text:
    APPEAL — SPECIFIC PERFORMANCE,
    [Cuyahoga (8th) Circuit Court,
    March 27, 1905.]
    Maivin, Winch and Henry, JJ.
    William F. Prechtel v. Martin Prechtel.
    "1. Specific Performance of Oral Contract to Convey Land to Son for1 Services Rendered Parent Enforcible. .
    Where a father ora'ly agreed with his son that if the latter would stay at home and work the farm until the father’s debts were paid, that the father would thereupon pay the son $100 per year for his work and convey to him the farm, with a reservation of a life estate to himself; the son having-fully performed' and having added many valuable improvements to the farm may maintain an action for specific performance.
    2. Action for Specific Performance and Money Judgment Appealable.

      Where a party is to receive a conveyance of land and a sum of money upon a complete performance of his part of a contract, when he has fully performed he may maintain but one action, and there is but one cause of action for the money and conveyance, and such action is not triable to a jury and is appealable.
    Appeal.

      L. B. Tanney, for plaintiff.

      E. L. Iless&nmueller, for defendant.
   HENRY, J.

This action below was for money and specific performance. The parties are father and son, and the latter sues the former upon a parol agreement by which the son promised to stay at home and work the father’s farm until the father’s debts should be paid, whereupon the son was to receive one hundred dollars per year for the time so consumed and a conveyance to him of the farm, subject, however, to a life lease to be retained by the father.

The amended petition in form embraces two causes of action, of which the first, after setting out the contract, alleges that there is a certain sum of money earned by and due to the plaintiff. The second cause of action, by appropriate averment, makes the allegations of the first cause of action a part thereof, sets out improvements made by plaintiff upon the farm on the faith of said agreement, and alleges that plaintiff, after having fully performed the agreement requested a conveyance of the farm, which defendant however refused.

The court below sustained a demurrer to the second cause of action, whereupon final judgment was rendered and this appeal was perfected. Meanwhile, the first cause of action, being tried to a jury, resulted in a verdict for plaintiff. But on motion the court granted a new trial, so that no judgment for money was rendered; and that branch of the case is, in form, still pending in the court below, awaiting such new trial.

The question thus arises at the outset here whether this appeal has brought up both causes of action, or neither, or the second cause only. At the oral hearing and before we had inspected the pleadings, we were of the opinion, and so stated, that the first cause of action was not before us. But on examination of the amended petition we find, as already stated, that the second cause of action by express averment embodies all the allegations of the first cause. This mode of pleading is expressly sanctioned by the act of May 12, 1902, 95 O. L. 652. It follows therefore that if the two supposed causes of action are of such a nature that they should or may be lawfully consolidated, the plaintiff has successfully accomplished that result. And if the single cause of action thus stated, is one wherein the right to demand a jury did not exist, the case is appealable, Sec. 12224 G. C. (Sec. 5226, R. S.). Nor is this rule varied by the circumstance that the defendant filed an answer in the court below under favor of Sec. 5066 et seq., wherein he demands affirmative relief to consist of a judgment for money only. Sallady v. Webb, 1 Circ. Dec. 638 (2 R. 553).

Upon the question whether the cause of action is single or plural in its nature, the language of Williams, C. J., in Hull v. Bell Bros. 54 Ohio St. 228, 238 [43 N. E. Rep. 584], is directly in point. He says:

‘‘ The action brought by the plaintiffs below was one for the specific performance of a contract, by the terms of which the defendants jointly bound themselves, for an entire consideration agreed upon, to convey to the plaintiffs certain designated lands, and pay a specified sum of money. It may be conceded that if, before the bringing of the suit, the stipulations of the contract with respect to the conveyance of the lands had been performed, and no obligation of the defendants remained unfulfilled except that relating to the payment of the money, an action for its recovery would not be one in which an appeal could be taken. But in the action brought, the payment of the money was sought to be enforced in connection with, and as a part of the contract for, the conveyance of the- land. The plaintiffs were not required, nor permitted, to divide their action into as many separate ones as there were stipulations in the contract which the defendants were bound to perform; nor, in the same action plead each stipulation as a distinct cause of action. The petition properly states the facts as constituting one cause of action, which is for the specific performance of all the provisions of the contract which the defendants had bound themselves to perform.”

And in the same case it was held, in the second paragraph of the syllabus, that:

“An action to enforce the specific performance of a contract for the conveyance of land and the payment of money, is not an action for the recovery of specific property, nor for money only, within the purview of Sec. 5130 R. S., and neither party is entitled to demand a jury trial. ’ ’

We hold, therefore, in the case before us, that the case is appealable, that the appeal is not premature, and that it brings the whole case into this court.

Proceeding now to the consideration of the demurrer to the petition, the defendant claims that every aspect of plaintiff’s cause of action is barred by the statute of frauds (See. 4199 R. S.). With respect to the claim for wages it is enough to say that the contract was one which might or might not be performed within one year accordingly as circumstances should develop. Such a contract is not within the statute. Randall v. Turner, 17 Ohio St. 262; Blakeney v. Goode, 30 Ohio St. 350.

As an agreement to convey land, the contract is admittedly within the statute, unless the allegation as to possession and part performance suffice to take it out. The defendant very properly points out that, inasmuch as the plaintiff alleges that he was to work defendant’s farm and that even when the conveyance to him should be made it would still be subject to the father’s life estate, there would be no such possession by plaintiff as would of itself take the case out of the statute.

But the ease is otherwise as to other aspects of the claim of part performance. The plaintiff alleges that he had expended much labor and money in the permanent improvement of the premises by putting in tile drains, a gas well, fruit trees, etc., all of which are manifestly referable to his prospective ownership of the land under this contract. These facts are almost identical with those in O’Hara v. O’Hara, 9 Circ. Dec. 293 (16 R. 367), wherein specific performance of a like contract was decreed by the court, it being held that improvements of a much more equivocal character than those herein alleged, were sufficient to take the ease out of the statute of frauds. We are quite in accord with that view, and the demurrer is therefore overruled.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: JONES, O. B., J.

license: Public Domain

text:
    ASSESSMENTS — LIMITATION OF ACTIONS.
    [Hamilton (1st) Court of Appeals,
    March 26, 1914.]
    Swing, Jones and Jones, JJ.

      John H. Dickerson v. Cincinnati (City) et al.
    Four Years Statute of Limitations Applies to Collection of Street Assessments.
    An action to enjoin the collection of a street assessment payable in annual installments is not barred by the statute of limitations where brought within four years from the time any particular installment of said assessment which is being contested became due.
    Error.

      H. E. Engelhardt, for plaintiff in error.

      E. K. Bowman, for defendant in error.

      Affirmed, no op., Cincinnati v. Dickerson, 91 O. S. 000; 59 Bull 481.

   JONES, O. B., J.

In the ease below a petition was filed on December 17, 1912, in the court of insolvency of Hamilton county, against the city of Cincinnati and its auditor and treasurer, and the auditor and treasurer of Hamilton county, in which it was sought to enjoin the certification and collection of assessments made for the improvement of Grandin road,, payable in ten annual installments. The ordinance under which said assessment was levied was passed January 27, 1908, and provided that the entire amount levied might be paid in cash within thirty days from the taking effect of said ordinance, and if not so paid should be collected in ten annual installments payabe on the same date on the ten consecutive years commencing in 1909, one-tenth of said assessment, with interest on the bonds, being collected in each of said years.

A general demurrer was filed to said petition and was sustained by the court on the ground that the action was barred under the four years limitation provided by See. 11224 G. C.

We do not think that this action is barred. The injury complained of against which the injunction is sought is the collection of the assessment. The plaintiff evidently did not exercise his option under the ordinance to pay the assessment in cash, and the first installment thereof did not therefore become due until some date after January 27, 1909, depending on the date that the ordinance went into effect after its publication, which is not shown in the record. The four years limitation as to the first installment, therefore, would not be reached until March, 1913.

A similar holding is found in Gault v. Columbus, 30 O. C. C. 335 (10 N. S. 263).

The demurrer should have been overruled.

Judgment reversed and cause remanded for further proceeding.

Swing and Jones, E. H., JJ., concur.


author: HENRY, J.

text:
    MUNICIPAL CORPORATIONS — OFFICERS.
    [Cuyahoga (8th) Circuit Court
    March 18, 1905].
    Marvin, Winch and Henry JJ.
    Cleveland Elec. Illum. Co. v. Edmund Hitchens, et al.
    Mayor’s Presenting Charges Against Officers not Applicable to Councilmen.
    Section 225 of the municipal code Sec. 4263 G. C. has no application to the presentation and trial of 'charges against members of the city council.
    Appeal.
   HENRY, J.

This cause comes into this court on appeal and has been heard here on demurrer to the answers of the defendants. The object of the suit is to enjoin the members of council of the city of Cleveland from enforcing the production by plaintiff of its corporate books of account as evidence before council in the trial of charges presented by the mayor against certain members of council under Section 225 of the municipal code (Secs. 4263 G. C. et seq.). The municipal code seeks to keep the legislative functions distinct from their executive functions. Section 116 (Sec. 4206 G. C.) provides that “the legislative power of every city shall be vested in, and exercised by, a council,” the members of which are forbidden by Section 120 (Sec. 4207 G. C.).to hold any other public office or employment.”

Section 123 (Sec. 4211 G. G.) provides that:

‘ ‘ The powers of council shall be legislative only, and it shall perform no administrative duties whatever, and it shall neither appoint nor confirm any officer or employe in the city government except those of its own body, except as may be otherwise provided in this act.”

