text:
    INTOXICATING LIQUORS — SUNDAY LAWS
    [Lorain (8th) Circuit Court,
    June 18, 1909.]
    Henry, Marvin and Winch, JJ.

      Lorain (City) v. James Maraldi.
    Ordinance Regulating Sunday Closing not Invalid because of Imposing Larger Penalty than Statute.
    A municipality under power granted by Sec. 1536-100 R. S. (Sec. 3661 G. C.), to regulate ale, beer, porter houses and shops and the sale of intoxicating liquors as a beverage, may enact a valid ordinance prohibiting the sale of intoxicating liquor on Sunday and making the penalty therefor not exceeding $500 and not less than $100, for a first offense, though the state law on the same subject makes the penalty not exceeding $100 and not less than $25 for the first offense.

      S. H. Williams, J. F. Strenialc and F. M. Stevens, for plaintiff in error.

      Geo. L. Glitseh and C. F. Adams, for defendant in error.

      Affirmed no opinion, Maraldi v. Lorain, 81 Ohio St. 539.

   MARVIN, J.

The first question to which attention is called is as to the validity of the' ordinance of the city of Lorain, under which the defendant in error was prosecuted. This ordinance we hold to be valid and within the authority conferred upon the council by Sec. 1536-100 R. S. (Sec. 3661 G. C.) which, speaking of the powers conferred upon municipalities, reads:

“To regulate ale, beer, porter houses and shops, and the sale of intoxicating liquors as a beverage. But nothing in this act shall be construed to amend, repeal or in any way affect the provisions of an act entitled, ‘An act to amend Section 4364-20 of the Revised Statutes of Ohio.’ ”

Section 4364-20 R. S. (Secs. 13050 G. C. et seq.) provides for the punishment of those selling liquor on Sunday, and that such penalty shall be a fine not exceeding $100 and not less than $25, for the first offense, whereas, the ordinance under which this prosecution was held, provides for a penalty for the first offense of a fine not exceeding $500 and not less than $100. This makes the penalty for the violation of the ordinance greater than the penalty provided for the violation of the statute, but does not, as we understand it, in any wise affect the statute. One may be prosecuted who commits the offense either under the statute or under the ordinance. The two prosecutions are distinct and separate, as appears by the case of Koch v. State, 53 Ohio St. 433 [41 N. E. 689], the syllabus of which reads:

“A former conviction before a mayor for the violation of an ordinance is not a bar to the prosecution of an information charging the same act as a violation of a statute. ’ ’

It is said, however, that the ordinance is against the policy of the statute, as shown by the statute and by the penalties here provided for the offense charged against the defendant in error, and we are cited to the case of Canton v. Nist, 9 Ohio St. 439; Thompson v. Mt. Vernon, 11 Ohio St. 688.

The argument drawn from these cases seems to us to be fully answered by the case of Burckholter v. McConnelsville, 20 Ohio St. 308.

In that ease an ordinance of the village of McConnelsville prohibiting the keeping of a place of business ‘ ‘ where ale, porter or beer is habitually sold, or furnished to be drunk, in, upon or about the house, where so sold or furnished. ’ ’

It was urged in that case that this was contrary to the policy of the statute because the statute providing against the keeping of drinking places, used the words, “shall not extend to the wine manufactured of the grape cultivated in the state, or beer, ale or cider.” Speaking of this, the court say:

“It is argued that this general statute impliedly legalizes the sale of pure Ohio wine manufactured of the pure juice of the grape cultivated in this state, or beer, ale, or cider; and that a municipal ordinance prohibiting their sale is against the policy of this statute and therefore void.”

After discussing this claim, the court say:

“And it is no ground of objection to the validity of prohibitory ordinances, thus authorized, that the general laws of the state do not extend the prohibition to all parts of the state. Morality and good order, the public convenience and welfare, may require many regulations in crowded cities and towns, which the more sparsely settled portions of the country would find unnecessary.”

So, too, it may well be that in municipalities where there is a congested population more severe penalties are necessary and proper to secure an observance of the law, than are necessary where the population is sparse and the sales comparatively few. What might be a very severe penalty in the way of a fine to one whose sales are limited to $2 or $3 a day might be very light for one whose sales are many times that amount per day, and when the legislature gave to municipalities the power “to regulate ale, beer, porter houses and shops and the sale of intoxicating liquors as a beverage,” it was presumed that it was done for the purpose of enabling municipalities to make such regulations, and provide such punishment for the violation of such regulations as the municipality might think best. In short, that the municipality might need some legislation different from that needed for the regulation of those places outside of municipalities.

We reach the conclusion, therefore, that the ordinance is valid.

It is said, however, that the evidence does not support the judgment, and that it is so manifestly weak on the part of the prosecution, so that the judgment should be set aside as not supported by sufficient evidence. This position is not sound. The evidence shows that the defendant in error was the proprietor of a saloon; that back of his bar room, with two intervening rooms, there was a kitchen; that in this kitchen customers were served by this defendant with intoxicating liquors; that the rooms connected and customers came into the front door of the saloon, and, by invitation of the defendant in error, passed into this kitchen, where they were served with their drinks. We think from this the mayor might well have found that the kitchen was a part of the defendant’s establishment, which he kept for the sale of intoxicating drinks.

That the drinks for which the defendant was prosecuted were sold in this kitchen, is not denied. The sale was made by a brother of the defendant. He lived there with the defendant. He was employed as a laborer oh the docks, but it is shown that at times prior to the date charged against the defendant in this prosecution, he made sales of drinks at this establishment, and that he also made sales there afterwards. It is said that the court erred in admitting evidence of sales made by the brother after the time charged in the prosecution. We think this evidence was competent, as tending to show that this brother was the agent of the defendant and taken in connection with the evidence • that shortly prior to the .time charged he made sales there, justified the mayor in coming to the conclusion that in selling the drinks shown to have been sold at the time charged, he was acting as the agent of the defendant.

The result is that the judgment of the court of common pleas is reversed and that of the mayor affirmed.

Henry and Winch, JJ., concur.


source: Caselaw Access Project

author: MARVIN, J.

license: Public Domain

text:
    HIGHWAYS
    [Lorain (8th) Circuit Court,
    June 18, 1909.]
    Henry, Marvin and Winch, JJ.
    Henry M. Hagelbarger v. Pennsylvania Co.
    1. No Presumption that Freeholders Making Application for Vacation of Highway did not Reside in Vicinity.
    Under Sec. 4661 R. S. (Sec. 6915 G. C.), the county commissioners have authority to vacate all or a part of a county road upon the application of “any twelve freeholders residing in that part of the county where such road is established,” and when they act upon an application purporting to be so signed, in a collateral proceeding calling in question the regularity of their proceedings, there is no presumption that the twelve signers were not freeholders residing in the vicinity, though the record is silent on the subject.
    2. Relocating County Highway Proceedings Valid.
    In such case, when part of a road is vacated and a new road actually established and used by the public and the proper authorities, there is a legal change in the location of the road, even though the proceedings of the commissioners may have been informal.
    Error.

      Grant, Sieber & Mather, for plaintiff in error.

      Allen, Waters, Young & Andress, for defendant in error.
   MARVIN, J.

Under favor of See. 863 R. S. (Sees. 2424 G-. C. et seq.), the plaintiff in his official capacity brought this action in the court of common pleas. The purpose of the action was to obtain an order requiring the defendant, which is a railroad company, to remove fences and obstructions from what the plaintiff claims is a public highway in this county.

The facts are these:

Prior to the year 1888, a public road led westerly from the north and south Center road, in the township of Hudson, in this county. That road thus running westerly crossed the right-of-way and tracks of the Cleveland & P. Ry., a road now operated by the defendant. This crossing was diagonal, not at right angles, and the highway at a point about 200 feet westerly from the crossing just mentioned, made an obtuse angle, and led to the northwest again crossing the track of this railroad at a point about 200 feet westerly from this angle, and then continued on to the west. The point just easterly of the point where the highway made the crossing first mentioned of the railroad tracks, deflected slightly to the south. This point is indicated on a plat shown in the trial as “No. 1.”

The point where the second crossing of the track was made is indicated on this plat as “No. 2,” and the angle,, already mentioned in this highway, is designated on the plat as “No. 3.” It will be seen that, the distance from No. 1 to No. 2 was somewhat greater by following this highway than it is by drawing a straight line from No. 1 to No. 2. In 1888 the land along the north side of the railroad from No. 1 to No. 2 was owned by one Hiram Bishop, who owned a farm, and this land along the north line of the railroad was a strip along the south side of this farm. On the south side of the railroad the land was then owned by Avery Bishop, a brother of Hiram. Subsequently Avery came to own all the land, that is to say, the farm on the north side as well as on the south side of the railroad. Avery died in -and Della Bishop Ingersoll became by inheritance from Avery Bishop the owner of the land, and this suit was brought in her interest in the name of the prosecuting attorney, as authorized by the section of the statute already mentioned. In 1888, the railroad company and the commissioners of Summit county desiring to eliminate these crossings of the road over the railroad, made an arrangement by which a strip of land along the north line of the railroad, the proper width for a public highway, and leading from point No. 1 to point No. 2, was deeded by Hiram .Bishop to the commissioners of the county, the consideration paid therefor of $200 being paid by the railroad company. Thereupon the commissioners resolved, upon the petition of freeholders of the county, to change the line of the highway so that it should run along this land deeded to them by Bishop, and they took possession of and constructed a road along this strip of land so that the highway as thus changed by the commissioners became a continuous highway from the road as it originally was, leading from the east to and beyond point No. 2, and so on west. The commissioners further resolved not to abandon that part of the old road from point No. 1 to point No. 3, a distance of about 200 feet, as has already been stated. On the southeasterly side of this part not thus abandoned were and are two dwelling-houses. There are no .other residences and no places of business along any part of the old road from point No. 1 to point No. 2. It will be seen that by living upon the part of the road, as above described, those occupying these dwelling-houses and those having business with them could reach the road as established by driving this distance of less than 200 feet to the main road. All this having been done, the railroad company placed its fences along the north and south sides of its right-of-way across this part of the old road which made the crossing at point No. 2, and it is for the purpose of having these fences, and such other obstructions as the railroad company have placed along its right-of-way where the road crossed at No. 2, removed, that this suit is brought.

