text:
    LANDLORD AND TENANT
    [Cuyahoga (8th) Circuit Court,
    April 1, 1899.]
    Marvin, Caldwell and Hale, JJ.
    George V. Muth v. Fanny Wrubel.
    1. Liability for Rent Where Premises Become Uninhabitable through Natural Decay.
    Section 4113 R. S. (Sec. 8521 G. C.), is for the relief of ignorant and indifferent lessees who fail to protect themselves through a special provision in their lease, and does not relieve the lessee from liability for rent, when the premises become uninhabitable through gradual decay resulting from the ordinary action of natural or human agencies.
    2. Charging Repudiation of Contract on Refusal to Perform not Erroneous.
    It is not error to charge the jury that defendant had repudiated his contract, when he had refused to perform his contract and claimed that through the operation of law the contract was no longer in effect.

      Kerruish, Chapman (6 Kerruish, for plaintiff in error.

      Burton & Drake, for defendant in error.
   MARVIN, J.

This is a proceeding in error seeking to reverse the judgment of the court below in an action wherein Fannie Wrubel brought suit against George V. Muth to recover for the breach of a contract which she says was originally entered into between herself and a man by the name of Acnovitch.

Fannie Wrubel was the owner of certain property on Lorain street in the city of Cleveland. She entered into a written contract of lease with Aenovitch, by which he was to have the property for the period of five years, beginning on the 1st of September, 1891. The lease had the ordinary clauses and terms and in addition it had a clause that all repairs upon the property should be made by the lessee. The rent was four hundred and eighty dollars per year, to be paid the first day of every month —forty dollars per month.

The lease was acknowledged by Fannie Wrubel before a proper officer. On the back of that lease Muth made this endorsement :

“I hereby guarantee the payment of the rent within stipulated, for the entire time of the lease and further guarantee the performance on the part of the lessee, his heirs and assigns, of all the conditions herein expressed.
“But it is expressly understood that if the said Abe Acnovitch fails or should violate the obligation of this lease or if the said lessee, Aenovitch, fails to sell other beer than the goods produced by Geo. V. Muth, as long as the same is marketable, then this lease shall be null and void and the said Geo. V. Muth shall have full control of the same, otherwise it shall be in full force. ’ ’

This case was in this court onee before and it was then said and agreed, and is now, that the words here used in this endorsement do not express what was intended by the parties. The evidence shows that Muth was operating a brewery; that the place leased was a place where brewers’ goods were sold, and that what Muth meant to provide here was, that if Aenovitch failed to sell the goods manufactured by Muth the lease would be null and void, and Muth could become the lessee. So that this endorsement is to be treated as though it expressed an agreement that if Aenovitch forfeited his rights, then Muth became lessee; and when Aenovitch failed to sell goods manufactured by Muth and whenever he failed to perform the conditions on his part to be performed, he, as lessee, would lose his rights under the lease.

The petition sets forth that Aenovitch, having occupied the premises for a time, gave up the possession to Muth and Muth took possession and kept possession for a time, and then repudiatecl the contract. Then Wrubel sought to recover damages by reason of such repudiation, and recovery was had in the action. The defense was that Muth was justified in refusing to go on under the lease, by reason of the fact that the premises were utterly unfit for occupancy or use; that at the time notice was served, to-wit, on October 29, 1892, this house was then in an utterly ruinous, dilapidated and uninhabitable condition; that it was entirely unfit for any person to live in; that the sides had bulged out; that it had sagged down in places and was in a falling condition, and was not only unfit to live in, but it was dangerous for any person to remain in it; that a hole beneath it, which many years before was a cellar, had been filled with ashes; that there was no sewerage; that the house had sunk down upon one side; that the floors were rotten and utterly worthless, with great holes through them, and that the partition had fallen down inside, and that it was in a rotten and utterly worthless condition, and in such a condition that the only advisable thing to do with it was to tear it down or to set fire to it; that it was incapable of repairing.

He sets up further that he gave notice to Wrubel that he abandoned the premises because of this condition of the property, and delivered up the possession and gave the key to her, and that she accepted the possession.

On the trial of the action it was sought on the part of the defendant to prove that these premises were uninhabitable and unfit for occupancy, not by reason of any destruction of the elements, by fire or hurricane or the like, but, as set out in the answer, that they became uninhabitable.

Relief is sought by reason of. Sec. 4113 R. S. (Sec. 8521 G. 0.), which reads:

“The lessee of any budding which, without any fault or neglect on his part, is destroyed or so injured by the elements, or other cause, as to be unfit for occupancy, shall not be liable for the payment of rent to the lessor or owner thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant; and the lessee shall thereupon surrender possession of the premises so leased. ’ ’

In the case of Hilliard v. New York & Gas Coal Co., 41 Ohio St., 662 (52 Am. Eep. 99), this statute was construed, and on page 669 the court uses this language:

“The evident design of the act was to relieve the ignorant and indifferent who might fail to protect themselves by special provision in their lease, against the evil and mischief of the common law, which held the tenant liable for rent although the demised premises were destroyed by fire, flood, tempest or otherwise, unless he was exempt from liability by some express covenant in his lease.
“The destruction or injury, within the purview of the statute, is not that gradual decay which results from the ordinary action of the elements nor injury resulting from the ordinary action of human agencies, which a lessee is supposed to have in view when he enters into his contract. The statute is designed rather to protect the lessee against an unexpected and unusual action of the elements or of human forces, causing a total destruction of the demised premises or an injury thereto only short of a total destruction, which the parties ignorantly or inadvertently failed to anticipate and provide against when the demise was made.”

And the court then quotes from a decision in the state of New York under a similar statute, Suydam v. Jachson, 54 N. Y., 450.

The defendant below attempted to show, not that there had been a destruction by the elements, but that by reason of faulty construction and the ravages of time the building had become uninhabitable and unfit for occupancy. Clearly that was not, in the language of the Supreme Court, an ‘ ‘ unexpected and unusual action of the elements or of human forces. ’ ’

A large part of the objections to the admission of evidence on the part of the defendant below is disposed of by this construction of the statute. Quite a number of witnesses were offered on the part of the defendant below, to show how badly decayed this property was because of the ravages of time, and, perhaps, of misuse by prior tenants.

This the court refused, and properly refused, unless we misconstrue the statute.

It was proposed to introduce in evidence a certain notice that was not properly identified. As we understand the statute that would not have availed him. Aenovitch occupied this property some time after the lease was made; he thereafter left the occupancy of it, and others went into the occupancy; rent money was paid to Mrs. Wrubel by Muth during the occupancy of other tenants, or part of the time; Muth says he got this money from other tenants and paid it over to her. Mrs. Wrubel testifies that she had a conversation with Muth after Aenovitch had left. This is what she says:

‘1 i went to Mr. Muth and I told him Aenovitch sold out the place to Mr. Rock, and he said ‘No, I am the leaseholder, and I keep this place; I take possession of the place. You are satisfied, Mrs. Wrubel?’ ‘Yes, when I would not be satisfied, I would take Gehring or Sclather.’ He says ‘You will find out what kind of a tenant I am. You will never have your place in such a condition as it is now. You don’t need to come after the rent every month. You get your rent.’ And Mr. Muth done so for twelve months, a whole year.”

Mrs. Wrubel is nowhere contradicted as to what she said that Mr. Muth said to her. Muth did not deny that he told Mrs. Wrubel, the owner of the premises, that he had become the lessee of' the premises.

It is urged on the part of the defendant, that this endorsement was made long after the lease and that it was made without any consideration. As we look at the case it is indifferent whether it was made at the time of the execution of the lease or later.

One other thing is said on the part of the defendant below, that is, that this lease was not acknowledged by any one. Really, the statute does not require any one to acknowledge a lease. The lessee does not acknowledge it. The statute expressly provides that it must be acknowledged before an officer, where the lease is for a given period of time. But there is a condition expressed in this endorsement of guarantee, a consideration, to-wit, that the beer manufactured by Muth shall be the only beer sold in this place of business. Muth was given that consideration, the selling of his beer; but he told Mrs. Wrubel, so she testifies, when he took possession, that he was the lessee; he paid the rent to her thereafter, and nobody denies it. So we think the date of the endorsement is a matter of indifference. ■

It is complained that the court erred in its charge to the jury, to the prejudice of the plaintiff in error, in that he said to the jury that there was an acknowledgment on the part of Muth that he received a consideration. The court did not mean to say, or at least we would not be justified in understanding the court to use the word “consideration.” But Muth, not only by his endorsement, but by his testimony upon the stand, shows that he made that endorsement; that he made it that he might be insured that his beer should be sold at this place of business, and the court meant that that acknowledgment of that fact showed his consideration. We think the court was right about it.

It is urged that the court erred in charging as follows:

“It is alleged that on or about October 29, 1892, the defendant repudiated this contract and denied any and all liability theron, and refused, to perform the terms and conditions of the same. And this is admitted by the defendant. ’ ’

This is expected to. It is said that he did not admit all that; that he did not repudiate the contract. It is urged on the part of the plaintiff in error, that he said, “By reason of the laws of Ohio, there is no longer a contract between us, which I am bound to perform. ’ ’ But he says he refused to be bound by the contract; that he insisted he was no longer bound by the contract —and that that makes all there is of his charge. There is no error to his prejudice in that.