Section 128 (See. 4246 G. C.) provides that:

“The executive power and authority of cities shall be vested in a mayor, president of council, auditor, treasurer, solicitor, department of public service, department of public safety, and such other officers and departments as are created by this act.”

The code not only does not mean to grant, but on the contrary it expressly prohibits to council the exercise of administrative power. Hence the phrase “other officers.” in the section just quoted, can not be construed to include members of council. We think it is clear also that when in Section 225, the code provides for presentation by the mayor and trial by council of charges against ‘! the head of any department or officers provided for in this act,” the heads of departments and officers meant are those mentioned in Section 128. It is true that the words, “office” and “officer” are sometimes used in the code with the broader meaning, so as to include members of council. But the-code’s express separation of the executive and legislative-branches of city government seems to indicate a different construction of the provision of Section 225 making it “the duty of the mayor to have a general supervision over each department and the officers provided for in this act” and in proper-cases to make charges against them.

This construction of Section 225 of the code does not result in exempting members of council from the presentation and' trial of charges against them, for Section 121 of the code and Sections 1732 to 1736, Revised Statutes (Secs. 4670 to 4675 G. C.), make ample and express Drovision in that behalf. By every rule of construction we are oound to conclude that these-provisions of law as applicable to members of council exclude-the application to them of Section 225 of the code. The latter contains at most but a doubtful grant of corporate power in this behalf, and such a doubt must be resolved against the existence-of the power. It is, moreover, a penal statute, and therefore it is to be strictly construed. Finally, express provisions of law covering the subject of the presentation and trial of charges-against members of council must be held to exclude a resort to-another similar statutory provision not clearly applicable to-them.

Entertaining the view thus expressed we have not deemed' it necessary to examine the other questions presented. The-plaintiff may take a decree in accordance with the prayer of the petition.

Marvin and Winch, JJ., concur.


text:
    CIVIL SERVICE — OFFICERS—SCHOOLS.
    [Hamilton (1st) Court of Appeals,
    September 26, 1914.]
    Swing, Jones and Jones, JJ.
    State ex rel. Bartholomew v. Richard B. Witt, Treas.
    1. Janitor of a Public School Building is in Civil Service.
    Under tbe rules of tbe board of education of Cincinnati a janitor of a public school building is an employee of tbe board rather than an independent .contractor.
    2. Hold Over Janitors Subject to Noncompetitive Examination.
    Such janitor of a public school building is within the classified service, but those who were legal incumbents of the position at the time of the passage of the civil service act are entitled to hold over, subject to a noncompetitive examination.
    3. Mandamus Lies to Compel School Treasurer to Pay School Building Janitor.
    Where the money has been drawn by the treasurer of a school district for payment of any salary due one legally employed as janitor and there is no sufficient reason for his not paying it over, a writ of mandamus will issue to require such payment.
    [Syllabus by the court.]
    Mandamus.

      E. M. Ballard, for plaintiff.

      Walter M. Schoenle, city solicitor, and Charles A. Groom, for defendant.
   JONES, O. B., J.

The board of education of Cincinnati has provided certain rules for janitors and engineers, under which a janitor, janitor-engineer, or janitress shall be appointed in each school building and graded according to the character of heating plants and closet systems, and shall be at all times subject to the direction of the mechanical engineer or his representative and under the immediate supervision of the principal of the school. Under this arrangement the janitor has general supervision of and responsibility for the school building, yard, machinery and equipment committed to his charge. It is his duty to employ and pay out of the compensation allowed him all necessary assistants and provide all necessary supplies in the way of buckets, soap, brooms, etc., that may be required by him in cleaning and caring for said property. A compensation, which is also termed “salary” in the code of rules prepared by the board, is fixed on a per diem basis, determining the entire compensation for the care of each building, yard and apparatus on a schedule which provides for a computation by the square feet of floor space and yard surface and the character of heating, the number of boilers used, the number of stoves, pumps, shafting, engines, dynamos, electric motors, etc., the entire compensation being determined by this schedule. The rules provide for dividing the amount of such compensation treated as a yearly salary, by 313 for the per diem compensation, and for the payment thereof on the regular salary days of the board, for the number of days included in the period elapsing from the previous salary day.

The relator in this case has been a janitor of Woodward high school since June 26, 1911, and claims in the petition herein that the relations existing between him and the school board, in rendering such service as janitor were those of a contractor with the board, rather than the relations of an employee. Under the rules of the board of education he was entitled to receive $8,238.82 per year for the care and custody of said building and apparatus, out of which he was required to pay the necessary help and to purchase the necessary supplies for cleaning said property and keeping the same in order in accordance-with said rules. Relator alleges the performance of all of his. duties and requirements under said conditions and payment for same up to August 3, 1914, and that an order has been made-by the board of education for the payment to him of the sum of $631.20 for services in 'said capacity between August 3, 1914, and August 29, 1914; that pursuant to the action of the board of' education ordering such payment the clerk of said board drew a check or voucher on the deposito^ in which the funds of said school district are deposited, against the proper fund, which, voucher or check wras signed by the necessary officers, and that the defendant in this ease, who is the treasurer of the city school district of Cincinnati, drew from said depository the sum in. cash necessary to pay the compensation due to relator in accordance with said action of the board; that he now holds said sum of $631.20 for such purpose, but refuses to pay it over to relator, who prays that a writ of mandamus issue conmmanding said treasurer to pay to him said sum.

The ansAver of the treasurer alleges that the relator is within the civil service of the school district of Cincinnati and within the elaissified service thereof. He denies that relator stands in a contract relation Avith the board of education, and alleges that the relator was appointed as a janitor and was paid a salary in accordance with the pay roll transmitted by the board of .education to the defendant for payment. He denies that said board of education had any authority under the law to enter into a contract as claimed by relator because of the statute providing for the employment of janitors by appointment, and alleges that said position of janitor is.within the classified service of said school district. His answer fails to allege any reason why the defendant should not pay over the money which he has drawn from the depositor for payment to relator.

From the argument of the case however, it would appear that defendant has declined to make this payment by reason of the provisions of Sec. 486-21 G. C. (Sec. 21 of the act, 103 O. L. 710).

The first question to be considered is the nature of the relations between relator and the board of education, whether as janitor, under the rules and regulations of the board he is an employee of the board, or whether he is an independent contractor.

In the broad sense of the term, every employee, sustains a certain contract relation Avith his employer. A careful examination of the laws relating to the board of education fails to show lack of authority on its part to make and carry out the rules and regulations provided for the care and maintenance of its buildings. Broad powers are given to the board under Sec. 7620 G. C., to “make all other provisions necessary for the convenience and prosperity of the school.” The usual limitations as to public letting of contracts by bids seem to be required as to such board only as to matters falling within the terms of Sec. 7623, G. C., with reference to buildings and repairs Gosline v. Board of Education, 30 O. C. C. 503 (11 N. S. 195). Section 7690 G. C., authorizes the board to appoint janitors and fix their salaries. This, no doubt, may be done either in the customary way of appointing each person serving in such capacity and fixing a monthly or yearly salary for his particular service or in the manner which has been provided by the plan adopted by the Cincinnati board. Whether or not such a plan is contrary to public policy is addressed rather to the general assembly than to the court, and, finding as we have said, no inhibition against such an arrangement in the law, we arrive at the conclusion that the method of employing janitors adopted by the Cincinnati board is legal.

Under the law as we view it, it is possible that the board of education might provide for this service by an independent contract, or by direct employment.- Considering however the terms expressed in the rules and regulations, the manner of employment of relator, the fact that no written contract was prepared and signed between the parties and that his relations with the board are subject to termination at any time, we must conclude that his position is rather that of an employee than an-independent contractor.

The case of State v. Board of Education, 34 O. C. C. 315 (20 N. S. 159), has been relied upon as holding that a janitor under such a regulation was in no sense an employee. The language used in the opinion in that case might be so construed, but was not intended to have that effect nor was such ruling necessary for the purposes of that case.

The next question to determine is whether or not the relator comes within the provisions of the civil service law as found in 103 O. L. 698. The general terms embraced in this law convince the court that such a position as is occupied by the relator is intended to fall within the class of service covered by Sec. 8 (b) as found on page 702 (G. C. 486-8), and should be included within the classified service subject to the rules provided by said act. Had an exemption been intended for this class of service it should be found among the paragraphs under Sec. 8 fa). The evident purpose of the act found in 103 O. L. 698, was to bring all classes of public service in the state, city and school district within its provisions, subject only to the exceptions therein contained. The position held by relator not being named among those exceptions he must be held to be a public employee within the classified service as defined in Sec. 8 (b) of said act. But as a legal incumbent of the position at the time of the passage of the act he would be entitled to hold it subject to a noncompetitive examination as provided in See. 10 of the act.

The real question, however, raised by the pleadings is whether the treasurer is justified in refusing to pay over to the relator the amount of money drawn by the treasurer from the depository for the benefit of the relator. As above stated, defendant’s counsel relies upon Sec. 486-21 G. C. as a defense. A careful examination of this section shows that it is intended to prevent the drawing of a warrant on the treasurer, for the .payment of -salary or compensation to any person in the classified service unless the estimate, pay roll or account for such salary or compensation should have the certificate of the State Civil Service Commission, or in case of service in the city, the certificate of the municipal civil service commission. It will be noticed while the first part o'f this section in relation to the. drawing of a warrant includes the fiscal officer of a city school district the provision in regard to a certificate by the civil service commissioner relates to the service of a city and fails to include specifically the service of a city school district. The last part of this section makes liable for the repayment of money improperly paid both the officer making an appointment in contravention of the provisions of law and the officer signing, countersigning or authorizing any warrant for the .payment of same. It will be noticed that the defendant in this case would not be included in the liability fixed by this statute. There is nothing in the pleadings of record of this case as to' whether or not the payroll estimate or voucher upon which this money was drawn bore the certificate of the city civil service commission, but as the court has found that the relator was regularly and legally employed, it was the duty of the civil service commission to so certify his payroll or voucher. The money has actually been drawn and is in defendant's hands for the benefit of relator. No legal reason is shown by him for not paying it over.

