text:
    EQUALIZATIONS MADE BY BOARD OF REVIEW.
    Circuit Court of Hamilton County.
    Mooney, Trustee, v. Richardson, Auditor, et al.
    Decided, May 16, 1908.

      Taxation — Complaint Before Board of Review — Authority of Board with Reference to Equalisation — Taxes Paid on an Excessive Valuation May he Applied in Payment of Legal Taxes, When.

    While the jurisdiction of a board of review, sitting as an annual board of equalization, is ordinarily confined to lots and lands in the immediate vicinity of the parcel as to which complaint is made, it may be exercised over lots and lands in another locality or district within the corporation, if not exercised for the purpose of a general revaluation of property in the district, a purpose which may be inferred if the additions are largely in excess of the reduction.

      Burch & Johnson, for Mooney.

      Ireton, Collins, Schoenle & Boor, contra.
    G-ieeen, J.; Swing, P. J., and Smith, J., concur.
   In order to give the board of review, sitting as an annual board of equalization, jurisdiction over -the property of plaintiff, it was not necessary that .a complaint be filed against the valuation of his property, but only by an owner of real estate interested in a new equalization. Davis v. Investment Co., 76 O. S., 407.

The land of such owner may be grossly over-valued as compared with a large number of lots in the same locality or district which are relatively uniform in value, and yet the amount deducted from the valuation of the former may be distributed over the latter so as to make the entire group uniform in valuation. It is this process of equalization that makes the number of parcels of land acted upon so disproportionate to the number of complaints entertained and extends and "enlarges the inquiry by the board.

Ordinarily the equalization should be confined to lots or lands in the immediate vicinity of the lots complained of, but as the power of the board is co-extensive with the boundaries of the municipal corporation it may, in a proper case, be exercised over lots or land not in the same locality or district but within the corporation. It may not, however, be exercised for the purpose of a general revaluation of the real estate in any locality or district, and where the additions are largely in excess of the reductions such purpose will be inferred. • There is nothing in the evidence to show that the action of the board ivas unjust or arbitrary to the extent at least of adding to his lot a proportionate amount of the reductions made in the valuation of other lots. Indeed the statement filed by him with the board before action taken shows “our views as to increase” are substantially the same as those finally adopted by the board.

We are of the opinion, therefore, that the plaintiff is entitled to an injunction restraining the collection of the excess over his proportionate share of the additions rendered necessary by the reductions of $— made by the board.

The taxes paid voluntarily can not be recovered; but the taxes paid for the first half of 1906 may be applied to the payment of the legal tax for the whole year. City of Cincinnati v. James et al, 55 O. S., 180.

Decree accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    PROSECUTION OF LUMBER. DEALERS UNDER THE VALENTINE ANTI-TRUST LAW.
    Circuit Court of Lucas County.
    Edward E. Arnsman et al v. The State of Ohio.
    Decided, March 28, 1908.

      Indictment — Attack on, for Duplicity and Indefiniteness — Allegation as to an “Unlawful Trust and Combination” — Failure to Add “of Persons” Immaterial — Numerous Offenses Blended in One Count— Office of Motion to Quash — Defendant Sufficiently Informed as to the Charge he ivas to Meet — Penalty—Sentence and Resentence — Sections 4727, 4727-4 and 4727-10.
    1. A motion to quash is the proper procedure to point out the defects of duplicity and indefiniteness' in an indictment, and failure to file such a motion and entry of a general plea to the indictment is a waiver of those defects.
    2. An indictment which charges that accuséd and numerous other named defendants, on a day named and continuously between that date and the day the indictment is found, were members of an unlawful trust and combination formed for the purpose of carrying out restraint in trade and commerce, increasing the price and preventing competition in the sale of lumber, and knowingly acted with and in pursuance of, and aided and assisted in carrying out the purposes of such unlawful combination, binding themselves not to sell any lumber for use in a designated locality below the common standard of figures, and agreeing to pool, combine and unite their interests in such lumber trade; states a violation of Section 1 of 93 O. L., 143 (R. S., 4427-1), commonly called the Valentine anti-trust law, which is punishable by fine or imprisonment under Section 4 (Section. 4427-4) thereof, and not Section 10 (R. S., 4427-10).
    3. A work house sentence having been illegally imposed for violation of the Valentine anti-trust law will be set aside on review and the case remanded to the trial court for resentenee, which may be by fine or imprisonment or both, in the discretion of the court as on original hearing.

      Barton Smith, for plaintiffs in error.

      L. W. Wachenheimer, Prosecuting Attorney, contra.

      Wildman, J.; Parker, J., and Kinkade, J., concur.
   This case has been twice orally argued before this court, once prior to the death of Judge Haynes, and again since Judge Kinkade succeeded to the vacancy. The case is one which has involved so many parties in interest and has been deemed so important as involving some constructions of the statutes known as the Valentine anti-trust law, that we have given it our most careful consideration.

The indictment was drawn under Section 4427-1 et seq., Revised Statutes, and charges the defendants with a trust said to affect the price of lumber. Numerous defendants in the court below, without attacking -the indictment by motions or demurrer, entered pleas of guilty, and were thereupon sentenced by the trial judge to imprisonment in the work house of the county for a period of six months, the minimum term of imprisonment prescribéd by the statute where imprisonment is a part of the sentence.

In this proceeding in error the indictment is attacked upon several grounds, but mainly.that it is fatally defective in not alleging facts constituting an offense .against the laws of the state. Some consideration has been given to the question whether the indictment charges numerous offenses in one count and is thereby obnoxious to the charge of duplicity. This matter may perhaps be disposed of by reference to the case of Jones v. State, 14 C. C., 363, decided by the Circuit Court of Clinton County, Judges Cox, Smith and Swing, in 1897. The fifth paragraph of the syllabus indicates the point applicable to the in.dictment before us. I read:

“A demurrer to an indictment for blackmail is a waiver of such an objection as that it charged different, distinct and repugnant crimes, and was bad for duplicity. Such irregularity can- only be reached by motion to quash. ’ ’

In Hughes v. State, 9 C. C.—N. S., 369, decided by this court in Erie county, we had an indictment similar in form, charging an offense as committed upon a certain day and during an entire period to a later day; .and in that case we held that the indictment was not bad for duplicity. . There is no particular discussion, of that question in the opinion, but as nearly as my memory serves me we arrived at the conclusion that the indictment charged at least one offense, and that really there was no purpose on the part of the grand jury to charge any more than that. The case was treated as charging but one offense by the trial court in that case; and I might say that the accusation in the case at bar has been so treated. There has been, in other words, ho assertion of the right under a provision of the Yalentine law, to treat every day’s violation o'f the act as an independent offense. The whole of the indictment, so far as it alleged the time of the commission of the offense, beyond the .assertion of one particular time, might be treated as surplusage and the indictment in this regard still be deemed sufficient. There is no question under the decisions of this state, however, that different offenses, misdemeanors of the same class or character, may be joined in one indictment. The question is not whether they may or may not be so joined, but whether they may be blended in one count. Without going farther than to recognize the doctrine asserted in Jones v. State, supra, we are content to rest our decision, so far as the question of duplicity is concerned, upon that case. We believe that the position of the Circuit Court of Clinton County — that duplicity was waived by failure to file a motion to quash — was well taken.

The same thing may be said as to any criticism that the indictment does not definitely apprise the defendant of the offense of which he is accused. This of course does not touch the question whether the indictment is or is not fatally defective in omitting to charge a crime; it relates only to indefiniteness. Not .only the statutory law but the Constitution requires that defendants must be charged so definitely as to be apprised of -the precise nature of the offense that they are claimed to have committed against the law of the state. The statute provides means by which, if the indictment is not sufficiently precise, the accused may assert their right and obtain the protection .of the court; and the same statute provides that failure to file a motion to quash' will waive all matters which might be objected to by such motion. A motion to quash is peculiarly adapted to point out the defects in an indictment, which make it merely indefinite. That is the object of the motion, and if a party does not see fit to avail himself of such procedure, the statute permits the courts to infer that he.did not care to do it — that the indictment had sufficiently apprised him of the charge which he was to meet.

In State v. Gage, 72 Ohio State, 210, decided by the Supreme Court, the indictment alleged the infraction of the law during a continuous period from one day to another, as in Hughes v. State, supra, and the case at bar. No attack was made upon the indictment by any motion to quash. A demurrer was filed and overruled. What would have been the effect of a motion to quash is not indicated.

It is urged upon us that from the language of the indictment it does not definitely appear whether the pleader is attempting to charge an infraction of Section 4427-10 or some other section of -the Valentine law; or, to state the position of counsel a little more precisely, it is contended, without conceding that the indictment charges any offense under the law, that if.it does charge such, it charges only an infraction of Section 4427-10, which defines offenses punishable by fine only.

It is also said, in substance, that the indictment ought not to be so drawn as that the court may, at its option, impose a penalty under either section of the statute — 4427-10 or 4427-4, which provides a penalty of fine or imprisonment, or both.