‘ ‘ The court, in its charge, further says, and it is complained of:
“The measure of damages is the difference between what was agreed to be paid per month for these premises, which was guaranteed by the defendant, and the amount which the plaintiff received from the premises after the breach of October 29, 1892. When the breach occurred, when the defendant repudiated any further liability under this agreement, then it was the duty of the plaintiff and she had a right to rent the premises and to see that it was kept remunerative, and to reduce — as far as the reasonable exercise of prudence on her part would — the damages which would flow by reason of his breach of the contract. She says she did that, by renting the property. ’ ’

It is said that the court states that the defendant had repudiated the contract. The court was justified in saying this by the defendant’s own testimony; by his own showing he says he repudiated it. He did not claim that he was any longer bound by it; he claimed it was no longer habitable; he did not claim it was injured by the elements or injured in any other way than might naturally and properly be expected by the ravages of time, and it had probably become unfit for use for those very reasons.

The plaintiff below, as a matter of fact, did lease the premises'and get what rent she could out of it, and, before terminating the lease of the grantee, she sold the property, and the court limited her recovery of damages resulting from the repudiation of the contract to the time prior to and ending with the time she sold the property, and also reduced the amount by the difference she had been able to get out of the property after the discontinuance on the part of Mr. Muth to pay any rent.

Ve think the charge was clearly the law, and that the ruling on evidence was the proper ruling.

There was an agreement as to what should be paid. Unless the defendant was justified in giving up this property, then that agreed price between them was a matter to be taken into consideration in determining the damages. That, the court instructed the jury, should be done.

We think the judgment was right and there was no error in the proceedings.

Caldwell, J., concurs.

Hale, J., not sitting.


source: Caselaw Access Project

author: CALDWELL, J.

license: Public Domain

text:
    BRIDGES — COURTS—NAVIGABLE WATERS
    [Ashtabula (7th) Circuit Court,
    March 23, 1901.]
    Caldwell, Hale and Marvin, JJ., Eighth Circuit Sitting
    State, ex rel Humphrey v. Lake Shore & M. S. Ry.
    1. Hand Draw Bridge over Navigable Stream not Reasonable.
    A draw bridge which is operated by hand and which requires the efforts of thirty men to move it, resulting in long delays for vessels seeking to pass it, is not a compliance with a decree ordering the construction of a “suitable” draw bridge at that point.
    2. Jurisdiction of State Courts over Navigable Stream.
    Until the United States assumes jurisdiction over navigable waters wholly within a state, the state has jurisdiction over them and the state courts may make and enforce decrees regarding the use of them.
    3. Suitability of Draw Bridge Judicial Question.
    The fact that plans for a draw bridge were approved by the Secretary of War and by the state board of public works, does not prevent the court from requiring a different motive power from that supplied, when the plans submitted and approved did not disclose the motive power for moving the draw.

      Goulder & Holding and Burton & Bake, for plaintiff.

      Brewer, Cook & McGowan and Judge Green, for defendant.
   CALDWELL, J.

An action was brought in this court by the plaintiff against the defendant to require the defendant to remove a bridge that it had and was occupying over the navigable waters at Ashtabula Harbor.

In that ease the question was tried as to whether the waters were navigable or not and to what extent. This court decreed in that ease that the waters were navigable above the bridge and that the bridge interfered with the navigation of waters, and ordered the bridge to be removed and left it to the option of the railway company to either build its bridge above the navigable waters of the river or to build where the one then existing was, with a suitable draw in the bridge. That case was carried to the Supreme Court of this state by the defendant, in which court this court was affirmed, Lake Shore & M. S. Ry. v. State, 1 O. S. U. 285 (33 Bull. 169), and the defendant then carried the case to the Supreme Court of the United States, where the courts of this state were affirmed. Lake Shore & M. S. Ry. v. State, 12 O. F. D. 1 [165 U. S. 365; 41 L. Ed. 747],

The railroad company thereafter proceeded to build the bridge in question. The evidence shows that they found a bridge that had been constructed for other parties and for a different place, and bought that bridge; that the bridge was 360 feet long and, by putting the pier on one side of the channel, it left an arm to be operated over the channel of the river substantially 180 feet long. While it seems to us that that length of bridge was entirely unnecessary for this place and especially for the present uses, yet we are not called upon to condemn the same for that reason, nor could we do so, for the railroad company had a right to anticipate a growth of business and future conditions of the harbor.

This action is now brought by way of proceedings in contempt against the railroad company for having at Ashtabula Harbor a bridge with a draw that can not be operated by the means employed by the railroad, without much interference with vessels passing through the same, and much injury to those abutting upon the navigable waters of the stream above the bridge; and it is sought in this proceeding to have the court take such measures as to carry out the purpose and intent of the decree that was entered in the former action, and compel the railroad company to comply with the intent and purpose of that decree.

Before the railroad company built the bridge in question, it submitted plans of the bridge to the Secretary of War, which plans he approved; and it submitted also to the board of public works of the state of Ohio the same plans, which plans were approved by that board. It is contended by the defendant that, having built according to the plans submitted to the Secretary of "War and the board of public works of Ohio, that the jurisdiction of this court to take such proceeding as are asked for in this action, is entirely wanting. It is contended that the proceedings between the defendant and the board of public works was in form and was in fact a contract; that the board of public works representing the state of Ohio in matters of public improvements, it amounts to a contract between the state of Ohio and the defendant, which settles and determines the question nowr before the court, and, if it does not strictly comply with the decree made by this court, still it was a contract that the state had a rgiht to make and if it did make it this court is without jurisdiction to proceed in the matter.

Various other questions are raised, which I will notice in their order.

In the first place, the defendant claims that it has furnished a proper and suitable draw.

This involves the question as to what is a proper and suitable draw. It may relate to the mechanical construction of the bridge itself; or that term may be used to include also the machinery and means of moving the bridge — of opening and closing the same. Certainly a bridge with the necessary structure, so far as the bridge, strictly speaking, is concerned, may have what may be called a suitable draw and yet be entirely useless as a draw bridge unless there is some means of opening and closing the same. A bridge of this size, 360 feet long, to be of any use at all, by way of keeping the channel over which it is built open for craft navigating the waters, must have some means of opening and closing the same.

The railroad company claims that it has furnished a bridge that, when swung, will clear the channel of the stream, and a bridge with a draw which can be operated by the application of ordinary motive power of hand or otherwise; and that they have furnished a draw which can be opened within a reasonable time; and that, having submitted these plans to the Secretary of War and to the board of public Avorks of the state of Ohio, it has fully complied with the requirement of the decree and of the requirements of the United States government and of the state government.

The evidence shows that one man was kept upon the bridge as a draw-tender and a draw-watchman; that when a boat whistled for the bridge, it became his duty to go to where the section-men were working in the yards of the company, which yards extended from the bridge, one mile away, and secure the section-men for the purpose of opening the bridge; if the men happened to be near at hand, the time was shorter than when they were far away; sometimes they might be near enough to be called by the person on the bridge without his going out after them; but this method of operating the bridge caused delay at all times Arery unusual and unreasonable. The evidence shows that sometimes the bridge Avas not opened at all and boats were unable to pass through, and sometimes boats, tired of waiting, or unwilling to Avait the length of time necessary to get the bridge open, turned about and went away. The evidence shows that the present mode, adopted for the last five years, of moving a bridge of this size, is by steam-poAver or by electricity, and not by hand and the evidence shows that it would require a sixteen-horsepower engine to handle the bridge in proper manner, and that that size engine would be light for the work. The evidence shows that it would require at least thirty men to do the work with rapidity and certainty.

The evidence conclusively shows that the railroad company has at no time since it built the bridge used upon it the requisite power nor the facility in way of number of men, or time of getting the men there, to make the bridge of any practical use to those desiring to use the river above the bridge.

The only excuse the railroad makes for not using steam-power, or some other artificial power;, for opening and closing the bridge, or the requisite number of men for doing it rapidly and easily, and for not having the men present at the bridge ready to open it at any time, is that the bridge is so seldom called for by any boat, that it would be a needless expense upon the defendant and that the emergency of the case does not require it.

If the railroad company should continue to operate the bridge as it has been doing, undoubtedly the demand for the bridge to swing would never be increased, for the delay is such that it is of no practical use to those desiring to use the waters above the bridge.

There is no material differences between this argument and the one that might have been used in the former suit. In the former suit it might have been said that whenever the relator and others owning property above the bridge, establish a business Cm-' demands a swing-bridge, then they would put one in.

'fiic bridge, as it has been operated, practically prohibits business being introduced above the bridge; and it seems to us unreasonable and of no weight whatever for the railroad to say that when the relator and others establish business on the waters above the bridge, that calls for service, then they will give them that service, but that, until they have thus established business, the present service is all that is necessary; whereas, it is clear that with the present service there never will or can be a business of any consequence established above the bridge and hence the relator and others could never make any use of their property for which it is best adapted.

But it is said that these plans, having been submitted to the' Secretary of War and the board of public improvements and are being approved, this court has no jurisdiction to now'consider the sufficiency and adaptability of this bridge. The evidence in the case shows, however, that the mode and manner of opening and closing the bridge was never exhibited to those authorities by any drawings or in any other manner. The kind of machinery used to operate the draw was not submitted to them, nor -was there submitted to them the kind and amount of power to be used.

But it is said that the decree pointed out nothing except a suitable bridge, and the decree not having declared what that suitable, bridge should be, and it being shown that the bridge itself is suitable, that this court has now no authority to enforce any part of its decree because the decree has been wholly complied with.

If this proposition is true, then the railroad company might have built the bridge as it now is, without anj^ machinery to open and close it; and without power to be used for that purpose, and it might be said that the decree had been wholly complied with, and yet the bridge, so completed, would be substantially the same kind of a bridge that the court required to be removed.