It is urged that the proceedings of the commissioners in attempting to vacate any part of the old road were invalid and that therefore the old road exists as it did prior to 1888, and the defendant is not entitled to obstruct it in any way. It is provided in Sec. 4661 R. S. (Sec. 6915 G-. C.), that:

“When a county road or part of a county road is considered useless, any twelve freeholders residing in that part of the county where such road is established, may make application agreeably to the provisions of this chapter, to the commissioners of the county to vacate the same and if no objection be made, the commissioners may declare vacated the road or any part thereof which they may deem unnecessary to keep open for public convenience.

In the adjudications which have been made under this statute, the language of the courts has been, freeholders residing in the “vicinity,” but this word is so used because clearly the word “vicinity” means the same as the language used in the statute, that is, they must reside in the part of the county where the road is located. It does not appear in the record of the proceedings of the commissioners that any finding was made by the commissioners that the freeholders who signed the petition resided in the vicinity of this road or in that part of the county in which the road is located, and it is said that no presumption arises in favor of the regularity of the proceedings of the commissioners, but that they can be held to have had only such jurisdiction as affirmatively appears by the record of their proceedings. This claim is based upon the proposition that jurisdiction will not be presumed in favor of inferior judicial tribunals.

By reference to Sec. 4650 R. S. (Sec. 6880 G-. C. et seq.), it will be seen that the record required to be made up by the commissioners of their acts and proceedings to vacate a public highway, does not include any record of their findings as to the place of residence of the petitioners, so that it is clear that when the commissioners have recorded the petition for the road, together with their orders to the viewers, and the report of the viewers together with the survey and plat, and their order thereon, all the record has been made which the statute contemplates, and this does not include any record of a finding as to the places of residence of the petitioners. We reach the conclusion, therefore, that the position is not well taken that the presumption must be that the petitioners were not residents of the vicinity, and so it was proper at the hearing of this case that evidence of the residence of such petitioners should be taken, and from that evidence, we find the court was justified in holding that the petitioners were residents of that part of the county in which the road was located. But however that may be, there can be no doubt that the new road from point No. 1 to point No. 2 became, by what was done by the commissioners, as has already been pointed out, an established public highway. This is clear from the case of Steiibenville v. King, 28 Ohio St. 610, the first clause of the syllabus of which case reads:

“A conveyance of land to the county commissioners for a county road, the acceptance of such grant by the commissioners, and opening of the road by their order, and its subsequent use as such by the public, and by the proper authorities, constitute it a legal, public highway, notwithstanding the want of statutory proceedings for its establishment.”

By Sec. 4669 R. S. (See. 6924 G. C.) it is provided that,

“All alterations of county roads heretofore made and established, or which shall hereafter be made and established, shall be and remain part of such roads, and so much of the original roads as is rendered unnecessary by such alterations in the opinion of the viewers and the county commissioners, shall be and remain vacated. ’ ’

In the case of Silverthorne v. Parsons, 60 Ohio St. 331 [54 N. E. 259] this section was considered, and the syllabus of the case reads:

“When the owners of land crossed by a county road enter into an agreement with the county commissioners pursuant to which they convey to the commissioners other land, with a view to affecting a necessary change in the road, and the road is by order of the commissioners opened on the lands conveyed, and is so used by the public and by the proper authorities, there is a legal change in the location of the highway, notwithstanding the want of statutory proceedings for that purpose; and under Section 4669 of the Revised Statutes, so much of the original road as is rendered unnecessary by the change is vacated. ’ ’

We hold that clearly, from the evidence in this cáse, so much of the original road as extended from point No. 3 to point No. 2 on the plat already mentioned, was rendered wholly unnecessary by the opening of the road from point No. 1 to point No. 2. That being true, the establishment of the new road resulted in a vacation of this last named part of the old road, and the acts of the defendant in this action in placing fences along either side of their right-of-way, and such other obstructions as they placed within the limits of their right-of-way, did not constitute an obstruction to any public highway, and the judgment of the court dismissing the plaintiff’s petition was right, and is affirmed.

Henry and Winch, JJ., concur.


text:
    DRAINS AND DITCHES — EASEMENT
    [Summit (8th) Circuit Court,
    October 11, 1909.]
    Henry, Marvin and Winch, JJ.
    George Bates v. George W. Magennis.
    No Easement in Private Sewer Through Land of Another.
    The mere existence of a private sewer through a man’s land which others are using, but of which there is no record evidence and of which, he had no knowledge when he purchased the premises, does not give such others a right to continue the use of said sewer without his consent
    Appeal.

      Slabaugh, Seiberling <& Huber, for plaintiff.

      Otis, Berry & Otis, for defendant.
   MARVIN, J.

The plaintiff is tbe owner of. a lot of land in the city of Akron at the corner of Adolph street and Perkins street, the lot fronting on Adolph avenue. The defendant is the owner of a lot fronting on Good street, in the city of Akron. There are several intervening petitioners in this case, and they severally own lots fronting on Adolph avenue (which is a street running south and north), south of the lot owned by the plaintiff. Good street and Adolph avenue are parallel to each other and are about 400 or 500 feet apart. These several lots are all a part of the same allotment made by Jacob Good, and known as “Good’s allotment.’’ This allotment was made in 1872 or thereabouts, and is properly recorded in the records of Summit county. At the time the allotment was made Jacob Good owned all this property, together with many other lots in an allotment. There is now and for many years has been a main sewer extending along the line of Good street. There is also a main sewer in Perkins street. There is no such sewer in Adolph avenue. While Good was the owner of all the lots which are affected by the controversy in this case, he constructed a private sewer in and along Adolph avenue, from a point in front of the plaintiff’s lot southerly to a lot known as No. 8, in his allotment, so that it passed along the front of the lots of the intervening petitioners in this case. When it reached lot 8, Good turned it to the west, and carried it across the southerly part of that lot and near the northerly line of the lot owned and held by the defendant Magennis. The lot of the defendant is known as lot No. 21. These lots crossed by this sewer, as well as the lots fronting on Adolph avenue, which were along the line of this sewer, were all owned by Good at the time he put in the sewer, which is a 6-inch pipe sewer. This sewer crosses to the west across the lots of the defendant Magennis and empties into the main sewer on Good street. The defendant, unless enjoined, will obstruct this sewer crossing his premises so as to prevent sewage from the lots in front of which and along which it runs from being discharged into the sewer in Good street, and the purpose of the suit is to enjoin the defendant from so obstructing this sewer. The deeds from Good to the several purchasers of the lots involved in this suit make no mention of this private sewer, nor is there any record of one. The 'claim of the plaintiff and the others similarly situated is that the inducement to purchase the several lots owned by them was the existence of this private sewer, and it is urged by them that as Good was the owner of all this property, as he sold off the lots he encumbered the remaining lots, that is the lots remaining in his ownership, with this sewer privilege. It is not, however, seriously urged that the defendant Magennis, who purchased his lot in 1906, from J. Ed. Good, who had purchased it from the heirs of Jacob Good, the original proprietor of all these lots, would take his title .subject to the right of the other lot owners to have this sewer maintained, unless he had knowledge of the existence of the sewer. Certainly, if this claim had been seriously urged, it could not be maintained. A perfect abstract of the title of this lot No. 21, owned by Magennis, taken from the. records accessible, would have given him no notice of any rights of anybody to maintain a sewer across his lot. It was sought on the part of the, plaintiff, however, to show that the defendant had actual notice of the existence of this sewer. We do not discuss at all the proposition of what his rights would have been, if such actual notice were shown. The only evidence tending to show that he had such notice is the testimony of Mr. Holloway, the acting agent for J. Ed. Good, through whom the defendant negotiated for the purchase of the lot. Holloway says that he said to Magennis that if he should ever want to build a barn on this lot that he thought he would find a sewer already there, and if he wanted to know where that sewer was he had better see J. Ed. Good. Magennis did not remember any such conversation as this; but suppose it took place; supposing Holloway’s recollection is right, we hold that it is no such notice to Magennis as should put a careful man upon inquiry to know if there was not a sewer running through his lot which the lot owners on a street entirely away from his lot were entitled to have kept open. It is urged, as evidence, that Magennis must have known about this sewer, because Orgill who built a house for Magennis said something to him about a sewer being through there, and Magennis manifested no surprise about it. This is easily explained by the statement made by Magennis, that some time after he purchased that lot he was told by his wife that a neighbor woman had told her that she believed that there was a sewer across this lot, so that this statement of Orgill was not the first that Magennis ever heard of the sewer. Of course the notice from Orgill coming after the purchase was made, or the notice to Mrs. Magennis, which came after the purchase was made, could not in any way affect Magennis’ rights, nor is that claimed, but that only the fact that Magennis did not seem surprised to learn something about a sewer when Orgill spoke about it tends to show that he must have known about it before. So he did to the extent that his wife had told him what the neighbor woman had said. But we hold that the fact, if it be a fact, that Holloway said to Magennis that he thought there was a sewer on the lot through which he could drain from a barn if he might want to erect one on his lot, was not such notice as to charge Magennis with the lien of the easement across this lot for a sewer.

