text:
    BILLS, NOTES AND CHECKS — PAYMENT.
    [Hamilton (1st) Circuit Court,
    December 5, 1908.]
    Swing, Giffen and Smith, JJ.
    M. F. Galvin et al. v. Julia B. Gaussen.
    Collection and Endorsement of Check for Substantial Sum of Mónet and Containing Statement Receipting in Full Deemed Payment. , '
    A check for a substantial amount of money, on which is the statement “in full for all claims or demands for services rendered up to date,” endorsed by payees and the amount thereof collected, justifies a finding of payment in full of a disputed account for services rendered on an alleged contract not established by proof.
    Error to Hamilton common pleas court.
    J. D. Creed, for plaintiff in error.
    W. T. Porter, for defendant in error:
    Where a claim is in dispute and the debtor sends ■ or gives the creditor a cheek for a less sum which he declares to be in full payment of all demands the retention thereof by the creditor constitutes an accord and satisfaction. 1 Cyc. 333; Ostrander v. Scott, 161 111. 339 [43 N. E. Rep. 1089]; Golden V. Illuminating Go. 114 Mich. 625 [72 N. W. Rep. 622]; Eames Yacuum Brahe Go. v. Prosser, 157 N. Y. 289 [51 N. E. Rep. 986]; Washington Nat. Gas Go. v. Johnson, 123 Pa. St. 576 [16 Atl. Rep. 799; 10 Am. St. Rep. 553]; Nassoiy v. Tomlinson, 148 N. Y. 326 [42 N. E. Rep. 715; 51 Am. St. 695]; Broum-Ketcham Iron Whs. v. Easen, 24 O. C. C. 681 (4 N. S. 582); Sims v.
      Lumber Co. 135 Fed. Rep. 1019 [68 C. C. A. 413]; Brice v. United States, 32 Ct. Cl. 23; Hand Lumber Co. v. Hall, 147 Ala. 561 [41 So. Rep. 78] Snow y. Griesheimer, 220 111. 106 [77 N. E. Rep. 110]; Miller v. Mutual Reserve, 113 111. App. 481; Beaver v. Porter, 129 Iowa 41 [105 N. W. Rep. 346]; Wheeler v. Baker, 132 Mich. 507 [93 N. W. Rep. 1069]; Hillestad v. Lee, 91 Minn. 335 [97 N. W. Rep. 1055]; Pollman & Bros. Coal & Sprinkling Co. v. St. Louis, 145 Mo. 651 [47 S. W. Rep. 563]; Chamberlain v. Smith, 110 Mo. App. 657 [85 S. W. Rep. 645]; Massillon Engine & Thresher Co. v. Prouty, 65 Neb. 496 [91 N. W. Rep. 384]; People v. Buffalo State Asylum, 96 N Y. 640; Kelly v. Bullock, 94 N. Y. Supp. 517; Hussey v. Crass, 63 S. W. Rep. 986 (Tenn.); St. Regis Paper Co. v. Board & Paper Co. 186 N. Y. 563 [79 N. E. Rep. 1115].
   SMITH, J.

From an examination of the evidence and the entire record in this ease, we are of opinion that the judgment of the court below should be affirmed.

As we view the ease, it was an action to recover for services claimed to have been rendered by the plaintiffs in error and items of cash paid out by them for the defendant in error under a certain contract between the parties. Defendant in error denied this contract and set up payment in full.

The evidence at the trial showed the amount claimed was disputed, and a check was given by the defendant for a less amount than was claimed, the check having upon it “in full for all claims or demands for services rendered to date. ’ ’

The contentions of both sides were fairly left to the jury and we find no error committed by the court either in its general charge or in giving the special charge asked by the defendant or in refusing charge number three asked by the plaintiffs in error.

The other errors complained of by plaintiffs in error as to the court declining to notice alleged „ misconduct of attorney for the defendant in error, if there was such misconduct, and refusing to eliminate certain testimony offered in the case relative to the suit involving the constitutionality of the Harrison avenue viaduct act, if errors at all, we do not think were prejudicial.

The question was, what was the contract between the parties, if there was a contract, and, second, was the matter in dispute settled between them and payment made in full?

We think the proof showed that the matters in dispute between the parties had been settled and under the law the payment of the $800 by the defendant to the plaintiffs would discharge the defendant.

Judgment is affirmed.

Swing and Giffen, JJ., concur.


source: Caselaw Access Project

author: “GIFFEN, J.

license: Public Domain

text:
    CONTRACTS.
    [Hamilton (1st) Circuit Court,
    December 4, 1909.]
    Giffen, Smith and Swing, JJ.
    Louis Lipp Co. v. Wm. H. Fennell.
    Proposal and Acceptance Constituting Contract of Employment for Yeab.
    A proposal, “to start in * * * at $2,200 for the first year,” and acceptance “to try the proposition” constitutes a contract • of employment for at least one year. .
    Error to Hamilton common pleas court.
    Cobb, Howard & Bailey, for plaintiff in error.
    Pogue & Pogue, for defendant in error.
   “GIFFEN, J.

The defendant in error, a traveling 'salesman, was employed by the plaintiff in error by written proposal and acceptance as follows:

“I am willing to start in with you at $2,200 for the first year, and I will guarantee you will not lose by it. ’ ’

Answer: “We are willing to try the proposition you make us and would ask you to make arrangements to start July 1.”

The salesman evidently expected the employment to continue for a longer period than one year; but the proposal is limited to one year “at $2,200.” The word “at” is suitable to express “value” as well ■as “rate,” and was so used, we think, in this case. If any emphasis is to be given the verb “to try” it must be applied to the period mentioned in the proposal, to wit, the first year.

Both parties evidently regarded the trial period as one year, the salesman offering to start in for one year at $2,200 and the employer Agreeing to try him for that period.

Our conclusion is, that the contract was for at least a year’s service.. Of course this did not prevent his discharge for good cause; but the jury has found against the plaintiff in error upon that issue.

The court did not err in refusing the third special instruction requested by defendant.

Finding no error of record the judgment is affirmed.

Smith and Swing, JJ., concur.


author: SWING, J.

text:
    EVIDENCE — SALES.
    [Hamilton (1st) Circuit Court,
    June 26, 1909.]
    Giffen, Smith, and Swing, JJ.
    Mihalovitch-Fletcher Co. v. William H. Bartlett.
    Evidence of Plea of Guilty to Charge of Adulteration of Goods not Sufficient .to Prove Breach of Contract of Sale.
    That goods sold on contract did not comply with the law of Pennsylvania as contract required, is not proven by showing Sling of affidavit in courts of that state charging adulteration of the goods in question and a plea of guilty to the same.
    Brror to Hamilton common pleas court.
    Harmon, Colston, Goldsmith & Hoadly, for plaintiff in error.
    Johnson & Levy, for defendant in error. \
   SWING, J.

Plaintiff’s right to recover in this action in the court of common-pleas depended on proof of the fact that the goods sold did not comply with the laws of Pennsylvania.

It seems to us that the proof in the record is not sufficient to establish this fact. The filing of an affidavit in the courts of Pennsylvania charging that these goods as not coming up to thé requirements of the-law of that state does not prove or tend 'to prove that the goods did not. comply with the law and the fact that the plaintiff pleaded guilty to the charge does not prove the fact of the adulteration.

The petition does not contain a charge that the goods did not comply with the laws of Pennsylvania, but both parties seemed to have-tried the ease on' the theory that it did. For these reasons we think the judgment should be reversed and the cause remanded to the court, of common • pleas for further proceedings according to law.

Our construction of the contract would warrant the recovery of the damages claimed if the breach of the contract had been proved.

Gillen and Smith, JJ., concur.


author: TAGGART, J.

text:
    ADMINISTRATOR — LIMITATION OF ACTIONS — QUIET TITLE.
    [Coshocton (5th) Circuit Court,
    May, 1909.]
    Taggart, Voorhees and Metcalf, JJ.
    (Judge Metcalf of the seventh circuit sitting in place of Judge Donahue.)
    Milo S. Ling v. Adam Strome, Admr., et al.
    1. Right op Administbatoe to Sell Land to Pay Debts Babbed in six Yeabs
    The liability of real estate of a decedent to be sold in a civil action by the administrator is one created by statute and as such comes within the meaning of Sec. 4981 Rev. Stat. and is barred in six years after the administrator has discovered that the personal property is not. sufficient to pay the debts of the estate.
    2. Title op Heie may be Quieted against Right to Sell to Pay Debts of-Estate afteb six Yeaes.
    The title of an heir of an estate in remainder in real estate, though not in possession, may be quieted against the rights of the administrator-of the estate to sell such real estate to pay debts after such right has. been barred by the statute of limitations.
    [Syllabus approved by the court.]
    Appeal from Cosboeton common pleas court.
    J. C. Daugherty and J. C. Adams, for plaintiff:
    Cited and commented upon the following authorities: Norton-v. Beaver, 5 Ohio 178; Miner v. Wallace, 10 Ohio 403; Tucker v. Shade,. 25 Ohio St. 355; Wuest v. James, 51 Ohio St. 230 [36 N. E. Rep. 832]; Smith v. Hogg, 52 Ohio St. 527 [40 N. E. Rep. 406]; Hutchinson v. Hutchinson, 15 Ohio 301; Miller v. Taylor, 29 Ohio St. 257; Ambrose v. Byrne, 61 Ohio St. 146 [55 N. E. Rep. 408]; Smith v. Hankins, 27' Ohio St. 371; Reynolds v. Henderson, 7 111. (2 Gilm.) 110; Graves v. Skeels, 6 Ind. 107; Calloway v. Ewbank, 27 Ky. (4 J. J. Marsh) 280; Mitchell v. Smith, 1 Litt. (Ky.) 243; Rowland v. Harbaugh, 5 Watts (Pa.) 365; Dougherty v. Hurt, 6 Humph. (Tenn.) 430; Conway v. Duncan, 28 Ohio St. 102; Jones v. Shields, 14 Ohio 359; Sidener v. Hawes, 37 Ohio St. 532; Faran v. Robinson, 17 Ohio St. 242 [93 Am. Dee. 617]; Carr v. Hull, 65- Ohio St. 394 [62 N. E. Rep. 439; 58 L. R. A. 641; 87 Am. St. Rep. 623]; Murphy v. Holbrook, 20 Ohio St. 137' [5 Am. Rep. 633]; Graham v. Simon, 76 Ohio St. 77 [81 N. E. Rep. 170]; Stockwéll v. .Coleman, 10 Ohio St. 33; Bobo v. Norton, 10 Ohio-St. 514; 12 Am. & Eng. Enc. Law 535, 541, 549; Woemer, Administration 1024, See. 435; Kemper v. Building & Loan Co. 18 Dec. 484 (5.. N. S. 403); Taylor v. Thorn, 29 Ohio St. 569; Kelly v. Duffy, 31 Ohio* St. 437; Muse v. Darrah, 2 Dec. Re. 604 (4 W. L. M. 149) ; Curtis v. Selby, 1 Circ. Dee. 25 (1 R. 40) ; Williams v. Donough, 65 Ohio St. 499 [63 N. El Rep. 84; 56 L. R. A. 766] ; Bamsdall v. Craighill. 9 Ohio 197; Conway v. Duncan, 28 Ohio St. 102; Yearly v. Long, 40 Ohio St. 27; Longley v. Stump, 9 Dee. Re. 234 (11 Bull. 247); Ludlow v. Johnson, 3 Ohio 553 [17 Am. Dec. 609]; Paine v. Skinner, 8 Ohio 159; Hartman v. Hunter, 56 Ohio St. 175 [46 N. E. Rep. 577]; Douglas v. Waddle, 8 Ohio 209; Bigelow v. Benker, 25 Ohio St. 542; Webster v. Bible Society, 50 Ohio St. 1 [33 N. E. Rep. 297].
    E. Z. Hay and C. B. Hunt, for defendant.
   TAGGART, J.