It is evident that the decree, when it says “suitable,” means' a bridge complete in all its parts and one that has upon it the necessary equipment and machinery for opening and closing the same to traffic, as such bridges are usually opened and closed. If this decree, then, means what we think it does, then it is within the jurdietion of this court, so far as the limits of the decree go, to not only enforce the building of the structure, but the equipping it for opening- and closing within that reasonable time that is common in other bridges.

It is said that this is not the proper proceeding to take in this case. That if any of the parties living south of the bridge have been injured by the way in which the bridge has been operated, their action is for damages; but we are not called upon by such parties to act except as they may call upon us through the state by means of the proper officer of the state.

The state is interested. It is a matter pertaining to the interests of the state; it is a matter directly over which the state has control; and besides, if it had been simply the individual, Mr. Humphrey, who was making this application, if he could make it at all, there would be open to him three remedies; he could proceed by way of indictment, or he could proceed by way of having the nuisance abated, or he could proceed for damages.

It has been held in this state and other places that under the facts and circumstances existing in this case, a proceeding by way of damages is inadequate. Hickok v. Hine, 23 Ohio St. 523 [13 Am. Rep. 255]. And we may cite many cases from other states.

Crawford v. Rambo, 44 Ohio St. 279 [7 N. E. 429], bears •directly upon the question of when a party has an adequate remedy by way of damages and when he has not, which, we think, is applicable to the case before us.

If we had any authority to enter a decree in this ease in the first place, and it has been established by the highest court in the land that we had, then we certainly have the authority to enforce that decree and can do it in an action of this kind, if we ■can do it at all.

There is no proof in this case, nor does such proof exist, that the United States has ever assumed jurisdiction over these waters by way of any legislation whatever, and it is the law that until it does, the state has entire, or at least concurrent, jurisdiction over the waters and her courts may proceed to decree in re'.ard to the same and to the rights of parties therein. There has been nothing done, either by the general government or the state government since our decree, that in any way removes our jurisdiction over this matter. No legislation has been pointed out to us; nor, as far as we know, is there any legislation that in any way takes away the jurisdiction of the state courts over these waters. The mere approval of the plans of the bridge by the Secretary of "War and the state board of improvements would not serve that purpose, nor is it intended to serve, any such purpose. It is provided that such plans may be submitted to the Secretary of War, because at any time the United States may, through Congress, undertake to legislate over these particular waters, and to save parties who make improvements needless expense, it is proper and right that improvements be submitted to the Secretary of War.

The contract between the state and defendant shows on the face of it that the state did not intend to relieve the defendant from any duty resting upon it under the decree of this court. In fact, it shows to the contrary. As that contract requires of the defendant everything that we have construed the decree to require of the defendant, and if that contract were to be enforced it would have to be done through the courts, .and if the decree is to be enforced that must be done through the court; so, certainly, the court has jurisdiction to determine this matter.

The defendant seems to have understood from the beginning that its method of operating the draw would be called in question ; it seems to have had a suspicion that the public would not be satisfied with the way in which it was operating the draw; and such appears to be the fact from the testimony which it undertook to preserve.

That testimony was kept and presented to this court by employees of the railroad company, at the suggestion of the officers of the company. It is not in harmony with the testimony of disinterested parties who saw this bridge move at different times. The testimony in this case shows clearly, or at least the weight of it is, that the operations of this bridge were much more unsatisfactory and much more tedious than would appear from the testimony of the defendant on that subject.

The means and force heretofore used on this bridge for opening and closing it, have been unreasonable and not such as the law requires the company to maintain; and they have been so unreasonable that they have made the time of passing the bridge so uncertain that no boat, unless it was a boat owned by some one living above the bridge, would undertake to pass the same with any frequency at all, or to carry on any business or trade or traffic that would require it to pass through the bridge. It has been practical prohibition to all craft to undertake to pass through the bridge; and it is no answer for the company to say that it will give no better accommodations until a traffic has first been established that will warrant the necessary expenditure and outlay; nor will it do for the company to say that it is unreasonable to require it to maintain an engine and power day and night, or a large force of men on the bridge constantly, considering the amount of traffic that would pass through the bridge.

But, in saying this, the defendant judges the amount of traffic by what it has had; but what is an effectual prohibition to traffic to go above the bridge.

"We believe that the railroad company might have built a bridge that would have been entirely sufficient for this place on which the draw might have been operated by hand-power by the use of two or three men, and the only reason why it may not so operate a bridge is because it has seen fit to place there a bridge which requires a much greater force to handle; and as the railroad company has seen fit to use so large and extensive a bridge, it certainly can not coinplain if the courts require it to use a proper force and appliances for handling the same.

It is claimed that this court has no authority to establish any rules or regulations governing the operation or opening of the bridge in question.

The court has authority to carry out this decree, and to require the defendant to use such means as are necessary for that purpose.

Decisions are not wanting to show that it is for the courts to determine whether a draw is suitable or not. Commonweath v. New Bedford Bridge Prop., 68 Mass (2 Gray) 339; New Haven & E. H. T. Br. Co. v. Bunnel, 4 Conn. 54.

The purpose of law-makers and of courts is to so regulate traffic upon the bridge and traffic upon the navigable waters, that they shall interfere with each other as little as possible. The state may determine in its legislative capacity, that one is of so much greater importance than the other, on account of the quantity and volume of business, that the lesser shall give way entirely to the greater; and the private individual who is damaged by such action on the part of the state, may have no cause of action for damages; but we apprehend that the courts have no authority to say that, because the traffic of defendant over its bridge is very large and that upon the water is small, therefore that upon the water should yield to that upon the bridge. This reasoning would lead to keeping the traffic upon the water at a minimum, and the traffic upon the bridge at a maximum, greatly to the injury of the public, and it has been the law, and is today, that no one has a right to obstruct or materially impede the use of navigable waters for the commerce for which they are adapted.

The court, therefore, is unable in this case, in following the law, to adopt the ideas of the defendant that it is under obligation to afford only such privileges and opportunities for passing through its bridge as the size of the commerce may demand.

The railroad companj7 has, in a measure, tried to comply with the decree, and insists that it has complied with the same in good faith so far as, in its opinion, it believed it was under obligations to comply.

The kind of service it has given to boats passing its bridge, it contends, is all that the law of the decree required of it, and that in every way it has acted in good faith.

The court is inclined to give the company credit for acting in good faith and not designedly refusing to carry out the decree of this court. Nevertheless, what it has done does not satisfy the law of the case nor the law intended to be imposed upon the defendant by the decree, and which we believe the decree does impose upon it.

Having, therefore, determined this much, it would, perhaps, be unjust at this time to proceed to punish the defendant for a failure to comply with the decree of the court, when the decree itself does not point out definitely what the defendant is to do by way of specifying wherein and to what extent it must afford lawful privileges to those navigating the waters under its bridge. The means to be adopted to comply with the law of the decree were left wholly to the company. If it adopted means that could not accomplish the end required of it, it would afford no excuse in law for not doing anything more, but it might be some excuse for its action so that it would be unjust, when it had done what it has in good faith — believing that it had fully complied — to punish it, as would be done in case of a refusal to comply at all.

Under such circumstances, in an action of this kind, it is within the authority of the court and, we believe, within the duty of the court, to point out to the defendant wherein it has not complied with the decree of the court, and give to it a further opportunity and require that by a time named it shall comply with the decree as understood by the court and, if not, then the •excuse now offered can no longer be plead by the defendant.

We, therefore, say to the defendant, that it is its duty by the decree to furnish a draw-bridge for that place, such as is customary over navigable waters. That means that it shall have a suitable draw and machinery and power necessary for operating the same, as such bridges are usually operated, and, under the testimony in the case, that power should be such that this bridge can be opened within seven minutes from the time it gets the signal from the boat. In fixing the time, we believe that we have given the railroad company a full length of time usual for bridges situated under like circumstances of this bridge.

We will not say that the power to be used shall be steam or electricity, although the evidence shows, without contradiction, that the power usual on bridges of this size, adopted within the last five years, is steam or electricity.

Under the circumstances, we believe that.the railroad company should have the privilege of moving this bridge by hand-power providing sufficient men are used to have the bridge opened within seven minutes from the time the signal from the boat is given. This can not be done, according to the evidence, in the method which has been adopted by the railroad company.

The matter of sending for help at quite a distance from thé bridge, and giving time for the help to get there, is not sufficient and does not comply with the law- of the ease.

Accepting the plea of the defendant that it has acted in good faith, believing that it was complying with the decree of the court, and having pointed out more definitely than the decree does, what, is required of the defendant to fully comply with the decree,' we give the defendant a further opportunity to comply with the terms of the decree as herein construed, and we will postpone this case until the 13th day of May, 1901, to give the defendant an opportunity to perform the duties imposed upon it by the decree as construed by the court, and, if it has not by that time so complied, we will further consider what is to be done in this case.

Hale and Marvin, JJ., concur.


text:
    MASTER AND SERVANT — OFFICERS
    [Cuyahoga (8th) Circuit Court,
    March 17, 1899.]
    Marvin, Caldwell and Hale, JJ.
    Thomas W. Davis v. R. S. Hubbard, Treas., et al.
    No Extra Compensation Recoverable when Employment Is at Yearly Salary.
    In the absence of any express provision in the contract of employment, an employee, who is employed in a certain capacity at a yearly salary, can not maintain an action to recover extra compensation for time spent in excess of eight hours per day.
   CALDWELL, J.

Thomas W. Davis brought this action in the court below to recover for over-work under a contract.

An answer was filed denying any indebtedness, and a reply was filed to that.