These contentions have induced a careful examination of this indictment, in connection with the statute, that we might arrive at the real intent of the pleader as to which section should govern the procedure. Omitting matters not material, the indictment, in substance, charges that Arnsman and numerous other named defendants, on the 8th day of October, 1906, and continuously between said date and the day of the finding of the indictment, at the county of Lucas, were members of, and each of them was a' member of and unlawfully and knowingly acted with and in pursuance of and aided and assisted in carrying out the purpose of an unlawful trust and combination of capital, skill and acts, formed for the purpose of carrying out restraint in trade and commerce in increasing the price of and preventing competition in the sale of lumber, a commodity and article of commerce intended for sale, use and consumption in the state of Ohio of all kinds of timber, sawed or split for use, including beams, joists, planks, boards, shingles, lath and all articles of every kind manufactured from timber and for the purpose of fixing and maintaining uniform and graded figures for the sale of lumber in the city of Toledo in said county, that the prices thereof might be increased, and for the purpose of •making, executing and carrying out certain contracts and agreements by which they might keep the price of lumber at fixed and graded figures and establish the same as the prices of lumber in said city, so as to preclude a free and unrestricted competition among the members of said trust and combination in the sale of lumber, and by which they bound themselves not to sell or dispose of any lumber for use in saicl city below the common standard of figures, and agreed to pool, combine and unite their interests in the sale of lumber in said city that the prices thereof might be increased.

Section 10 of the Valentine act (4427-10) defines specific'violations -of the statute and imposes a penalty therefor. Let us examine this section for a moment. It is as follows:

“It shall not be lawful for any person, partnership, association or corporation, or any agent thereof, to issue or to own trust certificates, or for any person, partnership, association, or corporation, agent, officer or employe-, or the directors or stockholders -of any corporation, to enter into any combination, contract or agreement with any person or persons,, corporation or corporations, or with any stockholder or director -thereof, the purpose and effect of which combination, contract or agreement shall be to place the management or control of such combination ,or combinations, -or the manufactured product thereof, in the hands of any trustee or trustees with the intent to limit or fix the price or lessen the production and sale of any article of commerce, use or consumption, or to prevent, restrict or diminish the manufacture or output of any such article, and any person, partnership, association or corporation that shall enter into any such combination, contract or -agreement for the use aforesaid shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by a fine of not less than fifty dollars, nor more than one thousand dollars. ’ ’

As we construe this section, it prohibits any person, partnership, association or corporation, from issuing or owning trust certificates. That is the first prohibition of this section; and the second is that it shall be unlawful for the directors or stockholders of any corporation to enter into a combination, the purpose of which is to place the management and control of its affairs or manufactured product in the hand of any trustee or trustees, with the intents and purposes subsequently stated in the section.

We do not construe this section .as making it unlawful for any person to enter into a Combination to prevent, restrain or diminish the manufacture or output of any article. The two things which are prohibited by the section are the acts connected with trust certificates and 'acts connected with the trustee, and the section does not reach further than that. It does not attempt to prohibit the entering into a combination for the general unlawful purposes which are specified in Section 4427-1, the purposes which ‘are explicitly stated in this indictment as those of the alleged combination or trust, of which it is'said these defendants were members. We think, then, that the indictment was not drawn under the tenth section. The question remains whether the indictment is good under Section 4427-4, which provides :

“Any-violation of either or all of the provisions of this act shall be and is hereby declared a conspiracy against trade, and any person who may become engaged in any such conspiracy or take part therein, or aid or advise in its commission, or who shall, as principal, manager, director, agent, servant, or employer, or in any other capacity, knowingly carry out any of the stipulations, purposes, prices, rates, or furnish any information to assist in carrying out such purposes, or orders thereunder, or in pursuance thereof, shall be punished by a fine of not less than fifty dollars nor more than five thousand dollars, or be imprisoned not less than six months nor -more than one year, or by both such fine and imprisonment. Each day’s violation of this provision shall constitute a separate offense.”

Anri .also the following section, 4427-5, which makes the special provision relied upon by the prosecuting attorney in support of his claim of the sufficiency of this indictment. It provides:

“In any indictment for any offense named in this act, it is sufficient to state the purpose or effects of the trust or combination. And that the accused is a member of, acted with or in pursuance of it, or aided or assisted in carrying out its purposes without giving its name or description, or how, when and where it was created.”

So many phases of this question have been presented to us, not only in oral argument, but in the voluminous briefs, that it will be impossible for me in the time which I have allotted to myself for the rendering of this opinion, to review all of the contentions of counsel. We have been much impressed with the plausibility of many of the arguments presented, and if this were an entirely original question in this state, we might be largely influenced by some of the decisions frpm the courts of other states. But we do not deem it an .open question in Ohio. We think that State v. Gage, supra, which determined some other questions in regard to the Valentine law, in effect determined the question of the sufficiency of an indictment so -analagous to the one before us as to make it decisive of the case which we are considering. As already stated, State v. Gage, supra, was submitted to the court upon a demurrer -to the indictment, and that demurrer was overruled. The defendant entered a plea of guilty and afterwards moved in arrest of judgment upon the same grounds stated in the demurrer. We are not prepared to say, at least I am not, that any rights were lost to the defendants in the case at bar by failing to demur to this indictment; but we may safely say that defendants can make no larger claims after the non-filing of a demurrer, and after the-entry of a plea of guilty, than they could have asserted upon the filing of a demurrer. In other words, they can make no larger claims of right, in the case at bar, than were available on demurrer before the trial court and in the Supreme Court in State v. Gage, assuming that the indictments were upon the same footing as to sufficiency. On page 211 of State v. Gage, we find a substantial statement of the form of the indictment as follows:

“The indictment charged ‘that Perley W. Gage of said county, on the first day of November in the year of Our Lord one thous- and nine hundred and two, with force and arms, in said county of Delaware and state of Ohio, and until this sixth day of January in the year of Our Lord one thousand nine hundred and three, said Perley W. Gage, late of the said county of Delaware, was an active member of, acted with and in pursuance of, aided and assisted in carrying out the purposes of the Delaware Coal Exchange.’ ”

The word “active” as here inserted is a term not used in the section of the statute defining what shall be a sufficient charge, and so far as the sufficiency of this clause is concerned, we do not deem the allegation that the person was “an active member” as being of more weight than 'that he was ‘ ‘ a member, ’ ’ because either .allegation is .a compliance with the terms of the statute in this regard, and in State v. Gage, supra, there is no more statement of fact in the indictment as to how he acted than in the case at bar. The name of the alleged 'combination is not contained in the present indictment, and it is conceded that no name need be given; the statute so says. I read further:

“ ‘The Delaware Coal Exchange, an association of persons organized for the purpose of preventing competition in the sale and to maintain a' uniform and graduated figure for the sale of coal, and to directly preclude a free and unrestricted competition among the members of said association, purchasers and consumers in the sale and transportation of coal, contrary to the form of the statute.’ ”

The indictment in State v. Gage is much more meager than in the case at bar in some respects. Still it does include the statement -that the membership was in an association “of persons” organized for certain purposes; the language of the indictment before us is that “they were members of and each was a member of and unlawfully and knowingly acted with and in pursuance of an unlawful trust and combination of capital, skill and acts. It does not state that it was an association “of persons”; and it is true enough, as counsel in substance urge, that there may be a combination of skill and capital or labor and capital, where there are not two or more persons involved. In other words, an individual may combine his skill and his money, putting them both into some employment, and there is no violation of law, no breach of public policy in that. The law contemplates a conspiracy, a combination of two or more persons, corporations or partnerships, and it does not contemplate as a criminal act the combination of all the faculties, all the resources, of an individual for the carrying out of any lawful purpose.

But the indictment in the case at bar alleges that this entity — • this thing, whatever we call.it, of which these defendants were members — was an “unlawful trust and combination” and in this word “trust” we have involved so much, after the definition of a trust in the act itself, as to take away the force of very much of the argument that has been made. In the original enactment, which is not at this moment before me, the act is entitled, if I remember aright, “An act to define trusts,” etc. In the present compilations of the Revised Statutes the title of the act is omitted; but Section 1 of the act (4427-1) gives the definition “A trust is a combination of capital, skill or acts by two or more persons, firms, partnerships, corporations or associations of persons, or of any two or more of them for either or all of the following purposes.” It can not be a “trust” within the definition of the statute, unless it be a combination of the sort which the statute describes. It can not be a combination of faculties or resources in the mind or hands of one person to accomplish some purpose, confined to his own breast. It must be a combination of two or more persons, partnerships, corporations or association of persons, and when the pleader here says that these persons were members of “an unlawful trust,” he has stated all of those things; he has stated in effect that they were members of a combination of two or more of these several kinds of things mentioned in the statute, persons, firms, corporations or associations; and he has said also that it was a combination of “capital, skill and acts,” using the conjunctive conjunction; he says it was formed for all of these purposes mentioned in Section 1 of the act.

Returning to State v. Gage, supra, we think that the overruling of the demurrer by the court below, and the -affirmance of the sentence rendered upon the plea of guilty, because the Supreme Court did affirm the judgment of the court of common pleas, reversing the circuit court, which had set aside the judgment of conviction, is a necessary recognition of the sufficiency of the indictment in that case. The indictment in State v. Gage did not go so far as to -allege that the Deleware Coal Exchange was an unlawful association or a trust. It attempted to allege specifically that it was an association of persons formed for what was claimed to be an unlawful purpose under this law. Here the pleader has adopted the other form, and instead of saying that it was an unlawful association of persons, he says that it was an unlawful .trust. He has averments here from which there is no escape, that there was an association of persons or corporations, it matters not which, unless the indictment for indefiniteness was obnoxious to a motion to quash, had one been filed.

The result -of this inquiry under the views entertained by our court, must manifestly be the overruling of the contention of the defendants that the indictment is fatally defective. There was sufficient here to apprise the defendants that they were accused of a crime, and that crime the violation -of the Valentine law.

