author: TAGGART, J.

text:
    CHANGE OF VENUE — DISCRETION OF TRIAL JUDGE — EVI= DENCE — FORGERY.
    [Licking (5th) Circuit Court,
    June 19, 1906.]
    Donahue, McCarty and Taggart, JJ.

      Robert C. Lingafelter v. State of Ohio.
    1. Discretion of Trial Judge to Grant Change of Venue.
    A motion for a change of venue in a criminal prosecution supported by an affidavit, having been made, it is for the trial judge to determine from the affidavit whether or not a fair trial can be had in the county, and his discretion in so determining will only be reviewed when abused.
    [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” §§ 217-218.]

      2. Abuse of Discretion by Trial Judge.
    The record showing that there was but one juror examined on his voir dire and that he was challenged peremptorily, and there being no exceptions to the jury or the selection of any particular juror it will be presumed that the court did not abuse its discretion in overruling a motion for a change of venue.
    [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” §§ 217, 218; 7 Cyc. Dig., “Venue,” §§ 260-263.]
    3. Evidence of Similar Offenses to Prove Guilty Knowledge or Intent.
    In a prosecution for forgery of a receipt for the payment of money used in conjunction with other forged instruments with intent to defraud, the indictment not containing a count for uttering the forged instrument, evidence of other transactions by the same defendant similar to that of which the accused is charged may be received to prove guilty knowledge or intent.
    [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” §§ 443-455; 4 Cyc. Dig., “Evidence,” §§ 1793-1808. — Ed.]
    ERROR to Licking common pleas court.
    Smythe & Smytfae, for plaintiff in error.
    J. R. Fitzgibbon, prosecuting attorney, and S. M. Hunter, for defendant in error.

      Leave to file petition in error in the Supreme Court refused, October 2, 1906.

   TAGGART, J.

The ease of Robert C. Lingafelter against the state of Ohio is a proceeding in error prosecuted in this court to reverse the judgment of the eommorL pleas court of Licking county wherein Robert C. Linga-felter was convicted of forgery.

While many of the questions involved in this case were brought in review in a' ease of this same plaintiff in error against the state of Ohio, at Mt. Vernon, yet at the urgent request of counsel we have again examined the questions involved herein.

The plaintiff in error was indicted, tried and convicted, and now prosecutes error in this court. The first question presented in the record is the refusal of the trial court to grant a change of venue. The contention of counsel for plaintiff in error is, that upon the filing of a motion for a change of venue, supported by affidavits, the court is required to grant the change, and that there was no discretion lodged in the court. To quote from the brief of counsel on this question, they •say:

“We claim under this statute, to wit, Eev. Stat. 7263 [Lan. 11017], that the court had no discretion about it. The statute is mandatory. It is not necessary to satisfy the court by clear and convincing proof; all that is necessary is to make it appear to the court by affidavits, ;and thereupon the court is required to order a change of venue.”

If this contention is correct the plaintiff in error was deprived of a substantial right, and the action of the court in this regard was erroneous. But, this section of the statute has been recently construed by the Supreme Court, in the case of State v. Durflinger, 73 Ohio St. 154, and in that case the court, in substance, say that the language of the statute is general, and confers this right to a change of venue alike upon the accused and upon the state. If the contention of counsel for plaintiff in error obtains, all that is necessary to be done, either by the .accused or by the state, is to file a motion for a change of venue, and support it by affidavits, in which event the first one filing the motion ¡secures a change of venue. We do not think this is the right construction to be placed upon this statute. We think the proper construction is to give to the words of the statute their controlling effect, “unless it .appears to the court by affidavits that a fair trial cannot be had in the •county,” a change of venue can only be granted. In this view it vests in the court the duty of determining by affidavit for or against the motion whether or not such a change of venue should be made; and this vests in the court a discretion which can only be reviewed when abused. This was the holding of this court sitting in the third circuit, and the case was reported (Judge Yoorhees delivering the opinion) in Lindsay v. State, 24 O. C. C. 1; and this was the holding of this court at the April term of this year in Muskingum county. The question then arises: Did the court abuse its discretion? Did the affidavits in support thereof make it appear that a fair trial could not be had in this county, so that we can say that the trial court abused its discretion?

An examination of this record shows that but one juror was examined on his voir dire, and he was challenged peremptorily. Then the ¡record is silent in every respect except that it certifies that twelve jurors were obtained, and we must assume that they were good men and true 7 for, with this extensive record, bristling with exceptions from beginning to end, and with the counsel who took the cause of the accused in hand and carried him through this trial, we must assume that they took care that a fair jury was secured. If they did not, it is now too late,, for no exceptions to the jurors that were secured are now preserved in this record. The action of the court in overruling this motion was not erroneous.

The next question presented in the record is as to the admission of evidence. The admission of similar transactions to that which the accused was charged in the indictment. The indictment, consisting of but a single count, charged the defendant with the forgery of the following-receipt :

“No. 3219, Newark, Ohio, September 27, 1899. Received of the Homestead Building and Savings Company $75, in full, for one W. D. share No. 18, Sec. No. 1, W. D. Theo. Taylor.”

Revised Statute 7091 (Lan. 10843) provides that whoever falsely makes, alters or forges * * * any receipt for money '* * # with intent to defraud is guilty of forgery. * * * It is to be observed that there is no count in this indictment for uttering the forged instrument. The question then arises: May similar transactions be shown, and for what purpose?

In the case of Reed v. State, 15 Ohio 217, 223, on the trial of a person charged with passing counterfeit money, it was held that it was competent to prove that he had passed other counterfeit money, for the purpose of proving the scienter, or guilty knowledge; but in the case of Barton v. State, 18 Ohio 221, it was held that proof of similar offenses in the case of grand larceny could not be admitted in the trial of the case. The court, in its opinion, thus stated the rule:

“Each ease must be tried on its own merits and be determined by the 'circumstances connected with it, without reference to the character of the party charged, or the fact that he may have previously committed similar crimes. ’ ’

In this case it was claimed on behalf of the state that this evidence was introduced for the purpose of showing the intent with which the accused got possession of the property.

In the case of Farrer v. State, 2 Ohio St. 54, the syllabus is as follows :

“On an indictment charging the prisoner with poisoning A in December, 1851, it is error to permit evidence in chief to show that she: poisoned B in the month of August previous. ’ ’

In this case, tbe court, consisting of five judges, divided; Corwin '(who announced the principal opinion in the case), Caldwell and Thurman, were for reversing the judgment'on the ground that it was erroneous to admit evidence of other transactions or other poisonings. Judge' Thurman gives the controlling reason for the majority of the court. He says, on page 74:

“No presumption whatever of guilty knowledge arises from the' bare fact of passing a counterfeit coin or note, unless, which is but. seldom the case, its baseness is apparent, and the person receiving it is; a fit subject for imposition.
“But how is it with respect to the nature of arsenic? Is it not undeniable that the fact is almost, or quite, as well known to people generally, that arsenic is a deadly poison, as that a dagger or a gun is a deadly weapon ? I think it is. I suppose that there are very few men or women, and but few children, either, except those of tender years, who have not heard of arsenic, and 'that it is a poison that produces death.”

And then he proceeds to say that the presumption obtains at once from the use of the means employed, that there was guilty knowledge and intent. Judge Ranney says:

“I think a new trial should have been granted, because of the misconduct of' the jury, and for that reason alone I vote to reverse the sentence. ’ ’

Bartley, C. J., on pages 80, 81, quotes, with approval, from Justice Story, in an opinion handed down by him, and claims the rule to be:

“In most cases of conspiracy and fraud, the question of intent or purpose, or design in the act done, whether innocent or illegal, whether honest or fraudulent, rarely admits of direct and positive proof; but it is to be deduced from various circumstances of more or less stringency, and often occurring, not merely between the same parties, but between the party charged with the conspiracy or fraud and third persons. And in all eases, where the guilt of the party depends upon the intent, purpose or design, with which the act is done, or upon his guilty knowledge thereof, I understand it to be a general rule, that collateral facts maybe examined into, in which he bore a part, for the purpose of establishing such guilty intent, design, purpose or knowledge. * * / Tn short, whenever the intent or guilty knowledge of a party is a material ingredient in the issue of the case, these collateral facts, tending to> establish such intent or knowledge, are proper evidence.”

In the case of Brown v. State, 26 Ohio St. 176, the syllabus is. as follows:

“1. Testimony otherwise competent, as tending to prove the offense charged in the indictment, is not rendered incompetent by reason of the fact that it also tends to prove a separate and distinct offense.”

This was an indictment for maliciously injuring a mare. The state, in the trial, was permitted to show that a number of other horses were injured in a similar manner — the defendant objecting on the ground that this was in effect putting him on trial for different offenses at the same time.

Gilmore, J., on page 181, in respect to this objection says:

“While the general rule unquestionably is, that a distinct crime, in no way connected with that upon which the defendant stands indicted,-cannot be given in evidence against him on the trial, this rule is not applicable to a case in which it is clearly shown that a connection, in the mind of the defendant, ipust have existed between the offense charged in the indictment and others of a similar nature. When such connection exists, evidence of such other offense is admissible, not for the purpose of raising a presumption of guilt on the hypothesis that a man ■who commits one crime will probably commit another, but for the purpose of showing a motive or purpose prompting the commission of the affense laid in the indictment; and being competent for this purpose, it could not have been properly excluded on the ground that it tended to prove the commission of other and distinct offenses.”

In the case of Devere v. State, 3 Circ. Dec. 249 (5 R. 509), Lydia Devere was indicted in the common pleas court of Lucas county for the crime of forgery. There were two counts in the indictment. The first count charged that she unlawfully and falsely made and forged a certain promissory note for the payment of money, setting forth a copy of the note, and that she forged an indorsement on the back of the same-The second charges that she falsely and unlawfully did utter and publish as true and genuine this promissory note, being the same instrument.