A writ of mandamus will therefore issue as prayed.

Swing and Jones, E. H., JJ., concur.


author: JONES, T. A., J.

text:
    CARRIERS.
    [Lawrence (4th) Court of Appeals,
    December 5, 1913.]
    Jones. Walters and Sayre, JJ.
    Chesapeake & O. Ry. v. W. T. Ward Lumber Co.
    1. Connecting Carrier Liable for Defaults of Initial Carrier;
    Unless controlled by legislation, the rule in Ohio is that a consignment beyond an initial carrier’s line is a through contract; the connecting carrier becomes the agent of the receiving carrier and the latter is liable for the defaults of the former in the carriage cf goods.
    2. Initial Carrier may Contract to be Exempt From Default Beyond Its Line.
    Subject to the same limitation, the initial carrier has the right to specially contract for a limitation of its liability to its own line; and a provision in the bill of lading, agreeing to carry to destination, if on its own road, otherwise to deliver to another carrier on the route to said destination, exempts it from damages occurring on a connecting line.
    3. Carmack Amendment Puts Liability on Initial Carrier for Full Route in Interstate Commerce.
    The Carmack amendment of June 29, 1906, of Sec. 20 in the act of congress regulating interstate commerce, controls contracts of inierstate shipments. Under it the reception of freight for transportation from one state to another imposes liability on the initial carrier for the whole route; and the contract becomes one for through carriage.
    4. “Loss, Damage, or Injury to Property” Includes Excessive Freight by Misrouting.
    The liability imposed by said amendment for “loss, damage, or injury to property” caused by any carrier includes any damage by reason of excessive freight charges caused by misrouting by a connecting carrier.
    [Syllabus by the court.]

      Henry Bannon, for plaintiff in error.

      J ohnson c& J ones, for defendant in error.
   JONES, T. A., J.

Suit was brought by the W. G-. Ward Lumber Company, the consignor, in the court of common pleas, against the Chesapeake & Ohio Railway Company, as the initial carrier of a car of lumber, which was consigned to it at Garrison, Kentucky, to be shipped over the Chesapeake & Ohio and connecting lines to Kemptville, Ontario. The Ward Lumber Company had sold this lumber to the Canadian Pacific Railway. For convenience of billing it had billed it to Kemptville, Ontario, but routed it in care of the Canadian Pacific Railway at Detroit. The initial carrier took the car to Cincinnati, the terminus of its own line, and there delivered it, with shipper’s instructions, to the Cincinnati Northern, a connecting carrier, to be shipped to its destination. The connecting carrier omitted the notation upon its waybill that it received from its initial carrier and misrouted the car of lumber so that it reached St. Thomas, Ontario, a point which was between its origin and destination, but which was upon the line of the Canadian Pacific Railway. The original bill of lading contract between the shipper and the Chesapeake & Ohio Railway contained a notation in ink consigning the car to the “Canadian Pacific Ry. Co., care of A. Franhofer, Kepmtville Jet., Ont., care of C. P. Ry. at Detroit.” The waybill of the initial carrier contained those notations with the additional notation: “Via Cn., M. C. & C. P. R. at Detroit.” The Cincinnati Northern Railway, the connecting carrier, omitted from its own waybill the notation: “Via Cn., M. C. & C. P. R. at Detroit.”

The original bill of lading had the following stipulation printed therein:

“The property described below in apparent good order * * * which said company agrees to carry to the said destination, if on its road, otherwise to deliver to another carrier on the route to said destination.”

It is also agreed in the printed form that every service to be performed under the bill of lading “shall be subject to all the conditions, whether printed or written, herein contained.”

One of the conditions printed and endorsed on the back of the bill of lading was:

“No carrier shall be liable for loss or damage not occurring on its own road or its portion of the through route, nor after said, property is ready for delivery to the next carrier or to consignee.”

It appears from this record that the consignor, the lumber company, had not only sold the car of lumber to the Canadian Pacific Railway Company, but in order to avoid the additional freight had noted it on the bill of lading in care of the Canadian Pacific Railway Company at Detroit. By the misrouting of the car to St. Thomas, Ontario, a larger freight was superadded, which the Chesapeake & Ohio Railway Company collected, amounting to the sum of $96.33, the rate from Garrison, Kentucky, to St. Thomas, Ontario. Had the car been properly routed to the Canadian Pacific’s care at Detroit the amount of the freight would have been $51. It was for the amount of the overcharge of $45.33 which the Chesapeake & Ohio collected that this suit was brought by the consignor.

The foregoing facts are practically conceded in the case. The sole question arising from this state of the record is whether, under the facts, the Chesapeake & Ohio "Railway Company, as the initial carrier, is liable for the misrouting of the car of lumber by its connecting carrier and for the additional freight by it collected.

A large number of authorities, both text and judicial decisions, as bearing upon this question have been cited by counsel in this case.

The English rule upon this subject is, that where goods have been consigned by a shipper to a consignee beyond the terminus of the initial carrier the contract of affreightment is prima facie a through contract and the connecting carriers became agents of the initial carrier and their, default becomes the default of the initial carrier.

The leading English case upon this subject is found in Muschamp v. Railway, 8 M. & W. 421. This case was decided in 1841.

The English rule has been followed by a minority of the American states, and we think it can be conceded that Ohio is found among the number of states aligning itself with the principle adopted by the English rule. That which is known, however, as the American rule is otherwise, and that is: That when a consignment has been made beyond the terminus of the initial carrier’s line, in the absence of any special contract to the contrary, the mere fact of the consignment beyond its terminus does not ipso facto make it a through contract, and the initial carrier becomes liable only for default upon its own line.

The latter is the rule adopted by the United States Supreme Court and by the courts of a majority of the states which have been called upon to pass upon the subject.

The English rule seems to have been applied, in principle, in the cases of Baltimore & O. Ry. v. Campbell, 36 Ohio St. 647 [38 Am. Rep. 617], and Stevens v. Railway, 31 Circ. Dec. 168 (20 R. 41).

“While the foregoing may be recognized as the general rule applying to bills of lading or contracts of affreightment between consignor and consignee when shipping over connecting lines, there is no court, so far as we have been able to ascertain, whether following the American or English rule, that has not recognized the contractual right of an initial carrier to specially contract for the carriage of goods to the termination of its own route.

This principle has been unequivocally adopted in the case of Cincinnati H. & D. Ry. v. Pontius, 19 Ohio St. 221, in that ease the bill of lading contained the provision that the goods were to be transported by the initial carrier “to its terminus, and there delivered to the agents of connecting steamboats, railroad companies, or forwarding lines.”

The Supreme Court held that this contract was not a through contract which would carry them to the city of New York, bue was merely a contract to carry them to Dayton only, which was the terminus of the initial carrier’s road. On page 237 of that ease Welch, J., says:

“It was surely in the power'of the parties, notwithstanding the destination of the goods, to make an express agreement that the company should only take them to Dayton. And had they undertaken to make such an agreement, they could hardly have embodied it in language more plain and direct than that they have used. No case is shown, English or American, where an explicit contract like this has been held to be overruled or varied, by the simple fact that the goods were received with the knowledge that they were consigned to a more distant point than that specified in the contract.”

The right to limit its liability for carriage to its own terminus is also recognized by Judge Okey in Baltimore & O. Ry. v. Campbell, supra, wherein he says:

“Of course tbe carrier selling such ticket may lawfully agree with the passenger that it shall not be liable except for loss or damage occurring on its own road.”

In view of the authorities, therefore, we are of the opinion that when the initial carrier in this case contracted, by its bill of lading, and agreed “to carry to the said destination, if on its road, otherwise to deliver to another carrier on the route to said destination,” it exempted itself from the general rule by special contractual provision, and that its liability ended at its terminus, Cincinnati, if it delivered the goods to its connecting carrier, together w'ith the notation of shipping instructions on its bill of lading.

The record in this case shows that there was a notation on this bill of lading'that this ear was to be shipped in care of the Canadian Pacific Railway Company at Detroit; it further shows that the initial carrier complied with its duty in delivering said car together with said shipping instructions, to its connecting carrier. It would seem, therefore, that in this case the Chesapeake & Ohio Railway Company acted both in the capacity of carrier and forwarder. It was to carry the goods to its terminus at Cincinnati and there deliver the same to a connecting line.

A ease analogous to this in principle, although applied conversely, is found in Little Miami Ry. v. Washburn, 22 Ohio St. 324. To first proposition of the syllabus is:

“A common carrier who undertakes to transport goods over the whole or any part of his own route, and then to forward them to a designated destination beyond, is bound to transmit with their delivery to the carrier next en route, all special instructions received by him from the consignor; and in default thereof, in any material or substantive particular, to stand responsible for, and make good, the loss to which such negligence shall have contributed.”

Our conclusion, therefore, upon the subject is that, by reason of this special provision entered into between the shipper and the Chesapeake & Ohio Railway Company, as the initial carrier, this was a contract to carry to its terminus only, and there deliver to its connecting carrier to be forwarded to destination.

This being the case, upon the facts stated, the Chesapeake & Ohio Railway Company was entitled to judgment unless the special contract has been annulled by the adoption by congress of the Carmack amendment to Sec. 20 of the Hepburn law (34 U. S. Stat. at L. 595), which reads.-

“That any common carrier, railroad or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it to any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company for liability hereby imposed.”