The contention of the defendants that the court could not lawfully imprison because, if the defendants were guilty of anything under the indictments, it could only be an infraction of Section 10 of the act, we do not sustain; nor, on the .other hand, do we sustain a contention made by the prosecuting attorney, if we understand him aright, that the court below, having once concluded that imprisonment must be imposed, there can now be no departure from that kind of penalty upon reversal. The sentence was imprisonment in the work house instead of in the jail, and it is agreed by counsel that because the sentence to the work house was not -authorized, as has been held by the Supreme Court in the ice trust case recently disposed of, this case must go back ■to the court -of common pleas.

The case, -as stated, must be remanded. Following the decision of the Supreme Court, we holcMhat the sentence was erroneous in that it* prescribed imprisonment in -the work house at labor as a part of the sentence. Under the statute, as construed by the Supreme Court, no such an imprisonment can be imposed. The sentence of the court below, then, being erroneous, is to be set aside; and when the case is remanded it goes back to the court for the court to take it up at the point which had been reached when the sentence was imposed.

Another contention which was made on oral argument upon the first hearing before us by one of the counsel for the defendants was that the sentence which had been imposed by the court below was unconstitutional in that it was cruel and unusual. This question is not now before us, in view of the disposition which is made of the ease in setting aside the sentence. It is enough for us to say that the court below has the same powers and the same rights as it had upon the first hearing after the plea of guilty and before sentence.

It has full discretion to fine or imprison, or both, under Section 4 of the Valentine act.


text:
    MILK WAGON STRUCK BY CAR..
    Circuit Court of Hamilton County.
    Cincinnati Traction Company v. Kroeger.

    Decided, May 16, 1908.

      Negligence — Wagon Struck by Gar Coming up from Behind — Driver Guilty of Negligence Under Such Circumstances, When — Warrant for Arresting Cause From the Jury.

    One driving along the track of an electric car line, with the expectation that a car will come behind him, and an opportunity to turn off the track, and in the full possession of his faculties, is without excuse if he is overtaken by a car and his wagon is wrecked and he is himself injured.

      George P. Siimson and Eiitredge & Wilby, for plaintiff -in error.

      Jas. B. Jordan and Geoffrey Goldsmith, contra.
    Gieebn, J.; SiVing, P. J., and Smith, J., concur.

       For previous opinion in the same case, see 10 C. C.—N. S., 64.

   The plaintiff’s testimony shows that the team was traveling on the righthand track of the street railroad, that the driver was expecting a ear, and that there was nothing to prevent him from turning off the track if a car was discovered approaching.

It was his duty, therefore, to make use of his senses to ascertain if a ear was approaching from behind. A prudent man exercising his ears and eyes with ordinary care would have discovered the car in time to avoid it, and the failure of the driver to see or hear anything when in full possession of his faculties, is no excuse if he or his property is thereby injured. Railway Co. v. Elliott, 28 O. S., 340.

The motion to arrest the case from the jury should have been sustained.

Judgment reversed and judgment for plaintiff in error. .


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    ACTION BEFORE JUSTICE OF THE PEACE FOR. UNDETERMINED PROFITS.
    Circuit Court of Knox County.
    James O’Rourke v. W. I. Edwards.
    Decided, October Term, 1907.

      Justices of the Peaoe — Proceedings on Error to — Correctness of Transcript can not be Questioned — Jurisdiction—Where the Action is for Undetermined Profits — Partnership—Accounting.
    1. Where a transcript from a justice of the peace is certified as true, its correctness can not be attacked in a court of review.
    2. A justice of the peace has no jurisdiction of an action at law to recover earned profits due one member of a joint enterprise, until the amount of the profits have been determined by an accounting either between the parties themselves or by a court of competent jurisdiction,

      W. M. Koons, for plaintiff in error.
    W. A. Hosach, for defendant in error.
    Donahue, J.; Taggart, J., concurs; McCarty, J., not sitting.
    Error to Knox Common Pleas Court.
   This proceeding in error is brought to reverse the judgment of the common pleas court affirming the judgment of the justice of peace rendered in an action before said justice, wherein William Edwards sued to recover from the plaintiff in error, James O’Rourke, the sum of $152.30, upon the following bill of particulars :v

“The plaintiff says that on the-day of May, 1904, he became engaged with the defendant in a certain business by virtue of a certain verbal contract, by the terms of which the plaintiff was to receive one-half of the profits. The plaintiff says that the defendant received in cash out of said business the sum of $1,295.65; that he received from one Beehtol $61.20, and rebate on goods, $262; that the defendant paid out the sum of $1,020; leaving net profit to defendant $588.85. The plaintiff says that he has only received $284.25, making a balance due plaintiff in the sum of $152.30, which amount is due and unpaid.”

The plaintiff in error did not appear before the justice of peace at the time named on the summons, nor within one hour thereafter, and thereupon the plaintiff was sworn and judgment rendered in his favor for the amount asked with costs of the action. The defendant sought to appeal said cause. The appeal bond not having been filed, or at least not having been approved within the time limited, no appeal was perfected, and error is now prosecuted to reverse this judgment, together with the judgment of the common pleas court affirming the same.

The first contention of the plaintiff in error is that the amended or corrected record filed in the common pleas court, in the error proceedings in that court, is not a true and correct transcript, and that the docket entries have been changed and mutilated so that such transcript is not a true transcript. With that contention this court has nothing to do at this -time. It is certified to be a true and correct transcript and is binding in an error proceeding upon this court, or any other court having jurisdiction 'in error only, and the remedy of the plaintiff in error, if any, must be against the justice and his bond for certifying falsely to such transcript.

The second contention is that the bill of particulars filed before said justice shows that the justice of peace had no jurisdiction of -the cause; that such bill of particulars shows' that the defendants were partners; that no partnership accounting had been had, and therefore no action at law would lie to recover the plaintiff’s share of the profits until that share had been fixed and determined either by a mutual accounting between them, or by a court in a suit filed for that purpose. On the other hand it is insisted that because the averments of the bill of particulars do not show that the parties were to bear the loss as well as to divide the profits, that no partnership is stated, therefore no accounting is necessary. We are of the opinion, however, that the question of whether or not there was a partnership is of little .or no importance. The plaintiff and defendant were each entitled to a one-half interest in the profits of the concern, and that must be determined in the same manner as if they had been partners to all intents and purposes. In other words, before the rights of either party could be fixed and determined, an accounting must be had. The reasons therefore are just as important and potential as if a partnership were admitted. In fact, the principle underlying this case is the same principle that controls partnership accounting.

This case, we think, is on all fours with the case of Eagle v. Bucher, 6 Ohio St., 296. There an association was formed by the subscription of stock and the adoption of a constitution to procure gold from the mines of California, and it was agreed that eight persons should be selected and sent to the California gold fields, furnished with outfits and money for their expenses, and upon their return they should account. Upon reaching California the eight persons failing to agree, partitioned their effects and each worked out in his own way and by his own efforts the purpose of the association. It was held that the persons thus selected to labor for the association, though members of the association, stood also in the relation of employes of the association, and their -refusal after arriving in California to work together, and the partitioning among -themselves of the property of the association, without its knowledge or -consent, and with the view of doing their separate and independent labors, did not work a -dissolution of the association and discharge them from their obligation to it under their contract, and that it was competent for the association to compel an accounting and payment by either of the eight of his earnings, while thus working separately, in favor -of -the other members of the association, or to sue either of them for a breach of his contract, at its election.

Conceding then that the plaintiff below, William I. Edwards, was an employe of this -plain-tiff in error, and that he was to -receive f-or his .services one-half of the profits of the business in which they were engaged, then it -became, and was, necessary to determine what -those profits were just as much as if they had been in fact full partners- in profit and loss, and the partnership had earned profits and there had been no mutual accounting between the partners as to the amount of such profits, and until this profit is determined by an accounting, either between the parties themselves, or by a court of competent jurisdiction, no action will lie at law to recover either’s share thereof from the other.

Therefore, we -are of the opinion that the justice of -the peace had no jurisdiction of .the subject-matter of -the suit, and the judgment of said justice is reversed, and the judgment -of the common pleas -court affirming the same is reversed, with costs. And coming now to render the judgment that the common pleas court should have rendered, said action of the plaintiff is dismissed without any order or judgment as to the costs in such action, and exceptions of the defendant in error are noted.


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    DISTRIBUTION OF TAXES LEVIED AS COMPENSATION FOR. SERVICES. -
    Circuit Court of Hamilton County.
    State, ex rel Eugene L. Lewis, v. Charles C. Richardson, Auditor, and C. E. Roth, Treasurer.
    Decided, January 4, 1908.

      Mandamus — To Compel Distribution of Tax Levy — Premature, When— County Auditor — Decennial City Board — Section 2816.

    A special tax levy to provide compensation for services by a county auditor while serving as a member of the city decennial board of equalization can not be paid except as provided by law, after the amount collected has been ascertained at the semi-annual settlement.

      Thornclylce & Capelle, for relator.

      Ireton, Collins, Schoenle & Poor, contra.
    Swing, P. J.; G-ieeen, J., and Smith, J., concur.
    Heard on petition in mandamus.
   Certain levies were made by the several school boards of the county to pay certain fees, which, properly belonging to Lewis, auditor of Hamilton county, and are notv in process of collection. Lewis seeks by mandamus to have the same paid now, the December taxes having been paid. The petition should not prevail at the present time. Upon settlement between auditor and treasurer the amount collected on the levy made for this purpose should be paid to the auditor on the warrant of the auditor drawn on the treasurer. The only fund available for the payment of this amount is what is collected by taxation, and when collected, and not until then, it should be paid as above stated, and the amount can not be ascertained until the semi-annual settlements (Sec. 2816, Revised Statutes).