In that case the common pleas court permitted the proof of similar transactions as developing and showing a scheme to defraud — a purpose In making and uttering the fraudulent instrument, as showing the guilty 'knowledge .and criminal intent. This was excepted to, and the case -went to the circuit court. Judge Bentley delivered the opinion, holding it was proper to show these as evidence of criminal intent.

The circuit court found that the two constituted but a single offense ; that the falsely making and uttering alone constituted forgery, and was mot two crimes. Under these counts of the indictment this woman was ■convicted and sentenced on each count. The circuit court reversed the court of common pleas, holding it was but a single offense and that she could be sentenced for but a single offense, the crime of forgery, page 262.

“It appears that she has been properly convicted of the crime of forgery, and should be sentenced to a term as for the one offense of forgery.

“For the reasons given, this sentence will be reversed, and the cause remanded, as I have said, for a proper sentence upon the verdict, as for a single offense.”

After the circuit court reversed the judgment, and remanded it for a new sentence, the court of common pleas sentenced the defendant for a term of nine and a half years, and that sentence was brought before the circuit court “pro forma” on petition in error, and that sentence was affirmed, and the case taken to the Supreme Court on motion, for leave to file a petition in error, which motion was overruled by the Supreme Court.

In the case of Lindsey v. State, 38 Ohio St. 507, the defendant was indicted for uttering and publishing a forged deed. On the trial the court admitted certain other forged deeds published by the defendant, and others found in his possession. In affirming the judgment of the lower court, Johnson, J., on page 514, says:

“As guilty knowledge is an essential ingredient of this class of crimes, and as the burden is on the prosecution to prove such knowledge, the reason of the rule is apparent.
“Without the aid of other acts and conduct of the accused, than the one charged, it would be impossible to prove this allegation. Proof of the single act charged, will not of itself warrant the inference of guilty knowledge. Hence this exception to the general rule, that pther acts of the accused calculated to raise a presumption of such knowledge are admissible. Other acts which, in their nature, do not aid the jury in determining this question, are not competent, but when such acts or conduct tend to raise a presumption of such knowledge, they are admissible. ’ ’

These are the principal cases in Ohio. Let us now look- beyond our own state, and see whether we can ascertain the correct rule in respect to this question.

The ease of Taylor v. State, 81 S. W. Rep. 933 (Tex. Cr. App.), is a case from the court of criminal appeals of Texas, decided in 1904. This is the language of the syllabus :

‘ ‘ On a trial for forgery, evidence of other forgeries by defendant is admissible on the issue of intent, or to show a system.”

Judge Brooks, delivering tbe opinion of the court, says, page 935:

“We would not be understood as holding that contemporaneous suspicions against appellant would be admissible, but contemporaneous acts tending to'show and make out a prima facie case of forgery or passing a forged instrument. The collateral forgeries are merely introdueible, and the court should so say, for the purpose of illustrating the motive, system, and intent, if they do so illustrate the motive, purpose and intent, of appellant in passing as true the forged instrument for which he is on trial.”

In the case of People v. McGlade, 72 Pac. Rep. 600 [139 Cal. 66], decided in 1903, the court says:

“In a prosecution for forgery, evidence of other forgeries or similar instruments about the same time was admissible to show guilty knowledge and intent.” Also, the Wright v. State, 138 Ala. 69 [34 So. Rep. 1009].

It has been called to our attention in the briefs of counsel, that in many of these cases, there are two counts in the indictments, one for forging the instrument, for which the accused is on trial, and one for uttering the same. But it seems that in this case it was simply for forgery. They hold, in this case, that, evidence of other orders are proper in the case, if the proof shows that they were made about the same time.

In Commonwealth v. Russell, 156 Mass. 196 [30 N. E. Rep. 763], the same question was before that court. This is in the opinion of Judge Barker:

“It is an established exception to the-rule forbidding proof of collateral facts that in prosecutions for forgery and for uttering forged paper proof is admissible, in order to show an intent to defraud by the forgery, and also to show knowledge on the part of the accused with reference to the particular document which he is charged with uttering, that at or near the time of committing the alleged offense he had passed or had in his possession, other similar forged documents. * - * * The admission of such evidence is necessary, because guilty knowledge is a fact not susceptible of proof by direct evidence, and can rarely be shown by explicit admissions, but only by acts and conduct. Intent to defraud often sufficiently appears from the circumstances of the transaction, where its immediate and necessary effect is to defraud; but there are many cases of the false making of instruments which have no such necessary effect, and in which the fraudulent intention must be proved by other and collateral circumstances. Although the introduction of such evidence compels the defendant to meet acts not charged, and may lead the jury to convict of one crime upon proof of another, it is admitted when the occasion arises. * * * This doctrine is a branch of a more .general exception, which, when knowledge or intent must be proved, allows evidence of acts not in issue, but which tend to show such knowledge or intent, as in the trial of indictments for passing counterfeit money. ’ ’

But the point that I call attention to particularly is, that the intent to defraud often does not sufficiently appear from the circumstances ■of the transaction, and the making of the false instrument may have no •.such necessary effect. It is a forgery to make an instrument which may be capable of defrauding, although in and of itself, it may be innocent, but in conjunction with other facts and circumstances may constitute the crime of forgery.

In the celebrated case of People v. Molineux, 168 N. Y. 264, 298 [61 N. E. Rep. 286; 62 L. R. A. 193], the court of appeals of New York followed the Supreme Court of Ohio in dividing upon the question as to the admission of testimony in the ease of the administration of poison.

Judge Warner, in speaking for a majority of the court, thus states •the rule as to the admission of evidence showing that the accused has been guilty of other similar crimes, page 294:

“The exceptions to the rule cannot be stated with categorical precision. Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish (1) motive; (2) intent; (3) the absence of mistake or accident; (4) a common .scheme * * * related to each other that proof of one tends to establish the others; (5) the identity of the person charged with the commission of the crime on trial.”

And, on page 296, he thus lays down the rule:

“There are cases in which the intent may be inferred from the nature of the act. There are others where wilful intent or guilty knowledge must be proved before a conviction can be had. ’ ’

And he then says:

‘•‘Familiar illustrations of the latter rule are to be found in cases ■of passing counterfeit money, forgery, receiving stolen property, and obtaining money under false pretenses. An innocent man may, in a .single instance, pass a counterfeit coin or bill. Therefore intent is of the essence of the crime, and previous offenses of a similar character by the ■same person may be proved to show intent. ’ ’ Citing a number of cases.

Judge Parker, who delivered a dissenting opinion, thus states the rule, on page 313:

“Intent, is another essential element which must be made out before there can be a conviction for a crime, and, if the commission of another crime by a defendant tends to establish a guilty intent on his part in the case on trial, the other crime may be proved. ’ ’

In the case at bar the crime charged was the false making of a receipt for the payment of money,.with intent to. defraud. The instrument laid in the indictment might be harmless in and of itself, as has been urged upon our attention. It could not, in and of itself, be capable of defrauding unless in conjunction with some other instruments showing a system, or showing a means or capability whereby it could be used to defraud. And, therefore, we think, under the rule of law clearly deducible from the authorities cited, that similar offenses or similar transactions showing the motive or intent with which this receipt was made, altered, or forged, were proper, and that by using it in conjunction with other instruments forged by the defendant it was capable of defrauding, and the admission of such evidence was not erroneous. It was proper.

There were a number of special requests handed to the trial court, some of which were given, and some were refused. Those that were declined by the trial court, we think, are governed by the case of Davis v. State, 63 Ohio St. 173 [57 N. E. Rep. 1099], and were properly refused by the trial court.

"While this record, as I have said, bristles with exceptions from beginning to end, we find no error therein to the prejudice of the plaintiff in error, and the judgment of the court of common pleas will be affirmed with costs, and the cause remanded to the common pleas court for execution. Exceptions will be noted.

Donahue and McCarty, JJ., concur.


source: Caselaw Access Project

author: JELKE, J.

license: Public Domain

text:
    COVENANTS — ESTOPPEL — STATUTE OF LIMITATIONS — STREET ASSESSMENTS.
    [Hamilton (1st) Circuit Court,
    March 10, 1906.]
    Jelke, Swing and GifCen, JJ.
    Isabella M. Bell v. Norwood (City) et al.
    1. Limitation on Street Assessment Installments.
    Prior to the act of April 25, 1904, Rey. Stat. 1104 (Lan. 2451), the statute of limitations did not begin to run in favor of a property owner and against the municipality on a street assessment until each of the several installments became due.
    [For other cases in point, see 5 Cyc. Dig., “Limitation of Actions,” §§ 228-229. — Ed.]
    2. Covenant in Deed as Estoppel aoainst Collection op Invalid Assessment.
    The exception in the covenant of warranty in a deed of .conveyance, “except maturing street assessments on Floral avenue which the grantee assumes and agrees to pay,” merely means that the grantor is relieved of liability on the warranty on account of the assessment, and not that a definite sum made to the grantee as part of the consideration and as such inures to the benefit of the city, and the assessment having been held illegal and void cannot be collected by the city from the grantee in the deed.
    [For other cases in point, see 4 Cyc. Dig., “Estoppel,” §§ 174-177. — Fd.]
    W. R. Collins and L. F. Hanger, for plaintiff.
    O. G. Bailey, for defendants.
   JELKE, J.

Prior to the act of April 25, 1904 (97 O. L. 403; Rev. Stat. 1104; Lan. 2451), whatever statute of limitation ran in favor of the property-owner and against the municipality did not begin to run until each of the several installments became due. Whatever bar may operate as between the property owner and the municipality, must begin to run from the same date. While the assessment became a lien from the time the ordinance was passed, yet the statute did not begin to run on the several assessments until they became due and payable, like the postponed payments provided for in a mortgage.

We are therefore of the opinion that the plaintiff is barred from maintaining her action as to the first installment of said assessment, but that she may maintain the same as against all subsequent installments.