This case is in this court by appeal and was heard upon an agreed statement of facts. The action is for the quieting of the title to the interest which plaintiff claims in lot No. 11 in the village of Warsaw, county of Coshocton and state of Ohio.

The defendant, Adam Strome, is the administrator of Charles Senft, deceased, and the other defendants are the heirs at law of Christian Strome. A brief summary of the facts will disclose the question involved.

' Christian Strome obtained two judgments against Charles Senft in the year 1874. In 1888 Charles Senft died ‘seized of lot No. 11 in the village of Warsaw, and leaving surviving him his widow, Barbara Senft, and certain heirs at law. These heirs at law by their deeds conveyed all their interest in this lot so as to vest the title in the plaintiff, subject to the life estate of the widow, Barbara Senft. There seems to be no question made as to the title of the plaintiff in the remainder after the termination of the life estate of the widow.

The defendant, Adam Strome, was appointed administrator of the estate of Charles Senft in May, 1894. No assets came into his hands to be administered, and at said date it was known to him that there was no personal estate to be administered, and this fact was made to appear in his application at the time of his appointment.

On July 31, 1894, an action in revivor was brought on these two judgments against the administrator and heirs of Charles Senft, deceased, and the judgments were revived as against them. The plaintiff, Milo Ling, having an estate in remainder, commenced this- action, asserting in his amended petition that the defendant, Adam Strome, as the acting administrator of the estate of Charles Senft, threatens to subject the estate and interest of the plaintiff in said property to the payment of these alleged judgment claims. He further avers that none of the defendants have any valid elaims or. interest in said premises whatever by reason of said alleged judgments. or otherwise, and said pretended elaims are unfounded and are a cloud upon his title.

The administrator files an answer and makes this averment: Defendant says that the title of plaintiff in said lot No. 11 in said village of Warsaw is subordinate to the rights of this defendant as administrator of the estate of Charles Senft, deceased, to sell said lot to pay the debts of said decedent. And defendant further says that as the administrator aforesaid it is his official duty to sell the same, which he intends to do immediately upon the death of said widow, Barbara Senft, and to apply the proceeds of such sale to the payment of the debts of said decedent, to wit, these judgments.

So that there is the assertion on the part of the plaintiff that the defendants claim an interest, estate or right in and to the property of the plaintiff, to wit, lot 11.

Section 5779 Rev. Stat. is the section in respect to quieting title:

“An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate or interest therein, adverse to him, for the purpose of determining such adverse estate or interest; or such action may'be brought by a person out of possession, having or . claiming to have an estate or interest in remainder or reversion in real property, against any person who claims to have an estate or interest therein, adverse to him, for the purpose of determining the interests of the parties therein.”

And the Supreme Court has said that this interest or claim may be determined for the purpose of settling all doubtful claims, and that there may be repose as to the rights of parties in and to real estate. There is in this case assertion upon the part of the defendants that they proposed to subject if possible the interest of plaintiff in this lot to the payment of the debts of Charles Senft. deceased, and that said lot is liable for said debts. That being so, it falls clearly within the second clause of that section of the statute.

Now it became the duty of the administrator under Sec. 6136 Rev. Stat. to apply to the courts for power and authority to sell land of the deceased to pay debts. When did this right accrue to him 1 The section provides:

“As soon as the executor or administrator shall ascertain that the personal estate in his hands will be insufficient to pay all the debts of the deceased, with the allowance to the widow and children, for their support, twelve months, and the charges of administering the estate,, he shall apply to the probate court or'the court of common pleas for authority to sell the real estate of the deceased.”

Section 6137 Rev. Stat.:

“In order to obtain such authority, the executor or administrator shall commence a civil action in the probate court or the court of common pleas of either the county in which the real estate of the deceased, or any part thereof, is situate, or of the county in which were issued his letters testamentary or of administration.”

So that in 1894 this administrator had information that the personal'estate was insufficient to pay the debts of the deceased. It then became his duty and his right to go into either the probate court or the common pleas court of this county, and by a civil action obtain authority to sell this land to pay debts. That being so, this property wa& cast upon the heirs, through whom the . plaintiff in this case obtains, title, subject only to be divested by a court of competent jurisdiction granting authority to the administrator to sell it for the payment of debts.

Now, it is insisted that he has no right in consequence of the lapse of time, to sell this land to pay debts, and that is the foundation of the plaintiff’s claim.’ •

As to this contention, we think unquestionably the plaintiff is-right. We think the right of the administrator to commence his proceeding is limited, either to six years or to ten years. It does not make any difference in this case which statute of limitation obtains. But the question arises: Does the statute of limitations obtain in respect to this class of proceedings? We think the Supreme Court has spoken on the subject and authoritatively.

We call attention to the ease of Webster v. Bible Society, 50 Ohio St. 1, 9 [33 N. E. Rep. 297], wherein Williams, J., speaking for the court, uses this language:

“It is well settled since the code, and was so before, that only those cases of technical, continuing, and subsisting trusts which are' within the proper, peculiar, and exclusive jurisdiction of courts of equity, are exempt from the operation of statutes of limitation. * * * Other trusts, which might be the ground of an action at law, have always been subject to such statutes.” Citing Okey, J., Carpenter v. Canal Co. 35 Ohio St. 307, 317, and cases above cited.

If this civil action whereby the administrator could obtain authority to sell land to pay debts is within the operation of the statute of limitations, the question, then obtains, What section of the statute is it that would be a bar?

Section 4981 Rev. Stat. provides the limitation is six' years on “an action upon a liability created by statute, other than a forfeiture or penalty.” The laws of descent and distribution casting upon the heirs the real estate, the liability to have the land taken from them and applied to the payment of the debts of the ancestor, is. one created by statute. It required the enactment of a statute to confer upon the administrator a right to proceed to sell the land, take it from the heirs and apply it to the payment of debts. No such right existed at common law. No such right existed prior to the enactment of the statute. Therefore, it may well be said to be a liability created by statute.

But assuming that this section of the statute does not control, the general statute for limiting the time of actions, Sec. 4985, would control, “an action for relief not hereinbefore provided for, can only be brought within ten years after the cause of action accrues.” This cause of action accrued in 1894 when the administrator had knowledge that there was no personal property that was applicable to the payment of debts, and it was necessary to take this property and apply it to the payment of debts.

More than ten years before the commencement of this suit has elapsed from the time this administrator was appointed, and he has done nothing, and he is still asserting the right to subject this lot to the debts of the decedent; either section of the statute would obtain, and there is no right existing in his favor as against his property. The attention of counsel is called to Kemper v. Building & L. Co. 18 Dec. 484 (5 N. S. 403), wherein we think the reasoning of Judge Hunt is very persuasive to our minds that the statute of limitations obtains.

That being the ease, then, no right existing in this administrator to proceed to sell this property for the payment of debts, which he could successfully maintain by a civil action, and he asserting that he has such right and other defendants contending that he should proceed in that way, the plaintiff! is entitled to the relief prayed for, and a decree may be entered in favor of the plaintiff as against these defendants.

Exceptions will be noted and twenty days may be given for special .findings of fact. Motion for a new trial is overruled and exceptions noted in that regard.

Voorhees and Metcalf, JJ., concur.


author: WINCH, J.

text:
    -ACTIONS — DISMISSAL AND NONSUIT.
    [Cuyahoga (8th) Circuit Court,
    February 7, 1910.]
    Henry, Marvin and Winch, JJ.

       William A. Strauss v. Mabel Strauss.
    No Dismissal of Action in Term Time Effected if Application be Withdrawn before Submission of Question to Court.
    An entry of dismissal of an action in term time, under Sec. 5314 Rev. Stat. must be made by the court, not by the clerk. Hence, no dismissal of an action, upon which rights may he predicated, if the application therefor be made in term time and withdrawn before action taken by the court.
    Appeal from Cuyahoga common pleas court.
    Jf. C. Hutchins, for plaintiff:
    Cited and commented upon the following authorities: Moore vastarles, 1 Ohio Stv 369; Buchanan v, Roy, 2 Ohio St. 251; Sheldon v.. Newton, 3 Ohio St. 494; Spier v. Corll, 33 Ohio St. 236; Solomon v, Solomon, 13 Dec. 517 (1 N. S. 113) ; Fritz v. Fritz, 9 Deo 275 (6 N.P, 258) ; Brinkerhoff v. Smith, 57 Ohio St. 610 [49 N. E. Rep. 1025]; Siegfried v. Railway, 50 Ohio St. 294 [34 N. E. Rep. 331],
    Kerruish & Kerruish, for defendant.

      Affirmed, no op., Strauss v. Strauss, 56 Bull. 51; 83 O. S. 000.

   WINCH, J.

This case was heard upon appeal and involves the validity of a judgment entered in an action for divorce and alimony.

It is claimed that the judgment was void for want of jurisdiction to render it, the case having been previously dismissed by the plaintiff and reinstated by the court without notice to the defendant and in fraud of his rights. If the case was ever legally dismissed, the contention of the plaintiff seems to be sustained by the evidence, so that the' vital question in the case is: Was the action ever dismissed by the-plaintiff ?