Counsel for the railway company concedes the force of the amendment only holds the initial carrier to such liability as may result from actual 4'"loss, damage, or injury to such property;” that, since the cause of action here was for excessive freight charges caused by the misrouting of its connecting carrier, the liability for such excessive charges does not fall within the terms of the act; and that the initial carrier is not, therefore, chargeable with the dereliction of its connecting carrier.

Does the negligent act here resulting in the excessive charge come within the intendment of the act?

It is the universal rule of statutory construction that the mischief to be remedied is the greatest subject for the court’s consideration when it comes to pass upon the interpretation of doubtful phrases.

What was the condition before its passage ? What mischief was to be corrected, and what remedy did the legislative authority have in mind?

By the joint action of railways in the carriage of goods beyond the receiving carrier’s line, there had developed a uniformity of operation between the various connecting lines, prescribing, by a common arrangement for through rates, for continuity of transportation and for a single collection by one carrier of the entire charges which were thereafter prorated among the several carriers engaged; at the same time a custom had also developed by which the initial carrier limited its liability to its own route, thus causing the shipper all of the inconvenience of locating the liability and thereafter seeking redress in a distant jurisdiction.

These and other considerations caused the action by congress in its regulation of interstate shipments; its purpose was to stamp the contract between the shipper and the initial carrier as a through bill of lading in every case where the shipment wás to be made to another state.

It would be futile to here revert to the reasons and purposes of congress in adopting the Carmack amendment. These are found both in the speeches of the congressmen who advocated its passage and in the opinions of our highest federal judges in interpreting its scope and effect.

It has been held that the Carmack amendment, in all such cases of interstate shipments, has impressed upon the contract of shipment the character of a through contract and has converted every connecting carrier engaged therein as an agent of the initial carrier. The bill of lading, therefore, is a through contract of shipment, and the ordinary common-law liability arises from the negligent defaults of connecting carriers in cases of that kind.

The United States Supreme Court seems to have taken this view of the scope and effect of the act.

In the ease of Atlantic Coast Line Ry. v. Riverside Mills, 219 U. S. 186, 198 [31 Sup. Ct. Rep. 164; 55 L. Ed. 157], Justice Lurton says :

“Congress by the act here involved has declared, in substance, that the act of receiving property for transportation to a point-in another state and beyond the line of the receiving carrier shall impose on such receiving carrier the obligation of through transportation with carrier liability throughout.”

And further on he says:

“Reduced to the final result, the congress has said that a receiving carrier, in spite of any stipulation to the contrary, shall be deemed, when it received property in one state to be transported to a point in another involving the use of a connecting carrier for some part of the way, to have adopted such other carrier as its agent, and to incur carrier liability throughout the entire route.” * * *

And the learned justice further on emphisizes the fact that if the carrier is obliged to use connecting carriers as agents, the receiving or initial carrier must use them as its agents and not as agents of the shippers.

The foregoing case was later followed by the Supreme Court of the United States in the case of Galveston, H. & S. A. Ry. v. Wallace, 223 U. S. 481 [32 Sup. Ct. Rep. 205; 56 L. Ed. 516], where the seventh proposition of the syllabus states:

“Under the Carmack amendment, wherever the carrier voluntarily accepts goods for shipment to a point on another line in another state, it is conclusively treated as having made a through contract, Atlantic Coast Line Ry. v. Riverside Mills, supra, it thereby elects to treat its connecting carriers as its agents and the presumptions are that if goods are lost the loss results from the negligence of itself or of its agents.”

There may be some doubt as to whether the word “loss” in the act is related to the word “property,” since it is followed by a comma and by the conjunctive “or.” Counsel for the lumber company also insist that an excessive freight charge constitutes an indirect loss to. the property, since, to the extent of the freight charge, the property is made less valuable.

Although the Carmack amendment was not involved it has been held that, in a contract for through shipment, an excessive freight charge by reason of misrouting, such as was made in this case by the connecting carrier, was a liability imposed on the initial carrier. Lord v. Railway, 155 Mo. App. 175 [134 S. W. Rep. 111].

In the case of Missouri, K. & T. Ry. v. Grain Co. 103 Tex. 542 [131 S. W. Rep. 410], the Carmack amendment aforesaid was so construed as to hold the receiving carrier liable for delay in transportation only. In that case there did not seem to be any liability asked for loss,, damage or injury to the property shipped.

We therefore think and conclude that the bill of lading here is converted by the amendment into a through-carriage contract, and is impressed with the common-law obligations resulting therefrom; that the default of its connecting carrier in misrouting the lumber was the default of an agent of the defendant below. The defendant, therefore, is liable in this case.

The judgment of the lower court is affirmed without alty and the cause remanded for execution.

Judgment affirmed.

Walters and Sayre, JJ., concur.


author: HENRY, J,

text:
    PARTIES — PLEADING.
    [Cuyahoga (8th) Circuit Court,
    May 27, 1907.]
    Marvin, Winch and Henry, JJ.
    (Winch, J., not sitting.)
    Myers Heller and Moses Mayers v. Harry Greenberg.
    Substituted Defendant Answering to Merits Cannot Demur to Amended Petition for Defect of Parties.
    A defendant, substituted after the original defendant is dismissed, cannot after answering to the merits of the controversy, raise the question as to whether he was properly brought into the case, by demurring to the second amended petition on the ground that there was a defect of parties defendant, when the petition states a cause of action.
    Error.

      Benesch & Eornhauser and E. S. Brudno, for plaintiffs in error.

      Myler & Turney, for defendant in error.
   HENRY, J,

The petition in error prays a reversal of a judgment upon the pleadings rendered against the plaintiffs below. The original action was begun February 9, 1905, under the title of Myers Heller and Moses Mayers, as plaintiffs, against Jennie Greenberg, defendant, and prayed for the specific performance of a contract for the sale of real estate made by A. Greenberg, alleged to have been acting for and on behalf of the said Jennie Greenberg.

February 17, 1905, an amended petition was filed, under the title of Myers Heller and Moses Mayers, plaintiffs, against Harry Greenberg, defendant, thus changing the title of the cause, in violation of the requirement of Sec. 4972 R. S., that “the title of a cause shall not be changed in any of its stages except when the defendant prosecutes error.” This irregularity, however, seems to have been ignored. No leave of court had been obtained to make Harry Greenberg a new substituted party defendant, but on May 31, 1906, he answered to the merits, thus waiving this irregularity also.

On November 8, 1906, Emma Seidman, Sarah Hammer and Henrietta Greenberg were made new parties defendant,, and were subsequently served with summons. Thereafter,, various interlocutory proceedings were had culminating finally in the filing of a second amended petition against. Harry Greenberg alone, and an entry of dismissal as to all other parties defendant. Upon the same day Harry Green-berg filed his demurrer in the following words (omitting caption and signature): “Come now the defendant, Harry Greenberg, and demurs to the second amended petition of the plaintiffs herein filed, on the following ground, to wit-defect of parties defendant.”

On April 25, 1907, this demurrer was sustained, and on April 29, judgment on the pleadings rendered for the defendant, as already stated.

The various changes of defendants in this action seem to-have been due to uncertainty on the part of the plaintiffs as to the person or persons on behalf of whom, as owners of the property “A. Greenberg, trustee” was acting when he signed the contract in question.

The second amended petition alleges that on the date of said contract, Harry Greenberg was the owner in fee simple of the real estate described therein, and that he, “by his. agent, A. Greenberg, entered into an agreement in writing with said plaintiffs, whereby in consideration of the sum of $9,000 to be paid to him by the plaintiffs * * * said defendant was to give said plaintiff a warranty deed” of said premises.

The petition further alleges that plaintiffs tendered the price stipulated and demanded a conveyance of the premises',, but that defendant refused to make the conveyance.

There is no suggestion in this petition that any other persons than the plaintiffs’ the defendant land the latter’s agent, are in any way parties to this contract, or that any other persons than the principals named are necessary parties to this action; it follows, therefore, that the demurrer for “defect of parties defendant” should have been overruled.

The contention urged by the defendant, who is also defendant in error here, is that the “defect of parties defendant” complained of consists in the dropping of the original •defendant for whom the present defendant is substituted. He urges that a complete substitution of parties defendant in this manner is not permissible and that although new parties •defendant may be added, a defect of parties arises when the •original defendant is dismissed. ¥e think, however, that this is at most a mere irregularity, warranting in the discretion of the court a dismissal of the action, or the striking from the files the pleadings, by which the substitution was, without leave, effected, provided the objection is seasonably made. Under the ample power of amendment given by the code of civil procedure, such an irregularity may, however, be waived, by the substituted defendant pleading to the merits, as in this case was done, when the defendant, Harry Greenberg, filed his answer to the first amended petition.

As said in Becker v. Walworth, 45 Ohio St. 169, 175 [12 N. E. Rep. 1] :

“Our practice encourages great liberality in pleading, and the code enjoins the duty of allowing amendments at all stages of a case, in furtherance of justice. The commencement of the action by the filing of an original petition against defendant as executor worked no prejudice to him, and it is not easy to see why such commencement of the action should preclude amendment on the part of the plaintiff in order to charge him personally. It was no more than the discontinuing of one action and the commencement of another, and this may have been induced by the discover that the one would prove wholly fruitless.”

Also see Lake Shore & M. S. Ry. v. Elyria, 69 Ohio St. 414 [69 N. E. Rep. 738]; McAlpine v. Finsterwald, 57 Ohio St. 524 [49 N. E. Rep. 784] ; and Hanna v. Petroleum Co. 23 Ohio St. 622.

