance contravenes Sec. 4213 G-. C., which reads:

“The salary of any officer, clerk or employe shall not be increased or diminished during the term for which he was elected or appointed, and, except as otherwise provided in this title, all fees pertaining to any officer shall be paid into the city treasury.”

This statute applies only to a case where a salary has been fixed and not where no salary has been provided.

In order to increase or decrease a salary, there must be something to increase or decrease. The legislature can not have intended that salaries might not be provided where none had been provided before, for then there would be no way of compensating officers of newly created municipal corporations, and there would be difficulty in finding persons to fill such offices and perform the duties thereof.

This is the conclusion reached by Judge Evans, of the Franklin county common pleas court, in a well-reasoned opinion citing authorities which abundantly sustain his views: State v. Carlisle, 16 Dec. 263 (3 N. S. 544).

That case was never carried higher, and we concur in the views there expressed.

The ordinance of January 3,1912, fixed the compensation of councilmen at the same figure it had been under the village government, so that there is no question here of public policy forbidding a man fixing his own compensation, or acting as judge in his own ease, as was suggested on the argument. .

- Nor have we here any part of the salaries to enjoin, under the Crosser act, for the ordinance was passed as an emergency measure, and we hold that it was such. Surely an emergency existed; no salaries had been provided for the city officials, and they might all refuse to act and the city government be crippled and paralyzed. This is a different situation from one involving an increase in salaries.

The petition is dismissed.

Marvin and Niman, JJ., concur.


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    PRINCIPAL AND AGENT — SALES.
    [Morrow (5th) Circuit Court,
    June 25, 1903.]
    Yoorhees, McCarthy and Winch, JJ.
    (Judge Winch of Eighth Circuit Sitting in Place of Judge Donahue.)
    Citizen’s Bank of Cardington v. David High.
    Representations that Bank Is Backing Purchaser Not Representation of Agency.
    Representation by a dealer that a certain hank is backing him in the purchase of hay is not equivalent to a representation that he is purchasing for the bank, and one who has sold him hay and taken his check in payment, can not upon the dishonor of the cheek, hold the bank as principal, merely because the dealer, when he shipped the hay, stated in the bill of lading that it was to the order of the bank and drew upon the consignee of the hay to the order of the bank for the purpose of securing his account with it.
   WINCH, J.

David High brought this action against the Citizen’s Bank of Cardington, a corporation under the banking laws of Ohio, alleging that the bank was indebted to him in the sum of $117.17 for hay sold and delivered to it. The answer was a general denial.

Verdict and judgment being for the plaintiff below, the bank has filed its petition in error, urging that the judgment is against the law and the evidence of the ease.

It appears from the bill of exceptions that in June, 1898, one John H. Pringle bought the hay in controversy from David High, who says that Pringle represented to him that he was backed in the hay business by the Citizen’s Bank.

High says that Pringle virtually represented himself as an agent for the bank in the purchase of the hay, but Pringle denies this. The hay was delivered by High to Pringle at Ashley, Ohio, and put aboard the cars there for shipment to Cincinnati. Pringle gave High his check on the Citizen’s Bank, but it was never paid. High says the cashier of the bank afterwards practically told him that the bank had bought the hay, but the cashier denies this.

It appears that the railroad company, upon receiving the hay, delivered to Pringle its bill of lading, reciting among other things:

“Ashley, Ohio, June 17, 1898. Received from J. H. Pringle by the Cleveland, Cincinnati, Chicago & St. Louis Ry. Co.” And the property is described below under “Description of Articles : one car baled hay, 20,000 lbs. Car, C. C. C. & St. L. 93, 117. Notify the Union Grain and Hay Co., Cincinnati, Ohio. Order, Citizen’s Bank, Cardington, Ohio.”

Pringle took the bill of lading and attached to it his draft as follows:

“Cardington, Ohio, June 17, 1901. At sight. Pay to the order of the Citizen’s Bank, seventy-five dollars. Value received and charge to account of J. H. Pringle. To Union Grain and Hay Co., Cincinnati, Ohio.”

There were several bills of lading and several drafts, but all are alike. Pringle delivered the bill of lading with the draft attached to the bank, which credited the amount of the draft to Pringle, with the understanding that his account was not to be checked against until the draft was paid.

The draft Avith bill of lading attached was sent by the bank for collection to its correspondent at Cincinnati, but the same Avas not paid. This is the reason, the bank assigns for not paying Pringle’s check to High.

To us this transaction, so far as the bank is concerned, appears to be a straight banking matter. It does not appear that the bank Avas buying and selling hay.

This delivery to it of the bill of lading did not amount to a constructive delivery to it of a consignment of hay. The bill of lading was attached to the draft as a direction and authority to the consignee of the hay at Cincinnati to pay the bank; and notice to' the consignee that it should pay no one else but the bank. The words, “Order Citizen’s Bank, Cardington, Ohio,” directed the railroad company to respect any orders of the bank concerning the hay; and this because the bank was backing Pringle in business and desired to be sure of his honesty and fair dealing.

But backing another man in his -business does not mean constituting him your agent for business that you are carrying on for yourself. To give this construction to the bank’s part in the transaction is to harmonize it with its powers as a bank and the common transaction of banks with drafts.

We do not think that the case of Hamet v. Letcher, 37 Ohio St. 356 [41 Am. Rep. 519], furnishes any rule to be followed in this case.

In the Hamet case one Jacob 0. Rhoner, representing himself as agent of 0. T. Letcher & Co., buyers and shippers of hogs, bought hogs of Hamet, a farmer, and took the hogs to Letcher & Co., and sold them to said firm as his own and got the money for them. When Hamet applied to the firm for his pay he was told that they had paid Rhoner.

The farmer knew that Letcher & Co. were in. the hog business and that is what distinguishes that ease from this.