It is contended by the county treasurer in the interest of and on behalf of the city of Norwood, that the plaintiff herein is estopped from contesting the assessment on Floral avenue because the deed contains in the covenant of warranty, the following sentence: “Except maturing street assessments on Floral avenue which the grantee assumes and agrees bo pay.” This is all the evidence we have before ns. The question arises, whether the rule laid down in the case of Caldwell v. Columbus, 1 O. S. C. D. 612 (37 Bull. 270), affirmed in Caldwell v. Columbus, 56 Ohio St. 759 [49 N. E. Rep. 1108], or the rule laid down in Walsh v. Sims, 65 Ohio St. 211 [62 N. E. Rep. 120], applies. It turns upon the question of fact as to whether or not there was an allowance of a definite sum made to the grantee as part of the consideration. Of course if the grantee has been allowed a sum certain, and has practically been a depository, or trustee, of such sum for. the payment of the assessment on Floral avenue, it makes no difference to the grantee whether such assessment is legal or illegal. On the' other hand, if there has been no such allowance to the grantee, and this exception of the covenant warranty is to be considered merely as a contract between, the grantor and grantee that grantor shall be relieved from any assessment, then grantee is not estopped from setting up and availing himself of the illegality of any ■assessment.

This court has heretofore held that the Floral avenue assessment is illegal and void, and the Supreme Court has sustained this conclusion. The burden of proving the estoppel against the property owner is upon the treasurer. Looking then to this deed, and in the absence of other testimony, we find that the intention of the contracting parties was, that the grantor was to be relieved of any liability on the warranty on account of this Floral avenue assessment, but it was not intended to make a contract which should inure to the benefit of the city, of Norwood or make the grantee the custodian of a definite sum of money for the payment of this assessment.

We .therefore find on the equities for the plaintiff, and a decree may be had accordingly.

Swing and Giffen, JJ., concur.


author: CilFFEN, J.

text:
    EVIDENCE — ACCOUNTS.
    [Hamilton (1st) Circuit Court,
    February 18, 1905.]
    Jelke, Swing and Giffen, JJ.
    George A. Fitch v. A. R. Gottschalk.
    Evidence — Contradiction of Writing Showing Settlement of Account — Writing MORE THAN A RECEIPT. '
    F owed G an account for goods sold, and G accepted a cash payment and five notes giving F a paper writing stating that such were received “in full settlement of claim * * • * in accordance with agreement of G.” In an action on the account brought after F had failed to pay the notes, it was held error to admit testimony tending to show that the settlement was on condition that the notes be paid when due, as such evidence tended to contradict the plain terms of the paper writing, such writing being more than a receipt and, in effect, evidence of an agreement upon a settlement.
    [For other cases in point, see 4 Cyc. Dig., “Evidence,” §§ 2917-2939, 3007 — Ed.]
    EerOR to Hamilton common pleas court.
    C. L. Hopping, for plaintiff in error.
    John Weitzel, for defendant in error.
   CilFFEN, J.

This action was commenced to recover upon an account for groceries furnished in the sum of $91.70. The defense was that the plaintiff accepted and received in full satisfaction and discharge of the cause of action the sum of $10 in cash and defendant’s five certain promissory-notes for $10 each, made payable to the order of the plaintiff. Plaintiff, by reply, alleged that the notes were taken in settlement upon condition only that they were paid when due, and averred that they were not so paid, and that he tendered the notes back.

The defense of full settlement of the claim is based upon the following written instrument:

"Cincinnati, O., April 2, 1903.
"Received of Chas. L. Hopping, attorney for George A. Fitch, fourteen and fifty one-hundredths dollars ($14.50) in cash, $10.00 to be applied on account, and $4.50 to meet payment of costs, and five notes, dated April 2, 1903, each for $10.00, and payable in one, two, three, four and five months after date, in full settlement of claim of A. R. Gottschalk, grocer, against .the said George A. Fitch, in accordance with agreement of A. R. Gottschalk, and a further agreement to immediately release attachment, dismiss suit pending before Chas. T. Dumont, J. P., and payment of all costs of said suit.
‘1 (Signed) John WeNtzel,
"Attorney for A. R. Gottschalk.”

The court received over the objection of the defendant testimony tending to prove that at the time said settlement was made, before said paper writing was given, there was a separate agreement with A. R_ Gottschalk referred to in writing by which it was agreed and understood that if such notes were not paid when due, the plaintiff should have the right on his original claim to enforce the same by action. That such first note was not paid when due, and that plaintiff had offered to-return said note; to all of which the defendant excepted.

The paper referred to is something more than a mere receipt; it shows that the parties agreed upon a settlement óf the account, and that in fulfillment of that settlement the defendant .paid to the plaintiff’ $14.50, and delivered to him five notes of $10 each. This was an ex-tinguishment of the original account, and the cash and notes were accepted — in the language of the parties — “in full settlement.”

It is contended, however, that the clause “in accordance with agreement of A. R. Gottschalk” permitted the. plaintiff to show that the notes were accepted upon condition that they would be paid when due. If the payment of the cash.and delivery of the notes was settlement in full, there could be no condition attached thereto, and any testimony tending to prove such condition would contradict the plain terms of the instrument itself. The natural construction of the clause is that the receipt of' the cash and notes in full settlement was in accordance-with an agreement already made by the attorney’s principal. This conclusion is supported by the case of Jackson v. Ely, 57 Ohio St. 450, in which the first proposition of the syllabus is as follows:

“A written instrument in the following terms:
“ ‘15.50. Wooster, Ohio, May 13, 1890.
“ ‘This is to certify that I have this day settled with John Ely, and he has paid me all he owed me, up to this date, and I have no claims or demands against Mm of any kind whatsoever. — MRS. Vm. Jackson/ is not a mere receipt, but contains an agreement to the effect that the parties have come to a settlement of all the accounts then existing between them, and agreed upon the balance due from one to the other; its terms clearly import that all matters of account existing between the parties at the time were included in the settlement;-and as parol evidence which tends to prove that certain -matters of account, then existing, were not included in such settlement, would contradict the writing in this respect, it is not admissible.”

We are of opinion, therefore, that the court erred in receiving testi.mony objected to, and that the answer stated a complete defense to the ■cause of action stated in the petition.

Judgment reversed and cause remanded for new trial.

Jelke and Swing, JJ., concur.


author: GIFFEN, J.

text:
    ERROR — EXECUTION—PARTNERSHIP—SALE—WAIVER.
    [Hamilton (1st) Circuit Court,
    January 30, 1905.]
    Giffen, Jelke and Swing, JJ.
    Michael Sullivan v. Franklin Bank.
    1. Validity of Sale of Partnership Property by One Partner as against Subsequent Levy.
    A hill of sale of all the property of a partnership, executed in the name of the partnership hy one of the partners, without the knowledge and con- ' sent of the other, conveys a valid title as against an officer holding under a subsequent levy of an execution against the partnership, though the property so sold was not kept for purposes of sale, hut for continued use in the prosecution of the business, and though the sale was not ratified hy the nonassenting partner until after the date of the levy.
    [For other cases in point, see 6 Cyc. Dig., “Partnership,” §§ 138-140. — Ed.]
    2. Waiver of Want of Capacity to Sue by Failure to Plead.
    An objection that the plaintiff has not legal capacity to sue is waived hy a failure to plead it, either hy demurrer or answer, and cannot he raised for the first time on a motion for judgment notwithstanding the verdict.
    [For other cases in point, see 6 Cyc. Dig., “Pleadings,” §§ 1772, 1773;
    € Cyc. Dig., “Partnership,” §§ 530, 531. — Ed.]
    3. Failure to Keep Watchman in Charge of Property Levied on and Resumption of Possession by Owner do not.Avoid Levy.
    The failure hy an officer to keep a watchman in charge of property levied on and the resumption of possession and control of such property hy the owners do not in themselves render the levy void. Whether these acts, together with other circumstances, would avoid the levy, is a question of fact for the determination of the jury.
    [For other cases in point, see 6 Cyc. Dig., “Execution,” §§ 187-190. — Ed.]
    4. Erroneous Instructions to Jury Prejudicial when there is Possibility THAT THEY AFFECTED THE VERDICT.
    Erroneous instructions to the jury which may have been the basis of the verdict will he held to be prejudicial although there is a possibility that the verdict was based upon a finding hy the jury, of some other state of facts which would render such erroneous instructions immaterial.
    [For other cases in point, see 4 Cyc. Dig., “Error,” §§ 1738-1746; 2 Cyc. Dig., “Charge to Jury,” §§ 702-781 — Ed.]
    5. Trial Judge not Required to Certify Settlement of Bill of Exceptions, when Allowed as Presented.
    A hill of exceptions is not defective from the fact that the trial judge failed to certify that the same was settled, hut only that it was allowed, signed, sealed and made a part of tlie record, where no controversy-existed concerning it, and it was allowed as presented.
    [For other cases -in point, see 1 Cyc. Dig., "Bill of Exceptions,” §§ 455' 462. — Ed.]
    6. Request foe Interrogatories must Contain- Condition for theib Answer in Case of General Verdict.
    A refusal to submit interrogatories to the jury is not erroneous, where the request therefor contains no condition that the questions, when submitted, shall be answered in case of the rendition of a general yerdiet.
    ERROR to Hamilton common pleas court.
    L. J. Dolle and Constant Southworth, for plaintiff in error.
    Burch & Johnson, for defendant in error.
   GIFFEN, J.

The Franklin bank, as plaintiff, brought an action in replevin to. recover the possession of certain property belonging originally to the firm of McCarren and Dawson, composed of Fr,ank C. McCarren and William C. Dawson, and alleged that the defendant, William C. Williams, constable, wrongfully detains the property from the plaintiff.

' The defendant, by answer, made a general denial, and also set up the levy of an execution upon the property described in the petition. The ownership and right of possession of the bank to the property is founded upon a bill of sale executed in the name of the partnership by one of the partners only, and dated prior to the levy. The nonassenting partner did not ratify the sale until after the date of the levy of the execution.