The dismissal of an action by the plaintiff is regulated by the first, and sixth paragraphs of Sec. 5314 Rev. Stat., which read as follows:

“An action may be dismissed without prejudice to a future action:

“1. By the plaintiff, before the final submission of the case to the jury, or to the court, when the trial is by the court.”

“6. By the plaintiff, in vacation, on payment of costs; and the clerk, in such case, shall forthwith make an entry thereof on the journal, whereupon the dismissal shall take effect.”

The record of the common pleas court in this case shows the following entry:

“Thereupon on the fifteenth day of November, a. d., 1906, there was duly filed in said court of common pleas, a certain entry of dismissal in this cause, which was afterwards withdrawn. Thereupon on this fifteenth day of November, a. d., 1906, being a day of the September term, a. d., 1906, of said court, there was duly entered upon the journal the following order to wit: The plaintiff has leave to withdraw the entry of dismissal in this cause.”

The exact facts, as shown by the pleadings and the evidence are that on November 15, 1906, the plaintiff filled out and signed the usual dismissal blank which after giving the venue and title and number of the cause reads:

“To the Clerk: This cause may be entered dismissed by plaintiff. Costs are paid.”

She paid the costs and delivered this document.to the clerk, who noted the filing of it. The next day, having quarreled with her husband again over night, she went to the courthouse and asked to have the dismissal slip returned to her. This was done, and the only action ever taken by the court regarding the dismissal, is shown by the record, which has been quoted. ■

Manifestly the clerk had no .right to make any entry of dismissal under the sixth paragraph of Sec. 5314, for it was during a session of the court and not in vacation, so that, the sixth paragraph does not apply, and this authority being expressed in the sixth paragraph, and not in the first paragraph, by a familiar rule of construction, we are led to conclude that to effect a dismissal under the first paragraph, something other than an entry by the clerk is necessary.

All applications, unless otherwise specified in the statutes, must be made to the court. A' plaintiff may appear in open court and apply for a dismissal of his action; it may bq conceded that upon such application the court has no alternative but to dismiss the case, unless the rights of other parties are involved, as shown by the record. The conclusion of the case, however, is marked by the entry of the judge dismissing it. How otherwise, would there be any record of it? The entry of dismissal has properly been called a judgment or final order, though it may not finally adjudicate the rights of the parties. Indeed, the plaintiff in this action plants himself upon such assumption.

The plaintiff may request the clerk to bring the application for dismissal to the attention of the court, and when the clerk does so, and the court makes an entry, the cause stands dismissed, and record of the dismissal is then made to prove the fact.

Such was the request made of the clerk in this case by the polite note left in his hands. Before the matter was presented to the court the clerk’s authority to represent the plaintiff was withdrawn. The application for dismissal was never acted upon by the court. It would seem that a plaintiff might apply in open court for a dismissal of. his action and then change his mind at any time before the court entered a dismissal and direct the court not’ to enter it. Would anybody then say that the case had been dismissed, though the record showed nothing of the transaction? ,

If we are right in our conclusion that a dismissal of a ease cannot remain in a plaintiff’s mind, but must be entered on the records of the ease, and further, that said entry during term time cannot be made by the clerk, then it follows that the entry must be made by the judge, and none having been made by him in this case, the case was never dismissed, and no rights can be predicated upon a dismissal of it.

Petition dismissed.

■Henry and Marvin, JJ., concur.


author: GIFFEN, J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    July 3, 1909.]
    Giffen, Smith, and Swing, JJ.

      Cincinnati Traction Co. v. Angie S. Cramer.
    Admission by Street Railway Defendant of Grease on Rails with Proof THAT IT WAS NEGLIGENTLY APPLIED WARRANT AN INFERENCE OF DEFENDANT’S Negligence as one of Law.
    An admission in its answer by a street railway company, charged with negligently greasing its rails at a street intersection, “that it was necessary to oil and grease said rails at curves,” and proof that the location was one over which great numbers of people were crossing and that the grease was smeared over the rails, making it dangerous for pedestrians to step upon the tracks, warrant an inference of negligence on the part of the company; such facts being once found, the issue of negligence ceased to be one of fact for the jury, but became one of law for the court. Hence, a, judgment in favor of a pedestrian injured by stepping upon such rails will not be reversed.

      Angie S. Cramer, while crossing the street at Sixth and Vine, fell and was so severely injured as to cause a miscarriage. In her petition for damages she alleged that the traction company had greased the rails on the curves in its tracks at that point, and that this had been done in a careless and negligent manner, and grease had been smeared over the rails in such a way as to make it dangerous for pedestrians to step upon them, and that it was the grease so placed that caused her to slip and fall.
    After general charge to the jury, the court asked if there was anything which counsel wished to suggest.
    Counsel for defendant suggested that he did not think the court had sufficiently covered the question of negligence and proximate cause and asked that the jury be instructed that the defendant could be held liable only if it through its agents and servants had done or left undone some act which, in the ordinary course of events, a reasonably prudent man would foresee would be liable to cause damage or injury. Counsel also suggested, that the jury could be instructed that the defendant is presumed not to have been guilty of negligence until the contrary is established by affirmative proof.
    Responding to these suggestions the court further charged:
    “Counsel for defendant has called my attention to one or two points. I charge you further that you cannot presume unless there is evidence, affirmative evidence, circumstantial or direct, negligence upon the part of the defendant, nor for that matter, negligence against the plaintiff in this case. The defendant is presumed to have done and performed such duties as it is required to do and perform, and unless there is evidence as I have indicated to you, direct or circumstantial, that is, positive evidence or circumstantial evidence, that such duty has not been performed, the presumption is that the duty was performed.
    “Negligence, gentlemen of the jury, consists in the failure to perform such duties and obligations as the law requires any person to do or perform. I have undertaken to describe to you the duties which devolved upon the defendant and upon the plaintiff in this case, and .if you find they have not been performed, the duties which I have undertaken to define to you in this case, then you will find that either one; whichever it may be, was guilty of negligence as applied to this case.”

      Complaint is made that the charge as given did not comply with the request and exception was taken to the charge and for failure to-charge as requested.
    A verdict was rendered for plaintiff in the sum of $3,500, to which the defendant prosecutes error.
    Outcalt & Hickenlooper, for plaintiff in error.
    W. J. Davidson, for defendant in error.

      Dismissed in Supreme Court September 21, 1909; 54 Bull. 384.

   GIFFEN, J.

The admission in the answer of the defendant “that it is necessary to oil and grease said rails at.curves,” and the testimony of the plaintiff and the police officer as to the location, quantity and character of the grease warranted the inference that the defendant not only put it there, but did it in a negligent manner. These facts being once found no two persons of ordinary intelligence could disagree as to whether a reasonably prudent man, not in the ordinary course of events, but under the surrounding circumstances, would foresee that the acts done would be liable to cause damage or injury. It ceased to be a question of fact for the jury, and became one of law for the court. There wa& no intervening cause alleged or proved that required or rendered pertinent the instruction requested by the defendant after the general charge to the jury.

Judgment affirmed.

Swing and Smith, JJ., concur.


author: KINKADE, J.

text:
    INTOXICATING LIQUORS.
    [Lucas (6th) Circuit Court,
    July 2, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Katherine Watson v. Thomas Biddle, Treas.
    1. Traffic in Intoxicating Liquors in Small Quantities does not Relieve, from Tax.
    The purchase of a lew pints of beer at a time and the sale of it at a profit constitutes trafficking in intoxicating liquors as defined by the statute, and renders the seller liable to payment of the tax prescribed by Sec. 4364-9 Rev. Stat., on trafficking in spirituous, vinous, malt or other intoxicating liquors.
    2. Sales of Intoxicating Liquors in Connection with Illegal Business do not Relieve from Tax.
    The fact that the sales are made in connection with an illegal business, does not bar the state from enforcing collection of this tax.

      Error to Lucas common pleas court.
    A. H. Coldham, for plaintiff in error.
    L. E. Mallow and R. R. Stuart, for defendant in error:
    Cited and commented upon the following authorities. Adler v.' Whitbeck, 44 Ohio St. 539 [9 N. E. Rep. 672]; University Club v. Batterman, 2 Circ. Dec. 11 (3 R. 18) ; United States v. Keaton, 2 Bond 97 [26 Fed. Cas. 763]; Leonard v. Bowland, 17 Dec. 558 (4 N. S. ■ 577); Stevenson v. Hunter, 5 Dec. 27 (2 N. P. 300); Youngblood v. Sexton, 32 Mich. 406 [20 Am. Rep. 654] ; United States v. Vassar, 72 U. S. (5 Wall.) 462 [18 L. Ed. 497]; Jung Brewing Co. v. Talbot, 59 Ohio St. 511 [53 N. E. Rep. 51]; Harris v. State, 50 Ala. 127; United States v. Bonham, 31 Fed. Rep. 808; Blodgett v. State, 37 Tex. Cr. App. 70 [38 S. W. Rep. 783]; Becker v. State, 50 S. W. Rep. 949 (Tex. Cr. App.); Amos v. State, 73 Ala. 498; Taylor v. State, 121 Ala. 24 [25 So.. Rep. 689]; State v. Wadsworth, 30 Conn. 55; Evans v. State, 54 Ark. 227 [15 S. W. Rep. 360]; Billups v. State, 107 Ga. 766 [33 S. E. Rep. 659]; State v. Morton, 42 Mo. App. 64; Shriedley v. State, 23 Ohio St. 130; Moots v. State, 21 Ohio St. 653; Pennsylvania Co. v. Trainer, 5 Circ. Dee. 519 (12 R. 70); 11 Ene. Ev. 137; Baldwin v. Peltom,, 19 Dec. 546.
   KINKADE, J.

We have examined the briefs submitted by counsel, and we have read with a great deal of care the evidence in this ease, the whole of it. It seems to us that the evidence here clearly shows that it was the habit at this house, which was presided over by Katherine Watson, to procure beer for people who came there, selling it to them, or, as she says, delivering it to them, and making forty cents a pint profit. We can see no difference between purchasing a few pints of beer and selling it to a party at an increased price of forty cents a pint, and purchasing a very much larger quantity of beer and selling it at any other profit. It seems to me on reviewing this evidence in detail, that the attempt here on the part of the keeper of this resort is a mere subterfuge, nothing short of it; it is a mere method by which the law is avoided, and if this could be counternanced, we see no reason why a saloon might not be in the immediate vicinity, for that matter, either upstairs or down stairs, in connection with this kind of a resort and might have a dummy waiter, and if the dummy refused to work a waiter that was not quite so dumb could be substituted, so the place eould be carried on with the same result that has been carried on here, a profit to every sale.