In the case High knew that an incorporated bank can not buy and sell hay. It is ultra vires for it to do so and he had no right to rely upon any statements Pringle may have made him, that he was agent for the bank.

Again, after the transaction, he had no rights against the bank growing out of any representations its cashier might have made to him as to the bank’s being in the hay business. Any such representations, if they were made by the cashier, would not bind the bank.' An agent of a corporation can not bind it to contracts beyond the powers of the corporation to make. Corporations act through their boards of directors; and no officer can bind a bank on a hay contract, such contract being clearly beyond the powers of the bank to enter into, as High knew, or should have known, before he sold the hay to Pringle. We find the judgment is against the law and evidence, and it is therefore reversed.

Voorhees and McCarthy, JJ., concur.


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    EVIDENCE.
    [Lorain (5th) Circuit Court,
    October 8, 1903.]
    Hale, Marvin and Winch, JJ.
    Cleveland Elec. Ry. v. Margaret A. Pifer.
    Number of Witnesses Does Not Determine Weight of Evidence.
    A judgment will not be set aside as being against the weight of the evidence in a case where the evidence is clearly contradictory and the jury must believe certain witnesses and disbelieve others, simply because it has believed the witnesses who were fewer in number; this is so especially when uncontradicted facts point toward the conclusion reached by the jury.
    Error.

      Squire, Scmders & Dempsey, J. P. Dmvley and E. G. & H. C. Johnson, for plaintiff in. error.

      C. S. Bentley and Willis Vickery, for defendant in error.
   WINCH, J.

Plaintiff in error has brought proceedings in error in this court to reverse a judgment for $4,000 recovered against it in the court below as damages sustained by the defendant in error by reason of the negligence of the plaintiff in error in so managing one of its cars upon which the defendant in error was a passenger, that, as she attempted to alight therefrom, it started suddenly and she was thrown to the ground, permanently injuring her right wrist, spine and nervous system.

The accident happened at the corner of Wilson avenue and Wilson place in the city of Cleveland.

It is claimed that the verdict of the jury upon which the judgment was rendered was contrary to the manifest weight of the - evidence, and that the trial judge erred in his charge to the jury, and in refusing to charge as requested by plaintiff in error.

As to the weight of the evidence: The plaintiff below claimed and so testified, that after the ear had stopped at Wilson place, and while she was attempting to alight therefrom, it started with a sudden jerk and threw her to the pavement.

She was corroborated in her statement by Professor Swan-beck, a fellow passenger, who got off the car at Wilson place just a moment before she was injured.

On the other hand the conductor and three other passengers, two of whom were seated in the car and one standing on the rear platform when the accident occurred, testified that she stepped from the car before it came to a full stop.

Evidently the jury believed the plaintiff’s story. Its probability is materially strengthened by the position she was in on the pavement after she had fallen thereto.

The ear was traveling north on Wilson avenue. All the witnesses who testified on the subject agree that she lay on the pavement with her feet to the north and head to the south. She fell, then, in the direction from which the car came. This would indicate that the car was jerked out from under her after it had come to a stop. Such movement would pull her feet out from under her and she would fall backward. Were the car in motion. when she attempted to alight, the momentum of the car would carry the upper part of her body forward when her feet became stationary by reason of contact with the ground, and in such case she would fall with her head to the north. Considering the probabilities as to whether the car was stopped or in motion when defendant in error attempted to leave the car, as deduced from her position on the pavement after she fell, we can not say that the jury was not warranted in finding the issue on this point in her favor, notwithstanding twice as many witnesses testified in favor of the theory of the railway company as testified for Mrs. Pifer.

Whether the jury was also influenced in reaching its conclusions and in believing or disbelieving many or few of the witnesses produced before it by their appearance upon the stand and manner of giving testimony we can not know, and for this reason also, we are reluctant to disturb the verdict, notwithstanding the testimony is conflicting.

As to the charge and requests to charge: the charge substantially covered all the counsel for the railway company requested and was entitled to.

Indeed, the charge in some respects was more favorable to the railway company than it was entitled to, the court defining negligence as the want of ordinary care and so intimating that the railway company had not been negligent if, under the circumstances of the ease, it had exercised ordinary care, while the law is, that common carriers, as to their passengers, are bound to exercise the highest degree of care.

It is claimed that the court erred in commenting as it did upon the weight to be given to the number of witnesses produced upon either side. As before stated, witnesses for the railway company outnumbered the witnesses for the passenger two to one, and such benefit as the railway company should have obtained from this fact, it claims was destroyed by the following part of the charge:

“You are the sole judges of the weight to be given to the evidence and of the credibility to be given to the witnesses. You have the right to believe or disbelieve any witness. The weight of the testimony is not to be determined necessarily by the number of witnesses called on either side. The question remains for you to determine without regard to the number of witnesses, where the real truth lies. As you shall determine this question from the evidence under the rules given you, so should your verdict be. ’ ’

While some sentences in this part of the charge taken alone are open to criticism, the whole was not misleading or prejudicial.

In any event, in this case, as the testimony was conflicting, the jury had to believe some of the witnesses and disbelieve some, and the probabilities ■ of the case, deduced from uncontradicted facts, to which we have heretofore called attention, doubtless influenced the jury to believe those witnesses, though fewer in number whose story was in accord with such probabilities.

We find no error complained of which would warrant a reversal and the judgment is therefore affirmed.

Hale and Marvin, JJ., concur.


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    MINES AND MINING — SPECIFIC PERFORMANCE.
    [Perry (5th) Circuit Court,
    November, 1903.]
    Voorhees, McCarthy and Winch, JJ.
    Timothy O’Farrell v. Sunday Creek Coal Co.
    1. Absence of Coal on Two Hundred Acre Tract not Established by Two Borings.
    In an action upon a contract for the sale of coal land, a defense that there was not mineable or marketable coal under plaintiff’s land is not sustained by evidence that two borings on a two-hundred-acre tract failed to disclose coal in mineable or marketable quantities when it is admitted that in that neighborhood coalveins appear and disappear unexpectedly.
    2. Failure to Perfect Title Does not Defeat Action for Specific Performance.
    A vendor who has not complied with the terms of his agreement by making a good title, or by conveying or offering to convey at a stipulated day, may still obtain a decree for specific performance notwithstanding his delay, provided it is not intentional, unreasonably long, or so injurious to the vendee that an enforcement would be inequitable.
   WINCH, J.