Attention is called to the fact that the sewer connection between Magennis’ house and the public sewer on Good street is made through this sewer. It appears from the evidence that Magennis contracted with a party to put in this sewer conneetion from his house to the Good street sewer and that the contractor took advantage of the sewer which he found there and made the connection with it. Certainly this can in nowise entitle the plaintiff or the other lot owners on Adolph avenue to have this portion of the sewer kept open. Besides, it is shown that for a sum not exceeding $450 a sewer can be constructed from the point in this private sewer where it turns from Adolph avenue, to the west and then south, to the main sewer in Forge street.

As to the plaintiff the connection can be made for sewer purposes from his premises to the sewer in Perkins street at no great expense.

We reach the conclusion that the plaintiff and the other property owners have not made a case that clearly entitles them to relief against this defendant, and that it would be inequitable, under the facts here, to encumber the title of the defendant with an easement for this sewer, and the petition of the plaintiff and the several intervening petitioners are dismissed.

Henry and Winch, JJ., concur.


author: MAEVIN, J.

text:
    CAEBIEES — EVIDENCE
    [Summit (8th) Circuit Court,
    October 11, 1909.]
    Henry, Marvin and Winch, JJ.
    Arthur H. Marks v. United States Express Co.
    1. Ambiguous Signal in Loading Automobile on Express Car Question for Jury.
    Whether an ambiguous signal, given by a representative of an express company to the owner of an automobile who was about to propel it up skids into a car for the purpose of having it transported, was a signal to come forward or stop, is a question for the jury.
    2. Owner of Automobile not Agent of Express Company Rendering Company Liable for His Negligence.
    Even if such signal was intended as a signal to come forward and move the automobile up into the car, the owner of the automobile was not thereby constituted the agent of the express company in such sense as to make his subsequent negligence, if any, the negligence of the company.
    Error.

      Roger tfe Rowley, for plaintiff in error.

      Hoyt, Dustin, Kelley, McKeehcm & Andrews, for defendant in error.
   MAEVIN, J.

The plaintiff in error was the plaintiff in the original action. He brought his suit for damages which he alleges resulted to an automobile owned by him, and which the defendant undertook to transport from the city of Akron, Ohio, to the city of Boston, Mass. The plaintiff was the owner of an automobile and arranged with the defendant, through its agent, Mr. Had-den, at Akron, for the transportation of the automobile to Boston.

It appears from the evidence that at an earlier date the defendant had transported for the plaintiff an automobile from Akron and that considerable difficulty had been experienced in the loading of the auto upon the railroad car of the defendant, and it was agreed between the plaintiff and Mr. Hadden that instead of loading with pulleys and cables, as had been done in the case of the former transportation of an auto, this auto might be loaded by propelling it by its own propelling machinery onto the car. The car had doors opening at the end sufficient to allow the auto to pass in. It was arranged that these doors should be opened and that skids or planks should be placed lengthwise from the sill of these car doors out on to the railroad track at such an angle that the auto could be run up these skids by its own power and thus into the defendant’s car. On or about the 28th of June, 1907, pursuant to this arrangement, the defendant, through its agent, Hadden, called the plaintiff by telephone and said to him that the car was ready for the shipment of the auto, and asked if the plaintiff could have his auto at the place of loading that afternoon. The plaintiff replied that he would not be able to have the auto there that afternoon, but that he would have it there about 9 o’clock the next morning. There is a disagreement in the testimony as to whether a call was made through the telephone by Hadden to the plaintiff on the morning succeeding the conversation already mentioned, but whether such further conversation took place or not is not important, for on' that succeeding morning the plaintiff propelled his auto up to the railroad yard where the defendant’s car was standing. He passed that car and having reached a point about 150 feet from the car of the defendant, turned his auto around so as to be headed toward the open end of the defendant’s car into which the auto was to be run. Four planks, used for skids, were then in place at the end of the defendant’s car leading from the sill of the door of such car out on to the earth between the rails of the railroad track. These planks were placed two on either side of the door sill, leaving a space between the two on the right and two on the left, but on each side, that is to say, on both the right and the left side, the two planks on the sides respectively were placed so close together, that there was a pathway for the wheels of the auto on either side to run up to the railroad ear. The outer plank on either side was nailed to the sill of the car door, and stakes were driven into the ground at the end of each of these outer planks. The inner planks were neither nailed nor staked. This being the situation, the plaintiff having his auto in the position already mentioned, saw Hadden, who was standing near the railroad car, make a signal with his hand. This signal the plaintiff understood indicated that he was to come forward with his auto and run up the skids, that were ready for him. Hadden says that what was meant by the signal was the plaintiff should stop and not come forward, as the skids were not ready. Understanding, however, as the plaintiff did, that the motion made by Hadden’s hand indicated that he should come forward with his auto, he moved it forward at a slow rate of speed steering it upon the pathway made by the planks so that it rolled up the planks until the forward wheels of the auto were inside of the car upon the floor, when one or both of the inner planks upon which the end wheels of the auto then were, tipped to such a degree that the end wheels were left without support and the auto dropped and fell and was thereby greatly damaged and injured.

Upon the trial the jury returned a verdict for the defendant. Judgment was entered upon that verdict and by proper proceedings the case is here for review.

It is urged here that the court erred in refusing a motion for a new trial, because it is said that the verdict was not supported by the evidence and was against the weight of the evidence. It is urged further that the court erred in its charge to the jury and in its refusal to charge as requested by the plaintiff.

The claim that the verdict is not sustained by the evidence is based upon the proposition that the evidence clearly shows negligence of the defendant, and clearly shows that there was no negligence on the part of the plaintiff. We are not prepared to say that either of these claims is correct. Hadden had in his conversation with Marks by telephone said to him that the car on which the auto was to be shipped, was ready; he had not said to him that all the arrangements for loading the car were ready. He testifies that he had expected before the car should be run up these planks or skids that the two on either side should be held together by cleats nailed on each end. It seems to be conceded that this seems somewhat improbable because of the fact that the outer planks on either side had already been nailed to the sill of the car. One would suppose that if these planks were to be eleated together, the cleating would have to be done before they had been put in place, and not after the outer planks had been nailed to the sill of the car, so that in order to put on the cleats one would have to get under these planks and drive his nails upward, holding the cleats that were to be put on up against the planks. But whatever plan was to be adopted, or whether any plan would have been adopted to make this pathway more firm than it was, it is not clear that the defendant had ever notified Marks that it was ready for use, or that it had not intended to make it more safe for use before the auto should be run upon it. Certainly, under the evidence, the jury might well have found that Marks had never been notified that the skids were ready for the loading of his auto. He had been notified that the car was ready and he had received a signal, which at best can be said to have been ambiguous as to its meaning, and if it were ambiguous before moving his auto on these skids, for it must have been recognized by both the plaintiff and the defendant’s agent, that as this was a. novel proceeding it would be attended with danger, unless the pathway was made firm and secure, and very secure, for this auto weighed some 3500 pounds, it would not be safe to run the auto upon the pathway of skids. It is said, however, that as the plaintiff with his machine was something like 150 feet from the foot of these skids when he received whatever signal he did receive, and he was seen to move forward with his auto by Hadden, Hadden should have recognized that he misunderstood the signal and given him a signal by motion of his hands or by words, or in some way, that he could not have misunderstood. The explanation of this made by Had-den is by no means so unreasonable as that the jury might not well have believed it. That is, that he saw Marks moving forward with his auto, supposing that he had understood his signal and that he would stop at the foot of the skids and not attempt to go any further until he had learned that everything was safe. Surely, if instead of a wave of the hand Hadden had called out to the plaintiff “Do not come,” and had supposed that the plaintiff understood him, whereas, as a matter of fact the plaintiff understood him to say “come,” it could not well be claimed that the defendant was bound, as having thereby wrongfully induced the plaintiff to move his auto forward on the skids. We regard it as by no means clear that the defendant was negligent. As has already been said, this manner of loading an auto was a novel one, and it must have been recognized by all concerned, that considering the great weight of the auto great care should have been taken to have the planks or skids properly placed and secured, and the jury might well have found that since the only notice. that the plaintiff had received that the skids were all ready for him to move forward was this signal with the hand, which surely had no certain meaning, the plaintiff did not exercise the care which a prudent man should have exercised under the circumstances. We can not reverse the judgment on the ground that the verdict was contrary to or against the weight of the evidence.

This, perhaps, would cover the proposition urged with vigor by counsel for the plaintiff, both in oral argument and in his brief, that the auto, from the time Hadden made the signal to the plaintiff, up to the time of the accident, was in the custody and under the control of the defendant. It was under the control of the plaintiff, and it can not properly be said that even if the signal given by Hadden was that the plaintiff move his auto forward and up into the car that the plaintiff thereby became the agent of the defendant in such wise that his negligence could be adjudged to the defendant,' as between him and the defendant.

The argument is made that if there was any negligence on the part of the plaintiff after he received the signal, such negligence would be chargeable to‘the defendant on the ground that the plaintiff was acting from that time on as the agent of the defendant. This is clearly unsound. If it had been the auto of somebody else and the signal had been such that the jury should find that it called for the plaintiff to go forward with his auto and drive up the skids, the position would not be so clearly untenable as it is when the plaintiff himself is the one who moved forward the auto, and who was negligent, if anybody was negligent, in moving it forward. If this auto had been the property of some other person and if the plaintiff really had been the agent of the defendant, and if while so acting as such agent he had by his negligence caused the injury to the auto, he would himself have been liable, to the owner of the auto, notwithstanding the fact that the defendant would also have been liable in such damages. The negligent agent of one who causes injury is not himself relieved from liability because his principal is liable.