When the case came before the court below, an objection was made to any testimony under the pleadings, based on the ground that there was no cause of action set out in the petition. The court sustained that demurrer to evidence, and a verdict was rendered by direction of the court for the defendant, Hubbard, and a judgment entered therein dismissing the petition. The action was first brought against R. S. Hubbard individually, and against R. S. Hubbard, treasurer of Cuyahoga county, and a demurrer was filed to that petition which was sustained, but no final judgment entered, and the plaintiff below, Davis, took leave to amend the petition and put it in the shape in which it was at the time the case was finally disposed of in the lower court.

The first part of the petition presents one question involved here, and the latter part another, and although they might be considered together, I will consider them separately.

This is plaintiff’s amended petition:

“Now comes the plaintiff and by leave of court first obtained files this, his amended petition herein, and for his cause of action he says :
“The defendant, R. S. Hubbard, is the duly qualified and acting treasurer of the county of Cuyahoga in the state of Ohio, and on September 1, 1894, plaintiff entered into a contract with said defendant, by the terms of which contract the plaintiff promised and agreed to enter the employ of said defendant in the capacity of a deputy in the office of said county treasurer of said county and to perform the duties of said deputy, in consideration of which agreement said defendant, as treasurer of said county, promised and agreed to pay to plaintiff for said services as deputy at the rate of $1,000 per annum, payable semi-monthly; that said agreement was thereafter modified and made definite in this, to-wit: The said plaintiff and defendant agreed that eight hours per day should constitute a day’s work of said plaintiff; that under said agreement as so modified and made certain, the plaintiff entered said employment as deputy county treasurer and continued in said occupation and employment up to and until January 31, 1896, on which day plaintiff was discharged from said employment by said defendant. ’ ’

The petition sets out the amount of labor he (Davis) performed during the time he was acting in the capacity of deputy treasurer, to the amount sued for in this petition, at fifty cents an hour, as over-work, in excess of the eight hours per day-. 'Now he says this was only done to make the agreement more specific, that eight hours should be a day’s work; that that was the only object and purpose, and that for any work over-time he was to be paid extra.

If the original contract meant eight hours should be a day’s work, then the additional contract made did not alter the original contract in that respect; eight hours still constituted the day’s work. But if the contract meant as here set out — the substance of it, and that is all we have — if the contract read that he was to perform such ordinary labor or ordinary day’s employment as the duties of the office called for and as was eustomary in the office, if the contract meant that, then the alteration, whatever the eight hours meant, was without any consideration whatever and would be of no binding force. It would simply be agreeing, after a contract was made, to pay a party more than he was to receive by the contract, without any extra consideration, and it would have no binding effect upon the party so agreeing. So that the original contract not being in force as to its terms, we can only take the contract as being what contracts of this nature generally mean.

It would be a strange doctrine to most of the -merchants of this city where they employ a man to work in a store on a salary of $1,000 a year, if that man was only to work eight hours a day and when he worked eight hours each day for a year, he had fully performed his contract, although it was the custom in that store to open very early in the morning and keep open until very late in the evening, or until nine or ten o’clock at night.

And so we might follow this in any department of the business of life where men are employed by the year. It would be introducing into that kind of contract an element that the public has not dreamed of. And to hold now under any law that exists in this state that eight hours a day applies to a contract of this character, would be going beyond anything that the law would warrant, and would simply be revolutionizing the understanding that is entered into by both employer and employee under contracts of this character, and that would not do. Instead of the courts becoming arbitrators of principles of law to make persons more safe and to secure men in their property and in their rights, it would be making the courts mere machines to overthrow all the safety in contracts that parties have.

Now, so far then as we have any knowledge concerning this contract of the hiring by the year at $1,000, it means that he was to devote such time to the work of the office of the treasurer of the county as men generally do who work in that capacity in receiving taxes and working upon the books; and we all know that that varies; there are seasons when people are not paying taxes that a day’s work may be short, and there are other seasons when the day’s work is pecessarily long; and I notice that for all extra hours charged here, he has charged for days longer than eight hours, and this being true, under any fair construction of the contract as entered into, it clearly appears that the new contract was one without any consideration so far as the treasurer, Hubbard, is personally concerned; hence of no binding effect whatever.

This might be sufficient, but further on the plaintiff says, that said R. S. Hubbard, as county treasurer as aforesaid, did not, at the time said extra labor was performed, nor at any time within the period of said employment or theretofore, agree with the county commissioners of said county of Cuyahoga as to the compensation which this plaintiff was to receive for said extra labor, nor was said defendant authorized by said county commissioners of Cuyahoga county to employ this plaintiff at said extra labor at a stipulated sum per day in accordance with the statute in such case made and provided.

Wherefore, he concludes that the said R. S. Hubbard personally is liable for this extra labor. In other words, he says that there is a statute in this state and that under it Hubbard can employ help in the office of county treasurer only in accordance with that statute and, not having the authority required from the county commissioners to do what he undertook to do, he therefore could not bind the county and hence did bind himself personally.

I have examined this question because it is new with some considerable care, and I find this to be the rule in regard to public officers, and it varies somewhat from that of an agent.

It is frequently said in works on agency, that if the agent does not bind his principal because he has gone beyond the authority given him, then he binds himself; and, with some exceptions, that is quite a general rule. Now that is not the rule in regard to public offices. A public officer may not bind himself and yet he may not bind the principal. The party may be without any remedy either as to the public officer or corporation —the municipal corporation if it be sueh — or the government, or whatever corporation of which he may be acting as a public officer. But I find this to be laid down as the rule governing public officers, that the party can recover from the officer only /where he has acted without authority from his principal and has used apt words to bind himself. Before he can be held liable, he must have acted entirely without authority to act, and he must then have used apt words to bind himself.

I have examined all the cases that were cited to show that Mr. Hubbard is liable under this petition, and I find, in every case cited, that they find that the officers acted clearly without any authority, and without any contract and they used apt words to bind themselves. This contract is entirely wanting in showing that Hubbard used any apt words to bind himself. No language is set forth, nothing definite is set forth to determine that matter at all — a mere conclusion and nothing else — and that is not set forth as a conclusion from the words used, but as a conclusion of law. So that, in this case it would be impossible to hold Mr. Hubbard until it is shown, first, that he acted without authority, and second, that he used apt words in the contract he made, to bind himself; and, even then, there are exceptions to that rule, and one is this: If the officer act under a public-statute that limits his authority and shows just how far he may go, then the party who acts, who deals with him, deals with knowledge of his authority and he knows that he has no authority to make such contract, because what is known publicly is known by all .men, and a public statute and any action that officers may take under it, that is, of a public nature, is known by everybody. And that being true and the contract having no apt words, even if he has exceeded the authority of the statute and acted contrary to it without authority to act under it, lie still is not liable.

This is held in Dodd v. State, 18 Ind. 56, 66; Sanborn v. Neal, 4 Minn., 126; and in a number of other cases cited.

It is held that the party dealing with the officer in such case is presumed to know his authority: New York & C. S. S. Co. v. Harbison, 16 Fed. 688; Newman v. Sylvester, 42 Ind., 106; Hull v. Marshall Co., 12 Iowa, 142, Baltimore (Mayor) v. Eschbach, 18 Md., 276; State v. Hays, 52 Mo., 578; Agawan, Co. v. Jordan, 74 U. S. (7 Wall.) 605, 606 [19 L. Ed. 183]; and I have seen many other eases on this subject.

There are cases holding that where, as in this case, the party is bound to know the authority of the officer and deals with him about matters that concern the government, such dealings are against public policy; that it is against public policy to have an officer dealing with matters pertaining to government where he has no authority to, and the party thus dealing with him can not justify his acts even on a personal basis and, in order to escape liability himself, it is not necessary, that he should create a liability against his principal, against the corporation. That is held in a number of cases: Hewitt v. Wheeler, 22 Conn., 369, 371; Hall v. Crandall, 29 Cal., 567; McCurdy v. Rogers, 21 Wis., 199; Newman v. Sylvester, supra.

This being the law of the case as I find it laid down without exception, it appears conclusively, beyond all possibility to corntradict it, that Hubbard in this case did not make himself liable on this contract, even though he made it, and even if it had a sufficient consideration to sustain it, which it did not have, as I have stated.

The judgment of the court below is affirmed.

Marvin and Hale, JJ., concur.


author: GORMAN, J.

text:
    DESCENT AND DISTRIBUTION — WILLS
    [Hamilton (1st) Court of Appeals,
    November 22, 1915.]
    Jones, Jones and Gorman, JJ.

      Aribert Gazlay et al v. John E. Gosling et al.
    1. Deceased Husband not Ancestor of Relict.
    Within the meaning of the statutes of descent, Secs. 8573 to 8577 G. C., inclusive, a deceased husband can not be the ancestor of his relict.
    2. Ancestral Property Descended to Deceased Husband, Devised to Relict Looses Ancestral' Quality.
    Property which came to a deceased husband of a relict as ancestral property by descent, devise or deed of gift, and is devised by him to his widow, ceases to be ancestral property in her hands, and if she should die intestate, such property would not pass under the provisions of Sec. 8573 G. C., to the blood of the original ancestor from whom the estate came.
    3. Next of Kin of Husband of Relict Devises cannot Contest Will of Latter. •
    When such relict of a deceased husband dies testate seized of property which was ancestral in her deceased husband, but came to her by devise from said husband, those who are of the blood of the husband and of the ancestor from whom the estate came and the next of Inn of the deceased husband have no such interest in the property, as entitles them to maintain an action to contest her said will.

      G. W. Baker, for plaintiffs in error.

      Schorr <& Wesselmann and Clore, Dickerson & Clayton, for defendants in error.

      Motion to certify overruled by Supreme Court, January 25, 1916.

   GORMAN, J.