The special charges of the court present the question whether.one partner without the knowledge and consent of the other, can sell substantially all of the property of the partnership not kept for the purpose of sale, but for continued use in the prosecution of the business.

The plaintiff in error claims that this cannot be done, and cites many authorities outside of this state in support of the proposition, but these afford little aid in view of the fact that our own Supreme Court has repeatedly recognized the conflict of authorities upon the question, and has adopted those only which seem to be supported by the better reason. Reliance, however, is placed upon the case of Holland v. Drake, 29 Ohio St. 441, the syllabus of which is as follows:

“One of the members of an insolvent firm cannot, either before or after dissolution of the partnership, make a valid assignment of all its effects for the benefit of creditors, against the will of a copartner, or without his assent when he is present or accessible.
“When an assignment is so made against the will of the nonexecut-ing partner, or when he is present and not assenting, and he subsequently ratifies tbe assignment, the ratification will relate back to the time' of executing the assignment, and give it effect from that date; but not so as to defeat the rights of third persons, acquired in good faith in the meantime. ’ ’

While there has been no disposition in subsequent decisions to overrule that case, there is a manifest purpose to limit the application of the principle there announced to the facts of the case. Clafflin Co. v. Evans, 55 Ohio St. 183 [45 N. E. Rep. 3; 60 Am. St. Rep. 686]; McAlpin Co. v. Finsterwald, 57 Ohio St. 524 [49 N. E. Rep. 784].

The syllabus in the case of Clafflin v. Evans, supra, is as follows:

“A managing partner entrusted with the sole charge of the business and effects of the firm, may, in case of its insolvency, make a valid assignment of its property for the benefit of its creditors, without having, obtained the consent of the copartner who is a nonresident of the state-where the business was carried on, and absent therefrom; the assent of the absent partner to the assignment, in such ease will be presumed. ’ ’

And on page 190, it is said:

“It is not doubted that one partner may sell any part of the partnership property to one or more of the creditors in payment of the partnership indebtedness, or sell all of its effects to all of its creditors, and if insufficient to satisfy their debts in full, the sale may be so made to them as to secure a pro rata division; and it is not .surprising that authorities are found which strenuously maintain that the power of the partner to accomplish the same result by an assignment to a trustee to make such distribution is included in the agency resulting from the partnership relation. The dissolution of the partnership ensues not less certainly from a sale of the whole of its effects directly to the creditors, than from the transfer to a trustee for their benefit. But we are not disposed to depart from the rule laid down in Holland v. Brahe, supra, nor are we disposed to extend it.”

This dictum is so broad and comprehensive that it would hardly go unchallenged unless the court were of the opinion that it was the law of this state. In the case of McAlpin v. Finsterwald, supra, the proposition of the syllabus is as follows:

“Where, in good faith and for a firm debt, a judgment has been rendered against the firm, by confession, on a warrant of attorney executed in its name and on its behalf by one partner only, without the assent of his copartner, such judgment cannot be impeached or set aside by a creditor of the firm.”

The distinction is clearly drawn in this case between the right of the nonassenting partner of the firm and the creditor of the firm, the former being entitled under certain conditions and by a proper proceeding to question tbe transfer made by tbe other partner, while tbe creditor is not.

Under this decision we are of tbe opinion that the bank acquired a good title to the property by the bill of sale if executed prior to the levy.

The answer contained no new matter constituting a defense, counterclaim or set-off, as the defendant could prove the levy and the execution under this general denial. Bailey v. Swain, 45 Ohio St. 657 [16 N. E. Rep. 370].

The motion for judgment notwithstanding the verdict, was property overruled, because the objection that the plaintiff has not legal capacity to sue, is waived by a failure to plead it, either by demurrer or answer.

The court at the request of plaintiff, charged the jury as follows:

“If you find that the constable, Williams, levied upon the chattels described in the petition, but did not continue to maintain a watchman in charge of the property levied upon after March 20, 1899, but on said date left the same where levied on, with no one in charge thereof, and McCarren and Dawson resumed the possession and control of said property using the same in completing their work on the sewer, and continued to do so up to the time of the commencement of this action, then I charge you that said levy made by said constable became void and of no effect. ’ ’

And in its general charge as follows:

“But when Williams made a levy under this judgment and put Meyers in charge as his watchman, if Meyers left a few days later and no one was put in his place, and McCarren and Dawson later took possession of the property again and continued in this possession until the replevin suit was begun, then Williams’ levy became void.”

The jury would naturally infer from these charges that unless the constable kept a watchman in charge of the property, and prevented McCarren and Dawson from resuming possession and control of the property, whether by his consent or otherwise, the levy became void. Such acts alone were not sufficient in themselves to make the levy void, and whether they, together with other circumstances, would cause the levy to become so, was a question of fact which should have been submitted to the jury. Murphy v. Swadener, 33 Ohio St. 85.

The charges were, therefore, erroneous, but counsel for defendant in error claims that it was not prejudicial for the reason that the jury by their verdict found that the plaintiff was the owner and had the right of' the possession of the goods and chattels taken in replevin, and that they must necessarily have found that the bill of sale was bona iide and not fraudulent; and if the court’s instructions were correct, that one uf the partners bad power to execute tbe bill of sale, then any question of levy or the continuance of the levy became unimportant and not material, for if the bill of sale was lawful, any levy was unlawful and a •charge as to what did or did not constitute an abandonment of the levy became immaterial. This is true if the jury found that the bill of sale was executed and delivered prior to the levy, but under these instructions, the jury may have found that the bill of sale was executed and ■delivered after the levy and before this suit was commenced, and yet returned a verdict for the plaintiff.

It is further claimed that there was no bill of exceptions before this court for the reason that the trial judge did not certify that the same was settled, but only that it was allowed, signed, sealed, and made a part ■of the record. There was no controversy over the bill, but it was allowed .as presented; hence, there was nothing for the court to settle, within the meaning of the statute.

The refusal to submit certain interrogatories to the jury was not erroneous, inasmuch as the request therefor contained no condition that the questions, when submitted should be answered in case a general verdict shall be rendered. Gale v. Priddy, 66 Ohio St. 400 [64 N. E. Rep. 437].

Judgment will be reversed for error in giving the charges above .referred to.

Jelke and Swing, JJ., concur.


author: GIFFEN, J. •

text:
    TAXATION.
    [Hamilton (1st) Circuit Court,
    June 11, 1904.]
    Jelke, Swing and Giffen, JJ.
    Francis C. Davis et al. v. Hamilton Co. (Comrs.)
    1. Incubase in Valuation on Platting of Land.
    Under Rev. Stat. 2797 (Lan. 4183) providing for the revaluation for taxation of newly platted additions to a town, the assessor may fix the aggregate valuation of the lots in excess of the valuation placed upon the land before platted.
    [Por other cases in point, see 7 Cyc. Dig., “Taxation,” §§ 474-476. — Ed.]
    3. _Remedy of Property Owner for Excessive Valuation of Newly Platted land.
    The assessor having exercised his judgment in fixing the valuation of newiy platted lots in excess of adjacent lots, the error being fundamental and not clerical, the remedy of the property owner is by appeal to the city board of equalization and to the county commissioner.
    [Por other cases in point, see 7 Cyc. Dig., “Taxation,” §§ 470-471. — Ed.]

      ERROR to Hamilton common pleas court.
   GIFFEN, J. •

The original application was made to the county commissioner for a refunder of taxes, under Rev. Stat. 1038 (Lan. 2378).

In the year 1890, the plaintiffs in error were the owners of a tract of land comprising about three acres,- which was valued under the decennial appraisement, at $4,480. In November, 1891, it was subdivided into thirty-nine lots, which the annual assessor returned at a valuation aggregating the sum of $24,200. It appearing afterwards that the assessor had, by mistake, returned a valuation* twice as great as intended, it was thereupon reduced to $12,100.

The claim made before the commissioners was, that under Rev. Stat. 2797 (Lan. 4183), the assessor was authorized only to apportion the decennial valuation to the several lots into which the land had been subdivided. The claim was rejected by the commissioners, and upon appeal to the common pleas court, a like judgment was rendered, together with separate findings of fact and conclusions of law. If the contention of counsel that the assessor has no authority to return the valuation upon the lots in excess of the decennial valuation upon the land be true, then the return would undoubtedly be such as the auditor may correct, or call the attention of the commissioners to. Revised Statute 2797 (Lan. 4183) provides as follows':

“Whenever any person or persons shall lay out any town or any addition to any town, he or they shall, before the plat thereof is recorded, present the same to the county auditor, who shall cause the assessor of the proper locality to assess and return the true valuation of each lot or parcel of land described in such plat, in the same manner as new structures are valued; ■ and thereupon such lots or parcels shall be entered on the tax list in lieu of the land included therein; but in making such valuation, regard shall be had to the next preceding decennial valuation of real estate, so that the said lots shall, as near as practicable, be equalized with adjacent lands and lots according to such decennial valuation.”

This provision was first enacted April 6, 1866 (63 O. L. 174; Rev. Stat. 2797; Lan. 4183), “to provide for-the valuation of lands included in new town plats or additions thereto, ’ ’ and was construed in the ease of Mitchell v. Franklin Co. (Treas.) 25 Ohio St. 143. The second proposition of the syllabus is as follows:

“This act should be considered and construed in connection with other statutes, in pari materia; and when so considered and construed, its operation does not conflict witb the provisions of the second section of the twelfth article of the constitution.”