It has not been urged here as it was in one case that we have examined, that the tax could not be insisted on here because the parties were engaged in an illegal business, and in violation of the statutes of Ohio, and that they could be punished in that way. But that is not the law. And it is well that it is not, because, as said in that case, if that were so then the parties who were violating the law might escape paying the tax while those who were not violating it would have to pay.

.We have read the evidence of all the inspectors and considered the report, which is somewhat brief, most of it getting into the examination and going in without objection, but we think under the form that the examination took, the report, brief as it is, and for what it is worth, is competent evidence in the case. The evidence in the ease as a whole shows that this constitutes a trafficking in intoxicating liquors as defined by the statute. Of course the tax being upon the duplicate makes ■a prima facie case under the statute, not only of the amount and its nonpayment, but of the validity of the tax. We have considered the record without special regard to that. We think the showing is ample here to make the finding that.the petition should be dismissed and the injunction prayed for denied, and that will be the ruling of the court.

Parker and Wildman, JJ., concur.


author: WILDMAN, J. KINKADE, J.

text:
    CHARGE OF COURT — DAMAGES—JUDGMENTS—NEW TRIAL.
    [Lucas (6th) Circuit Court,
    December 4, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Schuyler C. Schenck et al. v. James W. Knott.
    1. Judgment may be had against one Defendant in Action against Several fob Wrong which Might have been Committed by one.
    In an action against several defendants to recover damages, in which it is alleged that the defendants conspired to commit an actionable wrong which is capable of being perpetrated by the joint act of several or by the independent act of one, judgment may be recovered against one defendant and in favor of another, and the failure of the court so to submit the case to the jury that they may find for one defendant and against the other is error.
    2. Party Liable in Damages fob Certification to a Statement not Known to Him to be True which was in Fact False.
    It is error to charge that “If the party signed certificate of incorporation certifying that there had been $150,000 paid in, not knowing whether it was true or false, when in fact it was untrue, and such signing was done without knowledge thereof as to its truth or falsity, such statement would be recklessly made, and party making it would be liable for damages resulting, the same as though he knew the statement to be untrue.”
    3. Measure of Damages for Fraudulent Sale of Stocks.
    It is error to charge as to a fraudulent sale of stock, that the measure of damages is the difference between the price paid and the value at the time of trial after the sale.
    4. New Trial Granted on Newly Discovered Evidence which Tends to Disprove Grounds of Action as Well as Impeach Plaintiff.
    On newly discovered evidence offered by defendant in support of a motion for a new trial, a new trial should be granted when such evidence is competent for the purpose of rebutting the evidence to sustain the plaintiff's action although incidentally tending to impeach the plaintiff, provided that its character be such that it ought to influence a different verdict.
    [Syllabus approved by tbe court.]
    Error to Lucas common pleas court.
    King, Tracy, Chapman & Welles, for plaintiffs in error.
    Potter & Potter, for defendant in error.
   WILDMAN, J.

This is a proceeding in error to reverse a judgment rendered in tbe trial court. Mr. Knott brought suit against Schuyler C. Schenck and James E. Hickox, alleging that they had defrauded him in the sale to him of a number of shares of stock of a manufacturing corporation known as the Hickox, Mull & Hill Company, a corporation. organized under the laws of the state of Michigan, The case has received, more attention than we have usually been able to accord to cases before us, due to the fact that upon its presentation and argument one of the members of this court, Judge Parker, was not present, being at the time physically disabled from acting with the other judges. It was the view of Judge Kinkade and myself, to whom the cause was submitted, that the judgment rendered below for the sum of $5,000 in favor of Knott as damages claimed to have been sustained by him should be reversed, but some question having arisen upon the settling of a journal entry, it was decided'to reserve the case for further consideration until the recovery by Judge Parker of his health, so that he would be able to sit with us. At the present term the case has been entirely reargued before the full court, and we have arrived at a unanimous conclusion as to the judgment which should be ehtered.

The facts being recited, briefly perhaps, in the opinion which I formerly announced for the court as then constituted, I will not attempt any further review of them, but content myself with giving some attention to the specific matters of claimed error which in our judgment still justify a reversal of the judgment of the trial court. An examination of the record discloses that as to the claimed fraud in the statement in the articles of incorporation in Michigan that $150,000 on capital stock had been paid in, the court limited the power of the jury in making its findings to a verdict either for or against both defendants, that no opportunity as to that issue was given the jury to find that one of the defendants was not liable for any claim made by the plaintiff on the basis of that alleged fraud, while the other defendant might be liable, and in the final statement of the case to the jury near the close of the charge, the court presented to the jury two forms of verdict only. Those forms of verdict are not shown in the bill of exceptions, but it is quite clearly indicated that there was no halfway place at which the jury might rest their conclusions, finding one of the defendants liable and the other not. Indeed, the forms of the verdict, so far as indicated in the statement of their substance in the charge, would seem to show that the jury were directed to find as to all of the frauds charged in the petition that both of the defendants were guilty or neither.

. It is said, however, that the court was not in error in this regard. It is insisted that this action is one for conspiracy, and that if the conspiracy falls, the whole case must fall with it. We do not think that this is so. The rule of .our statute which authorizes trial courts to permit judgment against one or more of several defendants, •or against all, as the ease may require, is in Sec. 5311 Rev. Stat., which specifically provides as follows:

“Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants.

The case of Keit v. Wyman, 67 Hun. 337 [22 N. Y. Supp. 133], is in point, well reasoned and fortified by the citation of numerous authorities. The first paragraph of the syllabus is as follows:

“In an action against several defendants to recover damages, in which it is alleged that the defendants conspired to commit an actionable wrong which is capable of being perpetrated by the joint act of several or by the independent act of one, judgment may be recovered against one defendant and in favor of another.”

We think that this is the correct view; that while a conspiracy to defraud is alleged in the petition, which is the assertion of the plaintiff’s claim in the case at bar, that conspiracy is but a combination to do acts which would be unlawful in themselves and could be made the basis of an independent action against either one of the defendants without a conspiracy. The decision clearly falls within the rule embodied in our statute, Sec. 5311, to which I have referred. In restricting the jury to the two forms of verdict, it is our judgment that the court erred.

Our conclusion is fortified by the fact that Mr. Schenck in his testimony, which we have examined, says that he believed the statement certified by him with others in accordance with the Michigan statute to be true. He says that he was informed by Mr. Mull, who I understand was president of the corporation, that the fact was as stated in the certificate, and that he believed it, and I call attention to this now for its bearing upon the possibility of the jury under the evidence finding that the other defendant may have been guilty of fraud in the signing of the certificate, while Mr. Schenck may not be.

There is another application which may be made of this testimony of Mr. Schenck, to which I will now refer: The trial judge in his charge to the jury, in response to a request made after argument by counsel for the plaintiff, substantially gave to the jury an instruction bearing upon the principle that one may not recklessly make statements which he does not know to be true. Of course, our common sense tells us, if there were no authorities, that although a person may not know a thing to be true, if he has a belief, founded upon credible information given to him by others, he cannot be charged with fraud in the expression of such belief. Of course there are instances where one asserts as a matter of positive certainty that a thing is a fact when, because he does not know it to be a fact, he is not justified in making the assertion; but there are many cases in which it would not be accurate to say that because one does not positively know that a thing is so, he is committing a fraud by asserting that it is so, and we think that the court was not sufficiently guarded in his language in this respect in the instructions given after his general charge. He had completed the charge when the attorney for the plaintiff said:

“I think the charge perhaps covered all the points, except in one regard, where your Honor has spoken of reckless representations or statements, and to cover that point I ask your Honor to charge the jury this: ‘If the defendants signed the certificate of incorporation of the Michigan corporation certifying that there had been $150,000 paid in on March 5th, 1903, not knowing whether it was true or false, when in fact it was untrue, and such signing by said defendants was made without knowledge thereof as to its truth or falsity, then such statement would be recklessly made and the defendants would be liable therefor, the same. as though they knew such statements to be untrue at the time of so signing.’ ”

The court in response to that said, “If made with intention of influencing the plaintiff or one situated as he was,” to which counsel assented by saying, “That is all right.” And then the court said to the jury:

“I will say to you further, gentlemen, that if the defendants signed the certificate of incorporation of the Michigan corporation certifying there had been $150,000 paid in March 5, 1903, not knowing whether it was true or false, when in fact it was untrue, and such statement was made without any knowledge as to its truth or falsity, then such statement would be recklessly made and the defendants would be liable therefor the same as though they knew such statement to be untrue at the time of so signing, if made with the intention of influencing the conduct of the plaintiff in the particular of which he complains. ’ ’

x We think the court did not sufficiently guard this language against the criticism and objection to which I have called attention, especially in view of the testimony of Mr. Schenck as to his information and belief. And this, without stopping to consider the question as to whether the petition itself in its allegations justifies any instructions as to ignorant and reckless misstatements, we deem prejudicial error. The petition alleges an absolute knowledge on the part of the defendants with regard to these transactions. But it may be, as counsel maintain, that this allegation is broad enough to cover the contention that there may have been reckless misstatements deceiving and defrauding the plaintiff.

It is quite clear to us that the court erred in its charge, as to the measure of damages. This ease was tried some time in February, 1908. The transactions which are made the basis of the suit occurred, the first of them, in the early part of March, 1903, and as to certain other purchases of stock in the fall of the same year. A' period of four and a half and five years had elapsed between the times of the purchase of the stock and the trial of the case in court, and yet the court told the jury that the plaintiff was entitled as compensation to recover the difference between the prices which he paid and the value of the stock, “if,” as the court said, “it has any value, at the present time.” This cannot be the true rule, and it is conceded by counsel that it is not; but it is said that the defendant was not prejudiced by the instruction because the stock had no value, as shown by the evidence, at the time when it was purchased. We do not feel that as a matter of law we can say that it is so, or even that the jury so found. We think there is evidence upon which minds might differ as to just what was the actual value of the stock at the precise times of these several purchases.

We think also that the court erred in overruling the motion for the new trial upon the ground that there was newly discovered evidence. The evidence which was tendered,as newly discovered was not such as would serve merely the purpose of impeaching the plaintiff. It may incidentally have had that effect, but we think it touched one of the vital issues in the case, and that it was evidence which should properly be received if the case were retried, for the purpose of sustaining the affirmative averments in the petition, and that its use should not be confined to the mere impeachment of the plaintiff upon his offering himself as a witness. Its competency is not for the mere purpose of discrediting him, but also for the purpose of disproving the fact which he asserts as one of the bases of his action.