What has already been said disposes of the complaint made that the court erred in saying to the jury that this was a simple case of negligence. The court was right in so saying, because either this was an accident for which nobody was liable, or it was a case where, either by reason of the negligence of the plaintiff or the negligence of the defendant or the combined negligence of the two, injury resulted to the property. If the plaintiff was entitled to recover in this action, the burden was upon him, as the court held, to show the negligence of the defendant, and if his own testimony raised a presumption of negligence on his part, as we are inclined to think it did, the burden was upon him to remove the presumption.

Complaint is made, as has already been said, that the court failed to give to the jury the plaintiff’s request to charge, marked “A,” found on page 109 of the bill of exceptions.

This was properly refused, as we think, for the reasons already suggested in discussing the other propositions in the case.

The judgment of the court of common pleas is affirmed.

Henry and Winch, JJ., concur.


text:
    FRAUD
    [Lorain (8th) Circuit Court,
    December 28, 1909.]
    Henry, Marvin and Winch, JJ.

      J. D. Smith Foundry & Sup. Co. v. Lorain Co. Banking Co.
    1. Statement “I have Money Enough Now” as False Representation.
    That the statement: “I have money enough now. I could pay cash for anything I should order if I wanted to,” was false is not conclusively shown by proof that the person making the statement did not, at the time, have money in the bank.
    2. Statement “I Have Plenty of Orders on Hand” not False Representation.
    The statement: “I have plenty of orders on hand,” is not unwarranted if the person making it at the time had the promise from various reliable establishments that he should have their orders.
    Error.

      Affirmed no opinion, J. D. Smith Foundry Co. v. Lorain Co. Banking Co. 83 Ohio St. 481.

   MARVIN, J.

The only question in this case is this: Did the plaintiff in error (which was the plaintiff below) show by the evidence that it parted with its property to Lieblang, by reason of false representations made by Lieblang to the plaintiff? If it did, it was entitled to a recovery in this action. If it did not, the result in the court below was right.

The evidence shows that a Mr. Smith, representing the plaintiff, sold to Lieblang something more than $600 worth of devices and material designed for use in a foundry. He says in his testimony that he was induced to make the sale and deliver the property because of three things. First, Lieblang said in answer to an inquiry put to him by Smith as to his financial condition, “I have money enough now. I could pay cash for anything I should order if I wanted to.” That he also said in answer to the same question, ‘ ‘ I have plenty of orders on hand, ’ ’ and also, “You can see the people I am working for now: the Weller Engineering Co.” He says that he inquired of Mr. Jones, the superintendent of the Weller Engineering Co., and Jones told him that Lieblang had told him (Jones) that he had property in Cleveland worth $10,000.

Surely it can not be said that Lieblang made any false representation to Smith by what he said to Jones, but it is urged that Lieblang’s statement “I have plenty of orders on hand” was false. The facts show that he had no orders in writing on hand at the time he said this. The evidence shown that the Weller Engineering Co. had said to Lieblang that he could have all of their work in his line which would amount to three or four hundred dollars every month, and that two other companies had said to him that they would take all the product of the foundry which he proposed to start which they could use in their business. We think it can not be said that Lieblang’s statement, ‘ ‘ I have plenty of orders on hand, ’ ’ was a false representation. He spoke ■ as one might well speak who had the promise from various reliable establishments that he should have their work. From the evidence he was warranted in understanding that these several parties had agreed with him to take the products of his foundry. There remains only the other statement: “I have money enough now, I could pay cash for anything I should order if I wanted to.” It is Claimed that this is disproved by the testimony of Lieblang himself. That testimony, so far as it relates to this question, is as follows: •

“Q. At that time” (referring to the time when contract of sale was made) “what money, if any, did you have in bank? A. None.
Q. At that time did you have any personal property other than money? A. No sir.”

This is all the evidence there is to show that when Lieblang made the statement that he had money enough to pay for the goods at the time of the purchase, if he wished to do so, he told what was not true.

For some reason counsel for the plaintiff did not see fit to ask Lieblang if he had any money in his pocket or anywhere except to ask him if he had any in the bank. It does not follow that one who does not have money in bank, to the amount of six or seven hundred dollars does not have that amount of money in his pocket or elsewhere. If the plaintiff desired, to show that this statement of Lieblang was false, he should have tried to show by somebody, either by asking Lieblang, if he chose to do so, or by producing some other witness who knew, that he had no money.

This case was tried to the court without the intervention of a jury. The court reached the conclusion that the plaintiff had not sustained his case. In reaching such conclusion we think the court was right, and its judgment is affirmed.

Henry and Winch, JJ., concur.


text:
    CRIMINAL LAW
    [Lorain (8th) Circuit Court,
    December, 1909.]
    Henry, Marvin and Winch, JJ.
    Harry Sisson v. State.
    1. Prosecutor’s Comment that Accused Failed to Show Any Evidence of Good Conduct is Misconduct.
    Notwithstanding accused in a trial for first degree murder while on the witness stand and by his own testimony had shown a bad character, comment by the prosecuting attorney that he had failed to produce any evidence of good character, is misconduct.
    2. Record or Reputation of Prosecutor not Weighed by Jury by Previous Recommendation of Mercy.
    No consideration of the record or reputation of a prosecuting attorney should be permitted to be weighed by the jury. Hence, it is misconduct to state that he hopes while holding such office that no man guilty of murder in the first degree shall be recommended to mercy.
    3. Verdict not Invalidated by Misconduct of Prosecutor.
    In a criminal case, when it is plain from the evidence that the jury could not have reached any conclusion other than that which was reached, a verdict will not be set aside for reprehensible misconduct of the prosecuting attorney.
    Error.
   MARVIN, J.

Sisson was indicted under the name of Harry Sisson, alias Herman Connors, alias Joseph St. John, for murder in the first degree; the charge being that he killed Young Pa while he (Sis-son) was engaged in perpetrating a-robbery. Upon the trial the jury returned a verdict of guilty of murder in the first degree with recommendation to mercy. - Whereupon he was sentenced-to' imprisonment in the ■ penitentiary for the term of his natural life. By proper proceeding the case is here on error.

The plaintiff in error urges as ground for the reversal of the judgment that the verdict was not sustained by sufficient evidence, by reason of which the court erred in overruling a motion filed by him for a new trial, and also that there was error in overruling such motion by reason of misconduct on the part of the prosecuting attorney in his closing argument to the jury. Both of these questions were considered by Judge Washburn upon the hearing of such motion and a very able and instructive opinion was prepared by him upon the overruling of such motion. This opinion is now in our hands and it is not deemed important that very much be said other than what is said in that opinion. We reach the same conclusion which was reached by Judge Washburn.

We think it proper to say, however, with such emphasis as we can, that the language used by the prosecuting attorney, complained of by the plaintiff in error, is deserving of severe censure. It was improper for him to speak of the fact that the prisoner had failed to produce any evidence as to his good character. The language used in that regard was extravagant, and we think the court, when attention was called to it, erred in saying, “the argument is proper.” The only justification claimed for this is that the prisoner himself had been upon the witness stand and by his own testimony had shown a bad character, but that was not what he went upon the witness stand for, as he had nowhere by his own testimony or otherwise undertaken to show a good character.

So about the language of the prosecuting attorney in urging upon the jury that they should not only find the prisoner guilty of murder in the first degree but they should not recommend bim to mercy, and in this connection, referring as he did to his record as prosecuting attorney and the hope that while he held that position in Lorain county no man guilty of murder in the first degree should be recommended to mercy, he was wholly outside of and beyond the duties of the prosecuting attorney.

It was his duty to present the evidence and to make a legitimate argument from such evidence as to the guilt of the prisoner on trial, and he should have left it entirely with the jury to say whether he should be recommended to mercy; it was no part of his duty to urge the jury to overlook any inclination on their part to make such recommendation. Certainly no consideration of the record or reputation of the prosecuting attorney should have been permitted to weigh at all with the jury as to their action in this regard. However, as to this appeal that there should be no recommendation to mercy, the jury disregarded it, so the prisoner suffered nothing from this language unless it had a tendency to induce them to find that the prisoner was guilty.

An examination of the evidence brings us to the conclusion reached by the jury and by Judge Washburn, that beyond all reasonable doubt this man was guilty of the murder of which he was convicted, and that being so, we feel justified in affirming the action of the court of common pleas in refusing a new trial, and of affirming the judgment of that court.

In the case of Pollard v. State, 33 Tex. Crim. Rep. 197 [26 S. W. 70] the language of the prosecuting attorney was very much like the language of the case under consideration, but in that case the court refused to direct the jury not to consider these remarks of the prosecuting attorney. In that case the judgment was reversed. It does not clearly appear from the opinion whether it would have been reversed, but for the refusal of the court to charge that this language should be disregarded.

In the case of People v. Evans, 72 Mich. 367 [40 N. W. 473] where similar language was used by the prosecuting attorney to the jury, the court held that the wrong thereby caused was not cured by the instruction of the court to the jury to disregard the remark.

In the case of House v. State, 19 Tex. Crim. App. 227, the sixth clause of the syllabus reads:

‘ ‘ This court will reverse a conviction because in the trial the counsel for the state abused his privelege of debate, only when it appears, (1), that the remarks used in argument were improper, and (2), that they were of a material character, and such as, under the circumstances, were calculated to injuriously affect the defendant’s rights.” (See the opinion in extenso, and the statement of the case, for statements in argument held not to be such an abuse of privilege as to authorize the reversal of the judgment.)

This is cited with approval in the case of Coyle v. State, 31 Tex. Crim. Rep. 604 [21 S. W. 765]; the same question arises in Hemingway v. State, 68 Miss. 371 [8 So. 317], Also in Wells v. State, 16 S. W. 577 (Ark.); Heyl v. State, 109 Ind. 589 [10 N. E. 916]; State v. Ean, 90 Ia. 534 [58 N. W. 898]; State v. McGahey, 3 N. Dak. 293 [55 N. W. 753]; State v. Moody, 7 Wash. 395 [35 Pac. 132]; State v. Shawen, 40 W. Va. 1 [20 S. E. 873].