Tbe petition in this case alleges that on May 10, 1900, the plaintiff was the owner in fee simple of all the coal in, on and under certain real estate, described as two hundred acres of land in Monroe township, Perry county, Ohio, and that on that day he contracted in writing to sell the same to the defendant for the sum of $4,000, $1 being paid at the time, and the balance of $3,999, to be paid when the deed should be delivered; proper deed, together with abstract showing title to be in fee simple free, from all encumbrances, to be delivered on demand on or before September 1, 1900; that demand for deed and abstract were made upon him May 23, 1900, that he proceeded at once to the preparation of his abstract and delivered it; that defendant took possession of the premises and exercised ownership over it.

The petition further alleges that plaintiff has always been and still is ready to perform said contract, and on. January 19, 1901, tendered a deed to the defendant and demanded payment of balance of tbe purchase price, which was refused, wherefore he prays judgment that defendant perform said agreement and pay plaintiff the sum of $3,999, with interest from January, 1901.

The answer of the defendant company contains nine defenses, which may be grouped as follows:

The first defense is a general denial with a specific denial that plaintiff was the owner in fee simple of said property, on May 10, 1900.

The second and third, fifth, seventh and ninth defenses aver that the defendant could not in law, under its charter, enter into the agreement mentioned; that the person representing the defendant in the transaction, though its agent, had no authority to bind it to the agreement; that said lands were not underlayed with a coal measure that could either be mined or marketed or contained any such coal; that upon discovering there was no mineable or marketable coal under said lands, the defendant, declined to take said premises; that by reason of there being no such coal under said lands the consideration for the transaction had failed.

It will be noticed that these five defenses are based upon the claim that there was no mineable or marketable coal under said lands, and it may be observed that the burden of proving such fact is upon the defendant.

The fourth and sixth defenses.allege that plaintiff was not in position on September 1, 1900, to comply with the terms of said agreement, because his title was not good and sufficient as stipulated therein.

The eighth defense alleges in substance, that defendant was induced to enter into said agreement by the representations of plaintiff that said lands contained from six to seven feet of coal; that said representations were false, and that the contract was tainted with fraud.

While the nine defenses are separately stated and numbered and an effort has been made to group and classify them, it is proper to state that they are so interwoven and interdependent that to support them all defendant must prove but four things:

First. That plaintiff’s title to the property was defective.

Second. That the contract was superinduced by the1 fraud and misrepresentations of plaintiff.

Third. That there was no mineable or marketable coal on the property.

Fourth. That the plaintiff himself failed to comply with the terms of the contract by delivering a deed and abstract within the time limited by the agreement.

A reply to said answer denies all its allegations, except as to the delivery or tender of deed within the time limited by the agreement, as to which proposition the plaintiff says that the time for the delivery thereof was extended by the defendant.

There are few propositions of law in this case, and as to the facts it is sufficient, without commenting on the evidence, to say that we find therefrom that plaintiff’s title is as'alleged by him, and no fraud or misrepresentations on his part has been proven. Indeed, at the hearing counsel for defendant abandoned such claim.

Is there mineable or marketable coal under plaintiff’s property ?

As evidence that there is not, defendant submits the results of the drilling of two holes, one at the extreme north and one at the extreme south line of the property, perhaps half a mile apart, and drilling on property in the neighborhood, which showed too little coal to be mined or marketed.

We can not say from this testimony that this two hundred acre farm does not contain mineable and marketable coal. There is a failure of proof. At the hearing counsel for defendant admitted that in Monroe township, where the property in controversy is situated, there are faults and other irregular geological formations to such an extent that veins of coal are present and disappear most unexpectedly and unaccountably. The presence or absence of coal veins, their exteut and continuity can only be determined by drilling. In view of these admissions and in the absence of any testimony of experts or others tending to show the geological formation of the property in question, or the extent of the field indicated by witnesses in this ease, we can not determine from the fact that two drillings were made on the extreme north and south limits of the farm in question, that there is no mineable or marketable coal on the property.

We have gone into an examination, of this question as carefully as possible, although not only the agreement sued upon in this ease provides for no drilling or tests of the property, such provision in an original draft thereof having been stricken out because plaintiff refused to agree to it, but also notwithstanding it is in evidence that the property was under option to defendant and its assigns for six months previous to the date of the agreement, with privilege to drill and test for coal, which privilege it neglected to avail itself of.

It therefore appears to us that the defendant has failed to establish any of its defenses, which are based upon, there being no mineable or marketable coal upon the property. We reach this conclusion without any reference to the legal merit of said defenses had defendant proved the fact alleged.

It remains to consider those defenses which are based upon the claim that plaintiff failed to deliver a deed of the property and abstract thereof within, the time limited by the agreement.

The evidence upon this subject is somewhat conflicting, but we think plaintiff has fairly established his claim that time for the delivery of abstract and deed was extended by defendant, and strict compliance on his part with this provision of the agreement was waived by the defendant.