The action is premature.


text:
    DAMAGES FOR. FAILURE TO DELIVER. TELEGRAM.
    Circuit Court of Lucas County.
    Lafayette S. Sullivan et al v. Western Union Telegraph Co.
    Decided, October 26, 1907.

      Telegrams — Failure to Deliver — Presumption of Negligence — Burden on Telegraph Company to Rebut — Company Liable for Nominal Damages, When — Evidence Warranting Compensatory Damages — Cause Improperly Arrested from the Jury.

    1. Where in an action against a telegraph company for the non-delivery of a telegram entrusted to it for transmission and delivery, such non-delivery is shown, the burden is on the company to remove the presumption of negligence thereby raised. Western Union Telegraph Go. v. Griswold, 37 Ohio State, 301, followed.
    2. A telegraph company negligently failing to deliver a telegram, entrusted to it for transmission and delivery, is liable for nominal damages; and in a case where such failure is shown, it is error to arrest the case from the jury and direct a verdict for the defendant company. First National Bank v. Telegraph Co., 30 Ohio State, 555, followed.
    3. A telegraph company receiving a telegram for transmission and delivery is bound to take notice of such facts as are brought to its attention by the telegram in connection with all known circumstances; and for unexcused failure to deliver such telegram, the company is liable for such damages “as naturally flow from a breach of contract, or such as may fairly be supposed to have been within the contemplation of the parties at the time the contract was made.”

      Seney & Thurstin, for plaintiffs in error.

      Smith & Beckwith, for defendant in error.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    Error to the Common Pleas Court of Lucas County.
   The plaintiffs in error here brought suit in the court of common pleas against the Western Union Telegraph Company, for damages to the amount of $600, claimed to have been sustained by them in consequence of the non-delivery of a telegram. The facts disclosed by the pleadings and evidence, so far as a statement is essential to an understanding of .our views, are as follows:

Lafayette Sullivan and his co-complainants, on December 2, 1905, were the owners of a steamer called the David W. Rust, then lying, unloaded, in the port of Buffalo, in the state of New York. Sullivan was the managing owner of said,vessel, and, on the day named, at= 9:45 p. m., gave to the defendant, at its Toledo office, the following message, to be by it delivered to the addressee:

“To Capt. Wm. J. Leaver, Stmr. D. W. Rust. Com. Minnesota Dock, Buffalo, N. York. Will wire you in the morning about coal. Collect. L. S. Sullivan.”

This message was received at the defendant’s Buffalo office at 11:10 p. m., Buffalo time, which was equivalent to 10:10 p. m., Toledo time, the time changing at Buffalo from central to eastern standard time. The message was never delivered. It is alleged in the petition, .and although denied in the answer, the averment is supported by evidence, that -at the time of sending this message, negotiations were in progress, between Sullivan and Mr. S. C. Schenck, of Toledo, for the charter of the boat to carry a load of coal from Buffalo to Toledo to be delivered at one of the docks in the city of Toledo. Mr. Sullivan testified, as disclosed by the bill of exceptions, that at .the time this telegram was sent to Captian Leaver an arrangement for the transfer of a cargo of coal had been completed except as to the insurance of the cargo, by him — Sullivan. It is claimed by the plaintiffs that the purpose of sending this message to Captain Leaver was to detain the boat at the Minnesota dock in Buffalo until further directions could be given in the morning concerning said cargo. On Sunday morning, December 3, Sullivan wired the captain as follows:

“To Capt. Wm. J. Leaver, Stmr. David W. Rust, Buffalo, N. York. Schenck has wired Russell ‘ Load Rust for Toledo. ’ Have arranged with Schenck .about insurance. Be careful coming up. I insure cargo. Have key your room. Wire when leave. Collect. L. S. Sullivan.” •

Schenck was agent of the coal company in Toledo and Russell was the agent of the same company in Buffalo. Schenck did wire Russell, on the same day, the 3d:

“To D. E. Russell, Buffalo, N. T. Sullivan agrees to carry insurance on cargo Steamer Rust; confirming same in writing to-day. Can you load her nut or egg for Wabash dock? S. C. Schenck.”

The second telegram from Sullivan to Captain Leaver and the telegram from Schenck to Russell were sent in ignorance of the fact, which then existed, that the boat had left the city of Buffalo at 3:15 o’clock on the morning of December 3, the captain of the boat, as I have already stated, not having received the first telegram attempting to inform him that he would be wired in the morning about coal.

At the close of the plaintiff’s case, upon motion of the defendant, the trial judge arrested the case from the jury and directed a verdict in favor of the defendant.

We have discovered no substantial errors in the admission or rejection of evidence to the prejudice of the plaintiffs, and our attention' has been directed to the vital claim of error arising upon the action of the court in arresting the case from the jury and directing a verdict. It is said to us in .argument, and it sufficiently appears, that the court based its action upon • substantially two grounds: First, the failure of the plaintiff to establish the alleged negligence of the defendant; and, second, that the damages claimed were not such as could be recovered upon any basis of the circumstances alleged and proven.

As to the first of these claims, we think the court was very clearly in error. Whether or not the evidence sufficiently disclosed negligence in the defendant company to warrant a verdict, we are not called upon to decide. There was, clearly, evidence tending to show negligence, and our Supreme Court has established a rule that even in the absence of all evidence upon the subject, the defendant, so far as this question is concerned, must fail. In the case of Western Union Tel. Co. v. Griswold, 37 Ohio St., 301, it is held:

“Where, in an action against the company for damages resulting from an inaccurate transmission of a message, such inaccuracy is made to appear, the burden of proof is on the company to show that the mistake was not attributable to its fault or negligence.”

Counsel for defendant in error seek to draw a distinction between the facts in the case cited and those in the case at bar. In that case the alleged negligence was in the failure to transmit the message accurately. In the present case the facts disclose that the message was not transmitted to the person to whom it was addressed at all, and it seems to us that if the principle decided in Western Union Tel. Co. v. Griswold, is correct, a fortiori the burden must rest upon the defendant company to explain the total non-delivery of the dispatch entrusted to it.

In 2 Thompson, Negligence (1880 Ed.), page 843, I find this language:

“In the leading case in Iowa, in which the rule is laid down, it was held that it operated to cast upon the sender of the message the burden of proving negligence or other fault in the company. It was there held that the mere proof of a mistake in an unrepeated .message, without other evidence that the company has been guilty of negligence, will not render it liable. But this conclusion by no means follows from the rule. It is contrary to the weight of authority, and destitute of support in legal analogy. If A, for a consideration, undertakes to do a certain thing for B, an,d fails to do it, B’s case is ordinarily made out by showing the undertaking, the consideration, and the failure. It is a ease for the application of the rule, res ipsa loquitur. The failure of A to fulfill his contract speaks for itself, and makes out a prima facie case for B, and the burden is upon A to show a legal excuse for his failure, if he can. Moreover, this rule is one of necessity; for it is seldom or never possible for'the sender of a dispatch to show negligence in the company beyond the mere fact that it failed to deliver the message as written. If its failure was not due to negligence, the means of showing that fact is exclusively within its own possession, and, from the nature of the case, the plaintiff will seldom be able to produce evidence in rebuttal.”

This reasoning is just as applicable to the case of non-delivery of a message as to the inaccurate transmission of one.

- Referring again to Western Union Tel. Co. v. Griswold, supra, page 313, find this language:

“We are also, of the opinion that the failure to transmit and deliver the message in the form or language in which it was received, is prima facie negligence, for which the company is liable; and that to exonerate itself from the liability thus presumptively arising, it must show that the mistake was not attributable to its fault or negligence. This rule not only rests upon sound reason, but is well sustained by well-considered cases. ’ ’

And this statement is followed by the citation of numerous cases. We are, -then, satisfied that the court erred in this regard, and the question .as to whether or not the defendant company committed negligence, is, for the purpose of our present inquiry, disposed of.

Was the court correct in its other view upon which it sustained the motion? Are the damages claimed here remote or of such character that the plaintiff is not entitled to recover, although they were caused by the defendant’s negligence? We have found much confusion and conflict in the adjudications of the different states upon the question of the extent to which a telegraph company is required to be enlightened by the wording of a telegram, or other circumstances, as to the character of the business involved. The current of authority seems to hold that a company is not liable for the non-delivery or incorrect transmission of a cipher message which is unintelligible to it. It has been held by the courts that, with regard to messages involving no pecuniary business, as, for instance, messages informing one of the approaching death of a near relative, or some matter of such concern, where its non-receipt might be attended with great mental pain merely, no recovery can be had for damages. Our own Supreme Court has so held, but with regard to telegrams based upon business involving moneyed interests, the authorities are by no means uniform — -as I have said, they are confusing and in conflict. We have had no decisive adjudication in this state disposing of the controversy in this respect.

In the ease of First Nat. Bank v. Telegraph Co. 30 Ohio St., 555, our Supreme Court held, however:

“In case of a breach of contract, actual damages not being proved, nominal damages may be recovered.”