And at page 158, the court say:

“If inequality, however, does, in fact, exist — if the plaintiff’s property is placed on the duplicate for taxation at a higher valuation than other city property of the same cash value, or higher than its true value in money, ample provision is made by statute for their relief. It is. their right and privilege to complain to the annual city board of equalization for redress, and it is the duty of the board to grant them relief. Until, therefore, they exhaust the remedy thus provided by statute, a court of equity should not interfere, in their behalf, by enjoining the collection of the tax. ’ ’

This case clearly recognizes the authority of the annual assessor to return the valuation of a neiv subdivision in an amount greater than the decennial value of the land. But counsel urged, that in order to overcome the effect of this decision, the act was so amended, by the revision of the statutes, as to provide thát in making such valuation, regard shall be had to the next preceding decennial valuation of real estate, so that the city lots shall, as nearly as practicable, be equalized with adjacent lands and lots according to such decennial valuation. Such revision, however, does not change the power or authority of the’ assessor to assess and return the true valuation of each lot, but merely prescribes the rule which shall govern the assessor in the making of such valuation. If it were intended that the assessor should only apportion the valuation of the land to the several lots into which the tract has been subdivided, there would be no occasion to provide for the assessing and returning of a true valuation, or prescribing any rule whereby it should be done. The provision that the assessor shall assess and return the true valuation of each lot, shows that he is to exercise his judgment in arriving at such valuation, and to aid him in arriving at a correct conclusion, as well as equalize said lots with adjacent lands and lots, he is directed to have regard to the next preceding decennial valuation of real estate. The findings of fact show that the valuation of these lots were not equalized with adjacent lands and lots, but the assessor was acting within the scope of his authority, and the error was fundamental and not clerical. The plaintiffs in error were not without remedy, but could have appealed to the annual city board of equalization for redress.

Judgment affirmed.

Jelke and Swing. JJ., concur.


text:
    MASTER AND SERVANT — PLEADING.
    [Hamilton (1st) Circuit Court,
    July 7, 1906.]
    Jelke, Swing and Giffen, JJ.
    City & Suburban Telegraph Assn. v. Neddie Kelly, Admx.
    1. Risk Assumed by Lineman in Stringing Wibes.
    In an action against a telegraph company for* damages for causing the death of its servant, a lineman, from a shock received while» stringing an uninsulated wire in close proximity to heavily charged and uninsulated wires of another company, it is not error for the court to refuse to direct a verdict for the defendant company on the ground that by the exercise of ordinary prudence the servant would not have undertaken to do the work which the decedent was ordered to perform, and should have known that the wires of the other company were charged with a dangerous current and that the wire he was handling might come in contact with them.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 451-482. — Ed.]
    2. Allegations Necessary to Admit Evidence Negligence.
    In the absence of a specific averment that a telegraph company was liable in not supplying its linemen with rubber gloves for protection from possible dangerous currents from other wires or some general allegations to that effect, it is error to admit evidence of such negligence.
    [For other cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 618-621, 635-638. — Ed.]
    Error to Hamilton common pleas court.
    Outcalt & Foraker, for plaintiff’ih error.
    D. D. Woodmansee, for defendant in error.
   GIFFEN, J.

The plaintiff in her amended petition avers that Patrick Kelly, deceased, was in the employment of the defendant company in the capacity of lineman; that while thus employed he was assisting in stringing wires in the city of Cincinnati under instructions of the defendant company, and without fault .on his part was instantly killed by an electric shock which passed through a wire which he was in the act of stringing upon the company’s poles. The negligence, as finally averred, is as follows:,

“Said defendant company was guilty of gross negligence, in that it knowingly undertook to, and did string said wire which was not insulated, in close proximity to the wires of the Miami & Erie Canal Trolley Company, which were uhinsulated and dangerous, being heavily charged with electricity, all of which was known by the defendant, company, its officers and managers and not known to plaintiff’s intestate.”

The defendant by answer admits that plaintiff’s intestate was in its employ in the capacity of a lineman; that he met his death from an electrical shock while in the performance of his duty, bnt denies that, he was unaware of the dangerous character of the work which he was-employed to perform, and avers that the injuries causing his death were sustained without negligence on the part of the defendant company, and were the result of the negligence and want of care of plaintiff’s intestate or of his fellow servant engaged in the work with him; and that the risk of all such injuries was assumed by said intestate; and denies each and every other allegation in plaintiff’s amended petition.

On trial, the jury returned a verdict in favor of the plaintiff.

The first alleged error is the _ overruling of the motion of the defendant at the conclusion of plaintiff’s evidence to instruct the jury to return a verdict for the defendant. While the plaintiff offered in chief no direct evidence of the knowledge of the defendant that the Miami & Erie wires were charged with electricity and therefore dangerous, yet the circumstances were such that by the exercise of ordinary care, it might and would have known of such condition and danger. Jt is claimed, however, that the danger was obvious to the intestate and that he therefore assumed the risk.

We think the case is governed by the principle announced in the case of Van Duzen Gas & Gasoline Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998], the syllabus being as follows:

“1. A servant assumes only such risks incident to his employment as will happen in the ordinarily careful management of the business of the master; such as arise from the fault of the master are not assumed, and the servant may recover for injuries therefrom, unless his own fault .contributed to the accident.
•‘2. One who, as a servant, does that in his employment which he is ordered to do by his master, and is injured by the culpable negligence of the latter, is not deprived of a right to recover for the injury by the fact that it was apparently dangerous, if a person of ordinary prudence would, under the circumstances, have obeyed the order, provided he used ordinary care in obeying it.
“3. In such case the question is one of fact for the jury under proper instructions from the court.”

Although it was apparent that the M. & E. wires were erected for the purpose of conveying electricity, it was not apparent to the linemen engaged in the work that such wires were at that time heavily charged with electricity, nor was it apparent that the wire being strung would come in contact with the M. & E. wire. It seems, therefore, that a person of ordinary prudence would, under the circumstances, have obeyed the order to perform the work as directed. The motion was properly overruled.

The objection to the charge of the court upon the subject of assumed risk is not well founded, as the charge was even more favorable to the defendant than would seem .to be warranted by the case above cited.

Another alleged error is the admission of testimony concerning the use of rubber gloves as a means of avoiding danger in stringing wires. There is no specific allegation in the amended petition that the defendant was negligent in failing to provide” the intestate with rubber gloves, nor is there any general allegation which would warrant the admission of evidence of this character. It will be observed that the allegation of the amended petition is, not that the act complained of was done in .a negligent and careless manner, but that the act done as averred in the petition constituted negligence. There is no averment that the act was done without providing adequate means to protect the intestate, but that there was a failure to insulate the wire being strung. Upon, the trial, the evidence should be confined to the acts of negligence so •specifically and definitely averred in the petition, and we think the ■court erred in receiving the testimony complained of, for which the ;judgment will be reversed, and cause remanded for a new trial.

Swing and Giffen, JJ., concur.


author: «GIFFEN, J.

text:
    EASEMENTS — STREETS.
    [Hamilton (1st) Circuit Court,
    June 20, 1904.]
    Jelke, Swing and Giffen, JJ.
    George W. Lanfersiek v. Cincinnati (City) et al.
    Increased Light and Aie from Opening of Street cannot be Regarded as Benefit.
    Increased light and air resulting from the opening of a street cannot he considered as a benefit arising from a subsequent surface improvement of the same.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 227-234. — Ed.]
    C. E. Tenney, for plaintiff.
    C. J. Hunt, for defendants.
   «GIFFEN, J.

The plaintiff is the owner of a lot fronting on Jefferson avenue ;and abutting 150 feet on Nixon street, which was assessed for the improvement of the street by grading, setting curbs and crossings, flagging and paving gutters, mácadamizing. the roadway,' and constructing ■>the necessary culverts, drains and retaining walls. Five annual installments have been paid, and the plaintiff now seeks to enjoin the ■collection of the remaining five installments, on the ground that the property received no special benefits in excess of the amount paid.

The dwelling house which is situated on this lot was built before Nixon street was opened, and was not designed for use and occupancy upon a corner lot. The approach to the premises from the side street is made difficult and inconvenient by reason of the- steep grade. The ■chief benefit to the property consists in the improved appearance of the surroundings rather than any additional use appurtenant to the land. The real benefit from the improvérnént is derived by the,public, and not the abutting owner.

Much of the testimony that the premises had been increased in value by reason of the improvement was based on the theory that the •added light and air was a substantial benefit. But this was assured without the improvement, and cannot therefore be considered. We are of the opinion that the special benefits received do not exceed the installments paid, and th.at the collection of those remaining should be 'enjoined. „ '

Jetke and Swing, JJ., concur.


author: PER CURIAM.

text:
    NOTICE.
    [Richland (5th) Circuit Court,
    1906.]
    Donahue, McCarty, and Taggart, JJ.
    Bailey & Walters v. Sigmund Peters et al.
    PRESUMPTION IS, THAT A PERSON DOING BUSINESS IN THIS COUNTRY, UNDERSTANDS Its Language. s
    A person who undertakes to do business in this country is presumed to be able to transact business in the language of this country, and if he cannot, it is his duty to make that fact known; and if he does business without making that fact known he does it at his peril.
    [For other -cases in. point, see 7 Cyc. Dig., “Sales,” §§ 286-323. — Ed.]
    ERROR to Richland common pleas court.
    The facts in this ease are as follows:
    Plaintiffs in error sold to defendants in error, at public auction in the city of Mansfield, Ohio, on March 3, 1902, a horse, sold as coming three, sound and broke double.
    Plaintiffs sold the horse under the following rule, which was printed ■and attached to a post near the auctioneer’s box, to wit:

      "Guarantee on all draft horses sold by Bailey & Walters shall expire at 12 o’clock noon of the day following the day of sale,’-’
    That the -auctioneer called the attention of defendants in error and others present at the opening of the sale to this rule.
    That the horse was not returned within the time limit, nor any notice-given of the sickness of the horse until after the death.
    That the horse lived about ten days after the sale.
    Defendants claimed they were Germans and did not understand what the auctioneer said when he called the attention to the rules, admitting that they were present.