We are further of the opinion that time was not the essence of this contract. The clause of the contract under consideration reads as follows:

“And the first parties will deliver said deed to the second party, its successors or assignees on demand, on or before the first day of September, 1900, upon the payment to said first parties by the second party of the purchase price herein stipulated. ’ ’
“Delivery of deed by vendor. The doctrine equally applies to the purchaser and to the vendor. A vendor, who has not complied with the terms of his agreement by making a good title, or by conveying or offering to convey, at a stipulated day, may still obtain a decree for specific performance notwithstanding his delay, provided it is not intentional, unreasonably long, or so injurious to the vendee that an enforcement would be inequitable. This results directly from the operation and effect of the contract in equity, already described, which vests the equitable estate in tbe purchaser, so that, being the beneficial owner of the subject-matter from the time of concluding the agreement he is not necessarily nor ordinarily injured, so as to render an enforcement unjust, by a delay in carrying out the contract and conveying to him the legal estate. If the vendor is unable to show a good title at the time prescribed in his contract, or even at the commencement of his own suit, it is sufficient therefore, if he perfects it before the final hearing, or the final report on title made in the progress of the cause by the master or referee.”

The preceding citation of authority is quoted only from Pomeroy, Specific Performance, Sec. 376.

See also Brock v. Hidy, 13 Ohio St. 306; Gibbs v. Champion, 3 Ohio 335; Hager v. Reed, 11 Ohio St. 626, 634.

Having found upon all the material issues of the case in favor of plaintiff he is entitled to the relief prayed for in his petition and decree may be drawn accordingly.

Voorhees and McCarthy, JJ., concur.


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    EXEMPTIONS — SET-OFF.
    [Cuyahoga (8th) Circuit Court,
    January, 1904.]
    Hale, Marvin and Winch, JJ.
    Carl J. Haker v. John Serhant and Berkley Pearce.
    1. Right of Set-Off not Defeated by Assignment of Judgment. *

    The assignment of a judgment does not defeat the right of set-off.
    2. Exemptions Personal Privilege not Transferable to Assignee of Judgment.
    The right to exemptions is personal and can not he transferred to the assignee of a judgment against which the right to a set-off existed.
    Error.
   WINCH, J.

Plaintiff in error brought this action in the court of common pleas against the defendants in error alleging that on February 1, 1900, defendant, John Serhant, recovered a judgment for $19.08 against the plaintiff; that on February 6,1900, plaintiff recovered a judgment for $25 against defendant, John Serhant; that on February 8, 1900, defendant, John Serhant, assigned his judgment to defendant, Berkley Pearce; that John Serhant is insolvent. The prayer of the petition is that so much of the last judgment ^s may be necessary be set off against the first judgment and for equitable relief.

The defendants answering, admit all the allegations of the petition but allege that at the time John Serhant assigned his judgment to Berkley Pearce the former was the head of a family and entitled, under the laws of Ohio, to hold said judgment as part of his exemptions.

To this answer a demurrer was interposed and the demurrer being overruled, judgment was entered against the plaintiff and he has filed his petition in error in this court to reverse the said judgment.

Authority for bringing this action, if not found in the statutes, is contained in the ease of Barbour v. National Exchange Bank, 50 Ohio St. 90 [33 N. E. 542; 20 L. R. A. 192]. Plaintiff is not deprived of his right to set off his judgment against John Serhant by the assignment to Berkley Pearce. Section 5073 R. S. (See. 11321 G. C.).

Had the assignment not' been made, there is authority for the claim of counsel for defendants that a set-off will not be ordered against a judgment which a debtor is entitled to hold as property exempt from execution (Diehl v. Friester, 37 Ohio St. 473). This proposition, however, was not the precise point before the court in the latter case. Judge Okey in referring to such holdings cites the following cases: Duff v. Wells, 54 Tenn. (7 Heiskell 17) ; Wilson v. McElroy, 32 Pa. St. 82; Beckman v. Manlove, 18 Cal. 388; and Curlee v. Thomas, 74 N. C. 51.

The first three cases cited by Judge Okey involved attempts on the part of judgment creditors to circumvent the exemption laws by seizing property of their debtors, and then suffering judgments therefor to be rendered against themselves, which they asked to be set off against their own claims. The case, Curlee v. Thomas, supra, involved a similar fraud. There are no such circumstances in this case.

The North Carolina case, without being overruled, is followed by the ease of Lane v. Richardson, 104 N. C. 642 [10 S. E. 189], where it was held that as far as personal property was concerned, the right of exemption is personal to the debtor, and it loses its quality of exemption as soon as it is transferred. This case sets forth the rule to be followed in a case like the one at bar, and is the rule in Ohio.

“While the exemptions in favor of debtors are, by statute, tendered and extended to all alike who fall within the provision of it, yet no rule is better settled than this: that these statutory rights in cases where the exemption depends upon selection or demand, as in cases like this, may be waived in terms, or impliedly, by failing to assert the right or make the demand at the proper time, and the right can not be negotiated or transferred.
“The general right is statutory, the particular right is strictly personal and in practice becomes simply a personal privilege, to be asserted or not at the will of the person, in whose favor the right exists.” Conley v. Chilcote, 25 Ohio St. 320.

John Serhant’s right of exemption depended upon selection or demand which he failed to make before assigning the judgment; it was thereby waived. He now has no interest in the judgment and therefore can claim no rights of exemption or otherwise in it. He could not transfer his right of exemption to Pearce, and Pearce can therefore assert no right of exemption. Neither does the assignment of the judgment defeat the right to set-off. Section 5073 E. S. (Sec. 11321 G. C.).

The demurrer should have been sustained and for error in overruling it the judgment is reversed.

Hale and Marvin, JJ., concur.


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    APPEAL — DIVORCE AND ALIMONY.
    [Cuyahoga (8th) Circuit Court,
    January, 1904.]
    Hale, Marvin and Winch, JJ.
    Mineda E. Colby v. H. H. Colby et al.
    Wife May Appeal Cause for Alimony without Giving Bond.
    An action wherein a wife has sought alimony and a decree subjecting the property of the husband in the hands of third parties to the payment of the alimony, may be appealed without the giving of an appeal bond.
    Appeal.
   WINCH, J.