Plaintiffs in error brought an action in the court below to contest the will of Susan Gazlay, deceased. Upon motion of the defendants the court ordered the plaintiffs to amend their petition, which was accordingly done and an amendment to the amended petition was also filed.

In substance the plaintiffs claim in their amended petition and the amendment thereto that Susan Gazlay died testate on or about April 9, 1913, leaving a paper writing which purports to be her last will and testament, and which they aver is not her last will and testament. Plaintiffs further aver that they are brother and sister, and are heirs at law of Susan Gazlay, deceased, and that they are the only children of Carter Gazlay, deceased; that Carter Gazlay, their father, was the only surviving child and sole heir at law of Aribert Gazlay, deceased; that Aribert Gazlay, deceased, was a brother of James W. Gazlay, deceased, and that James W. Gazlay, deceased, was the father of Allen Gazlay, deceased, who was the husband of Susan Gazlay, deceased, testatrix herein; that James W. Gazlay left no children but Allen W. Gazlay, deceased, and said Allen W. Gazlay left no issue and had no other property except that which he inherited from his father, James W. Gazlay, deceased, except what he may have purchased; that said Susan Gazlay, deceased, obtained all the property and estate which she had in her lifetime and of which she died seized through her husband, Allen W. Gazlay, by inheritance, devise and gift, and in no other way, so that under the statutes of descent and distribution had said Susan Gazlay died intestate her said property would have reverted to the collateral blood kin of her husband, Allen W. Gazlay, and that plaintiffs are such collateral blood kin. Plaintiffs further aver that said James W. Gazlay had a brother, Theodore Gazlay, who died leaving children and their representatives who are parties to this cause, and that said James W. Gazlay had other brothers and sisters who are deceased, and whose representatives are made parties hereto. Plaintiffs pray that an issue bo made up as provided by statute, and that said paper writing purporting to be the said last will and testament of Susan Gazlay be held not to be her last will and testament.

To this petition and to the amendment thereto a demurrer was filed by the defendants, which demurrer was sustained, and the planitiffs not desiring to plead further, the petition was dismissed at their cost. They prosecute error to that judgment.

From the averments of the amended petition it appears that the plaintiffs in error are the first cousins once removed of Allen W. Gazlay, deceased, being the children of his first cousin, Carter Gazlay. It further appears that the estate of Susan Gazlay came to her by devise from her husband, Allen W. Gazlay, and that the estate of Allen W. Gazlay which came to Susan Gazlay descended to Allen W. Gazlay from his father, James W. Gazlay, by devise, descent or deed of gift; that there are no children of Allen W. Gazlay, deceased, and no brothers or sisters.

The question presented by this demurrer is whether or not the plaintiffs in this case have an interest in the estate of Susan Gazlay, deceased, or, rather, would they have an interest in that estate if the paper writing purporting to be her last will and testament should be set aside and held for naught. Under the will of Susan Gazlay they are not legatees or devisees, nor are they heirs or next of kin of Susan Gazlay, so far as the averments of the petition disclose. Their only right, as they claim, to maintain this action is by virtue of the fact that they are of the blood of Allen W. Gazlay and James W. Gazlay, from whom the estate came. If they would have no interest in the estate of Susan Gazlay in case her will should be set aside, then they are not proper parties plaintiff; they would have no interest in this action and could not maintain the action, and the demurrer was properly sustained.

We are of the opinion that the court of common pleas did not err in sustaining the demurrer to the petition.

■ Plaintiffs claim under Sec. 8573, Subd. 6 G. C., which is the section relating to the descent of ancestral property. Plaintiffs’ counsel in his brief admits that there are no children or their legal representatives of Susan Gazlay; that there is no husband of Susan Gazlay, he having died before Susan Gazlay; that there are no brothers or sisters of Allen W. Gazlay; that there is no ancestor of Allen W. Gazlay to whom the estate may ascend. He admits that James W. Gazlay, the ancestor from whom the estate came, is deceased, and that the only child of that ancestor is Allen W. Gazlay, who is deceased; that there is no relict of Allen W. Gazlay to take the estate, and none of the half-blood. But he claims that under Subdivision 6 plaintiffs are entitled to inherit this property as the next of kin of Allen W. Gazlay. That subdivision of the section reads as follows:

“If there are no such half-brothers and sisters of the intestate, or their legal representatives, the estate shall pass to the next of kin to the intestate of the blood of the ancestors from whom the estate came, or their legal representatives. ’ ’

Now it will be noted that two conditions must exist to enable the plaintiffs to inherit this estate if Susan Gazlay had died intestate: They must be the next of kin of Susan Gazlay, and also of the blood of the ancestor from whom the estate came— that is, the blood of Allen W. Gazlay. According to the allegations of the petition they are of the blood of Allen'W. Gazlay and of the blood of James W. Gazlay, his father, but they are not next of kin of Susan Gazlay, the intestate — assuming that she would be intestate if this will were set aside. Therefore it appears certain that they could not inherit this property, even if it were ancestral property.

Furthermore, we are of the opinion that this property which came to Susan Gazlay from her deceased husband ceased to be ancestral property when she acquired it, even if it were ancestral property in Allen W. Gazlay during his lifetime. We think it is clear that a husband can not be the ancestor of his wife, and we think this proposition has been decided in Brower v. Hunt, 18 Ohio St., 311. The proposition decided in that case was that the terms “ancestor” and “descent” as used in connection with the order of distribution prescribed in the first section of our statute of descents had reference to such estates only as descended to the intestate in right of blood, or which came, to him by devise or deed of gift from one from whom he might have inherited the same in such right, and that where the estate came to the intestate otherwise, its descent to him is regulated by the second section of the act, Sec. 8574 G. C., prescribing the order of descent of non-ancestral property, or property which came by purchase.

Now let us assume that Allen W. Gazlay died intestate, possessed of this ancestral property. His wife could only take a life interest in this ancestral property under the provisions of Sec. 8573, and at her death her interest in the property would become extinguished. She could not inherit from her husband as ancestor within the meaning of See. 8573, because the only persons who can take under that section are those having the blood of the person from whom the estate comes, as was said in Brower v. Hunt, Supra. So that in any aspect of the case it appears to us that whether this property was ancestral in the hands of Allen W. Gazlay during his lifetime, or was non-ancestral property, the plaintiffs in this case, upon the death of Susan Gazlay, if she had died intestate, would have no right, title or interest in the property; and inasmuch as those only who have an interest in the property, or who would have an interest in the property if the will were set aside can maintain an action, it is manifest that plaintiffs have no standing in court — are not the proper parties plaintiff — and the court of common pleas did not err in sustaining the demurrer to the petition.

Whether or not the court of common pleas was warranted in requiring the plaintiffs to make their petition definite and certain by setting out the sources of their title or interest in this property, need not now be considered. It is probable that the court might not have been warranted in granting this motion, but in view of the fact that the plaintiffs complied with the requirements of the court to set out fully the sources of the title which they claim, we can not see that any prejudice resulted to the plaintiffs in granting the motion.

For the reasons stated, the judgment of the court of common pleas will be affirmed.

Jones (E. H.) and Jones (O. B.), JJ., concur.


author: KINKADE, J.

text:
    INSURANCE
    [Lucas (6th) Court of Appeals,
    June 2, 1913.]
    Kinkade, Richards and Chittenden, JJ.
    Northern Assurance Co. v. Frank F. Kehoe
    Denial by Adjuster of Liability for Loss by Fire not Waiver of Requirement as to Proofs of Loss.
    In the absence of evidence that an insurance adjuster had authority from the company to deny liability oil the policy in suit, the fact of such denial by an adjuster on the ground that the insured had himself caused the fire does not amount to a waiver of conditions of the policy and particularly of those relating to appraisement of loss and the making of proofs of loss.

      J. W. Mooney and Boyle <& Lenuis, for plaintiff.

      B. F. Ritchie and J. H. Boyle, for defendant.
   KINKADE, J.

The action below was based upon a policy of fire insurance. The plaintiff claimed a total loss of the property covered by the policy, stating the value of the property destroyed by fire at $2,-718, and prayed a judgment for $2,000, the amount of the policy. To the petition as filed was attached a copy of the insurance policy, and the insured averred in the petition that he had performed all the terms and conditions of the policy to be by him kept and performed. The assurance company answered setting up numerous conditions of the policy and alleging the violation of each of the conditions set forth and denying all liability. In the reply the insured reaffirmed in general terms that he had complied with all the terms of the policy and then set forth in detail a specific compliance with the various conditions of the policy alleged by defendant to have been violated. Later- an amendment and supplement to the reply was filed in which the plaintiff averred that the assurance company subsequent to the fire denied all liability. Thereafter an amended petition was filed by the insured in which various conditions of the policy are set forth showing the grounds on which the policy might become void, and these portions of the amended petition are followed by the statement “for a more particular description of each and every item of the terms and conditions of said policy aforesaid, plaintiff hereby refers to said policy attached to the petition filed herein. ’ ’ Following the clause quoted, the amended petition states the averment that the insured had not violated any of the conditions set forth in the amended petition as being in the policy, and that.none of the things as described in the amended petition existed at the time of the fire which would avoid the policy, and following this the amended petition contains the following statement:

“Immediately after said fire said plaintiff notified said defendant of said loss and thereupon said defendant denied any and all liability to said plaintiff for the loss by him incurred as aforesaid, and charged and alleged that said fire had been occasioned by his own act.”