      Charge to jury: The plaintiffs bring their action upon a promissory note, which note is set up by copy, and the interest which the note bears is set forth. There is no controversy on the plaintiff’s cause of' action. The plaintiffs, in reckoning the interests, have made rests. You are not authorized to do that. You will reckon the interest right along to the first day of this term of court, and you will find that amount for-plaintiff. .
    ^Then we come to the question these parties have been litigating. The answer, in substance (and you will have it before you, to look at its terms.) sets forth that this promissory note was given 'for the purchase of a horse, and that, as a part of the contract of -sale, this horse was . warranted to be sound; that it .turned out he was not sound, but diseased, at the time, and that, from the disease, he died on the hands of the defendants; that the defendants, in endeavoring to cure him and protect him as against the diseáse, expended some -thirty odd dollars,, but the horse finally died.
    To this claim of defendants, there is a general denial, denying all the allegations of this contract'claim of defendants.
    Although, in terms, there is a denial of the warranty, the attorneys, for the parties now, in open court, admit there was a warranty but claim it was a limited one. So, you will see that the controversy narrows down to, not, in fact, whether there was a warranty, but, Was the-warranty that was made, limited, as the plaintiff’s contend?
    The testimony tends to show that when the horse was put up for sale, the representation was made that this horse was "sound, three years old, and broken.” If that representation was made to induce-the sale of the horse, and it induced the defendants to bid on the horse, it constitutes what we call in law, a warranty. Or, in other words, the-term "warranty,” in warranting a horse, is not necessarily to be used, but any term that clearly imports that one party contracts that the horse 'is sound, and the other buys the horse on the faith of that contract,, that, in law, constitutes warranty.

      We come to the real matter in dispute between the parties. Although not set np in the pleadings in any way, still it is contended under-the denial in the reply — and the reply denies all the allegations of the cross-petition — that although these words were» spoken, and spoken at the time of the sale of the horse, the parties understood that they were-limited by this- notice that was claimed to be hanging on the 'post. As a matter of course, if the. parties knew there was a rule by which these words were limited, and bought with reference to that rule, they are bound by it, as they would be in any other transaction. But it-is contended that the defendant could not read the English language, and that, it was no notice to him. And it is contended that it was. said in English,. ‘ ‘ This sale- is governed by the same rules as heretofore, ” I do not quote the exact language, but the substance of it. You are to look at the parties. Did they understand that the old gentleman was a German and might not understand the English-language clearly? Was there anything occurred to induce them to know that the old gentleman was a. German ? If they knew he was a German, I do not think any presumption. arises that he could read' the English language.
    Gentlemen, treat these parties fairly. If this horse is sold under the warranty that is set up, then the parties are entitled to rely upon that warranty.
    The next question is, Was the horse sound at the time he was sold? As a matter of course, if he was sound at that, time, and he took sick a few miles out, the plaintiff would not be liable on the warranty. But you may look at the condition of the horse in an hour, or a day or two-after the time, he was sold; to determine the fact as to whether or not he was sound at the -time of sale. ' '
    The verdict of the jury was for defendants..
    W. H. Gifford and J. P. Seward, for plaintiffs in error.
    Andrew Stevenson, for defendants in error.
   PER CURIAM.

This is an action to recover on a promissory note.

The. defendants admit the execution of the note but say that the same was executed to evidence the purchase price o-f a horse purchased by the defendants from the plaintiffs on March. 3, 1902; that said plaintiffs, as a part of the consideration of the purchase price of said horse, represented and warranted the same to be- sound and free from disease, but that it was then afflicted with disease which resulted in the death of the horse in a few days or weeks after its purchase. They claim that by reason thereof, there was a total failure of consideration, and that defendants were put to great expense in. the care and treatment and nursing of tbe borse, and burying tbe same, and ask to recover tbe sum of $150 damages, and that sufficient of said damages be counterclaimed and set off against plaintiff’s note, and that they may have judgment for the residue thereof.

Plaintiffs for reply deny generally the allegations of tbe answer and cross petition, and tbe issue so made up was tried to a jury, resulting in a verdict for defendant. Judgment was rendered thereon, and error is prosecuted to this court to reverse tbe same.

Counsel for plaintiff in error urge particularly upon tbe attention of this court, that tbe court below erred in its charge to the jury, and that the verdict is against the weight of the evidence, and we agree with both contentions of counsel for plaintiffs in error.

"We think that the court erred in its charge to the jury, touching the ability of Leopold Peters to read the English language, and in saying to the jury that a copy of the rules printed in the English language was no notice to him, and when inquiring from the jury: “Did they understand that the old gentleman was a German and might not understand the English language?” Further inquiring: “Was there anything occurred to induce them to know that the old German was a German, and in the further statement that if they knew he was a German, there was no presumption that he could read the English language. ’ ’

We are of the opinion that if any man undertakes to do business in any language, he represents, and the parties dealing with him have a right to understand, that he is able to deal in that language unless the contrary clearly appears.

If he was not able to transact business in this country in the language of this country, it was duty to protect himself by securing the services of someone who could aid him in that behalf, and therefore, when he undertook to act for himself, he, in effect, represented that he was able to take care of his side of the business transaction, and there is nothing appearing in this record that would make this case’an exception to the rule.

As to the weight of the evidence, we think it clearly appears by the evidence of the defendant, Leopold Peters, that he knew what the rules were in former sales. True, he does not admit that he understood what the auctioneer said when he said that the rules of former sales should control this one, but claims that he could not understand so much English; yet he does say very clearly that he understood him to say that the horse was sound and well broken.

We think that if he understood that much in his behalf, he ought, to have understood what was said on behalf ■ of plaintiffs; but even if he did not, and he knew that the rules were posted there for the information of purchasers at this sale, and if he knew that they were in a language that he could not read and could not understand, he engaged in the bidding at his peril, if he did not seek information from ■one who could read and could understand.

It was his duty, in other words, to advise himself when opportunity was offered, and if he failed, it was his mistake and not the fault of plaintiffs. ■

The plaintiff had a right to make the conditional warranty contained in the rules, and in sales made under these rules, the limitation thereof necessarily became a part of the contract.

The purchaser is at liberty to buy or not to buy at a sale where such rules are promulgated with such limitations of warranty; in fact the sellers might refuse by their rules to warrant at all, and then the doctrine of caveat emptor would apply; so that if there be a limited warranty the purchaser, in order to avail himself of the terms of the warranty, must comply with the conditions thereof.

Therefore, we are of the opinion that the verdict in this case is against the manifest weight of the evidence, viewing the evidence in ■connection with fhe law that must control.

¥e therefore find that there is error apparent upon the record, to the prejudice of the plaintiffs in error, in the charge of the court as above specified, and in overruling the motion for a new trial on the ground that verdict was against the weight of the evidence.

The cause is reversed for these reasons, with costs, and remanded to the court of common pleas for further proceedings and trial according to law. \

Exceptions of defendant in error are noted.


text:
    ARREST — HOMICIDE.
    [Knox (6th) Circuit Court,
    October 12, 1906.]
    Donabue, McCarty and Taggart, JJ.
    FRANK E. COILE, ALIAS FRANK E. HILDRETH, V. STATE OF OHIO.
    Shooting an Abbesting Officer Abated with a Warrant of Doubtful Legality. That the warrant which the sheriff held for the arrest of a person on the ■ charge of murder was illegal, cannot be interposed as a justification for the premeditated killing of the sheriff when attempting to serve such warrant; the crime charged being a felony, the arrest might have been made without any warrant.
    [For other cases in point, see 1 Cye. Dig., “Arrest,” §§ 119-131, 149-155; .5 Cyc. Dig., “Homicide,” §§ 128-130. — Ed.]

      ERROR to Knox common pleas court.
    F. V. Owen and J. B. Graham, for plaintiff in error.
    ‘ L. C. Stillwell, prosecuting attorney, and W. M. Koons, for defendant in error.
   PER CURIAM.

This proceeding in error is brought to reverse a judgment of conviction of plaintiff in error for manslaughter, rendered in a cause wherein the state prosecuted said plaintiff in error upon an indictment charging murder in the first degree. The plaintiff in error claims that the verdict of the jury is against the weight of the evidence in one .particular only, and waives all other questions touching said assignments of error as to the weight of the evidence; that is to say, that the evidence fails to show beyond all reasonable doubt that plaintiff in error shot deceased.

Without attempting to recite any evidence in this record, it is sufficient to say that, to the mind of this court, the evidence offered by the state was overwhelming upon this proposition. True, a captious doubt, might be raised upon the theory advanced by counsel for plaintiff in error, that the bullet found in the body of the victim did not correspond in every detail with the other bullets found in the possession of the defendant; but there are many reasons why this should not now correspond with such bullets, and there is no reason whatever why he should not have had a different one than any of the others found in his possession. The evidence, to our mind, is overwhelming upon this point, and shows conclusively to us beyond all reasonable doubt that plaintiff in error shot James C. Shellenbarger, and the verdict is, therefore, sustained by sufficient evidence.

The only other question raised in this case is as to the charge of the court touching the legality of the warrant issued by the mayor to Sheriff Shellenbarger. We think that all the questions raised, touching the legality of this warrant are of little or no importance now, because the plaintiff in error was only convicted of manslaughter. If he had been convicted of murder in the first degree, perhaps the legality of the warrant might become of serious importance, but this record shows the fact that this plaintiff in error armed himself to resist any arrest, and for nearly a whole day premeditated the killing of any officer armed with any warrant that might come to arrest him, and the theory that he at the time doubtecj. the legality of this warrant and for that reason offered resistance is not credible. We think that plaintiff in error did not testify to the truth in that behalf, and that his testimony touching that question is contradicted by every other circumstance in the case as well as by his own evidence touching his conduct on that day.