Plaintiff brought an action in the common pleas court against her husband and his daughter praying for an allowance of alimony and that property in the hands of the daughter be charged with the payment of said alimony as the property of her husband.

Upon the hearing the court awarded alimony to be paid weekly by the husband, but on the issues joined with the daughter, found in favor of the daughter. Plaintiff duly filed notice-of appeal but no appeal bond, and the matter is now before this court on a motion by the' daughter to dismiss the appeal as to her because no appeal bond has been given.

Whatever doubt formerly may have existed as to the practice of joining in a suit for alimony a cause of action against a third person, charging the latter with the possession of property out of which alimony is sought (Laughery v. Laughery, 15 Ohio 404), such procedure is now authorized by See. 5701 R. S. (See. 11994 G. C.), found in the chapter on divorce and alimony.

It is not doubted that all the issues in this case were appeal-able, as none of the parties were entitled to a jury on any question involved (Sec. 5226 R. S.), Sec. 12224 G. C. The general statute on perfecting appeals (See. 5227) provides that the party desiring to appeal shall file an undertaking within thirty days after the entering of the judgment appealed from. The requirement of a bond is waived by several sections of the statutes. A party in any trust capacity or a county treasurer under certain circumstances, is not required to give bond (Sec. 5226). A party in a fiduciary capacity, in which he has given bond within the state, for the faithful discharge of his duties, who appeals in the interest of his trust, need not give bond. Section 6408 R. S. (Sec. 11207 G-. C. et seq.)

So we find in the chapter on divorce and alimony that by Sec. 5706 appeals from judgments or orders under said judgment are limited to certain cases, among them a final judgment or order refusing alimony. There was such final order in this case, granting alimony and refusing to charge it upon property in possession of the daughter. Counsel for the daughter say that the order as to her was not under this chapter, but under the general equitable powers of the court or under sections of the statutes found in other chapters, citing Sec. 4198, 6343 and 7080 (Secs. 8620, 11102, 13144 G. C.) We are inclined to believe counsel is wrong in this claim, but it is unnecessary to rule upon it. The last clause of Sec. 5706 stands by itself and reads as follows: ‘ ‘ and when an appeal is taken by the wife, she shall not be required to give bond.” The wife can not appeal part of her cause without appealing all the issues in it. Branch v. Dick, 14 Ohio St. 551, 557; Wright v. Western Union Tel. Co., 2 Circ. Dec. 604 (4 R. 375). Nor was there any effort made in this case to appeal this ease as to part of the issues; the notice of appeals reads: ‘ ‘ Now comes plaintiff and gives notice of her intention to appeal this case to the circuit court,” etc. No question is raised as to her right to appeal the alimony part of her case, without giving bond. By appealing it all she brought up the whole case. Should the motion of the daughter be granted, only part of the case would be here on appeal, necessitating its dismissal under the authorities cited. We do not think the right of the wife to appeal without bond should be thus nullified. It is one of the beneficient provisions of the law in harmony with other provisions which favor her on account of her necessities.

The motion is overruled.

Hale and Marvin, JJ., concur.


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    TRIALS.
    [Cuyahoga (8th) Circuit Court,
    January 16, 1905.]
    Hale, Marvin and Winch, JJ.
    W. W. McGill v. John A. Weber.
    Compromise Verdict Set Aside.
    Where the jury returns a verdict which is contrary to the evidence introduced by both plaintiff and defendant it will be set aside.
    Error.

      Walter C. Ong, for plaintiff in error.

      Higley & Maurer, for defendant in error.
   WINCH, J.

The plaintiff in error brought an action in the common pleas court against defendant in error to recover under the statute money claimed to have been lost at gambling; he recovered a verdict upon which judgment was entered for $50, which he asks us to set aside as against the weight of the evidence. We have read all the evidence in the case, and if we are to believe plaintiff’s witnesses, he should have recovered several hundred dollars; if we are to believe defendant’s witnesses, there should have been a verdict for defendant, as he claims plaintiff was indebted to him in the sum of $50; there is no middle ground. Such being the case, it is apparent that the jury absolutely disregarded the evidence in arriving at its conclusion. Whether there was a “guessing match” in the jury-room, as claimed by counsel for plaintiff in error, we do not know; but it is apparent that the verdict is not sustained by the evidence and for that season it is set aside.

Judgment reversed.

Hale and Maxvin, JJ., concur.


text:
    ATTACHMENT AND GARNISHMENT.
    [Cuyahoga (8th) Circuit Court,
    January 16, 1905.]
    Hale, Marvin and Winch, JJ.
    Marie Corbett v. A. Goldwender.
    Property Other than Personal Earnings May be Attached on Claim for Necessaries.
    Property other than the personal earnings of debtor may be attached where the claim upon which judgment is asked is for necessaries.
    Error.
   WINCH, J.

Action was brought by defendant in error against plaintiff in error, before a justice of the peace to recover “the sum of $58 for necessities furnished, to-wit, necessary clothing and wearing apparel,” and upon the plaintiff’s affidavit the justice issued an order of attachment which was levied upon property of the defendant, including certain wearing apparel, but no part of the defendant’s personal earnings were taken or garnisheed in said proceedings. Motion by the defendant to dissolve the attachment being overruled, defendant appealed said motion to the common pleas court, where it was heard and again overruled; the court, however, released the attached wearing apparel, holding that it was exempt from attachment.

By proper proceedings the case is properly.before this court on error, and the sole question submitted for our consideration is whether, in an action for necessaries, where an attachment has been issued on the sole ground that the claim on which judgment is sought is for necessaries, property other than the personal earnings of the debtor can be attached? We answer this question in the affirmative. The trial court having come to the same conclusion, the judgment is affirmed.