The assurance company filed an answer to the amended petition, setting forth various conditions and provisions of the policy of insurance and stating particularly with respect to each that there had been a violation thereof by the insured. The reply denied the allegations of the answer to the amended petition. At the close of the plaintiff’s evidence the defendant moved the court for a directed verdict in its favor, which was overruled and exception noted and at the close of all the evidence, this motion was renewed by the defendant, again overruled and exception saved. The jury returned a verdict in favor of plaintiff for $1,293.80. The motion for new trial was made and overruled and judgment entered on the verdict.

It is not contended here that the plaintiff below complied with all the provisions and conditions of the insurance policy to be kept and performed by him, but the contention is that in so far as he did not comply with the provisions of the policy as he stated in his amended petition, the terms and conditions of the policy were waived by the company by its denial of liability.

Stating the evidence as favorably as it can be stated for plaintiff below on the subject of the denial of liability by the company, it amounts to this and only this: that the adjuster who came to adjust the loss after the fire stated to the plaintiff that the company was not liable and would not pay and assigned as a reason for the non-liability that the plaintiff himself had caused the fire that destroyed the property. No claim is made by plaintiff that any one representing the company other than the adjuster made any statement in the nature of a denial of liability; and no claim is made that this denial of liability was in -writing nor is it claimed that any waiver of any provision or condition of the company was ever endorsed upon the policy. The adjuster was called as a witness for the company and denied having made the statements attributed to him by the insured. The defendant contended below and contends' here that even conceding that the statements were made by the adjuster at the time and in the form and under the circumstances stated and claimed by the insured, that still they did not amount to a denial of liability by the company for the reason that there was no evidence to show that the adjuster had any authority from the company to deny its liability on the policy, and no authority to waive any of the conditions of the policy, and that this being true, that which was stated by the adjuster could in no event be held as sufficient to waive the provisions of the policy, several of which the company claimed had been violated by the insured and particularly the provisions of the policy with respect to appraisement of the damage and proofs of loss. On the other hand the insured contends that under the clause quoted from the amended petition and the evidence produced in support of it, which was as I have stated, the company waived all provisions of the policy not performed by the insured and particularly that it waived the provisions of the policy with respect to appraisement and ascertainment .of the loss and the making of proofs of loss within the time required by the policy.

To state that one who relies for a right of recovery upon a written contract must show that he has himself complied with the conditions precedent to a recovery stated in the contract, or he must show that the performance of those conditions has been waived is but to state an elementary proposition of law familiar to all lawyers and the courts. It has been definitely and plainly laid down, not only by our own Supreme Court, but by the Supreme Court of the United States and most every inferior court so many times that it certainly ought to be understood, but for some unaccountable reason these principles appear to be regarded as not applicable to certain kinds of written contracts, particularly building contracts and contracts of insurance, and hence it is found necessary to keep restating what the law is in this respect or to at least cite cases where it may be found.

The policy of insurance in question contained the following provisions:

“This policy is made and accepted subject to the foregoing stipulations and conditions, and to the following stipulations and conditions printed on back hereof which are hereby specially referred to, and made a part of this policy, together with such other provisions, agreements, or conditions as may be endorsed hereon or added hereto, and no officer, agent, or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent, or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance 'under this policy exist or be claimed by the insured unless so written or attached.
“This company shall not be liable beyond the actual cash value of the property at the time any loss or damage occurs, and the loss or damage shall be ascertained or estimated according to such actual cash value; with proper deduction for depreciation however caused, and shall in no event exceed what it would then cost the insured to repair or replace the same with material of like kind and quality; said ascertainment or estimate shall be made by the insured and this company, or, if they differ, then by appraisers, as hereinafter provided; and, the amount of loss or damage having been thus determined, the sum for which this company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate, and satisfactory proof of the loss have been received by this company in accordance with the terms of this policy.
“In any matter relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company.
‘ ‘ If fire occur the insured shall give immediate notice of any' loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon; and, within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property; the cash value of each item thereof and the amount of loss thereon; all encumbrances thereon; all other insurance, whether valid or not, covering any of said property; and a eopjr of all the descriptions and schedules in all policies; any changes in the title, use, occupation, location, possession, or exposures of said property since the issuing of this policy; by whom and for what purpose any building herein described and the several parts thereof were occupied at the time of fire; and shall furnish, if required, verified plans and specifications of any building, fixtures, or machinery destroyed or damaged; and shall also, if required, furnish a certificate of the magistrate or notary public (not interested in the claim as a creditor or otherwise, nor related to the insured) living nearest the place of fire, stating that he has examined the circumstances and believes the insured has honestly sustained loss to the amount that such magistrate or notary public shall certify.”

Our own Supreme Court in the case of Ashley v. Henahan, 56 Ohio St., 559 [47 N. E. 573], in speaking of an attempted waiver of the terms of a written contract, used this language in the fifth paragraph of the syllabus:

“Such stipulation being for the benefit of the employer, proof of a waiver must either be in writing or by such clear and convincing evidence as to leave no reasonable doubt about it.”

And on page 573 of the opinion, the court used this language :

“We suppose the law to be that the contract must control unless its provisions have been clearly waived. Some of the authorities maintain that there must be an express waiver; and all agree, or should agree, that nothing short of evidence of the raost satisfactory character should be permitted to brush aside a contract which the parties have deliberately made. They have determined that certain things shall be provided only by written evidence. To that extent that is the law of this case. It is the duty of the court to enforce that law unless it clearly appears that the parties have abrogated it. Has it been thus abrogated ? * * * If the owner has intentionally relinquished a known right the plaintiff should be able to show it, either in express terms or by acts and conduct equivalent thereto. Equivocal conduct, or conduct of doubtful import, is not sufficient. ’ ’

The language of our Supreme Court in the case just cited is quite as applicable to an insurance policy as it is to a building contract. Almost every provision and condition in the standard form of fire insurance policies has been before our Supreme Court for consideration. We call attention to the following authorities, to-wit:

Union Central Life Ins. Co. v. Hook, 62 Ohio St., 256 [56 N. E. 906] paragraph one of the syllabus-.'

“In an action to recover on a written contract for life insurance and upon an alleged subsequent verbal modification of the same, statements and representations made by the agent who solicited the policy, prior to and contemporaneous with the issue of the policy, are inadmissible to vary, in any respect, the terms of the written policy. In the absence of proof of fraud or mistake, such statements and representations are merged in the written contract.”

Eureka Fire & Marine Ins. Co. v. Baldwin, 62 Ohio St., 368 [57 N. E. 57], paragraphs one and three of the syllabus:

“1. Where a party avers that he has performed all the conditions of a contract to be by him performed, his proofs upon the trial must show such performance in order to entitle him to a recovery. Under such an averment it is not competent to prove a waiver of such conditions. If the waiver of conditions is relied upon, such waiver must be averred in the pleadings.
“3. The power of an agent to waive conditions in a policy of fire insurance is not different from the same power in life insurance. As to such power, Union Central Life Ins. Co. v. Hook, 62 Ohio St., 256 [56 N. E. 906], is followed and approved.

Ohio Farmers’ Insurance Co. v. Titus, 82 Ohio St., 161, first paragraph of the syllabus:

“1. An insurance company can not be deemed to have waived a condition in a policy of fire insurance rendering it void. ‘If the subject of insurance or any part thereof, or the real estate or any part thereof described in the application as that on which any building insured herein is situated now is, or shall hereafter be incumbered by mortgage or otherwise’ unless by agreement endorsed thereon, or added hereto, simply because its agent had notice or knowledge of the existence of a mortgage incumbrance and received premiums, when an agreement as to such mortgage was not endorsed on the policy and where such policy also provided that ‘No officer, agent or adjuster or other representative shall have power to waive or alter any of the provisions or conditions of this policy, except such as by the terms of this policy are made subject of an agreement endorsed hereon or added hereto and as to such provisions or conditions, such waiver or alteration, if any, shall only be valid when actually endorsed hereon or added hereto by such officer, agent or adjuster; nor shall any permission or privilege affecting this insurance exist or be claimed by the insured unless so written, endorsed or attached.’ ”

Scottish Union & Nat. Ins. Co. v. Smelting Co. 166 Fed. 231 [92 C. C. A. 139], paragraph one of the syllabus:

“Where a policy of fire insurance expressly provided that in case of loss a written and verified proof of loss should be made by the insured containing certain stated and detailed information, such proof of loss is an essential condition precedent to the company’s liability unless waived; and where it further provided that no officer, agent, or other representative of the company should have power to waive any of its conditions except in writing indorsed thereon or attached thereto, the failure to make such proof of loss is not excused by a claimed waiver, not in writing, by an agent of the company not shown to have any express authority to make it and whose action was not ratified by the company.”

Northern Assurance Co. v. Building Assn., 183 U. S., 308, paragraph six of the syllabus:

“Contracts in writing, if in unambiguous terms, must be permitted to speak for themselves, and can not, by the courts at the instance of one of the parties, be altered or contradicted by parol evidence, unless in case of fraud or mutual mistake of facts, and this principle is applicable to cases of insurance contracts. ”

The precise question presented here was passed upon by this court in the case of Billings v. Insurance Co., 27 O. C. C. 552 (6 N. S. 567). This court there decided that statements made by an adjuster sent by the company to adjust the loss could not be held to operate as a waiver of any of the conditions of the policy, and cited numerous authorities in support of the position then taken. The question presented in that case had been fully argued in the court of common pleas, and the opinion of the trial judge (Judge Morris) with many authorities cited is found in Billings v. Insurance Co., 14 Dec. 387 (2 N. S. 21).

After a very full examination of all the authorities, presented for our consideration, we see no reason to modify the position taken by this court in the case of Billings v. Insurance Co., cited. We are clearly of the opinion that the evidence produced by plaintiff below in support of the claim of denial of liability by the company was insufficient to show any such denial by the company as would amoiuit to a waiver of any of the conditions, and provisions of the policy, and this being true, it follows that the motion of the defendant below for a directed verdict in its favor should have been granted.