For the four reasons which I have stated, the judgment below should be reversed and the cause remanded for another trial. As to this last ground which I have stated, touching the newly discovered evidence, we have come to the conclusion unanimously, with full appreciation of the very able argument that counsel have made, and without overlooking the rule that the court should not grant a new trial upon this ground unless the newly discovered evidence be such as should influence the finding of a different verdict. The case will be remanded for another trial.

KINKADE, J.

I want to say in addition to what Judge Wildman has said, that I think there is in the language of the court as found on page 82 in the two middle paragraphs, and in the last paragraph on page 84, a clear assumption that the statements in the articles of incorporation filed in Michigan were false, wholly false. I think the language of the court in these two pages in that particular goes further than the court was justified in going. I agree in the opinion of Judge Wild-man with that added.


text:
    CONTI NUANCE — COURTS—ERROR—INTOXICATING LIQUORS —NEW TRIAL.
    [Hamilton (1st) Circuit Court,
    March 22, 1909.]
    Giffen, Smith and Swing, JJ.
    Hyde Park, Petition, In re.
    1. Circuit Court has Jurisdiction to Reverse Judgment on Jones Law Petition.
    Under 98 O. L. 68 (Jones local option law) circuit court has jurisdiction in error to reverse the judgment and remand the case for a new trial, although no express provision therefor is contained in the act.
    2. Judicial Discretion Refusing a Continuance not Reviewable unless Abused.
    The action of a court in refusing a continuance and setting of a case for hearing are largely matters of judicial discretion to which error will not lie unless such discretion be abused.
    3. New Trial on a Jones Law Petition may be Had in a Reasonable Turn.
    A reasonable time should be allowed for a new trial after the filing wit >. the clerk of the municipality of the findings of the judge on the origin.? hearing on a Jones law local option petition.
    Error to Hamilton common pleas court.
   GIFFEN, J.

The act “to further provide against the evils resulting from the traffic in intoxicating liquors by providing for local option in residence districts of municipal corporations” (98 O. L. 68) having been held constitutional, this court is authorized, when a petition in error is filed in accordance therewith, to reverse the judgment and remand the case for a new trial, although no express provision therefor is contained in the act. Cochran v. Loring, 17 Ohio 409; Missionary Soc. of M. E. Church v. Ely, 56 Ohio St. 405 [47 N. E. Rep. 537].

The provision of the act conferring final jurisdiction upon this -court means simply, as shown by the latter part of the sentence, that “there shall be no appeal or error proceeding allowed from such a decision. ’ ’ ^

The setting of a case for hearing, especially when involving questions of public interest, and the action of a court in refusing a continuance are largely matters of judicial discretion to which error will not lie unless such discretion be abused; and we find no such abuse as was prejudicial to the rights of plaintiff in error.

While the act requires the findings of the judge upon the original hearing to be filed with the clerk of the municipality or council not more than forty days from the filing of the petition, there is no provision fixing a time within which the new trial shall be had and the findings filed with the clerk — hence a reasonable time, under all the circumstances, will govern.

The questions put to the witness, Kramer, at page 105 of the bill of exceptions, involved what he himself recognized as conclusions of law and drew out no facts from which to determine whether the district described in the petition was residential; but his testimony at page 102 shows it to be such.

Finding no prejudical error in the record the judgment will be affirmed.

Swing and Smith, JJ., concur.


author: SMITH, J.

text:
    ARREST — ASSAULT AND BATTERY — JURY.
    [Hamilton (1st) Circuit Court,
    April 17, 1909.]
    Giffen, Smith, and Swing, JJ.
    Gustave A. Ringhand v. Edward F. Grannan.
    1. Policeman, in Making an Arrest, may use Force to Repel Interference of Third Person.
    A policeman is a peace officer and is justified in arresting, without a warrant, one found violating a valid ordinance of a city, and in so doing he may use such force as is necessary inn making the arrest to defend himself from the attack of a third person, without notifying him of the cause of the arrest.

      2. It is a Question foe a Jury whether Force used by Policeman Amounts, to an Assault and Battery.
    Whether the force used by a policeman, while making an arrest in repelling the interference of a third person, amounts to an assault and battery is a question for the jury. .
    Error to superior court of Cincinnati.
    Cogan & Williams, for plaintiff in error.
    T. L. Michie and A. C. Fricke, for defendant in error.
   SMITH, J.

This was an action for damages for assault and battery, instituted in the superior court of Cincinnati by Grannan, defendant in error, against Ringhand, plaintiff in error, a policeman of the city of Cincinnati.

Ringhand pleaded justification of his conduct on the ground that Grannan interfered with him in the discharge of his duties while he was attempting to arrest third parties who were disorderly; and sets-up in his answer that if he laid hands upon the plaintiff, he ‘used no more force than was necessary to prevent such interference.

The trial of the case resulted in a verdict and judgment of $300-in favor of the plaintiff. Error has been prosecuted to this court to set the judgment aside.

An examination of the evidence satisfies the court that the verdict and judgment are fully sustained thereby. The jury found upon the facts for the plaintiff, and unless there is other prejudicial error in the-record the judgment must be affirmed.

In this regard the court is of the opinion that the law was correctly stated to the jury by the trial court, both in the general and special charges; the burden throughout being to the effect that the defendant as a peace officer "was justified in arresting one without a warrant, found violating a valid ordinance of the city, and that the officer might use such force as was necessary to make the arrest in order to defend himself from the attack of the offender, and this he might do without notifying him of the cause of the arrest.

This left it for the jury to determine the one fact in the case as to whether or not there was an assault and battery as claimed, and the-jury found in favor of plaintiff.

We do not think the verdict is excessive, and finding no errors in. the record the judgment is affirmed.

Giffen and Swing, JJ., concur.


text:
    DIVORCE AND ALIMONY — JUDGMENTS.
    [Hamilton (1st) Circuit Court,
    June 5, 1909.]
    Giffen, Smith and Swing, JJ.
    George H. Embshoff v. Lillie Embshoff.
    Enforcement of Bond on Appeal in Alimony Case.
    Overdue installments of alimony are in legal effect a judgment, which may be enforced by an action on the bond given on appeal from the order fixing the amount of alimony without first obtaining consent of the court rendering the. decree.
    Error to Hamilton common pleas court.
    In the court below the wife was decreed $4.50 per week alimony. On appeal to the circuit court by the husband, the same decree was granted, and the case remanded to the common pleas for execution. On remand the common pleas committed the husband to jail for contempt of court for failing and refusing to pay the alimony decreed. The wife then brought an action before a justice of the peace on the bond for appeal to the circuit court for $40 unpaid alimony. Judgment having been granted by the justice, the case was appealed to the common pleas by the surety on the appeal bond, and judgment was again obtained on the bond by the wife. Prom that judgment error was prosecuted, the surety asserting (1) that the jurisdiction of justices on appeal bonds is limited by Sec. 587; (2) that the bond to secure execution of the judgment in the circuit court was released by that court when it remanded the ease to the common pleas for execution; and that suit could not be brought upon the bond without the consent of the court.
    “No other court, without leave of the court in which the divorce has been granted, can take jurisdiction of an action on the bond given by order of the divorce court to secure payment of alimony; and upon application for such leave the divorce court may order or withhold payment of arrears in whole or in part, and may grant or refuse leave to enforce such payment by action at law or on the bond, and the action when brought with its leave is as subject to its discretionary control as the judgment itself.” Guenther v. Jacobs, 44 Wis. 354.
    E. C. Pociey, for plaintiff in error.
    C. H. Jones, for defendant in error.
   GIFFEN, J.

While the case of Guenther v. Jacobs, 44 Wis. 354, sustains the contention of counsel that the demurrer to the petition should have been sustained, yet the decisions in this state lead to a different conclusion.

Alimony decreed in installments may be enforced by execution. Piatt v. Piatt, 9 Ohio 37.

The adequacy of alimony decreed cannot be collaterally drawn in question especially by a stranger to the suit. Hare v. Gibson, 32 Ohio St. 33 [30 Am. Rep. 568].

The husband is not complaining, and the installments due are in legal effect a judgment, the collection of which may be enforced by an action upon the appeal bond, without first obtaining the consent of the court rendering the decree.

Judgment affirmed.

Same judgment in case No. 4715.

Swing and Smith, JJ., concur.


text:
    EJECTMENT — EVIDENCE—FORCIBLE ENTRY AND DETAINER.
    [Hamilton (1st) Circuit Court,
    November 6, 1909.]
    Giffen, Smith and Swing, JJ.
    Sarah Cowen v. John R. McGoron.
    1. Contract of Purchase Competent Evidence in Forcible Entry and Detainer before J. P.
    In forcible entry and detainer proceedings before a justice of the peace a contract of purchase of the premises in controversy is competent for the purpose of showing nature of defendant’s possession.
    2. Possession of Premises under Contract of Purchase Complete Defense to Forcible Entry and Detainer.
    Possession of premises as a purchaser under a contract of purchase is a complete defense to an action .for forcible detainer; if some conditions of the contract are not performed by the defendant, ejectment, and not forcible, entry and detainer, is the proper proceeding to determine plaintiff’s rights therein.
    Error to Hamilton common pleas court.
    W. A. Stark, for plaintiff in error.
    A. W. Bruck, for defendant in error.
   GIFFEN, J.

The original action of forcible detainer was commenced by John' R. McGoron against Sarah Cowen, who, prior to October 4, 1905, had been his tenant; but on that date they entered into a written contract of sale of the premises, under which she paid large sums of money to the plaintiff and made some improvements upon the premises. She thereby ceased to be a tenant, and her possession thereafter was referable to the contract of purchase.

This contract was offered in evidence, not for the purpose of trying the title to the premises, but for the purpose of showing the nature of defendant’s possession. To some extent the title was thereby drawn in question; but this is permissible under the cases of Brown v. Burdick, 25 Ohio St. 260, 270; Burton Tp. (Tr.) v. Tuttle, 30 Ohio St. 62, 66.

If, as claimed by the plaintiff, some of the conditions of the contract had not been performed by the defendant, an action in ejectment should have been commenced in the court of common pleas, where the equities, if any, of the defendant could be determined. Her possession as purchaser was a complete defense to the action of forcible detainer, and the justice erred in rendering judgment for plaintiff instead of defendant.

The judgment of the court of common pleas affirming the judgment of the justice of the peace will be reversed and the cause remanded to that court with instructions to reverse the judgment of the justice. A like judgment will be entered in the case of Green v. McGoron, No. 4803.