Hale and Marvin, JJ., concur.


text:
    ATTACHMENT — EXEMPTIONS.
    [Cuyahogo (8th) Circuit Court,
    January 16, 1905.]
    Winch, Hale and Marvin, JJ.
    A. C. Wicox v. K. B. Company.
    Validity of Statute Providing for Attachment of Debtor’s Personal Earnings.
    The law permitting the attachment of 10 per cent, of a debtor’s personal earnings, where a claim is for necessaries, does not create a favored class and is constitutional.
    Error.

      A. V. Taylor, for plaintiff in error.

      ~W. P. Dunlap, for defendant in error.
   WINCH, J.

Defendant in error having brought an action before a justice of the peace against plaintiff in error, to recover for necessaries, an order of attachment was issued and thereupon the defendant in said action moved to discharge the attachment. This motion being overruled an appeal was taken to the common pleas court where the motion was again overruled, to which ruling plaintiff in error excepted and brought the matter here on error.

But two reasons were urged at the hearing in this court, why the judgment of the common pleas court should be reversed.

First. That the order of attachment herein is void for want of due execution and return. That the return of the constable on the order of attachment is not according to law, is apparent, but the garnishee had actual notice and answered. We think this cures the informality in service.

Second. That the statutes under which the attachment proceeding was brought are unconstitutional, in making the mere fact that the claim on which judgment is sought is for necessaries a ground of attachment, and in such cases exempting only ninety per cent, of the debtor’s personal earnings, while in other cases all his earnings for the three months are exempt, if required for the support of the debtor’s family.

It is said that these provisions with regard to actions for necessaries create a favored class, tvho alone may take advantage of the statute, namely, those who furnish necessaries.

We do not think so. The legislature has seen fit to define certain rights and remedies in a certain class of cases; it has not created classes of persons upon whom the laws operate without uniformity.

Believing such legislation is not inhibited by the Constitution, the judgment is affirmed.

Hale and Marvin, JJ., concur.


text:
    INTOXICATING LIQUOES.
    [Cuyahoga (8th) Circuit Court,
    January 26, 1905.]
    Hale, Marvin and Winch, JJ.
    Euclid (Vil.) v. Theodore Bramley.
    1. Judicial Notice of Municipal Ordinances not Taken.
    Courts other than municipal tribunals will not take judicial notice of municipal ordinances.
    2. Valid Ordinance not Presumed from Affidavit Charging Illegal Sale of Intoxicating Liquors but not Stating Sale as Beverage.
    Municipal ordinances can only be passed in conformity with the power granted by the legislature, and when the legislature has conferred authority to pass ordinances regulating the sale of intoxicating liquors as a “beverage” and to “regulate ale, beer, and porter houses and shops,” courts can not presume the existence of a valid ordinance enacted under those statutes, when the affidavit upon which an arrest prosecution is based only charges that the accused allowed to remain open on Sunday his place of business when upon other days intoxicating liquors were commonly sold, without charging that they were sold as a “beverage” or that the place was an “ale, beer or porter house or shop.”
    Error.
   WINCH, J.

Defendant in error was arrested under an affidavit which charged:

“On or about the 12th day of June, A. D. 1904, at the village of Euclid in said county and state, one Theodore Bramley did on the first day of the week, commonly called Sunday, allow to remain open his place, where upon other days intoxicating liquors are commonly sold, contrary to the form of the ordinance in such cases made and provided.”

The accused was taken before -the mayor of the village of Euclid, pleaded guilty, was sentenced to pay a fine of $100 and costs and then moved in. arrest of judgment, claiming:

First. The facts set out in the affidavit do not constitute an offense against the ordinance of the village of Euclid, nor against the statutes of the state of Ohio.

Second. The ordinance upon which said prosecution is predicated is unconstitutional and void.

This motion was overruled, defendant excepted and applied to the common pleas court for leave to file a petition in error in said court, which was granted.

Thereupon said defendant filed his petition in error in the common pleas court, accompanied by a transcript of the docket entries made by the mayor. There was no bill of exceptions, showing the ordinance which was necessarily before the mayor for his consideration upon the motion in arrest of judgment.

The common pleas court heard the case on error and reversed it, holding the affidavit insufficient for lack of the negative averments that the place was not a drug store or the accused a druggist, as provided in Sec. 4364-20c R. S. (Sec. 6064 G. C.)

Thereupon the village of Euclid brought the case here on error, where the first question raised is the jurisdiction of this court to review a judgment of the common pleas court reversing a conviction for violation of a municipal ordinance on proceedings before a magistrate.

"We think there can be no doubt of the jurisdiction of this court in such cases. Shelby v. Boenau, 40 Ohio St. 253.

Being of opinion that neither this court nor the common pleas court can take judicial notice of municipal ordinances, and there being before the common pleas court no transcript of the ordinance under which the accused was convicted, the next question arising is: Had the common pleas court or had this court a right to presume the existence of a valid ordinance warranting an affidavit and charge that defendant “on the first day of the week, commonly called Sunday, allowed to remain open his place where upon other days intoxicating liquors are commonly sold?”

If the legislature has delegated to municipal corporations authority to pass an ordinance regulating places “where intoxicating liquors are commonly sold,” then we must presume that there was a valid ordinance back of this affidavit. But what powers in this respect have been delegated to municipal corporations? Section 1536-100 R. S. (See. 6137 G. C.), among other things provides:

“All municipal corporations shall have the following general powers and council may provide by ordinance or resolution for the exercise and enforcement of the same. * *
“5. To regulate ale, beer, porter houses and shops, and the sale of intoxicating liquors as a beverage, but nothing in this act shall be construed to amend, repeal or in any way affect the provisions of an act entitled, ‘An act to amend Section 4364-20 of the Revised Statutes of Ohio, and to supplement said section by enacting supplementary Sections 4364-20a, etc., passed April 3, 1902 (95 O. L. 87).’ ”

Had the affidavit charged defendant with keeping open on Sunday a place where ale, beer, or porter were commonly sold, or where intoxicating liquors were sold as a beverage, we might presume there was back of it a valid ordinance making such act punishable. There is no allegation in the affidavit from which can be gathered the conclusion that defendant’s place was an ale, beer, or porter house or shop, or that in it he sold intoxicating liquors as a beverage.