And that conclusion of the court, as expressed in the syllabus, was made the ground of reversal of the judgment of the lower court which had not awarded such nominal damages. I read from page 568:

, ‘ ‘ The plaintiff asked the court -to charge that, if the nondelivery of -the message was by reason of defendant’s negligence, plaintiff was entitled to nominal damages, if there were no actual damage. This was refused, and the court did charge that there was no right of action, unless injury was shown. This was error, for which the judgment must be reversed. ’ ’

' Probably the Supreme Court deemed the matter of sufficient importance to justify a reversal in view of the fact that- it might affect the quéstíón of costs, or, possibly for some other- reason, as establishing the legal rights of the parties and as affecting their future conduct in other cases. Had the view entertained by the trial judge in the present case been correct — that the plaintiff’s case must fail because no negligence was shown — the court w-ould have been justified .in directing a verdict for the defendant. It is only where negligence appears or is presumed that even nominal damages are recoverable. But we have already indicated that the judge was in error upon this first proposition, and it necessarily follows that he was likewise in error in directing .a verdict -for the defendant. Under this decision of the Supreme Court, if there was unrebutted evidence tending to show or raising a presumption of negligence, the ease should have been submitted to the jury with an instruction that if no actual damage resulted, the jury should award a verdict for nominal damages. For this reason, then, the judgment must be reversed; and as a new trial will be necessary in the court below, it is proper that we should advise the court of our views as to -the more important question bearing upon the right of the plaintiff to compensatory damages under the circumstances disclosed.

The adjudications in the different states and in England nearly all seem to lead back’to the case of Hadley v. Baxendale, 9 Exch., 341 (26 Eng. L. & Eq., 398). Onr own Supreme Court, in line with the numerous other courts of the country, sought to derive instruction from this leading case, and in First Nat. Bank v. Telegraph Co., supra, substantially adopted the rule enunciated in the English case referred to. In the syllabus, our Supreme Court say:

“In case of failure to deliver a telegraphic message, the company is only liable for such damages as naturally flow from the breach of contract, or such as may fairly be supposed to have been within the contemplation of the parties, at the time the contract was made.”

In one of the reports which we have examined, the court of another state has changed' this conjunction “ or ” to the conjunction “and:” But we have in Ohio the adoption of an alternative rule, and if the damages claimed can fairly be brought within either of these two classes — such as naturally flow from a breach of contract, or such as may fairly be supposed to have been within the contemplation of the parties at the time the contract was made — then such damages are recoverable. On page 565 of First Nat. Bank v. Telegraph Co., supra, Judge Wright, who announces the opinion, after quoting a statement of the rule made by Judge Earl, in Leonard v. Telegraph Co., 41 N. Y., 544, offers a more precise statement of his own views, in the following language:

“A more precise statement of the rule is, that a party is liable for all the direct damages which both parties would have contemplated as flowing from its breach, if, at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of the facts.”

This may or may not be the principle which was favored by the entire court, but it is at least safe for us to rely upon the language embodied in the syllabus. We have arrived at the conclusion, from an examination of the authorities, and without much effort to reconcile them — because it is impossible to do that — looking at what seemed to us the just principles that should govern cases of this character, that the defendant company is bound to take notice of such facts as are brought to its attention by the telegram or other circumstances within its knowledge.

In 2 Thompson, Negligence (1880 Ed.), page 828, is an extended and instructive chapter on the liability of telegraph companies for negligence, in -which he collates numerous authorities and offers his own judgment as to what should be the correct rule. On page 849, after referring to the leading case of Hadley v. Baxendale, supra, and some other authorities, which were manifestly examined by our Supreme Court in First Nat. Bank v. Telegraph Co., supra, he uses this language, quoting Chief Justice Earl in Leonard v. Telegraph Co., supra, to which our own Supreme Court refer:

“It is qp,t required that,the parties must have contemplated the actual damages which are to be allowed; but the damages must be such $£ the parties may fairly be supposed to have contemplated when .they made the contract. Parties entering into contracts usually contemplate that they will be performed, and not that they will be' vióláted. They very rarely actually contemplate any damages which would flow from any breach, and very frequently have not sufficient information to know what such damages would be. As both parties are usually equally bound to know .and be informed of the facts pertaining to the execution or breach of a contract which they have entered into, I think a more precise statement of this rule is, that a party is liable for all the direct damages which both parties to the contract would have contemplated as flowing from its breach, if, at the time they entered into it, they had bestowed proper attention upon the subject, and had been fully informed of the fact.” ’

It will be noticed that this is the same phraseology used by Judge Wright in First Nat. Bank v. Telegraph Co., supra, and which he undoubtedly borrowed from Judge Earl in Leonard v. Telegraph Co. Mr. Thompson continues:

“In actions ex delicto, the damages to be recovered must be the natural and proximate consequences of the act complained of, unless there be circumstances of aggravation, when exemplary damages will be awarded. By these rules, then, the liability of the 'owners of telegraphs, in actions against them, must be measured. The -statement of the adjudicated cases will indicate the manner in which the courts have applied them.”

It is hard to derive from the wording of the dispatch in the ease at bar much information beyond the facts that the person to whom it was sent was the captain apparently in charge of the steamer named “The Rust”; that it was at the time supposed to be at the Minnesota dock in the city of Buffalo, and that this dispatch would be followed by another in the morning, and that both had some relation to coal. We are of the opinion, however, that the telegraph company could not blind its eyes to such other circumstances as may be assumed .to have been within its knowledge concerning the character of the port; concerning the ordinary work of. a steamer at that port, and the course of traffic, and such other circumstances as might naturally lie within the purview of a telegraph company like the Western Union, engaged in the transaction of business which would naturally attract its attention to such matters as these.

It is claimed by counsel for defendant in error that the principle of First Nat. Bank v. Telegraph Co., supra, should apply in another respect to the case at bar and prevent the plaintiff’s recovery, to-w-it, that this plaintiff will not be permitted to recover for the negligence of another where- that hegligenee would not have caused the damage except for the intervention of some independent cause. We think, however, that the case at bar is to be distinguished from the one cited, and that in the conditions before us the evidence tends to disclose that the plaintiff, did directly sustain the damage asserted, whereas in the case cited, it does not appear that any damage was so sustained. The matter is one for a jury, guided by proper instructions from the court; and both in this connection and in support of our view as to knowledge of the defendant of the business character of the telegram, I wish to quote some language from a case decided by the Illinois Supreme Court, Postal Telegraph Cable Co. v. Lathrop, 131 Ill., 575. I read-the second and third paragraphs of the syllabus:

“The question whether or not telegraph dispatches are sufficient to inform the operator of their meaning, and of the possible risk of loss by mistake, is not to be determined solely by the dispatches themselves, but all ,the facts and circumstances, including previous messages sent by the operator for the same parties, may be considered.
“Where enough appears in a telegraph message to show that it relates to a commercial business .transaction, it is sufficient to charge the company with damages resulting from its negligent transmission, although the operator may not be able to understand its meaning as to quantity, quality, price, etc., as the sender and the party to whom it is sent understand it.”

On page 577, in the opinion of the judge, I find this language :

“Therefore, in determining whether or not the messages were sufficient to inform the operator of their meaning, and of the possible risk of loss to appellees by a mistake in transmitting them, the jury should have been left free to consider all the facts and circumstances proved in the case bearing on .that question, whereas the instruction limits the inquiry to that which appears in the dispatches themselves, and to such facts as may have been disclosed by the plaintiff to the defendant or its agent at the time they were sent. * *
“On .the question as to how far mere indefiniteness in the language of a message will defeat a recovery for consequential damages against a telegraph company, the decisions can not be said to' be harmonious. Counsel for- appellant contends that the better line of authorities sustains the rule announced in this instruction, viz., that the operator who transmits a message must be able to understand its meaning as to quantity, quality, price, etc., as the sender and the party to whom it is sent themselves understood it; otherwise it is said he can not reasonably be supposed to have contemplated damages as the probable consequence of .a failure to correctly transmit it. While some of the cases cited go to that extent, especially where the message is in cipher, another line of decisions, and we think founded on the better reasons, hold that where enough appears in the message to show that it relates to a commercial' business transaction between the correspondents, it is sufficient to charge the company with damages resulting from its negligent transmission.”

And on page 578:

“It certainly can not be contended that the agent must be informed. of all the facts and circumstances pertaining to a transaction referred to in a telegram, which are known by the parties themselves, to make his company liable for more than nominal damages. If it should be so held, the telegraph would cease to be of practical utility to the commercial world.
“It is not easy to state a case in which it can be said the parties contemplated, at the time of contracting, all the damages which will probably result from a failure to perform -the contract. We think the reasonable rule, . and one well sustained by authority, is that where a message as written, read in the light of well known usage in commercial correspondence, reasonably informs the operator that the message is one of business importance, and discloses the transaction so far as is necessary to accomplish the purpose for which it is sent, the.company should be held liable for all the direct damages resulting from a negligent failure to transmit it as written, within a reasonable time, unless such negligence is in some way excused.”

Our adjudications in Ohio are so meager upon these precise points, that it is interesting to examine as one of the pioneer cases a case tried before Judge Starkweather in the' court of common pleas in 1853, Bowen v. Telegraph Co., 1 Dec. Re., 574 (10 W. L. J., 415; 1 Am. Law Reg., 685), in which he enunciates as follows substantially the doctrine which I have just quoted.

“But if it (the telegram) was sufficiently plain to be understood by Bowen & McNamee, the plaintiffs in. this case, the merchants to whom it was addressed, though not intelligible to others, that .it was appreciable, and if changed to the injury of the plaintiffs, such a change was a proper subject of damages.”