Upon the question of civil liability of an officer for false imprisonment, the legality of the warrant is of prime importance, but as a defense to the killing of an officer acting in good faith and armed with what upon its face appears to be a legal warrant, although in fact it proves to be defective in some particular, or even void, may or may not become important, owing to the circumstances of the ease. Under no circumstances could the party threatened with arrest upon such a warrant, do more than offer force commensurate with the danger threatened, and if he knows that the officer is the sheriff of a county and acting in that capacity, the mere fact that he will arrest him and hold him without inflicting any personal violence, will not authorize his using a deadly weapon upon such officer. The arrest, under such circumstances, becomes a mere detention, and while it may be unlawful it is not such an invasion of his rights, or such an offer of personal violence, as would justify him in using a lethal weapon. But suppose the contention of counsel for plaintiff in error is correct, yet the facts and circumstances of this case show that before any personal violence of any kind or character was offered, this man, who had already armed himself and threatened to kill any officer coming with any warrant to arrest him, drew this deadly weapon and fired upon the sheriff, and we leave it to some, other court to say that the shooting of the sheriff under such circumstances was justifiable, and that the person committing such violence ought not to be punished therefor.

The claim that a killing under such circumstances would not at least be manslaughter, is not a correct statement of the law. It is at least that, and as we view the record, it was murder in the first degree. Conceding the illegality of this warrant, yet this officer of this county was fully advised of the crime then charged against the plaintiff in error, and had a right, under the statutes of this state, to arrest him without a warrant and hold him until a legal warrant could be obtained, and the mere quibble touching the technicality of this warrant cannot avail him to escape the consequences of the crime that he premeditated for hours preceding its accomplishment, for it clearly appears from this record that he had a fixed, settled and deadly purpose of killing any officer or any person armed with any warrant coming there to effect his arrest. IVe are surprised that a verdict of manslaughter instead of murder in the first degree was returned by the jury in this case, and if we were authorized to reverse the verdict for any reason that would not prejudice the state in the prosecution of this crime we would be glad to do so; but we are now dealing with errors assigned by the plaintiff in error; therefore the judgment of the common pleas court will be affirmed, with *osis. Exceptions cf plaintiff in error .are noted.


text:
    TAXATION.
    [Hamilton (1st) Circuit Court,
    June 11, 1906.]
    Jelke, Swing and G-iííen, JJ.
    Hamilton Co. (Comrs.) v. George F. Albers et al.
    1. Taxation of Land Dedicated for Streets.
    When land lying within a city has been platted into lots and streets as an addition to the town or city, the owner cannot claim a refunder of taxes for a proportionate part of the land dedicated to the public for Stl’GStS.
    [For other cases in point, see 7 Cyc. Dig., “Taxation,” §§ 863-865. — Ed.]
    2. Right of Auditor to Direct Assessor as to Valuation of Real Property.
    A direction to the assessor from the county auditor to appraise newly platted lots at a value, in the aggregate, not less than a certain valuation fixed by the auditor is such an error as will invalidate the appraisement if the assessor was in any way influenced by such direction.
    [For other cases in point, see 7 Cyc. Dig., “Taxation,” §§ 384-389. — Ed.]
    Error to Hamilton common pleas court.
    Ampt, Ireton & Collins, for defendant in error.
    Cobb, Howard & Bailey, for defendants in error.
   GIFFEN, J.

The defendants in error, George F. Albers and Henry W. Kahle, were the owners of a tract of land of ten and one-half acres, the decennial appraisement of which was $11,860. August 14, 1891, they presented to the county auditor a plat, subdividing this tract into fifty-seven lots. The auditor referred the same to the annual assessor and directed him to appraise the lots so that the aggregate tax valuation of said lots should not fall below $18,860.

Subsequently, the assessor returned said subdivision to the county auditor, and valued said fifty-seven lots separately, the valuation aggregating $21,410.

An application was made to the county commissioners for a re-funder of taxes paid on the decennial valuation of that part of land dedicated to the public for street purposes, amounting to $2,970, and upon the amount of $7,000, being the difference between the decennial appraisement as shown by the record, and that given by the auditor to the annual assessor. The claim was rejected by the county commissioners, and upon appeal to the court of common pleas, the taxes paid on that part of the land dedicated was allowed and the balance disallowed. The commissioners have filed their petition in error, and Albers et al. a cross petition in error.

In addition to the questions this day decided in the case of Davis v. Hamilton Co. (Comrs.) 28 O. C. C. 817, one is presented by the petition in error, to wit: "Whether the value of the land dedicated for street purposes should be deducted from the decennial valuation, and a re-funder be allowed of the proportionate amount of the taxes paid on the whole ? The other by the cross-petition, to wit: "Whether the error of the auditor in directing the assessor to return a valuation of not less than $18,860 while the decennial valuation was only $11,860, was such an error as could be corrected, under Rev. Stat. 1038 (Lan. 2378).

There is no authority under Rev. Stat. 2797 (Lan. 4183) to return the land embraced in the streets for taxation, but the lots shall be entered on the tax list in lieu of the land. There is no finding of fact that the defendants in error paid taxes upon any of the land dedicated, although, under its conclusions of law, the court states that the appellants paid taxes on the property embraced in the streets. "We understand the contention of counsel to be, that upon filing the plat with the auditor, it was his duty to deduct from the decennial valuation of the tract of land a proportionate value of the land dedicated to public use.

If our conclusion in the ease of Davis v. Hamilton Co. (Comrs.) supra, is correct, the valuation of the lots in the subdivision is left to the judgment of the assessor, subject to the limitation that he have regard to the next preceding decennial valuation of real estate.

The purpose of subdividing land into lots and dedicating the streets, and the result which usually follows, is to add value to the lots abutting on such streets, and if the assessor should so find, it would be his duty to assess and return the valuation accordingly. We are of opinion, therefore, that the court erred in allowing the claim for taxes paid on land embraced in the streets.

The direction ■ given by the auditor to the assessor to return a valuation of not less than $18,860 was clearly erroneous, and if it fully entered into the judgment of the assessor in fixing a valuation upon the - several lots, it would be such an error as was contemplated under Rev. Stat. 1038 (Lan. 2378), but there is no finding of fact showing that the assessor followed the directions given, except as may be inferred from the valuation returned. The total valuation returned was $21,410, which is $2,550 in excess of the sum below which the assessor was directed not to value the lots.

While we have no doubt that the instructions given influenced to some extent the judgment of the assessor, it would be impossible to determine to what extent or in what amount the valuation was thereby increased. Judgment will therefore be affirmed in part and reversed in part.

Jelke and Swing, JJ., concur.


author: HULL, J.

text:
    BRIDGES — MUNICIPAL CORPORATIONS.
    [Lucas (6th) Circuit Court,
    February 27, 1905.]
    Hull, Haynes and Parker, JJ.

      Harvey P. Platt v. Toledo (City).
    Regulation- by City of Manner of Driving over Bridges.
    Under original Rev. Stat. 2640 (see Lan. 3923; B. 1536-131) a city council had power to pass an ordinance prohibiting drivers of vehicles from passing over bridges on the left side and to impose a fine for its violation.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporation,” §§ 2018-2058. — Ed.)
    ERROR to Lucas common pleas court.
    W. H. A. Read, for plaintiff in error.
    U. G. Denman, city solicitor, and F. G. Crane, assistant city solicitor, for defendant in error;

        Affirmed, (unrep.) Platt v. Toledo, 51 Bull. 426; 75 O. S. 000.

   HULL, J.

Mr. Platt was prosecuted in the police court of this city for the violation of an ordinance passed for the purpose of regulating and controlling the bridges of the city, the manner of using them and driving over them. Mr. Platt was arrested for the violating of this ordinance in the manner in which he drove over the Cherry street bridge, which extends across the Maumee river. The ordinance prohibited driving over bridges, including the Cherry street bridge, on the left-hand side, but required all drivers to keep to the right-hand side, and also prohibited anyone driving upon the bridge from going by or passing ■another person driving in the same direction. Mr. Platt, in the affidavit, was charged with having violated these two provisions of the ordinance, to wit, that he had passed over the bridge on the left-hand side and that he passed by others going in the same direction. He was tried before Judge Wachenheimer, in the police court, found guilty and fined five dollars and costs. A bill of exceptions was taken from the police court to the court of common pleas, where the judgment of the police court was affirmed. Then error was prosecuted to this court.

The plaintiff in error contends that the city had no power to pass such an ordinance.' The case seems to have been argued below mainly upon the power granted the city under original Rev. Stat. 1692, Subdv. 10 and 13 (see Lan. 3102; B. 1536-612), relative to the control that is given to municipal corporations over vehicles for hire. This has been changed to some extent in the new code so as to cover vehicles not for hire, but this transaction occurred before the new code was enacted. in tbis court it was argued by defendant in error that the city had this power under original Rev. Stat. 2640 (see Lan. 3923; B. 1536-131), which provides that:

“Council shall have the care, supervision and control of all public highways, streets, avenues, alleys, sidewalks, public grounds, bridges * * * within the corporation, and shall cause the same .to be kept open and in repair and free from nuisance.”

It will be observed that this statute commits to the municipality the care, supervision and control of all bridges within the corporation. It seems to us that that carries with it the power to pass all necessary ordinances looking toward the care, supervision and control of bridges. The city would be powerless to supervise and control bridges without the passage of ordinances, with that end in view. It is not necessary to give a definition of the word “control;” the best definition of “control” is the word itself: it means the control'in the care of bridges in all reasonable ways. This statute gives to the city the supervision, also as well as the control, of the bridges and highways and their care. It evidently means that, the city shall have power to do all that is necessary to control and supervise the bridges and the use of them, and as long as it exercises that power in a reasonable manner it is within this statute, and we think that an ordinance directing the manner in which drivers ■of teams shall pass over public bridges, is a reasonable exercise of this power. It is necessary, for good order in the use of bridges of this •character in a city of this size, where thousands of people are passing •over them daily, as in this instance, that there should be some provision ,as to the way in which drivers shall pass over the bridge. One of the most important things is to require all those coming from one direction to pass on one side and those coming in the other direction to pass on the other side, to avoid collisions, disorder and injury, perhaps to life.