So in Sec. 4364-20 R. S. (See. 6137 G. O.), it is provided:

“And any municipal corporation shall have full power to regulate the selling, furnishing or giving away of intoxicating liquors as a beverage, and places where intoxicating liquors are sold, furnished or given away as a ‘beverage,’ except as provided for in Section 4364-20 of this act. ’ ’

Section 4364-20c R. S. (Sec. 6103 G. C.) refers to the selUng of intoxicating liquors at retail by a regular druggist.

Any ordinance passed under authority of Sec. 4364-20, must designate the place as one where intoxicating liquors are sold as a beverage. It follows that an affidavit which does not charge tha place as one in which intoxicating liquors were sold as a beverage, can not be presumed to have back of it an ordinance passed under authority of the statute last cited.

Being of opinion that the village of Euclid had no power to make it an offense to keep open on' Sunday a place in which intoxicating liquors are commonly sold on other days, it follows that the common pleas court was right in reversing the judgment of the mayor’s court.

To entertain any presumption in favor of the existence of a valid ordinance defining an offense and providing penalty therefor, has been criticized as, in a sense, a departure from the rule frequently announced by this court that it will not take judicial notice of municipal ordinances. But it is not, in fact, any exception to said rule, where error is alleged by one convicted before the mayor or magistrate. Being plaintiff in error, he must file a bill of exceptions setting forth the ordinance, so that it may come before the reviewing court. His own neglect to bring the ordinance into the record does not entitle him to a reversal; rather the judgment should be affirmed because no error is shown.

But when in such ease the plaintiff in error from the mayor’s court calls attention to the state law, shows that the state law gives no authority to the municipality to pass any ordinance making it an offense to do what is charged in the affidavit, we have considered the case with reference to the statutes and decided accordingly, as we did in the case of Lewis v. Collingiuood. Lewis was charged with having a gambling device in his possession, and we held that we would not presume an ordinance making a mere possession of a gambling device an offense, the stat- . ute only authorizing an ordinance to prevent gambling.

Ordinances inconsistent with the laws of the state are void. Canton v. Nist, 9 Ohio St. 439.

An ordinance making it an offense to do what is charged in" this affidavit would be inconsistent with the laws of the state. As to the reasons given by the common pleas court for reversing the conviction, we express no opinion. See Bramley v. Euclid, 15 Dec. 155 (2 N. S. 508).

Judgment affirmed.

Hale and Marvin, JJ., concur.


text:
    TENDEE.
    [Lorain Circuit Court,
    May 8, 1905.]
    Marvin, Winch and Henry, JJ.
    Fred F. Thomas v. John Watt and Mart Watt.
    Tender of Payment Must be Made at Residence of Payee.
    When no agreement as to place of payment is made, a tender, to be legal, must he made at the residence of the payee; and the fact that the obligor, through a misunderstanding, was at some other place for the purpose, will not excuse the failure to make a tender at the proper place.
    Appeal.

      F. F. Thomas and Clayton Chapman, for plaintiff.

      E. H. é II. C. Johnson, for defednant.
   WINCH, J.

In this case we are asked to enforce the performance of a verbal contract between the parties for the sale of a farm in Lorain county, owned by the defendants.

There is no dispute as to the making of the contract and its terms. Plaintiff introduced evidence as to certain acts of part performance of the contract on his part, which he claims takes it out of the operation of the statutes of frauds, and while what he did is rather insignificant and' is explained by defendants as referable to permission given by them to the doing of certain things which should be at plaintiff’s risk, if the sale was not consummated — we are inclined to say that plaintiff is right upon this proposition.

There remains but one other thing or proposition in the case, and that is the question of tender. The contract provided that plaintiff should pay to defendants the consideration agreed upon by February 1, 1903. That day came upon Sunday. The evidence shows that upon the Saturday before that day plaintiff went to the farm of defendants having with him a draft for $1,500 drawn by the American Trust Co. of Cleveland upon the Colonial Trust Co. of New ork, properly endorsed and made payable to plaintiff’s order. He also had with him a deed properly drawn up to be signed by the defendants. Mr. Watt was away and he saw Mrs. Watt, showed her the draft and told her to go with her husband before one Crandall, a notary public or justice of the peace, and have the deed executed and plaintiff could go there and have the money with him. She said “alright.”

The next day, Sunday, plaintiff went to defendant’s farm and saw Mr. Watt, or “the Captain” as he is called. As to what then occurred plaintiff testified in substance as follows:

“I told the Captain I had a New York draft (perhaps plaintiff showed it to him), the Captain said he didn’t believe I had any money; he wanted money the bank would take; I said we can go to New London and get the money; he said no; I want to go to the bank at Wellington; what the Wellington bank will take I will take; I said it makes no difference; you can have the money in pennies, if you want to. I will go to Wellington tomorrow. ’ ’

The witness Wheeler testifies that on said Sunday he overheard talk between' plaintiff and the Captain; plaintiff started away and halloed back, “I will meet you at Wellington, and you can have the pennies if you want to, and that Watt said all he wanted was the currency.

The defendant, Captain Watt, testifies to the conversation on Sunday as follows:

“Plaintiff said he had a draft there, slapping his breast pocket; I said I wanted the money and would take what the Wellington bank would take; he said he would get the money at New London and be back Monday; said I could have pennies if I wanted them; I said I would take anything that was legal tender.”

It appears in evidence that on Monday plaintiff went to Wellington with his draft; went to both banks there; waited a reasonable time for defendants to tender them the money, and they never came. Captain Watt stayed at home most of Monday, waited for plaintiff, but he never came with the money.

Plaintiff has made no other tender of money than, as above stated.