We are not quite disposed to say that it was .the duty of the court below to find as a matter of law -that this telegram sufficiently -apprised the company of its importance and the danger of financial loss which might arise from non-delivery, but we are of the view that the case should fall within the general class of those which involve mixed questions of law and fact, and that it was one to be submitted to a jury for its consideration under proper instructions from the court. We do not desire to go further than this at present, and for the purpose of this inquiry it is enough to say that we have concluded that the judgment should be reversed and the cause remanded for another trial. Such will be the judgment.


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    INJUR.Y FROM EXPLOSION OF A BLAST.
    Circuit Court of Columbiana County.
    Mercer, Administrator, v. White et al.
    Decided, October Term, 1907.

      Blasting — Resort to, in a Populous District — Precautions Against Injury Disregarded — {Explosion of Blast not Negligence per se, When —Use of Streets in Erection of New and Removal of Old Buildings —Nuisance—Verdict Properly Directed for Defendants.

    Where the owner of a burned building situated in a populous city, desiring to demolish a wall with dynamite — for the purpose of erecting a new building, that being the only practicable means— secures the consent of the street .commissioner to such dynamiting and before putting off the blast .stretches ropes across all streets leading to the building for the purpose of keeping all pedestrians at a safe distance, and .a young man knowing the object and purpose of the ropes goes with others under the ropes and up the street through curiosity to a point much nearer the building and is hit with a flying brick and is killed, when if he had kept outside the ropes he would have been in perfect safety, the owner of the building and his contractor who put off the blast are not liable in damages for his death.

      Charles Boyd and George D. Ingram, for plaintiff in error.

      C. S. Speaker and F. E. Grosshans, for defendants in error.
    Cook, J-; Burrows, J., and Laubie, J., concur.
    Error to Columbiana Common Pleas Court.
   Lewis E. Moore, a young man, was killed at East Liverpool, this county, by a flying brick caused by dynamiting a wall in that city. There had been a large fire and there was one particular wall that was left standing that was difficult to demolish. Jack screws were used without effect. Water was tried but, in consequence of the low pressure, it was also ineffective, and from the evidence it is apparent that the only practical way to remove the wall was by blasting with dynamite. No formal permit was obtained from the city government to resort to blasting, but the officers in the control of the streets were informed that such resort would be had and they consented thereto.

Before the blast was put off ropes were stretched across all streets and alleys at such a distance from the wall as was supposed to preclude the possibility of there being any danger beyond the ropes. The rope was stretched across Drury lane, the street upon which young Moore was killed, one hundred and ninety-five feet from -the wall. No part of the wall or debris was thrown any material distance from the wall -but this single brick; and the evidence by persons used to blasting with dynamite shows that is was a very unusual occurrence; that they had never heard of a similar case of a brick or a piece of brick being thrown such a distance before.

The street commissioner who had control of the streets was upon the ground at the time of the blasting, as were also a number of the city police and fire department, at the request of defendants in error — who were the owners of the building and the contractor in control of the work — for the purpose of warning all persons to keep beyond the ropes, which they did to the best of their ability; so that every precaution was taken to prevent injury from the blast. But it is claimed that blasting in a populous city is a nuisance and that whoever does so, does it at his peril, and that no amount of precaution will avail anything in case of injury.

In support of this position much reliance is placed by counsel upon the ease of Munro v. Pacific Coast Dredging & Reclamation Company, decided by the Supreme Court of California, 24 Pacific Reporter, 303. In the opinion in that case it is said:

“The giving of the following instruction by the court is likewise excepted to: 'It is no defense or answer to an action of this character that defendant, in exploding the blast in question, used and employed skillful and experienced men, and in everything appertaining to blasting it used and exercised the highest degree of care; and I charge you that defendant is liable to damages for the death of said Michael Stanton, if you find that his death resulted from the firing of the blast in question, even if it used the highest and utmost care and skill in firing and exploding it.’ We preceive no error in the above direction. The evidence shows clearly that this blast was exploded in a thickly settled portion of the city. We are of opinion that no degree of care will excuse a person, where dearth was caused by such explosion, from responsibility for it. It is said that the above instructions ignore the doctrine of contributory negligence. As there was no evidence of contributory negligence in the cause, the doctrine of .such negligence was properly ignored.”

We are not informed of the circumstances of the blasting in that ease — whether it was being doiie in the erection or demolition of a building. Possibly it was being done in the prosecution of some character of business by a manufacturer or other person, which it seems to us would make a material difference.

In this case the old wall was being removed in order that a new building might be erected.

It is well settled that streets may be used temporarily by abutting proprietors in the erection 'of a building where' due care is used in guarding the obstruction so that pedestrians are fully warned, and we can not see why (the same may not be done when proper caution is used in taking away the debris for the purpose of erecting a building.

In the case of Graetz v. McKenzie, 35 Reporter, 377, the Supreme Court of Washington held :

“1. Blasting, in excavating for a building, so as to throw-rocks on the street and adjacent property, is a nuisance; but giving fair warning of an impending blast absolves the excavators from damages for personal injuries, if the injured person failed to heed it.
“2. Where warning of an impending blast was given to a pedestrian on a street before it occurred, and he was advised to take a place of safety along the wall of a building, the fact that he was seized with a sudden panic when the .crash came, and rushed into the building, where he was killed by a stone hurled through the window, will not render the persons exploding the blast liable. ’ ’

Although this case was decided by a divided' court yet it is certainly in harmony with reason. To the same effect is St. Peter v. Denison, 58 N. Y., 416.

In >the case before us plaintiff’s intestate had full knowledge that the blast was about to be put off, .and that he should keep out of danger. ^ The rope, as we have before said, was stretched across Drury lane one hundred and ninety-five feet from the place of the blast. It was notice to all persons to keep beyond the rope. Furthermore, the people were cautioned by the policemen and firemen to keep outside of the ropes, and yet plaintiff’s intestate with others, through curiosity, went under the rope on Drury lane and up the street for a distance of fifty-five feet nearer the wall where the blast was being.put off, and while standing at that point .was struck with the brick and killed. Had he been outside of the rope he would not have been struck. It was his own carelessness and recklessness that directly contributed to his death, and although defendants in error may have been guilty of creating a nuisance, yet they could not bo held responsible for his death.

Something is claimed by counsel for plaintiff in error on the authority of Railroad Company v. Kassen, 49 Ohio State, 230. There is no evidence that defendants in error knew that young Moore was within 'the ropes before they caused the blast to be put off, hence that case does not apply. The court did right in directing a verdict for defendants below, and the judgment is affirmed.


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    DECREE FOR. SPECIFIC PERFORMANCE DENIED.
    Circuit Court of Hamilton County.
    Mullen v. Kennedy et al.
    Decided, June 15, 1907.

      Specific Performance — Of Contract to Sell Realty will not be Decreed, When — Equity.
    Equity will not decree specific performance to a purchaser of three separate lots, where he brings an action for recovery of one of them, and later, after the value of the property has materially increased, offers to take all three lots.

      C. M. Leslie, for plaintiff.

      Cogan & Williams, for defendant.
    Swing, P. J.; Giffen, J., and Smith, J., concur.
   This is an action for specific performance. It appears that Kennedy, as executor, employed Theo. Mayer & Bro. to sell certain real estate in the city of Cincinnati. It was bought as one tract of land, but was offered and sold in separate lots on the same day to the same person, to-wit, the plaintiff. Suit is brought to complete the sale of only one of the lots bid off.

This is an action in equity and the relief asked for is not to be granted as a matter of right, but only on equitable principles. We do not think it would be equitable to compel the defendant to convey one lot to the plaintiff, and relieve her from taking the other two lots. She should not be permitted to pick out one lot, and say she would take that, but not the others. This is in effect what she did on the trial of the case in this court. Plaintiff testified that she was willing and able to take the other two lots, but this comes too late. This action was brought more than two years ago and since then the value of these lots are probably greatly enhanced, and this may be the reason why she is now ready to take the .other two lots. If she wanted to insist on carrying out the contract of sale as alleged to have been made between the parties, it was only right that she should have demanded that the whole contract should be performed, and not a part, for while the tract of land was sold in different lots, it was really one piece of property and sold at .one time.

The petition will be dismissed.


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    FREE BAPTISTS LEGAL SUCCESSORS OF FREE WILL BAPTISTS.
    Circuit Court of Scioto County.
    Charles O. Graham et al, Trustees, v. Frederick F. Ransahous, General Conference of Free Baptists of the United States, et al.
    Decided, March 23, 1908.

      Religiotis Societies — Status of the General Conference of Free Baptists —Claim of, to be the Successors of the Free Will Baptists Confirmed — No Change in Faith and Tenets, and No Schism — Litigation between Church Factions — Unreversed Judgment is Res Adjudicata as to, When — Not Affected by Change in Trustees and Membership.