For error in sustaining the defendant’s demurrer to the second amended petition and for error in rendering judgment in his favor upon the pleadings the judgment below is reversed, and the cause remanded.

Marvin, J., concurs.


text:
    CARRIERS — RAILWAYS.
    [Cuyahoga (8th) Circuit Court,
    May 27, 1907.]
    Marvin, Winch and Henry, JJ.
    (Winch, J., not sitting.)
    *Lake Shore & M. S. Ry. v. Selig Dallet.
    Railway not Liable for Injury to one Alighting From Train After Escorting Passenger on Board.
    Where one who Las gone aboard a train to assist another is injured in alighting from the train after it is in motion, the railroad company is not liable, if it had not misled him by any false appearance of safety and had not put him under any compulsion in respect to leaving the train.
    Error.

      Foran, Pearson & Powell, for plaintiff in error.

      Neff & McTigue, for defendant in error.
   HENRY, J,

The sole question in this case is whether one who sustains; injuries under the following circumstances, can recover damages therefor from a railroad company.

Dallet, an elderly but vigorous man, assisted his niece to-board and find a seat in a Pullman ear in the evening. The-train stopped at that point three minutes. The station was well lighted. Just before the train started Dallet told the Pullman, conductor that he expected to get off. The conductor thereupon told him that the train was about to start; Dallet then followed the conductor to the door.

The door of the car and the vestibule doors over the steps; were opened either by the conductor or the porter, or both. Dallet went down the car steps and got off before the train had gotten away from the station, although it had been in motion from the time he parted company in the ear with his niece. Dallet, however, did not realize it was in motion, but the electric-lights and the supporting posts of the train shed were directly before his eyes as he left the car, so that, before he stepped off,, he could not fail to have known that the train was moving: There was no conversation between D!allet and the trainmen on the platform, but the jury found that their conduct in opening the doors gave Dallet confidence that he could alight from the train safely. This, the jury found specially.

Apparently Dallet stepped off with his back or side to the engine and in such a way that he fell and broke both ankles.

Upon the question of contributory negligence we are not prepared to disturb the jury’s verdict.

The question of the company’s negligence in prematurely starting the train is by a special charge of the court below to the jury, eliminated from the ease presented to us by the record.

In support of ,the judgment reliance is placed upon the case of Pittsburg, C. & St. L. Ry. v. Krause, 30 Ohio St. 221, which is also a case of injuries sustained in getting off a moving train by one who, though not a passenger thereon, was in the position of a licensee or person invited upon the train. It was held in that ease that if the conductor ordered or directed the plaintiff to get off the train while it was in motion and thereby induced him, without contributory negligence to do an unsafe thing, the railroad company would be responsible for such injury as resulted therefrom. So, in the case before us, the inquiry is whether or not the conduct of the trainmen amounted to a. requirement, command or direction that Dallet leave the train.

Some jurisdictions repudiate the doctrine of Pittsburg C. & St. L. Ry. v. Krause, supra, but inasmuch as we feel bound by this decision, we have confined our scrutiny of the case, cited by counsel, and others that we have found for ourselves, to those that have been decided in jurisdictions where the same doctrine is recognized.

It is impossible to review all the cases cited and examined, but among them we find two from Iowa, which have seemed to us to be peculiarly applicable, namely: Vimont v. Railway, 71 Ia. 58 [32 N. W. Rep. 100], and Galloway v. Railway, 87 Ia. 458 [54 N. W. Rep. 447].

In the latter case the plaintiff went on the defendant’s vestibuled train to assist his wife and child, who were about to take passage thereon in the night time; when he went to get off the door was fastened and the brakeman told him he conld not get off, that it would break his neck. Whereupon the plaintiff stated that he would pay his fare to the next station; the brakeman then opened the door and, after looking back, told plaintiff he could step down on. the lower step and jump far enough so that the train would not hit him, and that he would be alright. The plaintiff asked the brakeman to pull the bell, and he answered that either he could not or would not, and said to the plaintiff — "get off” and closed the door and left him in the dark; he coud not tell whether the train had more than left the depot and it seeming not to be going fast, he jumped and was injured. This was held sufficient to support a verdict for the plaintiff.

In Vimont v. Railway, supra, the brakeman told the plaintiff to get off quickly if he was going to, and the court held mat this did not amount to a requirement or order to jump from a moving train, and the plaintiff, therefore, could not recover'.

The .case before us certainly involves no more compulsion than was involved in the Yimont case, and we think that although the circumstances were such as to impose upon the railroad company the exercise of ordinary care for Dallet's safety, it was under no obligation to do anything more in this behalf, than to see to it that he was not misled by any false appearance of safety, and that he was not put under any compulsion by it in respect to leaving the train. The circumstances were such as already shown, that Dallet must have seen that the train was moving. There was absolutely no other danger present. The platform'where he alighted was clear, unobstructed and sufficiently lighted.

Unless, therefore, the conduct of the trainmen was of a nature to induce him to believe* that he was under some compulsion to leave the moving train, the risk of accident from his so doing was upon him and not upon the company.

Marvin, J., concurs.
      Affirmed, no op., Dallet v. Railway, 80 O. S. 735.


text:
    CREDITOR’S BILLS.
    [Cuyahoga (8th) Circuit Court,
    June 4, 1905.]
    Marvin, Winch and Henry, JJ.
    Frank H. Ginn, Assignee v. Alfred C. Hathaway and John H. Farley, Exrs.
    Creditor’s Bill May Reach Funds of Devisee, Notwithstanding Cancellation by Testator of Claim Against Devisee.
    Where a judgment creditor of a devisee seeks by way of creditor’s bill to reach funds in the hands of an executor, the fact that the judgment against the devisees was founded upon a promissory note upon which the testator was contingentalv liable as accommodation indorser, and that in his will he had directed that all debts or claims against the devisee should be ' canceled is no defense to the action of the creditor.
    Appeal. .

      Blandin, Bice & Ginn, for plaintiff in error.

      Higley & Maurer, Forant & McTighe and Hogan d¡¡ Parmely, for defendants in error.
   HENRY, J.

Frank H. Ginn, as assignee of tbe Euclid Avenue Trust & Savings Company, seeks by way of a creditor’s bill to collect from John H. Farley, as executor of the last will and testament of Charles Hathaway,_ deceased, a judgment for $1,960.05, with interest from January. 20, 1904, recovered by said assignee against Alfred G. Hathaway, a son of said decedent.

The action, wherein said judgment was recovered, was brought upon a promissory note of which Alfred G. Hathaway was the maker and Charles Hathaway was an accommodation endorser. It is conceded that there are funds in the hands of the executor of Charles Hathaway’s will, which will under the terms thereof be payable to Alfred G. Hathaway, to an amount sufficient to satisfy this judgment.

The latter claims, however, that under item 9 of his father’s will, the executor is forbidden to deduct the amount in controversy from Alfred G. Hathaway’s share of the estate. Said item provides:

“I do hereby direct that any note, or notes, check or checks, or any written obligation which I may hold at my decease against any legatee in this my will and any indebtedness of any one of them to me shall by my said executor be satisfied and discharged and fully receipted to them and each of them. ’ ’

It is claimed that Alfred Gr. Hathaway, as maker of the promissory note before mentioned, was liable to his father as accommodation endorser thereof, in such a manner, at the date of the latter’s death, as that, in contemplation of law and within the intention of the testator, there was an indebtedness of the son to the father, and the same is forgiven and canceled by the will.

The liability of the maker of a note, to indemnify or reimburse an endorser who is obliged to pay the same, is of course contingent until such payment by the endorser occurs. But it is claimed that even a contingent liability of this character is an indebtedness, or more accurately a debt, which the executor is bound by the will here to satisfy and discharge. Authorities are cited pro and con upon the question whether the word debt is broad enough to include mere contingent liabilities. The Supreme Court of this state seems to have decided this question in the negative. Boies v. Johnson, 25 O. C. C. 331 (1 N. S. 451) reversed, no op., Johnson v. Boise, 72 Ohio St. 644.

However this may be, it is pointed out, on the other hand, that the liability of Alfred G. Hathaway thus to reimburse his father, rests upon an implied contract, which is distinct from their contract with the payee as evidenced by the note. The implied liability is wholly independent of the promissory note. Conceding then that this implied liability must be and is, by the terms of the will, wholly satisfied and discharged, the result thus reached in no way affects Alfred G. Hathaway’s primary liability to pay the note to the payee, and there being funds in the executor’s hands belonging to Alfred G. Hathaway, applicable to the payment of his debt to plaintiff, no reason appeals why they should not be so applied, and we so hold. The same principle governs another note of the same parties in the hands of another bank.

Certain other sums of money, aggregating with interest $2,-720.23, were paid by the testator in his lifetime upon obligations similar to the notes before mentioned, and as to these the relations of the parties is manifestly different. The son’s liability to the father had become absolute. - But the peculiar circumstances under which those payments were made are claimed to be such as to indicate a breach of trust by the son, which should preclude him from any benefit under his father’s will until he has made full restitution. But the evidence shows that these transactions in the father’s lifetime were so acted upon by him, as shown by his book of accounts, that he must be held to have treated the payments thus made for his son as mere debts of the latter to him. And as to these we hold that they; are canceled by the will.

There are certain cross petitioners here whose rights are conceded by all parties, and no discussion thereof now is necessary.

A decree may be taken in accordance with this opinion.

Marvin and Winch, JJ., concur.


text:
    ERROR — PLEADING.
    [Cuyahoga (8th) Circuit Court,
    May 20, 1907.]
    Marvin and Henry, JJ.
    (Winch, J., not sitting.)