In the second paragraph of the syllabus of the case last cited this language is used:

“Where a criminal trial is in other respects fair, a verdict of conviction will not be set aside for improper remarks of counsel where it” (the verdict) “is plainly warranted by the evidence of the case under the law, and no other verdict could have been found without misconduct by the jury.”

In that case among other things which were improperly said by counsel for the state in his closing argument to the jury, were these words: “He is so steeped in crime that he has no friend to sit beside him during the trial.” And yet in this case the conviction was affirmed because of the fact that the evidence so clearly established the guilt of the prisoner that' no other verdict could have been found without misconduct by the jury.

From these authorities we feel justified in adhering to the general proposition that where it is plain from the evidence that the jury could not if they were sensible men reach any conclusion other than that which was reached, a case should not be reversed, though the conduct of the prosecuting attorney was reprehensible.

We reach the conclusion, therefore, that the judgment of the court below should be and it is affirmed.

Henry and Winch, JJ., concur.


text:
    INJUNCTION — MUNICIPAL CORPORATIONS
    [Summit (8th) Circuit Court,
    December 30, 1909.]
    Henry, Marvin and Winch, JJ.

      Charles R. Morgan, Taxpayer, v. Akron (City) et al.
    1. Injunction against Issue of Municipal Improvement Bonds Limited to Unauthorized Improvements.
    When in one ordinance a municipality provides for tbe issue and sale of bonds to pay for several separate improvements, for some of which it has authority to issue bonds and for others it has not, an injunction will not be granted against the entire issue proposed, but only against that part which is for the payment of unauthorized improvements.
    2. Bonds for Sidewalk and Retaining Wall, Though Adjacent to Park Unauthorized.
    A municipality can not raise money by the sale of bonds to pay for the construction of a sidewalk and retaining wall in a street, though the improvement of the street is adjacent to a park.

      Affirmed no opinion, Akron v. Morgan, 84 Ohio St. 499.

   MARVIN, J.

Morgan is a taxpayer of the city of Akron; he called on the city solicitor, in writing, to bring this action, which the city solicitor declined to do. Unless restrained by the order of this court, the defendants will issue bonds of the city of Akron, under an ordinance passed February 15, 1909, and sell said bonds for the purpose of improving Goodwin avenue, by grading, paving and curbing; Haynes street from about 120 feet from Thornton street to Howe street by the construction of a sewer therein; Amherst street from Thornton street to the Ohio canal by the construction of a sewer therein; Snyder street from a point 145 feet from Thornton street to Campbell street by the construction of a sewer therein; for the construction of a storm water sewer aiong the right-of-way of the Brie Ry. and the Cleveland, A. & C. Ry. from Market street to Oil street, thence in and along Oil street from the railroad to the Hydraulic race; for constructing sidewalks and a retaining wall at Pleasant Park; for improving and repairing streets, and for flushing, constructing and repairing sewers, ditches, drains and catch basins.

The prayer of the petition is that the defendants may be restrained from issuing or selling any such bonds, and from expending the proceeds or any part thereof obtained from any such sale, for any of the purposes named.

It is urged on the part of the plaintiff that the issuing of bonds for any such purpose is without authority of law, or, in any event, that the avails of such bonds can not be used for all of said purposes, and that if the bonds may not be issued for all of such purposes then that, as a single ordinance of the city provides for the issue and sale of bonds for all of such purposes, the court should enjoin it from the issuing and selling of said bonds for any of such purposes.

So far as the issuing of bonds for all the purposes named, except for constructing sidewalks and a retaining wall at Pleasant Park is concerned, we think the council had authority to provide for the sale of the bonds. As to the constructing of the said sidewalk and retaining wall, we think the council was clearly without authority to issue bonds or to use the avails of the sale of any bonds for this last named purpose.

Section 2835 R. S. (Sec. 3939 Q-. C.) provides for what purposes municipalities may issue and sell bonds.

Paragraph 22 of said section provides that such bonds may be issued and sold for resurfacing, repairing, or improving any existing street or streets, as well as other public highways. We think this is sufficient authority for the using of funds raised by the sale of bonds for grading and paving Goodwin avenue, and for improving and repairing streets.

Paragraph 14 of said section authorized the issue and sale of such bonds for constructing sewers, sewage disposal works, flushing tunnels, drains and ditches, and we think this sufficiently authorizes the construction of a sewer .in Haynes street, Amherst street, and for the construction of a storm water sewer along the right-of-way of the Erie Ry. and the Cleveland, A. & C. Ry., and thence in and along Oil street.

The only language in the section which it is claimed authorizes the using of money from the sale of bonds “for constructing sidewalk and a retaining wall at Pleasant Park” is paragraph 20 of the section under consideration, which reads:

“For purchasing and condemning the necessary land for park and boulevard purposes, and for improving the same, as well as for improving or completing the improvement of any existing boulevard, park, or parks.”

The evidence shows that it was a sidewalk along the south side of East Thornton street that it is proposed to construct with the money obtained on the sale of these bonds, and that it is a retaining wall along the south side of said street that it is proposed to construct. East Thornton street extends along the north side of Pleasant Park, but constitutes no part of the park itself, and from this it follows that to construct the sidewalk and the retaining wall proposed, would not be an improvement of an existing park, but simply the construction of a sidewalk and retaining wall in a street adjacent to a park. For this purpose money can not be raised by the sale of bonds, and the order of this court is that the defendants be enjoined from issuing, selling or using the avails of the sale of any bonds under said ordinance for constructing sidewalks and a retaining wall at Pleasant Park.

Plaintiff’s attorneys will be allowed a fee of $100 in this case.,

Henry and Winch, JJ., concur.


text:
    MUNICIPAL CORPORATIONS
    [Summit (8th) Circuit Court,
    December 30, 1909.]
    Henry, Marvin and Winch, JJ.

      Charles R. Morgan, Taxpayer, v. Akron (City) et al.
    Bonds for Cleaning Catch Basins and Streets Unlawful.
    A municipality can not raise money by the sale of bonds to pay for the cleaning of catch basins or streets.

      Affirmed no opinion, Akron v. Morgan, 84 Ohio St. 500.

   MARVIN, J.

The plaintiff is a taxpayer of the city of Akron; he served notice on the city solicitor asking him to bring this suit, which the city solicitor refused to do. Unless restrained by the order of the court, the city will, under an ordinance passed on the 19th day of April, 1909, issue and sell bonds of said city for the purpose of improving and repairing Allyn street sewer from Main sewer in Wolf Dedge Run to a point 300 feet southerly; Cuyahoga river sewer outlet; Maiden Lane alley sewer from Mill street to a point 200 feet northerly therefrom; storm water sewer from Water street to the Ohio canal, near Chestnut street; culvert in east Exchange street; cleaning catch basins, and Munsons street, and unless restrained by order of this court the defendants named as the trustees of the sinking fund will purchase said bonds.

The section of the statute relied upon as justifying the issue and sale of these bonds is Section 2835, Revised Statutes. To the provisions of this section attention has been called in an opinion just prepared in cause No. 898, in this court. This section justifies the issue and sale of said bonds and the use of the avails of such for all of the purposes named, except that which is embraced in the words “cleaning catch basins and Munson street.” Just what is meant by the words “and Munson street” we are unable to say. Probably what is meant is that the money is to be used for cleaning Munson street. There is no authority under this statute for the issuing of bonds for the purpose of cleaning a street, or cleaning catch basins, and the defendants, other than the ones named as trustees of the sinking fund, will be enjoined from issuing and selling, or using the avails of any sale of bonds under said ordinance for cleaning catch basins or on Munson street and the defendant, trustees of the sinking fund, are enjoined from purchasing any bonds issued for the purpose of doing any work contemplated in the ordinance of April 19, 1909, already mentioned, on Munson street, or for cleaning catch basins. '

The plaintiff’s attorneys will be allowed a fee of $100 in this case.

Henry and Winch, JJ., concur.


author: KINKADE, J.

text:
    MUNICIPAL CORPORATIONS
    [Lucas (6th) Circuit Court,
    June, 1909.]
    Parker, Wildman and Kinkade, JJ.
    Kerlin Bros. v. Toledo (City).
    Purchaser cannot Recover for Municipal Property not Delivered.
    City officers can not bind the municipality as to title or quantity of property offered for sale, and a purchaser of property so offered can not maintain an action for the value of property not delivered.
    Error.

      Marshall <& Fraser, for plaintiff in error.

      Charles 8. Northup, for defendant in error.
   KINKADE, J.

In this case Judge Barber directed a verdict in favor of the city at the close of the testimony. We think the petition does not state a cause of action. No fraud or deceit is charged, nor is it stated that the plaintiff did not know the quantity of pipe that the city had for sale. The city had power to sell the pipe it owned, but no authority to sell property it did not own. The plaintiff having paid the amount of the bid to the city, might under certain conditions have rescinded the contract, but we think the plaintiff did not have the right to treat the contract as if made by an individual, and sue for the value of the property not delivered. The city officials can not bind the city as to title or quantity. The judgment of the court of common pleas will be affirmed.

Parker and Wildman, JJ., concur.


text:
    CONTRACTS — DAMAGES
    [Cuyahoga (8th) Circuit Court,
    December 20, 1909.]
    Henry, Marvin and Winch, JJ.
    Taplin, Rice & Co. v. McKeefrey & Co.
    1. Time Is not Essence of Contract to Deliver “in about Equal Monthly Proportions during Last Three Months of Year."