The evidence in the bill of exceptions shows that when Mr. Platt, •came up to the bridge the right hand side of it was full of vehicles, with none on the other side, the draw being open, and, instead of taking his position in the procession, he passed over and across the street railway track which lies in the center to the left hand side and drove up to the open draw so that he was the first one to go over the draw when it was closed. There is no material dispute as to the facts, and in doing thus he did pass other teams on the bridge, which is prohibited' by the ordinance. He drove alongside of them as they were standing .still. The ordinance is not claimed to be unreasonable, but it is attacked on tbe ground that the city had no power to pass it. We are nof required to determine whether the city has power to. prohibit anyone from going past another person driving in the same direction on the-bridge. We might conceive of cases where this might seem unreasonable; for instance, to prohibit a man with a light buggy from passing a wagon with a load of hay on it, but it is not necessary to consider that. The provision of the ordinance requiring drivers to always take the right-hand side Mr. Platt violated, and it is clearly reasonable and proper, and, for a bridge like this, we may say a necessary regulation. It may be true, as claimed by counsel for plaintiff in error, that the city did not have power to pass such an ordinance as this under the old code —original Rev. Stat. 1692, Subdv. 10 and 13 (see Lan. 3102; B. 1536-612), which relate to vehicles used for hire — but the power to pass it under original Rev. Stat. 2640 (see Lan. 3923; B. 1536-131) is clear. We cite as sustaining oür holding in White v. Kent, 11 Ohio St. 550. The judgments of the lower courts are affirmed.

Haynes and Parker, JJ., concur.


text:
    DAMAGES — TRIAL.
    [Hamilton (1st) Circuit Court,
    July 14, 1906.]
    Jelke, Swing and G-iffen, JJ.
    Madisonville (Vil.) et al. v. Rosser & Castoe et al.
    1. Instructions as to Issues Necessary eor Special Verdict.
    A special verdict being requested, the court is bound to instruct the jury as to the issues in the case and the proper form of the verdict and the specific facts to be found.
    2. Instructions as to Measure oe Damages for Failure to Execute Contract-According to Specifications.
    The proper instructions as to the amount due on a contract to build a water tower and tank, the answer alleging failure of the contractor to-comply with the specifications, is the diminished value of the tank and tower by reason of the failure to conform to the specifications, but the instruction that the jury should find the amount of money it would tako-to make such tower and tank conform to the specifications is improper.
    [For other cases in point, see 3 Cyc. Dig., “Damages,” §§ 983-986. — Ed.]
   GIFFEN, J.

This action is founded upon a contract for the construction of a water tower for the -village of Madisonville. Plaintiffs below, in theii amended petition, aver that they performed their part of the contract in accordance with the plans and specifications, and aver that said specifications provided, among other things, that no payment shall be made until the engineer has approved the same, and that he has- and does withhold, upon insignificant and frivolous grounds, and therefore' wrongfully and unreasonably, his approval of the payment in full upon said contract, but insists upon a large and unreasonable reduction on the contract price thereof.

The defendants, by answer, admit that the engineer has refused to. approve payment, but deny each and every other allegation.

At the request of the defendants the jury was instructed to return a special verdict, upon which the court rendered judgment for the-entire amount claimed less five dollars for the value of a pressure gauge, which the plaintiffs failed to provide according to the contract.

The plaintiffs requested that a' special instruction be given to the’ jury, that in the event the jury find that the plaintiffs had failed to build a tower and tank in accordance with the plans and specifications, they also find on the evidence certain specified facts, which the court refused. At the conclusion of the general charge the defendants excepted to the same for the reason that it did not point out the particular issues and questions of fact to be determined by the jury, and after the jury returned its verdict the defendants requested the court before the jury was discharged, to direct the jury to retire and consider ■and return its findings on certain specified facts-relative to the issue, which the court refused and to which the defendants excepted.

The jury was instructed in general terms to ascertain and find in its verdict, the facts necessary to a determination of the case, but the court nowhere pointed out to the jury the precise issues, nor the facts, which when ascertained, would leave nothing for the court but to draw from them conclusions of law. It is said in Balt. & O. Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071], that-

“In submitting a ease to the jury, it is the duty of the court to separate and definitely state to the jury, the issues of fact made in the pleadings, accompanied by such instructions as to each issue as the nature of the case may require.”

This is required when a jury return a special verdict no less than when the verdict is general. Indeed, it would seem from Rev. Stat. 5200 (Lan. 8709), which defines a special verdict, that it is even more essential that the jury should be fully instructed as to the facts which they are required to find, and upon which only the court can render judgment.

We see no objection to the special instruction requested after the ' argument, unless it be the fourth subdivision, which required the jury to find the amount of money it would take to make such tower and tank conform to the specifications.

The bill of exceptions does not contain any evidence, nor does the special verdict disclose whether the tower and tank could have been . made to conform to the specifications without rebuilding the entire tank, and a more appropriate finding would have been the one suggested to the court after the verdict was returned and before the jury was discharged, to wit:

“The diminished value of said tower and tank, by reason of the failure to conform to the specifications as set out in finding three.”

With this exception, we think the court erred in refusing to give the special instruction, inasmuch as the court failed to instruct the jury upon this subject in its general charge. It appears from the record that the court was under the impression that counsel for plaintiffs having submitted- a form of special verdict, and the defendants having likewise submitted a special verdict, thereby the jury were fully instructed as to what facts they were to return in the verdict, but manifestly the forms presented by the respective parties differed, each submitting the one most favorable to his theory of the case, and the jury were allowed to make any finding from either of the forms, and add others such as they might deem essential, without any instruction from the court as to what were necessary and essential to enable the court to draw conclusions of law. To illustrate the effect of the failure of the court to charge as requested, the jury returned as one of its findings that the engineer refused to finally approve the payment for the job, which was already admitted by the pleadings, and failed to find upon what grounds the refusal was based, although put in issue by the answer.

There is no finding whether the plaintiffs through inadvertence or wilfully furnished bent and crooked columns and left the surface of the abutting posts not in contact at all points, and painted the tank inside and out before being inspected and tested. We think, however, it may fairly be inferred that it was not done wilfully, and that there was a substantial performance of the contract, but this does not relieve the plaintiffs from deducting from the contract price such loss or expense incurred by the defendants by reason of such defects and violation of the contract.

We think it may fairly be assumed that the defendants did sustain loss thereby, and they were entitled at least to an affirmative finding of the amount, if any, thus sustained.

Judgment reversed and cause remanded for a new trial.

Jelke and Swing, JJ„ concur.


author: SWING, J.

text:
    CONVERSION.
    [Hamilton (1st) Circuit Court,
    March 17, 1906.]
    Jelke, Swing and Giffen, JJ.
    H. L. Mackey v. George W. McAlpin Co.
    CONVERSION op Chattel by Second Mortgage.
    The taking possession and holding of a piano hy a second mortgage, to the exclusion of a prior mortgagee, is a conversion of such property.
    [For other eases in point, see 2 Cye. Dig., “Conversion,” § 27. — Ed.]
    ERROR to Hamilton common pleas court.
    Phares, Gusweiler & Rosenberg, for plaintiff in error.
    D. D. Woodmansee, for defendant in error.
   SWING, J.

This action [H. L. Mackey, doing business as the Cincinnati Mortgage Loan Company, v. the George W. McAlpin Company] comes into this court on error to the judgment of the court of common pleas. In that court, the George W. McAlpin Company brought suit against the plaintiff in error for the sum of $272, being the alleged value of a certain piano, which the said George W. McAlpin Company claim was their property, and which was wrongfully converted by the said plaintiff in error. In that court the case was tried to the court without the intervention of a jury, and the court rendered judgment in favor of the plaintiff in error for the full amount claimed.

The principal error relied upon by plaintiff in error in this court is, that the judgment of the court was not sustained by sufficient evidence. In the case of Balt. & O. Ry. v. O’Donnel, 49 Ohio St. 489 [32 N. E. Rep. 476; 21 L. R. A. 117; 34 Am. St. Rep. 579], the following statement is made in the second proposition of the syllabus:

“Any wrongful exercise of dominion over chattels in exclusion-of the rights of the owner, or withholding of them from his possession under a claim inconsistent with his rights, constitutes a conversion. ’ ’

The evidence in this ease shows that the McAlpin Company had a mortgage on the property for the amount claimed. It also shows that the plaintiff in error had a mortgage on the property in the sum of $34.50; that the mortgage of the McAlpin Company was prior in date to the mortgage of the plaintiff in error. One Mr. Berry was a general owner of the piano, having purchased the same from the George W. McAlpin Company, and said Berry had possession of the property. He moved out of the -building in which he resided and in which he had the piano, leaving the piano, without notifying either the McAlpin Company or the. plaintiff in error. Thereupon plaintiff in error took possession' of the piano and removed the same from the building, and stored the same with one Pagels. It fairly appears from the evidence that at the time plaintiff in error took possession of the property, he had no personal knowledge of the prior lien of the McAlpin Company, but shortly after he took possession of the piano, he was informed by the attorney of the McAlpin Company that the McAlpin Company had a prior lien; that the mortgage was on record.

Some time after this, the McAlpin Company made demands on plaintiff in error for the property, with which demand plaintiff in error refused to comply. He not only refused to comply with the demand for the return of the property but also refused to inform the McAlpin Company where the piano was. More than a month after the piano was taken possession of, the McAlpin Company brought this suit as for a conversion.

It seems to us that these facts clearly bring the case within the rule of law as announced in the case above referred to. While the evidence does not disclose that at the time the plaintiff in error took possession of the property, there was any intention to assert any dominion over the property to the exclusion of the McAlpin Company, yet such really was the fact, because the McAlpin-Company had the prior claim to the property, and it seems to us that if plaintiff in error intended to disavow its. taking upon the discovery of the fact, even if he was not chargeable by the facts as disclosed in the record, it was incumbent upon the plaintiff in error’ to have disavowed the claim and to have tendered to the McAlpin Company the piano. But instead of doing this, he still persisted in exercising dominion over the property in defiance of the claim of the McAlpin Company, and thereafter the McAlpin Company were justified in treating the act as one of conversion as far as they were concerned.

Judgment will therefore be affirmed.

Jelke and Swing, JJ., concur. .