      R. T. Price, et al. v. John S. Hathaway.
    Petition in Error Must be Filed Within Four Months of Judgment Rendition not Overruling New Trial.
    A petition in error the parties having waived a jury and submitted their cause to the court, must he filed within four months from the rendition of the judgment and not from the overruling of the motion for a new trial.
    Error.

      C. L. Gates and Smith, Taft & Arter, for plaintiffs in error.

      James F. FJilson, for defendant in error.

       Affirmed, no op,, Price v. Hathaway, 79 O. S. 478.

   HENRY, J.

The petition in error in this canse was filed after the expiration of four months from the rendition of the judgment, but within four months from the overruling of -the motion for a new trial. In the trial of the action below the parties waived a jury and submitted their cause to the decision of the court. Section 5326 R. S. (Sec. 11599 G. C.) has no application, therefore, so as to postpone the rendition of the judgment until after the overruling of the motion for a new trial. That section provides, “that when a trial by a jury has been had,” this procedure is proper. Here there was no trial by jury, nor can it be said that when the right of trial by jury is waived there is anything analogous to a verdict as distinguished from a judgment to be rendered by the court. Section 5326 R. S. can not apply by analogy to the case before us. The petition in error having been filed too late is therefore dismissed for want of jurisdiction.

Marvin, J.. concurs.


text:
    BUILDING — CONTRACTS.
    [Cuyahoga (8th) Circuit Court,
    May 27, 1907.]
    Marvin and Henry, JJ.
    (Winch, J., not sitting.)

      Brooklyn Savings & L. Assn. Co. v. Charles E. Tousley.
    Architect Preparing Flans for More Expensive Building Than Contract Calls for Loses Fees — Architects Plans Must Conform to Contract.
    An architect, contracting for plans for a building to cost as nearly as possible $40,000, is not entitled to any fees the plans prepared were for a building to cost $50,000.
    Error.

      M. W. Cope, for plaintiff in error.

      Smith, Taft & Arter, for defendant in error.

       Affirmed, no op. Tousley v. Savings & L. Assn. 80 O. S. 737.

   HENRY, J,

The judgment of the court of common pleas is reversed and final judgment entered for the plaintiff in error upon the conceded facts in this case. The plaintiff in error contracted in writing with the defendant in error, for the preparation of plans of a building to cost as nearly as possible $40,000. The plans as prepared were for a building that would admittedly cost $50,000. This was not in compliance with the contract, and no fees are recoverable by the architect therefor.

Reversed, and judgment for plaintiff in error.

Marvin, J., concurs.


text:
    CONTRACTS — EVIDENCE.
    [Hamilton (1st) Court of Appeals,
    July 16, 1914.]
    Swing, Jones and Jones, JJ.
    Cincinnati (City) v. August J. Henkel & Brother.
    Incompetency of Evidence Relating to a Proposed Compromise.
    In a controversy as to the amount due to the plaintiff under a contract for a street improvement, it is prejudicial error to admit evidence which on its face shows that it related entirely to a proposed compromise settlement.
    [Syllabus by the court.]
    Error.

      Alfred Bettman, city solicitor, and Stanley TV. Merrell and Mitchell Wilby, and Geoffrey Goldsmith, for plaintiff in error,

      Bolle, Taylor & O’Donnell, for defendants in error.
   JONES, O. B., J.

This action was brought by plaintiff below under a contract for grading and macadamizing Grandin road from Madison road to its' southeastern terminus. In the contract, in which the plaintiff was described as the “party of the second part,” the following provision was made as to the computation of the amount of work done.

“D. The said party of the second part further agrees that the certificate of the chief engineer of the board of administration, or of one of the assistant engineers of said board, to be appointed by the said board to survey the work, shall be the account by which the amount of work done shall be computed.”

The contract provided that the city was to pay plaintiff the sum of $1.95 per cubic yard for all broken stone placed in position.

"When the work was completed the engineer made calculations and prepared an estimate. The original figures showing that 1,920 cubic yards of broken stone had been furnished and placed, and the contractors complaining as to this quantity the engineer made further allowances because of mud which had existed upon parts of the road when the preliminary cross section was taken and because of an error in the cross section levels, and increased this estimate to 2,228 cubic yards, which was the figure given in the final estimate and certificate accepting the work.

Plaintiff below complained to the board of public service, but the engineer declined to change his figures, and the estimate was paid as thus made. The board of public service, however, appointed a committee which recommended that: “the road be accepted by this board as complete; that the contractor be paid upon the basis of the engineer’s estimate, and that in addition thereto he be allowed the sum of $500 as a compromise to settle the differences at issue,- payment to be made in the usual manner upon the presentation of properly approved voucher. ’ ’

This report was adopted by the majority vote of the board, three members voting for it and one against it, and the compromise was accepted by the contractor in a letter, as follows:

“We accept your offer of compromise for the amount due us for the improvement of Grandin road from Madison pike to eastern terminus, and agree upon payment to us of the estimate of your engineer and the sum of $500 that the same shall be in full of all claims and demand which we have against the city of Cincinnati under our contract with it for the improvement of such roadway.”

After which action of the board, at its meeting one week later the engineer submitted final estimate voucher for resurfacing Grandin road, amounting to $7,034.15, which contained 2,228 cubic yards of stone and which was approved and ordered paid by the majority of the, board, and the clerk submitted an additional voucher in favor of the plaintiff in the sum of $500, ‘ ‘ authorized by the resolution of this board on August 19, 1904, in settlement of claim of said contractors for stone furnished in contract for resurfacing Grandin road, from Madison road to southeastern terminus, being in excess of final estimate for work done as submitted by the engineer. ’ ’

This voucher was approved and ordered paid, by a majority vote of said board.

The final estimate as prepared by the engineer and ordered paid, amounting to $7,034.15, was duly paid by the city, but the additional voucher in settlement of claim of A. J. Henkel & Brother “being in excess of final estimate for work done as submitted by the engineer” amounting to $500, on being presented to the city auditor for payment was refused by him and never paid by the city.

This action was therefore brought to recover $2,090.40, being for 1072 cubic yards of broken stone which plaintiff below claimed to have been furnished in excess of the amount as computed by the city engineer, and said plaintiff claimed that the engineer did negligently, arbitrarily, unreasonably and in bad faith certify that the amount of broken stone was 2,228 cubic yards, when plaintiff had actually furnished 3300 cubic yards.

The defendant denies bad faith or mistakes on the part of the engineer, and asserts that the amount certified was the correct amount of broken stone furnished, and pleads full payment in accordance with the final estimate, and sets up the contract provision which provided that the certificate of the engineer shall be the account by which the amount of work done should be computed.

In the trial of the casé plaintiff was permitted to offer in evidence the unpaid voucher for $500 which had been prepared and allowed by the board of public service in favor of the plaintiff below by way of compromise, as well as the extract from the minutes of the board of public service showing its action in regard to the proposed compromise. This evidence was admitted over the objection of the defendant and its exception noted.

There can be no question, under the rule laid down in Sherer v. Piper, 26 Ohio St. 476, that this evidence which on its face is shown to be entirely a matter of compromise and settlement, was incompetent, and it could not be otherwise than prejudicial. Defendant in error, however, contends that it was offered only to show a declaration against interest on the part of the city and was competent for that purpose. We do not understand under what rule this claim could be upheld. It is the action of one board, on behalf of the city, and it does not appear to be authorized by the contract itself, and on its face shows that it is entirely by way of compromise. There is no finding by the board that the estimate of the engineer was in any way incorrect or improper, but on the contrary it was approved and confirmed by the board and the payment ordered under it, the additional payment being, as shown on its face, to settle an additional claim made by the contractor. If the board had intended to find that more stone had been delivered than were included in the engineer’s estimate, they should have so stated, or should have ordered a remeasurement and computation.

The attempt made by the trial judge to limit the effect of this improper evidence in his general charge to the jury, does not in our opinion cure the error of its admission. ffl

Judgment below is therefore reversed and cause remanded for a new trial.

Swing and Jones, E. H., JJ., concur.


author: SWING, J.

text:
    ERROR.
    [Hamilton (1st) Court of Appeals,
    June 3, 1914.]
    Swing, Jones and Jones, JJ.
    Emma E. Harding v. C., C. & St. L. Ry.
    Statute Limiting Time for Bringing Proceedings to Seventy Days Applies to Cases in Which Judgment Has Been Rendered Since the Law Went Into Effect.
    A proceeding in error is an independent action, and jurisdiction in suck a proceeding is not acquired under the present statute, in a case in whick it is sought to reverse a judgment rendered since the law went into effect, unless commenced within seventy days after the entering of such judgment.
    [Syllabus by the court.]

      Motion to dismiss petition in error.

      Geo. W. Harding, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, for defendant in error.
   SWING, J.

This is an action from the court of common pleas, brought in this court on March 4, 1914. It was heard in this court on motion to strike the petition from the files for the reason that it was not brought within the time limited by the statute for the filing of petitions in error. Trial was had in the court of common pleas on October 21, 1913. A verdict was rendered for defendant on October 23, 1913, and judgment entered on the verdict November 17, 1913.

On May 9, 1913, the legislature amended Sec. 12270, G. C. so as to read as follows:

“No proceeding to reverse, vacate or modify a judgment or final order shall be commenced unless within seventy days after the entry of the judgment or final order complained of; or in case the person entitled to such proceedings is an infant, a person of unsound mind, or imprisoned, within seventy days exclusive of the time of such disability.”