The judgment of the court of common pleas will be reversed and the judgment that should have been entered by that court will be entered here, dismissing the action at the costs of the defendant in error.

Richards and Chittinden, JJ., concur.


author: PEE CURIAM

text:
    ERROR
    [Hamilton (1st) Circuit Court,
    February 2, 1905.]
    Gif fen, Swing and Jelke, JJ.

    Robert Kuhn v. William Warnock and Charles Strahl.
    Jury’s Finding on Evidence Sustained on Error.
    When the significance and meaning of a conversation regarding compensation in securing certain options, embodied in the testimony submitted to the jury, depends upon the emphases which was placed on certain words and particularly on the pronoun “I,” a reviewing court will give it a construction consistent with the finding of the jury.

      Max B. May, for plaintiff in error.

      Shay & Gogan, for defendants in error.
   PEE CURIAM

The only error complained of in this case is that the verdict and judgment of the court below is against the weight of the evidence.

Counsel for plaintiff in error in his zeal has urged upon us not to apply, without great and careful consideration, the principle that a reviewing court will not disturb the judgment, on the ground that the verdict is against the weight of the evidence, unless it is manifestly so. After a careful reading of the record,' we are of opinion that this is pm' excellence a case for the application of this rule.

It appears that the defendant, Robert Kuhn, was the president and acting as the representative of the Empire Coal Mining Co., in securing a large number of options embracing a wide tract of coal land. In his capacity as president, or such representative, he had given Warnoek and Strahl general instructions as to the terms and methods on which they were to acquire these options.

It developed that there were three parcels of land in the middle of this tract which they had failed to secure, and that at a meeting in the office of Theodore Neff, in Bellaire, said Warnoek and Strahl reported their failure, and said they were unable to secure these parcels of land on the terms provided in their instructions. It seems, thereupon, Mr. Kuhn withdrew these gentlemen either to another room or to a different part of the same room, where the following conversation took place, as narrated in the testimony of Mr. Strahl:

“A. He said to me, ‘What is the reason that you haven’t these three farms optioned?’ I told him that the farmers — those three wouldn’t take the price that we had been optioning the other farms for, and he says, ‘What will they take?’ I says, ‘I don’t know, but I believe they can be got for fifteen dollars an acre.’ ‘Well,’ he says, ‘go and take them.’ My next question was, of course, ‘What is in it for us, Mr. Kuhn, if we go and take these options?’ And he says, ‘I will tell you. If you go and take these options up and take them up in my name that I will pay you the half of the difference between the option price and fifteen dollars an acre.’ And he went and — well, I believe Mr. Kuhn at that time give us his address — yes—where to send those options to, and said to send them to him; take them up in his name and send them to him at the McClure House in Wheeling.”

It seems clear that the transaction in regard to these three parcels of land was to be under a different and separate arrangement from that under which the options had been procured on the other parcels in the tract.

The significance and meaning of the conversation would be directly opposite, dependent upon what emphasis was put upon the pronoun “I” in this conversation. As this appears in the cold typewritten record, we can not tell, excepting that we are bound to give it a construction consistent with the verdict and judgment below. If Mr. Kuhn said:

“I will tell you. If you go and take these options up and take them up in my name that I will pay you the half of the difference between the option price and fifteen dollars an acre, ’ ’ it would be very plain who was the principal and for whom Warnock and Strahl were acting in securing these options, and who should pay the commission.

We find nothing necessarily inconsistent in the letter of May 11, 1901, with the view that Robert Kuhn was the principal in this transaction. It would seem, after a reading of the record, that with Robert Kuhn acting either for himself or for the Empire Coal Mining Co., it would not be expecting too much of him by way of business courtesy, to have looked after the interests of Warnock and Strahl, and at least to have called their attention to the closing up of matters, so that their rights could have been defined and their claim then asserted. It may very well have been that this indifference on the part of Mr. Kuhn prejudiced him in the eyes of the jury and led them to somewhat discount his testimony. If they did so, that was within their province. Not having any of these parties before us and so much in this record being susceptible of either one of two opposite constructions, we are compelled to apply the principles first above mentioned.

Judgment affirmed.

Swing, Gioters and Jelke, JJ., concur.


author: JONES (E. H.), J.

text:
    LANDLORD AND TENANT
    [Hamilton (1st) Court of Appeals,
    July 13, 1914.]
    Swing, Jones and Jones, JJ.

      Kroger Grocery & Baking Co. v. Blanche Greenland.
    Settlement with Landlord for Injury on Premises Makes Landlord and Tenant Joint Tort Feasors.
    Settlement with the lessor for injuries received on the premises makes the lessor a joint feasor with the lessee and bars an action against the lessee for damages on account of the same injury.

      B. A. LeBlond, for plaintiff in error.

      O. M. Dock, for defendant in error.

       Affirmed no opinion, Greenland v. Kroger Grocery & Bak. Co., 92 Ohio St. 541.

   JONES (E. H.), J.

In the court below the defendant in error recovered a judgment of $1,000 against the plaintiff, in error, as damages for injuries received by her through an alleged defect in the sidewalk at the base of steps leading into the store of the plaintiff in error company on Reading road in the city of Cincinnati.

Four grounds of reversal are set forth and argued in the brief for plaintiff in error, as follows:

1. That there was no liability on the part of the defendant below.

2. That the plaintiff was guilty of contributory negligence and could not recover.

3. That there was no evidence of the defendant having created or maintained the defect complained of.

4. That the plaintiff’s release to Mrs. Thale, as set up in the second defense of the answer, was a complete defense both under the doctrine of estoppel and as a full settlemnt of the injury received.

As to the frist three grounds, we find against the planitiff in error.

The question presented by the fourth proposition is one not free from difficulty, and one to which we have given much time and thought. After examining the authorities cited in the excellent briefs of counsel on both sides we have reached the conclusion that the settlement with, and the release given, to Mrs. Thale, the lessor, to Mrs. Greenland, was a bar to any action against the Kroger Grocery & Baking Co. Said release reads as follows:

“Cincinnati, Ohio, Mat 9, 1911.
“Know All Men bt These Presents:
“That Whereas, Blanche Greenland, is about to institute an action for damages resulting from an injury sustained on March 11, 1911, on the premises of Christina Thale, in the court of common pleas of Hamilton county, Ohio, and whereas the said Blanche Greenland and the said Christina Thale, through their respective attorneys, have agreed to compromise and settle said claim, and all liability in the premises against the said Christina Thale by the payment to the said Blanche Greenland or her attorney, by the said Christina Thale, the sum of $300.
“Now, Therefore, I, Blanche Greenland, in consideration of said sum of $300, received to my full satisfaction of the said Christina Thale, do hereby release and forever discharge the said Christina Thale from all claims, demands, damages, actions and causes of actions whatsoever, including such as have arisen by reason of or in any manner grow out of said injury.
“In Witness Whereof I have hereunto set my hand this 9th day of May, 1911.
“(Signed) Blanche Greenland.
“In presence of
“Oliver M. Dock.”

The petition in this ease shows that the injuries therein complained of are the same injuries for which Mrs. Thale settled with Mrs. Greenland, and in the threatened suit against Mrs. Thale, had the same been brought, the allegations of negligence would necessarily have been similar to those contained in the petition herein.

Cooley, Torts, 3rd Ed., 246, gives the test to be applied in determining whether two or more persons are joint tort feasors in the following language.

“In respect to negligent injuries there is considerable difference of opinion as to what constitutes joint liability. The authorities are, perhaps, not agreed beyond this, that where two or more, owe to another a common duty, and by a common neglect of that duty such other person is injured, then there is a joint tort with joint and several liability. The weight of authority will, we think, support the more general proposition that where the negligences of two or more persons concur in producing a single, indivisible injury, then such persons are jointly and severally liable, although there was no common duty, design or concert action.”

It is well settled in Ohio, and conceded by counsel on both sides in this ease, that but one satisfaction of a claim existing against tort feasors can be enforced. By her action in this case in making claim against Mrs. Thale, Mrs. Greenland has made Mrs. Thale a tort feasor, and the tort is joint as between Mrs. Thale and the Kroger Grocery & Baking Go. The motion for judgment in favor of the defendant below should have been granted, and in refusing same the court erred.

Judgment reversed, "and judgment will be entered here for plaintiff in error.

Swing and Jones (O. B.), JJ., concur.


author: RICHARDS, J.

text:
    GUARANTY
    [Hamilton (1st) Court of Appeals,
    March 29, 1915]
    Kinkade, Richards and Chittenden, JJ., Sixth District Sitting.
    Louis H. Landman v. George D. Sauerston et al.
    1. Construction of Written Contract of Guaranty.
    The situation of the parties and the object sought to be accomplished are competent evidence to aid a court in construing a guaranty, but it is not permissible by the aid of such evidence to modify or alter the written contract entered into between the parties.
    2. Guaranty of Credit of $100 not Continuous.
    A request to “extend credit to the extent of $100 to my nephew I. B., for which I will stand responsible,” is not a continuing guaranty, but is limited to the first $100 worth of goods purchased.

      H. L. Bevis, for plaiutiff in error.

      C. S. Bell, for defendants in error.
   RICHARDS, J.

The plaintiff in error, who was defendant in the court of common pleas, was sued on a written guaranty reading as follows:

“Cincinnati, 0., Sept._ 22, 1909.
“Messrs. Sauerston & Brown:
“Please extend credit to the extent of $100 to my nephew, Isaac Breastin, for which I will stand responsible for, and obliged.
“Louis H. Landman.”