      In a contract for the delivery of 150 tons of pig iron to the defendant free of freight charges on board cars at Leetonia, Ohio (the place of business of the plaintiff), “in about equal monthly proportions during the last three months of the year 1907,” time of delivery is not of the essence of the contract, and when the plaintiff shows that he was ready, willing and able to deliver the pig iron during the time agreed, but the defendant refused to receive it, he may recover damages for breach of the contract.
    2. Measure of Damages for Breach of Contract of Purchase is Difference between Contract Price and Market Price at Delivery.
    When the seller of pig iron is not the manufacturer of it, upon the breach of a contract for the purchase of pig iron from him, the measure of damages is the difference between the contract price and the market price at the time specified for delivery.
    Error.
   MARVIN, J.

The plaintiff below is a copartnership, the defendant is a corporation. The plaintiff sued to recover from the defendant for an alleged breach, on the part of the defendant, of a contract entered into between the parties on June 10, 1907. The suit originally included a claim for damages growing out of the alleged violation of another contract between the same parties, but that was abandoned, so that the suit was tried upon the claim first above stated.

By the contract of June 10,1907, the plaintiff agreed to sell to the defendant, and the defendant agreed to buy from the plaintiff one hundred and fifty tons of No. 2 Allegheny pig iron, the same to be delivered to the defendant free of freight charges on board cars at Leetonia, Ohio, in about equal monthly proportions during the last three months of the year 1907, and the defendant agreed to pay the plaintiff therefor the sum of $24 per ton, the same to be paid for in cash within thirty days from date of shipment, or by four months’ note with interest at 6% per annum, interest to begin thirty days after shipment.

The plaintiff alleges in its petition that it was ready, able and willing to perform the contract on its part, but that the defendant on September 27, 1907, notified the plaintiff that it had sold its property, real and personal, and assets of every description, and from that time forward refused to accept and pay for the iron so contracted for, and so the plaintiff prays for damages.

The defendant answered admitting that it entered into the contract, as stated in the petition; that it notified the plaintiff that it had sold its assets, and it denies every other allegation of the petition. And further the defendant answers that it frequently demanded and requested of plaintiff to furnish the iron in question in accordance with the contract; that the plaintiff neglected to make such delivery at the time agreed upon, and that because of such refusal the defendant notified the plaintiff that it would not accept any iron under the contract.

Upon the trial it developed that the assets of the defendant had been purchased by a Mr. Clerkin, and there was a new corporation organized to take over the business of the defendant, which new corporation was known as “the Taplin, Rice, Clerkin Co.,” of which Mr. Clerkin was the principal officer and stockholder, and the notice, already mentioned, of September 27, 1907, was made because of this sale. In that notice, which was in the form of a letter, the defendant said to the plaintiff that “we find that we still have due from you considerable iron to be delivered through the balance of the year. Mr. Clerkin and his associates are putting money enough into the concern to put in a good financial condition, and hereafter all of our bills will be discounted, instead of being settled by notes in the past. In view of this fact and also that iron is considerably cheaper now than when the contract was made with you, we would like to inquire if there are any concessions that you could make on the iron still due us?”

To this the plaintiff answered, declining to make any concessions. This answer was dated October 8, 1907.

On October 11, 1907, there was written by the Taplin, Rice, Clerkin Co. a letter to the plaintiff urging that there be a concession made in regard to the price of iron contracted for by Taplin, Rice & Co. On October 14, 1907, the plaintiff wrote to the last named corporation again declining to make any concessions. On October 17, 1907, the last named corporation wrote the plaintiff saying, among other things, “We wish you would send the number of tons you still owe us on these contracts, as we want to see how they correspond with our records here.” On October 18, the plaintiff answered this letter, in which, among other things it is said: “We also have your contract under date of June 10, 1907, for 150 tons of No. 2 Allegheny at $24 cash, f. o. b. furnace, on which there was no iron shipped.” On October 30 the new corporation wrote the plaintiff that' a Mr. Fisher of that company would probably call upon the plaintiff the next day regarding the pig iron contracts that were unfilled. On October 31, the "plaintiff wrote the new corporation that Mr. McKeefrey, one of the partners in the plaintiff copartnership would not be at home either on that day or the next, and saying that they had tried to communicate by telephone with Mr. Fisher.

On November 5, the plaintiff wrote the defendant saying among other things: “We are prepared to make shipments on your contracts and will be glad to have you advise us when you want to have shipments resumed. On November 13 the new corporation wrote the plaintiff not to ship any more pig iron on any contracts with the defendant. On November 15 the plaintiff wrote the new corporation that as its contracts were with the defendant, they would have to do business with it (Taplin, Rice & Co.).

Enough of this correspondence has been given to show that the plaintiff shipped no iron under the contract of June 10, 1907, in the month of October, whereas by the contract it was to be shipped “in about equal proportions during the last three months of the year.” The plaintiff does not plead any waiver of it on the part of the defendant, but relies for recovery on the allegation that it was ready, able and willing to furnish the iron under the contract, and that the defendant refused to accept it. If time of delivery were of the essence of this contract, we should have the question here of whether, the plaintiff having failed to deliver the first shipment under the contract, the defendant might revoke the entire contract. But we think it clear that neither party regarded time of delivery as of the essence of the contract. The letter of October 30 to the plaintiff can not well be explained, except upon the theory that the defendant did not regard the delivery of the iron in October as essential to the performance of the contract on the part of the plaintiff.

The evidence shows that the partners constituting the plaintiff copartnership were Neal J. McKeefrey, John McKeefrey and William D. McKeefrey, and that they were officers of a corporation engaged in the manufacture of pig iron at Leetonia, Ohio, the place where this partnership was located, and in the correspondence which has not been quoted, the plaintiff refers to its connection with this manufacturing corporation, and gives as a reason why no concessions could be made as to the price of the iron, that the manufacturing company declined to make any change in the price to the plaintiff. And, it is urged, that the plaintiff should be treated exactly as this manufacturing company should be treated if it were the plaintiff here, and it is said that the measure of damages, if the plaintiff was damaged, would be the difference between the cost of manufacture and the contract price, whatever the measure would be in the case of one who sells property of which he is not the manufacturer. However, this may be, the evidence did not warrant the court in holding that the plaintiff was to be treated as the manufacturer of the iron which was to be delivered under the contract.

The plaintiff gave evidence tending to show that it could have delivered the iron required by the contract substantially at the times severally specified, and also tending to show that the price of pigiron was considerably less at the time when it was to have been delivered than the price which the defendant agreed to pay for it, and that therefore the plaintiff suffered a loss by reason of the refusal of the defendant to accept the iron. At the close of the evidence on the part of the plaintiff a motion was made to have a verdict directed for the defendant. This motion was overruled, and we think properly overruled, if we are right in saying that the evidence tended to show that time of delivery was not of the essence of the contract, and that the plaintiff was ready, able and willing to perform; for then clearly no verdict should have been directed for the defendant. This motion was renewed at the close of all the evidence, and was again overruled, and for the same reasons that the court was justified in refusing the motion at the close of the plaintiff’s evidence the court was justified in refusing the motion at the close of all the evidence.

At the close of the evidence the defendant submitted certain propositions in writing, which it requested the court to charge singly and not as a series. It does not appear from the record, nor do we understand that it is claimed here, that these propositions were requested to be given in writing before argument. The first of these requests was not proper, because of the first sentence in such request which reads:

“I say to you, gentlemen of the jury, that time is of the essence of the contract entered into between the plaintiff and the defendant on June 10, 1907.”

In the second request this language is used:

‘ ‘ The plaintiff must show that it has fulfilled the contract entered into between it and the défendant on June 10, 1907, as to the delivery of the iron to be furnished by it to the defendant.”

Of course if this proposition had been given, it would have been equivalent to saying that the plaintiff could not recover, because there was no claim that it had fulfilled its contract, but only that it was ready, able and willing to fulfill it, and that it failed to fulfill, because of the refusal of the defendant to receive the iron.

Without stopping to quote further we content ourselves with saying that the propositions contained in requests Nos. 3, 4, 5 and 6 so far as they state the law properly applicable to this case, were given in the charge.

Requests Nos. 7, 8, 9 and 10 are each based upon the claim that the plaintiff is to be treated as a manufacturer of the iron or else that the plaintiff was simply entitled to retain commissions on the iron sold, and each stated some proposition which we hold is not the law applicable to the case.

As to the other requests, so far as they state the law, applicable to the case, they were given in the charge.

Without stopping here to quote from the charge, an examination of it satisfies us that the court properly and clearly stated to the jury in the charge the law applicable to the case, including the proper rule for the measurement of damages.

The result is that we find no error in the record in this ease which would justify a reversal and the judgment is affirmed.

Henry and Wench, JJ., concur.


text:
    CONTEACTS
    [Stark (5th) Circuit Court,
    February 21, 1910.]
    Taggart, Donahue and Marvin, JJ.
    Judge Marvin oí Eighth Circuit, sitting in place of Judge Voorhees.
    W. H. Hoover Co. v. Niagara Fire Exting. Co.
    Extrinsic Evidence Admissible to Explain Term “Completed” used Ambiguously.
    In a written contract to install “a complete automatic sprinkler system such as will be satisfactory to the stock insurance companies, and when completed will meet strictly with their approval,” the work to be “completed in accordance with the requirements of the Ohio Inspection Bureau,” there is an ambiguity which authorizes extrinsic evidence as to the meaning of the word “completed.”
    Error.

      McCarty & Pontius, for plaintiff.

      Turner & Webber and Orlando Wilcox, for defendant.
   MAEVIN, J.

The relation of the parties here is the reverse of their relation in the court of common pleas. The terms plaintiff and defendant as used in this opinion, will refer to the parties as they stood in the court below. Each of the parties is a corporation.