The section before it was amended provided four months as the time within which such action might be. brought. The question presented to us therefore is whether the old or the amended section applies.

The present law applies by the force of the words of the statute, unless Sec. 26 of the general provision of the statutes exempts it from the operation of the amended law. This section reads as follows:

“Whenever a statute is repealed or amended, such repeal * or amendment shall in no manner affect pending actions, prosecutions or proceedings, civil or criminal, and when the repeal or amendment is related to the remedy it shall not affect pending actions, prosecutions or proceedings unless so expressed, nor shall any repeal or amendment, affect causes of such action, prosecution or proceedings existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing action.”

The law of May 9, 1913, by force of law went into effect ninety days from that time, August 8, 1913. The action of Harding against the railway company was pending at the time -of the passage of the act, and of course was pending in the court of common pleas at time the law went into effect. "Whether or not this act is saved by this general provision of the code must be determined.

The action pending in this court was pending in the court of common pleas when the act of May 9, 1913, went into effect.

The Supreme Court in the case of Charles v. Fawley, 71 Ohio St. 50, 54 [72 N. E. Rep. 294], in the opinion of the court, speaking of proceedings in error, said:

“Such proceedings recognize the termination of the original case. To institute them it is required that a petition in error be filed in the reviewing court, and to acquire jurisdiction of the person of the adverse party there must be the issuance and service of summons; whereas, the steps necessary to effect an appeal are taken in the court having jurisdiction in the original action and the adversary party is bound thereby without summons. An obvious analogy is found in the doctrine of Us pendens where the distinction between appeals and proceedings in error, in this respect, is recognized. The property which is the subject of a suit is bound by its event not only while the case is pending in the court of first resort, but also while it is pending in a court to which it may be taken by appeal; but where a review of the judgment is sought by proceedings in error, the suit is regarded as ended by the judgment of the court of first resort. This distinction was recognized in Ludlow v. Kidd, 3 Ohio 541, where Sherman, J., speaks of an appeal as a proceeding in the original cause, and concludes that its effect is to continue the cause and suspend the decree of the inferior tribunal until the judgment of the tribunal to which the appeal is taken.”

We have carefully gone over the cases cited by counsel in argument, as well as others that we have found, in the Supreme Court and circuit courts, especially the case in Hays v. Park,. Co., 24 O. C. C. 354 (1 N. S. 101), and the case in Oskamp, In re, 49 Bull. 568 (1 N. P. N. S. 195), and have arrived at the-conclusion that the proceeding in error is an independent action, and that the statute limiting the time in which such proceeding may be brought, to seventy days, applies in a case where a judgment was rendered after that law went into effect and which judgment is sought to be reversed in a proceeding in error, which is the case here, this action in this court having been brought 107 days after the rendition of the judgment in the court below. The judgment of the court of common pleas was rendered after the law of 1913 went into effect, 'and it must apply.

We think the motion was well taken, and the petition is therefore stricken from the docket.

Jones and Jones, JJ., concur.


author: PER CURIAM.

text:
    INSURANCE — WORK AND LABOR.
    [Hamilton (1st) Court of Appeals,
    October 24, 1914.]
    Swing, Jones and Jones, JJ.

      Washington T. Porter, et al, Tr. v. Wm. A. Hopkins, Treas. et al. Cincinnati (Bd. of Ed.) v. Hopkins. State ex rel, Pogue Pros. Atty. v. Hopkins. Cincinnati (City) v. Hopkins.
    Jurisdiction not Conferred upon Courts to Enjoin Payments under Workmen's Compensation Law.
    Tbe authority conferred by Secs. 2921 and 4311 G. C. on tbe prosecuting attorney of tbe county and tbe city solicitor to bring actions for the purpose of restraining tbe illegal payment of money from tbe public treasury do not give jurisdiction to a court to entertain an injunction proceeding contrary to the provisions of Sec. 58 of the workmen’s compensation act.

      W. T. Porter, Walter M. Schoenle, city solicitor, Chas. Á. Groom, Assist, city solicitor, Thomas L. Pogue, Pros. Atty., J. Y. Campbell, Carl M. Jacobs and Simon Boss, Jr., Assist. Pros. Attys., for plaintiffs.

      Timothy S. Hogan, Atty. Gen., John A. Deasy, Jas. I. JBoulger, Thomas H. Morrow, Assists., for defendants.

       Affirmed, Porter v. Hopkins, 91 O. S. 000. (51 Bull. 478).

   PER CURIAM.

These actions come into this court on appeal from the court of common pleas. They are brought on behalf of the city of Cincinnati, county of Hamilton, the board of education of the city school district of the city of Cincinnati and the trustees of the public library for the purpose of having Secs. 15, 16, and 17 of act 103 O. L. 77 (Sees. 1465-63 G. C. et seq.), known as the 'Workmen’s Compensation act, declared unconstitutional, and to enjoin the treasurer of Hamilton county from paying a warrant issued by the auditor of Hamilton county in favor of the treasurer of the state of Ohio, to pay the fund provided for in said Secs. 16 and 17.

Objection is made by defendants to the jurisdiction of this court to entertain these injunction proceedings, by reason of Sec. 58 of said act (Sec. 1465-105 G. C.), which is as follows:

“No injunction shall issue suspending or restraining any order, classification or rate adopted by the board, or any action of the auditor of state, treasurer of state, attorney-general, or the auditor or treasurer of any county, required to be taken by them or any of them by any of the provisions of this act; but nothing herein shall affect any right or defense in any action brought by the board or the state in pursuance of authority contained in this act. ’ ’

Plaintiffs rely, however, upon the right of the prosecuting attorney of the county by virtue of See. 2921 G. C., and the solicitor of the city by virtue of Sec. 4311 G. C., to bring such actions for the purpose of restraining the misapplication of funds and the illegal payment of money from the treasury.

While these sections relied upon are both broad in their terms and would ordinarily confer the authority to bring such actions by the prosecuting attorney and the city solicitor, Sec. 58 of the act in question is so specific that it must be held to control. And as it does not take away the right of the courts to entertain other actions to determine the question of constitutionality sought to be raised herein, by its terms, this court has no jurisdiction to entertain these cases, and is without authority to grant the relief prayed therein.

The actions, therefore, will be dismissed.


text:
    ERROR — STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    May 29, 1914.]
    Swing, Jones' and Jones, JJ.

      Cincinnati Trac. Co. v. Charles Dannefelser.
    1. Verdict in Case of Collision Between Street Car and Vehicle not Disturbed.
    A verdict in favor of the driver of a vehicle who was injured in a collision with a street car at a street intersection, a high billboard being on the corner from which the car was approaching by coasting down a grade at a speed not less than eight or ten miles per hour, the evidence being conflicting on the question of sounding the gong, distances and speed of the car, will not be disturbed on review upon the ground of contributory negligence.
    2. Judgment not Reversed because Portions of Charge, Otherwise Proper are Unsatisfactory.
    A charge to a jury must be considered as a whole. Hence, the fact that a charge to the jury contains language which taken alone is subject to criticism, does not require a reversal of the judgment, when the charge considered as a whole was a fair and proper one.
    [Syllabus by the court.]
    Error.

      Paxton, Warrington <& Seasongood and Robert S. Marx, for plaintiff in error.

      Overbeck, Kaitenhorn é Park and Jos. W. Conroy„ for defendant in error.

       Affirmed, no op., Cincinnati Trac. Co. v. Danenfelser, 91 O. S. 000; 60 Bull. 184.

   JONES, O. B., J.

The action below was one to recover for personal injuries suffered by plaintiff and the expenses of medical attendance, and for injuries to plaintiff’s horse and wagon and its contents, caused by an electric car operated by the defendant company running westwardly on Chapel street which struck plaintiff’s loaded express wagon in. which he was driving northwardly on Ashland avenue across Chapel street.

Plaintiff alleged that said car was operated in a careless and negligent manner in that it was running at an unlawful and excessive rate of speed, that the gong was not sounded, and that the motorman had ample time and opportunity after observing plaintiff’s horse and wagon to stop said car and prevent said collision, but failed to do so. And plaintiff pleaded his own inability by reason of defendant’s negligence to avoid its consequences, and alleged that he had exercised due care and was without negligence on his part.

The answer was a general denial and a plea that plaintiff was injured by reason of his negligence and without negligence of the defendant, and that plaintiff was guilty of contributory negligence, which were denied by the reply.

The trial below resulted in a verdict in favor of plaintiff on which judgment was entered, and these proceedings were instituted in which defendant below seeks to reverse the judgment below and to have a judgment entered here for it, or if that can not be done, for a new trial.

The record discloses that Chapel street extends westwardly from Woodburn avenue, descending at a considerable grade for some 1200 or 1500 feet, being nearly straight, until it reaches Ashland avenue, where there is a considerable bend towards the south, and the street is nearly level, and after leaving Ashland avenue toward the west it has another bend and ascends a grade. Ashland avenue is the first street west of Woodburn avenue extending across Chapel street.

The motorman of the ear which struck the plaintiff had turned off the power and was coasting down this grade running at a speed which he admits "was not less than eight or ten miles per hour and which some other witnesses testified was much faster. The • defendant was proceeding north on Ashland avenue about to cross Chapel street. There was a high tight board fence or billboard along the east line of Ashland avenue and the south line of Chapel street at the corner.

Paintiff claims to have looked out for the car, but testified that he heard no gong or warning, and claims he did not see the car until it was too late to avoid the collision because of its speed.