Swing and Smith, JJ., concur.


author: LAUBIE, J.

text:
    INTOXICATING LIQUORS.
    [Ashtabula (7th) Circuit Court,
    February 19, 1910.]
    Laubie and Metcalf, JJ. (Cook, J., not sitting.)

       William G. Haas v. Perry C. Remick, Aud. et al.
    1. Rose County Local Option Election Renders Inoperative Aiken Tax Law in Dry County.
    The Rose county local option law (99 O. L. 35), having been enacted subsequent to the Dow tax law (83 O L. 157) as amended by the Aiken’ law (98 O. L. 99), prevails in so far as their provisions are in conflict Hence, acts 83 O. L. 157 and 98 O. L. 99, imposing a tax upon the business of trafficking in intoxicating liquors, is invalid and inoperative in dry counties.

      2. Taxation of Liquor Business Conducted Contrary to County Local Option is License Proscribed by Constitution.
    Taxation, as distinguished from license, can only be imposed upon a lawful business;. to-impose a tax upon the business of. trafficking in intoxicating liquors as provided by act 98 O. L. 99, the right to carry on the business where located and ownership of such right in the party assessed must exist. Imposing a tax in counties having voted dry under act 99 O. L. 35 upon an unlawful liquor business savors of license and is unconstitutional.
    3 State Precluded by Local Option Acts of County under Rose Law from Imposing Dow Tax upon Unlawful Liquor Business Therein.
    Counties are component parts of the state and unlike municipalities which are but creatures of the state, in which state laws are not superseded by municipal ordinances, the state having authorized its constituent parts to prohibit the liquor business therein under a general law, such as act 99 O. L. 35, and to make such business criminal, the prohibitory acts of such component part is binding upon the state precluding the imposition of a tax thereon under an earlier conflicting general law.
    4. Boat of Nonresident of State Unlawfully Impressed by Another in Liquor Business not Liable to Distraint for Liquor Tax.
    A boat owned by a citizen of another state surreptitiously brought into this state and, without his knowledge or consent, used by another in the unlawful business of trafficking in intoxicating liquors in a dry county thereof, is not subject to distraint for taxes imposed by Sec. 4 of act 83 O. L. 157 and Sec. 2 of amendatory act 98 O. L. 99 against the person unlawfully appropriating it to such illegal uses, to do otherwise would be contrary to the doctrine of due process of law.
    [Syllabus approved by the court.]
    Appeal from Ashtabula common pleas court.
    A. M. Cox, for plaintiff:
    Cited and commented upon the following authorities: Adler v. WhitbecJc, 44 Ohio St. 539 [9 N. B. Rep. 672]; Foley v. Both, 20 Dec. 157 (8 N. S. 425) ; Commonwealth v. Dredging Co. 122 Pa. St. 386 [15 Atl. Rep. 443; 1 L. R. A. 237; 9 Am. St. Rep. 116]; Overby v. State, 18 Fla. 178.
    F. R. Hogue and Perry. Hitchcock, for defendant.

      Contra, La Follette v. Murray, 81 O. S. 475.

   LAUBIE, J.

This case [William G. Haas v. Perry C. Remick, Aud. and B. E. Thayer, Treas.] is in this court on appeal.

The action was brought by the plaintiff to enjoin the defendants from enforcing the payment of a tax known as the Dow tax, as amended by the Aiken’s statute (98 O. L. 99) imposed upon ¥m. Doering for carrying on the traffic in intoxicating liquors on an electric power boat, or launch, in Ashtabula county, belonging to the plaintiff, and from selling said boat to satisfy such tax.

The tax was assessed for a year from May 24, 1909, in the sum of $1,000, with. $200 added thereto as penalty, as proscribed in Sec. 4 of such statute, and the plaintiff, in effect, alleged in his second amended petition that said county of Ashtabula then was, and still is, what is known as a “dry” county under what is known as the Rose law (99 O. L. 35) ; that therefore said Dow statute as amended was inoperative in and void as to such county, and was unconstitutional as to “dry” counties.

Plaintiff further alleged that he and said Doering were citizens and residents of the state of Pennsylvania; that he was the owner of said boat and had entrusted it to the care of said ¥m. Doering, to be kept and used in the waters of Erie bay in Lake Erie in said state of Pennsylvania; that said Doering had surreptitiously, and without plaintiff’s knowledge or consent, unlawfully taken and moved said boat from said Erie bay to Conneaut bay in said county of Ashtabula; that he did not authorize said Doering to sell liquor on said boat, and did not know that Doering was selling liquor on said boat, and that the defendants had levied upon, and are intending to sell said boat without notification of any kind to, him, and refused to deliver it to plaintiff, and would sell the same if not restrained by order of the court.

To this petition the defendants filed a general demurrer, which was sustained by the court below, and plaintiff not desiring to further plead, judgment was rendered against him, and the case dismissed; and the plaintiff appealed the case to this court.

The defendants urge that the plaintiff is not entitled to the relief asked upon either of the claims set up in his petition, and assert that the Dow law is valid and operative in “dry” as well as in “wet” counties, and that under its provisions they have the right to sell the boat, wherein the traffic was carried on, without regard' to its ownership, or notice to its real owner.

These are the propositions we are called upon to determine:

In its application, is the Dow tax law valid and operative as to, and in what is known as “dry” counties?

The question is thus limited as no one disputes its validity and operation in wet counties.

We do not think it is because, (1) it is in conflict with the local option statute commonly called and known as the Rose law, and (2) if valid and operative therein, it would amount to a license to sell intoxicating liquors, and be unconstitutional.

As to proposition No. 1 -. The local option statute — the Rose law— was enacted years after the Dow law, and while the Dow law, as amended by the Aiken’s statute, was in force and effect; and if their provisions are in conflict, the latter act prevails, and to the extent in which they conflict the former act is inoperative.

How is it in this case?

What is a tax?

A tax is an assessment levied yearly by the state upon property which the owner is required to list; and personal rights are property: as, for instance, the common law right to traffic in any lawful business.

The right to traffic in intoxicating liquors is a common law right possessed by the people — a property right, a lawful subject of taxation, and recognized as such in this state. To enforce payment of such tax in any such ease against an individual, two facts must exist, viz., the right to carry on the business where located, and the ownership of such right in the party assessed; and when the state has lawfully abolished such.right and ownership, how can it lawfully impose a tax thereon?

The state, in the Dow law, recognized those rights, and heavily taxed the persons engaged in the exercise of those rights; but now, through the enforcement of the Rose law, it has abolished those rights in most of the state, and made their exercise a misdemeanor.

We say the state has done this as the Rose law is a general law, applicable to the whole state, the state being composed of counties, and they are component parts of the state, and when the legislature authorized its constituent parts to abolish such rights, and made the exercise thereof a criminal offense against the state itself, certainly the abolition of such rights in any county is in effect the act of, and binding in every respect upon the state.

Suppose every county in the state was “dry” under the operation of the Rose law, where could the Dow law be in force and effect? Would not the Rose law render it inoperative and in effect repeal it? And' if so why would it not have the same effect now in the “dry” counties, although all are not “dry.”

In Ashtabula county at the time in question, and now, to engage-in such traffic was and is a criminal offense against the state, and how is it possible that an older law could also be in force and effect there, which recognized -and permitted the right in the people to carry on such traffic by the imposition of a yearly tax.

The statute expressly declares the tax is imposed upon the “business of trafficking in spirituous, vinous, malt or other intoxicating liquors,” and hence it expressly recognizes the right to carry on such business, and is a permit to do it, and this is made more manifest by the provision in the statute that if the party does not begin the traffic until after the day the yearly tax is to be assessed under the statute, to wit, the fourth Monday in May, the tax is to be apportioned accordingly; as for instance, if the traffic is not begun until six months after the fourth Monday of May, the tax is to be but one-half of the yearly tax; or, if such party began the business at the beginning of the year, and pays the tax, and afterwards retires from the business before the end of the year there shall be returned to him a proportionate share of such tax; but in no event shall the tax to be paid, or retained, be less than $200.

It is apparent, therefore, that the statute permits, and makes it lawful for such person to engage in and' carry on such traffic for the length of time for which he pays the tax.

If, therefore, both these statutes are lawfully operative in a “dry” county, then the persons engaged in such traffic therein can be compelled to pay the tax and at the same time be prosecuted and fined for the selling, as Doering was in this instance, and all of their liquors taken from them and confiscated.

These statutes are, therefore, clearly in conflict and the latter one makes the former one inoperative in “dry” counties.

Conwell v. Sears, 65 Ohio St. 49 [61 N. E. Rep. 155], affirming the holding of this court in Harrison county, has no bearing upon this question. That arose in a municipality in respect of a prohibitory ordinance.

A municipality is but a creature of the state and not a component part of it like a county, and municipal ordinances do not prohibit the state from passing and enforcing laws in such municipality in regard to the same matters. This was formally determined years ago by the Supreme Court in Koch v. State 53 Ohio St. 433 [41 N. E. Rep. 689], the syllabus of which is: “A former conviction before a mayor for the violation of an ordinance is not a bar to the prosecution of an information charging the same act as a violation of a statute.”

The ease of La Follette v. Murray, 81 Ohio St. 475, has no bearing upon the question in this case either, as the question involved in that case related solely to the sale of nonintoxicants — it being admitted by the treasurer that the beer sold was not intoxicating.

If the traffic in nonintoxicating beer is subject to the Dow tax, such traffic is not prohibited by the Rose law, and hence in that respect the two acts are not in conflict, and the Dow law to that extent is in force and operative in “dry” counties, as the state has the right to impose a tax upon a business that is not unlawful.

But how is it as to intoxicants?

The tax is not upon articles of property and according to their value, but upon the right in a person to deal in them, a personal right only. How can the state compel a person to pay a tax, on such a personal right when such a right is not owned by him, does not in fact exist, and the attempt to use it is a misdemeanor — an offense against the state.

This Strings us to the second proposition, viz: If the Dow law is in force and operative in “dry” counties, does it not in effect operate as a grant of a license, instead of imposing a tax? If a license, it is of course unconstitutional, and the law void. It cannot be treated as a penalty, as the penalty is affixed by the later Rose law.

When and how can a tax become a license?

A tax becomes a license when imposed upon a traffic that is forbidden and unlawful; as a tax cannot be imposed upon a personal right which the people do not and cannot own, and the attempt to exercise which is a criminal offense. The Supreme Court has in effect so held.