    1. The General Conference of Free Baptists of the United States has been duly and legally organized and incorporated under the laws of the state of Maine, and is the legal successor of the General Conference of the Free Will Baptist Connections of the United States.
    2. There has been no substantial or material departure by said General Conference of Free Baptists of the United States from the faith and tenets of said General Conference of Free Will Baptist Connections of the United States, and there has never existed a schism in said General Conference of Free Will Baptist Connections of the United States nor in its said successor, the General Conference of Free Baptists of the United States.
    3. The said incorporation of the General Conference of Free Baptists of the United States and the change of name from that of the General Conference of Free Will Baptist Connections of the United States to said corporate name were duly and legally authorized by said General Conference of Free Will Baptist Connections of the United States, and what is known as the new constitution and bylaws of said Free Baptist Church were duly and legally adopted by said General Conference of Free Baptists of the United States.
    4. Where one of two existing factions in a church society, or the trustees or representatives of said such faction obtains a judgment of a court having jurisdiction of the parties and subject-matter against the other faction, determining the rights and interests of said parties in and to the church property of such society, such judgment if unreversed is res adjudicata as to all matters so determined in all subsequent suits between said two factions so long as they continue substantially the same, and this is so notwithstanding the trustees, representatives and individual membership of said factions may change.

      Evans & Crawford and N. J. Dover, for plaintiff.

      Frank JB. Finney and J. C. Milner, contra.
    Walters, J.; Jones, J., and Cherrington, J., concur.
   Charles O. Graham et al v. F. F. Ransahous et al is in this court on appeal from the court of common pleas. The plaintiffs in the court of common pleas filed their petition, alleging in substance that in the year 1880 there was a church society existing in the town of Sciotoville, this county; that it has continued in existence up to the present time; that it was known as the Free Will Baptist Church Society; that in 1880 Henry Towne and wife, and Samuel McConnell and wife, by deed executed to certain trustees of said church, conveyed a lot in the village of Sciotoville to them in trust for the uses and purposes of a church. They further allege that the defendants are unlawfully keeping them out of possession, and that they are claiming to be the legal trustees of the church, whereas they are not; and alleging that the plaintiffs are the successors of the trustees who were mentioned and named from the organization of the" church down to the present time; they further allege that in 1905 the defendants attempting to- act as such trustees made a conveyance of the church property to the general conference of the Free Baptist Church; that the Free Baptist General Conference deeded the property back to the trustees at Sciotoville, upon certain conditions — that they should pay -the taxes and keep the property insured for half its value, thus giving the property back to the trustees for religious purposes.

The prayer of the petition is that the plaintiffs may be restored to the possession of the property and their rights as the lawful trustees of the property and church, and that their title may be quieted to the same, and that the two conveyances to the trustees of the General Conference of the Free Baptist and from the General Conference of the Free Baptist back to the trustees be set aside as fraudulent and void, and contrary to the original trust.

The answer is a substantial denial, first of the allegations in the petition; and second, it sets up that the matters and things complained of in the petition have been adjudicated in a former suit filed in the court of common pleas in this county, in 1889, substantially between these same parties, and that the judgment of the court thereon still remains unmodified and unreversed and in force. >

A long reply is filed to that answer in which the plaintiffs declare that the General Conference of the Free Baptists attempted to form an organization and take over the property of this church; but that they didn’t adhere to the original doctrines and tenets of the church, and that they have gone away from the original church, leaving the plaintiffs the original church people and entitled, therefore, to this property.

There has been a large amount of documentary evidence introduced in this case, and it presents two or three questions, and in order to a presentation of the same it will be necessary to dwell somewhat upon the history of this organization.

It seems from the papers and exhibits in this case that the church was organized in 1780, as a Free Will Baptist — a denomination, and that it was a voluntary association; that it continued in existence until 1827, when a General Conference was organized. In 1841 it adopted a constitution .and by-laws. Article X of the constitution provides:

“This constitution may be amended at any regular session of this conference by a vote of two-thirds of the members present, provided such amendment has been proposed at a previous session, and approved by at least three-fourths of the yearly meetings belonging to the conference.”

It seems this church had, in the first place, what they denominated local churches, who by prescribing to certain forms came into the association. That they had certain rules which they followed in the local church organizations; that they then had a quarterly meeting, which quarterly meeting was composed of two or more of the local churches; they then had what they styled yearly meetings, which was composed of two or more of the quarterly meetings.

I would say the history of the church shows in their general conference, previous to 3889, there arose a discussion in the general conference as to the change in the name of the church. And in the conference that was held in 1886, appears this on page 190 of the Free Baptist Faith:

"The conference instructs the oonfereiice board to take immediate steps to secure the incorporation of the general conference.’’ Twenty-Sixth Conference, p. 508, 1886.

The name and title of the general corporate body shall be, "The General Conference of Free Baptists.” Twenty-Seventh Conference, pp. 36, 38, 1889.

It will appear, therefore, that the General Conference of the Free Will Baptists had under discussion in 1886 and 1889 the incorporation of the general conference, and directed the name by which it should be incorporated. Following that general conference, in 1889, it appears from the proceedings that in 1891 certain persons belonging to the Free Will Baptist church procured a charter from the Legislature of the state of Maine; that charter is a very comprehensive one, and is embraced in a special act passed by the Legislature which gives to these incorporators certain special privileges and provides in the act what they shall do, and what their jurisdiction and authority shall be. And it gives to the incorporation the name of the General Conference of Free Baptists. In the act there is an authority to certain designated persons therein to give a certain notice to the members of the church — a public notice — before the call of a meeting for the purpose of taking such steps on the act as' they may see fit. That notice appears in the records. Pursuant to that notice on the 3d of October, 1892, the incorporators — the incorporation you might say met at Old Orchard, Maine; there they attempted to perfect a corporation under the special act. They adopted unanimously the charter provided in the special act, and they also adopted a constitution and by-laws. After having done that they then adjourned to meet at Paige Street Church, in Lowell, Mass., where at the same time the Triennial General Confer-en.ce of the Free Will Baptists was being held. It seems from the record that the incorporators went into the church — the place where the Free Will Baptist Conference was being held, and took possession practically of the whole proceedings. And they organized under the incorporation articles in the church where the Free Will Baptists were holding the conference. They elected a presiding officer and a clerk, and they adopted the roll of the delegates that had been presented to the Free Will Baptists Conference, as the roll under the incorporation articles, and proceeded to business.

Among other things, the following resolutions were adopted:

“Resolved, That whenever the clerk of the General Conference of Free Baptists shall certify to the treasurer of the conference that yearly meetings and association representing three-fourths of the membership of this denomination have approved of the organization and incorporation of the General Conference of Free Baptists, then the treasurer of this conference be and hereby is directed and authorized to give, transfer, deliver, set over and assign to -the treasurer of the General Conference of Free Baptists, a corporation duly created in the state of Maine, all property of every "name, kind and nature held by said Free Will Baptists Connection in North America, to be held by said treasurer of the General Conference of- Free Baptists under the same conditions, powers, and privileges as held by the treasurer of this conference.”

That was unanimously adopted. There is also another resolution which provides that, under the same conditions — when three-fourths of the membership of this denomination have approved of the organization and incorporation of the General Conference of Free Baptists, then the treasurer of this conference be and hereby is directed to transfer the aged and needy ministers’ fund, now held by him to the Conference Board of the General Conference of Free Baptists, to be held by it for the same purpose as now held by the treasurer of this conference.

At the same general conference, the following resolution was adopted:

“Resolved, That the General Conference of Free Baptists hereby recommend the yearly meetings and associations constituting the General Conference of Free Will Baptists of North America to consider the organization and incorporation of the General Conference of Free Baptists as effected at Ocean Park and perfected at Lowell under instructions given by general conference at Harper’s Ferry, and if approving the same to express their approval by formal action, to be reported at once thereafter to R. Deering, clerk of the General Conference of Free Baptists, at his office in Portland, Me.; and,
“Resolved, That the various benevolent societies connected with the denomination which .are expected to become merged into the General Conference of Free Baptists are advised for the time being to continue their work as at present constituted; and,
“Resolved, That when the Yearly Meetings and Associations representing three-fourths pf the resident membership of the denomination shall have approved of the organization of the General Conference of Free Baptists it shall be understood as the will of the denomination that the various benevolent societies aforesaid transfer their funds and merge their interests into and with the General Conference of Free Baptists.”

This appears in the proceedings of the twenty-eighth General Conference of Free Baptists, and of the Free Will Baptists Conference, partaking of the nature of both organizations.

The next triennial conference was held at Winnebago, Minn., by special appointment of those authorized to fix the time and place. In the proceedings of that triennial conference, being the twenty-ninth of the Free Baptists, appears the following:

“On motion of Webb'of Maine, the clerk was directed to read the records relating to the adoption of the constitution, and of the transactions affecting it, made since the Lowell Conference. The records having been read accordingly, on motion they were approved. ’ ’

That, we take it, relates to the former provisions of resolutions passed in 1892, providing for the consent of three-fourths of the yearly meetings be directed to the clerk, and that when he shall have received the consent of- three-fourths of the members of the yearly meetings, then these articles of incorporation of this new body should go into effect.

His report is not given there. The report is referred to as having been read accordingly, and on motion was approved. His report in detail nowhere appears in the records submitted here in evidence. On page 11 is the report of the conference board, which was read by H. M. Ford, who is the recording secretary, and in that report appears the. following:

“For the first two years the work of the board was sadly hindered while it waited for the necessary three-fourths vote of the resident membership of the denomination, which turned over to them the business of the three benevolent societies, and this took place only just one year ago, so that the board has actually had but one year to formulate and carry out its plans. Only a mere beginning could be made in so brief a time. ’ ’

Though we have a reference in the official procedings of the report of this executive and financial board, yet a year before that in 1894 the necessary three-fourths of the members of the yearly meetings had been obtained.