The motorman testified that he. saw the horse about to cross the track when his car was seventy-five feet from the crossing, but not anticipating that the driver would attempt to cross he made no effort to stop the car until he was within fifteen feet of the horse which was then on or across the track, and that he struck the wagon about the front wheel. It appears that the wagon was pushed at least ten feet beyond the west side of Ashland avenue, which was fifty feet wide, before the car was stopped. The motorman was indefinite in his testimony as to within what distance he could stop this car which was the usual open summer ear type, but says that he stopped it on this occasion within a distance of about thirty feet.

The record shows the usual conflict among the witnesses in their testimony as to the speed and signals and distances.

'"lie rules of law as to crossing a street railway track in such a case f>~ this have been clearly laid down by our Supreme Court in the recent case of Steubenville & Wheeling Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. Rep. 325], in which the excellent opinion written by Judge Spear gives a full discussion. We deem it sufficient to refer to that case and the principles there laid down, and do not regard it necessary to discuss the numerous cases collected and referred to in the briefs of counsel on both sides.

This case is clearly a proper one for submission to a jury, and a careful reading of the record convinces us that its finding in favor of the plaintiff as to the negligence of the defendant is sustained by the evidence and should not be disturbed.

Numerous criticisms are made in the brief and oral argument by counsel for plaintiff in error, of tbe general charge of the court, quoting short paragraphs from it, particularly in defining “the burden of proof” and also “the proximate cause.” While the language quoted in the, brief of plaintiff in error might be subject to criticism when taken alone, the whole charge must be read together and when so considered the charge of the court appears to be a fair and proper one. The court fails to find any error which might be regarded as prejudicial either in the general charge or in the giving or refusal to give the special charges.

Complaint is also made as to the amount of the damages. When we consider that plaintiff suffered a fractured pelvis and that his personal injuries were serious and of a somewhat permanent character, and that he suffered also property damages to his horse and wagon, we do not believe that the amount of the judgment is excessive.

A careful examination of the record fails to disclose any error which may be deemed prejudicial to the defendant, and the judgment is therefore affirmed.

Jones, E. H., J. concurs.

Swing, J., dissents.

■ I think the evidence clearly shows contributory negligence on the part of defendant in error, and therefore dissent from the judgment of affirmance.


author: CHITTENDEN, J.

text:
    LICENSE — INTOXICATING LIQUORS — TAX,
    [Williams (6th) Court of Appeals,
    May 15, 1915.]
    Richards, Chittenden and Kinkade, JJ.

      Harvey J. Brannan, Treas. v. Frank Schartzer, et al.
    '1. Liquor Business Conducted in Dry County Subject to Assessment,
    When the business of trafficking in intoxicating liquors is carried on in a county in which the sale of intoxicating liquors has been prohibited, such business is subject to the assessment provided for in Sec: 6071 G. C.
    2. Statutory Assessment for Trafficking in Liquor Business in Dry County not License.
    Such assessment is only a tax upon the business which is made a lien upon the premises where such business is conducted, and is in no sense a license fee and confers no authority to conduct such business.
    3. Dow-Aiken Assessment on Unlawful Traffic in Liquor Business Superior to Prior Mortgage.
    The lien of such assessment is superior to that of a mortgage given and recorded prior to the entry of such tax on the duplicate and prior to the beginning of such traffic on the premises.
    Appeal.

      John 11. Schrider, Pros. Atty. and A. 0. Dickey, for plaintiff

      Newcomer c& Gebhard, for defendants.

      Reversing, Brannan v. Schartzer, 25 Dec. 491.

   CHITTENDEN, J.

This action is brought by the treasurer of Williams county to enforce a lien for taxes and penalty against the property of the defendant, Frank Schartzer. In July, 1914, Frank Schartzer pleaded guilty to two indictments charging him with violating certain liquor laws. Fines aggregating $460 were imposed upon him and he was sentenced to thirty days in jail.

Thereafter, by direction of the auditor of state, the county auditor placed upon the liquor traffic duplicate an assessment under the Dow-Aiken law against the property of the defendant, Frank Schartzer, for the amount of $859.90, and $171.98 penalty, making a total for assessment and penalty of $1031.88. The plaintiff seeks to have this assessment and penalty declared a first lien and asks that the liens against the property of the defendant be mashaled, the property sold and the proceeds applied to their payment. The defendant, The Home Savings, Loan & Building Association Company, sets up the lien of a mortgage upon the property of Schartzer, given long before the imposing of the fines upon the defendant and the levying of the Dow-Aiken assessment upon his property. The building and loan company also sets up a tax title by reason of its purchase of the property at a tax sale held since the Dow-Aiken assessment was levied. The defendant, C. L. Newcomer, sets up a mortgage lien dating from September 23, 1914. The state of Ohio also sets up a lien for the unpaid portion of the fines that were imposed upon Schartzer for violation of the liquor laws. The defendant, Schartzer, filed an answer in which he sets up various facts in defense.

On trial in the common pleas court the petition of the plaintiff was dismissed and a finding and decree entered in favor of the loan company and other cross petitioners and defendants.

There are few disputed facts arising in this ease, and there does not appear to be any question as to the priority of the several liens except as to the lien for the Dow-Aiken tax. It is an undisputed fact that at the time of the alleged illegal sales the business of trafficking in intoxicating liquors was prohibited in Williams county.

It is contended, in the first instance, that no assessment under the Dow-Aiken law can be lawfully levied upon the business of trafficking in intoxicating liquors in a dry county, and that for this reason there is and can be no lien upon the property of the defendant Schartzer, because of the attempt to make such levy. Sec. 6071 G. C., provides that there shall be assessed yearly the sum of $1,000 upon the business of trafficking in intoxicating liquors. The law is stated in plain language and makes no exceptions because of the place in which, or the manner in which, such business is conducted. Wherever in the state of Ohio such business is carried on, the law provides that the sum of $1,000 shall be assessed upon the business. To hold that this act does not apply to such business when conducted in dry territory would be to read into the statute an exception that is not found therein.

This question, however, is no longer open to discussion, as the Supreme Court has directly passed upon it in Burrell v. Holtz, no op., 84 Ohio St. 497. We have been furnished with certified copies of the proceedings in the court of common pleas and ■circuit court and a copy of the journal entry in the Supreme Court. The identical question was raised in that case and the Supreme Court held that such assessment might be imposed upon the business when conducted in so-called dry territory. The Supreme Court decision affirmed the judgment of the circuit ■court on the authority of Adler v. Whitbeck, 44 Ohio St. 539 [9 N. E. Rep. 672], and of Conwell v. Sears, 65 Ohio St. 49 [61 N. E. Rep. 155].

Counsel for defendants contend that the Supreme Court reached a different conclusion in affirming the case of Remick v. Haas, no op., 85 Ohio St. 466. That case was considered by the circuit court on two different occasions. The opinion on the first consideration of the case is reported in Haas v. Remick, 31 O. C. C. 591 (13 N. S. 1), and was rendered in March, 1910. The decision there rendered was upon a demurrer to the petition. In .the common pleas court a demurrer to the petition had been sustained and the plaintiff not desiring to plead further, final judgment was entered in that court and the cause appealed to the circuit court. Upon appeal, the circuit court overruled the demurrer and no final judgment was then entered in that court. In the course of the opinion of the circuit court upon their determining the question presented by the demurrer, that court did reach a conclusion contrary to that announced by the Supreme Court in Burrell v. Holtz, supra. Thereafter, in September, 1910, the cause came on further for hearing before the circuit court, when the case was disposed of upon grounds other .than those mentioned in the opinion on the demurrer. The Supreme Court affirmed this judgment. It can not be said, therefore, that the affirmance of this decision by the Supreme Court is in conflict with the decision of the Supreme Court in Burrell v. Holtz, supra.

It is argued that the decisions above cited were rendered before the amendment to the constitution in 1912 and the passing of the liquor license laws, and that the effect of the constitutional amendment and the liquor license laws is to render' the above decisions inapplicable. It is contended that the imposing of the Dow-Aiken assessment amounts to a license to conduct a business that is illegal and that for this reason, it can not become a valid lien upon the property. We think it is a.sufficient answer to this argument to state that the Dow-Aiken assessment is in no sense a license fee and does not confer' any power upon the dealer in intoxicating liquors to conduct such business. It is purely a tax or an assessment upon the' business which is made by statute a lien upon the property where the business is conducted. Adler v. Whitbeck, supra.

It is next urged that even if the assessment does constitute a lien upon the property, it is a subsequent lien to that of the mortgages to the Home Savings, Loan & Building Association. This question has been decided adversely to the claims of the loan company in the case of the Pioneer Trust Co. v. Stich, 71 Ohio St. 459 [73 N. E. Rep. 520]. The tax and assessment liens will be paid from the proceeds of the sale of the property as provided in Sec. 2670 G. C.

It is further urged that the lien does not properly attach to more' than that portion of the property owned by the defendant Schartzer, upon -which the building stands in which the illegal sales took place. The evidence discloses that' the entire premises described in the petition constitutes a single piece of property and that there is no part of it separated from the remainder by a fence, or any part that is used as a separate and distinct piece of property from that occupied by the residence in which the sales were made. The lien, therefore, we hold attaches to the entire premises described in the petition.

The limits of an opinion precludes the discussion in detail of the many other questions raised on this hearing. We have considered all the questions and have reached the conclusion indicated in this' opinion.

A decree may be drawn in favor of the plaintiff, placing upon the tax duplicate such assessment as will correctly represent the time during which the premises were used for the sale of intoxicants, as provided by law; this amount to be determined by counsel and the auditor in the drawing of the journal entry. The cause will be remanded to the common pleas court for the purpose of carrying into effect the decree drawn in accordance with the foregoing opinion.

Richards and Kinkade, JJ„ concur.