In State v. Hipp, 38 Ohio St. 199, and Butzman v. Whitbeck, 42 Ohio St. 223, and State v. Sinks, 42 Ohio St. 345, it was held that: “The constitutionality of a statute depends upon its operation and effect, and not upon the form it may be made to assume,” and in each case the statutes then in force, imposing a tax upon the traffic in intoxicating liquors, was held to be a license and void.

In State v. Hipp, supra, it was so held, by reason of the provision in the Pond law (79 O. L. 66), which required a person engaged in such traffic on the premises of another person to give a bond, which if he failed to give, or if the bond was forfeited, he should be deemed guilty of a misdemeanor, and fined or imprisoned, as the provisions of the statute took away the right to engage in such traffic on the premises of another person in effect, and then granted that right to those who would execute such bond.

In Butzman v. Whitbeck, supra, upon the same principle, the Scott law was held to be a license, as it provided that whoever engaged in, or continued in such traffic on land or premises not owned by him, without the consent of the owner, should be held guilty of a misdemeanor.

In State v. Sinks, supra, the court held that by reason of such provision in the Scott law, it rendered the whole act unconstitutional and void.

In State v. Frame, 39 Ohio St. 399, and in Adler v. Whitbeck, 44 Ohio St. 539 [9 N. E. Rep. 672], and Anderson v. Brewster, 44 Ohio St. 576 [9 N. E. Rep. 683], these prior cases were referred to but. not reversed.

In these six cases each decision was by á majority only, but all substantially agreed as to the definition of the word “license,” and disagreed only as to its application to the statutes in question, under the facts in the cases.

In State v. Frame, supra, in the majority opinion, Judge McIlvaine, who united in the holding in State v. Hipp, supra, said, page 412:

“While there is no disposition on the part of the court to overrule the decision in that ease, (the Hipp case), or to depart from the definition of a license as therein laid down, we find that there are fundamental differences between the two statutes in relation to provisions upon which this question depends.”

On the same page he states, that the question of lien or license was not necessarily involved in that case, and that the court passed upon such questions merely because counsel had argued them.

In Adler v. Whitbech, supra, in the opinion on pages 558, 559, 560, 561 and 562, the following appears:

“There seems, however, little difference of opinion as to the definition of a license. It is defined, in its general sense, by Obey, J., in State v. Hipp, [supra] as ‘permission granted by some competent authority to do an act which, without such permission, would be illegal. ’ This agrees in substance with the definition as given in a number of other eases. * * * In Chilvers v. People, 11 Mich. 43, it is said: ‘The object of a license is to confer a right that does not exist without a license.’ ‘The popular understanding of the word license undoubtedly is,’ says Cooley, J., in Youngblood v. Sexton, 32 Mich. 406 [20 Am. Rep. 654], ‘a permission to do something which without the license would not be allowed,’ and he adds, ‘this is also the legal meaning.’ In State v. Frame, 39 Ohio St. 399, the language employed by Mcllvaine, J., is somewhat different, but the definition is in substance the same. He says, ‘A license is essentially the granting of a special privilege to one or more persons, not enjoyed by citizens generally, or, at least, not enjoyed by a class of citizens to which the license belongs. A common right is not the creature of a license.’

“The result of the definitions that have been given of a license is implied in its etymology, is in conformity to the sense in which the word is ordinarily used, and may be regarded as strictly accurate. That is permitted that cannot be done without permission; and to say that a person is permitted, licensed, to do what he may lawfully do without permission, is a misuse of words. * * *

“Every person has the right under the statute to rent property and engage in the business if he desires to do so. * * *

“As shown, the nature of a license is to create a right that did not exist and could not exist without the license. * * *

“In what way would the payment of the tax be a license to do what the individual had an unbridled license to do before he paid, it?” (The italicizing is mine.)

In the later case, Anderson v. Brewster, supra, the tax was held not to be a license mainly upon the ground that the traffic- was not prohibited, and was lawful whether taxed or not, the opposite of the question we have here.

In the majority opinion in that case, pages 587, 588 and 509, it is said:

“A license in law may be simply‘and well defined as a permission, but it is a permission given by some competent authority to do an act which, without the permission, would not be legal. * * *

“He enters upon the traffic in intoxicating liquors, without a license, and when found in the business the law suffers it to continue, but charged with the burden of a tax.

“The distinction is clearly recognized, between a license granted or required as a condition precedent before a certain thing can be done, and a tax assessed on a business which one is authorized to engage m. * * *

“ ‘The object of a license,’ says Mr. Justice Manning, ‘is to confer a right that does not exist without a license.’ Chilvers v. People, 11 Mich. 43, 49. Within this definition, a mere tax upon the traffic cannot be a license of the traffic, unless the tax confers some right to carry on the traffic which otherwise would not have existed. We do not understand that such is the case here. The very act which imposed this tax repealed the previous law, which forbade the traffic and declared it illegal. The trade then became lawful, whether taxed or not; and this law, imposing the tax, did not declare the trade illegal in case the tax' was not paid. * * * If' the tax is paid, the traffic is lawful; but if not paid, the traffic is equally lawful. * * * The state has provided for the taxation of a business which was found in existence, and the carrying on of which it no longer prohibits.” {The italicizing is mine.)

Apply that ruling to this case, and how does it stand? Is the traffic .lawful in “dry” counties whether the tax is paid or not; is it no longer prohibited by the state in such counties?

Under such ruling, the answers to these questions would conclusively show, that if the Dow tax is held to be legal and operative in such counties, it is a license instead of a tax.

No one can lawfully carry on such traffic in such parts of the state, without the permission of the state, and that permission is granted when the state allows one to carry on such traffic as long as he pays the tax.

This idea is borne out by the opinion expressed by Judge Mc-Ilvaine in State v. Frame, supra, commencing on page 413 where he says:

“The right to traffic in intoxicating liquors for the purpose of drinking, before the passage of the Scott law, was the common right of each and every citizen of the state. It so remained after its passage.

“The personal right to engage in.the traffic is not taken away from any person.” (The italicizing is mine.)

How was it in this instance when the tax was assessed against Doering? The right had been taken away from every person in that county. It was a criminal offense to exercise it, and he was arrested and paid a fine for doing it. A tax upon any traffic is upon the right -of those engaged in it to carry.it on — recognizing that right; but when that right is taken away by statute, if an older statute is held to Be in force which allows the right to carry on the traffic as long as desired by the trafficker by paying the tax specified in such statute, certainly ■such tax is turned into a license, as such traffic could not then be carried on except under some authority from the state, and that authority would be in effect a license; and it is evident from the contrary opinions rendered in the cases cited, supra, that such would have been the holding of the courts in those cases, as those decisions were based in substance upon the sole ground that the common law right of the people to traffic in intoxicating' liquors was not then forbidden and made unlawful by the state.

There is the further point to be considered, as presented by the plaintiff. Haas, the owner of the boat, is a citizen of the state of Pennsylvania, and as it was brought here from that state unlawfully and without his .consent and knowledge, and the traffic engaged in-without his consent and knowledge, what right would the county or the state have to levy upon and sell it for a tax assessed upon another person, upon Doering, the man who had substantially stolen the boat?

What authority could there be in. such a case to take that boat from this owner and sell it, and that, too, without any notice to him; Avithout .giving him any right to a hearing before a court or even before the treasurer?

It is claimed that by virtue of the authority granted in the statute, which- provides for the collection, of a tax in the case of a nonpayment, that the treasurer

“Shall levy on the goods and chattels of such person, corporation or copartnership, wherever found in said county, or on the bar, fixtures oi* furniture, liquors, leasehold and other goods and chattels used in carrying on such business, which levy shall take precedence of any and all liens, mortgages, conveyances, or incumbrances hereafter taken or had on such goods and chattels, so used in carrying on such business ; nor shall any claim of property by any third person to such goods and chattels, so used in carrying on such business, avail against such levy so made by the treasurer.”

Now we do not doubt' but what by the terms of the act itself the right was attempted to be taken away from any person who claimed to be the owner of the property upon which the sale was illegally made. That is substantially the wording of the act, and which it is claimed has to a certain extent been upheld by the Supreme Court in the cases heretofore referred to; but the question here is a new one; viz., is it a legal-provision and effective as against a citizen of another state who claims the.property in the manner claimed here by the plaintiff, that this boat was stolen from him substantially and brought into this state, and the traffic carried on without his knowledge or consent or approval’ in any way. Can this property be taken from him to pay the tax assessed against the man who stole the boat?

The constitution of the United States, we think, forbids this by the-provision that no man’s property shall be taken from him except by due-process of law. By what due process of law is this property of the citizen of another state sought to be taken and sold for a tax assessed upon the man who unlawfully carried it off from such other state ? It cannot be claimed for an instant, we think, that due process of law against the thief is due process against the owner. To satisfy those provisions, the property can only be taken by due process of law against the owner in such a case as this. Otherwise what right has a citizen of another state to his property that has been surreptitiously and unlawfully taken from him and carried into this state.

But even as to citizens of the state, we think this question is fully settled in Mirick v. Gims, and Sunday Creek Co. v. Woodworth, 79 Ohio St. 174 [86 N. E. Rep. 880; 20 L. R. A. (N. S.) 42], under the provisions of our own constitution. In those cases the statute in question provided for the levy of a per capita tax upon dogs, and authorized the collection thereof by a sale of the real estate upon which the dogs may have been kept and harbored by a tenant; although the owner of such real estate, the lessor, had no knowledge thereof, and did not consent thereto; and which statute the court held to be inconsistent with the constitutional rights of such owner, and void.

In the opinion Judge Davis, on page 180, defines the question as follows:

“Thus the property of an innocent person may be taken without notice and without due process of law, to recompense an injury t'o another, committed by a third person who holds no relation to the' landowner except that of tenant undér a lease.”

We think the doctrine of that case establishes the right of this plaintiff of itself to the relief asked, under the facts alleged in the petition, but we fully considered the prior questions herein, because counsel for defendants express the desire to file an answer if the demurrer is overruled, and there can be no issues óf fact raised except as to those alleged in regard to this last point, which in no way could change the right of the plaintiff to such relief.

The demurrer is overruled.