On March 24, 1906, a contract in writing was entered into between the parties, whereby the plaintiff undertook to equip the manufacturing plant of the defendant with an approved wet pipe system of the Niagara sprinklers and fire extinguishing apparatus, for which the defendants agreed to pay the sum of $5,500. The contract provided among other things, that this sum of $5,500 should be “in full for work and materials, as specified herein, including surveys, preparation of plans, board and car fare for men, and the final payment shall be due and payable thirty days after the work is completed, in accordance with the requirements of Ohio Inspection Bureau, under whose rules and regulations the work is to be performed.” The specifications made a part of the contract, contained the following clauses, among other things:

“The foregoing proposition is based upon furnishing and erecting the necessary number of automatic sprinklers in your plant located at New Berlin, Ohio, together with all pipe, fittings, valves, gauges, clips, hangers and labor necessary to erect the-same in strict accordance with the requirements of the Ohio Inspection Bureau. * * * It is understood under this agreement that you (meaning the defendant) are to do all excavating and backfilling of trenches, and any carpenter and masonry work, and furnish piers for tank. Otherwise, we are to install a complete automatic sprinkling system, such as will be satisfactory to the stock insurance companies, and when completed will meet strictly with their approval.”

The plaintiff put into the manufacturing plant of the defendant a system of Niagara sprinklers and fire extinguishing apparatus which was to the satisfaction of the stock insurance companies and to the inspection bureau, and claims to have fully performed the contract on its part to be performed. The defendant by its answer, denies that the plaintiff has put in a complete automatic sprinkling system, and avers that the fact is that it is such system, when complete, and would have included all that which was put in, together with an electric alarm system, and that no such “electric system” was put in. Aside from this, there is no disagreement between the parties.

.The contract entered into was upon a printed form prepared by the plaintiff, to which was annexed the specifications, from which quotations have been made. This printed form consists of a proposition made by the plaintiff to the defendant, and accepted by it. The specifications are typewritten. It developed upon the trial that on March 17, 1906, the plaintiff had made a similar proposition to the defendant at a different price, to-wit, $6,000, which was not accepted by the defendant. The defendant placed upon the stand W. H. Hoover, who was its president and general manager, and who acted for it in the making of the contract sued upon. He testified that he had a conversation with Mr. Frazer, manager of the plaintiff at the time the contract was entered into, and then he was asked this question:

“Q. In that conversation did you- call his attention to the fact that there was no itemized statement in this proposition of March 24th similar to the one set out in the proposition of March 17th?”

This question was objected to; the objection sustained, and an exception taken by the defendant. And the defendant’s counsel stated that he expected the answer to be that the witness called Mr. Frazer’s attention to the fact that in the proposition of March 17th there was an itemized list of the various things that were to make up said system complete, and that in the proposition of March 24th, there was no such itemized list.

This question was then asked of the witness:

“ Q. I will ask you if at that time, before the signing of the contract, you asked Mr. Frazer what this proposition, which was not itemized, and which is incorporated into the contract of March 24th, included?
“A. I did.
“Q. "What did he say?”

This question was objected to; the objection sustained, and an exception taken by the defendant, and the defendant’s counsel stated that he expected the witness to say, in answer to this question, that Mr. Frazer, who represented the plaintiff in the transaction, said that the proposition included in the contract of March 24th was the same, and included all the work and material the same as that set out in the proposition of March 17th; that it was their flat form of contract, and that it included everything that was itemized in the form marked “Defendant’s Exhibit A” (this Defendant’s Exhibit A being the proposition which the defendant claimed was made to it on March 17th).

Counsel for the defendant then said, “in connection with the testimony of this witness, the defendant offers the proposition, or blank contract of March 17, 1906, heretofore marked as its “Exhibit A.” Objection to this was sustained and an exception taken by the defendant.

If there was any error for which the defendant can properly complain in the trial of this case, it was the ruling of the court upon the several questions, and offers made by the defendant, shown in the foregoing. On the part of the plaintiff in error it is urged that this should have been admitted because it would have explained what the plaintiff meant or represented to the defendant that it meant by the words used in the contract actually entered into when it said “otherwise we are to install complete automatic sprinkling system.” The word “otherwise” as here used is so used because immediately preceding it the defendant was to do certain work. This is seen by the quotation heretofore made of the clause preceding the word “otherwise.” So then, except as to the things which the defendant was to do and which precede in the specifications the word “otherwise,” the plaintiff was to install “a complete automatic sprinkling system.” It is said that what constitutes “a complete automatic sprinkling system” would not be understandable necessarily by an intelligent man, without some explanation, and that such explanation was furnished by the plaintiff, as would appear if the witness had been permitted to answer that when he asked Frazer what was included in it, he answered, that it included all that was included in the proposition of March 17, and if the court had then permitted the proposition of March 17 in evidence, the words “complete automatic sprinkling system” would, it is claimed, have been fully explained. The specifications attached to the proposition of March 17th contain these words:

“The foregoing proposition is based upon furnishing and erecting 725 automatic sprinklers in your plant located at New Berlin, Ohio, together with all pipe, fitting, valves, gauges, clips, hangers and labor necessary to erect the same in strict accordance with the requirements of the Ohio Inspection Bureau. We further estimate that it will require.” (Then follow twelve items of equipment, one of which is an “electric alarm system.”)

But for certain words contained in the contract actually made, and also contained in the proposition of March 17th it would seem as though there could be little doubt that the defendant was entitled to show what he offered to show, that the plaintiff said at the time the contract was entered into that the complete system included the items named in the specifications attached to the proposition of March 17th. Certainly it can not be claimed that the words “complete automatic sprinkling system” convey a distinct idea to one not familiar with the system. In other words, there is an ambiguity in these words. To no member of this bench does it convey a distinct idea of what would be necessary to make such complete automatic sprinkling system. But, on tbe part of tbe plaintiff, it is urged that when the entire clause is read in which the words occur, “complete automatic sprinkling system,” it will be seen that an arbitrator was determined upon in the contract, who should decide that question. The entire paragraph reads: “We are to install a complete automatic sprinkling system such as will be satisfactory to the stock insurance companies, and when completed will meet strictly with their approval.” And in the printed proposition already quoted, the agreement is that the work is to be * completed in accordance with the requirements of Ohio Inspection Bureau.” The trial court evidently regarded this contention on the part of the plaintiff as sound, and in the argument of plaintiff and in briefs furnished by its counsel, abundant authority is cited to show that where parties determine upon one who is to decide whether the contract is completed, such decision is final. But is that fairly applicable to the case here? The plaintiff was to put in a “complete system” and it was to be a “Niagara System.”

It would hardly be contended that if any system other than the Niagara System had been put in, it would have been a fulfillment on the part of the plaintiff of its obligations under the contract, although such system should be to the entire satisfaction of the ‘ ‘ Ohio Inspection Bureau, ’ ’ and meet entire satisfaction of the “stock insurance companies.” The insurance companies and the inspection bureau are interested only in having such a system as will properly secure the premises from danger by fire. It certainly is conceivable that a system of fire extinguishers might be installed which would meet with the entire approval of the inspection bureau and the insurance companies, which would not be a “complete automatic sprinkling system” of the Niagara pattern.

Suppose A should contract to furnish B a complete McCormick harvester machine, to the satisfaction of the man in the charge of B’s farm, and A should furnish not a McCormick but a Deering Harvester machine, and such Deering machine was to the entire satisfaction of the man in charge of B’s farm, it surely could not be claimed that A had performed his contract. The machine was not only to be to the satisfaction of the man in charge of B’s farm, but it was to be a McCormick machine.

Suppose A undertakes to furnish B a complete harvesting machine to the complete satisfaction of the man in charge of B’s farm, and B not himself being familiar with such machinery or its use, inquires of A what that includes, and he answers, either in writing or by word of mouth, that it includes an Appleby automatic binding attachment. A machine is furnished to the entire satisfaction of the man in charge of B’s farm but it has no Appleby automatic binding attachment. It would seem as though there could be no doubt that A has not fulfilled his contract.

Suppose that A agrees to furnish B a certain span of horses and a carriage, with all the necessary attachments to the' satisfaction of B’s coachman. B inquires what is included in that complete carriage, and A answers, it includes among other things, a pole and shafts. A delivers the horses and the carriage with the pole and no shafts. It is entirely satisfactory to B’s coachman. Has A fulfilled his contract? It would seem as though this question answered itself.

Suppose that at the time of the contract being entered into there had been present some of the appliances constituting a part of the apparatus, which appliances were made of brass, and which if made of iron would be equally satisfactory as they well might be, to the insurance companies and the inspection bureau, and the defendant had asked of what material are these particular appliances to be made when you put in a “complete automatic sprinkling system” of the Niagara pattern, and the answer had been, “They are always of brass.” The system when put in, has several appliances of iron or some other material much cheaper than brass. They are equally satisfactory to the insurance companies and the inspection bureau, but could it be claimed that the plaintiff having said, either in writing or by word of mouth, that their completed system included these appliances made of brass, that the contract had been complied with? This seems to answer itself. In short, a fair construction of this contract would seem to require that the work and the materials should be satisfactory to the insurance companies and the inspection burean, but that the fact that they were so satisfactory was not necessarily all that was required, but that such contract might include something else. We think the court clearly erred in excluding the evidence to which attention was called, which was offered by the defendant. We therefore hold that this evidence should have been admitted as explaining what the plaintiff represented to the defendant was meant by the Niagara sprinkling and fire extinguishing apparatus, and a “complete automatic sprinkling system,” and for error in excluding this evidence, the judgment is reversed and the cause remanded.

Taggart and Donahue, JJ., concur.


text:
    DIVORCE AND ALIMONY — DOWER
    [Summit (8th) Circuit Court,
    April 12, 1911.]
    Marvin, Winch and Henry, JJ.
    Don A. Goodwin v. Mildred Goodwin.
    Dower not Released by Divorce for Husband’s Aggressions in Absence of Election to Receive Alimony in Lieu Thereof.
    The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death is property, and the property right is not lost by her by divorce from him on his aggressions, unless she voluntarily release the same and agree to take a money consideration in lieu thereof, which, in an alimony case, may be awarded her upon her election.
    Appeal.