We take it that the law implies that, in a case like this, where no place for tender is agreed upon, it must be made to the defendant at his home or residence. Where the parties agree upon another place for tender, it must be made at the place agreed upon.

We find that no sufficient tender was ever made to defendants at their home or residence. Did they agree upon another place for tender? We are of the opinion that the evidence fails to show that their minds met upon that proposition. Doubtless plaintiff thought the tender was to be made at Wellington, and he so testifies; there is nothing in the evidence to show that defendants so understood and agreed. We think they understood that plaintiff was going to have his draft cashed either at New London or Wellington, and come back with the money to their home on Monday. The parties doubtless misunderstood each other; such being the case it was the plaintiff’s duty to make a tender on the farm. He could have gone there when he returned from Wellington, as defendant’s farm adjoined plaintiff’s. Why plaintiff never afterward made any tender to defendants at their home, he does not explain. If he was misled into going to Wellington on Monday by any statements of defendants, the law would have given him a reasonable time thereafter to make a tender at their home. This he has absolutely neglected and refused to do, although defendants testify that they were willing to receive the money.

For failure to prove a tender or any circumstances excusing one, the petition is dismissed.

Marvin and Henry, JJ., concur.


text:
    ERROR.
    [Lorain (8th) Circuit Court,
    May 8, 1905.]
    Winch, Marvin and Henry, JJ.
    Mrs. W. F. McLean v. Cornelia Johnson et al.
    Reversal of Judgment Obtained In Justice Court and Retaining Case for Trial not Final Order, but Error Dates from Dismissal.
    When a case is taken upon error from a justice of the peace to the common pleas, the judgment of the justice reversed and the case retained for trial and at a later term dismissed for want of prosecution, the four months within which a petition in error may be filed in the circuit court dates from the dismissal of the case and not from the reversal of the judgment of the justice, as that was not a final order.
    Error.
   WINCH, J.

July 23, 1903, plaintiff brought her action against the defendant before a justice of the peace, and in her bill of particulars claimed judgment for “the sum of $42.20 amount due including the .interest for medical services rendered and medicines furnished to defendant by the late Dr. .W. F. McLean, and which account is now the property of plaintiff?”

The attorney for plaintiff verified said bill of particulars by his affidavit. Summons was issued returnable July 28, 1903, and defendants duly served. On the latter date, as appears from the transcript of the justice, defendants failed to appear; plaintiff was present by her attorney and the justice made the following entry:

“No counter-claims or off-sets presented. By reason of the sworn affidavit of plaintiff’s attorney attached to her bill of particulars, that said account is due and payable, it is considered and adjudged by me that said plaintiff recover from said defendants the sum of $42.20, together with the costs of this case as of record herein taxed. ’ ’

August 28, 1903, said defendants filed their petition in error in the common pleas court, praying for the reversal of said judgment.

Plaintiff was granted leave to file an answer to said petition in error in which she set np certain facts with regard to the merits of the case, and as to what was done in the justice court, but of course the facts set forth in the transcript from the justice are the only facts which the common pleas court could consider, as no bill of exceptions was taken from the justice court.

March 7, 1904, the common pleas court reversed the judgment of the justice of the peace and retained the case for trial. To this judgment and order the defendant in error in said court took no exception.

December 15, 1904, no pleadings having been filed in common pleas court by either party, the action being duly called for trial, was dismissed for want of prosecution at the costs of said Mrs. W. F. McLean, for which judgment was rendered against her. No exception was taken to this judgment or order.

Thereafter on December 31, 1904, said Mrs. "W. F. McLean filed her petition in error in this court, to reverse the judgment of the common pleas court.

Defendants in error objected to hearing this case on the ground that the petition in error was filed too late in this court.

That would be true were the four months within which a petition must be filed to date from the judgment of reversal, March 7, 1904. But that judgment was not a final order upon which proceedings in error could be predicated. Kelly v. Hunter, 12 Ohio 261; Longworth v. Sturges, 6 Ohio St., Cincinnati & E. Ry. v. Bailey, 39 Ohio St. 170; Bradley v. Wacker, 7 Circ. Dec. 565 (13 R. 530).

The reason for this rule is that the common pleas court having reversed the judgment of the justice of the peace, under Sec. 6733 R. S. (Sec. 12245 0. C.), was obliged to retain the case “for trial and'final judgment, as in cases of appeal” so that the ease was still pending in the common pleas court until such trial and final judgment.

The petition in error in this court is filed in time, if the four month’s limitation is dated from the judgment of dismissal.

It appears that the common pleas court reversed the justice court because the latter rendered judgment upon a verified bill of particulars, without further proof, notwithstanding said bill of particulars failed to contain a full statement of the items constituting the cause of action, as provided in Sec. 6562 Rs. (Secs. 10354, 10355 G. C.), which reads:

“If either party shall set forth in his bill of particulars, counter-claims or set-off, a full statement' of the items constituting his cause of action, or defense, and if the same shall be verified by the affidavit of the party, his agent or attorney, the party appearing having complied with the provisions of this section shall be entitled to a judgment, without further proof, in all eases where the opposing party fails to appear and set up his defense to such cause of action, counter-claim or set-off in accordance with the provisions of this section. ’ ’

We are inclined to think that there was a technical violation of this statute by the justice and that the transcript shows it, but whether the common pleas court erred in reversing the justice court for that reason can not be reviewed in this court, for, as shown, it was not a final order, and no exception was taken to said judgment of reversal.

Upon said reversal the defendant in error below had a right to file a petition in the common pleas court and try out her case there; this she neglected to do for three terms, and thereupon the common pleas court dismissed the case for want of prosecution. That there was error in so doing does not appear from the transcript of said court, and as no bill of exceptions was taken to said judgment, we are unable to say that it was erroneous. Miller v. Simms, 1 C. S. C. 485.

Judgment affirmed.

Marvin and Henry, JJ., concur.