At .the close of the evidence each side moved the court for a directed verdict and the court thereupon directed the jury to return a verdict in favor of the plaintiff for the amount of one hundred dollars.

It appears from the evidence disclosed in the bill of exceptions that Breastin was a nephew of Landman and desired to start in the candy business, and that Landman went to Sauerston & Brown, who were wholesale dealers in candy, and inquired as to the extent of credit it would be necessary for his nephew to have with them and whether they would extend credit, which they promised to do if Landman would guarantee the same. Thereupon he signed the guaranty as above quoted.' Subsequent to the making of this guaranty, goods were furnished to Breastin to the amount of several hundred dollars, a large part of which was paid for, but at the time he ceased doing business there remained due Sauerston & Brown an amount in excess of $100.

The only question in this case is as to whether the guaranty is a continuing one. The common pleas court held that it was a continuing guaranty and that the liability of Landman thereon was not limited to the first hundred dollars’ worth of goods purchased. In so holding the trial court erred. 'By its terms the guaranty is limited in extent to the amount of $100 and would be exhausted when goods to that amount had been furnished and paid for. The situation of the parties and the object sought to be accomplished are competent evidence to aid the court in construing the guaranty, but it is not permissible by the aid of such evidence to modify or alter the written contract entered into between the parties; and it is a fundamental principle in this state that a contract of guaranty must be construed most favorably to the guarantor. It was said by our Supreme Court in Birdsall v. Heacock, 32 Ohio St., 177, 184 [30 Am. Rep. 572], that such an instrument should be confined to the immediate transaction, unless the language of the promise is sufficiently broad to show that it was intended to render the guarantor liable for future credits. That such a guaranty should be held t'o be limited and not continuing, is held in the case above cited and also the following cases: Morgan v. Boyer, 39 Ohio St., 324 [48 Am. Rep. 454]; Merchants National Bank v. Cole, 83 Ohio St., 50 [93 N. E. 465; 22 Ann. Cas. 779]; National Bank of Commerce v. Garn, 13-23 O. C. C. 447 (3 N. S. 428).

In the ease last cited the guaranty read as follows:

“We, the undersigned, hereby jointly and severally guarantee to you the payment of any and all sums of money that may be loaned by you to the Carothers Publishing Co., on request of F. W. Garn, treasurer, providing the amount of said loan shall not exceed in the aggregate, $3,000.”

The circuit court, sitting in Lucas county, held that such a guaranty is not a continuing one but is restricted to the first $3,000 loaned.

Counsel for defendants in error relies very largely on the case of Rockford v. Rothschild, 9 Circ. Dec. 47 (16 R. 287), a decision also by the circuit court of Lucas county. In that case the guaranty under consideration was held to be a continuing guaranty, but the written instrument itself provided that it was to secure the sum guaranteed on open account, and the decision of the court is based upon that particular language. The decision is not, therefore, in conflict with the conclusion we reach in the case at bar.

Counsel for the defendants in error also relies on Wolf v. Shillito & Co., 9 Dec. Re. 273 (12 Bull 31), a decision rendered by the old district court of Hamilton county, but that ease appears to have been controlled and the conclusion'arrived at by a consideration of surrounding circumstances which are essentially dissimilar from those in the case at bar.

The general principles that control in determining whether a written guaranty is or is not continuing are clearly announced in 1 Brandt, Suretyship & Guaramty (2d ed.), See. 156 to 165, inclusive.

It follows from what has been stated that the judgment must be reversed, and, proceeding to enter the judgment which' should have been entered in the common pleas, a finding will be made for the defendant below and the petition dismissed.

Chittenden and Kinkade, JJ., concur.


author: HALE, J.

text:
    GAME
    [Cuyahoga (8th) Circuit Court,
    January 22, 1898.]
    Hale, Marvin, Caldwell, JJ.
    W. J. Phillips v. State of Ohio.
    Game Laws do Not Apply to Tamed Animals.
    A statute, making it unlawful to have in one’s possession certain animals, was intended to protect wild game animals, and does not apply to a case where the animals had been reclaimed and tamed and were in one’s possession at the date the law was enacted.
    Error.
   HALE, J.

The plaintiff in error, Phillips, was charged by affidavit, before a justice of the peace of this county, with having in his possession two fox squirrels, contrary to the provisions of Sec. 6961 R. S.

This statute provides in general terms that it shall be unlawful for any person to have, between the first of September and the fifteenth of December, any squirrels in his possession.

The plaintiff in error was tried, convicted and sentenced to pay a fine of $25 and costs. That judgment was affirmed by the court of common pleas, and it is brought here for review, and we are asked to reverse both judgments.

The fact disclosed by the bill of exceptions are, that Phillips had had for some seven years prior to the passage of the present statute, these squirrels in his possession; that they had become tame and were by him kept in the ordinary way in which pet squirrels are kept.

Our Supreme Court have said in Moore v. Given, 39 Ohio St., 661, that it is the duty of courts in the interpretation of statutes, unless restrained by the letter .of the statute, to adopt that view which will avoid an absurd consequence, injustice, or great inconvenience, as none of these can be presumed to have been within the legislative intent.

Of course, this charge is, that the plaintiff in error violated the section of the game law of this state, and that Sec. 6961 provides that no person shall, on any place, catch, kill, or injure, or pursue with such intent, any squirrel or other animals named (I will leave out the balance of the statute), and in violation of this statute shall be subject to a fine, of $25 and costs, except between the first day of September and the fifteenth day of December.

Section 6964 provides that whoever purchases, sells, exposes for sale or has in his possession any squirrel, etc., between the first day of September and the fifteenth day of December, inclusively, shall be fined as provided by another section.

It. is very evident that this statute, Sec. 6961, was intended to protect these, wild animals named, and to prevent their destruction, and, perhaps, extinction, and made it unlawful for any person to catch, kill or injure, or pursue with such intent, any such wild animals.

It is made unlawful to pursue, while at large, catch, kill or injure such animals.

It was not, in our judgment, the intention of the legislature to apply the statute to such animals as had been captured and had become the property of the person who made.that capture.

Section 6964, which I have read from, it is evident, was passed because it would be difficult and many times impossible to apprehend and punish the person who pursued and killed the game found in possession of another; and, hence, by this section, it is made unlawful for any person to have in his possession any of the animals protected by See. 6961.

But this section should be given by construction, in our judgment, the same limitation as that of Sec. 6964 and should not be held to apply to animals that had been reclaimed and were subject to lawful ownership.

This man had these squirrels in his possession at the time this section of the statute was passed as it now stands. He could not keep those squirrels in his possession if this statute was in“tended to apply to him — to a transaction of that Mnd. He could not kill them; he could not slaughter them; the only thing for him to do would be to turn them loose after they had been tamed and cared for, for seven years. Now we do not think this statute should be given an interpretation to apply that way. We do not believe this statute was intended to make such a transaction unlawful.

We, therefore, reverse the judgment of the court of common pleas and of the justice of the peace, and discharge the defendant below.

Marvin and Caldwell, JJ., concur.


author: MARVIN, J.

text:
    TAXES
    [Cuyahoga (8th) Circuit Court,
    March 28, 1905.]
    Marvin, Winch and Henry, JJ.
    C. August Krauss v. Cleveland (City) et al.
    Sewer District Tax Legal.
    Taxes may be levied at a uniform rate upon territory not constituting a political district or subdivision of a political district; hence, taxes for sewer purposes levied uniformly upon a sewer district are lawful.
   MARVIN, J.

The plaintiff is a resident and taxpayer of sewer district No. 1 of the city of Cleveland. He requested the city solicitor to bring this suit and he declined to do so. Suit was brought on behalf of the plaintiff and other taxpayers to restrain the payment of money for the construction of a sewer in Case avenue. This sewer had been contracted for and is now in process of construction, the city having passed an ordinance for the construction of said sewer and provided that 66 per cent, of the cost thereof should be paid out of the sewer fund of sewer district No. 1, 33 per cent, out of the sewer fund of No. 2 and 1 per cent, out of the sewer fund of district No. 7.

It is claimed, first, that this sewer is not needed. This is a main sewer, and it is for the council to determine the necessity for its construction. Unless the council abused its discretion in so determining its necessity, this court could not interfere. The evidence falls short of showing such abuse of discretion.

It is further urged that the council is without lawful authority to levy a tax upon such divisions of a city; that it may levy-assessments according to benefits for public improvements, but that the manner of securing the money for this improvement is not such as comes within this authority, and that therefore it must be that it is to be read as a tax. We hold that this money is to be paid out of money arising from taxation, but that taxes may be levied at a uniform rate upon territory not constituting a political district or subdivision of a political district.

In Bowles v. State, 37 Ohio St. 35, the first clause of the syllabus is directly in point; also the language of the opinion found on pages 39 and 40 of the report, which Ave will not stop to read.

In Root v. Board of Ed., 52 Ohio St. 589 [41 N. E. 135], the syllabus, and from the opinion on pages 596 and 597, it appears that as to each of these sewer districts to be charged with any portion of the expense of this sewer, the rate of taxation is uniform upon all of the property real and personal within such district. It is not uniform in all districts, but in each particular district it is uniform as to that district. This tax is for a sewer fund and is authorized by law.

In paying for this sewer, the council followed the method pointed out in Sec. 2406-6, R. S., an act which had not been held to be unconstitutional at the time the council acted, October 28, 1901.

Without discussing further the questions, we think that those to Avhich attention has been called determine the case, and the petition of the plaintiff is dismissed.

Winch and Henry, JJ., concur.