      Grant, Sieber & Mather, for plaintiff.

      Otis, Beery c& Otis and G. M. Anderson, for defendant.
   MARVIN, J.

The defendant in this action was divorced from the plaintiff by reason of his aggressions. The defendant not being content with the order in reference to alimony, comes to this court by appeal from that part of the decree.

The evidence shows that the parties lived together as husband and wife but a short time; that both had been married and both divorced before their marriage to each other. The defendant is now about 38 years of age, and though there is no evidence as to the age of the plaintiff, it does appear that they were acquainted as children, and from his appearance on the stand we reach the conclusion that he is a few years, and only a few years, the senior of the defendant. It is perhaps not profitable that we should spend any considerable time in the discussion of the obligations which each of these parties took to the other at the time of the marriage. The law imposes duties upon each, and gives rights to each. When the plaintiff married the defendant he undertook to provide for her in such wise as one in his circumstances and with surroundings should provide for his wife. And further he conferred upon her by the very act of marriage the right to be endowed of all the real estate of which he should be seized at any time during the coverture, provided she outlived him. This right, though inchoate, is still spoken of and declared by the courts of Ohio to be a property right. In the case of Mandell v. McClave, 46 Ohio St. 407 [22 N. E. 290; 5 L. R. A. 519; 15 Am. St. 627] it is said in the syllabus:

“The contingent right of a wife, during her husband’s life, to be endowed of his real estate at his death, is proper, having a substantial value that may be ascertained with reasonable certainty from established tables of mortality, aided by evidence respecting the state of health and constitutional vigor of the husband and wife respectively. ’ ’

The evidence shows that the husband is the owner of real estate which is worth, above the mortgage encumbrances upon it (which encumbrances we assume to have been upon it at the time the parties hereto were married), about $80,000. He has a considerable amount of personal property, but probably not sufficient to pay all of his debts, including this mortgage debt. This contingency right of dower, estimated by the tables, and assuming the husband to be 40 years of age, is worth about $3,200. The decree of divorce in this case could not deprive the defendant of that right, so she still has it. If she chooses to relinquish it for its fair value in money she may do so, but it is no part of the duty of this court to determine that she shall, and without going further into the reasons for the állowance made, it will be the order of the court that the plaintiff pay to the defendant the sum of $1,800 as alimony, and that if she chooses to, and she releases her right to dower in his real estate, he shall pay her the additional sum of $3,200; so that in any event she shall receive $1,800 and it will be at her election whether she will release her dower and receive $5,000.

This decree for alimony will constitute a lien upon the real estate of the plaintiff until it is paid, and in the event that the defendant shall elect to release her claim for dower to the plaintiff, such release shall not operate to discharge such real estate from any part of the lien created by this decree.

Winch and Henry, JJ., concur.


author: HENRY, J.

text:
    STREET RAILWAYS
    [Summit (8th) Circuit Court,
    October 12, 1910.]
    Henry, Marvin and Winch, JJ.
    Ludwig Spielberger v. Northern Ohio Trac. & L. Co.
    Street Railway not Liable when Person, Knowing of Approaching Car, Drives on Track, Motorman not Having Time to Stop.
    When a person with knowledge that a street car is coming rapidly, drives upon the track and his hind wheel is struck before he clears the track and he is injured, there being no evidence that the motorman had time to stop his car in time to save the accident, there can be no recovery against the street car company.
    Error.
   HENRY, J.

From this record it appears that a verdict for the defendant below was directed at the close of plaintiff’s evidence in an action to recover damages for personal injuries sustained by the plaintiff, a groceryman, the hind wheel of whose delivery wagon was struck by a street car as he was driving across Main street in the city of Akron on the morning of November 27, 1907. The only negligence of the defendant which the plaintiff in error now relies on is that the motorman had time, after notice of the danger, to prevent the collision.

Spielberger himself testified (pp. 6-8), “When I got on Main I looked around the north side, did not see anything, looked around south and it was about 300 feet away from the crossing from where I was going to cross the track.” Being asked, ‘ ‘ And at the time you saw the car 300 feet away how close was your horse to the track that the car was coming on?” he answered, “About 10 or 15 feet.”

Question. “What did you do then when you saw the ear coming and you was that close to the track, what did you do? Answer. “Well, I started, I drove ahead, I drove on because I seen — ” Question (interrupting). “You drove where?” Answer. “West.” Question. “Across the track?” Answer. “Across the track.” Question. “And as you was crossing the track state what, if anything, happened?” Answer. “I seen the car was pretty close to me and I jacked up the horse, tried to jack up the horse after they didn’t stop, they didn’t stop, they didn’t ring the bell, didn’t stop nor nothing, just coming ahead, hit my hind wheels, upset the wagon, I dropped down then, that was my last.”

The wagon it appears was slowly toppled over, and the car come to a standstill within half or three-quarters of its own length after hitting the wagon (p. 80). Another witness says (p. 82) that plaintiff’s horse was ten or twelve feet from the track when the ear was coming within 150 feet of him.” The plaintiff below also proved (pp. 104-5) that, at ten miles an hour, the shortest distánee in which this ear could be stopped at that pláce, is 150 or 175 feet, with perfect conditions; and at 16 miles an hour, 250 feet. The speed limit under city ordinance was then 12 miles an hour, but it nowhere appears how fast this car was going.

Upon this state of evidence we think the court below was clearly right in holding that there was nothing for the jury to consider. The only negligence discernible from the record is that of the plaintiff in error.

Judgment affirmed.

Marvin and Winch, JJ., concur.


text:
    CHATTEL MORTGAGES — REPLEVIN
    [Lorain (8th) Circuit Court,
    April 26, 1911.]
    Marvin, Winch and Henry, JJ.
    Andrew McQuate v. Thomas Smith.
    1. Mortgagee's Right to Take Possession if He Deems Necessary not Dependent on Reasonable Grounds.
    The rightful exercise by a mortgagee of chattels to take possession of them, under a covenant in the mortgage that he may do so if he at any time before the money becomes due, deems it necessary for his more complete and perfect security, does not depend upon the fact that he has reasonable grounds for deeming it necessary for his security.
    2. Mortgagee’s Depreciating Mortgaged Property Replevined Issue for Jury.
    An averment in a cross-petition in replevin that the plaintiff, during his possession of the replevined property failed to properly care and provide for it and permitted it to greatly depreciate and injured the same, and thereafter sold it at public auction for less than its value, presents an issue which must be determined by a jury.
    Error.
   HENRY, J.

Smith brought replevin before a justice of the peace against McQuate to recover possession of a team of horses and a set of double harness. On appeal of the action to the court of common pleas, Smith filed his petition, briefly alleging that he was entitled to the immediate possession of said chattels and of fifty dollars damage for its unlawful detention.

McQuate’s answer and cross-petition alleges that he had mortgaged said property to Smith to secure his note for $175.65, which was not yet due. The mortgage, attached to and made a part of the answer, provides that “if the said grantee, his heirs, or assigns, shall at any time before said sum of money becomes due, deem it necessary for his or their more complete and perfect security, the said grantee, his heirs and assigns, are hereby authorized and empowered with or without the aid and assistance of any persons or person, to enter the dwelling-house, store or other premises of said grantor, or such other places as the said goods or chattels are or may be placed, and take and carry away said mortgaged property, and sell and dispose of the same at public auction or private sales, at once, without notice, and out of the money arising therefrom to retain and pay the said indebtedness above mentioned,', and all charges touching the same, etc.

The answer and cross-petition further alleged:

“Defendant further says that on or about August 9, 1910, said plaintiff, pretending to act under said mortgage, and without any just cause or excuse and without any default made in the conditions of said mortgage by this defendant and in violation and contrary to the expressed terms and the true intent and meaning of the said mortgage, forcibly took possession of said property and converted the same to his own use against the will and protest of this defendant.
“Defendant alleges that none of the conditions of said mortgage were broken by him, and that after the giving of said mortgage he had done or suffered to be done no act, nor was he about to do or suffer to be done any act, nor had he in contemplation the doing or suffering of any act, which would tend in any manner to impair the security of the said mortgage or to give plaintiff any reasonable or probable cause to apprehend the 'loss or impairment of his said claim against defendant or said mortgage security. ’ ’

This does not amount to an allegation that Smith did not deem it necessary for his more complete and perfect security to take the property and sell it, as the mortgage permitted him to do. As said in Francisco v. Ryan, 54 Ohio St. 307, 320 [43 N. E. 1045; 56 Am. St. 711], “The rightful exercise of that authority does not depend upon the fact that he has reasonable grounds for deeming it necessary for his security. ’ ’ In other words, the answer and cross-petition does not adequately deny the averment of the petition that plaintiff was ‘ ‘ entitled to the immediate possession” of the property. The defendant having failed to join issue by answer traversing the petition’s allegation in this behalf, the averments of the reply and of the so-called replication upon the subject are immaterial so far then as the plaintiff’s cause of action is concerned, the court below reasoned rightly in granting his motion for judgment on the pleadings.

The cross-petition alleges, however, that the plaintiff after taking the horses and harness, and during his possession, failed to properly care and provide for said property and permitted same to greatly depreciate and injured the same. The defendant further alleges that plaintiff thereafter caused said property to be sold at public auction “for $187 being less than its value.” These averments are denied by the reply, and the issue of fact thus joined presented a case for trial upon evidence such as to preclude judgment on the pleadings. For error in rendering such judgment, therefore, the same is reversed and the cause remanded.

Marvin and Winch, JJ., concur.