Metcalf, J., concurs.


text:
    EVIDENCE — HOMICIDE—TRIAL.
    [Hamilton (1st) Circuit Court,
    December 4, 1909.]
    Giffen, Smith and Swing, JJ.
    Stephen Taylor v. State of Ohio.
    1. When Evidence in . Chief is Admitted after Case is Closed Defendant Must be Given Reasonable Time to Secure Evidence for Answer.
    To reopen a case in chief to let in new testimony after it is finally closed is within the discretion of the court, but it is prejudicial error to do so without giving the defendant a reasonable time to recall his witnesses to make answer to such new testimony.
    2. Killing within Degree Charged Must be Proven before Defendant can be Required to Establish Self-defense.
    The defendant in a homicide case cannot be required to establish his defense of self-defense until the- state has established that the killing by him was an unlawful killing within the degree of the crime charged, and it is error to charge otherwise.
    3. Circumstances being Such that Slayer Might Reasonably Believe Danger Imminent Sufficient to Justify Killing in Self-defense.
    The actual existence of imminent danger of death or great bodily harm to justify a homicide on the ground of self-defense, but if the slayer in the careful and proper use of his faculties, 5ona fide believes and has reasonable ground to believe that he is in such danger,, such defense may be sustained. •
    A. Lee Beaty, for plaintiff in error:
    Cited and commented upon the following authorities: Marts v. State, 26 Ohio St. 162; Martin v. State, 9 Circ. Dee. 621 (17 R. 406) ; Donald v. State, 11 Circ. Dec/ 483 (21 R. 124) ;' Mueller v. Bebham, 94 HI, 142; State v. Lawrence, 70 Vt. 524 [41 Atl. Rep. 1027],
    H. T. Hunt, Pros. Atty., and A. C. Fricke, Asst. Pros. Atty., for defendant in error:
    Cited and commented upon the following authorities: Silvus v. State, 22 Ohio St. 90; Weaver v. State, 24 Ohio St. 584; Marts v. State, 26 Ohio St. 162; Darling v. Williams, 35 Ohio St. 58; State v. Shreves, 81 Iowa 615 [47 N. W. Rep. 899]; Anderson v. State, 117 Ga. 255 [43 S. E. Rep. 835] ; State v. Abarr, 39 Iowa 185; Olds v. State, 44 Fla. 452 [33 So. Rep. 296]; Lane v. State, 44 Fla. 105 [32 So. Rep. 896]; Morrison v. State, 42 Fla. 149 [28 So. Rep. 97]; State v. Sullivan, 51 Iowa 142 [50 N. "W. Rep. 572]; State v. Fourchy, 51 La. Ann. 228 [25 So. Rep. 109]; Kent v. State, 42 Ohio St. 426; White v. State, 100 Ga. 659 [28 S. E. Rep. 423]; State v. Jacobs, 28 S. C. 29 [4 S. E. Rep. 799]; Leighton v. People, 88 N. Y. 117; United States v. Bennett, 17 Blatchf. 357 [24 Fed. Cas. 1107]; Johnson v. Wiley, 74 Ind. 233; Dodd
      v. Norris, 3 Campbl. 519; Dufresne v. Weise, 46 Wis. 290 [1 N. W. Rep. 59]; Sherman v. Manufacturing Co. 23 R. I. 529 [51 Atl. Rep 48]; Atherton v. De Freeze,. 129 Mich. 364 [88 N. W. Rep. 886]; Adam.’. v. Eames, 107 Mass. 275; Blight v. Ashley, 1 Peter C. C. 15 [3 Fed. Cas. 699]; Beemer v. Kerr, 23 U. C. Q. B. 557; Queen’s Case, 2 B. & B. 294; Collins v. Stephenson, 74 Mass. (8 Gray) 438.
   SMITH, J.

The plaintiff in error was indicted, tried and convicted of murder in the second degree in the court of common pleas of this county and now seeks a reversal of the judgment of the court committing him to the penitentiary for life for the following errors:

First. The act of the court in admitting certain evidence in rebuttal which should have been introduced in chief- by the state and the refusal to allow plaintiff in error the right to rejoin thereto.

Second. For errors of law in the general charge of the court.

The state in rebuttal called as a witness Isaac J. Cassidy, who testified substantially that the plaintiff in error had asked him to go into a certain place and ascertain if Tom Taylor, the deceased, was in there and tell him to come out. That he did so, and after coming out the plaintiff in error asked him if Tom Taylor was in there and he said, no; that he may be over at the bakery; and that about twenty minutes or a half-hour thereafter a shot was fired, and that the witness then ran up the street and found the deceased lying on the ground, dead.

It is apparent that this evidence was introduced for the purpose of showing that the plaintiff in error was seeking the deceased for the purpose, it could be argued, of shooting him. This being so, the evidence was clearly such as should have been offered in chief by the state. It was, however, within the discretion of the trial judge to permit this evidence to be given, but if this was done then the plaintiff in error should have been allowed at least a reasonable time to recall his witnesses to make answer to this new evidence. The rule seems to be:

“By the law of evidence, testimony competent in chief, by that fact is rendered incompetent in reply. The rule, however, is subject to the discretional authority pf a trial court to reopen a case in chief at any time before it is finally closed, and let such evidence in. But this should not be done when, without fault on his part, by reason of the discharge of witnesses, or otherwise, a party would be cut off from an answer to the new testimony, which he might have made if it had been regularly given.” Donald v. State, 11 Circ. Dec. 483 (21 R. 124).

As to the errors in the charge of the court, we are of the "opinion that where the accused has attempted to justify the homicide on the ground of self-defense, it is error for the court to charge the jury:

“That if the killing by the defendant is established by the state, then the burden of proof is upon the defendant to establish- by a preponderance of the evidence that what he did was necessary to be done-in order to save his own life or to protect himself from great bodily harm.”

While it is true that the burden of self-defense is upon the defendant, and he must establish this by a preponderance of the evidence, yet the killing by the defendant that must be first established by the-state is an unlawful killing, such an unlawful killing as would be embraced in murder of the second degree, or manslaughter, or the degree of crime charged.

It is further urged that in charging the jury upon the subject of self-defense as to the belief that should exist in the mind of the accused, the court charged that the defendant would be justified in taking the life of the deceased if he, acting reasonably and prudently under the circumstances, believed that he was in danger of loss of life or great bodily harm, or that the defendant would not be responsible, unless the circumstances were such as to have afforded a reasonable ground to believe that there was not any danger imminent to him acting reasonably and prudently under the circumstances. We think this was error. “Homicide is justifiable on the ground of self-defense, where the slayer-in the careful and proper use of his faculties, bona fide believes and has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and that his only means of-escape from such danger will be by taking the life of his assailant, although in fact he is; mistaken as to the existence or imminence of the danger. The fact of the existence of such danger is not an indispensable requisite. Marts v. State, 26 Ohio St. 162; Martin v. State, 9 Circ. Dec. 621 (17 R. 406.).

The defendant in such a ease is not to be judged as to' whether he-was acting prudently under the circumstances, and thereby allow the-jury to determine whether, under the circumstances, they, as prudent persons, would have acted as he acted or whether he’ acted as some other-prudent person would act. His plea of self-defense must be determined upon the question whether or not, in the careful and proper use- of his: faculties, he bona fide believed and had reasonable ground to believe that he was in imminent danger of death, or great bodily ha-rm, and that his only means of escape from this danger would be by taking the life of his assailant, and this must be judged from his standpoint under all the circumstances at the time.

We see no objection to the use of the word “honestly” in connection with the word belief. This did not put in issue the question as to the honesty or dishonesty of the defendant, but rather was used by the court in the sense of a bona fide belief or sincere belief. We do not think the other claims of error in the charge, if indeed there are such, are prejudicial to plaintiff in error, and. while we would not disturb this verdict upon the weight of the testimony alone, yet we feel for the reasons above stated the judgment, should be reversed and a new trial granted.

Giffen and Smith, JJ., concur.


text:
    CONTRACTS — PLEADING.
    [Hamilton (1st) Circuit Court,
    January 29, 1910.]
    Giffen, Smith and Swing, JJ.
    Andrew G. Norman v. William H. Plumb.
    Cash Items mat be Regarded and Pleaded as Book Account.
    The objection that cash items alone cannot, without special authority, be the subject of a book account is not well taken, where the action is on a contract and there is an averment in the petition that the indebtedness arose “for money laid out and expended and commissions in the purchase and sale of goods by the plaintiff for the defendant at his request.”
    Error to Hamilton common pleas court.
    Burch & Johnson, for plaintiff in error.
    Kelley & Hauck, for defendant in error.
   GIFFEN, J.

The petition in this ease was not intended as a short form of pleading under Sec. 5086 Rev. Stat. (Gen. Code 11334), but contains an averment of the contract upon which the indebtedness arose, to-wit, “for money laid out and expended and commissions in the purchase and sale of goods by plaintiff”; and the objection that cash items alone cannot, without special authority, be the subject of a book account is not well taken.

The chief question in the case is, whether one Eckenroth was authorized, as agent of defendant, to make the contract with plaintiff. The defendant admits that he was authorized to employ plaintiff at $2.50 per day to buy apples for the defendant. This limitation upon the authority of the agent was not disclosed to the plaintiff, and his apparent authority was general so far as it related to terms of employment in buying apples through plaintiff in the state of New York and shipping them to defendant in Cincinnati. The evidence shows that by the terms of the contract made with the agent plaintiff was to receive ten cents per barrel, not merely for handling the apples, but as a factor, because the apples were purchased from a large number of farmers by the plaintiff on his own account, although the money was from time to time furnished by the defendant.

The defendant claims that he paid for about one thousand barrels of apples more than he received; but.he offered no book account or other evidence to support the claim. Neither party kept his books or accounts in such a way as would add to and strengthen his oral statement, but the jury having found in favor of the plaintiff we are not disposed to set the verdict aside upon the ground that it is not sustained by sufficient evidence, especially as the plaintiff seems to have been a fair and candid witness.

The letter marked “Exhibit 12” related to the condition of the apples, the number of barrels sold and the price, all at Cincinnati, and had no relation to the terms of the contract made in New York. Even if incompetent, there was no prejudice.

The letter marked “Exhibit 22,” offered as a standard of comparison with the signature of Eekenroth to the letter “Exhibit 12,” was neither admitted nor clearly proved to be a genuine letter and signature, and hence the court did not err in excluding it.

Special instruction No. 14 was properly refused because one of the letters written by defendant to plaintiff contained the following:

“We judge by your message that we can do business with you either on joint account or buy from you or rather through you. We will send man on the train tomorrow noon — any way you arrange with him will be satisfactory to us.”

This shows not only that Eekenroth, the “man” referred to, was authorized to make the contract, but that the defendant expected to buy not directly from but through the plaintiff from any New York farmers having suitable apples.

That part of the general charge objected to is not as clear as it should be, but we think the jury was not thereby misled to the prejudice-of the defendant.

The judgment will be affirmed.

Smith and Swing, JJ., concur.