There appears in the proceedings of this conference a correspondence betwen Rev. Thomas E. Peden and the conference— being a letter — a general letter, addressed by Mr. Peden to the conference in which he protests against any action being taken by the conference under the corporation, and the answer to that letter was referred to a special committee. The special committee drafted a letter and it was laid before the conference and adopted. In that letter appears the following:

“The experience of other denominations, while making such changes, led to expectations of this kind, but to the credit of Free Will Baptists it can be truly said that their forbearance and kindness in the premises have exceeded that of any other denomination in like circumstances. Out of a resident membership of 58,847 the large number of 49,563 voted in favor of the changes proposed before said changes were made.”

It is true, we do not have the official ballots or votes, or the official report of the secretary in detail showing this vote. It is nowhere in evidence; but it is referred to in the documents from which I have just read extracts, as having been done — as having taken place — and gives the vote which constitutes more than three-fourths vote of the members of the yearly meetings. Therefore, we take it that so far as the question presented by this record, one of the chief questions that the constitution was not changed or the incorporation was not perfected by the necessary three-fourths consent of the members of the yearly meeting is not correct; that there is nothing in the records to show that the Article X of the Constitution of 1841 was complied with. It provides that the amendment shall be .proposed at a previous session. The records show that in 1892 at the regular session the proposed change was already laid before the general conference. The act of incorporation under the state of Maine was laid before the corporation. The proceedings of the corporators thereunder in their organization, the adoption of the new constitution and by-laws, and a change of the name were all three years before its adoption and at the previous triennial'Conference'laid before the general conference. The records show that on the vote it was adopted by the three-fourths of the members present and more. The records show that three-fourths of the yearly meetings belonging to the conference had voted t'o accept -the new constitution. The new constitution was adopted under the corporate name, and the name was changed from the Free Will Baptists to the General Conference of the Free Baptists. That was a part of the change of the constitution, because the old constitution provided that the name shall be the General Conference of the Free Will Baptist Connection. Therefore, from these records we can see that the constitution of 1841, Article X, was strictly complied with, and the new constitution was adopted and a corporation formed for the purpose of taking over by a resolution all the property of the Free Will Baptist Connection, and that by such incorporation and three-fourths consent of the yearly meetings, and a two-thirds vote of the conference, together with the proposal of all that was being done made before the previous triennial general conference have been complied with, and that by the act of incorporation and these steps having been complied with, it ipso facto, turned over all. the property and effects of the church to the new corporation.

In the Northwestern Reporter, No. 9, Vol. 76, March 23, 1906, on page 707, the learned counsel for the complainants in this case have given us the decision which there appears. The sixth syllabus of the case is as follows:

‘ ‘ Property conveyed to the trustees of an incorporated congregation vests on its incorporation in the corporation.”

In this ease there seems to have been just about the difference that there was between the two different factions in regard to the name. The one contending for the name of Christian Church and the other for the Church of Christ. In this case the difference between Free Will Baptists and the Free Baptists. And in the opinion the court say they incorporated under the name of the Church of Christ of Sand Creek. By that act of incorporation all the property of the Sand Creek congregation became immediately vested in that corporation, and its title thereto was not divested by the act of the defendants in error in subsequently incorporating as the Christian Church of Sand Creek.

It will be observed that these proceedings show that the local church at Seiotoville, in 1905, incorporated, and that these complainants are the trustees under the corporate act, and are now seeking as such trustees to obtain the title and the quieting of the same and possession of its church property in Seiotoville. Under that decision — under the rules, and under the constitution adopted in 1841 — we must therefore hold that the incorporation was regular; that the constitution was changed by the change of name regularly — that the name was regular and authorized in 1886-, and also in 1889, and that they were adopted by the necessary consent of three-fourths of the members of the yearly meetings. That would seem practically to dispose of this ease; but there is another question presented and argued strenously by counsel for complainants.

Counsel for the complainants claim under the general rule of law in regard to church associations that where there is a schism in the church, or a division, the property of the church will belong to that faction or division of the church which holds to the original doctrines and tenets of the church. And eounsel claim that the organization to which .complainants belong, the Free Will Baptists, maintained the original doctrines and tenets of the Free Will Baptist Church Connection, as an original organization. And that the General Conference of Free Baptists is an offshoot and a seeeder from the original doctrine, and therefore, that all the property of the church remains with those who stick to the old methods and doctrines and faith of the church.

At the twenty-fourth general conference, page 405, of the record, held in 1880, the following appears:

“Each religious body connected with the conference is at liberty to use in its title ‘free’ or ‘free will’ as may be preferred.”

At the twenty-fifth triennial conference, page 457, of the records, held in 1883, appears the following:

“The names ‘Free Will Baptists’ and ‘Free Baptists’ are to be regarded as synonymous. ’ ’
“The name and title of the general corporate body shall be ‘The General Conference of Free Baptists.’ ” Twenty-seventh triennnial conference, pp. 36 and 38, held in 1889.

Mr. Peden, while on the stand testifying in this ease, testified among other things that the doctrines of the Free Will Baptists and the Free Baptists are substantially the same. And in going through the record of the publication of the Book of Faith, and the Conference of Faith, or Articles of Faith, or whatever it may be called in ecclesiastical language, there appears no difference in the Articles of Faith of the Free Will Baptist Church as it has always stood and the Free Baptists, with the exception of one article of faith, and that appears in a little pamphlet, styled Free Will Baptist Faith, being a treatise, it is said, containing the leading points of the doctrine and principles of the Free Will Baptists, and on page 32 appears the following:

“Washing the Saint’s feet. This teaches humility, purity of body as well as soul, willingness to serve every Christian in any way we possibly can to promote his spiritual welfare and advance the Cause of Christ. It is the duty and happy prerogative of every believer to observe this sacred ordinance.”

In this record objections to this section or article of faith appear. It was published in 1905, and for aught that appears in this record this article of faith was adopted long after the schism took place in 1892, and ten years after the final adoption of the new constitution under the corporate name in 1895. And so far .as we know from this record this washing the saint’s feet faith article was passed by the Free Will Baptists themselves long after all these injuries are alleged to have occurred. If that be so, then the Free Will Baptists have changed faith and doctrine, if it be a change. If it be, as counsel claim, a radical change and in the nature of a sacred sacrament, then the Free Will Baptists, as I say, ten years after this change occurred, made the change from the original doctrine themselves, and that they are the ones that have perverted and receded from the original doctrine instead of the corporate Free Baptists. And they certainly can not allege as a predicate that the original doctrine had been changed and that they represent the original doctrine, when from all that we know, this change occurred a long, long time after all these things took place. There is nothing in this whole record from the beginning to end in the view that we take of it, th'at will prevent the complainants in. this ease attending the church in Seiotoville, as now organized under the Free Baptists, and worship God according to the doctrine of ’the Free Will or the Free Baptists. And that is the foundation of all rights.in a civil court that the complainants can have, and with their doctrines and faiths and their eelesiastical rules of law we have nothing to do, excepting that if their rules and courts as they have them provide for the doing of a certain thing that is lawful and it is done, it precludes the civil courts from afterwards taking jurisdiction and passing upon the question. It seems that this church has had different ascending functionaries and judicatories to determine the different matters; the local church, the local matters; the quarterly church, the quarterly matters; the yearly meetings, the yearly matters; and the general conference general supervision of .all matters — constituting general courts of judicatory so far as ecclesiastical questions are concerned and for determination. And if they have determined them, this civil court has- nothing whatever to do with it.

In a well considered case that was affirmed by the Supreme Court, appearing in Vol. 6, Ohio Circuit Court, p. 128, the court says:

"That where the right of property in the civil court is dependent on the question of doctrine, discipline, ecclesiastical law, rule, custom or church government, and that has been decided by the highest tribunal within the organization to which it has been carried, the civil court will accept that decision as conclusive, and be governed by it in its application to- the case before it.”

Having found that the ecclesiastical courts, the General Conference of the Free Will Baptists, if you please, having provided in their articles — in their constitution, Article X — how it shall be amended, or how abrogated, finding as we do that the steps provided there have been carried out, this court has nothing further to do.

There has been cited to us here a very learned ease from the House of Lords, England. The holding appears in the law-reports in this pamphlet containing some eight hundred pages, where a church question arose, and was decided after long and learned discussion. And the book really is a symposium o£ learning and eloquence in polemics and scholasticism, but so far as the merits of this case are concerned, as we view it, it is not" decisive and really does not apply. The first syllabus is:

‘ ‘ The identity of a religious community described as a' church consists in the identity of its doctrines, creeds, confessions, formularies and tests.”

As we have seen and found from this record the Free Baptist Church and the Free Will Baptist Church in all their doctrines and confessions of faith are alike, except as to washing feet; and that, from this record, appears to have been introduced by the complainants themselves.

Now, there is another question (this opinion is already getting long), as to matters and things herein having been adjudicated. It seems in 1899 a suit was brought in this court and that the suit was between indentiically the same parties that bring this suit, or their predecessors or successors. It was the same principle exactly — to obtain possession of this church; the one faction claiming they had been put out by the other, and the other claiming that they had not. „ Why wasn't it an adjudication? Because they are different parties here succeeding to the title of trustees 'in trust doen’t alter the case; it must be considered as the same parties; the subject-matter is the same; the factions representing the Free 'Will Baptists and the Free Baptists are the same; their successors are the same; and the trust is the same and the same question was made in the subject-matter and practically between the same parties. , ■

So far as the case being an appealable one, we adhere to our former decision, and the motion to dismiss the appeal will be overruled. The petition of the complainants will be dismissed.

Finding and decree will be entered in favor of the defendants.